Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873

[Inclosure 1.—Translation.]

Minister of Peru to Minister of Foreign Affairs.

Legation of Peru in Japan,
Yedo , March 31, 1873.

No. 5.]

Excellency: In compliance with instructions which I have received from His Excellency the President of Peru, I have the honor to address your excellency the present communication in regard to the irregular proceedings of certain Japanese officers in the detention and prosecution of the Peruvian bark Maria Luz, proceedings all of [Page 587] which have, on account of their novelty, attracted the attention of the whole world, and which affect both the honor of the republic in whose name I speak and the interest of the citizens whom I represent.

Before relating the events connected with that exciting case; before examining the facts and demonstrating the unexpected wrong which has been done to Peru, and the injuries suffered by some of its citizens, and before I formally make against the Japanese government the just demand of my government, which is the direct object of this dispatch, I beg your excellency to permit me, following, as I always hope to do, the dictates of a perfect good faith, to bring to the memory the preliminary facts to which I alluded in the conference I held on the 5th instant with his excellency Soyeshima Taneomi, your excellency’s worthy predecessor.

For some years past Peru had been observing with interest the rapid progress of Japan in its internal development and in its political and commercial relations, both countries being rich in productions, which, at the same time that they are different, are also much consumed, and in consequence highly esteemed in the one and in the other. They are also mutually favored by the facilities of maritime trade between them, as they are separated only by an ocean which, during nine months of the year, may be navigated without danger by every kind of ships.

Peru alone exports in very great quantities that indispensable article for the improvement of lands, and here so necessary, the guano. It also possesses the best and largest districts that produce saltpeter, borax, and iodine; and it produces likewise a large amount of sugar, Peruvian bark, coffee, cochineal, wools, orchilla, &c., articles which are wanting in this empire, and the consumption of which must gradually increase.

Japan, on the other side, exports silk, silk-worms, tea, porcelain, rice, timber, coal, and those varied manufactures of lacker, bronze, stones, &c., which are so much sought after in the different markets.

It thus came to be an aspiration of many thinking men of my country to regulate on lasting bases the commerce between the two nations; and not less than three years ago the mercantile circles and the press of Lima discussed and maintained the necessity of accrediting in this empire a legation which should conclude a treaty of friendship and commerce and navigation, as a means of giving solid guarantees to persons and capitals that might engage in the new speculations.

In the month of August, 1872, His Excellency Don Manuel Pardo, a distinguished statesman, and one of the most vigorous and clear minds of America, came into power as constitutional President of Peru. From his practical and discerning view could not be hid the mutual advantages to be derived from definitively establishing commercial relations with Japan, and appointed the undersigned his envoy extraordinary and minister plenipotentiary.

In order to show his high regard for His Majesty the Tenno, His Excellency the President ordered that this mission should go forth on board of two of our best men-of-war, the iron-clad frigate Independencia and the corvette Union, which were got ready immediately. Those ships were on the point of starting on their voyage when news was received in Lima, through the British legation, that a Peruvian bark had been detained in the port of Yokohama, and been detained subject to the action of a Japanese court, my government, with its accustomed prudence, waited in order to receive further details, which indeed soon arrived in abundance in periodical publications as also in the dispatches of Peruvian functionaries abroad. When this happened, Minister C. E. De Long who, since April, 1870, had been in charge of Peruvian interests in this empire, was unfortunately on leave in the United States. On his return, which was a short time after the detention of the Maria Luz, Mr. De Long learned everything that had occurred, and reported the whole officially to the government of Peru. In this way a complete knowledge was had in Lima of the undue haste with which the irregular proceedings referred to had been carried on.

With its usual foresight, the government of His Excellency President Pardo at once and properly came to the conclusion that the sending out of his envoy in the manner that had been resolved upon with so much anticipation would, after the detention of the Maria Luz, be maliciously taken hold and made use of by those who for some time have been showing so much interest in changing the facts and disfiguring the truth as a means of obtaining the triumph of those suggestions which finally made the Japanese authorities deviate from the natural and just path which at first they had adopted. My government then, in the manner most spontaneous, and only through reasons of delicacy and respect to the spirit of justice of the Japanese government, gave up the idea of sending out the naval squadron, and the undersigned was ordered to leave as soon as possible, with all the members of the legation, as simple passengers on board the mail-steamer.

In spite of this, and I beg to call your excellency’s attention to it so that it may be known in all time, my government did not modify the nature and object of the mission, nor did the desire to establish bonds of friendship with this empire disappear.

The fact of there having been added to my primitive instructions a new one, that is [Page 588] to say the demand of satisfaction from your excellency’s government for the wrong and injuries caused by the case of the Maria Luz, is founded on the confidence which the cabinet of Lima has in the spirit of justice of the Japanese government; and it is on this account that I still bring with me the intention of establishing permanent relations of friendship between our two countries. This task I consider easier after having heard his excellency Soyeshima, in our second conference on the 8th of March, say that in the affair of the Maria Luz the government of Japan had not acted with the intention of causing injury to Peru, or affecting the interests of its citizens, but only animated by the wish to do good and through a spirit of humanity.

