Mr. Bingham to Mr. Fish.
Tokei , November 19, 1874. (Received December 26.)
Sir: I have the honor to report that, on the 10th instant, I received the inclosed letter, revised “hunting regulations” and protocol, from the minister of foreign affairs. On Saturday last, Sir Harry S. Parkes called upon me and asked my opinion of the same, intimating to me that the government of Japan could not enact laws for the government of British subjects without the approval of the British representative; in other words, the laws passed by Japan were not to be observed, nor regarded as obligatory, by British subjects, save when promulgated and approved by the British representative in the form by him adopted.
Sir Harry read to me the orders in council of Great Britain, which in substance authorize him to legislate over British subjects in Japan, reserving, however, to the home government the power of disapproval. I deemed it proper to reply to Sir Harry in this conversation that I was not authorized to legislate generally over American citizens; that the act of June 22, 1860, only authorizes rules of procedure, orders or decrees, and the like, to carry the act and treaty into effect; and that I saw no objection to the inclosed regulations, except that the penalties and mode of procedure could not apply to American citizens.
The 4th section of the act may be said to contain the most general grant of power to representatives of the United States in the provision that, “if defects still remain to be supplied, and neither common law, including equity and admiralty, nor the statutes of the United States furnish appropriate and suitable remedies, the ministers in the said countries, respectively, shall by decrees and regulations, which shall have the force of law, supply such defects and deficiencies.” This, together with all the other provisions of our laws, but confirm me in the opinion, which accords with your instructions to my predecessor and myself, that the power conferred upon the ministers and consuls of the United States by the act of 1860 is to enforce in Japan the laws of the United States and the laws of Japan not in conflict with the treaties and laws of the United States, by prescribing rules and remedies when “no appropriate remedy” can be found under the statute laws of the United States or at common law, including equity and admiralty.
Yesterday I attended a joint meeting of the foreign representatives, and took occasion then to possess the foreign representatives of my views as herein expressed. They all seemed to agree that there was nothing in the revised regulations and protocol to object to, save what I have hereinbefore stated; that the penalties prescribed and the mode of trial could not apply to citizens or subjects of the treaty powers; but they desired a collective note, to the effect that the Japanese minister for foreign affairs should be so advised, and that he should be further advised that each minister would consult his government in regard to a uniform system, to which I assented, reserving my right to qualify my approval of the note so as to accord with my views as herein expressed. The collective note has not yet reached me, but will be forwarded by me as soon as received.
That my position may be fully understood, allow me to state that it appears clear that, under the existing treaties with the United States, Japan retains the power to legislate by general laws over all citizens of the United States resident in Japan, in common with all other persons, [Page 774] subject to this restriction: that the laws so enacted be reasonable and not in conflict with any privilege guaranteed by treaty to the United States or any citizen thereof, and that they require of our citizens no service in contravention of the laws and treaties of the United States. The 6th article of the treaty of 1858, by necessary implication, declares the right of this government to define and prohibit by law within its domain all crimes and offenses against the state or against person or property 5 but inasmuch as the same articles provides that Americans committing offenses against Japanese shall be tried in American consular courts, and, when guilty, “shall be punished according to American law,” it follows, of necessity, that any penalty for any offense against Japanese law, not in accordance with the penalty prescribed by American law for the same offense, cannot be imposed upon our citizens. That such Japanese laws, however, are operative upon American citizens, and are to be enforced upon American citizens by American tribunals, seems to be implied by the provisions of the 2d section of the act of 1860, (Statutes at Large, vol. 12, p. 72,) which declares that the American tribunals named are fully empowered to arraign and try, as therein provided, “all citizens of the United States charged with offenses against law.”
I am, &c.,
- A yen is equal to $1.↩