The Capitulations in Japan
June 9, 1884
(From a correspondent)
When Lord Salisbury, speaking some time ago at Manchester, dwelt upon the necessity of looking well to our foreign markets and maintaining and extending our commercial relations, he might, if so disposed, have drawn a lively picture of the manner in which, in one important quarter, British trade and enterprise have long been effectually hindered by persistence in an obstructive policy.
Japan, which, until 30 years ago, was a hermit nation sealed against foreign intercourse is now not merely willing but anxious to throw open her territory freely to all comers.
While foreign rights of trade and residence are still limited to five of the chief seaports, the tendency to preserve this state of semi-isolation is wholly on the foreign side.
The educated and governing classes in Japan have for many years wished to establish perfect freedom of intercourse with Western peoples, to grant them every privilege, which they themselves enjoy when abroad, and to encourage the introduction of the foreign capital and enterprise which are undoubtedly needed for the fuller development of Japanfs great material resources.
The sole condition on which they insist is that there shall be a sensible modification of the system of extra-territoriality and Consular jurisdiction which was imposed upon them by the early treaties, and which is emphatically a makeshift suited only to a condition of partial intercourse, and to the case of a barbarous or semi-barbarous State.
It is indeed clear that no sane and civilized Government would ever willingly let its whole country be overrun by aliens subject only, as would be the case in this instance, to foreign laws and a few scattered foreign tribunals, and owing no allegiance to the territorial laws and regulations.
Japan, moreover, complains sorely of the vexatious evils and anomalies of the system as already in operation at the treaty ports.
She has long sought redress on this score at the hands of the Western Powers, not as yet with entire success.
America, however, fully admits the force of her pleas, and is disposed to grant unconditionally all that she asks for in the way of jurisdiction.
Germany is understood to have lately signified her assent to the same view.
Yet England hesitates upon this question.
Were she to yield, the rest of the Powers would certainly do the same.
But inasmuch as under the "most favoured nation" clauses joint action on the part of all the signatories to the treaties is deemed essential to any change, England, so long as she maintains her present attitude, obstructs a course of development in Japan which would be a certain and substantial gain to foreign and especially British commerce.
Nevertheless, signs are not wanting that the beginning of the end has come, and that the steadfast efforts of the Mikadofs Government will soon be rewarded with success.
The Japanese Minister in London lately spoke very hopefully to this effect; and the leading international jurists in Europe have plainly declared that the day of extra-territoriality in Japan is over.
Recent discussions in and out of Parliament have familialized the public with the unavoidable drawbacks of extra-territoriality and Consular jurisdiction, as exemplified in Egypt, Tunis, Turkey, and other countries.
These are recognized by politicians of all shades and by every authority on the subject.
Some time ago Lord Salisbury told the House of Lords that "the question of Capitulations was one of the most difficult and complicated questions of modern times;" that those famous ancient conventions had grievously injured the Turkish Empire in the past, had "paralyzed the Turkish Government in its rule,"and had rendered the levying of taxes in Constantinople almost impossible."
He argued that for the Consular Courts, which had never worked well, should be substituted, whenever practicable, a judiciary system of more modern type; and that, in the case of Powers the integrity of whose Courts could be trusted, "it would be wise to accept those Courts as a substitute for Consular jurisdiction."
In the House of Commons the system has been handled hardly less severely by Sir. C. Dilke.
No one who knows the Far East will deny that the Capitulations which formed an indispensable feature of our establishment of intercourse with the Ottoman Empire in the 16th century were with equal reason introduced into our early treaties with China and Japan. In China, indeed, their maintenance is still as necessary as ever, and is likely to remain so. But in Japanfs case the treaty Powers are now faced by the question whether the great and solid progress which she has made during the last 16 years, not only in material and moral reforms on Western lines but in gradually assimilating her laws, methods of administration, and political ideals to the highest European and American examples, do not warrant a considerable abatement of the hard-and-fast term of the treaties of 1858.
