No. 294.
Mr. Hubbard to Mr. Bayard.

No. 235.]

Sir: The extradition treaty concluded between the United States and Japan having now been duly ratified, and the said ratifications exchanged, it may not be uninteresting to note the effect the ratification of said treaty has made on the Japanese mind. To this end I herewith [Page 565] inclose two editorial articles which appeared in the Japan Daily Mail of the 3d of September and the 11th of October, respectively.

Though the editor of this journal is an Englishman he does not hesitate to differ from the contention of his own Government. These articles interpret at least the Japanese sentiment of gratification at the conclusion and ratification of this extradition treaty.

I have, &c.,

[Inclosure 1 in No. 235.—Extract from Japan Mail of September 3, 1886.]

The conclusion and ratification of an extradition treaty between the United States and Japan still further accentuates the anomalies of extraterritoriality, as certain powers interpret the term. Great Britain, on the grounds that extradition having ceased, with her, to be purely a function of the executive and become a judicial act, and that by treaty she has acquired the privilege of performing all judicial acts as regards her own subjects in Japan, claims that she is entitled to pursue and arrest within Japanese territory Englishmen flying thither to escape the consequences of crimes committed elsewhere. The contention is intelligible enough, but scarcely, as we think, tenable, since, if pushed to its logical consequence, it means that each of the treaty powers is competent, by independent legislation, to extend extraterritorial privileges as much as it pleases, without any regard for the treaty which confers those privileges. At all events, we have now an emphatic declaration from the Government of the United States that, in matters relating to extradition, the treaties have nowise altered Japan’s status as an independent empire.

* * * * * * *

President Cleveland’s announcement that one reason for the conclusion of the extradition treaty is “because of the support which it will give Japan in her efforts toward judicial authority and complete sovereignty” seems worthy of the liberal attitude which the United States have always adopted toward this country. It may be said that this treaty, accompanied by such an announcement, is the second practical evidence which the United States have given of their good will. Of professions there has not been any stint, but, with the exception of the restoration of the Shimonoseki indemnity, nothing tangible had been done until now. Henceforth there will be less justice on their side who claim that America’s friendship has hitherto been vox et praterea nihil.

[Inclosure 2, in No. 235,—Extract from Japan Mail of Ootober 11, 1886.]

extradition treaty between japan and the united states of america.

We publish to-day the text of the extradition treaty just concluded between Japan and the United States of America. The original treaty was in English, with the exception of His Majesty the Emperor’s ratification, our translation of which is authorized. The negotiation and conclusion of this treaty have been marked by a degree of expedition which is not usual in diplomatic proceedings. The subject of a new extradition treaty between Great Britain and America had been under discussion for nine years, when the present representative of the United States in London brought his legal abilities to bear on the question; yet the treaty is still res infecta. The idea of this Japanese treaty, on the other hand, was conceived last December. It was concluded the 29th of April; ratified the 25th of September, and the ratifications were exchanged the 27th day of the latter month. The whole transaction occupied barely nine months.

The circumstance which led immediately to negotiations for a treaty of extradition between Japan and the United States was the flight to the former country last fall of a citizen of the latter charged with forgery and embezzlement. We need not dwell upon the details of that event, as they are still fresh in the memory of the public. It will be sufficient to say that, in the interests of justice and for the sake of comity, Japan entertained the request of the United States, caused the fugitive, Calvin Pratt, to be arrested, and handed him over to officials delegated by the authorities of the State of California to receive him. It was explicitly stipulated by the Japanese Government at the time that this unusual exercise of executive power was not to be construed as a precedent, and the United States Government, recognizing the inconvenience [Page 566] of leaving the question of extradition in such an indeterminate form, fell in with Japan’s suggestion, and proceeded to negotiate the treaty of which the ratifications have now been happily exchanged.

