Mr. Bingham to Mr. Fish.
Tokei, Japan, April 17, 1875. (Received May 25.)
Sir: Referring to your instruction No. 115, of date January 7, 1875, I have the honor to acquaint you that in accordance therewith I addressed to Thomas B. Van Buren, esq., United States consul-general, a communication, of date March 27, 1875, embracing the several matters of inquiry upon which information is desired by the Department, a copy of which communication is herewith inclosed, (inclosure 1.)
I regret to state that no reply to my dispatch above named has yet reached me from the consul-general or from either of our consuls in Japan. I have deemed it proper to make some further inquiry of the British minister in relation to the powers of British consuls in Japan, and infer from what he said to me verbally that the British minister in Japan has general powers to legislate over British subjects in Japan, by virtue of the orders in council of the British government.
At my request, Sir Harry Parkes has very kindly furnished me for perusal a printed copy of the Queen’s order in council, made the 9th day of March, 1865, in which it is declared that this “order may be cited as the China and Japan order in council, 1865,” and that Her Majesty makes the order by virtue of the powers conferred by an act of Parliament passed in the session of the sixth and seventh years of Her Majesty’s reign, (chap. 80,) entitled “An act for the better government of Her Majesty’s subjects resorting to China,” and also of the foreign-jurisdiction act, passed in the same session, (chap. 94,) to remove doubts as to the exercise of powers and jurisdiction by Her Majesty with in divers countries and places out of Her Majesty’s dominions, and to render the same more effectual.
These acts of Parliament are not before me, but I have no doubt you will readily find them by reference to the English acts of Parliament of the session of the 6th and 7th Victoria, chaps. 80 and 94.
By referring to this order in council, it appears that the provisions thereof are made to apply to all British subjects in Japan, and also certain provisions thereof to the subjects of China and Japan, and also to the subjects and citizens of any state other than China and Japan resident therein. The order further provides that all Her Majesty’s judicial [Page 792] jurisdiction in Japan over British subjects or property therein shall be exercised in accordance with the order, and not otherwise, and, as far as circumstances admit, in conformity with the common law, the rules of equity, the statute law and other law for the time being in force in and for England, and with the powers vested in and according to the course of procedure and practice observed by and before courts of justice and justices of the peace in England, according to their respective jurisdiction and authorities.
It is especially to be observed that by the 6th paragraph of this order it is provided that offenses are to be deemed crimes, and punishable as such in Japan, when committed therein by British subjects, only in so far as the act is made criminal by the order in council or by rule of regulation made under it, it being expressly declared that any other act than an act that would, by a court or justice having criminal jurisdiction in England, be deemed a crime subject to punishment in England, shall not, in the exercise of criminal jurisdiction under this order, be deemed a crime or offense making the person doing such act liable to punishment.
The order then provides for courts of justice in China and Japan. It also defines the jurisdiction and authority of the several British courts in Japan and China. It provides also for jury-trial. It also contains specific provisions (paragraph 81) making it a misdemeanor for British subjects to participate or take part in any operation of war, insurrection, or rebellion against China or Japan, or to aid or abet any person in carrying on war, insurrection, or rebellion against either, while the said powers are at peace with England. The order further provides (paragraphs 85 to 90, inclusive) that Her Majesty’s minister in China or Japan may, from time to time, make such regulations as seem fit for the peace, order, and good government of British subjects resident in or resorting to either of said countries, and for the observance of the stipulations of treaties between Her Majesty and the said powers, and may make any such regulation apply either throughout China or Japan, or to some one or more of the consular districts, provided, however, the same shall not take effect until approved by one of Her Majesty’s principal secretaries of state, save that in cases of urgency declared in any such regulation, the same shall have effect until disapproval by Her Majesty and until notice of such disapproval shall have been received by the minister.
I have to observe that by paragraph 86 of this order the penalties for violating such regulations are restricted as follows, namely:
For each offense against the same, imprisonment for any term not exceeding three months, with or without hard labor, and with or without a tine not exceeding five hundred dollars, or a fine not exceeding five hundred dollars without imprisonment, and with or without further fines for continuing offenses, not exceeding in any case twenty five dollars for each day during which the offense continues after the original fine is incurred, but so that all such regulations be so framed as, to allow in every case of part only of the maximum penalty being inflicted.
Paragraph 87 provides for the printing and publishing of such regulations; and 88, that the penalties thereof shall not be enforced until after publication as prescribed. Paragraph 91 provides for a summary hearing of all offenses against treaty, or regulation for the observance of treaty-stipulations, when the proceeding is before a provincial court and without assessors.
The order in council defines certain crimes and offenses, and the penalties thereof, when committed by British subjects, either in Japan or China, or in the seas adjacent thereto and within one hundred miles [Page 793] thereof, or within any strait or other water in Japan. Without pursuing this order further, it is proper to call attention to the fact that the power to make regulations to have the effect of law is restricted to the diplomatic representatives of England in China and Japan.
The consuls of England do not seem to be intrusted with any such power, nor, so far as I can learn, is such power conferred in Japan upon the consuls of any of the treaty-powers, save the treaty-power to make commercial port-regulations by agreement with the local Japanese authorities, to which I had the honor to invite the attention of the Department in my dispatch No. 65, of date March 7, 1874, (Foreign Relations of the United States for 1874, pp. 671–674.) I infer from my conversation with the representatives of the other foreign powers that the diplomatic representative of England alone of all the treaty-powers is authorized to enact penal laws in Japan.
Sir Harry Parkes is temporarily absent, but upon his return I shall endeavor to obtain a printed copy of the orders in council above mentioned, and also of the regulations from time to time made by him under the authority of the same, which being obtained, I will transmit to the Department.
I shall also communicate to the Department, as soon as received, the replies of the several consuls to the inquiries contained in my dispatch addressed to Consul-General Van Buren, and herewith inclosed.
I have, &c.,