An Extradition Case in Japan
From a correspondent at Tokio - undated
(Appeared on The Times on April 30, 1886)
A case bearing upon the principles and practice of extradition which has lately occurred in this country presents some points of interest for students of international law and comity, as well as for those who are concerned in watching the course of English policy and influence abroad.
Towards the end of last November, the Foreign Office in Tokio received a telegram from the Japanese Minister at Washington, inquiring, at the instance of Secretary Bayard, whether the Government of Japan would, as an act of comity only, undertake the arrest and extradition of an escaped thief and forger named Calvin Pratt, who had sailed from San Francisco for Yokohama a few days previously.
In the absence of any extradition treaty between the two countries, no formal demand for Pratt's rendition was possible, and the American Secretary could only suggest that Japan should act upon the fundamental principle that every State is bound - as a duty, if not of perfect obligation, at least of public morality, - to deny an asylum to fugitive criminals, and should exercise her sovereign prerogative of yielding the offender up to justice.
He added that Japan's friendly action in this matter would be highly esteemed by his Government.
It is important to note that by the terms of this request the United States Government admitted their own powerlessness to arrest an American criminal on Japanese soil for an offence committed in his own country, while they at the same time recognized Japan's right to wield the powers in respect of extradition which are enjoyed by every independent State.
To those who are acquainted with the liberal attitude which the United States long since assumed toward this country, and which has placed her ahead of all the other Treaty Powers in influence and popularity with the Japanese, there is nothing surprising in the line thus taken by Secretary Bayard.
It is, in fact, in strict conformity with the dictates in obedience to which America several years ago declared her readiness to abolish the extra-territorial clauses of her treaty with Japan in exchange for a concession of free trade by the latter, and would have carried a treaty to that effect into immediate operation but for the fact that, under the most favoured nation clause, the result would have been to place Japan virtually at the mercy of the rest of her foreign friends.
It is also in harmony with the view of the situation according to which America, alone of the 16 associated Powers, acknowledges Japanese laws to be unconditionally binding on United States citizens in Japan.
The result of Mr.Bayard's request was that, after some further telegraphic communication, the Mikado's Government assented to the course which he had proposed, as an act of international comity, and proceedings were taken to secure Pratt's arrest on board of the steamer Oceanic, as soon as she should reach the port of Yokohama.
But an unexpected difficulty cropped up at the last stage of the preparations.
The Oceanic is a British ship, and it was necessary to procure the British Consul's endorsement to the warrant which have been issued by the Japanese Minister of Justice.
The Consul, however, refused to grant the needed endorsement unless the request of the American Government were cited in the warrant as the ground of arrest, a condition which, rightly or wrongly, the Japanese authorities hesitated to comply with.
In consequence, Pratt, who had been identified by Japanese detective before he left the steamer by means of descriptions telegraphed from America, was not arrested until he stepped ashore.
He was then examined by the Public Prosecutor, acting under instructions from the Minister of Justice, and, a very sifficient case of identification having been made out, he was detained until the arrival, a month later, of officials sent from America to finally identify and receive him.
A second ex parte hearing was now held at the Court of First Instance in Yokohama, at which Pratt's identity was fully proved and enough evidence taken to establish a prima facie case as to his commission of the crimes alleged against him.
After this a fresh warrant by the Minister of Justice duly effected his delivery to the officials of his own country, on board of a mail steamer starting for California.
These very commonplace incidents would be unworthy of notice if it were not for the glimpse they afford of the widely different views held by two such great Powers as England and the United States respecting the obligations and rights of themselves on the one hand and Japan on the other which are conveyed by existing treaties.
Japan, it is to be observed, has no extradition treaties with other States.
And, although the general tendency of modern European legislation has been to take away from the Sovereign the right of granting the surrender of fugitive alien criminals by his own prerogative, and to make provision by treaty or legislative enactment for the performance of this duty, Japan has hitherto taken no steps for such limitation of transfer of her Sovereign's prerogative.
Apparently, then, there is nothing to prejudice her rights in the matter, unless it can be shown that she has surrendered those rights by some special provision in her standing treaties of amity and commerce.
The only clause in the treaties which can be imagined to have a bearing on the subject says (I quote from our own treaty): - Japanese subjects who may be guilty of any criminal act towards British subjects shall be arrested and punished by Japanese authorities according to the laws of Japan.
British subjects who may commit any crime against Japanese subjects, or the subjects or citizens of any other country, shall be tried and punished by the Consul, or other public functionary, authorized thereto, according to the laws of Great Britain.
This clearly enough secures to our subjects exemption from the processes of Japanese jurisdiction.
Does it also give us the right to assume functions never yet brought within the competence of the Japanese judiciary?
