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barbarous practices in the treatment of criminals and accused persons which they once used in common with the Chinese. Their actual Criminal Code, which has been in force for eight years or more, is copied from European models, and contains no enactments, to the best of my belief, that are not usual in Christian countries. I do not think "Karakiri" is any longer a judicial punishment in any circumstances, though no doubt a person of condition might still be permitted to escape by that door from the effect of an ordinary capital sentence. It would be difficult, perhaps, to exact a promise that no such course should be permitted as a condition of surrender. But whatever objection can be raised on this point must be understood to be a permanent objection to the conclusion of a Treaty with Japan at all, irrespectively of the maintenance or abandonment of Consular jurisdiction there.
I entirely share Mr. Davidson's sense of the inexpediency of creating precedents in one Oriental State which it may be inconvenient to follow in dealing with the rest; but I do not think there is much real analogy between the condition and aspirations of Japan and those of other Eastern States, or that many of these could find their account in seeking to follow her example. If they did so, it might not be absolutely impossible to content them according to their circumstances and needs. There are great differences, of course, among them. In some, definite arrangements for the surrender of criminals appear to be rendered necessary by the march of civilization, whilst in others there is hardly a possibility of any foreign fugitive seeking or finding an asylum, or of any interference whatever between a Consul and those whom he may claim as his nationals; in a third case, some British Colony not improbably finds itself powerless to repel an overwhelming tide of criminal immigration from the frontier of its Asiatic neighbours, attracted to the shelter of milder laws by a hope not only of immunity for past transgressions, but also of conditions more propitious to future enterprise. But this question lies a little beyond my proper province.
I am under the impression that the American principles are already known to the Governments of Eastern nations in general; and that if they have hitherto been asserted only in Japan, that may be merely because there has been no wider conviction of their practical utility. They are not, in fact, suited to all conditions.
HUGH FRASER.
Exmouth, July 17, 1893.
No. 9.
(Signed)
Memorandum by Sir T. Sanderson on the proposed Extradition Treaty with Japan.
THE Minutes on this question are very lengthy; but the really important points can, I think, be summed up more briefly.
The Japanese Government are endeavouring to get rid of Consular extra-territorial jurisdiction, which they consider an offence to their national dignity and inconsistent with their present state of civilization.
Their method of negotiation is to discuss an arrangement at great length, and, when they have extorted a certain number of concessions, to throw the whole over and begin afresh, withdrawing their previous offers. This has been their procedure in the Treaty revision negotiations.
Mr. Fraser seems to like the process of being thrown over, and is always ready to urge us to begin afresh on the new basis. But I cannot think the method one which should be encouraged.
In regard to this particular question, we claim the right under our Treaties to arrest in Japan criminals who have escaped from the British dominions, and to send them back for trial to the place where they are justiciable by our Courts.
The Japanese deny that right, but are ready to arrest the criminal themselves and hand him over to our officers.
This is how the matter has been dealt with on the two occasions when a fugitive from Hong Kong has been arrested in Japan and sent back for trial. Such cases are not very frequent. They occur, perhaps, once in two years.
On the other hand, if a Japanese criminal should escape to a British possession, we could not surrender him to be tried in Japan.
I have never heard that the Japanese Government cared to pursue their fugitive offenders, yet their national pride would no doubt be flattered by a reciprocal arrangement, and they would make it a stepping-stone for fresh demands in the way of Treaty revision.
Mr. Fraser obtained permission to negotiate such an arrangement in order to put the question on a regular footing.
The Japanese Government discussed the arrangement, and just at the moment when it had been settled by mutual concessions, they as usual threw it over, and proposed a regular Extradition Treaty, particularly insisting on a provision that each Power should be at liberty to hand over the subjects of the other to a third Power who might demand them in extradition.
They did not deny that this might have awkward consequences, but argued that we need not be under any apprehension, because it is "extremely unlikely" that Japan would allow the power to be abused.
