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JAPAN AND HER CONSTITUTION. By F. T. PIGGOTT (LATE LEGAL ADVISER TO THE JAPANESE
EXTERRITORIALITY : ITS RESCISSION WITH REGARD TO
PORTUGAL. Since the publication of my first article on the Japanese Constitution an event of no little importance to the relations of Japan with the Western Powers has occurred which naturally claims notice in my present contribution. After a series of diplomatic incidents which I should imagine was quite unique in the history of the intercourse between nations, Japan has rescinded the exterritorial clauses of the Treaty with Portugal. Paragraphic comments duly appeared at the time the telegram was received : they were not, it is needless to say, altogether complimentary to Japan. The information was meagre : but the denunciation of a Treaty was a subject which editorial pens could not pass over : there has always, moreover, been a lurking suspicion in some quarters that Japan would sooner or later cut the Gordian knot of treatyrevision by denunciation : and therefore the burden of the newsman's song was easily to be foreseen :- Japan had begun to do what it was always thought she would do, and she has craftily begun with the weakest Power first. But,and this is so typical of the attention which Europe pays to Eastern affairs,—since the facts have been published, which led Japan to take the course she did, little attention has been paid to the matter. It was not an affair of gunboats, and so it was quite unnecessary to say anything more about it. And yet apart from the question involved, it was a matter of extraordinary importance. It was the first time that an Oriental nation had imposed its will on a Western State. The memory of man bears witness to a long series of precedents of precisely the opposite character. The history of what took place-negociation is a term that can hardly be applied to its later stages—is interesting. Portugal, for many years after the Treaty had been signed, failed to appoint, as she was obviously bound to do, Consuls with the necessary jurisdiction over her subjects in Japan, failed to take her share of keeping the Emperor's peace within his borders. Not till 1886 was any semblance of a proper appointment made, and its insufficiency was almost immediately and amply demonstrated. A theft committed by a Portuguese subject at Nagasaki went unpunished. The Portuguese Vice-Consul at the Treaty Port had no jurisdiction at all; the Consulat the Capital had no jurisdiction beyond the limits of Tokyo. In 1887, consequent upon the urgent representation of Japan, and after twenty-seven years of delay, Portugal performed her part of the contract by investing her Consul-General and Vice-Consuls with a certain amount of authority. Four years afterwards, in 1891, without any formal notification to that effect to Japan, the ConsulateGeneral in Tokyo was suppressed by Royal decree. With the destruction of the head, the body obviously died too. The Vice-Consuls of Portugal did not stand in the same position as those of other nations : they were placed under the jurisdiction of the Portuguese Consul-General in Tokyo, but this superintending jurisdiction was not merely by way of appeal, for cases of minor importance only were left to the Vice-Consuls ; in cases of great gravity occurring at the Treaty Ports, the Consul-General was instructed to attend to the matter himself. Japan had insisted, in 1887, that judicial officers should be appointed at the Treaty Ports : Portugal had replied that the appointments should be conferred only on persons endowed with due qualities for the good fulfilment of their functions. The terms of the request and of its answer did not correspond. Finally, exequaturs were never accorded to these Vice-Consuls : they seem, therefore, in the manner both of their appointment by Portugal, and of their reception by Japan, never to have been regarded as other than deputies of the ConsulGeneral. The result, therefore, of the suppression of the office of Consul-General was that the jurisdiction of the Vice-Consuls was gone ; and, in spite of the negociations which had led up to their establishment, it seemed more than probable that the old and wretchedly insufficient system of merchant-consuls was about to be restored. Two communications from the Japanese Government requesting that the matter should be reconsidered were answered by the Government at Lisbon to the effect that the request of japan should receive proper consideration ; but on the 23rd of March, the day following the date of the last despatch, a further despatch was sent to the Portuguese Consul-General confirming the suppression of his office, and ordering him to leave Tokyo. A telegram was sent to Lisbon declaring that if the suppression of the office were persisted in it would be viewed by the Japanese Government as an abrogation of the exterritorial privileges which had been granted to Portugal under the Treaty. On June 14th, after the departure of the Consul-General, a second telegram was sent to Lisbon giving notice that Japan would resume her jurisdiction if no action was taken by Portugal by July ist. Portugal replied that an answer would be given in due course. Finally, a fortnight's grace having been allowed, his Majesty the Emperor terminated an incident for which, as I think, diplomatic language provides no term, and issued an ordinance declaring that the privilege of exterritoriality for Portuguese subjects had ceased to exist, and that thenceforward they would come under Japanese jurisdiction.
