An Incident of Extraterritoriality in Japan
Tokyo, July 15th, 1892
A situation of great interest in its bearing on the question of the Capitulations has lately arisen in this country out of a course of combined action and inaction on the part of the Portuguese Government.
The extra-territorial immunities which are enjoyed by the Western Powers under their treaties with Japan provide exemption for the subjects of those Powers from Japanese jurisdiction of every kind, with the one exception that civil cases in which Japanese are defendants are heard in Japanese Courts.
But the treaties which confer these immunities enjoin at the same time - constructively, at least - that, the Powers thus granted exemption from the territorial jurisdiction shall provide efficient substitutes for the Japanese tribunals and laws.
In the British Treaty, for example it is stated, in Article V., that, "British subjects who may commit any crime against Japanese subjects, or be subjects or citizens of any other country, shall be tried and punished by the Consul or other public functioinary authorized thereto according to the laws of Great Britain."
The treaties with Portugal and other countries contain identically the same provisions.
It is clear therefore that, constructively, from the actual terms of those covenants, not to speak of the obligation imposed by plain duty and necessity, each Power is bound to provide and maintain the proper machinery for exercising jurisdiction over its nationals in Japan.
The Consular Courts established under these conditions are of many and divers kinds.
While some of the Great Powers - England, the United States, Germany, and so forth - have acted up to their pledges, and have equipped tribunals that are fully equal to the needs of the case, several of the Consuls of the smaller Powers are merchants only, with neither legal education nor legal experience, and therefore unqualified to admimnister justice.
Portugal, it is to be remarked, has been a grievous sinner in this respect.
For 22 years after the conclusion of her treaty with Japan her sole representatives were unsalaried trading Consuls, with powers so circumscribed as to correspond only with those of a committing magistrate.
Judicial control was entirely subordinate to the tribunals of the Portuguese colony of Macao, some 1,500 miles away.
Hence, when an offence was charged or a claim preferred agianst a Portuguese subject in Japan, the Consul could only hold a preliminary examination and then refer it to Macao for instructions.
At the end of 1883, as the result of protests made by Japan at the Treaty Conference of the previous year, the above unsatisfactory state of things was somewhat bettered by the appointment of a Portugeuse Consul-General to this capital, with diplomatic as well as consular powers.
But as the new official's jurisdiction was for some unexplained reason, limited to the metropolitan district, the old evil of subordination to Macao still existed at the rest of the treaty ports.
In 1886, under this peculiar system, a Portuguese at Nagasaki who had actually confessed the theft of a hundred dollars from a Japanese was allowed to go scot-free because the Portuguese resident merchant-consul avowed incompetence to issue a warrant for his arrest.
After this flagrant miscarriage of justice the link with Macao was at last cut, and in 1887 the Consul General' Court in Tokyo became the Portuguese tribunal of reference for all Japan.
With so much by way of preface, I pass to the direct subject of this letter.
At the close of last year the Portuguese Government, from motives of economy, resolved to abolish the post of Consul General in Japan without, however, informing the Foreign Office in Tokyo of their decision, which, in fact, was only made known to Viscount Enomoto, the Japanese Minister of Foreign Affairs, in January, from the lips of the Consul-General himself.
No alternative provision was made by the Lisbon Cabinet.
It was not even proposed to revert to the original clumsy system of connexion with Macao.
To Japan's immediate and earnest remonstrance, coupled with the request that the Consul General should at least be replaced by a properly-qualified Consul with full judicial power, the Portuguese Foreign Office only replied that the matter should be considered.
Months passed, nevertheless, without any sign from Lisbon; and the Consul General left Tokyo five weeks ago, not word as to the fact of the cause of his removal having been said by Portugal to Japan, nor any intimation been made that steps would be taken to reeqiup a proper judicial tribunal.
Meanwhile, Vicount Enomoto had informed the Portugeuse Government that, in view of their failure to make arrangements in due time for the proper exercise of consular jurisdiction, Japan would herself be compelled to assume jurisdiction over the Portuguese subjects-about 140 in number - throughout the empire after the 30th of June.
No answer having been received to this notification, it was repeated, through the Japanese representative in Lisbon, on the eve of the date already named; but the Portuguese Foreign Office merely replied that the matter would be attended to in due course.
Japan waited another fortnight and then took the decisive step of which Portugal had been fully warned.
An Imperial Ordinance was issued yesterday, proclaiming that "the stipulations concerning consular jurisdiction which are contained in the treaty concluded with the Portuguese Government on the 3rd of August, 1860, shall henceforth cease to be in force."
Portugal's reasons for thus failing to provide for the due judicial control of her subjects in Japan have yet to be heard.
Until a more satisfactory explanation is forthcoming, it must be assumed that her having neglected to avert the present mischance, in spite of having had ample time to do so, can only be the result of indifference or carelessness, or possibly of her having regarded the Japanese ultimatum as a mere threat.
Japan's view of the case is, on the other hand, clear enough.
The Emperor's advisers evidently hold that Portugal, by her failure, after fair warning, to maintain the discharge of the international obligations which she deliberately assumed under the treaty of 1860, has forfeited her title to the immunities conveyed by that treaty, and has practically abdicated her powers of consular jurisdiction.
They doubtless hold, too, that by the provisions of the new Constitution the Government of Japan was bound to immediately terminate a state of things which permitted even as few as 140 people, of whatever nationality, to remain within the boundaries of the empire without any properly constituted means for their judicial control.
Yesterday's ordinance has done that.
By it every Portugeuse subject in Japan is placed henceforward under Japanese law, and made answerable to Japanese tribunals.
Moreover, owing to the extraordinary inaction of the Lisbon Government, this condition of things has come to pass without the concession by Japan of any quid pro quo.
Portugal loses everything and gains nothing.
The restrictions upon trade, travel and residence, which would ordinarily be removed in consideration of a foreign Power's acceptance of Japanese jurisdiction, are still binding on the Portuguese in Japan, notwithstanding the extinction of their consular tribunals.
The Portugeuse residents are, in fact, in the position of subjects of a non-treaty Power.
Nor is there any prospect that the Japanese Government will resurrender the jurisdiction now assumed.
Yesterday's step is plainly final and irrevocable, if for no other reasons than that re-surrender would be tantamount to the making of a fresh treaty containing extra-territorial provisions, and that no Japanese Government could nowadays venture on such a course.
It would be a strange ending of a strange case if Portugal should adopt the only practicable means of escape from her present dilemma, by proposing to make a treaty of equality with Japan similar to that lately entered into by Mexico.
With Japan's assent, which certainly would be forthcoming, equilibrium would be more than restored to Portugal.
For, while her subjects would then be admitted to the privileges of unrestricted trade, residence, and travel, as a set-off for the forfeiture of consular jurisdiction, they would at the same time have a clear start of the subjects of the other Powers, from whom those privileges must continue to be withheld as long as the present treaties remain in force.
The Times; 1892-Aug.26th
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