Sir H. Bergne prepared a draft Treaty, in which he inserted a proviso that the Japanese Government will not surrender any British subject to any third State without the consent of Great Britain. (It appears that we cannot give a reciprocal pledge to Japan on account of our Treaties with other countries.)
Mr. Fraser says at once and frankly that it is hopeless to get the Japanese to make this engagement. But he advises us to conclude the Treaty without it.
1. Because he thinks the Japanese Government would, in practice, defer to any objections on our part to the surrender of British subjects to a third Power, though they would not give a general engagement to do so.
2. Because, even if Japan entered into extradition arrangements with China and Corea, those countries could not, under present arrangements, try British criminals in their native Courts.
And he adds:--
C
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 these cases have been already, no doubt, fully considered by Her Majesty's Government.
What this means I cannot imagine. The provision in the draft Treaty would no doubt meet the case, but Mr. Fraser proposes that we should drop the provision, and suggests no alternative.
I think, therefore, that there are strong objections to proposing this Treaty. It will encourage the Japanese in their habit of throwing us over at the close of each discussion, and beginning on a new basis.
Their main object in their last proposal is to obtain a recognition of their right to surrender British subjects to other countries without our consent, and I am convinced they will not accept the Treaty if it contains a stipulation to the contrary.
I should be inclined to leave the negotiation where it is, and, if they return to the charge, offer them the arrangement which their former Government had actually accepted.
If the next British criminal who escapes to Japan is not arrested, the blow will not be very severe.
But if we conclude a Treaty with Japan such as the Japanese Government desire, and find another "monstrous demand," as Mr. Fraser calls it, made by Russia for the surrender of British subjects, without our having the power of objecting, very serious trouble might result.
Foreign Office, August 14, 1893,
T. H. S.
I quite agree.
I doubt the expediency of making any fresh Treaty with Japan while the question of the revision of the old one is in suspense. But under no circumstances should we give Japan the right of surrendering our subjects to foreign Powers without our consent.
No serious harm will be done by leaving matters as they are for the present.
August 17, 1893.
P. C.
I agree.-R.
August 20, 1893.
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326
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Page 331
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21
barbarous practices in the treatment of criminals and accused persons which they once used in common with the Chinese. Their actual Criminal Code, which has been in force for eight years or more, is copied from European models, and contains no enactments, to the best of my belief, that are not usual in Christian countries. I do not think "Karakiri " is any longer a judicial punishment in any circumstances, though no doubt a person of condition might still be permitted to escape by that door from the effect of an ordinary capital sentence. It would be difficult, perhaps, to exact a promise that no such course should be permitted as a condition of surrender. But whatever objection can be raised on this point must be understood to be a permanent objection to the conclusion of a Treaty with Japan at all, irrespectively of the maintenance or abandonment of Consular jurisdiction there.
1 entirely share Mr. Davidson's sense of the inexpediency of creating precedents in one Oriental State which it may be inconvenient to follow in dealing with the rest; but I do not think there is much real analogy between the condition and aspirations of Japan and those of other Eastern States, or that many of these could find their account in seeking to follow her example. If they did so, it might not be absolutely impossible to content them according to their circumstances and needs. There are great differences, of course, among them. In some, definite arrangements for the surrender of criminals appear to be rendered necessary by the march of civilization, whilst in others there is hardly a possibility of any foreign fugitive seeking or finding an asylum, or of any interference whatever between a Consul and those whom he may claim as his nationals; in a third case, some British Colony not improbably finds itself powerless to repel an overwhelming tide of criminal immigration from the frontier of its Asiatic neighbours, attracted to the shelter of milder laws by a hope not only of immunity for past transgres- sions, but also of conditions more propitious to future enterprise. But this question lies a little beyond my proper province.
I am under the impression that the American principles are already known to the Governments of Eastern nations in general; and that if they have hitherto been asserted only in Japan, that may be merely because there has been no wider conviction of their practical utility. They are not, in fact, suited to all conditions.
HUGH FRASER.
Exmouth, July 17, 1893.
No. 9.
(Signed)
Memorandum by Sir T. Sanderson on the proposed Extradition Treaty with Japan.
