A New Phase of Japanese Treaty Revision
Tokyo Correpondent of The Times
Tokio, August 12th, 1887
Within the last three weeks the tangled and long-discussed problem of treaty revision has entered on a new and important phase.
The conference assembled 15 months ago to deliberate upon the question has been prorogued for a term, and the prorogation has taken place at the instance of the Japanese.
To the general public this turn of events will, doubtless, be something of a surprise.
But it cannot be said to have been wholly unforeseen by those who are familiar with the history and aspects of the case, and with the enormous difficulties that stood in the way of its full and satisfactory settlement.
In order to marshal clearly the facts and stages which have led up to the present situation, and by which alone it can be made intelligible, it is necessary to go back to the proceedings of the first conference, in the spring of 1882, and to tell once more the outline of the scheme of revision which Count Inouye then laid before the delegates on behalf of the Japanese.
In that scheme, the main features of which should be carefully borne in mind, because of their close and important bearing on all that has since followed, it was proposed to throw open the whole of Japan's territory to foreign travel, residence, and trade, simultaneously with her recovery of a considerable measure of judicial autonomy.
The conditions on which this recovery was to be effected were the crucial points of the project.
All Japanese statesmen, warned by long experience of the flagrant shortcomings and grotesque anomalies of consular jurisdiction, were firmly opposed to any extension of that system beyond the bounds of the foreign settlements at the treaty ports, they were at the same time under no delusion whatever as to the terms upon which alone foreign Powers might be expected to surrender the privileges of extra-territoriality.
Laws consistent with Western principles, and a judiciary competent to administer those laws, would certainly and rightly be insisted on as conditions precedent to foreign acceptance of Japanese jurisdiction.
As regards the first of these, Japan's criminal code and code of criminal procedure were complete, and, by the general consent of experts, fully up to the required standard.
But the codification of the civil laws, though in progress, was not complete.
Hence the Japanese offered to pledge themselves that in these also similar principles and a corresponding standard should be observed.
As regards the second point, they were prepared to induce confidence in their judiciary by adding to it a number of foreign Judges, who should preside in a majority in all cases in which foreigners might be concerned.
The Mixed Tribunals thus proposed must not, however, be in any way identified in character with the Mixed Courts of Egypt, inasmuch as the foreign Judges were to be appointed by the Japanese Government, and were to be law officers of the Japanese alone during their term of service.
It will be seen from these outlines that the scheme formulated by Count Inouye in April, 1882, was dictated by the desire, on the one hand, of removing all barriers from the path of foreign enterprise and Japanese commercial development, and, on the other, of substituting one uniform and well-organized system of jurisdiction for the complex and defective machinery of 16 Consular Courts.
But it is now a matter of history that the delegates then assented, under the leadershop of the late British Minister, declined to accept Japan's proposals.
Tariff revision was at the same time relegated to the future.
Much more modest than the foregoing was the programme with which ostensibly the foreign representatives entered on the second act of the treaty drama in the spring of 1884.
Revision of the tariff was now set down as their chief business.
This might be expected to be fairly easy going.
On the slippery ground of extra-territoriality the task of getting 17 delegates into line was no doubt, formidable enough.
But it had never been disputed, and it was now officially admitted on all hands, that there was and could be no just reason for maintaining against an independent country a system which denied it any voice in the assessment of its own customs dues.
Even in this matter, however, extraordinary difficulties soon arose.
I told the story of them in The Times in March of last year, and I again referred to them a twelvemonth ago.
The foreign Governments, while declaring their willingness to revise the tariff, plainly intimated their reluctance to do so unless paid a price for their complaisance.
They claimed, among other matters of less importance, that certain new "accessible ports" should be opened to foreign trade.
To this Count Inouye raised no objection, coupling his assent, however, with the proviso, which had become an article of faith with the Japanese, that for every fraction of territory which might be thus unlocked they should be granted some corresponding modification of consular jurisdiction.
In attempting to devise a way of meeting this stipulation, the conference soon found itself on the threshold of an impossible task.
Not impossible in the sense that its members were unable to approach the subject with sufficient liberality; on the contrary, more than one of the Great Powers were thoroughly well disposed, while England had declared, through her representative, Sir Francis Plunkett, not only that she had no wish to perpetuate consular jurisdiction, but that she was even ready to favour prudent and reasonable proposals for its gradual abolition; but impossible because the task was the task of dividing laws and methods of procedure which were not practically divisible, and of setting limits that could not be observed without the certain risk of judicial failures and injustice and endless friction.
