\r V JT / 4^ ^ K— A r^‘ 'Sij J-A . J'. EXTRA-TERRITORIALITY IN JAPAN. AN ESSAY READ BEFORE THE KOBE AND OSAKA MISSIONARY CONFERENCE AT ITS APRIL MEETING, 1884. D. CROSBY GREENE OF THE JAPAN* MISSION OF THE AMERICAN BOARD. PRINTED AT THE “JAPAN MAIl” OFFICE, 72, MAIN STREET, YOKOHAMA. # Digitized by the Internet Archive in 2017 with funding from Columbia University Libraries https://archive.org/details/extraterritorialOOgree EXTRA-TERRITORIALITY IN JAPAN. Ax ESS.W RKAD DR-rORE THE KOBE .\XD OSAK.V MISSIONARY CONFERENCE, AT ITS ApRIL MeETING, 1S84, p-v D. Crosby Greene, of the Japan Mission of the American Board. This subject is a hackneyed one. In the opinion ol many it is kept far too much tefore the public, but it is one of those subjects which cannot be thrust into the background. The dis- cussion is wearisome to many, as the discussion of the slavery question was to the slaveholder, and as that of the opium trade is to the average China merchant; but, however wearisome the discussion may be, the thing about which it concerns itself is more wearisome still to those who feel them- .selves grievously wronged and humiliated by it. If I shall succeed, by a re-statement of some of the evils connected with the present treaty arrangements between Japan and the different Western Powers, in awakening, even in a small degree, an increased interest in this important subject, I shall not have written in vain. It would be interesting to trace the history of the doctrine of extra-territoriality, but the subject is a large one, and must be curtailed if it is to be brought within the compass of a single essay ; 1 shall therefore endeavour to confine myself to the following points : — (i) Definition of the term; (2) a statement of some of the more important evils connected with the present system ; (3) a statement of the more weighty arguments against the abolition of extra- territoriality ; (4) the consideration of what is understood to be the plan proposed by the Japa- nese Government for the revision of the treaties. Definition oftheTer.m Extra-territoriaeity. The idea embodied in the noun extra-territori- ality and its adjective extra-territorial, as these words are used in the discussion of diplomatic questions, is the right on the part of a govern- ment to exercise governmental powers outside of its own territory, or that of its dependencies. It is true such powers have been exercised from time immemorial to a somewhat ill-defined extent within the premises of the diplomatic re- presentatives of treaty powers at, or near, any court or government. Men-of-war also and other national vessels, even when they pass into foreign waters, are considered as carrying the laws of their country with them — they are in fact regarded as forming part of the soil of their country, though other than national vesssels pass under foreign jurisdiction so soon as they sail into foreign waters. The term as used in Japan refers however to a far more extensive jurisdiction. As interpreted by most of the Treaty Powers, it means, that their re- spective subjects, or citizens, residing in Japan, are still completely under the jurisdiction of their own Governments, and that they are amenable to the laws and municipal regulations of Japan, only so far as such laws and regulations coincide with those of their respective countries, or have re- ceived the formal sanction of their Governments, i.e. the laws of Japan as such have no force over them. In case of any breach of law, the alleged offender is tried beftfre a tribunal established by his own Government, in accordance with the law of his own countiy, modified, it may be, to meet the exigences of extra-territoriality, but the law of his own country still. Civil suits against 2 EXTRA-TERRITORIALITY IN JAPAN. foreigners residing in Japan, whether the suitors be Japanese or foreigners, must be tried before the Court of the defendant’s nationality and in accordance with the law of that nationality. The doctrine as held by the United States | presents a different form and is relieved of some | of its obno.xious features. That Government, while asserting its jurisdiction over its own citi- zens, and its right to enforce obedience on their part to its own civil and criminal law, considers that they are bound to conform to the municipal laws and regulations of Japan, so long as those laws and regulations do not conflict with treaty provisions, and opens its courts for the trial of any offences against these laws and regulations, irrespective of their having received the formal j approval of the United States, or its representa- tive. Such approval is not necessary to give them binding forCi^(see page 670, U.S. For., Relations, 1S74-5). Such privileges as this doctrine entails, are of course founded upon treaties with the Japanese Government. Article VI. of the American treaty of July 29th, 1 858, together with the most-favored- nation clause of the same treaty, are the founda- tion of this right so far as the United States Government is concerned. No one disputes that an arrangement em- bodying at least the points included in the American interpretation of the doctrine was ne- cessary at the outset. The Japanese themselves | admit this. No responsible man among them, I so far as I am aware, finds any fault with those [ who negotiated the early treaties on the ground j of the extra-territorial provisions. These provisions were known from the first to be open to grave abuse, and some of the early ! diplomatists have left on record expressions of their regret "at the necessity of inserting them, j jMr. Townsend Harris, who framed the Am- | erican treaty, speaking with reference to the ! convention of 1858 says; — j “ The provision giving the right of extra-terri- | toriality to all Americans in Japan was against i my conscience. In a conversation with Governor ] IMarcy, the Secretary of State in 1855, he (Go- j vernor IMarcy) strongly condemned it as an un- i just interference with the municipal law of a j country, which no western nation would tolerate ' for a moment, but he said it would be impossible to have a treaty with any Oriental nation unless it contained that provision. The example of our treaties with Turkey, Persia, and the Barbary Powers gave precedents that the Senate would not overlook. I fear I shall not live to see this unjust provision abrogated." Again Mr. Harris says: — “I never for a moment claimed a right to interfere in matters which purely belong to the municipal affairs of every nation, such inter- ference is the result of absolute conquest and not of any international right.” (See Tokio Times, July 2 I St, 1872,) 7 In preparing this Essay for the press, I have /taken the opportunity to introduce a few changes [both by the way of addition and of omission. — ' IMr. Harris' successors were not all animated by the same generous spirit. It was not until 1874, I think, that formal instructions embody- ing the sentiments contained in my second quo- tation from Mr. Harris, were issued from the State Department to its representative in Japan. (U.S. For., Relations, 1874-5, p. 670). The Evils of the System. 'Phe first evil I will mention consists in the fact, tliat the assertion of extra-territorial rights on the part of the treaty powers, in that it takes their citizens or subjects out from under the jurisdiction of Japanese law, leaves them in a condition of such imperfect restraint as rightly to cause the deepest concern to the Japanese Go- vernment, The inability of the Government to enforce in the foreign communities its own municipal and police regulations, is, at all times, a most serious annoyance, and may at any time become a source of real danger to the State. The foreign residents are under the jurisdic- tion of their respective Consuls. Of these only the United States Consuls are clothed with power to enforce the Japanese laws as such, while, it is said, the British Government alone has conferred upon its chief representative in Japan such legislative powers as enable him from time to time either to give the force of law to regula- tions of the Japanese Government, or to pro- mulgate such special supplementary regulations as the exigencies of the times may require. So far as other residents are concerned, Japanese law, it would appear, has no force until it // EXTRA-TERRITORIALITY IN JAPAN; 3 has received the sanction of their respective home governments. Such a state of things can- not be contemplated vvithout anxiety by any government which is planning intelligently for the welfare of its subjects. It will not do to say that these governments will readily grant their sanction to any necessary legislation. What seems to the Japanese autho- rities necessary legislation, what is indeed neces- sary legislation, may not seem at all necessary to Governments thousands of miles aw’ay, but imperfectly informed with regard to the circum- stances, and dependent very largely for in- formation upon those who are liable to be. unduly influenced by self-interest. As a matter of fact the foreign governments do often stand in the way of necessary legislation. It is nearly impossible to frame regulations to meet the requirements