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In 1876 Baba Tatsui, then a young twenty-six year old man who had just completed two years' study of English law in London, published a booklet there called The Treaty Between Japan and England. It was a remarkable work in that it was destined to become the source most frequently cited by many Meiji publicists and later historians who attacked the inequity of the extraterritorial regime in Japan. In this work Baba wrote that it was evidently to the interest of British consuls in Japan “to protect their countrymen rather than to prosecute or convict them,” and that the majority of the English residents in Japan had “strong prejudices against the natives of the country … and … against the native government. …” These facts alone, Baba went on to say, “show that the judges of the consular courts are not impartial, and therefore it is difficult to see how justice can be done in a court of justice where the judges have so much interest for the one and prejudice against the other.” In a similar vein in 1893 the Kaishintō Tōhō, a bi-monthly periodical published by the Kaishintō, commented: “Injustice is the general rule in these [British and American consular] tribunals: justice is rare. Nevertheless, when they render just judgments we applaud their justice, hoping thereby to encourage them in the exercise of that quality.” Thus arose in the late nineteenth century the farreaching generalization that the Western consular tribunals in Japan were so partial—toward Westerners and against Japanese—that they seldom rendered even-handed justice.
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References
1 Baba, Tatui, The Treaty Between Japan and England (London, 1876), p. 7.Google Scholar
2 Trans, in the Japan Weekly Mail, July 15, 1893. (Hereafter cited as JWM).
3 Moritani, HidesuKe, “Jōyaku kaisei,” Iwanami kōza Nihon rekishi, VIII (Tokyo, 1934),Google Scholar 14f; Yamamoto, Shigeru, Jōyaku kaiseishi (Tokyo, 1943), pp.Google Scholar 213f; Inoue, Kiyoshi, Jōyaku kaisei (Tokyo, Iwanami shinsho, 1955) p.Google Scholar 34.
4 My own examination of JWM, National Diet library (NDL), spring 1974.
5 See, for example, Inoue, Jōyaku kaisei, pp. 36–41; Yamamoto, Jōyaku kaiseishi, pp. 205, 208, 214, 216, 515f.
6 Shimbun shuūsei Meiji hennenshi (15 vols., Tokyo,Google Scholar 1936–1941), VIII, 328, 330. (Hereafter cited as Shimbun.)
7 Ibid., IX, 48; Dai Nippon teikoku gikaishi (18 vols., Tokyo,Google Scholar 1926–1930), II, 449f. (Hereafter cited as Gikaishi.)
8 JWM, Dec. 31, 1892; Gikaishi, II, 474; III, 1620.
9 Trans, in JWM, Jan. 28, 1893. For the Japanese text, see Shimbun, VIII, 363.
10 Gikaishi, III, 1644, 1753; JWM, Dec. 31, 1892; Shimbun, VIII, 328; IX, 298; Meiji bunka zcnshū, 3rd ed. (31 vols., Tokyo, 1968),Google Scholar XI, 541 (hereafter cited as MBZ); Nihon gaikō bunsho, XXVIII, part 1 (Tokyo, 1953), 301 (hereafter cited as NGB.)Google Scholar
11 JWM, June 24, 1893.
12 In the 1860's, one by one, the Western consular courts reluctantly moved from Kanagawa, an open port so designated by the treaties, to Yokohama, a small, developing village. But these courts still maintained the fiction that they were situated in Kanagawa, today an integral part of the City of Yokohama.
13 The following is a table of the sitting and the judgment days of the British courts involved and the sources for the trial records utilized in this study.
As a rule, no legal arguments presented in the text are documented, for the following reason. Virtually all of them were repeated in all of the three British courts and on almost every one of the sitting days, except the first court's first sittingday. Therefore, it would amount to an intolerable exercise in footnoting to document these arguments. However, all verbatim quotations from the trial records are documented.
The Japanese translation of the excerpts of the Yokohama and the Shanghai Courts' judgments are available in MBZ, X, 524–540; NCB, XXVI (Tokyo, 1952), 241–257. Also, the judgment of the Privy Council in Japanese translation may be found in NGB, XXVIII, part 1, 307–313. Anyaccount based on these and other Japanese sources only is likely to be incomplete, misleading, and lopsided. See, for example, Inoue, Jōyaku kaisei, pp. 36–38.
The Chishima case dealt with several important legal issues, such as the conflict between treaty and municipal law, claim and counterclaim, jurisdiction, territorial waters, and sovereign immunity. The legal mind may find the examination of these issues in itself quite exciting. In this study, however, they will be touched upon only so far as they impinge upon the line of inquiry set forth.
