423.
Mr. Fish to
Mr. Bingham.
Washington , February 23, 1874.
Sir: I have received your No. 43, inclosing a copy of Consul Hawes’ dispatch informing you of the trial and conviction of an American, who had passed the limit within which Americans are by treaty allowed to reside, and had been arrested and returned by the Japanese authorities for trial.
The question being now brought to the consideration of the Department, an opportunity is offered for the expression of an opinion upon the right of entertaining jurisdiction in such cases, as well as upon the policy of doing so.
The treaties of the United States define the limits within which their citizens may reside within the empire of Japan. Beyond those limits they lose the protection of the municipal laws of the United States, and become subject to Japanese laws and to the rules of international law. It is understood that Japanese laws forbid foreigners to go beyond treaty-limits without special permits; and ho canon of international law would interfere with such a mild enforcement of these laws as appears to have been made in this case.
I gather from the meager account which Consul Hawes gives of the arrest and return of the offender that the Japanese authorities exercised no jurisdiction over the person of the offender except to arrest him in his violation of law, and to return him to the consul for punishment. This they evidently did under the provisions of the sixth article of the treaty of 1858, by which we have agreed that “Americans committing offenses against Japanese shall be tried in American consular courts, and, when guilty, shall be punished according to American law.”
When this offender was delivered to the principal officer of an American consular court, it became the duty of that officer to try him, and, if he should be found guilty, to punish him according to Amer can law. It is the opinion of this Department that good faith called upon the consul to endeavor to do so.
Whether the existing laws warranted the conviction and punishment, is a legal question, upon which I can only express the views of the Department without assuming to instruct judicial officers in the performance of their duty as judges.
A treaty of the United States, duly concluded, is the supreme law of the land.
The treaty in question confers upon American consular courts jurisdiction over offenses against Japanese.
The statute of 1860 (§ 7) authorizes a consul to arraign and try citizens of the United States charged with committing “an offense against law” in Japan, and upon conviction to sentence him to fine or imprisonment.
The same statute (§§ 4, 5) authorizes the minister of the United States in Japan to make regulations for the due execution of these powers.
Mr. De Long, the late minister, made such regulations, in which, among other things, it is provided that misdemeanors at the common law are to be punished by fine or imprisonment, or both. A misdemeanor is defined to be an “offense inferior to felony, punishable by indictment or by particular prescribed proceedings. In its usual acceptation [Page 669] it is applied to all those crimes and offenses for which the law has not provided a particular name.”—(Bouvier, Law Dict.)
In the opinion of this Department the offense in question, if proved, was a misdemeanor, and was punishable as such under the “regulations” prescribed by Mr. De Long.
The American policy in Japan has been the strict observance of our treaty obligations towards that power as a ground for insisting upon a similar observance towards us. Good policy, therefore, as well as good faith call upon us to maintain the consular jurisdiction over such cases as are presented by Mr. Hawes’s dispatch, unless we violate well-settled principles of law by doing so.
I am, &c.,