of a community in Japan without including some clause which shall seem undesirable to some one of the sixteen, or seven- teen, Treaty Powers. The failure of the harbour regulations shows this. These regulations have been under consideration for years. That one, at least, of the important harbours of Japan has suffered serious injury for lack of stringent re- gulations with regard to the discharge of ballast and ashes from foreign vessels is well-known, but the Japanese Government is helpless against the multitude of treaty powers, each one of which seems to have the ability, if not the right, to veto her most carefully considered schemes. It is in the failure of the Japanese health re- gulations in 1879, however, that the helpless- ness of the Japanese Government is most plainly seen. When the cholera epidemic first broke' out in the south-w'estern part of the Empire, in the spring of 1879, the Japanese authorities sought to check its progress by a stringent system of quarantine to be enforced upon all vessels coming from the infected ports. The United States Minister gave his hearty support to the efforts of the Government, but the British and German IMinisters declined to allow' such a quarantine to be enforced upon their nationals, and proposed a different arrangement, which in their view, no doubt, was not less hopeful as a preventive measure, wdiile it would have been a much less serious hindrance to trade. j These IMinisters may have been right in ] their judgment, but the very great difference be- i tween the habits of life of the average foreign re- I sident and those of the Japanese — the fact that i the surroundings of the foreigner are such as to furnish almost complete immunity from serious epidemic disorders, inevitably suggests the sus- picion that the foreign authorities will but lightly notice the dangers visiting the lower classes, which must always constitute the chief care of a humane government. There is no occasion for the intrusion of any personal feeling here. It will be readily ad- I mitted that the two ministers whose course has ; been referred to were under the influence of the purest motives. One of them. Sir Harry Parkes, has been many years before the public, and has justly won the profound respect of those who know him. His sincere goodwill towards the Japanese people is not questioned. While all this may be said, the correctness of his judgment may w'ell be questioned. No man is quite free from bias. It is practically certain that a man who is placed in Japan chiefly to foster trade, will be more or less disposed to exaggerate the dangers which threaten it, and appreciate some- what less than he ought, the dangers w'hich beset the mass of the people from the absence of stringent sanitary rules. However valuable the opinions of- men so placed maybe, they will always be open to a strong suspicion of bias, and that on the wrong side. When a druggist undertakes to dictate to the physician, the patient may well feel alarmed. I am aware that this question of quarantine has been much discussed and that eminently respectable medical authority favours a scheme not unlike that proposed by the British and German Ministers in 1879; but I will venture to say, and I think the facts will bear me out in saying, that no Government in the world would be satisfied with any such scheme in the face of such a danger as that for which Japan was called upon to provide. Possibly the British Home Government might not waver from its fixed policy so far as the British Isles are concerned . Their isolated position and favorable climate reduce the danger from imported epidemics to a minimum and render a uniform policy pos- 4- EXTRA-TERRITORIALITY IN JAPAN. sible and natural. Butwhatever may be true of the British Isles, in the Crown Colony of Malta the strictest kind of a quarantine is resorted to at times, as is shown by the following notice : — INIalta, June 30th, 1883. Government Notice. — His Excellency the Go- vernor, having heard the opinion of the Board of Health, has been pleased to direct that vessels coming from any of the Egyptian ports, or from any of the Ottoman ports on the Red Sea, be sub- jected to a quarantine of twenty-one full days, to commence after the disinfection of the vessel. Passengers leaving Egypt subsequent to the date of this notice will not be allowed to land in Malta. By command — Walter Hely Hutchinson, Chief Sec. to Government. When the plague broke out in Southern Russia in the latter part of 1878, hardly more than six months before the cholera epidemic to which I refer, the whole of continental Europe was in excitement. An account of this epidemic, which I find in Appleton’s Annual Cyclopedia for 1879 says : — “ Stringent measures of quarantine were put in form by the Governments of neighboring states as soon as it seemed definitely established that an epidemic existed in 'Russia. The Ger- man and Austrian Governments ordered a detention of passengers and goods, and gave notice that if the epidemic spread to a threatening- extent, the frontiers should be closed altogether ; the Italian Government ordered a quarantine against all vessels arriving from the Black Sea ” (Art. Plague 1879, p. 730). The strictness of the yellow fever quarantine which has been several times established of late years in the United States is well known. In view of the great uniformity of the practice of the more exposed countries of Europe and America, I do not believe any man who ap- proaches this subject for the first time and fairly examines it, can fail to acknowledge that the two Powers in question forced the Japanese Govern- ment to adopt a less stringent measure than M'ould have been thought necessary by either of them, had its own people been exposed to an equal danger. Another illustration of the inability of the Japanese Government to carry out its sanitary regulations when foreigners are concerned, is found in the case of the Hindoo who died of cholera at Yokosuka in 1882. In this case the British Consul was asked to authorize the des- truction of the infected clothing and the disinfec- tion of the premises, but the asked for authoriza- tion was refused on the ground' that he, the Consul, had no power to grant it {Japan Weekly Mail, June 17th, 1882). Another evil to which I would refer is the absence of any efficient means of restraining the foreign press. This may at first seem a strange point for an Anglo-Saxon of the nineteenth cen- tury to raise, but it is none the less an important one. We all believe in maintaining what is ordi- narily spoken of as the freedom of the press, but no sane man believes in absolute freedom of the press. Few would hesitate to affirm that under certain circumstances, discussion of the policy of a government may be carried so far by the press of the land as to necessitate prompt and thorough-going measures. The most liberal governments are obliged at times to restrain the press. At certain critical periods of the late civil war in the United States, it was deemed necessary to order the suspension of a few of the prominent journals which advocated the cause of the South. In the Crimes Bill passed by the British Parlia- ment in 1882, with reference to the troubles in Ireland, there were “ provisions shaped to destroy the right of meeting and of newspaper dis- ! cussion.” “A censorship of the press was esta- blished with the right to prohibit the importation of foreign publications.” (Appleton’s Ann. Cyclopedia, Art. Great Britain and Ireland, pp. ! 366-7). j It will be said that both of these examples refer to very exceptional circumstances, but the I license of the foreign press in Japan has been displayed under circumstances not less trying. Until the Samurai question was finally settled by the complete subjugation of the rebels in the Satsuma insurrection, the Government was almost constantly in more or less of danger. The Sat- suma rebellion cost the country tens of thousands of lives and millions of treasure. There can, I think, be no question that the course of the foreign press in Japan added very materially to the embarrassment of the Government, at a time when it was hard to tell friend from foe. If it did nothing more, it served to nourish the hope EXTRA-TERRITORIALITY IN JAPAN. on the part of the rebels that the moral support, at least, of the foreign powers would be accorded them. The Japan Mail, for a few months during the early part of the rebellion, was con- ducted in such a way as would have placed its editor behind the bars in any country not fettered by extra-territoriality. There is no reason to believe that any such great danger confronts the Japanese Government now; still the statesmen who control the Government would be less wise than they have hitherto shown themselves to be, if they did not find in the grievous- injury their country has once received, a strong argument against the system which alone made such an injury possible. The Japanese press laws might doubtless be re- laxed without detriment, but that some degree of restraint upon the press is still needed, I firmly be- lieve. The Japan Gazelle not long since under- took to draw a parallel between its own conyse