Are covenants that were made at a time when Japan's instincts were anti-foreign and anti-progressive still applicable now that she has proved her firm attachment to the principles which form the basis of Western civilization?
And is our intercourse with her to remain circumscribed by the narrow limits which were set 26 years ago; or will we consent to the only terms upon which a mixed residence of natives and aliens throughout Japanfs territory is possible?
Looking to the importance of the commercial and other interests at stake, and to the blank ignorance that exists in this country on the whole subject, it cannot but be worth while to examine some of the chief arguments which affect these considerations.
It is beyond doubt that the Japanese suffer seriously from the glaring defects of the present system.
Nothing could be more illogical, or contrary to fact than the statement sometimes made that their grievance is only a sentimental one.
Every dayfs experience of life at the treaty ports attests the very reverse.
This arises in part from the chaos and conflict which are inseparable from the system in every case.
Strictly, extra-territoriality, as defined in the treaties with Japan, provides that the cognizance of all criminal and civil cases in which foreigners are principals is vested in the Consular Court of the defendant or accused person, the sole exception being that any civil suit in which the plaintiff is a foreigner and the defendant a Japanese is heard in a native Court.
The aggravating delays and failures of justice that result from such a system where, as in each of the treaty ports of Japan, there are no fewer than 17 Consular Courts, with a corrsponding number of unequal codes of laws and methods of procedure, could scarcely be overstated.
No Consul, for example, can enforce the attendance of witnesses of other nations than his own; nor can he punish them for perjury if by the comity of other Consuls they should be led to appear.
Corresponding disabilities hold good in cases where the defendants in a suit are of more than one nationality; while should a defendant be in partnership with a Japanese the result would be an utter breakdown.
To this it may be added that many of the Consuls of the smaller Powers are half-educated traders, ignorant of law and unfit to administer justice.
To the Japanese, however, the situation has much graver evils than these.
Owing to the extreme interpretation which most of the foreign envoys have put upon the extra-territorial clauses in the treaties, the power to preserve law and order in Japan is in many respects wholly wanting, it being claimed that extra-territoriality carries with it exemption from the laws of the land save in so far as those laws happen to coincide with treaty provisions.
With one or two exceptions, the foreign envoys adopt and act upon the view.
They are "a law unto themselves."
No local law not represented in the treaties is law in their eyes unless they choose to recognize it.
Confusion is thus made worse confounded.
In the anarchy resulting from such a crazy state of affairs the treaty ports have become Augaean stables, which stink in the nostrils of the orderly Japanese.
Municipal government can find no place in these strange communities; for while all Japanese regulations are disregarded, it is not even pretended that foreigners may exercise authority of their own.
The result is an absolute deadlock, such as exists at this moment in Yokohama - a state of things intolerable alike to foreigners and to Japanese.
On one occasion, a few years ago, the Japanese quarantine regulations were deliberately set at naught by certain of the foreign envoys - an act afterwards characterized by Sir E. Reed as a "brutal disregard of the rights of humanity and of international amity, "
Indeed, it is not too much to say that, so far as the law applies under this monstrous system of immunity, a foreigner might desecrate temples, destroy shrines or even plot against the Sovereignfs life, without fear of punishment.
Another peculiarity of the system is that foreigners pay no taxes for the many public advantages which they enjoy at Japanese expense, because taxes can neither be ordained nor enforced.
The settlements, moreover, have become happy hunting-grounds for the law-breaking and miscreant classes, foreignerfs houses furnishing safe asylums for systematic breaches of the native regulations.
Under their shelter, private gambling-dens, lottery-shops, establishments for speculative dealings of various kinds, debtorsf refugee, brothels, and the vile liquor palaces - all of them forbidden by native law - enjoy a peaceful and profitable existence before the eyes of Japanese officials.
The licence that is indulged in by a noisy and not very reputable section of the foreign newspaper Press at the treaty ports forms one more in the list of evils.
A few of the English papers in the Far East, such as the scholarly Japan Mail, do credit to British journalism.
But most of them are of an inferior class, much given to scurrility, and especially to hurling venomous revilings at the Chinese and Japanese Governments and people.