Months of toil and contention were spent in the swamps of this desperate problem, with no other result than that of reaching at last an apparently hopeless deadlock.
Matters drifted on thus until 13 or 14 months ago.
Then began that which may be called the third act of the diplomatic play.
A joint Anglo-German note let in light once more upon the scene.
I described the terms of that note in detail in The Times of the 28th of last August.
It proposed, in effect, a return to the Japanese scheme of 1882.
After more than three years of fruitless diplomacy the conclusion had at length become inevitable that no narrower measure offered any real hope of success.
Its main features, as we have seen, were clear and simple.
They comprised three concessions and two conditions.
Japan was to concede the free opening of her whole terrritory; the Powers were to concede revision of the tariff and abolition of extra-territorial jurisdiction.
As conditions of this arrangement, Japan's laws were to be completed in conformity with Western standards, and she was to establish Courts adequate to the competent administration of those laws.
The Anglo-German note having been generally accepted as the basis of negotiation, it now devolved upon the delegates to elaborate its provisions.
Among the chief points of consideration, the number of Courts in which foreign Judges should preside, and the number of such Judges for each of those Courts, proved topics of much debate.
The decision that is understood to have been come to is rather startling.
But it gives a fair idea of the dimensions to which the whole problem has been distended.
There are now some 3,000 foreign residents in Japan.
Possibly the opening of the country might double that number in the course of 10 to 12 years.
For these was to be provided an array of foreign Judges about as numerous as the whole English Bench.
Peculiar conditions were attached to the tenure of office by these Judges.
The Japanese Government was to engage each Judge for a fixed term of years, but was to yield up all power of dismissing him during that period in favour of a disciplinary Court composed of a proportion of his brother Judges.
Neither against these conditions, however, nor against the employment of several foreign magistrates in the capacity of procurators did the Japanese hold out resolutely at the time.
Another knotty point was the language to be used in the Courts.
Besides Japanese, some one foreign language at least had to be sanctioned.
That English had the first claim admitted of no doubt, and the Japanese declared in its favour.
But the representatives of other natioinalities were disposed, not unnaturally, to claim some consideration for their own languages.
The outcome of this conflict of interests was that, though English and Japanese were declared to be the standard official languages, Western tongues generally were to be admissible in the proceedings, correspondence, and other routine of the tribunals, for which purposes a staff of trained interpreters and translators was to be provided.
Yet, in the end, Japan assented to all this, as well as to a host of provisions and articles on other points of the programme, the whole forming a tangled network of stipulations the like of which assuredly never before entered into any international compact.
The last important question - namely, that of the laws to be administered by these unwieldy tribunals, presented another dilemma.
As has been shown above, various civil codes remain to be promulgated.
Their compilation is in progress, under the guidance of foreign experts.
But some time must elapse before they are ready to be put into operation.
What guarantee could Japan give to the Conference in respect of these codes?
And what measure of trust, if any, could the foreign delegates extend to a Government seeking that which had never before been conceded - the admittance of an Oriental State to equality of intercourse withn Western Powers?
The problem bristled with difficulties.
While there were no precedents to go by, the course taken on this occasion might establish an important precedent for the future.
Could Japan be thoroughly trusted now?
To those who have watched her consistent progress during the last 20 years the notion that she should retrograde seems extravagant.
Yet without retrogression she could never reconcile herself to laws at variance with Western principles.
The civil codes, moreover, are known to be far advanaced towards completion, to be from the outset practically the work of skilled foreign jurists and lawyers, and to aim at equality on all points with the published criminal codes.
It cannot be supposed that these considerations were unheeded in the conference chamber.
Caution, however, dictated that they were insufficient.
As if in anticipation of this difficulty, the original Anglo-German note had met it by simply providing that the new codes should be in accordance with the fundamental principles of Western jurisprudence, and that they should be "remitted" to the foreign Governments eight months before the time at which the treaty was to come into effect.
Practically, this secured an ample guarantee, since it would enable foreign Powers to satisfy themselves as to the nature of the codes, and, if necessary, to declare them, or any parts of them, unsuited to the purposes of the treaty, the operation of which would thus be deferred.
In point of fact, the latter contingency was little likely to arise, the stipulation as to the character of the codes being wide enough to preclude any serious or narrow criticism on the part of foreign Governments.
