Sir,
No. 3.
Home Office to Foreign Office.--(Received April 24.)
Whitehall, April 23, 1896.
IN reply to your letter of the 20th January last, forwarding a suggestion from Her Majesty's Minister at Tokio that formal negotiations should be reopened with the Japanese Government for the conclusion of an Extradition Treaty between Great Britain and Japan, I am directed by the Secretary of State to say, for the information of the Marquess of Salisbury, that the question whether it is expedient to reopen the negotiations on this matter, appears to depend chiefly upon political considerations, and must be one for the Foreign Office to decide. Sir Matthew Ridley has no objection in principle to offer to the conclusion of such a Treaty, but he assumes that in no case would it come into force until British Consular jurisdiction in Japan has ceased.
He has referred the Foreign Office letter and papers to the Chief Magistrate for his opinion, and has received a letter in reply, of which copy is inclosed for Lord Salisbury's information.
I am, &c.
(Signed)
KENELM E. DIGBY.
Sir,
No. 4.
Foreign Office to Home Office.
Foreign Office, May 2, 1896.
I LAID before the Marquess of Salisbury your letter of the 23rd ultimo, in which you inclose a copy of a Report by the Chief Magistrate on the proposed Extradition Treaty between Great Britain and Japan. You state that Secretary Sir Matthew White Ridley has no objection in principle to the conclusion of such a Treaty, but that he assumes that in no case would it come into force until British Consular jurisdiction in Japan has ceased.
I am directed by his Lordship to point out that British jurisdiction in Japan will not, under any circumstances, come to an end before 1899; and that if the operation of the Treaty is to be delayed until then it would be premature at present to commence negotiations. Lord Salisbury, however, contemplated that the new Treaty would come into force in the usual manner, ten days after its publication; and Articles III and IV, to which the Chief Magistrate takes exception, were expressly framed to meet the difficulty of concluding a Treaty with Japan while Her Majesty still exercises extra-territorial jurisdiction in that country.
I am, &c.
(Signed) FRANCIS BERTIE.
Sir,
Inclosure in No. 3,
Sir J. Bridge to Home Office.
Police Court, Bow Street, April 14, 1896.
WITH reference to the questions which have arisen as to the proposal for the reopening of negotiations for an Extradition Treaty with Japan, I agree that this is a matter entirely for the Foreign Office.
With regard to the legal difficulties, I beg to observe as to paragraph 1, Article IV, of the draft Treaty, that no similar provision to this can be found in any English Treaty so far as I am aware. There have been such provisions in Treaties between foreign countries, but I do not think they work well. The matter is discussed in "Moore on Extradition" in paragraphs 142 to 147. The effect of such a provision must be that difficult questions as to the nationality of the persons accused will constantly arise, and will occasion in all cases delay, and in many cases miscarriage of justice; and moreover every country has an inherent right to protect its own subjects from injustice in a foreign country. The words also of this 1st section, I think, are ambiguous, as the words "without the consent of such third State" may mean either that that State gives its assent or does not object. If the giving its consent is to be done by some document signed by a particular person this ought to be expressed.
As to the second paragraph of Article IV, I think that this is a provision which cannot, under our Extradition Acts, be inserted in any Treaty made by us, as our Extradition Law provides only for the delivery of fugitive offenders from one of the High Contracting Parties to the other. If it is necessary to make such an engagement it should be done by a Protocol signed at the same time as the Treaty. It would not, I think, be within my province to express an opinion as to the desirability of such provision being made, but I am aware of no case in which mischief has arisen through the absence of such a clause in our Treaties, and I would observe that it is admitted that the British Government could not enter into a reciprocal engagement not to surrender a Japanese subject to any third State without the consent of Japan, and it seems to be contrary to principle to ask a country to contract to do that which we cannot enter into a corresponding contract to do ourselves.
With reference to the first clause of Article III it is not desirable to make the non-surrender of nationals absolute, the more recent Treaties which we have entered into have made it optional, and a good form is to be found in Article III of the Treaty with the Argentine Republic 1894 in the following words: "Either Government reserves the right to refuse or grant the surrender of its own subjects or citizens to the other Government."
Sir,
No. 5.
Home Office to Foreign Office.-(Received October 23.)
Whitehall, October 22, 1896.
WITH reference to the letter from this Department of the 23rd April last respecting the proposed reopening of negotiations for an Extradition Treaty with Japan, I am directed by the Secretary of State to transmit to you, for the information of the Marquess of Salisbury, the accompanying copy of a further letter from the Chief Magistrate on the subject, and to say that Sir Matthew Ridley fully concurs in the views expressed therein.
I am, &c.
(Signed)
KENELM E. DIGBY,
Inclosure in No. 5,
Sir J. Bridge to Home Office.
Police Court, Bow Street, August 10, 1896.
WITH reference to the letter from the Foreign Office which has been referred to me upon the subject of the proposed Extradition Treaty between Great Britain and Japan, I am of opinion that the objection to Article III is not one which should stand in the way of a Treaty being made with Japan, as it would be better to have a Treaty containing that Article than no Treaty at all.
The failure of Justice which may be caused by such an Article is shown by the case of R. v. Muller, which is now before Mr. Lushington, and is being considered by the Home Office.
As regards Article IV, my objections to it remain as before, for the reasons given in my letter of the 14th April last, and observe that the Article would be strongly objected to by the Japanese themselves.
I am, &c.
(Signed) JOHN BRIDGE.
I am, &c.
(Signed)
JOHN BRIDGE.
[544]
329
Sir,
No. 3.