in reviling the Japanese Government, and that of the distinguished member of the British Parliament who controls Trulh, in his sharp criticisms of the Russian Government. The editor cannot be congratulated on the model he seems to have selected for himself, but apart from that, what shall we say of the state of mind of a man who can see no difference between cri- ticisms of a Government by a journal published a thousand miles outside its boundaries, and those published inside those boundaries by a man who has accepted its hospitality. No inelastic regulation which could be agreed upon between the Japanese Government and the foreign powers would answer the purpose. No representative of a foreign power can judge of the necessity of press laws. The gene- ral principles by which he is guided may be more sound, and the general laws which he may aid in framing may be wise and judicious, but there must be somewhere in the Government, authority to temporarily set aside law, when the interests of the State demand it. No Govern- ment can remain content which has not the right, in an emergency, to do what Abraham Lincoln did wuth the newspapers which sought to destroy his authority. All such law-s and regula- tions, whether temporary or permanent, ought in all fairness to bear equally on all classes in 5 the community. A foreigner has no claim to any privilege here. The examples I have cited have had regard chiefly to the direct acts of foreigners, but the evils of ^extra-territoriality by no means end here. Extra-territoriality not only deprives the Japanese Government of any direct control over foreigners, but it serves also, to a greater or less extent, to deprive the Government of its rightful control over its owm subjects. This is a necessary corollary of what has already been stated. It is useless for the Government to attempt to enforce important sanitary regulations among its own people if foreigners are to be allowed to ignore them. But this is not all. Foreigners are able to place within the reach of the Japanese people a means of defying the law of their owm country ; an ill-disposed foreigner may, so far as a consi- derable number of Japanese about him are con- cerned, nullify the law of the land. A con- venient illustration is afforded by the various gambling establishments which have been opened from time to time in Japan. Special attention has been drawn to certain exchanges opened in Kobe and Osaka wdthin the past tw-elve months, which, if what is said be true, would seem to be practically gambling establishments. At least, so much is certain, they have been opened to en- able Japanese subjects to evade certain trade regulations, by doing on the premises of a fo- reigner business w’hich would be burdened with Avhat w'ere intended to be severely restrictive taxes, if done outside. An attempt was made by the Japanese Government in Kobe to avail itself of the permission accorded by the individual foreigners to the municipal police to enter their compounds, to ascertain the character of the business and the description of the Japanese engaged in it, but the permission having nothing but the goodwill of the individual to sustain it, was of value only so long as the goodw'ill lasted. Just as soon as the moral agriculturists found their crops likely to suffer from the too frequent visits of the inquisitive blue coats, the authorities wmre notified that they would thereafter be re- fused admittance. Hence we see that under the present arrangements, it is in the power of a foreigner, if he be so minded, to nullify the law' of the land, and to defraud the Government of 6 EXTRA-TERRITORIALITY IN JAPAN. thousands of dollars of legitimate taxes without fear of penalty. Work of this kind has been going on for many years. As long ago as 1873, a gambling establishment was opened by an American on the concession in Kobe. This was before the definite instructions from Secretary Fish that American citizens must be made amenable to the municipal laws of Japan, but the Consul was able to secure the closing of the place by a simple letter of advice. One of the most con- spicuous business signs in Yokohama for many years has been that of an agent of the IManila lottery. There is no way of preventing the sale of the tickets of this lottery in Japan, and there seems to be no way to prevent the visits of Japa- nese to the shop in question, because, forsooth ! the Government under whose protection the l)usiness is carried on regards it as legitimate. Public opinion, to be sure, is more or less strongly against such offenders, but what do such people care for public opinion ? The Governor of Kanagawa A'e/i tells us of far worseplaces in the backstreets of Yokohama, kept open in violation of decency and order, which he cannot touch, and which the Consuls will not. probably cannot, close at his request. Where is the sense of shame of our respectable residents.^ Any man who has lived in Yokohama widi his eyes open, must know that what the Governor says is true. It is no answer to say that there are places just as bad in the native town. If there are, we are not responsible for them. It would be better to be marched to the police station every day than to have it thrown in one's face, and with justice, that the liberty we insist upon is one that fosters gambling hells, gin mills, and brothels. Not the greatest of the privileges we enjoy under extra-territoriality, no, nor all of them put together, are worth mentioning as a compensation for the humiliation every thought- ful man must feel as he walks down Hommura Road in Yokohama, convinced, as he must be, that no small part of the vice there seen is the direct fruit of the system we force upon the Japanese against their will. Besides the inadequacy of the laws provided for the restraint of foreigners, and the difficulty of securing supplementary legislation, the Japa- nese Government may justly complain of the judicial machinery provided under the treaties. A lack of properly trained judges is a serious fault, especially when the gravity of the cases liable to come before the Consular Courts for adjudication, is taken into account. Yet apart from the British Government no one of the treaty powers systematically provides such officers. The importance of this criticism will be ad- mitted at once if it be remembered, that under our system of law in criminal cases the Govern- ment is entitled to no appeal. The result of this is, that an inferior judge is able to take upon himself the decision of weighty points of law, and even the interpretation of treaties. Something of the same inconvenience is, indeed, sometimes experienced at home, but the judi- cial traditions are so strong, and the feeling on the part of the inferior judge, that his course is imder the eye of a large body of well trained lawyers and judges, so acute, that it is seldom he ventures to pronounce against the prima facie \ law. His sympathies are far more likely to be with the injured party than with the alleged of- fender, and he knows that the way to the higher j courts is easy for the defendant should he regard the decision of the lower court as bearing hardly upon him. '\Yere it not for the almost perfectly uniform I course of the inferior judges in this regard, no such custom, or law (in the United States this law is incorporated into the Constitution) would be tolerated. In a country like Japan, under extra-territoriality, this custom, which gives the Government no right of appeal, is attended with grave dangers. The lack of legal training on the part of the judges, the very distant relations they sustain to the judicial machinery of their own countries, and the absence of a large and influential bar, reduce to a minimum the healthful restraint of judicial custom and tradi- tion, while the smallness of our communities and the fact that the consuls combine with their judicial functions certain quasi-diplomatic func- tions, are very likely to create in the mind of a judge the notion that he is, so to speak, the pro- tector of his nationals against the aggressions of a foreign power. This is no mere matter of imagination. The EXTRA-TERRITORIALITY IN JAPAN case of Regijia vs. Hartley, tried in 1878, in which the defendant was cha.rged with importing opium contrary to the trade regulations, well il- lustrates my meaning. It is not necessaryhere to give an opinion as to the merits of the case. It is sufficient to note that the case turned upon the interpretation of what must be regarded as the organic law of the e.xLra-territorial communities in Japan. If the prirna facie meaning of the anti-opium clause of the trade regulations were to govern the decision, there could be no question about the guilt of the defendant ; but the judge decided, that the clause prohibiting the importa- tion of opium in quantity must be interpreted in the light of a clause fixing the tariff duty upon medicines, and hence, as opium is a medicine, the opium referred to, in the Trade Regulations, and the importation of which was prohibited, was not medicinal opium, but only that prepared for smoking. Some who heard his decision, re- gretted he did not go on to give his opinion