The Treaty Problem in Japan
Tokio, January 22nd 1886
Seven months have passed since I communicated to The Times some particulars of England's attitude in the deadlock which had resulted from attempts to solve the vexed problem of Japan's treaty relations with sixteen foreign Powers leagued together in voluntary bondage to the favoured-nation clause.
In that interval no progress has been made towards a satisfactory settlement.
It must, indeed, be owned that the more the problem is considered, in the form to which it has now been reduced, the fainter grows the hope of escape from the existing dilemma by any process of diplomatic effort.
If the question has all along been a knotty one, recent negotiations have only wrought it into a stiffer tangle than ever.
Meanwhile, England's position in it grows daily more thankless and unenviable; and the opinion is steadily gaining ground that, until Great Britain sets the example of breaking away from a combination which has been hardly less detrimental to her own interests and repute in the country than to Japan's ambition and progress, each new endeavour to dissolve the difficulty must end, as so many have already ended, by being cast into crucible of failure.
Japan, in seeking a revision of the treaties, has always had a two-fold object.
She wishes, first, in order that she may take her stand side by side with her treaty friends of the West, to be freed from the more galling terms of covenants which, in their present form, class her with semi-barbarous States, and brand her with the stigma of ostracism and distrust.
If this were conceded, she would be in a position to at once abolish, as she has long wanted to do, all that restrictions upon trade, residence, and travel that were imposed at the time when foreign intercourse was still condemned by tradition, and by bitter memories of the Jesuitical intrigues, religious disturbances, and commercial feuds which so disfigured its early days.
In the second place, she aims frankly at encouraging the fullest possible introduction of foreign enterprise and capital, for the sake of the stimulus which would thus be given to her own mateiral progress.
With these ends in view, she proposed, three years ago, a broad and statesmanlike measure.
The whole country was to be thrown open, even as other countries.
There were to be no more "treaty settlements," no more distinctions of open and closed ports, no more vexatious barriers between foreigners and Japanese.
Everybody in Japan, whether alien or native, was to enjoy the same privilege, obey the same laws, and be judiciable by the same tribunals.
For the seventeen conflicting jurisdictions which now exist, with their imperfectly equipped Courts, presided over in too many cases by wholly untrained officials, there were to be substituted Japanese Courts, administering Codes the criminal part of which had already received the approval of eminent Western jurists, while the civil part was in course of preparation on the best European models.
For the further protection of foreigners, it was provided that they should always find on the Japanese bench a majority of expert foreign judges.
Unfortunately for the larger interests involved, and for the history of international dealings, the foreign representatives declined to accept this scheme.
They allowed themselves to be unduly swayed by the petty prejudices and vested interests of their countrymen at the treaty ports.
These, under the present system, enjoy a virtual monopoly of Japan's foreign trade.
Some of them are on this account hotly opposed to any change which threatens that monopoly; while a larger and more moderate class are at least loth to give up the protection of their own tribunals, the evils of which they know, for that of the proposed Japanese tribunals, the evils of which, being an unknown quantity, they are at some pains to exaggerate.
Hence it came to be laid down, as an essential feature of any scheme of revision, that the treaty port should be left as they are - places where strangers may live apart from the people of the country, and preserve that imperium in imperio which so offends and humiliates the Japanese.
The latter, on the other hand, have never faltered in rejecting all proposals to extend the system of Consular jurisdiction to the whole Empire, contending that, even if better grounds for this refusal were wanting, it would be sufficient to point out to the wretched chaos and misrule that have always prevailed in the treaty ports, where, if anywhere, the system ought to work well, but where, in spite of there being so many laws, it may almost be said there is no law.
The question has thus been narrowed to one of devising a partial increase of tradal facilities for foreigners along with a corresponding increase of jurisdiction for the Japanese.
So difficult is this, and so desperate has the whole situation become, that the only expedient on which, after years of discussion, the foreign Representatives are understood to be at all likely to agree is almost grotesque in its crude impracticability.
In short, the abortive outcome of all this diplomacy and delay is, in its main feature, simply a finding that the Japanese may be asked to open a few more ports, in exchange for which, foreigners living at those ports shall be made subject in a limited degree to Japanese jurisdiction.
Seeing that the Japanese want to open the whole country, and that, until this is done, the ports already open more than suffice for the needs of the business within reach of foreigners - who, besides, now enjoy within their limits entire or partial immunity from the laws of the land - the first condition of this project sounds almost farcical.
The second launches it into a sea of difficulties.
Any one with a taste for these matters may think out for himself the impediments and pother which would infallibly grow up around all efforts to establish and work so irrational a scheme.
