18
19
But I do think that the matter is somewhat more complicated than seems to have been originally supposed, and that it ought to be carefully considered from all sides before we commit ourselves to any formal propositions to the Japanese Government on the subject.
April 10, 1893.
W. E. D.
The reasons which, on the whole, incline me in favour of a Treaty are :- 1. It would remove a cause of irritation, and render secure the recovery of British fugitives in Japan, which is now rendered precarious by existing circumstances.
2. It is, I think, a great disadvantage to this country, especially in our Eastern and American Colonies, to be unable under any circumstances to get rid of a Japanese fugitive criminal. A man who has committed a murder or a fraud in Japan is a dangerous and undesirable visitor, but without a Treaty we cannot send him away to be punished.
3. I do not undervalue the objections raised by Mr. Davidson, and think it very likely the Japanese attach more importance to the admission of the principle than to the practical usefulness of a Treaty. Still, there is something to be said for the Japanese contention, that our exterritorial jurisdiction—which is the creature of Treaties—does not embrace the power to deal with persons for offences committed outside Japan, a matter which is not expressly stipulated for in any Treaty.
It is further to be observed that we do not propose to allow British subjects to be tried and punished by Japanese justice. British subjects, fugitives from Japan, would not be given up under the proposed Treaty to be tried and punished in Japan. But the only effect of it, so far as British subjects are concerned, would be that if, after committing crimes in Her Majesty's dominions, they take refuge in Japan, they will be handed over by the Japanese to the British authorities in accordance with the formalities prescribed by law or custom in Japan, instead of being at once seized by the British authorities without the courtesy of asking permission. The effect in this respect would be identical with the arrangements now in force, but the national feeling of Japan in regard to the right of asylum would be conciliated.
I think, then, that the abstract justice and practical utility of a Treaty should be allowed to outweigh the political considerations to the contrary, which do not seem to me to be very strong, and will probably become less so every year.
Sir T. Sanderson,
No. 7.
Minutes.
H. G. B.
I THINK I sent in to you about a month ago these papers, which you had ordered to be printed, but have not heard anything further since.
Fraser was asking to-day how the matter stands.
June 6, 1893,
H. G. B.
I have read them. My feeling is that in the present condition of Japanese politics, and their very uncertain attitude as regards Treaty revision, it is undesirable for us to raise this question, and that we had better wait if we can.
No. 8.
T. H. S.
Memorandum by Mr. Fraser on the Mutual Surrender of Fugitive Offenders between Great Britain and Japan.
I REGRET to give farther trouble to the Foreign Office on a matter in regard to which much prompt and efficient help has already been afforded me; but I am so strongly impressed by a consciousness of the inconvenience and danger that must result from allowing the question of the mutual surrender of fugitive offenders between Great Britain and Japan to remain indefinitely in the precarious situation to which circumstances have unfortunately relegated it for four years past that I feel compelled to offer some remarks
in answer to Mr. Davidson's latest Minute on this subject, in the hope that I may possibly succeed in dispelling some of the very natural prejudices that have hitherto served to impede its arrangement.
The whole argument of the Japanese Government in support of their objection to continue to surrender foreign fugitives, charged with offences committed abroad, unconditionally to their respective Consuls, has been for a long time before Her Majesty's Government, and I need not rehearse it; nor do I wish to waste time by repeating any of the considerations in favour of concluding an Extradition Treaty with Japan, in order to meet this difficulty, which have been already stated by me, or by others far more able than myself, in the correspondence or notes upon the case.
Mr. Davidson's Minute lays down the following objections to the conclusion of a regular compact:-
1. That the continued existence of Consular jurisdiction in Japan is incompatible with its full recognition as a civilized State;
2. That no compensating advantage seems to be offered to Great Britain in return for her recognition of the principle contended for by the other party; and
3. That we should not be justified in surrendering any fugitives liable to be compelled to kill themselves. A reference of the whole matter to the Law Officers of the Crown or to the Lord Chancellor is also suggested,
If there are any definite points upon which a high legal opinion ought to be obtained before permission to negotiate can be given, I would venture to beg that they may be stated and submitted, as quickly as possible, to the competent authorities; but I should hesitate to say the same thing in regard to the larger question whether it will be right or wrong to negotiate at all, for that appears to me to be one which the law cannot answer. It is hardly to be doubted that if any high legal authority should be asked whether an Extradition Treaty ought or ought not to be contracted with a State in whose territory Consular jurisdiction is at the same time exercised, his reply will be in the negative. That is the traditional maxim in England, as it also continues to be in Europe generally, though it is no longer very firmly maintained, and an entirely different opinion prevails in America. No doubt a particular case, presenting special features and offering new arguments might possibly be differently answered; but no reply upon the matter, whatever may be its sense or its authority, will be a statement of actual law.