why, if his interpretation were correct, the prohibition was not made unconditional. Possibly the judge thought that the Government was willing to allow to the residents of each Treaty Port so much of a spree on the arrival of each vessel from abroad, as a few catties of opium would provide for. However this maybe, the decision ran counter to the evident thought of the framers of the docu- ment in question, and for the time being nulli- lied the law so far as British subjects w'ere concerned. The interpretation may, or may not, have been warranted by the careless wording of the regulations, but the fact remains, as I have said, that it was against the natural interpreta- tion of the anti-opium clause, that it was made by an inferior judge, and that there was no chance for an appeal to a higher Court. I may remark in passing, that in a subsequent case the decision w'ent agaist the defendant on the ground that the opium of the second importa- tion was not of a sufficiently high grade to war- rant its being classed as medicinal opium. The defendant did not appeal, asserting, no doubt truly, enough, that the expense of prosecuting an appeal was too great. Such a state of affairs cannot be contemplated by a thoughtful Japa- nese without great concern. It is difficult to see, however, any way of overcoming the evils to / which this condition of things gives rise, without setting aside the system, and placing foreigners under the jurisdiction of Courts, which, however modelled, shall yet be an integral part of the Japanese judicial system. If the present system is to be continued, the Japanese diplomatists ought to insist upon some arrangement by which points of law arising in the Consular Courts shall always be referred to some superior judi- cial officer for decision. The authority to inter- pret treaties is too weighty to be entrusted to any but men of mature and varied legal experience. Further, confidence in the Consular tribunals has been somewhat weakened by the commuta- tion of the sentence of the murderer Ross. It is understood that a doubt as to the constitutionality of the trial of this brutal man had more or less to do with his failure to receive the punishment due to his crime. The constitution of the Uni- ted States guarantees the right of trial by jury, and the question arises, does this guarantee avail outside the territory of the United States ? In most Eastern settlements, to insist upon a full jury would be to let crime go unpunished, or at least to subject the law-abiding citizens of the United States to an amount of jury duty which would be Intolerable. It is true, some of the most distinguished jurists of America deny the applicability of the clause, in the Constitution referred to, to cases which may arise under the extra-territorial provisions of the treaties ; still the awkward fact remains that a most atrocious crime has failed of condign punishment, and that the failure is attributed to a radical defect in the machinery of justice. The inadequacy of these tribunals is further illustrated by the reluctance of the average jury, or board of assessors, to convict upon unsuj)- ported Japanese testimony. 'I'hat this reluct- ance is carried to an unreasonable extent will, I think, be admitted by anyone who will take pains to examine the law reports in the local papers and the comments upon them in the editorial and correspondence columns. I will not deny that there is a real difficult}' here, but we cannot expect the Japanese Government to be satisfied 'with such a state of affairs; from the very nature of things there must be cases, and their number is likely to increase, in which Japanese testimony alone can be had. ^ VWiVv-- 'iot Vji' EXTRA-TERRITORIALITY IN JAPAN. As illustrating the strength ol this prejudice against Japanese testimony, I will quote from an editorial in the Japan Weekly Mail of June 19th, 1875, referring to a case which awakened ' some interest at that time. The case is known as Regina vs. King. The defendant was convicted by the Consular judge against the ! opinions of the assessors. The editor in com- menting on this judgment says : — “ A writer in i the Herald of the i6th inst. expresses himself as tolerably certain of King's guilt (we are only repeating matter already made public), but he very naively closes his letter with an equally de- finite opinion that a jury would have acquitted him. We have a very strong belief that in this latter opinion he is perfectly correct.” I think the opinion of these two witnesses as to the temper of the average jury drawn from foreign communities, undoubtedly just. No doubt there has been a very considerable change of feeling among the more intelligent portion of the foreign residents towards the Japanese people during ; the past nine years. There remains, however, | among the majority an anti-Japanese bias strong | enough to interfere materially with the candid | judgment of any case like the one referred to. j Another point is brought out in the latter part of the editorial from which I have quoted. I quote again ; — “ As our law looks practically to the question of the actual damage done by crimes like that imputed to King to the social standing of the individual, it will not regard infractions of this particular branch of the code in the same light as among ourselves.” j This paragraph seems to be written as a pro- i bable explanation of the very light sentence (six months' imprisonment) passed upon a man convicted of rape. In all countries consi- derable discretion is left to a judge. It is j inevitable that it should be so, and it is not easy j to prescribe any definite limits within which it should be exercised. One would hardly care to say that the considerations suggested should not weigh in the mind of a judge educated to a deep sense of the responsibility of his office, but there is little hope of gaining justice in these Eastern communities when thoughts of this sort come into the minds of the jurors. Theoret- ically, of course, jurors judge of facts, but everybody knows how nearly impossible it is to secure conviction in any case, when the popular judgment regards the law as unneces- sary, or unduly severe, no matter, how clear the facts may be. That the unjustly low estimate put upon the virtue of Japanese women by the average foreigner in Japan, would be sufficient to endanger a just verdict in a case like the one referred to, is to my mind quite clear. Pre- sumably there would be on any full jury a fair proportion of just and candid men : they are not rare in our communities, but not enough, I fear, to control the ve'rdict in any case, when Japanese testimony alone could be had, or when the prejudices of the community Avere in great degree aroused. However disrespectfully one may be disposed to speak of jurors and juries, an inspection of the reports of cases tried before the extra-terri- torial tribunals will tend to confirm one's good opinion of the judges. Their fairness and candour are conspicuous in almost every case. No doubt, mistakes have been made, but they have been comparatively rare. Whatever predilections we may have in favor of jury trials at home, I think we must concede that they are out of place here : nevertheless, the tendency seems to be to make them more, rather than less, prominent as a part of the extra- territorial machinery. It would be wrong to infer from the instances cited that crime is rife in the open ports of Japan. It must be conceded that serious of- fences on the part of residents are very rare, but it should not be forgotten that we have with us always a large transient population among whom the criminal classes have many representatives. The number is large enough to make the ques- tion of their proper restraint a most important one. To the evils referred to must be added those which arise from the lack of uniformity in the systems of law which prevail in the treaty ports. This lack of uniformity is the source of much irritation, and in the conflict of jurisdictions man}’ a man who should be punished as a cri- minal goes scot free. Again, this system conflicts with tlie right of eminent domain on the part of the Japanese EXTRA-TERRITORIALITY IN JAPAN. 