No. 191.
Mr. Fish to Mr. Bingham.

No. 224.]

Sir: I have to acknowledge the receipt of your dispatch, No. 347, dated 21st January last, with its inclosures. It relates to the press laws of Japan, and the request made to you by the minister of foreign affairs to prohibit American citizens from publishing newspapers or periodicals in the Japanese language. You transmit a copy of a translation of the press-laws, and express the opinion that the general provisions of the laws are unobjectionable, but that they are violative of treaty-rights in so far as they prohibit publications in any language save by Japanese subjects. Before taking action upon the request of the minister of foreign affairs, you submit the matter to the Department for instructions.

I have carefully examined the press-laws, and agree with you that they are in the main unobjectionable. It appears, however, that by the first section of the law all persons publishing newspapers or magazines, in either the native or a foreign language, are required to procure license, and the fourth section prescribes that such licenses shall be issued only to Japanese subjects. This last-mentioned provision of the law you deem unwise and impolitic, and a manifest departure from the spirit, if not from the letter, of the treaty of 1858 between Japan and the United States, the third article of which, you say, secures to Americans the right “to reside within certain territorial limits in this (the Japanese) empire, and, by implication, to enjoy therein all the rights common to the subjects of Japan;” and the eighth article “assures to Americans resident in Japan the free exercise of their religion, which I (you) infer carries with it the right to publish by the press as well as by speech the principles and scriptures of Christianity.”

The laws for the regulation of the press in Japan are Japanese municipal laws, and whether politic or impolitic, wise or unwise, it seems to me to be their undoubted right to establish and enforce them—the question of their wisdom or policy being one for the Japanese government alone to determine. The laws certainly contrast favorably with the press laws of some Christian nations.

I am unable to agree with your conclusion that these laws contravene any provision of our treaty with Japan. The right accorded by the third article of the treaty to American citizens to reside within certain territorial limits does not necessarily carry with it, by implication, all [Page 368] the rights common to the citizens of Japan. In all governments, including our own, certain rights are reserved to citizens which are not accorded to foreigners. We cannot consistently demand that Japan shall be made an exception to this rule. The eighth article of the treaty, to which you particularly refer, provides that “Americans in Japan shall be allowed the free exercise of their religion and for this purpose shall have the right to erect suitable places of worship. No injury shall be done to such buildings, nor any insult offered to the religious worship of the Americans.”

I do not see how, by any fair construction, this can be said to carry with it the right to print and publish newspapers or periodicals in violation of Japanese law. The free exercise of one’s religion does not necessarily involve the right to proselyte; and, however desirable that may be, the Japanese authorities have a right to insist that proselyting shall not be pursued in violation of law. The press-laws are general in their nature, and were, evidently, not framed for the purpose of interfering with the free exercise of their religion on the part of foreigners.

It is noticed, as an evidence of the liberality of the Japanese government in the enforcement of the press laws, that the minister of foreign affairs requests you to notify your countrymen to refrain from publishing a newspaper or periodical in the Japanese language” only, while the laws prohibit the publication in Japan, by foreigners, of newspapers or periodicals in any language whatever. It is evidently the intention of the Japanese authorities that these laws, so far as they affect foreigners, shall be construed with as much liberality as possible; and we should show our appreciation of this considerate and wise course by cordially co-operating whenever called upon to aid in any legitimate manner in their enforcement.

As these laws are not regarded as violative of treaty-rights, and, all things considered, not illiberal in their requirements, and obedience to them being required of foreigners as well as of natives, there seems to be no reason why you should not comply with the request of the minister of foreign affairs, and issue to American citizens the desired notice, in order that they may not offend against the laws, in ignorance of their provisions.

I am, &c.,