No. 365.
Mr. Bingham to Mr. Fish.
United
States Legation, Japan,
Tokei, November 19, 1874.
(Received December 26.)
No. 151.]
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.,
[Inclosure No.
151.—Translation.]
Mr. Terashima to
Mr. Bingham.
Foreign
Office,
Tokei,
the 10th, 11th month, the 7th year of
Meiji. (November 10, 1874.)
No. 94.]
Your Excellency: The shooting regulations, as
per inclosure A, and the penaregulations for violation thereof by
foreigners, inclosure B, having been framed, the undersigned begs to
submit them to your excellency, and will feel obliged to have your
reply, whether they meet with your approval or not.
With great respect,
TERASHIMA MUNENORI,
H. I. J. M’s.
Minister for F. A.
To His Excellency John A. Bingham, &c.,
&c.
[Subinclosure 1 in No.
151.—Translation.]
Revised hunting regulations.—Part I.
- Article 1. The hunting of birds and
beasts with fire-arms as a means of subsistence, is called shoku
riyo, (professional hunting;) when it is done merely as a pastime it
is called yu riyo, (pleasure hunting.)
- Art. 2. Shooting without a license is
henceforth forbidden. Permission to use fire-arms will occasionally
be granted by the local authorities for the frightening off or
killing of noxious birds or beasts, when such permission is deemed
expedient.
- Art. 3. Persons wishing to shoot, either
professionally or for amusement, shall address themselves to the
local government office, stating their names, nationality, residence
and position, and age; and, having obtained a license, shall
invariably carry it with them when out shooting.
- Art. 4. The license is only for personal
use, and shall be valid only for the season in which it is taken
out. It can be neither sold nor lent to any other person.
- Art. 5. On receipt of a license a fee of one yen* for “shoku riyo,”
(professional hunting,) and of ten yen for “yu riyo,” (pleasure
hunting,) shall be paid.
- Art. 6. No licenses shall be issued to
the following classes of persons:
- To persons under sixteen years of age; to persons unacquainted
with the use of a owling-piece; to persons who are idiotic, crazy,
or otherwise similarly incapable; to
[Page 775]
persons who have been previously punished for
the unlawful discharge of a bow or a gun; to keepers of forests,
fields, streams, &c.; to persons who, having been convicted of a
breach of the regulations, shall not have obeyed the sentence
imposed for that infraction.
- Art. 7. Shooting is forbidden, even for
a person holding a license: 1. In towns and places where there is a
collection of houses. 2. In all places within 50 ken (100 yards) of
any dwelling. 3. In places crowded with people or in the direction
of persons or buildings, whereby either could be injured. 4. In
places where a notice prohibiting shooting is posted up, such notice
showing two fowling-pieces crossing each other, and over them four
Japanese characters, signifying “shooting forbidden here.” 5. In all
places covered with crops. 6. Within inclosures around temples,
&c.
- Art. 8. Only Japanese guns carrying a
ball of less than 4 mome 8 fem weight, or foreign-made
sporting-guns, are to be used in shooting; the use of military
rifles is forbidden. Persons who possess fowling-pieces shall comply
with the regulations for fire-arms.
- Art. 9. The shooting season shall extend
from the 15th of September to the 15th of March, inclusive. No
shooting is allowed out of season, which, however, may be prolonged
or shortened according to circumstances of locality; moreover, there
are some places distant from dwellings, such as those situated among
mountains, for which the shooting season is undetermined.
- Art. 10. Shooting is forbidden during
the hours intervening between sunset and sunrise.
- Art. 11. Persons out shooting must
exhibit their license on demand.
- Art. 12. Any land-owner who objects to
persons shooting upon his premises may put thereon a notice,
notifying persons to refrain therefrom, as provided in article 7 and
shall inclose his land with a line, cord, or temporary fence.
[Subinclosure 2 in No.
151.—Translation.]
Penal regulations.—Part II.
- Article 13. In case complaint is brought
against any one, while out shooting, before the government office of
the locality wherein the person resides, all expenses pertaining to
such complaint shall be met according to the general notification by
the party who has been adjudged to be in the wrong.
- Art. 14. In case of a second offense the
fine can be doubled.
- Art. 15. Should any person, guilty of an
infraction of the regulations, make a false statement, or act in a
threatening manner, he shall be sentenced, on conviction, to the
heaviest penalty the law inflicts in such cases.
- Art. 16. Any offender who is unable to
pay the fine shall be punished with hard labor.
- Art. 17. Any person causing personal
injury to another by infliction [infraction] of any of the
regulations shall be compelled to indemnify the sufferer.
- Art. 18. Any person informing and
testifying against an offender of any of the regulations shall be
rewarded with half of the amount of the fine levied from the
offender.
- Art. 19. Any person committing any
infraction of any of the regulations shall be liable to a fine of
not less than 3 yen, ($3,) and not more than 20 yen, ($20.)
[Subinclosure 3 in No.
151.—Translation.]
Protocol.
In order to arrive at an understanding with regard to the uniform
application to foreigners of the shooting regulations published by the
Japanese government, the undersigned have agreed to the following
provisional arrangement:
- 1.
- Foreigners residing at the open ports or places wishing to
obtain shooting-licenses, shall apply, through their respective
consulates, to the Japanese authorities, who will thereupon
issue licenses giving applicants the right to shoot within the
so-called treaty-limits around all the open ports or places,
from the 15th September to the 15th March.
- 2.
- Foreigners residing or traveling outside of the treaty-limits
shall apply to the local Japanese authorities for a license,
which shall be issued, subject to such rules and conditions as
the local authorities may determine in addition to the
regulations hereafter mentioned.
- 3.
- Those passages of Part I of the revised shooting regulations
of the Japanese government of the 10th of November, 1874, which
refer to professional hunting and the use of fire-arms, for the
frightening away of noxious birds, &c., also articles 6 and
8, and all the articles of Part II of the same regulations,
shall not apply to foreigners.
- 4.
- Any foreigner being out shooting without having taken a
license or without having it with him, or using a license not
his own, or refusing to exhibit it, or shooting in places or at
hours forbidden, or out of season, shall be liable, on
conviction before his consul, to a fine of not less than 3 yen
nor more than 20 yen for a first offense, and not exceeding 40
yen for a second offense, the amount of the fine to go to the
Japanese government.
- 5.
- Any foreigner inflicting damage on crops or other property, or
personal injury to any individual, shall be obliged to indemnify
the sufferer. The offender shall be sued before his authorities,
and the court may appoint two experts, one of whom shall be a
Japanese, to assess the amount of damage done. But the payment
of such indemnity shall not protect a foreigner against any
criminal prosecutions or other proceedings to which he may have
rendered himself liable.
The undersigned foreign representatives will take the necessary measures
for enforcing the observance of the above agreement by their respective
nationals.
