The British Courts and Extra-territoriality in Japan, 1859–1899 by Christopher Roberts (review)

From the daily-life view of Japanese mom-and-pop greengrocers seeking payment from a foreign hotel worker and then being beaten down by a mob of foreign onlookers in 1876, extraterritoriality and the system of consular courts constituted nothing more than a thin veneer of civility on a lived experience of injustice.¹ Britain’s informal empire in the treaty ports invited criticism from commentators such as Baba Tatsui and later historians who complained of oppression visited upon Japan at the barrel of a gun—first the cannons on the deck of Commodore Matthew Perry’s Powhatan in 1853 and then the guns that silenced Shimonoseki and Kagoshima (with great loss of civilian life) nearly a decade later.² Scholars of the treaty system and treaty revision have long lamented international agreements that imposed inequality. Historians of domestic law too, such as Wagatsuma Sakae, found that foreign courts projected international imbalances of power onto the domestic scene when “justice yielded to diplomacy.”³

From the imperial view of British expatriates and officials, extraterritoriality brought the civilizing categories of modern law to the feudal Tokugawa. The meticulously researched British Courts and Extra-territoriality in Japan, 1859–1899 uses qualitative and statistical analysis of English-language sources such as consular reports, correspondence with the British Foreign Office, and newspapers to reveal how, over four decades, the British Empire at its furthest reaches adjudicated criminal and civil law for its nationals and tutored Japanese counterparts in the language and logic of naval inquiries and collisions at sea. British Courts and Extra-territoriality in Japan presents a view sharply at odds with the daily-life account of extraterritoriality that has prevailed in Japanese historiography since Meiji times.⁴

Viewed from a longer chronological and a wider geographic lens, 40 years of Japanese extraterritoriality was a small sliver in the more than three-century history of Britain’s global extraterritorial past. Before national sovereignty, personal jurisdiction (jurisdiction following the person) and legal pluralism (multiple legal systems operating concurrently within the same polity) reflected local sensibilities from the Levant to Northeast Asia. A number of recent works have explored how sultans, shoguns, and emperors willingly gave the English crown jurisdiction over English subjects abroad.⁵ As a further reflection of this practice, the Tokugawa codified physical separation of foreigners from Japanese, restricting outsiders to the treaty ports.

Attention to early modern legal orientations has yielded a more sophisticated reading of extraterritoriality under the Tokugawa, yet left more or less intact a narrative of three decades of “semi-imperialism”⁶ that ended in “Japanese emancipation.”⁷ The first direct challenge to the idea that foreign tribunals reproduced the inequalities of extraterritoriality was Richard Chang’s The Justice of the Western Consular Courts in Nineteenth-Century Japan (Greenwood Press, 1984). Using court statistics to transcend argument by anecdote, Roberts takes up Chang’s approach in The British Courts and Extra-territoriality in Japan and decries histories “highlighting the more notorious cases without examining the range of cases heard by the Courts or the Courts’ decisions as a whole” (p. xxiv). To argue that the courts lacked bias, Roberts narrows the terrain of inquiry to sources largely written by Britons. Still, his work creates possibilities for the examination of a range of broader themes, including the expense of empire and extraterritoriality as comparative legal history.

The almost microhistorical foray into the archives in The British Courts and Extra-territoriality in Japan offers rewards. For example, the discerning reader could piece together the picture of an empire fumbling toward hegemony during a period of overreach. The ad hoc nature of early extraterritoriality in Japan shines through: questions of jurisdiction contested across the East China Sea, hearings by candlelight, insufficient jail space, and, initially, ill-trained consular officials. With time, the legal processes became more ordered yet the British courts continued to labor under foreign secretaries and the Crown...