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A History of the Japanese People by F. Brinkley

Be required to adjudicate magisterially


Thus

commenced negotiations which lasted five and a half months. Japan gradually reduced her demands to a minimum. Russia never made any appreciable reduction of hers. She refused to listen to Japan for one moment about Manchuria. Eight years previously, Japan had been in military possession of the littoral of Manchuria when Russia, with the assistance of Germany and France, had expelled her for reasons which concerned Japan much more than they concerned any of these three powers. Now, Russia had the assurance to declare that none of these things concerned Japan at all. The utmost she would admit was Japan's partial right to be heard about Korea. At the same time, she herself commenced a series of aggressions in northern Korea. That was not all. While she studiously deferred her answers to Japan's proposals, and while she protracted the negotiations to an extent visibly contemptuous, she hastened to make substantial additions to her fleet and her army in far-eastern Asia. It was impossible to mistake her purpose. She intended to yield nothing, but to prepare such a parade of force that her obduracy would command submission. The only alternatives for Japan were war or permanent effacement in Asia. She chose war.

EXTRATERRITORIAL JURISDICTION

Before passing to the story of this war, it is necessary to refer to two incidents of Japan's foreign relations, both of which preceded her struggle with Russia. The first was

the restoration of her judicial autonomy. It has always been regarded as axiomatic that the subjects or citizens of Western countries, when they travel or reside in Oriental territories, should be exempted from the penalties and processes of the latter's criminal laws. In other words, there is reserved to a Christian the privilege, when within the territories of a pagan State, of being tried for penal offences by Christian judges. In civil cases the jurisdiction is divided, the question at issue being adjudicated by a tribunal of the defendant's nationality; but in criminal cases jurisdiction is wholly reserved. Therefore powers making treaties with Oriental nations establish within the latter's borders consular courts which exercise what is called "extraterritorial jurisdiction." This system was, of course, pursued in Japan's case. It involved the confinement of the foreign residents to settlements grouped around the sites of their consular courts; for it would plainly have been imprudent that such residents should have free access to provincial districts remote from the only tribunals competent to control them.

This provision, though inserted without difficulty in the early treaties with Japan, provoked much indignation among the conservative statesmen in Kyoto. Accordingly, no sooner had the Meiji Restoration been effected than an embassy was despatched to the Occident to negotiate for a revision of the treaties so as to remove the clause about consular jurisdiction, and to restore the customs tariff to the figure at which it had stood prior to Sir Harry Parkes' naval demonstration at Hyogo. The Japanese Government was entitled to raise this question in 1871, for the treaties were textually subject to revision in that year. No time was lost in despatching the embassy. But its failure was a foregone conclusion. The conditions originally necessitating extraterritorial jurisdiction had not, by 1871 undergone any change justifying its abolition. It is not to be denied, on the other hand, that the consular courts themselves invited criticism. Some of the great Western powers had organized competent tribunals with expert judicial officials, but others, whose trade with Japan was comparatively insignificant, were content to entrust consular duties to merchants, who not only lacked legal training but were also themselves engaged in the commercial transactions upon which they might, at any moment, be required to adjudicate magisterially.


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