No. 421.
Mr. Bingham to Mr. Fish.

No. 46.]

Sir: On the 20th ultimo, Mr. Terashima Munenori, minister for foreign affairs, addressed a letter with inclosed memorandum (inclosures 1 and 2) to Sir Harry S. Parkes, who forwarded the same to me.

A perusal of the memorandum discloses the fact that the minister has pronounced only against the joint regulations proposed as the basis of treaty revision by my predecessor and others in September last, as appears by the following words in the closing paragraph of his memorandum: “We believe that the regulations recently proposed * * * are not satisfactory; neither do they give sufficient guarantees against the abuses and inconveniences herein signalized.”

* * * * * * *

It is worthy of note that the foreign minister desires that some understanding may be had by which the independence of Japan can be maintained, while “effectual protection is secured to the foreign residents.” He says in the last paragraph of his memorandum, “We are disposed and ready to entertain and discuss with you any such proposals.”

You will notice that on the ninth page of his memorandum Mr. Terashima refers to the fact that it is the “opinion of some” that foreigners admitted to travel and trade should be considered to submit themselves to the obedience and observation of Japanese law, and that, on pages seven and eight, he says that the foreigner admitted to travel and trade would have the right to build houses and to lease lands in all parts of the country. With reference to this, Mr. Terashima complains manifestly in relation to the regulations proposed that “the foreigner would not be called on to observe either the laws and regulations of our (the Japanese) government nor yet to pay other taxes than those specified in the treaties.” I have only to observe that I deem it possible at least to satisfy the government of Japan that it is well to admit, under proper restrictions and treaty guarantees, such foreigners as may come accredited, to trade, travel, lease and occupy lands, &c., subject, for every violation of the laws and regulations of Japan, to answer, as I have before said, to the tribunals of their countries in Japan, and to the penalties prescribed by the laws of their respective countries or by the common law.

I am, &c.,

[Inclosure 1 in No. 46.—Translation.]

Mr. Terashima to Sir Marry S. Parkes.

To Sir Harry S. Parkes, K. C. B.:

With reference to the representations which for some time past yon, along with your colleagues, the ministers of France, America, Italy, Germany, and Russia, have made with respect to the question of traveling in the interior of Japan, I have now to inform you that we have now investigated the precedents offered by other countries, and forward to you the accompanying memorandum, together with the precedents connected with it.

When you have perused them, I shall he glad if you will make arrangements to send them round to your colleagues, and afterwards to have them returned to me.

When you have fully considered the arguments of this memorandum, it will be time to fix a day for an interview in order to discuss the question.

I am, &c.,

[Page 663]
[Inclosure 2 in No. 46.—Translation.]

Memorandum of Mr. Terashima.

Our government, recognizing the importance of deciding whether foreign residents of this country shall or shall not have granted to them the right of freely traveling and trading in the interior of Japan, finds much difficulty-to arrive at a proper solution of the question. Many of the foreign diplomatic representatives have at sundry times expressed their views on this grave subject.

Taking into consideration the present state of affairs in this country, and events that have occurred in other states, it seems to us that to allow foreigners to travel in its interior with exterritorial rights would prove injurious to the government of any country.

By the law of nations in free and independent states, this right is never conceded to foreigners. Neither in Europe nor in America, where its baneful nature is well understood, do we see any country granting this right to foreigners. This matter is, indeed, one which requires most serious deliberation.

We shall refer to what has taken place in certain eastern nations, and add that there are foreign writers who are fully convinced of the injury resulting from the granting to foreigners the right of exterritoriality.

Among others, Sir Rutherford Alcock, long Her Britannic Majesty’s envoy extraordinary and minister plenipotentiary to this government, in his official report to his government while he was in China and after he had left this country, states that foreigners desiring to travel and trade in the interior of China should, of necessity, observe its local laws and regulations; it would be neither injustice nor equity for them to travel and trade without the concession of their right of exterritoriality. He adds that it is only upon conquered nations that such unequal and incompatible conditions could be imposed, but can never be the result of negotiations. Inclosure marked A is an extract from his official report expressing fully his opinion on this subject. As has been already said, it is the universal usage, both in Europe and America, that foreigners resident or traveling through a territory should obey the local laws and regulations of that territory, and whoever disobeys these laws shall be tried (embassadors, ministers-resident, &c., excepted) before the local tribunals and dealt with precisely as a native would be. It is needless to say more on this branch of the subject.

On the other hand, Europeans and Americans sojourning in eastern countries claim protection for themselves and their property through their own native laws, and do not subject themselves to territorial jurisdiction. From this arises that when, on the hearing of a case between him and a native, a foreigner is found guilty, he shields himself behind the special authority and protection of his consul, and is sometimes exempted from punishment. This is an instance of an arbitrary exercise of a foreigner’s right to ex-territoriality. By granting to foreigners this right of exterritoriality Turkey and Egypt have in various ways suffered much injury. The administration of their government has been greatly clogged and their customs-revenues reduced. However, concession was made at a time when their condition necessitated it. It seems also to be the result of want of careful deliberation and foresight on the part of the negotiators who yielded.

