No. 196.
Mr. Bingham to Mr. Fish.

No. 400.]

Sir: In accordance with instruction No. 200, of date the 20th of January last, I sought additional information in relation to the complaint of Mr. Glover and the source and origin of the powers claimed by the municipal council of Nagasaki.

On the 15th of March last I addressed to Willie P. Mangum, esq., United States consul at that port, a communication on that subject, a copy of which I have the honor to inclose herewith. (Inclosure No. 1.)

Owing to illness, Mr. Mangum was not able to answer my inquiries until the 8th instant, when he replied in a dispatch received by me on the 17th instant, a copy of which is herewith. (Inclosure No. 2.) It is to be noted that Mr. Mangum states that the rules by which the foreign ettlement in Nagasaki is managed “are known as the ‘land regulations.’ They make no mention of a municipal council, and such an institution was not contemplated by their framers,” and “no corporate powers have ever been conferred upon it.” The land regulations referred to were transmitted to the Department in my No. 228, of May 20, 1875, and designated as inclosure 8.

In view of all that is stated by Mr. Mangum, and in the inclosures with my No. 291, of date November 18, 1875, and especially the inclosure therein entitled “Regulations respecting the issue of licenses, adopted October 7, 1869, by the several foreign consuls at Nagasaki,” and also in my No. 228, of May 20, 1875, and inclosures, (Foreign Relations, 1875, part 2, pages 798809,) I am of opinion that the municipal council of Nagasaki is not a corporation, either by prescription or express grant, and that Mr. Glover, as its chairman, had not the authority by law to institute and prosecute a suit against Smith for the non-payment of license-tax under the land regulations and the regulations respecting the issue of licenses above mentioned.

Assuming that Mr. Glover had authority to institute a civil proceeding in the premises against Smith before our consul, it seems to me that the only way in which he could have proceeded would have been to follow section 1 (page 2) of the regulations for the consular courts of the United States of America in Japan, and to have filed a complaint in writing, verified by oath, before the consul. Instead of making such complaint, Mr. Glover, in his note of 10th June last to Mr. Mangum, [Page 375] calls upon the consul to give Captain Smith notice to pay his license-tax under clause 1 of the license regulations. If these consular license regulations have the force of law, of course Mr. Mangum, under clause 1, would be bound to notify Smith, an American citizen resident in Nagasaki, to pay the tax within one week, and in default of such payment, under clause 2 Smith became liable to be sued before the consul, and the consul by the same clause is required immediately in such case of default to order the house to be closed and the right of license to be forfeited until the amount due should be paid.

These consular license regulations having been prescribed in 1869 by the consuls of the several treaty powers, the question arises, by what authority did the United States consul, in conjunction with his consular colleagues, enact them? It seems to me that our consul had no color of authority to make any such regulations, nor had his associates, in so far as American citizens were concerned. My views of the absence of such power in our consuls are stated in my Nos. 151, November 19, 1874; 158, December 17, 1874; and 228, May 10, 1875, (Foreign Relations, 1875, part 2, pages 773, 777, and 798, 799.)

I beg leave to add that, in your instruction No. 115, of January 7, 1875, (ib., pages 782, 783,) referring to my No. 158, respecting licenses, &c., and the want of power in the representatives of the United States in Japan to make regulations in relation thereto having the force of law, you were pleased to say that my general views were believed to coincide with the views heretofore expressed by the Department.

Whatever power the consular body at Nagasaki may have over the matter, it is clear from Mr. Mangum’s statement that the municipal council which Mr. Glover claims to represent is not officially recognized by the consular board or by any of the consuls at Nagasaki, save Mr. Flowers, Her Britannic Majesty’s consul at that port.

Article 3 of our treaty of 1858, second clause, (Treaties and Conventions, page 517,) to which Mr. Mangum refers, only authorizes our consul, in conjunction with the Japanese authorities in each open port of Japan, to arrange the place which Americans may occupy for buildings, and also to make harbor regulations, and in case of disagreement to refer the same for settlement to the American diplomatic agent and the Japanese government. This clause seems to show the extent of power conferred upon our consuls in Japan over the general rights of American citizens to reside and occupy or acquire lands in the open ports.

I do not doubt or controvert the views of the Department, as expressed in instruction No. 200, of the power of corporate municipal authorities, granted by the supreme power of the state within which they are, to enact ordinances for the government and good order of the municipal community, nor the power of inchoate communities to form voluntary political organizations and to make needful and just regulations when they are located outside of an organized state or territory; but in the case under consideration, the foreign settlement of Nagasaki is within the organized territory and general jurisdiction of this government, and all the inhabitants thereof are subject to the general laws of this empire which are not inconsistent with existing treaties, save that foreigners shall only answer for violations thereof before the consular tribunals of their respective countries, and, on conviction, shall be punished or adjudged only according to the laws of their respective countries.

