No. 185.
Mr. Fish to Mr. Bingham.

No. 200.]

Sir: Your dispatch of the 18th of November last, No. 291, in relation to the right of the municipal council of Nagasaki to maintain actions in the consular court of the United States against American citizens for liabilities accruing on account of non-observance of municipal ordinances by the latter has been received.

It appears from your dispatch and the inclosures accompanying it that the council referred to is a body composed of foreign consuls and prominent foreigners of different nationalities, resident in what is known as the “foreign quarter” in Nagasaki, that it owes its existence and creation to the voluntary action of the foreign population, or at least to that portion of the foreign population who come under the denomination [Page 351] of “land-renters,” and that the regulations or ordinances of this municipal council are confined within the legislative limits of the preservation of the peace, morals, and good order of the community.

These objects are clearly within the scope of the legislative functions ordinarily pertaining to municipal corporations, and the licensing of public house or places of public entertainment and resort is a very common exercise of the power of such corporations.

You refer to your dispatch No. 228, of the 20th of May, 1875, in which you forward a copy of the Nagasaki regulations. Upon examination it is found that the correspondence of which that dispatch forms a part, related to the power of United States consuls in China and Japan to make rules and regulations which should have the force of law over citizens of the United States resident in those countries and the observance of which might be enforced in the consular courts. In your No. 158, of the 4th of December, 1874, you inform the Department of the then recent receipt by you of a communication from Mr. Van Buren, consul-general, asking your consent to the enactment of such regulations of the consular board at Yokohama, and at the same time state that you did not give your consent, for the reason that in your opinion such powers of legislation were not conferred upon either the consuls or ministers of this Government under the laws of the United States, and that the exercise of such a power would be beyond the scope of the legitimate functions of these officers. The opinion thus expressed by you met with the approval of the Department, and was found to be in accord with its previously expressed views on that question, and you were so instructed in my No. 115, of the 7th of January, 1875. In the same instruction you were requested to inform the Department what powers, if any, were claimed by the consular board, as such, to make such regulations, and whether the powder spoken of was claimed by the several consuls to have been conferred by their separate governments, and what authority in regard to such questions had been conferred by the other treaty powers upon their ministers in Japan.

Your dispatch No. 228 was in reply to that instruction, and you forward with it a copy of regulations adopted by a convention of foreign consuls, held at Yedo, in October, 1867, a copy of rules and regulations adopted by the land-renters at Nagasaki, in September, 1860, and also a copy of a communication received by Mr. Van Buren, from Sir Harry S. Parkes, Her Britannic Majesty’s minister, setting forth the grounds upon which the consuls of Great Britain claimed the right of exercising the quasi legislative powers referred to. Upon the perusal of your report no grounds were perceived for departing from the views which had been expressed by you and approved by the Department, inasmuch as the acts of Congress regulating the exercise of the extraterritorial judicial powers accorded in the treaties with Japan and China provides that the proceedings shall be governed by the laws of the United States, the common law, and the law of equity and admiralty, and when these failed to afford an adequate remedy, then by such regulations as should be made and promulgated by the ministers of the United States resident in those countries.

These provisions of the statute of the United States are not understood to confer upon the minister any power of general legislation, (as commonly understood,) but simply the power of supplying decrees and regulations to supply any defects in the mode of exercising the jurisdiction which the statutes and treaties gave to the consular courts. With us at home, our courts cannot legislate, cannot make laws, but may make regulations controlling the practice and the mode of their administering [Page 352] and enforcing the laws. When the statutes of the United States, the common law, and the law of equity and admiralty fail to furnish sufficient remedies for the exercise of the jurisdiction which the statute confers on the consular courts in Japan, China, &c., the minister may supply the deficiency. Such is understood to be the extent of legislative power, if even this can properly be called “legislative power,” which is given to either minister or consul by the statute. No power is given to the minister to make a regulation which will establish or impair the rights existing between parties to create or impose new obligations on citizens. He is confined to making regulations which will enable the established courts to administer justice between parties according to existing laws, and to punish those who offend against the laws.