14 Once a master was held liable for every act of his servant while in his employment, whether within or without the scope of his employment. Today a master is liable only if such acts are committed within the scope of his servant's employment. The scope-of-employment rule became established about 1800. Menon, K. Krishna, Outlines of Jurisprudence, 3rd ed. (Bombay, 1961), p. 197f.Google Scholar
15 Paton, George W. and Derham, David P., A Textbook of Jurisprudence, 4th ed. (Oxford, 1972), PP. 338, 352.Google Scholar Today sovereign immunity is: no longer absolute. The British government, fike the United States government (The Fed. Tort Claims Act, 1946), is liable in tort (Crown Proceedings Act, 1947). Consequently, an intriguing question has been raised: “If the Crown may make itself liable in civil cases, why not in criminal cases?” Ibid., 352L
16 Lawrence, T. J., The Principles of International Law, 7th ed. rev. by Winfield, Percy H. (London, 1925), pp. 233f.Google Scholar
17 See, for example, Law Reports, Appeal Cases, 1895, pp. 625–654.
18 Black's Law Dictionary, rev. 4th ed. (St. Paul, 1968), p. 125.Google Scholar The terms “general appearance” and “special,” expressions explicitly recognized today by the Civil Procedure of the U. S.Federal District Court, were not actually used in the Chishima trials. There the issue was couched in terms of whether submission was general or not.
19 Ibid., p. 520.
20 JWM, Oct. 21, 1893.
21 Ibid., June 24, 1893.
22 Ibid., Nov. 4, 1893.
23 Shimbun, VIII, 485, 487, 494; IX, 48; MBZ, XI, 540–551; Gikaishi, II, 1108.
24 NGB, XXVI, 257–259.
25 Ōkubo, Toshiaki, ed., Seijishi III, III of Taikei Nihonshi sōsho (24 vols., Tokyo, 1965–1970), 275–277;Google ScholarHōchisha, , Chishimakan jiken (Tokyo, 1893) in MBZ, XI, 521–561;Google Scholar Osatake Takeshi, “Chishimakan jiken kaidai,” MBZ, XI, 38–40 (kaidai). (Hereafter cited as Osatake, “Kaidai.”)
26 Osatake, “Kaidai,” p. 39. Concise and comprehensive, the “Kaidai” has been widely utilized by Japanese historians. This may very well continue. Therefore, two small, additional errors should be pointed out. First, the “Kaidai” indicates that the court costs the P & O paid Tokyo were ¥12,076. This amount is probably a printing error; the sum was ¥12,176. Gikaishi, HI, 1753. Second, Osatake states that the Chishima case was the first action ever brought to a foreign court by the Japanese government. This statement is incorrect. In 1879 the government had sued certain Englishmen in a British court in Japan, and had to appear in the Supreme Court at Shanghai as the respondent. Kudō, Takeshige, Teikoku gikai shikō, rev. ed. (Tokyo, 1927), 248f. Moreover, prior to 1893 a good many prefectural governors had brought actions to consular courts on behalf of the central government. My own examination of the law reports of JWM.Google Scholar
27 Hanabusa, Nagamichi, Meiji gaikōshi (Tokyo, 1966), p. 89.Google Scholar
28 See note 25.
29 A-694, “Gunkan Chishima soshō jiken shinsa hōkoku,” Goin Bunko (Inouc Kowashi Papers), Kokugakuin University, Tokyo. The other five Committee members were Tanabe Kaoru, sanjikan, Shihōshō; Yokota Kuniomi, Chief of the Civil and Criminal Bureau, Shihōshō; Kurino Shin'ichirō, Chief of the Political Affairs Bureau, Gaimushō; Kaneko Kentarō, Secretary-General, Kizokuin; and itō Senkichi. Vice-Minister of the Navy.
30 A–694. A–705, A–706, Goin Bunko, Koku-gakuin University.
31 Shimbun, IX, 18; NGB, XXVI, 260.
32 For detaris, sec NGB, XXVUl, part I, 301–306; Katō Takaaki to Mutsu Munemitsu, Sept. 5, 1895, Mutsu Munemitsu Monjo, 68.7, NDL. (Hereafter cited as Mutsu Monjo, 68.7, NDL.)
33 Gikaishi, III, 1619f.
34 NGB, XXVIII, part I, 303.
35 (57 & 58 Vict. c. 60). The eight-pounds-perton provision is in s. 502 (I).