America, as we have seen in the case under discussion, takes the view that, while this extra territorial clause confers on her citizens in Japan immunity from Japanese jurisdiction, it no more affects Japan's right to perform a purely executive act of extradition than it releases American residents or visitors from the obligation to observe the territorial laws.
On the other hand, the British Consular authorities could hardly avoid taking the course they did, the precepts and practice of the English Government having hitherto been of a nature that made it difficult for them to assist the Japanese authorities in performing an act which their own teaching compelled them to regard as an infringement of the extra-territorial functions of foreign, or at least of British, officials in Japan.
England's view, in fact, is that, inasmuch as under her procedure, extradition is in great part a judicial process, she, along with the possession of a treaty right to establish her Courts for special purposes in the treaty ports of the East, holds also the right to invest those Courts with all the powers for purposes of extradition which appertain to the judicial machinery on her own soil.
This argument, it will be seen, carries with it the inevitable conclusion that the extra-territorial clause is to be interpreted, not by its letter, but by the individual opinions and practice of each of the sixteen Powers having treaties with Far Eastern countries.
The following quotation from an Order in Council of 1884 sets forth in the plainest terms Great Britain's view of the privileges secured by extra-territoriality in respect of extradition: - The Fugitive Offenders Act, 1881, shall apply, in relation to British subjects, to China, Japan, and Corea respectively, as if such countries were British possessions, and for the purpose of Part two of said Act, and of this article, China, Japan and Corea shall be deemed to be one group of British possessions, and Her Majesty's Minister for China, Japan and Corea (as the case may be) shall have the powers of a Governor or Supreme Court of a British possession.
There can be no mistaking the meaning of this clear-almost ruthlessly clear-language, bestowing upon British functionaries here privileges which America on her part regards, in the absence of an extradition treaty, as the sovereign right of Japan.
The case above described is but one of many constantly recurring examples of the peculiar anomalies and contradictions which beset the complex problem of extra-territoriality.
It is, to say the least, unfortunate that opportunity should exist for proceedings and interpretations so diverse as to set up strong and invidious contrasts between the attitudes of any two or more Powers towards a friendly Oriental State.
But the story of Calvin Pratt's case may at least draw timely attention to the necessity of sweeping away the rotten and tottering fabric of a system which makes such contrasts possible.
On the present occasion it is England who appears at a disadvantage, while America, fully alive to the situation, is hurrying forward an extradition treaty with Japan.
To those who live in the Far East, and see from day to day the working of these outlandish extra-territorial provisions, it is at times impossible to suppress doubts whether the questions affected by them receive that attention in official quarters at home which they certainly need.
If not, is it from intention, or apathy, or failure to appreciate at their full value the bearings and importance of the matters at issue that the neglect arises?
It can hardly be the first; most probably it is the last.
In that case, the more such questions are ventilated the better.
Publicity on points of no light concern to English prestige and commercial interests in a region of the globe to which all eyes are now turned should tend not only to attract the notice of those in whose hands lies the power of remedy, but to familialize English business men with the nature and working of international problems which affect trade and enterprise in those distant parts much more than is generally supposed.
As an example of the imperfect knowledge of the Far East which pervades even well-informed classes in England, it seems worth while to refer to the letter from Messrs.Arthur Palliser and Co., published in The Times of the 5th of January, in which the writers, after classing Japan with barbarous or semi-barbarous States, advocate that England should adopt the unworthy policy, attributed to Germany, of active diplomatic interference with foreign Governments in the interests of private commerce.
Of the specific complaint with which this letter deals I have foreshadowed the cause in a former communication.
Japan, bound hand and foot in the straits to which the league of Powers has reduced her, is not in a position to defy pressure on the part of those of them who may be disposed to profit by her helplessness.
But it can hardly be believed that healthy public opinion at home would approve of Great Britain's lending herself, under any circumstances, to such devices.
Messrs.Palliser and Co., apparently think otherwise; and it must be owned with regret that their language and sentiments are of a kind little calculated to foster those feelings of international goodwill and esteem which, in the long run, are far more likely to promote vigorous trade with the Japanese than any displays of diplomatic force.
If British merchants interested in trade with Japan, instead of urging an obsolete and questionable policy in terms highly irritating to this spirited people, were to apply their energies to bringing pressure upon the Foreign Office in the direction which alone offers a rational and thorough solution of the present treaty deadlock in Japan, we should probably hear no more complaints about concessions in busisess matters to German or other intriguers.
As The Times has more than once told its readers, all that need be done is for England to break up that combination of Powers in which she has hitherto been the chief instrument.
This intelligent course would destroy the weapons which, though originally forged by herself, are now being turned against her by some of her less scrupulous associates.
It would cut away the whole groundwork of the diplomatic leverage that is being exercised to her disadvantage, and would at once raise her to a position in this country from which she might successfully defy political and commercial rivalry.
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