No. 199.
Mr. Bingham to Mr. Blaine.

No. 1421.]

Sir: Herewith I have the honor to inclose for your information the China and Japan order in council for 1881,* to take effect on the 31st [Page 373]instant, issued by Her Britannic Majesty, by and with the advice of Her Majesty’s privy council, as published in the Japan Daily Mail of the 19th and 21st instant, together with the official notification of Her Majesty’s consulate in Yokohama, as published in the issue of the same paper of the 21st instant.

I beg leave to say that reference to this order will show that the order in council for 1865, issued by Her Majesty for Japan and China, remains in full force save as modified in the order for 1881. I had the honor to transmit to the Department with my No. 229 a copy of the order of 1865.

The order last named, as I have heretofore suggested to the Department, provides that a jury in Her Majesty’s courts in China and Japan for the trial of civil and criminal cases shall consist of five persons, and I beg leave to add that this provision remains in force under the order for 1881.

Permit me further to remark, that sections 101, 102, and 103 of the order of 1865 remain in full force, which several sections restrict the Jurisdiction of Her Majesty’s courts in Japan and China in criminal cases for crimes committed by British subjects on shipboard to such crimes as said subjects may commit within one hundred miles of the coasts of China or Japan and within any British vessel or Chinese or Japanese vessel or “within a vessel not lawfully entitled to claim the protection of the flag of any state.”

In this connection I respectfully ask your attention to my No. 1228, dated the 22d December, 1880, in relation to the British claim of exclusive jurisdiction over John M. Ross, an American seaman, for a crime committed by him within the American merchant vessel Bullion, on the person of an officer and in violation of American law, when said vessel was within the territorial waters of Japan.

It seems to me important that I should especially note that this order for 1881, sections 9–20, provides that in China and Japan Her Majesty’s respective ministers therein may join therein ministers of any foreign powers in amity with Her Majesty in making or adopting regulations with like objects as those described in the schedule of the order of 1881. A reference to the schedule appended to this order shows that the regulations thus provided for by joint action are land regulations; regulations and by-laws annexed thereto; regulations for the foreign settlements in China and Japan; and port, consular, and harbor regulations.

It really seems to me that this new device for joint regulations by virtue of co operation ought not to receive favor from our government. This provision is similar in character to the proposition made last year by the British consul at Nagasaki, which I communicated, with my views thereon, to your honorable predecessor in my No. 1242, and which views, adverse thereto, it gives me pleasure to say were approved by instruction No. 570. It seems to me that our government would do well not to permit our representatives either in China or Japan to take the joint action contemplated in this new project.

I would further call your attention to the extraordinary provision of section 47 of this order (a), that a foreigner may not institute and prosecute a suit of a civil nature in Her Britannic Majesty’s courts in China or Japan without first obtaining and filing in Her Majesty’s court the consent in writing of the competent authority of his own nation, and also his own agreement to submit to the jurisdiction of Her Majesty’s court, abide its judgment, and, if required, also give security to perform and pay the same.

I have, &c.,

JNO. A. BINGHAM.
  1. For inclosure see inclosure to dispatch No. 66, dated February 21, 1882, from the legation of the United States in China, Document No. 74, page 124.