It is quite clear that from inclosures B and C the placing of foreigners outside of the pale of territorial jurisdiction would prove injurious to our government. The former is an extract from “Principes Généraux du Droit Public et Administratif,” by Pradier Fodéré a French author, and also an extract from “Revue du Droit International,” published in Paris in 1870. The latter (C) is an extract from “Social Science,” by Mr. Carey, one of the most distinguished American writers.

To grant to foreigners the right to travel and trade in the interior would naturally lead to a prolonged stay there, and this again to the demand to possess and hold real estate, for the reason that the right to build houses, to lease and rent land, should accompany the permission to foreigners to travel and trade in all parts of this country. Under such circumstances, one party, a Japanese, must in all particulars faithfully observe all the laws and regulations issued by this government, rules regarding taxation, &c., whereas another, a foreigner, could not be called on to observe either the laws and regulations of our government, nor yet could he be liable to pay other taxes than those specified in the treaties. This would seem to demonstrate that there would be two distinct classes of people in one nation, that of natives, who must obey all the laws and orders of government, and that of foreigners, who would not be amenable to any of our laws and regulations, but merely answerable to those of a foreign government. How, then, can the independence of the nation and protection of our own people be secured? The opinion of some is that when a foreigner is permitted to travel in the interior, it should be considered, as a matter of course, that he submits himself to the obedience and observation of the laws and regulations of the districts through which he may pass, and that he who should violate the law should be arrested and handed over to the consul of his country at the nearest open port for trial and punishment according to the law, as stated in the treaty. From this, although a foreigner is to be subjected [Page 664] to our laws, yet he must he tried and punished by his consul; he is, consequently, to all intents and purposes, by no means under our laws. For on handing over to a consul a foreigner charged with an offense, and on calling on the consul to execute equitable justice upon the offender, and to inflict condign punishment upon him, to this demand the consul might reply that the offense alleged was not punishable according to the laws of his country. Further yet, notwithstanding that the offender was punishable according to the laws of his country, yet there might exist between the penalty required by our law and the one required by his, a vast difference. We have no doubt but that, and trust that the foreign consul will make a fair and equitable decision upon every case, as indeed he would be in duty bound to do. However, as the law and the infliction of punishment ever rest in the hands of the judge, we cannot affirm that it would never be so; a biased judgment might sometimes be rendered, as in the instance mentioned in inclosure B.

We see many difficulties surrounding us, such as the above-stated ones, and should we grant to foreigners the right to travel and trade in all parts of the interior, accompanied with that of exterritoriality, there indubitably would be complaints between foreigners and Japanese such as we may be unable to arrange. Diplomatic representatives would say this would be the result of the government’s being unable to adopt the best methods of preserving order and giving protection to people. On the other hand, the subjects of our country would say that either foreigners are not punished at all, although they have been convicted of offenses, or that the punishment meted out to them is not as severe as ours would have been. Has the government, then, no power to protect us?

Under such circumstances how could friendly intercourse and good relations between foreign and the Japanese government be preserved? As is well-known, the solicitous aim of this government is to foster progress in our country by adopting out of the different countries of Europe and America such of their institutions as may be most advantageous for and suitable to the present state of things in our country. We, therefore, earnestly desire that the intercourse between our respective people be as intimate as possible.

It is, however, out of the question for us to dispose of the question of ex-territoriality’s being granted to foreigners going to or trading in the interior of Japan without first carefully investigating it, as otherwise it will be more than certain that we will be led into the same path of error as Turkey and Egypt have been. We would create fresh evils and difficulties for our country which centuries might be unable to eradicate.

Our objections to allowing foreigners not under the immediate control of our jurisdiction to travel in the interior are founded neither upon any ill-feeling toward them, nor upon any lingering sentiment of exclusive policy, as in past times; it is that we only wish, by giving due deliberation to so serious a question as this, and by refraining from precipitancy, to avoid making mistakes. It is needless to remark here that as a general principle a nation possesses absolute right and liberty by virtue of which it is entirely free to decide upon and shape its destiny as circumstances may require. This is fully stated in the inclosure marked E.

If, therefore, we can come to some understanding by which the thorough integrity and independence of our country can be maintained, while effectual protection is secured to the foreign residents of this country, we are disposed and ready to entertain and discuss with you any such proposals as you may be pleased to suggest. We must, however, remark that we believe that the regulations recently proposed by the representatives of the foreign powers is not satisfactory, neither does it give sufficient guarantees against the abuses and inconveniencs herein signalized.