9 Government. There is not as yet any plan pro- posed to meet this evil. It is true the right is not one which the Government cares to exercise every day, but it certainly is an annoying limita- tion of its powers which has borne evil fruit in the past, and is liable to do so again. It stands in the way of schemes for railway extension in the vicinity of the foreign settlements, and of all plans for increasing the number and capacity of the streets in those settlements, and of numberless other matters which as times goes on are seen to need attention. In the event of war, whether fo- reign or domestic, it must lead to endless disputes and even to serious embarrassment. The Japanese people, as well as the authori- ties, complain loudly because extra-territoriality takes away the right of the Government to con- trol the tariff. This is sometimes spoken of as a mere struggle on the part of the Government to secure a protective tariff. I am no believer in the theory of protection, at least, when applied in any wholesale way, and I think its adoption has been a drawback to the United States ; nor do I believe that a protective tariff would help on Japan industrially. But while the practice of the countries of the world, including all of any great importance save Great Britain, and including even some of her flourishing colonies, is on the side of protection, it is a gross abuse of power to insist upon the right to control the action of Japan in this matter. Probably no one will deny that, even looking upon the tariff v.Ithout any bias in favor of pro- tection, it needs amendment. There are many articles which could bear a much higher duty than is at present assessed upon them, and by means of such an increased duty some tens perhaps hundreds, of thousand dollars, annually could be added to the Custom's revenue without detriment to the interests of foreigners in Japan. The question of municipal reform stands in very intimate relation to this subject. The municipal government, which cannot extend its authority to the interior of the compounds of the residents, is a poor apology for a government. It is difficult to see how any municipal govern- ment can be really effective which is not an integral part of the Japanese Government, though I am aware that many foreigners dream of such a thing as a reasonably effective system under the present arrangements. In his recent answer to the complaints of certain memorialists in Yokohama, the Governor of Kanagawa justly laid great stress upon this point. This seems to have excited some sur- prise on the part of the memorialists, for in a reply prepared by a few well-known gentlemen, we read : — “ The memorialists carefully re- frained from touching upon the question of extra-territorial jurisdiction in other than general terms implying a knowledge of its existence. . The memorialists confined their prayer to the grant of those reasonable privileges which are accorded by the governments of all countries in Europe, and by the United States, to all con- gregations of men forming townships or cities of their own.” This last sentence shows either strange ignorance or great disingenuousness. If it is relevant to the discussion at all, it means that foreign land-renters, or residents, in all countries in Europe and in the United States, are allowed to share in the government of the cities and towns in which they reside. Leaving the countries of continental Europe, as to which the statement may, or may not, be true, there is one way and only one in which foreigners residing in England and the United States can gain a share in the government of the cities and towns in which they reside ; and that is by becoming naturalized. No alien can in either country enjoy any municipal or other franchise. Until the Naturalization Act of 1870 no alien could even hold real estate in England. The Japanese Government is, of course, free to make any con- cessions she chooses to the land-renters of the ports, but European precedents will not help the Yokohama memorialists very materially. As the Japan Mail has very ably shown, most of the dilflculties complained of are traceable to the fact that obedience to necessary regula- tions cannot be enforced upon recalcitrant fo- reigners, except through the agency of consuls, who are too often either unwilling, or unable to lend their aid. Any municipal government which might be formed would suffer and fail for the same reason. No treaty Power would be likely to grant jurisdiction over its citizens or subjects to such an irresponsible body as a local municipality must be. 10 EXTRA-TERRITORIALITY IN JAPAN. The Kobe Municipality is' sometimes referred to as a m.odel to be patterned ^fter, and it cer- tainly deserves most of what is said in its praise. The plan of organization which has been secured there and in Osaka presents many advantages, which it is reasonable that the residents at other ports should look upon with ionging eyes. A not unimportant part of the advantages which have been pointed to as showing the value of the plan of municipal government are, however, purely accidental. It is not, for example, owing to any peculiar virtue in the hlunicipal Council, so called, that grog shops and other places of low resert are not opened on the Concession. They are not there simply because foreigners are allowed to rent buildings outside of the Conces- sion. The class of buildings the keepers of such houses wish, can be rented, or purchased, cheaper outside than inside the Concession. In • Yokohama foreigners are restricted to the Con- cession. If a similar restriction w'as placed upon the right of residence in Kobe, such houses would immediately be opened on the Conces- sion, and, in so far as this one matter is con- cerned, the Kobe Concession would resemble that of Yokohama, excepting of course, that the evil would be less in degree because of the smallness of the Settlement. Another evil incident to the present system is that it presents an insuperable obstacle to the development of the country. No one who looks at the geographical position of Japan, with her • fertile soil, and a fair endowment of mineral wealth, can doubt that if her resources are pro- perly developed she will become in due time a wealthy nation with larger manufacturing and commercial interests. The fact that her people are, unless we except a portion of the inhabitants of British India, the first Asiatics to make serious advances towards VvYstern civilization, promising, as we certainly believe they do promise, to take Avith it the religion which makes it Avorth having, suggests to us a noble future — a future Avhich shall give her an influence over the Eastern half of the old Avorld in some degree like that Avhich England has exerted OA-er the Western. If Japan is to make important advances in the various departments of her industry, she must have more capital. She must give up some of her expensive methods of Avork and take on the more economical and productive methods by Avhich Western mechanics have gained their successes. By far the best Avay of securing this capital and this industrial education, is to throw the country open to foreign trade. Her people are apt pupils. Every shop, or factory, Avhich a foreigner may establish Avill be a school. With the opening of the country, such shops and fac- tories Avill be established, not in large numbers at first perhaps, but still in sufficient numbers to serve as an admirable means of education for the Japanese mechanics. Enterprises now im- possible because of the lack of capital Avill be undertaken just as soon as foreigners are alloAved to hold property freely in the interior. I knoAV some maintain that there is no neces- sary connection betAveen the opening of the country to trade and the abolition of the extra- territorial laAvs. Even so distinguished a person as Sir Harry Parkes has made an ungenerous comparison between Japan and China to the discredit of the former, and has represented Japan as animated by a narroAv and exclusive spirit in denying to foreigners the right of resi- dence in the interior. This the Japanese deny. They feel convinced that the annoyances Avhich they noAv find Avell nigh intolerable, Avould be vastly increased and Avork immeasurable injury to their people, Avere the country to be throAvn open Avithout a very large curtailment of the present extra-territorial privileges. In a memorandum enclosed to Sir Harry Parkes, December 20th, 1872, Mr. Terashima, summarizing certain statements of Sir Rutherford Alcock Avith reference to treaty relations Avith China, the full t.ext of Avhich he also enclosed, says; — Pie “ states that foreigners desiring to travel and trade in the interior of China should of necessity observe its local laws and regulations ; it Avould be neither in justice nor equity for them to traA'el Avithout the concession of their right of extra-territoriality.” M''r. T. Walsh has recently said “ no Government careful of its dignity, or considerate of its security, could alloAV foreigners of all sorts to go and stay where they pleased, amenable neither to local nor imperial authorit3^” I think no unprejudiced person who Avill read the discussions bearing upon the case of Regina EXTRA-TERRITORIALITY IN JAPAN. versics King already referred to, will deny that Japan is most certainly wise in her purpose to confine the evils of the present system as much as possible to the vicinity of the open ports. It would be unutterable folly for her to do other- wise. The advantages vrhich would come witli unrestricted intercourse, great as they unques- tionably would be for Japan, would be purchased too dearly if gained at the expense of still further inroads upon her sovereign rights, the dignity of her Government, and the safety of her people. Can we conceive of the Japanese Government being willing to have foreigners' compounds scattered over the country, furnishing gambling resorts for her people, and places of refuge for criminals 'i Some of the objections to which I have re- ferred are often spoken of as being merely matters of sentiment, and if I were to go on and mention the large loss of prestige which the