Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873

No. 253.
Mr. Fish to Mr. De Long.

[Extract.]

Department of State,
Washington, February 26, 1873.

No. 176.]

Sir: I have received your No. 341, with an account of the proceedings in the consular court of Yokohama against Mr. E. Peshine Smith, for failing to comply with a consular court regulation which requires citizens of the United States to enroll their names at the consulate. * * * * * *

The authority of a minister in an Oriental country to make regulations having the force of law within the country to which he is accredited is derived from the act of 1860, entitled “An act to carry into effect provisions of the treaties between the United States, China, Japan, Siam, Persia, and other countries, giving certain judicial powers to ministers and consuls, or other functionaries of the United States in those countries, and for other purposes.”

The first twenty-eight sections (except the twenty-first) relate to the treaties referred to in the title; the remainder of the act refers to the “other purposes.” Sections one, four, and five, therefore, relate exclusively to the subject of carrying into effect treaty provisions conferring judicial powers on ministers.

The first section provides that—

“To carry into full effect the provisions of the treaties, &c., * * the ministers and the consuls of the United States duly appointed to reside in each of the said countries shall, in addition to other powers and duties imposed upon them, respectively, by the provisions of such treaty, respectively, be invested with the judicial authority herein described.”

The fourth section defines how those powers are to be exercised, namely, in conformity with the laws of the United States, “but in all cases where such laws are not adapted to the object,” (i. e., the exercise of such judicial powers,) “or are deficient in the provisions necessary to furnish suitable remedies, the common law, including equity and admiralty, shall be extended in like manner over such citizens and others in the said countries; and if defects still remain to be supplied, and neither the common law, including equity and admiralty, nor the statutes of the United States furnish appropriate and suitable remedies, the ministers in the said countries respectively shall, by decrees and regulations, which shall have the force of law, supply such defect and deficiencies.”

The fifth section provides that, “in order to organize and to carry into effect the system of jurisprudence demanded by such treaties, respectively, the said ministers, with the advice of the several consuls in each of the said countries, respectively, or so many of them as can be conveniently assembled, shall prescribe the forms of all processes which shall be issued by any of said consuls, * * * and make all such decrees and regulations, from time to time, as the exigencies may demand; and all such regulations, decrees, and orders shall be plainly drawn up in writing and submitted, as above provided, for the advice of the consuls, or as many of them as can be consulted without prejudicial delay or inconvenience, who shall each signify his assent or dissent in writing, with his name subscribed thereto; and after taking such advice and considering the same, the minister in the said countries, respectively, may, nevertheless, by causing the decree, order, or regulation to be published, with his signature thereto and the opinions of his advisers inscribed thereon, make it to become binding and obligatory until annulled or modified by Congress.”

The regulations in question purport to have been issued under this authority.

It is the opinion of the Department that this statute confers upon the minister in Japan no authority to make a regulation requiring citizens of the United States to register their names, and no power to enforce such a regulation judicially.

The authority conferred by the act is defined in the first section to be a “judicial” authority. By the fourth section the minister is required to execute that power in conformity with the laws of the United States, with authority to vary from those laws in two cases only:

1. Where those laws are not adapted to the exercise of the judicial authority conferred by section one.

2. Where they are deficient in the provisions to furnish suitable remedies. In each of these contingencies the minister has authority to make regulations in order “to furnish suitable and appropriate remedies,” and for no other purpose whatever.

The fifth section is still more explicit on this point. Every power named in this section is recited to be conferred upon the minister “in-order to organize and carry into effect a system of jurisprudence.”

The regulation in question is not made in the exercise of a “judicial authority;” it is not made in the exercise of the jurisdiction in criminal and civil matter “conferred by the treaty;” it furnishes no “suitable remedies” to citizens of the United States; it is not incidental to the organizing and carrying into effect of a system of “jurisprudence;” it is in no sense an exercise of the powers conferred upon you as a minister in Japan by the law of 1860; it is, in every just sense, legislative in its character, imposing upon the citizens of the United States in Japan duties which are not imposed upon them by law, and affecting their rights and their liberties to a corresponding extent.

* * * * * * *

You are instructed to inform Consul Shepard and the other consuls of the United States in Japan, respectively, of this decision of the Department.

I am, &c.,

Hamilton Fish.