The question now presented, however, is conceived to be different. It is not a question of general legislation, but one of local corporate municipal enactment of ordinances or regulations for the preservation of the peace, morals, and good order of the town or municipal community, and confined to such objects as the wants and necessities of that particular community may demand; it is the exercise of a power known to exist in the municipal authorities of the cities and towns throughout the United States, resting, it is true, in the latter case, upon municipal charters granted by the supreme legislative power of the State. But instances are not wanting in the history of this Government in which similar powers have been exercised by inchoate communities suddenly formed within the jurisdiction of the United States, and who, for the time being, finding themselves situated outside of any organized State or Territory, have been led by the dictates of prudence and necessity to form themselves into a voluntary political organization, frame codes of laws for the preservation of order and good government and the protection of the lives and property of the individuals composing such communities, and to establish tribunals for the administration and enforcement of such laws; and the laws enacted, administered, and executed under such conditions have, so far as is now known, been respected and sanctioned by both the executive and judicial branches of the Government of the United States, as it is believed they have been by the judicial tribunals of the several States of the Union.

If, in the case of the residents of what is known as the “foreign quarter” of Nagasaki, the government of Japan, in its concession of the territory for that purpose, conferred upon the foreigners residing within such territory the right of such local municipal legislation, or if, in the absence of any direct grant, that government offered no objection to such local arrangement, and cast upon the inhabitants the duty of providing for the general police of the “quarter,” such as lighting, paving, sanitary arrangements, and the preservation of the public peace and good order, it would seem to follow that regulations and ordinances enacted and promulgated by a council selected by the people in such manner as they had mutually agreed upon, should be accepted as the municipal law of the community, have the force and effect of law, and that their observance might be enforced by proper proceedings in the consular courts, subject to the ordinary conditions governing the jurisdiction of these tribunals; and if the correctness of this proposition is admitted, there cannot, it is believed, be any doubt of the right of the municipal council to maintain an action in the consular court for the recovery of a penalty incurred by a failure to pay a public house license imposed by one of these regulations. As the Department is without full information on this point, it is desired that you will, with as little delay as convenient, transmit such information as you are now in possession [Page 353] of, or may be able to obtain, as to the precise nature and extent of the powers granted or conceded by the Japanese government to the residents of the “foreign quarter” at Nagasaki.

But even in the absence of any such express grant from the authorities of Japan, I am unable to concur in the opinion expressed by you that the regulations or ordinances of the municipal council should not be recognized as binding upon citizens of the United States resident in that community. American citizens, in common with the citizens and subjects of other foreign powers composing the population, enjoy all the rights and privileges pertaining to such residence or domicile, and they share in the common protection afforded to persons and property in the advantages and conveniences resulting from such regulations as provide for the lighting, paving, cleansing, and other sanitary measures for the general welfare of the municipality. They are there voluntarily, it is to be presumed, for the advancement of their own interests; while they share the benefits of a regulated police, they should not be free from the charges of its support, or from its control.

The police supervision of places of public entertainment, or of public amusement, is among the essentials of a well-regulated, orderly community, and the income derived from licenses for keeping houses of public entertainment constitutes, it may be supposed, a not unimportant part of the municipal revenue upon which the council must rely to meet the expenses incident to such arrangements. The granting of such licenses is within the scope of the necessary power incident to municipal corporations, and the attempt to exercise the power itself would prove futile if the correlative authority to enforce its observance by a resort to ordinary legal remedies is denied to the municipal council. A refusal of the consular court to entertain jurisdiction in a suit for the recovery of the license-fee, would partake of the nature of a decision before hearing. I am not aware of any reason why a citizen of the United States, resident in Japan, may not be brought into court at the suit of any person or set of persons who think they have a valid claim against him. The statutes of the United States do not exclude any parties from becoming plaintiff in these courts against a citizen of the United States, found within their jurisdiction. He may there plead against the competence of the parties to sue him, or present such other defense as he may think proper against their right of recovery. In the case referred to it is conceived that he might even raise the question of the validity of the regulations under which the license-fee is demanded; but it is not perceived that the court should exclude the plaintiff and deny its process against one amenable to its jurisdiction on the presupposition that the right, which the plaintiff desires to establish, is unfounded.

Mr. Smith is an American citizen, resident in Japan. He can be held answerable only in the extraterritorial judicial tribunals of his own country, established in Japan under treaty provisions. It is thus seen that the refusal of the United States consular court to entertain jurisdiction of the cause preferred by the municipal council against Mr. Smith, in effect leaves the complainant in that case without remedy, and amounts to a practical denial of justice.

In view, however, of the imperfect information at present before the Department on the question of the source and origin of the powers claimed by the municipal council, it is not proposed to give you definite and final instructions in relation to the future course to be pursued until such additional information as you may be able to obtain in regard to that question shall have been imparted.

I am, &c.,