Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1875, Volume II

No. 368.
Mr. Bingham to Mr. Fish.

United States Legation, Japan,
Tokei, December 4, 1874. (Received December 30.)

No. 158.]

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, 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.,

JNO. A. BINGHAM.

[Inclosure 1 in No. 158.]

Penal regulations for the government of British subjects.

1. Every British subject residing in Yokohama, and desiring to retail wine, beer, or spirits to be drunk on the premises, shall be required to take out a license.

2. Application for such license shall be made in writing to the British consul, and such license shall not be granted for a longer or shorter period than twelve months, renewable annually on application.

3. Every holder of a license shall pay monthly, in advance, a fee at the rate of twelve dollars a month, such fee to go to the Japanese authorities and to be applied to the maintenance of the local police force.

4. The number of licenses to be issued shall be at the discretion of the consul.

5. No British subject licensed to sell beer, wine, or spirits by retail, to be drunk on the premises, shall suffer any beer, wine, or spirits to be drunk on such premises at any time before 5 o’clock of the morning or after 12 o’clock at night of any day of the week.

6. The sale by retail of beer, wine, or spirits to be drunk on the premises, or the suffering of any beer, wine, or spirits to be drunk on the premises of any licensed house before the hour of 5 a.m. or after the hour of 12 midnight, or the keeping of a disorderly house, shall render the offender 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 $200, or a fine not exceeding $200 without imprisonment.

[Inclosure 2 in No. 158.]

Mr. Bingham to Mr. Van Buren.

United States Legation,
Tokei, November 30, 1874.

Sir: In reply to your No. 368, of date 28th instant, inclosing a copy of penal regulations prepared by the British consul for the government of British subjects residing in Yokohama, I have to say that while it is exceedingly desirable that some legal regulations should be made in the premises so as to control the retail of ardent spirits, the keeping of disorderly houses, &c., I doubt much whether the penal provisions of the proposed regulations can be enacted by an American consul or minister into law for the government of American citizens. I give you this opinion under the impression that the scope of instructions heretofore given by the Department to this legation justifies the the conclusion at which I have arrived.

I would say further that it is my opinion that the power has not been conferred by the United States upon the consuls or minister in Japan to enact penal laws for the government of American citizens resident therein, while, in my judgment, the British minister is authorized to so legislate over British subjects in Japan. I shall ask the instructions of the Department on the subject, to the end that you may be fully advised of your powers in the premises.

I am, sir, your obedient servant,

JNO. A. BINGHAM.

General Thomas B. Van Buren,
Consul-General of the United States, Yokohama.

1. See Foreign Relations for 1874, page 653.
2. See Foreign Relations for 1874, page 645.
3. See Foreign Relations for 1874, page 658.