If the policy of Her Majesty's Government should unfortunately be determined by an opinion in consonance with that which is expressed in Mr. Davidson's Minute, I am bound to say that the result must be an undignified and dangerous deadlock. For this traditional maxim, which has no longer the force of universal admission, affords no answer at all to the Japanese contention. And, speaking always with entire deference, it is impossible not to deprecate most strongly any recommendation that Her Majesty's Government should pass formal pleas by unheeded in order to contest, upon general and doubtful grounds, the claim of an independent State to exercise, within its own territory, an authority, neither unreasonable in theory nor vexatious in practice, which it is evidently able not only to sustain by argument, but also to put in force of its own accord.
The advantage of effecting a proper arrangement of the matter in dispute seems a sufficient inducement to conclude the proposed Convention. A special compensation would imply substance and value in the claim abandoned. The claim in question is not supported by the text of the Treaty. It rests upon implication. I have already said that I think it will be an advantage, rather than an injury, to Her Majesty's Consuls to relieve them from the duty of pursuing fugitives in a foreign country; and there is no doubt that it will serve to guard us from many and serious risks of collision with the native jurisdiction to which we must remain subject so long as the present state of things is allowed to subsist.
The only remaining question is that of the fitness of the Japanese Government to perform its proper part of an Extradition Treaty.
There is no reason now to apprehend that foreigners, who may be arrested in Japan by the Japanese authorities, and kept in custody for delivery to foreign justice, will be subjected to any barbarous usage. On the contrary, such persons have always, within my experience, been treated with care and humanity. It is no new thing for foreigners to be arrested and kept in custody provisionally by the Japanese police, but a common usage and custom for many years past. Nor, as regards the surrender of Japanese fugitives by Great Britain to their natural jurisdiction, can exception be now taken either to the habitual treatment of prisoners in Japan or to the character of the judicial punishments. The objection of "customary barbarity" finds no application on either side of the question.
The Japanese have long since abolished the excessive punishment and abandoned the
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325
18
19
But I do think that the matter is somewhat more complicated than seems to have been originally supposed, and that it ought to be carefully considered from all sides before we commit ourselves to any formal, propositions to the Japanese Government on the subject.
April 10, 1893.
W. E. D.
The reasons which, on the whole, incline me in favour of a Treaty are :- 1. It would remove a cause of irritation, and render secure the recovery of British fugitives in Japan, which is now rendered precarious by existing circumstances.
2. It is, I think, a great disadvantage to this country, especially in our Eastern and American Colonies, to be unable under any circumstances to get rid of a Japanese fugitive criminal. A man who has committed a murder or a fraud in Japan is a dangerous and undesirable visitor, but without a Treaty we cannot send him away to be punished.
3. I do not undervalue the objections raised by Mr. Davidson, and think it very likely the Japanese attach more importance to the admission of the principle than to the practical usefulness of a Treaty. Still, there is something to be said for the Japanese contention, that our exterritorial jurisdiction-which is the creature of Treaties--does not embrace the power to deal with persons for offences committed outside Japan, a matter which is not expressly stipulated for in any Treaty.
It is further to be observed that we do not propose to allow British subjects to be tried and punished by Japanese justice. British subjects, fugitives from Japan, would not be given up under the proposed Treaty to be tried and punished in Japan. But the only effect of it, so far as British subjects are concerned, would be that if, after committing crimes in Her Majesty's dominions, they take refuge in Japan, they will be handed over by the Japanese to the British authorities in accordance with the formalities prescribed by law or custom in Japan, instead of being at once seized by the British authorities without the courtesy of asking permission. The effect in this respect would be identical with the arrangements now in force, but the national feeling of Japan in regard to the right of asylum would be conciliated.
I think, then, that the abstract justice and practical utility of a Treaty should be allowed to outweigh the political considerations to the contrary, which do not seem to me to be very strong, and will probably become less so every year.
Sir T. Sanderson,
No. 7.
Minutes.
H. G. B.
I THINK I sent in to you about a month ago these papers, which you had ordered to be printed, but have not heard anything further since.
Fraser was asking to-day how the matter stands.
June 6, 1893,
H. G. B.
I have read them. My feeling is that in the present condition of Japanese politics, and their very uncertain attitude as regards Treaty revision, it is undesirable for us to raise this question, and that we had better wait if we can.