Japanese Government suffers in the eyes of its own people many would make light of it. Still it is a serious matter with the Government. This loss of prestige and dignity is a real hindrance in many ways. Great as the other evils of the system are, I am not sure but that this out- weighs them all. The word “sentimental” which has been brought into this discussion is a much less valuable weapon than it used to be. No intelligent advocate of a just and righteous cause will be troubled by the fear of being called a sentimentalist, he will rather pride himself on it. The number of those who realize the importance of sentimental considerations is larger than in former years. He is a poor statesman who makes light of them. In this case they are im- portant enough to demand the earnest consider- ation of the Japanese statesmen and to arouse the sympathy of the friends of Japan. Arguments against the Abolition of Extra-territoriality. In what I shall say with reference to these arguments I should be sorry to be understood as dcni ing them their due weight. All, or nearly all, that I shall touch upon have great weight. They certainly demand the careful attention of the diplomatists who have the revision of the treaties in charge. There are, however, certain considerations which, in my judgment, relieve these arguments of some of their force and which should prepare us to look more fairly and candidly upon the propositions of the Japanese Government. These arguments to some, perhaps to most, minds may seem conclusive as against any scheme for the unconditional abolition of the present extra-territorial privileges accorded to foreigners. It is well known, however, that no such unconditional abolition of these privileges is seriously advocated by any responsible per- son. The Japanese themselves, while no doubt they would be glad to secure so great a conces- sion, do not urge it. First and last very many arguments have been adduced by those who oppose making any radi- cal concession to the Japanese on the prospec- tive revision of the treaties, but most of those which are specially important are, I believe, com- prehended under the four or five which I shall give below. In the comments which I may m.ake upon them, I shall, at the risk of being thought to wander from my subject, allow my- self some latitude, because arguments in which the personal equation is prominent, as it most certainly is in these, are often best met indirectly. The first of the objections to the abolition of extra-territoriality which I will mention is the im- perfect condition of the laws of Japan. There is less said about this now than formerly. The publication of the new criminal code and that of criminal Procedure has called forth very fla,ttering commendations from some of the m.ost distinguished foreign jurists. I give below several, copied from the columns of the Japan Weekly Mail for April 19th, 18S4, p. 368. “The reform of penal legislation in Japan will place the penal administration in harmony with the spirit and culture of modern days.” (Wines, Pres, of the Penitentiary Congress, Stockholm.) “ The penal system is rationally constructed ; the definitions of crimes are given in simple clear outlines ; the penalties attached are proportionate and humane; and the experience of the cultured world as well as the progress of European science have been regarded throughout.” (Ber- ner, Berlin.) “For those nations wlio have come into 12 EXTRA-TERRITORIALITY IN JAPAN. more active intercourse with Japan, there can- not but arise a pleasure in the consciousness of the fact that the prosecution and judgment of punishable offences are regulated according to European models. . . . Although it is true that in consequence of copying too closely the model of the French Code d’insincctio?i crimi- nelle, the criminal procedure of Japan does not always deserve unlimited praise ; on the other hand, we cannot withhold from the Penal Code the unreserved admiration which has already been expressed by an authority (Berner) so generally acknowledged in the field of penal legislation. . . . This code is well thought out, systematically arranged, and the penal system harmoniously and rationally elaborated.” (IMayer, Vienna.) “ A great change will be accomplished in the Empire of Japan when the new Criminal Code is applied there. No legislation will approach more closely to our own than that which will then enter into operation.” (Desjardins, Paris.) “ In sum, and with rare exceptions, when one considers the provisions of this scheme ela- borated by a Commission of Japanese, one fancies he is reading the text of an liuropean legislation ; one has in a measure, before ones eves one of those schemes which the most ad- vanced science presents to the legislators of the Occident. One is pleased with the diffusion of light over the whole surface of the globe, and feels almost ashamed to speak of ameliorations which our own jurists have counselled, but our legislators have not yet taken the time to effect.” — (Labbd, Paris.) “A Penal Code far from all reminiscence of a backward age and crude law, inspired with a liberal spirit revealing a scientific sense, com- posed with a legislative art worthy of praise ; a Code of Criminal Procedure which does not deserve, it is true, to figure in the first rank, and does not open any new horizons, but neverthe- less sanctions, in general, the grand principles of modern procedure, the irrevocable conquests of civilization and justice; such are the precious gifts that the Japanese Government has just made to its people.” — (Van Hamel, Amsterdam.) Surely such praise must be most gratifying to the authors of these codes, and must bespeak for them the respect of all whose interests are affected by them. It is true the civil codes are yet wanting, but is there no expedient short of extra-territoriality with its countless evils by which the interval which must elapse before the publication and proper testing of these codes can be bridged ? These codes are sometimes spoken of more or less contemptuously as made to order, without very much regard to their adaptedness to the needs of the people. I do not understand it so. My understanding is that, though the Criminal Code, as a code, was adopted quite recently, most of its important features had previously been incorporated into the laws of the land. Its in- troduction, if it can be called a revolution at all, was so quiet as to attract almost no attention. It seemed to most lookers-on as hardly more than a new stage in a natural and healthy de- velopment of the law of the land. It will be largely so with the Civil Codes. A second objection is that the almost complete separation of the people from the Government takes away all assurance of the permanence of the political and legal reforms which are pointed out by the advocates of a radical change in the treaties. What assurance have we that this absolute Government will not step backward and enact in place of the present enlightened and humane laws, others grossly oppressive ? In return I would ask : — Is this separation as complete as those who offer this objection sup- pose .’ It is true there is as yet no recognized means by which the influence of the people can be brought to bear upon the general policy of the Imperial Government. The people must wait six years more before the opening of the promised National Assembly. With reference to local affairs, however, the case is very different. The provincial and district assemblies afford a valuable means by which the people can exert a powerful influence upon the Government so far as local affairs are concerned, I shall no doubt be reminded that the organic law of these assemblies limits their discussions to such ques- tions as may be submitted to them by the execu- tive department; some have even maintained that the executive is under no obligation to submit any matters which it preferred to de- EXTRA-TERRITORIALITY IN JAPAN. 