It must be sufficient here to indicate two or three of them.
The first puzzle would be to fix the limit of the jurisdiction; the next and harder puzzle, the procedure under that limit.
Every case at all near the border line would have to begin by being heard before a Japanese Court; and instances would often occur of such cases being passed on to the foreign Courts, which Courts, again, might either acquit the accused or award sentences that would have been within the competence of the Japanese Courts.
In short, offenders would often have to undergo two trials, with the satisfaction of learning in some such cases that one would have suffficed; while there would be constant scope for irritating and mocking displays, well calculated to bring the whole judicial fabric into contempt.
Further, special provision would have to be made for foreign assistance in carrying out penalties inflicted by Japanese Courts; and, in any case tried before a foreign tribunal, the Japanese prosecuting, an appeal would involve its being carried to some Court in Europe or America.
Another difficulty which besets this project is that of defining the extent of the obligations to be laid on foreigners to respect Japanese laws.
By an extraordinary interpretation of the immunities granted under the treaties, it is claimed by every Power except the United States that Japanese laws, as such, are in no way binding on their nationals in Japan.
Of the fifteen Powers which hold that view, one only-Great Britain-has done anything to remedy the anomaly involved in it; and the situation, briefly, is as follows: - Citizens of the United States are required to observe all Japanese laws; subjects of Great Britain are required to observe such of those laws as her Envoy may choose to re-enact; and the subjects or citizens of the other fourteen Powers are free to do just as they please in the matter.
Japan complains bitterly and with reason of this scandalous state of things, and is prepared to assert her right, if no remedy be provided, of denying the privileges of trade and residence to persons who, under a perverted reading of the treaties, insist on openly ignoring the territorial laws.
As an example of the preposterous working of the present system, it may be mentioned that the chief treaty port, Yokohama, is absolutely without any municipal government, the foreign residents having no power to govern themselves, yet stoutly refusing to be governed by the Japanese.
Plainly, then, an essential feature of any rearrangement must be some provision for bringing foreigners, at least partly, into compliance with the laws of Japan.
But, under the plan now suggested by the jury of nations, apparently the only practicable form of such a provision would be to make the administrative and local laws operative on aliens everywhere in Japan, and to arm the representatives with authority to re-enact the Imperial laws.
For the first, special powers would have to be given to the present Consular Courts, already so full of shortcomings, and presided over in many cases by amateur judges.
For the second, if, as is most likely, discretion were granted to the representatives, we might witness the absurd spectacle of sixteen gentlemen setting to work to re-enact Japanese laws, and recast the penalties, each after his own fashion.
Of the confusion worse confounded which the entire scheme now proposed would entail, it is hardly possible to draw an exaggerated picture.
To do the subject only bare justice would, indeed, be a formidable task, seeing that, stated in the shortest way, the conditions to be illustrated are - one phase of judicial arrangements at the present treaty ports, another at the contemplated new ports, and another in Japan at large; limited Japanese jurisdiction at some places, but none whatever at others; sixteen sets of Consular tribunals and diverse foreign laws at the ports; and sixteen separate determinations of the deference due by foreigners to the Imperial laws.
Further, it is to be observed that, if this piecemeal method of dealing with the question be once begun, it may be hard to find a logical reason against its repetition.
In that case, the opening of Japan might be only allowed to proceed by a series of stages, at long intervals corresponding with the successive epochs of revision.
At each such epoch a new area would be added, with a judicial economy differing from all which had preceded it, and different also from that ruling in the rest of the Empire.
Such are the broader features and blots of the clumsy artifice by which alone foreign diplomacy in Japan can make up its mind, after all these years, to deal with a problem that might have been solved rationally long ago but for the obduracy and jealous rivalries of sixteen Treaty Powers gathered sullenly under the grim shelter of the favoured-nation clause.
Even if, setting difficulties of jurisdiction aside for the moment, the matter be looked at from a commercial point of view, the prospect is hardly less forbidding.
There can be no honest expectation that foreign enterprise and capital would really find new and solid prospects in Japan under the paltry trade concessions now talked of, which at best could exceed the proposed opening of some additional ports by nothing more than the right of Japanese to charter foreign vessels for service in the coast trade.
These concessions would have no effect beyond that of bettering the condition of the few foreign monopolists already on the ground, deepening their hostility to any radical measure of revision, and urging them to greater efforts than ever to hinder the opening of the whole country.
Nor can it be doubted that the inevitable muddle and breakdowns which would follow the adoption of the tangled programme of jurisdiction now suggested would furnish fresh and encouraging opportunities for the pursuit of such efforts.