Home Office to Foreign Office.--(Received April 24.)
Whitehall, April 23, 1896. IN reply to your letter of the 20th January last, forwarding a suggestion from Her Majesty's Minister at Tokio that formal negotiations should be reopened with the Japanese Government for the conclusion of an Extradition Treaty between Great Britain and Japan, I am directed by the Secretary of State to say, for the information of the Marquess of Salisbury, that the question whether it is expedient to reopen the negotiations on this matter, appears to depend chiefly upon political considerations, and must be one for the Foreign Office to decide. Sir Matthew Ridley has no objection in principle to offer to the conclusion of such a Treaty, but he assumes that in no case would it come into force until British Consular jurisdiction in Japan has ceased.
He has referred the Foreign Office letter and papers to the Chief Magistrate for his opinion, and has received a letter in reply, of which copy is inclosed for Lord Salisbury's information.
I am, &c.
(Signed)
KENELM E. DIGBY.
Sir,
No. 4.
Foreign Office to Home Office.
Foreign Office, May 2, 1896. I LAID before the Marquess of Salisbury your letter of the 23rd ultimo, in which you inclose a copy of a Report by the Chief Magistrate on the proposed Extradition Treaty between Great Britain and Japan. You state that Secretary Sir Matthew White Ridley has no objection in principle to the conclusion of such a Treaty, but that he assumes that in no case would it come into force until British Consular jurisdiction in Japan has ceased.
I am directed by his Lordship to point out that British jurisdiction in Japan will not, under any circumstances, come to an end before 1899; and that if the operation of the Treaty is to be delayed until then it would be premature at present to commence negotiations. Lord Salisbury, however, contemplated that the new Treaty would come into force in the usual manner, ten days after its publication; and Articles III and IV, to which the Chief Magistrate takes exception, were expressly framed to meet the difficulty of concluding a Treaty with Japan while Her Majesty still exercises extra- territorial jurisdiction in that country.
I am, &c.
(Signed) FRANCIS BERTIE.
Sir,
Inclosure in No. 3,
Sir J. Bridge to Home Office.
Police Court, Bow Street, April 14, 1896. WITH reference to the questions which have arisen as to the proposal for the reopening of negotiations for an Extradition Treaty with Japan, I agree that this is a matter entirely for the Foreign Office.
With regard to the legal difficulties, I beg to observe as to paragraph 1, Article IV, of the draft Treaty, that no similar provision to this can be found in any English Treaty so far as I am aware. There have been such provisions in Treaties between foreign countries, but I do not think they work well. The matter is discussed in Moore on Extradition" in paragraphs 142 to 147. The effect of such a provision must be that difficult questions as to the nationality of the persons accused will constantly arise, and will occasion in all cases delay, and in many cases miscarriage of justice; and moreover every country has an inherent right to protect its own subjects from injustice in a foreign country. The words also of this 1st section, I think, are ambiguous, as the words "without the consent of such third State" may mean either that that State gives its assent or does not object. If the giving its consent is to be done by some document signed by a particular person this ought to be expressed.
As to the second paragraph of Article IV, I think that this is a provision which cannot, under our Extradition Acts, be inserted in any Treaty made by us, as our Extradition Law provides only for the delivery of fugitive offenders from one of the High Contracting Parties to the other. If it is necessary to make such an engage- ment it should be done by a Protocol signed at the same time as the Treaty. It would not, I think, be within my province to express an opinion as to the desirability of such provision being made, but I am aware of no case in which mischief has arisen through the absence of such a clause in our Treaties, and I would observe that it is admitted that the British Government could not enter into a reciprocal engagement not to surrender a Japanese subject to any third State without the consent of Japan, and it seems to be contrary to principle to ask a country to contract to do that which we cannot enter into a corresponding contract to do ourselves.
With reference to the first clause of Article III it is not desirable to make the non-surrender of nationals absolute, the more recent Treaties which we have entered into have made it optional, and a good form is to be found in Article III of the Treaty with the Argentine Republic 1894 in the following words: "Either Govern- ment reserves the right to refuse or grant the surrender of its own subjects or citizens to the other Government."
Sir,
No. 5.
Home Office to Foreign Office.-(Received October 23.)
Whitehall, October 22, 1896. WITH reference to the letter from this Department of the 23rd April last respecting the proposed reopening of negotiations for an Extradition Treaty with Japan, I am directed by the Secretary of State to transmit to you, for the information of the Marquess of Salisbury, the accompanying copy of a further letter from the Chief Magistrate on the subject, and to say that Sir Matthew Ridley fully concurs in the views expressed therein.
I am, &c.
Sir,
(Signed)
Inclosure in No. 5,
Sir J. Bridge to Home Office.
KENELM E. DIGBY,
Police Court, Bow Street, August 10, 1896. WITH reference to the letter from the Foreign Office which has been referred to me upon the subject of the proposed Extradition Treaty between Great Britain and Japan, I am of opinion that the objection to Article III is not one which should stand in the of a Treaty being made with Japan, as it would be better to have a Treaty containing that Article than no Treaty at all.
way
The failure of Justice which may be caused by such an Article is shown by the case of R. v. Muller, which is now before Mr. Lushington, and is being considered by the Home Office.
As regards Article IV, my objections to it remain as before, for the reasons given in my letter of the 14th April last, and observe that the Article would be strongly objected to by the Japanese themselves.
am, &c. (Signed) JOHN BRIDGE.
I am, &c.
(Signed)
JOHN BRIDGE.
[544]
329
No comments yet.
Private notes are available after approval.