In Japan, indeed, one or two offensive sheets seem to exist for the sole purpose of sowing discord and race prejudice, and persuading the Japanese that the English despise and hate them.
Newspapers of this class are just as mischievous in Japan and China as they have lately been in Egypt.
Having regard to the state of things thus described, Japan has long asked that some system may be adopted which shall remedy defects and abuses in the present, and point to the full abolition of extra-territoriality in the future.
The step which she herself proposes for this purpose, is that she shall at once be granted partial jurisdiction over foreigners, with the view to such jurisdiction being eventually, after a fixed term of probation, made complete.
This proposal, of course, carries with it in the first place the condition that all foreigners in Japan shall be made subject to the provisions of the territorial laws.
If it be assented to, such assent would be followed by the establishment of special Territorial Courts, of various degrees, for the administration of the Japanese codes, and by the appointment of foreign judges as Japanese official, with assured tenure of office, to preside, in a majority, in all cases affecting foreigners.
The graver criminal offences on the part of foreigners, as well as cases between foreigners themselves, would however be exempt from the jurisdiction of the Special Courts, and would continue to be dealt with by the Consular tribunals.
It is held by the Japanese Government that this scheme, while maintaining the inherent sovereignty of Japan, would at the same time fully safeguard the rights and interests of foreigners.
Special Territorial Courts were, in fact, recommended three years ago by Sir Travers Twiss as "the only effectual remedy" for the defects of the Consular Court system in Japan.
In the essay embodying this suggestion he expressed the highest approval of Japanfs new Penal Code and Code of Criminal Procedure, assigning to them a place "quite on a level with the most improved modern codes."
To this he added his firm anticipation that their new Civil and Commercial Code, and Code of Civil Procedure, now approaching completion, would also prove as much to be commended to foreign residents in Japan as any European or American code, and that the gradual supersession of consular jurisdiction by the special Territorial Courts could not fail to be highly favourable to the complete administration of International justice.
Very strong testimony in support of the new codes has also been given by Dr. Van Hamel, Dr. Von Stein, and other eminent juris-consults.
In the event of the above proposals being agreed to by the Treaty Powers, it is understood that the Japanese Government will respond by throwing open their territory and removing all restrictions upon foreign residence, travel, and trade.
This would finish satisfactorily the work which Western envoys and squadrons went to Japan 26 years ago to begin, and would destroy the barriers which now hinder the development of her resources and constitute a stigma upon her civilization.
The above may be taken as an outline of the principal arguments in favour of modifying extra-territoriality in Japan, and of the means by which it is proposed to do so.
On the other side is arrayed a considerable proportion of the foreign residents and foreign press at the treaty ports.
By the latter, indeed, in their anxiety to perpetuate the existing state of things the real issues have been a good deal clouded over by misrepresentation calculated to excite foreign suspicion and alarm.
If these utterances were confined to Japan they would not be worth mention; but it happens that they are sometimes accepted in all seriousness by respectable newspapers in this country, and thus lead to misconception.
It is often said, for example, that the Mikadofs Government seek an immediate total abrogation of the extra-territorial rights of aliens, and that any concessions which may be made to them will be claimed by and cannot be denied to China.
But the real wishes of the Japanese Government, as has been shown above, are of a very different kind, while as regards China it is safe to say that Chinese statesmen do not now and will not within any reasonable time seek a departure from the present system-that, in fact, they had very much rather let things be as they are.
To quote once more from Sir Travers Twiss, the conjoint treatment of China and Japan in matters of legal administration is at present out of the question.
For while the Chinese Empire is "a massive heterogeneous body," only able to advance very slowly towards a more intelligent civilization, the Empire of Japan is "an active homogeneous community, able to move forward with rapidity."
The dislike on the part of the majority of foreigners in Japan to any imitation of extra-territoriality is, if somewhat prejudiced and short-sighted, a more real objection.
But this also has been exaggerated in some quarters.
It proceeds mainly from the least educated members of society and from those who know but little of the country and its people.
