No. 426.
Mr. Bingham to Mr. Fish.

No. 65.]

Sir: I have the honor to inclose for your consideration a communication from the minister of foreign affairs in reply to a letter from ray predecessor of date 15th February, 1873. You will observe that Mr. Terashima concedes that the Japanese commissioners of customs must consult the consuls in relation to regulations which relate only to the removal of inconveniences, but claims that neither the seventh article of the convention of 1866 with the United States, nor the eleventh article of the trade-regulations of the Austro-Hungarian treaty, requires that foreign consuls shall be consulted by the commissioner of customs as to “regulations deemed necessary for the proper management of the custom-house business at treaty-ports in Japan.”

A like letter having been communicated by the minister for foreign affairs to the other foreign ministers, a meeting of the foreign representatives was called to consider it, which I attended. This meeting resulted in the preparation of a joint note addressed to the minister for foreign affairs, a copy of which is herewith inclosed. This note was transmitted to me, by Sir Harry S. Parkes, for my consideration and approval. I declined to give it my approval, for the reasons, among others—

  • First. That it assumes that the two treaty-provisions above referred to take from Japan the right to make any general customs-regulations without the consent and concurrence of the several foreign consuls.
  • Second. That the foreign consuls have a right to determine upon all means and measures for the correction of any abuses and inconveniences that may cause complaint, “relative not only to the landing and shipping of goods, but also to the transaction of business at the customhouse.”
  • Third. That the joint note condemns the notification of the 6th November last, issued by the commissioner of customs at Yokohama, which is as follows: “That after the lapse of ten days no application for the [Page 672] refund of duties overpaid in error can be entertained.” It seems to me that this notification, as it is termed, limiting the time within which application shall be made for the refund of duties overpaid in error, is as clearly within the power of Japan, under the treaty-provisions recited, to ordain without consulting foreign consuls, as it is within the power of Japan, without such consultation, to lay and collect duties upon imports within the express limitations of the treaties. It is clear that no nation can be held to have surrendered its essential power to limit in time the demands upon its own treasury without words expressly and manifestly surrendering such power. It will be observed that Japan has followed very closely our own example in making this limitation of time within which the demand shall be made upon her treasury for the refund of duties overpaid in error.

I have the honor to remark further that, inasmuch as the treaties with Japan are several, it is clearly the right of the United States, through its own consuls, without the consent or co-operation of other foreign consuls, to agree with the governors of the open ports upon such regulations as are authorized by the seventh article of the convention of 1866, and the like right belongs to the Austro-Hungarian power by virtue of the eleventh article of its treaty-regulations. But it does not follow that the Austro-Hungarian treaty in any wise takes away or restricts the right of the consuls of the United States to agree upon their own regulations with the local authorities of the several ports of Japan. The joint note, however, seems to assume that the co-operation of all foreign consuls is necessary for the enforcement of such regulations.

I hear of no special complaints from our consuls on this subject; on the contrary, I am just in receipt of regulations which meet the approval of the United States consul at Hiogo and Osaca, and which he says meet the approval of all the consuls there. It is also well to add that some regulations as to the landing, &c., of goods might answer our purpose at Hiogo and Osaca, which would not be at all acceptable or advisable at Yokohama.

It certainly would be very inconvenient in practice to allow a construction to obtain in Japan to the effect that an American consul could not consent to, and agree upon, regulations, under our own treaty, with the Japanese authorities at any open port, so long as any other foreign consul in Japan chose to disagree. Local co-operation among the foreign consuls at each port for regulations touching the landing of goods, &c. is certainly desirable where it can be obtained; the consuls at each port, however, acting for themselves exclusive of all others.

I respectfully ask your instructions in regard to this matter, and hope that my action may meet your approval.

I am, &c.,

JNO. A. BINGHAM.
[Inclosure 1 in No. 65.—Translation.]

Mr. Terashima to Mr. Bingham.

Your, Excellency: Your excellency’s predecessor communicated to his excellency Soyeshima Taneomi, late minister for foreign affairs, a dispatch, hearing date the 15th February of last year, stating that the action of the chief commissioner of customs in framing and issuing regulations without having previously consulted with the foreign consuls is in violation of the treaty.

I have now the honor to inform your excellency that, under the power and authority [Page 673] vested in him, the commissioner of customs may frame and issue any regulations deemed necessary for the proper management of the custom-house business at the treaty ports in this empire; and I would further remark, that the treaty does not say that all customs regulations shall be issued after consultation with the foreign consuls. The seventh article of the new convention of 1888, and the eleventh article of the trade regulations appended to the Austro-Hungarian treaty recently entered into, provide that foreign consuls shall be consulted as to the regulations to be established for removing inconveniences, causes of trouble in loading and discharging cargo, in hiring boats, coolies, &c. These articles relate only to the removal of inconveniences hitherto experienced, and are not to be applied usually in the framing of customs regulations, and therefore I cannot see that in issuing his regulations without having consulted the foreign consuls the commissioner of customs has in any way done anything conflicting with the stipulations in the treaty.