Japanese statesmen must be well alive to all these points.
They long ago learned, to their cost, that, at the dictation of the interests of the resident traders, attempts of the most unworthy and insulting kind are constantly made to discredit the Japanese administration and judicial processes, and to heighten Western prejudices against any recognition of Oriental sovereign rights.
No one can suppose them so blind as not to see that, by complacently agreeing to the ecccentric manouvre which is now put before them, they would be virtually signing their own condemnation, and furthering the game of those who find it their interest to blacken Japan's good name and to strain every effort to keep things in the present grooves.
It is idle, therefore, to expect that the astute and patriotic Japanese will ever be led by such a strategem on the part of their Western friends.
Thus, as I said at the outset, treaty revision is in a worse plight than ever.
Yet a maintenance of the status quo would be not only unfair to Japan, but a reproach upon the world's civilization.
Meanwhile England, in the van of the foreign host, suffers in more ways than one.
She suffers, first, in influence and prestige here.
The Japanese fully appreciate Great Britain's lately avowed willingness to reverse the policy she maintained so stubbornly up till 1883, and to go hand-in-hand with Japanese aspirations, if only the other Powers leagued with her can be led to do the same.
But this inclination to the side of right and justice has no practical value under the impossible "if" which is at present attached to it.
As I explained last year, England's recent change of attitude has only had the effect of unmasking the jealousies and covert antagonism of several of her associates, who now openly show their colours, hitherto veiled behind her broad back.
The task of getting all these units - each with its own axe to grind - to work together in any sound schemes of treaty revision has shown itself, after seven years of effort, to be beyond the range of human ability.
Upon us, therefore, rests the obligation of giving effect to our own candid admissions in the one way which admits of escape from the present deadlock, namely, by breaking up the combination of Powers and making independent terms with the Japanese.
We can no longer fall back on the respectable plea that England has weighty reasons for sticking to the favoured-nation-clause because her free-trade system places her at a disadvantage with her colleagues, by depriving her of one of the most substantial of the "considerations" applicable in any bargains to be driven with Japan.
For on this point Japan is ready to meet us more than half-way, by providing that any concession or privilege which may be granted by one Power, in exchange for something to be yielded by Japan, shall be held to have been already granted by a country where such concession or privilege already exists.
If, for instance, France were to agree to the abolition of all duties on Japanese imports as the price of certain advantages to be gained by her in Japan, England, by her pre-existing free-trade, would be held to have paid the price long ago, and hence to have an equal right to the same advantages.
I am, however, in a position to go farther than this, and to say that the Japanese Government are ready to deal with the question in any way which England may think necessary for her own protection.
Evidently, therefore, the first move must come from us, and until that move is made, we cannot but remain the central figure in the opposition which confronts Japan.
Great Britain suffers also in her commercial interests, immeadiate and prospective.
At this moment, indeed, she is in a certain sense the victim of the position she has herself taken up.
Won over to a friendly attitude towards Japan by no inducement but the dictates of fair dealing, she stands morally on a higher, but commercially on a lower vantage-ground than her associates - with the one exception of America - who are as yet committed to nothing.
These, if Japan would win them also, must be coquetted with and humoured, and even paid roundly for their prospective goodwill.
On some of them the opportunity has not been thrown away, and Japan is already being driven by political exigencies into diverting a great part of her custom from Great Britain to dearer and no better markets on the Continent.
Germany, for example, now supplies all of her ordnance, both for land and sea; France and Germany have begun to divide with England the building of her ships of war; and it is well known that Germany succeeded, a few months ago, in securing the transfer to her own merchants of all Japanese Government orders for railway iron and plant, hitherto placed invariably in Great Britain.
Further, there is the significant fact that, while the total of British trade with Japan in 1884 showed a decrease of 8-1/2 percent, as compared with the total of 1883, that of Germany showed an increase of nearly sixty percent.
The prosperity of English markets abroad is not at present such that we can afford to view these and similar changes with complacency, or to be in other ways indifferent to our waning position and interests in a country which bids fair to become the first state in the Far East.
It cannot, moreover, be too clearly borne in mind that the case has now reached a point at which, while we have everything to lose and nothing to gain by a prolongation of the existing deadlock, the interests of the other Powers lie exactly in the opposite direction.
They, in fact, are in a position, while this deadlock lasts, to profit at England's expense, and are busily extracting all the benefit they can out of a situation so little favourable to their great commercial rival.
Fortunately, the remedy for every drawback is simple and in our own hands.
By a single act of common-sense and justice we may at once solve a hitherto insoluble problem, and more than recover all of the advantages which have lately been so fast slipping away from us.
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