For a while both sides seemed content with the stipulation as it stood.
Perhaps they were willing enough to let sleeping dogs lie.
At any rate, it was not until the spring of this year, when the draft of the Jurisdiction Convention was virtually complete, that discussion arose as to the exact scope of this particular guarantee.
The delegates spared no pains to wrap the clause in diplomatic euphemisms designed to veil its repellent features.
They claimed nothing more than that the word "remitted" of the Anglo-German note should be altered to "communicated" in the convention; and they agreed to a special protocol repudiating any design of intereference with Japan's sovereign right of legisation vis-a-vis her own subjects.
The Japanese negotiators then gave way.
It is a fair illustration of the delicacies and perplexities of this terrible problem that it should have afforded opportunity for any hair-splitting about two words of such closely cognate meanings.
As for the real purport of the stipulation, whichever word was used, there is no escaping from the conclusion that it practically implied submission of Japan's codes to the approval of the Powers before the treaties abolishing extra-territorial jurisdiction would be allowed to go into operation.
There was a further provision that during a period of 15 years after the opening of the country every modification of the laws was to be similarly communicated to the Powers eight months prior to its coming into effect.
In short, foreigners resident in Japan were not to be submitted to her territorial laws, or to any subsequent modifications thereof, until such laws and modifications had received the endorsement of the 16 Treaty Powers.
The dilemma, however, was temporarily surmounted in the manner described above, and thus it became possible to send forward the draft convention in April last for the approval of the various Governments.
But there can be no doubt that the instrument had now assumed a form very unlikely to be acceptable to the nation at large.
The Japanese, it is to be remembered, had two objects in view - namely, to set free their commerce from semi-civilized restrictions and to recover judicial autonomy.
The conditions just described were scarcely in harmony with the latter object.
Nevertheless, they might possibly have been acquiesced in, however grudgingly, if their distastefulness had not been emphasized by other articles of the draft agreement.
The use of several foreign languages in the Courts; the presence there of foreign Judges, who, though nominated by the Japanese Government, would be absolutely beyond its control: the detailed stipulations with regard to the organization and jurisdiction of the Courts-all these things formed a context, read by the light of which the provisions for communicating every law and every modification of law to the treaty Powers assumed an intolerable complexion.
It was argued that this concession in respect of modifications of the laws might at any moment recreate the old anomaly of the exception of foreign residents from the laws of the land.
And in some quarters an alarm was raised that to accept the convention as drafted would be to set up in Japan a state of things in matters of jurisdiction hardly distinguishable from that already existing in Egypt.
At the same time it became evident that the reputation of the Government would suffer seriously in the eyes of the country unless the convention were abandoned.
Under these circumstances, when the draft came to be finally considered by the Cabinet they resolved on deferring further progress until a simpler course, and one more agreeable to the nation's sense of dignity, could be marked out.
The Minister of Foreign Affairs notified to the members of the Conference that his Government desired to postpone proceedings until they should be prepared to lay on the table copies of all the codes referred to in the convention.
The codes themselves would thus take the place of distasteful guarantees as well as of numerous details with which the draft convention was overloaded; and it would be possible to reduce the whole arrangement to moderate dimensions and to a firm, intelligible basis.
In this wise, then, the curtain has fallen on the third act of the drama.
The direct result will be to postpone the conclusion of the new jurisdiction Convention, the revised Commercial Treaty, also lately completed, being included in the delay.
It does not follow, however, that the time of their going into operation will be much deferred.
One year after signature is understood to have been fixed as the limiting period of exchange of ratifications of the now defunct covenant.
Two years after ratification it was to come into effect, and an authorized English version of the new codes was to be communicated to the several Powers not later than 16 months after ratification.
Seeing that the Japanese Government were prepared to abide by these dates, and that they have now the added incentive of anxiety to bring to a succesful issue negotiations the temporary suspension of which is a bitter disappointment to their greatest statesmen, it seems fair to expect that the conference may be enabled to resume its sittings in the course of 1889, when, if no untoward changes take place meantime, and if the subject be re-approached in a rational spirit, it should take but a little while to reach a final and satisfactory settlement.
Thus, as regards time, the chief difference between the old and the new arrangements is that the conclusion of the treaty must now be preceded by measures and preparations which before were meant to be carried out in the interval between its conclusion and its coming into effect.