The trading class in these communities mostly derive their notions of Japan and the Japanese from experience of the treaty ports, and their environs, and of the natives, chiefly of the worst type, whom the presence of foreigners has attracted thither.
Of the inner and better life of the nation they are as wholly ignorant as would be a Japanese who formed his ideas of England and the English from a residence in Ratcliffe-highway or the slums of Portsea.
These, however, are the men who most noisily and stoutly resist change.
Their professed reason is distrust of Japanese law and Japanese tribunals.
Yet, with most of them, this only covers their real reason, which is a dread of any movement that might affect vested interests.
Doing a struggling business, as it is, and already hampered by native opposition, they nevertheless hold the view that their only chance is to keep things in the present grooves.
They feel bound to oppose by every means in their power the opening of the country, which in their eyes means only the invasion of the little domain they have hitherto monopolized by capital and labour from without.
The broad interests of our British cotton, iron and other trades, of British commercial and international policy, and of the 37 millions of Japanese, have no interest for them.
It is but just, however, to say that these narrow views are in no degree shared by the best class of foreigners in Japan, or by those who have a real knowledge of the country and who have watched closely the smooth working of the native judicial machinery.
These, if not yet fully prepared to advocate that Japanfs tribunals have reached the standard laid down by Lord Salisbury as justifying complete submission, would certainly urge that her present proposals for a limited and tentative relaxation of the existing jurisdiction are essentially reasonable and praiseworthy, and that the adoption of the Japanese programme would foster real progress and the general welfare of all concerned.
Their latest spokesman, the doyen of the Consular body in Yokohama, has shown, in a masterly sketch of Japanfs legislative history, not only that the native Courts and codes are fully abreast of the demands of modern civilization, but that the Japanese judges have already adapted themselves with surprising rapidity and success to the administration of the revised laws, which are practically the outcome of the older codes as tempered by foreign contact.
There are, nevertheless, many decent and well-meaning persons in Japan who still hotly dispute these views, but whose opinions, if gauged by their public utterances, will hardly stand critical examination.
These latter, indeed, abound with shallow pleas and airy misstatements of fact which are unworthy of serious discussion, but which are useful as indicating the nature and extent of the case of Japanfs more respectable opponents.
Their authors seem to overlook the facts that half of the civil jurisdiction is already exercised by the Japanese, admittedly with marked success, and that the proposal to entrust the Special Courts to the virtual control of Western experts, is in itself a satisfactory guarantee which should remove all apprehension as to the wise exercise of the other half and of the limited amount of criminal jurisdiction which is now asked for.
And, while advocating such subterfuges as the issue of "trading passports", they must be strangely ignorant or forgetful of the very strong feeling of the whole educated class of Japanese on the question of jurisdiction, which forbids the hope that there can be any substantial departure from the position now taken up.
Their case, in fact, like that of the foreigners in Tunis, who lately protested so warmly against submission to the French tribunals, virtually resolves itself into the very common one of menfs preference for that which they know to that which they do not know, and the natural belief that the institutions of onefs own country are better than those of any other.
On the whole it is difficult to avoid the conclusion that the Japanese have much the best of the argument, and that facts bear out the recent statement by a native writer that "the present treaties are as unsuitable for Japan as is a childfs dress for a full-grown man."
It cannot, moreover, be too clearly laid down that the question is one not of Conservative policy or Liberal policy, but of common-sense and commercial extension, and, it should be added, of considerate treatment of a civilized and highly intelligent race walking with eager steps in the path of progress.
It raises no issues in any sense corresponding with those which evoked such an outburst of hostile feeling against the Ilbert Bill-Japan is a land not alone of beauty and art, but of great and solid resources, as yet but imperfectly developed.
Our trade with her is at present far from inconsiderable, but it is paltry as compared with what it might be if the country were unlocked.
The present is a time of dull trade and meagre gains.
And Japan invites us, on the lowest terms that the situation warrants - terms less favourable as towards herself than those which have been successfully claimed by many vastly inferior States - to our share of profits in her work of national development.
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