THE Minutes on this question are very lengthy; but the really important points can, I think, be summed up more briefly.
The Japanese Government are endeavouring to get rid of Consular extra-territorial jurisdiction, which they consider an offence to their national dignity and inconsistent with their present state of civilization.
Their method of negotiation is to discuss an arrangement at great length, and, when they have extorted a certain number of concessions, to throw the whole over and begin afresh, withdrawing their previous offers. This has been their procedure in the Treaty revision negotiations.
Mr. Fraser seems to like the process of being thrown over, and is always ready to urge us to begin afresh on the new basis. But I cannot think the method one which should be encouraged.
In regard to this particular question, we claim the right under our Treaties to arrest in Japan criminals who have escaped from the British dominions, and to send them back for trial to the place where they are justiciable by our Courts.
The Japanese deny that right, but are ready to arrest the criminal themselves and hand him over to our officers.
This is how the matter has been dealt with on the two occasions when a fugitive from Hong Kong has been arrested in Japan and sent back for trial. Such cases are not very frequent. They occur, perhaps, once in two years.
On the other hand, if a Japanese criminal should escape to a British possession, we could not surrender him to be tried in Japan.
I have never heard that the Japanese Government cared to pursue their fugitive offenders, yet their national pride would no doubt be flattered by a reciprocal arrange- ment, and they would make it a stepping-stone for fresh demands in the way of Treaty revision.
Mr. Fraser obtained permission to negotiate such an arrangement in order to put the question on a regular footing.
The Japanese Government discussed the arrangement, and just at the moment when it had been settled by mutual concessions, they as usual threw it over, and proposed a regular Extradition Treaty, particularly insisting on a provision that each Power should be at liberty to hand over the subjects of the other to a third Power who might demand them in extradition.
They did not deny that this might have awkward consequences, but argued that we need not be under any apprehension, because it is "extremely unlikely" that Japan would allow the power to be abused,
Sir H. Bergne prepared a draft Treaty, in which he inserted a proviso that the Japanese Government will not surrender any British subject to any third State without the consent of Great Britain. (It appears that we cannot give a reciprocal pledge to Japan on account of our Treaties with other countries.)
Mr. Fraser says at once and frankly that it is hopeless to get the Japanese to make this engagement. But he advises us to conclude the Treaty without it.
1. Because he thinks the Japanese Government would, in practice, defer to any objections on our part to the surrender of British subjects to a third Power, though they would not give a general engagement to do so.
2. Because, even if Japan entered into extradition arrangements with China and Corea, those countries could not, under present arrangements, try British criminals in their native Courts.
And he adds :--
C
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 these cases have been already, no doubt, fully considered by Her Majesty's Government."
What this means I cannot imagine. The provision in the draft Treaty would no doubt meet the case, but Mr. Fraser proposes that we should drop the provision, and suggests no alternative.
I think, therefore, that there are strong objections to proposing this Treaty. It will encourage the Japanese in their habit of throwing us over at the close of each discussion, and beginning on a new basis.
Their main object in their last proposal is to obtain a recognition of their right to surrender British subjects to other countries without our consent, and I am convinced they will not accept the Treaty if it contains a stipulation to the contrary.
I should be inclined to leave the negotiation where it is, and, if they return to the charge, offer them the arrangement which their former Government had actually accepted.
"If the next British criminal who escapes to Japan is not arrested, the blow will not be very severe.
But if we conclude a Treaty with Japan such as the Japanese Government desire, and find another "monstrous demand," as Mr. Fraser calls it, made by Russia for the surrender of British subjects, without our having the power of objecting, very serious. trouble might result.
Foreign Office, August 14, 1893,
T. H. S.
I quite agree.
I doubt the expediency of making any fresh Treaty with Japan while the question of the revision of the old one is in suspense. But under no circumstances should we give Japan the right of surrendering our subjects to foreign Powers without our
consent.
No serious harm will be done by leaving matters as they are for the present.
August 17, 1893.
P. C.
I agree.-R.
August 20, 1893.
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326
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