Mr. Bingham to Mr. Fish.
Tokei , June 7, 1875. (Received July 9.)
Sir: On the 26th ultimo, I received from Thomas B. Van Buren, esq., United States consul-general at Kanagawa, the inclosed communication, (inclosure 1.)[Page 810]
In reply thereto, I this day addressed to the consul general a dispatch, a copy of which is herewith, (inclosure 2)
You will observe that the consul-general, in his communication, states that he has informed the governor of Kanagawa, in writing, that he (the consul-general) should, on the 30th ultimo, withdraw from J. M. Rappeport, an American citizen, his official protection, leaving him to be deported or punished for future offenses by the Japanese authorities.
You will notice that the 7th article of the treaty of 1858 defines the forfeitures to which American citizens convicted of felony, or twice convicted of misdemeanors committed in Japan, shall be subjected. These forfeitures are restriction to one Japanese ri inland from the places of their respective residences during the time allowed by the consul after their enlargement from prison, not exceeding one year, and, after the expiration of the time so allowed, the loss of right to reside longer in Japan.
By no rule of construction, it seems to me, can the consul-general declare the right of a citizen of the United States to be tried for all offenses committed in Japan before an American consul, and on conviction to be punished according to American law, forfeited, and such citizen to be subjected thereafter to trial by torture in Japanese tribunals and to the cruel and inhuman penalties of Japanese law. The express provision of the treaty, that the forfeitures following conviction of felony, or repeated convictions of misdemeanors, shall be as above stated by necessary implication excludes all other forfeitures.
The rule universally accepted, that effect must be given, if possible, to every express provision of a written law, seems to require that the treaty-provision, which is the supreme law for all American citizens, shall be observed, to wit: Americans committing offenses against Japanese shall be tried by American consular courts, and, when found guilty, shall be punished according to American law. (Article VI, Treaty of 1858.) By the act of June 22, 1860, (12 Statutes at Large, page 72, section 2,) Congress has construed this provision of the treaty so as to subject all American citizens, for all offenses, against law in Japan, to trial only before American tribunals, and to such punishment, upon conviction, as is therein authorized. The treaty-provision that the Japanese authorities may require the parties who forfeit the right of permanent residence in Japan “to leave the country,” does not, in my opinion, confer upon Japanese tribunals jurisdiction over the persons of American citizens so convicted, nor does it subject them to trial and conviction in Japanese tribunals. Laws enacted by this government not in conflict with our treaty and laws may and ought to be enforced against Americans in Japan by American consular courts. If the Japanese government, therefore, sees fit, there is no reason why it cannot make a law declaring that the continued residence of such convict in the country should be punished by fine and imprisonment, after the sentence of an American consular court that he is guilty of a felony or is convicted of a second misdemeanor, and shall forfeit his right of residence in Japan. This was the sentence of the consular court in the case of John Rogers, which the Department approved in the instruction to my predecessor, No. 193, of date 16th April, 1873.
It seems to me that my reply to the consul-general, inclosed herewith, and all that I have herein stated, but reflects the results of all my instructions hitherto received, and especially the instruction of the Department to my predecessor, No. 87, of date 22d May, 1871, as well as No. 193, above mentioned. Instruction No. 87 to Mr. De Long contains these words: [Page 811]
All that has been sought by the Christian powers is to withdraw their subjects from the operation of such laws as conflict with our ideas of civilization and humanity, and to keep the power of trying and punishing, in the hands of our town representatives.
It seems clear to me that the enforcement of our treaty with this government, and of all laws, whether Japanese or American, upon all American citizens offending against the same in Japan, is intrusted exclusively to American tribunals, governed, as to modes of procedure and penalties, by the provisions of American law.
This matter is of so much importance, that I deem it my duty to submit it to the consideration of the Department for instructions thereon.
I am, &c.,