36 Haisbury's Laws of England, 3rd ed. (43 vols., London, 1952–1964), XXXVI, 423–428.Google Scholar
37 The only case wmcn approximated tne type of case mentioned in the pre-1972 period was Bank, of Athens v. Royal Exchange Assurance (193S), 1 JC. B. 771, which decided that a court could award interest on damages under a statute passed after the proceedings had begua. In otherwords, the court held that the measure of interest on damages was a matter of procedure.
38 Dagnall, Wilson v. (1972) 1 Q. B. 509 (C. A.); Kiralfy, A. K. R., The English Legal System, 5th ed. (London, 1973). P. I05.Google Scholar
39 The Ironsides (1962), Lush, 458. See also Halsbury's Laws of England, XXXVI, 427f.
40 Louis, Franck, “Collisions at Sea in Relation to International Maritime Law,” Law Quarterly Review, XII (1896),Google Scholar 26 of; Alfred, Huger, “The Proportional Damage Rule in Collision at Sea,” Cornell Law Quarterly, XIII (1927), 532, 540.Google Scholar
41 Some astute readers may wonder why the Chitshima would have had to pay the Ravenna one half of its damage, $50,000, despite the fact that the Privy Council decided that no counterclaim could be entertained. In its judgment the Privy Council noted that in an 1848 case, where the fact that a plaintiff was a foreigner made it impossible for the British defendant to prosecute a cross action against him, the Admiralty Court of England had withheld the payment of one half of the damage sustained by the plaintiff's ship until he agreed to pay one half of the damage sustained by the other ship. In other words, if this precedent were to be followed, the Chishima would not be allowed to recover $425,000 until the plaintiff agreed to let the Ravenna recover $50,000. One may construe this obiter dictum as meaning that while the highest court was ruling that no counterclaim could be filed, it was simultaneously hinting that the defendant should be able to recover his counterclaim all the same in the event that both were found to be at fault. From this point of view, one should not jump to the conclusion that the Privy Council had rendered an underhanded judgment. Hearing a claim and a counterclaim together is taken for granted today, and this practice had been well established when the Chishitma case was instituted. Moreover, as it has been shown in the early part of this study, the sentiment that complete justice demanded both claims be heard together was strongly argued by the defendant. This feeling was persuasively expressed by the assistant judge of the Shanghai Supreme Court when he stated: “The question is, has the Emperor of Japan any right, as he contends, to ask that his claim be determined wholly without reference to the damage sustained by defendants [the P & O] and that he be at liberty to recover his damages even in the event of both vessels being found to blame, leaving the defendants to the chances of an action in the Japanese Courts against the wrongdoer?” JWM Nov. 14, 1893. One may assume, therefore, that the obiter dictum was intended by the Privy Council to balance the likelihood of injustice which could result from faithful observance of the limits of the treaty. This was an instance of what a lawyer calls equity.
42 Halsbury's Laws of England, XXXV, 77 4f.
43 See note 35.
44 Thanks are due to Tanigaw, Hisashi, a noted Japanese authority on maritime law, of Seikei University, Tokyo,Google Scholar for the kind aid I received in constructing this table in April 1974.
45 NGB, XXVIII, part I, 303. For still another piece of the evidence mentioned, see Mutsu Monjo, 68.7, NDL. At this time, all telegram instructions and dispatches were still sent in English.
46 See note 32.
47 NGB, XXVIII, part I, 305. A copy of this letter was transmitted by London to Tokyo. Ibid., 304–306.
48 The conversion rates used in this study for the yen, the dollar, and the pound are the average rates for 1895, as given in Nihon teikoku dai jūgo tōkei nenkan (Tokyo, 1896), p. 674, as follows: £1 = $4.73; $i = ¥2.01. The only exception is the yen equivalent to the £10,000 compromise, which comes from the Jiji Shimbun, Sept. 21, 1885.Shimbun, IX, 298.Google Scholar
49 See note 10.
50 Gikaishi, III, 1753; Shimbun, IX, 298.
51 NGB, XXVIII, part 1, 304, 3Oif; Mutsu Monjo, 68.7, NDL.
52 Etō Jun, “Umi wa yomigaeru—Yamamoto Gonnohyōe to kaigun,” Bungeishunjū, LII (Oct. 1974). 379f.Google Scholar
53 For examples of this, see Osatake, “Kaidai,” i. 40; Inoue, Jōyaku kaisei, p. 37f.
54 (7 George II c. 15), s. 1. See also William, Hloldsworth, A History of English Law, 7th ed. (16 vols., London, 1956–1966), XI, 448.Google Scholar
55 Sprague, George C., “Divided Damage,” New York. University Law Review, VI (1929), 21; Huger, “The Proportional Damage Rule,” p. 532.Google Scholar