13 cide itself. Whatever may have been the intent of those who prepared the law under which these bodies meet, the fact seems to be that they largely control the_internal economy of the provinces ; though their decisions are some- times vetoed by the Minister of the Interior and occasionally reversed. A correspondent who has resided some years in the province of Bizen and is well acquainted with the principal officials as well as with some of the prominent members of the Okayama Local Assembly, _ informs me that during one year, with reference to which he made special inquiries, all but two measures favoured by that assembly were acquiesced in by the IMinister of the Interior. One of the measures proposed by the assembly, but rejected by the Government, was a scheme for re-districting the province, and the other one related to the method of collecting the taxes, measures which would not improbably have provoked a veto from any State Governor in the United States. The questions upon which action was taken included all those relating to the expenses of the police (excepting the salary of the chief), to the number and location of the common and special schools, to all the . audit expenses connected therewith, to the care of all roads of the third class, and to the expenses of the subdivisions of the executive department. These assemblies have apparently secured the recognition of their right to originate business. A decision has been secured, I am informed, from the Home l\Iinister, that tax bills which have once passed a Provincial, or City, Assembly, cannot be amended by the Governor without a second consultation with the Assembly. The effect of these assemblies has been to interest a very large number of people in public affairs. The district assemblies are quite large,* and, though concerning themselves with narrower interests, are doing good service in broadening the minds of the people and in imparting infor- mation as to the details of the public expenditures. Two years ago an opportunity was afforded me of attending a session of one of these district assemblies in a mountain town in the province of Tamba. There were sixty or more members on the roll, nearly all of whom were present. The * By a recent revision of the regulations governingthese bodies the number of members has been very much diminished, but in the opinion of some intelligent Japanese this change is rather a gain to the people than otherwise. business was conducted in an orderly and syste- matic manner, which was greatly to their credit, and which testified to their intelligent interest in it. It has been held by some that few, besides the old time Samurai ox Shizoku, were interest- ing themselves in these political movements. This is a great mistake. Among the most in- fluential men in these bodies are many from the merchant and farming clasfes. In some pro- vinces such men are largely in the majority. In the Niigata Kenkwai, I am informed, there is but one Shizoku. These merchants and farmers are practical men. They know where the shoe pinches, and are more interested in re- lieving the distress arising from present mis- government than in the more or less visionary schemes of their patriotic, but often ill-informed, brethren of the Aikokusha. They are taking pains to educate themselves for their work, and the new codes are used in many a country town and village as text books by business men who an trying to gain an insight into the intricacies of the Chinese character. In the language of books they may be backward scholars, but some of them evince a rare capacity for business and have justly gained the respect and confi- dence of their friends and neighbours. Out of the occasional concessions of the Government they are gradually building a constitution which, meagre though it may be, is already a blessing, and is full of promise for the future. It is a great mistake to suppose that the enlighten- ment of the middle class in Japan, and this interest in governmental reform, is- confined to the neighbourhood of the open ports or even to the large cities. Xt-Is found to a greater or less extent in all the old castle towns, and in many of the smaller villages, throughout the empire. The communication between the capital and the provinces is far more intimate, and the in- fluence of the one upon the other far more quickly felt than most foreigners imagine. The general impression made upon the mind of H.E. Ito by his recent visit to Germany, was the subject of general conversation in the country towns in the interior of Yechigo within a few weeks of his return to Japan. We have abundant reasons for believing that the wheel of progress in Japan, as elsewhere, is u EXTRA-TERRITORIALITY IN JAPAN. a toothed wheel. The ratchet of a rapidly strengthening public sentiment clicks sharply behind each tooth as it moves forward. The third objection is, that the Courts of Japan have not yet won public confidence. It is asserted, in particular, that they are under the influence of the e.xecutive department of the Government. While it will readily be admitted that the condition of the Courts is not entirely satisfactory, and probably most intelligent Japanese would concede this, they are made to appear worse than they are. In spite of their confessedly imperfect condition, the people of Japan have come to regard them with gratitude, as furnishing an unmistakable safeguard against oppression and injustice. It is known to most of those who have in- terested themselves in Japanese politics, that the Japanese law provides for an appeal to the Courts against any alleged arbitrary act on the part of any Prefect, or subordinate official. Such cases are frecjnently brought before these tribu- nals. I have by me, as I write, a paper giving a description of the suits brought before the Osaka Court of Appeal against the various prefects within its jurisdiction during the year i88i. There were forty-two of these suits. Of these eleven were dismssed without a hearing, three were settled by mutual agreement, eight were withdrawn by the plaintiff, four were decided in favor of the plaintiff, thirteen were decided in favor of the defendant ; in two cases the plaintiff gained a partial success, some points being decided in his favor and some against him, and one case was pending at the close of the year. Among the suits brought were man}' which were evidently frivolous, and this probably ac- counts for the large number dismissed without a hearing. As to the merits of these cases, of course, nothing can be said, but the record shows this at'least, that the Courts'are open for the review of the acts of the e.xecutive officers of the Government and that even a prefect is amenable to their judgments. During the same period fifty-five cases were brought against sub- ordinate officers before the same Court, which at that time had original jurisdiction in such cases. From the first of the year 1882 these cases have been relegated to the Courts of First Instance, thus making their adjudication less difficult, and bringing justice within easier reach of the people. I may remark in passing, that among the suits which came to nothing were two against the prefect of Osaka for not prohibiting several large Christian meetings, held during the Summer of 1881. One of these was withdrawn by the plaintiff and the other was dismissed. The prefects concerned in these suits repre- sented twelve Prefectures, vdiich fact indicates how widespread is the disposition on the part of the people to assert their rights. The fourth objection is the alleged lack of any well defined limits to the powers of the executive officers of the Government, including the police. It will not be denied that the traditions of former years exert a strong influence upon some of the Japanese officials, but the fact that the Courts are open to those who feel themselves aggrieved, reduces the danger from this source to a minimum. With the facilities offered by the Government on the one hand and the readi- ness of the people to avail themselves of them on the other, the evil indicated must be confined within narrow limits. A story is told, and I believe it authentic, illustrating the great change which has taken place in the relation between the rulers and the ruled within the past decade. Several years ago, the Governor of one of the interior provinces, having, as it was understood, be- come a good deal worn by his frequent strug- gles with the village and city Flampdens who composed the Local Assembly, secured from the Central Government a temporary release from his harassing labours. Possibly taking advantage of the Governor’s furlough, some of the district officers arranged for a conference with regard to certain matters of mutual interest. When the time for the meeting arrived, the Go- vernor's suspicious curiosity overcame his pru- dence, and regardless of his tired nerves he put in an appearance. As the interest in the discus- sions grew warm, one of the speakers, apparently forgetting the Governor’s presence, indulged in some remarks reflecting quite severely upon that dignitary’s policy. This was too much for EXTRA-TERRITORIALITY IN JAPAN. 