Mr. Bingham to Mr. Fish.
Tokei, December 4, 1874. (Received December 30.)
Sir: I have the honor to inform you that, on the 28th ultimo, I received a communication from Thomas B. Van Buren, esq., asking me to consent to the adoption by him as American consul-general of certain regulations (inclosure 1,) to be enforced as law upon all American citizens resident in Yokohama. I replied to this note, as per inclosure 2, on the 30th ultimo. You will observe in my reply that I state to Mr. Yan Buren that I give the opinion therein expressed under the impression that it accords with the instructions heretofore given by the Department to this legation. You will also observe by referring to the proposed regulations that it is expressly declared therein that every British subject residing in Yokohama shall observe the provisions thereof, and that every such subject guilty of a violation thereof, as provided in the sixth article, shall be liable to prosecution, and, on conviction, to forfeiture of license and to imprisonment, with or without hard labor, not exceeding three months, with or without a fine not exceeding two hundred dollars, &c.
It should also be observed that Mr. Van Buren asks me to favor the enactment of these regulations as law over American citizens resident in Yokohama. You will notice that in reply I have expressed to him the opinion that the United States consuls (or minister) in Japan are not authorized to enact penal laws and subject American citizens to the penalties thereof, while I am of opinion that by the orders in council of the British government, its minister in Japan is authorized to subject British subjects therein to laws of his enactment. Having stated this much to the consul-general, I informed him that I would ask the instructions of the Department on this subject, to the end that he might be fully advised of his powers in the premises.
I would respectfully refer to my No. 151, of date the 19th ultimo, for some expression of my views on this question of legislative power in Japan. I have the honor to refer also to my No. 17, of November 17, [Page 778] 1873,* in which I gave my opinion in relation to the hunting regulations, in response to instruction No. 5,† and in which I expressed the opinion that—
I find (found) nothing in the treaty of 1858 which in anywise denies to Japan the general power to legislate overall persons within her territorial limits by general laws * * * and that no person resident therein is privileged by any treaty to disregard and violate such general law enacted by Japan.
Not violative of express and special privileges guaranteed by treaty to foreign governments or citizens. In reply to this last dispatch I received from the Department instruction No. 18,‡ in which the Department was pleased to say that the views expressed by me in relation to the character of the local laws and regulations enacted by Japan were “entirely in accord with the views entertained by the Department.” At the same time the Department was also pleased to express the opinion that—
The right of the authorities of Japan to enact and promulgate laws for the governmnent, security, and good order of its own people cannot of course be questioned for a moment, &c. * * * Citizens of the United States resident in Japan are expected and required to observe and obey such laws in the same manner and to the same extent that the like obligation rests upon the subjects of that empire.
The instruction then declares that in the enforcement of the laws of Japan and the imposition of penalties for their infraction by citizens of the United States, our consular courts in Japan shall proceed according to the laws of the United States.
I have supposed that there was no law-making power in the United States that could impose penalties upon American citizens by general law to be enforced throughout the jurisdiction of the United States, whether at home or abroad, save the Congress of the United States. Surely it results, if an American consul can enact penal laws in the manner proposed over American citizens in Japan, that he may extend his enactments as to them over all subjects whatever, and may, therefore, exercise the highest sovereignty known to the United States under their Constitution, viz, the general legislative power.
I am of opinion that instruction No. 48 to my predecessor, dated the 20th December, 1870, fully sustains the views which I have herein expressed as well as the views on the same subject which I have heretofore had the honor to communicate to the Department. I know of no color of authority conferred upon the consuls (or minister) of the United States in Japan to legislate in Japan beyond the provisions of the act of June 22, 1860, which the Department has, in my judgment, correctly interpreted in its No. 48 before mentioned as conferring power upon the minister, &c., only to regulate the course of procedure in pursuing judicial remedies, and not as conferring power upon the minister and consuls of the United States in Japan to create “new rights or duties in citizens of the United States,” or to modify “personal rights and obligations under the existing law.”
I have said, it seems to me, all that is needful on this subject to acquaint you with the reasons of my opinion in relation thereto, and respectfully submit the same for your consideration.
I am, &c.,