class="pginternal" tag="{http://www.w3.org/1999/xhtml}a">JEFFERSONVILLE

JAPAN, [Continued from volume XV slice II.]

After the abolition of the shōgunate and the resumption of administrative functions by the Throne, one of the first acts of the newly organized government was to invite the foreign representatives to Kiōto, where they Japan’s Claim for Judicial Autonomy. had audience of the mikado. Subsequently a decree was issued, announcing the emperor’s resolve to establish amicable relations with foreign countries, and “declaring that any Japanese subject thereafter guilty of violent behaviour towards a foreigner would not only act in opposition to the Imperial command, but would also be guilty of impairing the dignity and good faith of the nation in the eyes of the powers with which his majesty had pledged himself to maintain friendship.” From that time the relations between Japan and foreign states grew yearly more amicable; the nation adopted the products of Western civilization with notable thoroughness, and the provisions of the treaties were carefully observed. Those treaties, however, presented one feature which very soon became exceedingly irksome to Japan. They exempted foreigners residing within her borders from the operation of her criminal laws, and secured to them the privilege of being arraigned solely before tribunals of their own nationality. That system had always been considered necessary where the subjects of Christian states visited or sojourned in non-Christian countries, and, for the purpose of giving effect to it, consular courts were established. This necessitated the confinement of foreign residents to settlements in the neighbourhood of the consular courts, since it would have been imprudent to allow foreigners to have free access to districts remote from the only tribunals competent to control them. The Japanese raised no objection to the embodiment of this system in the treaties. They recognized its necessity and even its expediency, for if, on the one hand, it infringed their country’s sovereign rights, on the other, it prevented complications which must have ensued had they been entrusted with jurisdiction which they were not prepared to discharge satisfactorily. But the consular courts were not free from defects. A few of the powers organized competent tribunals presided over by judicial experts, but a majority of the treaty states, not having sufficiently large interests at stake, were content to delegate consular duties to merchants, not only deficient in legal training, but also themselves engaged in the very commercial transactions upon which they might at any moment be required to adjudicate in a magisterial capacity. In any circumstances the dual functions of consul and judge could not be discharged without anomaly by the same official, for he was obliged to act as advocate in the preliminary stages of complications about which, in his position as judge, he might ultimately have to deliver an impartial verdict. In practice, however, the system worked with tolerable smoothness, and might have remained long in force had not the patriotism of the Japanese rebelled bitterly against the implication that their country was unfit to exercise one of the fundamental attributes of every sovereign state, judicial autonomy. From the very outset they spared no effort to qualify for the recovery of this attribute. Revision of the country’s laws and reorganization of its law courts would necessarily have been an essential feature of the general reforms suggested by contact with the Occident, but the question of consular jurisdiction certainly constituted a special incentive. Expert assistance was obtained from France and Germany; the best features of European jurisprudence were adapted to the conditions and usages of Japan; the law courts were remodelled, and steps were taken to educate a competent judiciary. In criminal law the example of France was chiefly followed; in commercial law that of Germany; and in civil law that of the Occident generally, with due regard to the customs of the country. The jury system was not adopted, collegiate courts being regarded as more conducive to justice, and the order of procedure went from tribunals of first instance to appeal courts and finally to the court of cassation. Schools of law were quickly opened, and a well-equipped bar soon came into existence. Twelve years after the inception of these great works, Japan made formal application for revision of the treaties on the basis of abolishing consular jurisdiction. She had asked for revision in 1871, sending to Europe and America an important embassy to raise the question. But at that time the conditions originally calling for consular jurisdiction had not undergone any change such as would have justified its abolition, and the Japanese government, though very anxious to recover tariff autonomy as well as judicial, shrank from separating the two questions, lest by prematurely solving one the solution of the other might be unduly deferred. Thus the embassy failed, and though the problem attracted great academical interest from the first, it did not re-enter the field of practical politics until 1883. The negotiations were long protracted. Never previously had an Oriental state received at the hands of the Occident recognition such as that now demanded by Japan, and the West naturally felt deep reluctance to try a wholly novel experiment. The United States had set a generous example by concluding a new treaty (1878) on the lines desired by Japan. But its operation was conditional on a similar act of compliance by the other treaty powers. Ill-informed European publicists ridiculed the Washington statesmen’s attitude on this occasion, claiming that what had been given with one hand was taken back with the other. The truth is that the conditional provision was inserted at the request of Japan herself, who appreciated her own unpreparedness for the concession. From 1883, however, she was ready to accept full responsibility, and she therefore asked that all foreigners within her borders should thenceforth be subject to her laws and judiciable by her law-courts, supplementing her application by promising that its favourable reception should be followed by the complete opening of the country and the removal of all restrictions hitherto imposed on foreign trade, travel and residence in her realm. “From the first it had been the habit of Occidental peoples to upbraid Japan on account of the barriers opposed by her to full and free foreign intercourse, and she was now able to claim that these barriers were no longer maintained by her desire, but that they existed because of a system which theoretically proclaimed her unfitness for free association with Western nations, and practically made it