No. 426.
Mr. Bingham to Mr. Fish.
United
States Legation, Japan,
Yokohama, March 9, 1874.
(Received April 13.)
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.,
[Inclosure 1 in No.
65.—Translation.]
Mr. Terashima to
Mr. Bingham.
Foreign
Office, Tokei,
2d month, 7th year of
Meiji.
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.