The whole task remains practically the same, though its phases are distributed in a changed order.
It will have been seen from the above that the interruption of the negotiations, at the instance of the Japanese, did not take place until about three months after the draft Jurisdiction Convention had been forwarded for the consideration of foreign Governments.
This is not a happy incident of the story.
The Japanese would have better consulted their reputation as negotiators if they had formulated and announced their change of programme sooner.
But men on the spot, who know the depths of this diplomatic riddle, and, who also know what it has cost Japan to bring the 16 Treaty Powers up to the point of a unanimous thoguh only partly practicable agreement, are able to make considerable allowances for the conduct of the Government, and to undedstand and sympathize with their strong reluctance to terminate abruptly negotiations which were the outcome of so many years of weary effort and diplomatic manouvering.
Thoughtful men have always doubted whether revision of the treaties under existing circumstances was within the range of practical statesmanship, and this latest turn of affairs would seem to justify their misgivings.
Certainly no such feat was ever before attempted.
Yet the Japanese had arrived within sight of its accomplishment, and we cannot wonder that they shrunk from forsaking their task so long as any hope remained.
It is conceivable also that the Japanese negotiators, weighed down by an acute sense of the immense difficulties of the problem, may have been able to reconcile themselves to sacrifices altogether unpalatable to the roughly-judging and inexperienced bulk of the people.
We know, at all events, that the Government's somewhat tardy resolve was not taken until they felt the national pulse beating strongly and unequivocably against the contemplated concession.
Those who sympahize with Japan's resolute and bravely-sustained efforts to gain admission to the comity of Western nations will be disposed to ask whether some more trustful course was not open to the foreign representatives; and whether no practical weight could be given to Japan's written undertaking that her civil codes should be framed in spirit and letter after the highest Western models, and that the second volume of her Statute-book should be comparable in all respects with the first.
They will ask whether there was the slightest reason to apprehend the contrary; whether nothing could be said for the unwritten guarantee afforded by Japan's praiseworthy career during the last 20 years; for the undeviating spirit that has animated and directed her remarkable progress; for her scrupulous discharge of all her engagements; for the obvious improbability that reaction can invade a country in which the educated classes are walking along the path of improvement with steps more eager even than those of their rulers; or for the fact that Japan is fairly on her merits before the eyes of the whole Western world, a patient suppliant for free admission to their fraternity.
They will inquire, finally, whether, even if these considerations went for naught, it would not have been always open to foreign Governments to correct any possible faltering or non-fulfilment of pledges on Japan's part by the ordinary appliances of diplomatic machinery.
But, reasonable as pleas of this class may appear, the general verdict wll doubtless be that they are of a more or less sentimental kind, and can hardly be said to fall within the field of practical treaty-making.
That, at all events, is the conclusion to which the foreign delegates were evidently led by a strong sense of duty and responsibility.
Turning, lastly, to the brighter side of the picture, we see that something has, after all, been achieved by these negotiations.
The Powers of the West have publicly agreed that Japan is within three years of the period when her title to admission into their midst as an equal may be practically recognized.
Japan has avowed before the world her readiness to unlock her whole domain, on the condition, no less openly assented to by the Treaty Powers, that extra-territoriality shall be thereupon abolished.
Finally, it has been shown that the solution of the hideous problem of treaty revision may be brought within the arena of things that are possible, and even within a mesuarable distance.
The ways of treaty revision are not ways of pleasantness, nor are its paths the paths of peace.
But at any rate Japan now knows what remains to be done before she can escape from her bondage, and she may be expected to set about doing it with increased verve and determination.
In these results may surely be seen some grounds for satisfaction, as well as features that cannot but be welcome to the ambitious and patriotic Japanese.
It is to be regretted that the skilful labours of the foreign delagates did not meet with completer success.
To none of these can the result be more disappointing than to our own Minister, Sir Frances Plunkett, who is known to have been conspicuous throughout for the display of a liberal and helpful spirit.
And every one will sympathize with Japan's brilliant and indefatigable Foreign Minister, Count Inouye, whose victory has been deferred, when so nearly within his grasp, and whose unwearying devotion of mind and energy to this most stubborn problem entitles him to the gratitude of every Japanese.
But, if the present delay should lead, as there is reason to hope it will, to the ulitmate recasting of the Jurisdiction Convention in a better and worthier shape, the event may prove, after all, to be one for congratulation rather than regret.
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