No. 412.
Mr. Bingham to Mr. Fish.

No. 17.]

Sir: I have the honor, in reply to your instruction No. 5, dated the 6th September, 1873, to say that, having examined, as therein requested, the “hunting regulations” referred to, I am of opinion that nothing therein contained, when construed according to the manifest intent thereof conflicts with the privileges secured by treaty to American citizens in Japan. It may not be improper for me to add in support of this opinion that I find nothing in the treaty of 1858 which in anywise denies to Japan the general power to legislate over all persons within her territorial [Page 654] limits by general laws, while article 6 of that treaty does, by necessary implication, in my judgment, declare that the government of Japan may by law define and prohibit offenses within her territorial limits, and that no person resident therein is privileged by any treaty to disregard and violate such general law. It is no answer to this to say that because there are certain privileges secured by treaty to the government and citizens of the United States, Japan may not, therefore, rightfully exercise general legislative power over all persons within her limits in all matters not expressly provided for in the text of the treaty. I am not unmindful, in considering this question, that by the sixth article of the treaty Americans committing offenses against Japanese are to be tried in American consular courts, and, when guilty, punished according to American law: but I submit that it does not result from this that the government of Japan may not by general law define and prohibit all crimes and misdemeanors against person and property within her limits. There is nothing in the “hunting regulations” that I can discover which can be construed to deny to American citizens the right to be tried for any breaches thereof before the American consular courts, and to be punished, upon conviction, according to American law. The penalties prescribed by the regulations can only be held to apply to Japanese subjects, while the prohibitions therein are obligatory upon ail. This seems to me to be their intent, and so I understand they have been uniformly administered. If, however, the manifest intent of these regulations be disregarded in their construction, and the letter alone, so imperfectly expressed, be followed, it might properly be said that articles 18 and 21, and the specific penalties annexed, do conflict with the provisions of the treaty of 1858.

I am, &c.,