In the light of all the information received by me and herein communicated or referred, to and heretofore received and communicated by me to the Department, the question involved seems to rest for its determination simply upon the authority and validity, as law, of the land regulations [Page 376] and license regulations herein mentioned, and which have been enacted by the concurrent action of the several consuls whose names are subscribed thereto.

I have, &c.

[Inclosure 1 in No. 400.]

Mr. Bingham to Mr. Mangum.

No. 270.]

Sir: In November last I received a communication from Thomas B. Glover, esq., representing the municipal council of Nagasaki, of date October 21, 1875, setting forth your neglect to notice a complaint made to you by the council against one Smith, an alleged American citizen, for the non-payment by him (Smith) of license-fees assessed under the Nagasaki municipal regulations.

I desire, under instructions, to acquaint the Department fully in regard to the complaint, and also in regard to the origin or source of the municipal regulations sought to be enforced by the council before you as American consul, and, therefore, request that you advise me fully of your views and the reason for your alleged refusal to entertain or take official action upon the complaint of the council.

It has always seemed to me that municipal regulations within this empire could only be made under and by virtue of express authority from the government.

Without entering upon any further expression of my views, I especially desire to know upon what authority and by whom the regulations were originally adopted, and what corporate powers have been conferred upon the Nagasaki council, and to be fully advised of your views, not only as to these several inquiries, but as to the whole matter of the complaint and your action in the premises.

You will please address and forward your reply directly to me under Revised Regulation 42.

I am, sir, your obedient servant,


Willie P. Mangum, Esq.,
United States Consul, Nagasaki.

[Inclosure 2 in No. 400.]

Mr. Mangum to Mr. Bingham.

No. 28.]

Sir: I have the honor to acknowledge the receipt of your No. 270, of March 15, 1876, and regret that I have been unable to reply to it earlier, in consequence of a severe illness of several weeks’ duration.

You inform me that in November last you received a communication from Thomas B. Glover, esq., representing the municipal council of Nagasaki, of date October 15, 1875, setting forth my neglect to notice a complaint to me by the council against one Smith, an alleged American citizen, for the non-payment by him (Smith) of license-fees assessed under the Nagasaki municipal regulations, and request an explanation of my views on the subject.

In reply, I have the honor to state that in consequence of irregularities in their election, the said Mr. Glover and those he alleged himself to represent as the municipal council of Nagasaki had received no official recognition from the consular body, (one consul alone dissenting, Mr. Flowers, the British consul,) nor from the Japanese authorities, and he was therefore debarred from instituting, as chairman of the, so-called municipal council, the said complaint against Mr. Smith in this consular court.

The rules under which the affairs of the foreign settlement have been managed are known as the “land regulations.” They make no mention of a municipal council, and such an institution was not contemplated by their framers. The name has been used as a matter of convenience, but no corporate powers have ever been conferred upon it; these regulations are essentially defective, and have been a fruitful source of dissensions from time to time since their adoption, many of the land renters, Mr. Glover and his associates among them, complying with them when it suited their convenience and disregarding them at other times. They were originally compiled, on the opening [Page 377] of the port, by the consular body and the governor of Nagasaki, and forwarded to Yeddo for the approval of the government and the foreign ministers. Some of the ministers approved of them, others did not. Among the former was the representative of the United States, but I have no record of their ever having received the sanction of the Government at Washington.

Our treaty is silent on the subject of the said regulations, but provides that “the place which the Americans shall occupy for their buildings and the harbor regulations shall be arranged by the American consul and the authorities of each place,” &c., (vide article 3.) The rule regarding licenses was framed by the consular body a few years ago to check the evil of the many drinking-houses, but without the sanction of our Government to the land regulations. I doubt my authority to have enforced the payment of license-fees against the said Mr. Smith by suit in the consular court, on the complaint of any one. The only remedy I can see to the periodical dissensions is to place the municipal and police regulations under the control of the Japanese government. Let a foreigner, on the recommendation of the consuls, be appointed by the governor of Nagasaki, with a suitable salary, to superintend the settlement, and the foreign police be appointed in the same way, the governor and consuls to agree upon the amount of taxes on an equitable basis, and these taxes to be collected, in default of payment, through the consular courts in the name of the Japanese government, precisely as the land-rents are now collected. I am glad to state that a majority of my colleagues fully agree with me in this opinion.

I have the honor to be, sir, your most obedient servant,

United States Consul.

His Excellency Hon. John A. Bingham,
United States Envoy Extraordinary and Minister Plenipotentiary, Tokei.