With, &c.,

TERASHIMA MUNENORI,
His Imperial Japanese Majesty’s Minister for Foreign Affairs.
[Inclosure 2 in No. 65.]

Foreign representatives to Mr. Terashima.

Your Excellency: The undersigned have the honor to acknowledge the receipt of a dispatch from his excellency the minister for foreign affairs, dated the 15th instant, communicating to the undersigned his interpretation of the stipulations of the seventh article of the convention of 1866, as expressed both in that instrument and in subsequent treaties, and stating that in his opinion the said stipulations are not violated if the Japanese superintendents of customs of the various ports make customs regulations without consulting the foreign consuls.

The undersigned cannot agree with his excellency as to the construction which he endeavors to put upon the stipulations above named, and if by customs regulations he means the regulations and measures referred to in the various treaties, they are bound to point out to his excellency that the promulgations of regulations or measures referring to the transaction of business at the custom-house, to the lading and shipping of goods, and to the hiring of boats, coolies, servants, &c., without previous consultation with the foreign consuls, does constitute a violation of the previous aforesaid treaties.

That the stipulations in question do not refer solely, as his excellency remarks, to inconveniences which had in times past arisen, but to those which may arise at future date, is proved by the circumstances that the seventh article of the convention of 1868 was repeated in all the eight treaties which are successively negotiated by Japan with foreign powers after the conclusion of the said convention, and that the terms in which it was finally expressed in October, 1839, in the eleventh article of the regulations attached to the Austro-Hungarian treaty, leave no doubt as to its prospective character. That article reads as follows:

“In order to put a stop to the abuses and inconveniences at the open ports, relative to the transaction of business at the custom-house, the lading and shipping of goods, the hiring of boats, coolies, servants, &c., the high contracting parties have agreed that at each port the local authorities shall from time to time enter into negotiations with the foreign consuls, with a view to the establishment, by mutual consent, of such measures as shall effectually put an end to any complaints and shall afford all desirable facility and security, both to the operation and to private transactions, between foreigners and Japanese.”

It will be seen, therefore, that this article clearly provides for the effectual correction from time to time, by means of negotiation between the local Japanese authorities and the foreign consuls, and by means of measures which shall have received their mutual consent, of any abuses and inconveniences that may cause complaint relative not only to the lading and shipping of goods, but also to the transaction of business at the custom-house, and to the hiring of boats, coolies, servants, &c. It also provides that the measures so agreed on shall afford all desirable facility and security to the operations of trade and to private transactions between foreigners and Japanese.

The object of these stipulations was to secure, by means of continuous friendly co-operation between the local Japanese authorities and foreign consuls, the adoption from time to time of such regulations as should be found necessary for the proper governance and effective protection of foreign trade. They were made in the spirit of mutual accommodation, and were observed, with advantage to all concerned, by the Japanese authorities, until 1872, when the latter assumed the power of issuing notifications and regulations affecting the rights and interests of foreigners, and restricting in some instances the business facilities already enjoyed, without any previous reference to the foreign consuls. Consequently, in their note identique of the 22d May all the foreign representatives requested that these objectionable notifications might be [Page 674] reconsidered by the Japanese local authorities and the foreign consuls, in accordance with the aforesaid article of the Austro-Hungarian treaty. Instead, however, of this request being complied with, the note of the representatives was left entirely unnoticed by the Japanese government, and on the 6th of November last another notification was issued by the commissioners of customs at Yokohama, declaring, in face of the protest of all the foreign consuls, “that, after the lapse of ten days from the date of payment, no application for refund of duties overpaid in error can be entertained.”

The undersigned cite this as an instance of the arbitrary manner in which some of the Japanese commissioners of customs are disposed to exercise their powers, and as a proof of the necessity of maintaining those provisions of the treaties which guard foreigners against such proceedings.

As the undersigned cannot consent to any abridgment of the rights guaranteed by treaties they must oppose the interpretation which his excellency seeks to put upon the above-quoted article of the Austro-Hungarian treaty. They, therefore, again request that the distinct stipulations of that article may be observed by the local Japanese authorities, and that they may be instructed to maintain with the foreign consuls the same friendly co-operation which previously existed. The undersigned feel it necessary also to again repeat to his excellency, that if regulations relating to the matters named in the aforesaid article of the Austro-Hungarian treaty continue to be published by the local Japanese authorities, without previous consultation with the foreign consuls and without their consent, such regulations will not be considered by the undersigned to be binding upon their subjects and citizens.

  • H. S. PARKES,
    Her Britannic Majesty’s Envoy Extraordinary and Minister Plenipotentiary.
  • BERTHEMA,
    Minister Plenipotentiary of Franee.
  • LITTA,
    Chargé d’Affaires of Italy.
  • M. BRANDT,
    Minister Resident of the Herman Empire.
  • E. D’OJEDA,
    Chargê d’Affaires of Spain.
  • OLAROUSKY,
    Chargé d’affaires of Russia.