The affair derives its chief interest from its bearing upon that much discussed and constantly misinterpreted subject, extraterritorial jurisdiction. By treaties concluded twenty-eight years ago, Japan temporarily surrendered to foreign consular courts a portion of her jurisdiction. The unique purpose and pretext of this measure were to exempt the persons and properties of foreigners residing or traveling in Japan from the then cruel processes of Japanese law. That, indeed, according to the unanimous verdict of eminent jurists, is the sole ralson d’être of extraterritorial jurisdiction wherever it has been claimed and permitted. Now, it is manifest that only foreigners who violate the provisions of Japanese law can be exposed to the risks of its processes. Therefore, the intention of extraterritorial jurisdiction cannot concern foreigners who may fly to Japan to escape the consequences of crimes committed beyond her borders in violation of the laws of a foreign state. Such fugitives could not, under any circumstances, be properly tried and punished by her courts, and therefore, she could never have renounced by treaty the power to try and punish them. In a word she did not, and could not, surrender to foreign consular courts any functions not exercised by her own territorial courts. Such a function is the duty of arresting and extraditing persons fleeing from foreign justice. The power to make these arrests and surrenders belongs primarily to the executive, and in Japan is still retained entirely by the executive; although in some other countries—notably Great Britain—it has been partially delegated to the judiciary. Thus, the treaties of 1858 did not in any way affect the question of extradition, and assuredly the purely judicial concessions which they contained could not confer upon their foreign signatories executive power to override Japan’s sovereign right of asylum. For the great majority of those signatories the question possessed no practical importance. But England was obliged to consider it, owing to the proximity of her territories and the corresponding probability that fugitives from her justice might escape to Japanese soil. She settled the matter very simply by assuming that under the treaties she had acquired the power to pursue and arrest her fugitive subjects within Japanese territory. The assumption was eminently practical, and from England’s point of view not wholly illogical. She held that for all judicial purposes Japanese soil is as British soil; with her processes of extradition are in great part judicial processes; therefore the power to follow and seize her fugitive subjects within Japanese borders was included, she claimed, among the judicial functions delegated to her by the treaties. The contention will not bear examination, for in the first place, apart from the reasons we have already stated, if England acquired any such power under the treaties of 1858, she must also have incurred the obligation to surrender Japanese subjects flying to her territories to escape the consequence of crimes committed in Japan against Japanese laws. But she neither acknowledges nor could legally acknowledge any such obligation. And in the second place she explicitly denied in 1849 that the capitulations in Turkey, which confer the same immunity from Turkish jurisdiction as that enjoyed by foreigners in Japan, could bear the construction subsequently placed by herself upon the Japanese treaties.

Considering, then, the attitude assumed and maintained by Great Britain in this matter, there is much interest in the fact that the United States of America have taken up a wholly different position. Attempts will doubtless be made to construe this into another evidence of America’s friendly disposition to Japan, and of her readiness to separate herself from the league of powers by which this Empire has been held in virtual subjection for so many years. We should be the last to withhold from the United States any portion of the credit justly deserved by their kindly and liberal demeanor towards Japan. Happily, too, the time has come when no contrast that may be drawn between the practical good-will of any one of the treaty powers and that of Great Britain can be to the latter’s disadvantage. But in this particular case we would remind Japanese critics that England and the United States were differently circumstanced. The territorial laws of the former lent themselves to an interpretation of the treaties which could not have been accepted by the latter with, any show of propriety. Had not this vital difference existed, it is probable that the United States would not have left themselves the opportunity which has now matured to their own credit and to the satisfaction of Japan.

With regard to the terms of the extradition treaty itself, it will be observed that the list of crimes is sufficiently full, but that, owing in part to the amendments proposed in Washington, it does not include any offenses which would be beneath the dignity of an international compact, or which, owing to their different definitions and degree under different statutes, might not be readily capable of general interpretation. The thirteenth clause of Article II will be read with special interest. It might, perhaps, have been improved by the insertion of the words “or other property” “after the words “or other buildings.” But as it stands it is a sufficient protection against the outrages of that increasing class of scoundrels who pervert the discoveries of [Page 567] science into instruments of savage crime. This, in effect, is the clause whose insertion in the new extradition treaty between Great Britain and the United States is so much desired by the former. Thus Japan’s first extradition treaty has also the honor of being the first to contain a condition clearly necessitated by the state of modern society, but hitherto rejected by international prejudice.

In some other respects the treaty exhibits an enlightened view of international law. In previous treaties it has generally been the custom to provide that a fugitive belonging to the country in which the demand of extradition is made shall not be given up. The effect of this provision is to favor escape from justice. A nation does not try its own subjects for foreign crimes. Thus, while a domiciled person suffers for his offenses, and while a traveler is amenable to the laws of the land through which he passes, the criminal who flies to his own country is beyond the reach of justice. The treaty now before us does not promise immunity to such fugitives, but makes their surrender discretionary. Again, the common stipulation that if the person demanded has committed crimes in the state where he is arrested, the latter’s claim of justice against him shall be first satisfied, is here modified by the proviso that the delay incident to the satisfaction of such claim “shall not prevent ultimate extradition.” Well worthy of notice, too, is the last clause of Article V. It is there provided that “the fugitive shall be surrendered only on such evidence of criminality as, according to the laws of the place where he is found, would justify his apprehension and commitment for trial if the crime had been there committed.” This, though not an unusual stipulation, is significant as a recognition by a great Western power of the condition and comprehensiveness of Japanese criminal codes. We heartily congratulate Japan upon the conclusion of this treaty, and we venture to hope that its success may be an omen of the result which awaits her in the far larger and more important treaty problem now inviting solution.