15 the irritable statesman. He sprang upon his feet and administered a scathing rebuke to the imprudent critic. As he sat down the previous speaker, instead of being overwhelmed by the indignation of the great man, coolly remarked that as he had previously heard that the Governor had been relieved from duty, he would be greatly obliged if he could be informed whether it was Governor Soregashi, or only plain Mr. Soregashi, to whom they had had the pleasure of listening. The element of discretion in the Governor's valour being over-borne by other more warlike qualities, he replied that he had spoken officially. This ended the controversy for the time, but the matter having been referred to the proper authorities, the indiscreet official was mulcted of a fine of one hundred and fiftyj-Y/z for as- suming to act officially while on furlough. There may be breaks in the line which bounds the authority of these officers, but I think the more important ones are gradually being closed up by the decisions of the Courts and the pro- mulgation of new laws. There is a fifth objection which I have heard urged somewhat strongly on behalf of the mer- chants ; it is that certain vested rights have grown up under the present system and that a regard for them demands its continuance. The fact that those who have made investments here have done so under treaties which provide for their own revision within a comparatively short time, must give this objection a some- what shaddowy character. The most that can be said of these so-called vested rights is that they may, perhaps, constitute the basis for a claim for damages, should it be found that the new ar- rangements cause actual, or possibly even con- structive, loss in any quarter. No one class in the community, be it foreign, or native, has'any right to interpose its vested rights in the way of necessary reform, though it may justly claim compensation for the sacrifice it makes for the general good. The Proposition of the Japanese Government WITH regard to the REVISION OF THE TREATIES. Though of course no official statement of this proposition has been made public, the wishes of the Japanese Ministers, and the main features of the plan they have’ proposed for the consi- deration of the Foreign Powers, are fairly well understood. I am indebted to a gentleman whose opportunities for acquainting himself with the views of those in authority cannot be ques- tioned, for the substance of the following state- ment of that plan. I may remark at the outset, that it is understood that two distinct propositions were laid before the Foreign Ministers. The first looked towards the complete doing away with extra-territoriality, and the placing of foreigners upon the same footing with the Japanese so far as the privileges of travel, residence, and trade were concerned, with the guarantee that nothing should be punished as a crime which was not recognized as such in Europe. This plan, while doubtless on the whole the one more acceptable to the Japanese authorities, is not strongly pressed. The second plan, which they do press, is be- lieved to be as follows ; — The Japanese Government offers to open the entire country to travel, residence, and trade, to extend the limits of the present treaty ports so as to include the entire prefectures in which they are situated, and to confer upon foreigners the right to hold real property within the limits thus extended, so that they may engage freely in agriculture, or manufactures within those bounds. In return Japan asks limited jurisdic- tion extending only to misdemeanours, leaving crimes to be dealt with as at present by the foreign tribunals. She promises that this juris- diction shall be in accordance with the new Criminal Code, and the Code of Criminal Proce- duce. The Civil Codes not yet having been published, Japan agrees that all decisions in civil cases shall be in accordance with the principles of European law, and in order to guarantee the fulfillment of this agreement she promises to add to her judiciary a corps of trained foreign judges, and to provide that in all cases in which a foreigner is concerned a majority of the judges upon the bench shall be foreigners, except in simple police cases ; that in such police cases a Japanese and a foreign magistrate shall sit together, but that in the event of their failure to agree, the opinion of the foreigner shall prevail. She promises also to provide exceptional rights of appeal, and to give such other guarantees of good faith as may be deemed fitting. The moderation of this proposal will secure for it, we trust, favorable consideration. It seems to provide all. needed safeguards for the fo- reigner and to claim less for Japan than she had a just right to demand of the foreign powers. It seems to me that this plan meets as fully as any / i6 EXTRA-TERRITORIALITY IN JAPAN. reasonable man can ask all the objections noted above. The incompleteness of the Japanese law is provided for by a sufficient guarantee that the principles of European law shall be main- tained ; the alleged danger of change in the law is averted by the very terms of the proposed agreement; the asserted incompetence of the Japanese judges is met by the promise to ap- point well trained foreign judges; the dread of official tyranny is to be taken away by the ready, access accorded to the Courts. All that Japan asks in this proposal, and more, the United States Government stands ready to grant. In his last annual message to Congress, Pre- sident Arthur says ; — “The question of the general revision of the foreign treaty of Japan has been considered in the international conference held at Tokio, but without definite result as yet. This Government is disposed to concede the requests of Japan to determine its tariff duties, to provide such proper judicial tribunals as may commend themselves to the Western Powers for the trial of causes to which foreigners are parties, and to assimilate the terms and duration of its treaties to those of other civilized states." The Japanese Government, as is known, is prevented from negotiating such a treaty as is indicated in the above extract solely by the forced interpretation of the most-favored-nation clause of the treaty by Great Britain and perhaps other European powers. Great Britain, in effect, says to Japan : — “Whatever special privileges you grantto the subjects, or citizens, of otherpowers on certain stipulated conditions, must be granted to the subjects of Great Britain irrespective of those conditions.” A more unjustifiable interpretation, or a more unjustifiable abuse of power on the part of a strong nation, cannot well be conceived. 'Phe gain it brings is a gain bought with dis- honor. I cannot believe that the conscience of England, so sensitive on most important (pies- tions, will fail to reprobate the policy of her late preresentative in Japan with regard to this matter, if it can only be brought to bear upon it. There is much that may be said as to the benefits accruing to foreign trade from such a treaty as Japan offers. It is true, as some one has said, Japan has more to gain than we, still there can be no doubt that the opening of the country, or any considerable portion of it, to foreign enterprise must result even in the near future in a large increase of foreign trade. To a prudent, far seeing business man in the position in which the suggested treaty would place him, Japan would present numerous opportunities for the profitable investment of capital. The mer- chants of the open ports may, or may not, care to improve such opportunities — they may make light of them, but with the opening of the country men will come in who will improve them. I do not mean to say that fabulous wealth can be had for the asking, but that sueh- patient and K.L1. ^ persevering watchfulness and labour by which men expect to earn success in other lands will not fail of its reward in Japan. Any large in- flux of capital and of foreign energy and enter- prise must result in a large increase of foreign trade. How rapid the increase would be it may be difficult to say, but that before many years it would amount to an aggregate of trade worth far more than the trifling sacrifice required to build it up, admits of no doubt. To the missionary’s work, apart from the great gain which would come from the disassociation of the Christian name from a galling system of injustice and oppression, I think the advantages of a change in the treaties, great though they as- suredly would be, would yet be less important than to trade. There is a notion widely pre- valent that a missionary's success is almost in the direct ratio of the number of miles he travels, and that great freedom of movement is absolutely essential to his success. Here in Japan, however, whatever may be true of other lands, though there is important work for travelling missionaries to do, a reasonably pru- dent policy suggests the wisdom of tying down a large part of the missionary force, and as I think, an increasingly large part, to the various forms of educational and literary work. The demands of this work are so pressing that few new stations can be occupied in the interior with- out a larger increase of the working force than there is any present prospect of our securing, however fully the country may be opened. Certainly the advantages to the missionary body are not important enough to furnish any temptation for them to ask for special privileges as they have been charged with doing. They want none. They are anxious, however, as I have intimated, to see the religion they preach disassociated from a system which they believe, in its present form certainly, to be unjust and oppressive. They are jealous of the good name of those Christian lands under whose protection they live, upon which they believe a stigma rests and must rest until this system is abolished. They look forward to and pray for the coming of the time when the Christian conscience of those lands shall assert itself and refuse to tolerate the oppression of the weak by the strong ; when it shall force the governments of those lands to despise gain bought at the expense of honour ; when the great influence of those lands shall be used to protect the weak and to put down in- justice and wrong; when all lands which are called by Christ's name shall be crowned with “ the greatness of justice.” I ! f ) ! ■‘ir ' ‘ /■ ¥.: • s’v ; i I S ■ V