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.
[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.
