No. 196.
Mr. Bingham to Mr. Fish.
Tokei, May 19, 1876. (Received June 19.)
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 798–809,) 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.