No. 8.
T. H. S.
Memorandum by Mr. Fraser on the Mutual Surrender of Fugitive Offenders between Great Britain and Japan.
I REGRET to give farther trouble to the Foreign Office on a matter in regard to which much prompt and efficient help has already been afforded me; but I am so strongly impressed by a consciousness of the inconvenience and danger that must result from allowing the question of the mutual surrender of fugitive offenders between Great Britain and Japan to remain indefinitely in the precarious situation to which circumstances have unfortunately relegated it for four years past that I feel compelled to offer some remarks
in answer to Mr. Davidson's latest Minute on this subject, in the hope that I may possibly succeed in dispelling some of the very natural prejudices that have hitherto served to impede its arrangement.
The whole argument of the Japanese Government in support of their objection to continue to surrender foreign fugitives, charged with offences committed abroad, uncon- ditionally to their respective Consuls, has been for a long time before Her Majesty's Government, and I need not rehearse it; nor do I wish to waste time by repeating any of the considerations in favour of concluding an Extradition Treaty with Japan, in order to meet this difficulty, which have been already stated by me, or by others far more able than myself, in the correspondence or notes upon the case.
Mr. Davidson's Minute lays down the following objections to the conclusion of a regular compact:-
1. That the continued existence of Consular jurisdiction in Japan is incompatible with its full recognition as a civilized State;
2. That no compensating advantage seems to be offered to Great Britain in return for her recognition of the principle contended for by the other party; and
3. That we should not be justified in surrendering any fugitives liable to be compelled to kill themselves. A reference of the whole matter to the Law Officers of the Crown or to the Lord Chancellor is also suggested,
If there are any definite points upon which a high legal opinion ought to be obtained before permission to negotiate can be given, I would venture to beg that they may be stated and submitted, as quickly as possible, to the competent authorities; but I should hesitate to say the same thing in regard to the larger question whether it will be right or wrong to negotiate at all, for that appears to me to be one which the law cannot answer. It is hardly to be doubted that if any high legal authority should be asked whether an Extradition Treaty ought or ought not to be contracted with a State in whose territory Consular jurisdiction is at the same time exercised, his reply will be in the negative. That is the traditional maxim in England, as it also continues to be in Europe generally, though it is no longer very firmly maintained, and an entirely different opinion prevails in America. No doubt a particular case, presenting special features and offering new arguments might possibly be differently answered; but no reply upon the matter, whatever may be its sense or its authority, will be a statement of actual law.
If the policy of Her Majesty's Government should unfortunately be determined by an opinion in consonance with that which is expressed in Mr. Davidson's Minute, I am bound to say that the resuit must be an undignified and dangerous deadlock. For this traditional maxim, which has no longer the force of universal admission, affords no answer at all to the Japanese contention. And, speaking always with entire deference, it is impossible not to deprecate most strongly any recommendation that Her Majesty's Government should pass formal pleas by unheeded in order to contest, upon general and doubtful grounds, the claim of an independent State to exercise, within its own territory, an authority, neither unreasonable in theory nor vexatious in practice, which it is evidently able not only to sustain by argument, but also to put in force of its own accord.
The advantage of effecting a proper arrangement of the matter in dispute seems a sufficient inducement to conclude the proposed Convention. A special compensation would imply substance and value in the claim abandoned. The claim in question is not supported by the text of the Treaty. It rests upon implication. I have already said that I think it will be an advantage, rather than an injury, to Her Majesty's Consuls to relieve them from the duty of pursuing fugitives in a foreign country; and there is no doubt that it will serve to guard us from many and serious risks of collision with the native jurisdiction to which we must remain subject so long as the present state of things is allowed to subsist.
The only remaining question is that of the fitness of the Japanese Government to perform its proper part of an Extradition Treaty.
There is no reason now to apprehend that foreigners, who may be arrested in Japan by the Japanese authorities, and kept in custody for delivery to foreign justice, will be subjected to any barbarous usage. On the contrary, such persons have always, within my experience, been treated with care and humanity. It is no new thing for foreigners to be arrested and kept in custody provisionally by the Japanese police, but a common usage and custom for many years past. Nor, as regards the surrender of Japanese fugitives by Great Britain to their natural jurisdiction, can exception be now taken either to the habitual treatment of prisoners in Japan or to the character of the judicial punishments. The objection of "customary barbarity" finds no application on either side of the question.
The Japanese have long since abolished the excessive punishment and abandoned the
[380]
G
325
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