Mr. Bingham to Mr. Fish.
Yokohama, March 9, 1874. (Received April 13.)
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.,