Was Japan justified ? The answer to this question is to be found in Lord Aberdeen's memorandum for the guidance of her Majesty's Consular servants in the Levant with reference to the exercise of jurisdiction under the Order in Council of June 19, 1844. The instructions were issued by the Foreign Office on July 2nd of that year. After emphasizing the fact that the right to exercise the Queen's foreign jurisdiction depends on the concession from the Sovereign with whom the Treaty has been entered into, and that their exercise is strictly limited to the terms in which the
concession is made: and that to make the system effective reliance must evidently be put in the community placed under it, the Foreign Secretary proceeds, “For if Her Majesty's Government are obliged to abandon any attempt to place British jurisdiction in Turkey on a sound footing, the Porte may reasonably require that a jurisdiction shall be renounced which is not enforced, but the nominal existence of which is incompatible with the security of society at large.” There appears to me to be no room to question the soundness of the principle, nor of its application to the state of affairs into which the Portugal question had been allowed to drift.
The question is not inserted in this consideration of the Constitution merely by way of parenthesis : it is intimately connected with it, as indeed is the whole subject of the exterritorial Treaties. Without entering on the muchdebated ground of the Revision of the Treaties, I confess that there are difficulties in the way of Consular Jurisdiction subsisting constitutionally in a country which is governed under a Constitution. It may be answered that if this proposition be true any Eastern country could get rid of its fetters by promulgating a Constitution. It may be that this is so: but then Constitutions are not promulgated every day. The administration of law in the name of the Emperor is not the least of the difficulties. And in the same way, to any scheme of revision which included foreign judges the Constitution interposed the insuperable objection that, under the 19th Article, the right to civil and military offices is vested in Japanese subjects, and in them alone. But where, as in the case of Portugal, the duty of administering justice which exterritorial privileges impose upon a foreign State is not attended to, and has been suffered to lapse, the right of Japanese subjects to the protection of the law is immediately infringed, and the Sovereign is in duty bound to put matters once more on a satisfactory footing. The administration of the law, according to the law, has a double aspect : it affects both those who break the duties which the law imposes on them, and those whose rights are granted and protected by it. Under the peculiar system of exterritoriality, in cases where foreigners and Japanese are concerned, and the Japanese is the plaintiff or the prosecutor, his rights are determined not by the law of Japan at all but by the law of the defendant's country. It is a juristic anomaly, but it is one which must be ruthlessly swept away directly the machinery for putting this alien law into force has grown rusty, or falls so out of repair that it will not work. The duties which the King of Portugal had undertaken towards Japanese subjects were not performed : the duty of the Emperor of Japan arose at once to restore his subjects to the protection of their own law in all their dealings with, or grievances against, Portuguese subjects residing in Japan. If I may venture on a prophecy, I do not think that the Portuguese subjects in Japan will come to any harm, or have any cause to regret the consequences of the inaction of their own Government.
It has been rumoured that, since the Imperial decree, an attempt has been made to get Japan to consent to a revival of the extinct privileges of Portuguese subjects, the jurisdiction being exercised by the representative of the French Republic. Japan has refused ; and the homely proverbs which indicate so truly the course usually adopted by human beings after the first bite and the first burn, apply for once to higher matters, and amply justify the course which Japan has adopted.
(To be continued.)