Gratifying as it was to me to listen to those words, I hope that the perusal of the reasoned exposition which I now proceed to make will not be unsatisfactory to your excellency. After looking over it attentively your excellency will, I have no doubt, admit with me that however laudable good intentions may be, and I recognize them in the Japanese government, they can never justify a violation of a single one of the rights of an individual or of a state. The Peruvian bark Maria Luz, commanded by Captain Ricardo Heriera, a citizen of Peru, left the Portuguese colony of Macao, bound for Callao, on the 28th of May, 1872, carrying as emigrants two hundred and twenty-five coolies, under contract with Mr. Tanco Armero, an agent in that colony in representation of Senor Emilio Althaus, a resident in Lima, and twelve boys under contract with the captain himself. These contracts were clothed with all the formalities which the Portuguese regulations have established in order to avoid fraud or deceit, and besides had the certification of the Peruvian consul at Macao as a guarantee that it had been so performed. The protective laws of the two countries, which indeed are not in opposition with those of China, having been observed, those documents were of irrefutable validity according to the most common principles of international law, and of their execution or accidents the only parties that could take cognizance were the country where they were made, the one in which they were to be carried out, and the nation of the emigrants, that is to say, Portugal, Peru, and China. A few days after the vessel left she met with bad weather, and suffered damages of such a nature that for the purpose of refitting only she was obliged to bear up for Japan, and anchored in the nearest port, of Kanagawa, on the 10th day of July of said year. The local authorities made no objection to the entry of the ship in the port, and knowing perfectly well that she was a coolie-ship took in deposit her papers.

Until the 13th of July nothing occurred worthy of notice in the Maria Luz, the people on board being occupied in their work of repairs. On that day the British consul at Yokohama, Mr. Robertson, sent to the governor of Kanagawa, one of the coolies referred to, who, it was alleged, had been picked up in the bay alongside Her Britannic Majesty’s ship Iron Duke. An incident like this, which constantly takes place in all frequented ports, is not a matter to attract the attention of anybody who knows the ennui which life on board always causes to those who are not accustomed to it, and the efforts which not only this class of emigrants, but also sailors and soldiers bound by similar obligations, continually make in order to elude their engagements after having profited by and spent the advances in money which they have received. Well did the Japanese authorities understand this when they sent back on board his ship the coolie that escaped, as is practiced with seamen deserters whatever their nationality may be.

A few days afterwards a second coolie swam to the Iron Duke, from which ship he was taken on shore and left free, but having been found there by the officers of the Maria Luz, he was carried back to the vessel.

The Maria Luz had already finished her repairs and was on the point of sailing for her destination, when, on the 2d of August, 1872, causing a general surprise, an event took place alone in the annals of international law, and of so dangerous consequences that it has not received the slightest approval of any of the respectable members of the diplomatic corps. The Hon. Robert Grant Watson, Her Britannic Majesty’s chargeé d’affaires in this empire, went on board the Maria Luz, when the captain was on shore, accompanied by an armed lieutenant and an interpreter in a man-of-war’s boat. This extraordinary visit was followed by an inquiry practiced on board a vessel on which flew the flag of a sovereign nation, an old and very cordial friend of the United Kingdom, and to make the case more serious, if it could be possible, in the territorial waters of an independent state.

After having found out that the first coolie who deserted had his cue cut off, Mr Watson addressed on the next day a dispatch to your excellency’s department, expressing his suspicion that he had been ill-used, a suspicion principally borne out that very fact of his cue having been cut off, a correction simple enough, and to which even that name can hardly be applied.

As Mr. Watson’s letter referred to is the first document that appears in the official record of the proceedings of the Maria Luz case which your excellency sent me for inspection, I have been obliged against my own wishes, and only with the object of keeping the logical order of events, to bring to memory the preceding circumstances; but hereafter, doing homage to the high respect I profess to Her Britannic Majesty’s [Page 589] government, I shall totally abstain from alluding to Mr. Watson’s intervention, as that is the subject of another kind of discussion between the cabinets of Lima and St. James.

I devote myself now to examine the proceedings of the Kanagawa kencho, which, having been controlled and afterward approved with marked pertinacity, in spite of the timely protest of the consular corps, by the guaimsho, make the responsibility of those acts fall on the Japanese government. That court was void on account of the following defects:

1.: Want of jurisdiction.
2.: Illegality of its constitution.
3.: Arbitrary course of its proceedings; and
4.: Want of independence in its judgments.

The intervention of the Japanese authorities, or of those of any other country, in consequence of acts practiced on board of a foreign vessel, can never be admitted, according to the most common principles of the laws of nations, if those acts took place on the high seas, or in the waters of another state.

If in the territorial waters of Japan the peace of the port should be disturbed, or the public or private interests of its inhabitants affected, then the intervention of the local authorities is justified; but they cannot interfere in acts which refer only to the mere interior discipline of the ship.

Now let us analyze the three acts which are charged against the captain of the Maria Luz as having been done during his stay in the bay of Yokohama, and let us see to which class they belong.

The act of cutting off three of the Chinamen’s cues was intended to suppress a conspiracy, checking them in that way; a power which every captain can exercise on board his ship; a private act which certainly is not a crime, and neither is it an affront, as very few Chinamen use their cues out of their own country.

The accusation of punishment having been inflicted on the coolie who swam to the Iron Duke, and afterward was returned to the Maria Luz, and of other coolies having also been cruelly treated, never was preferred by the man himself, or by any of the persons said to be ill-treated, to any judicial officer, nor even to the Japanese policeman on board; it was only alleged by other persons for them, and not as witnesses, but merely upon inferences. Hence the impossibility of continuing the criminal proceedings which were instituted against the captain.

The restraining of the emigrants from leaving the ship was justified by the tenor of their contract, which authorized every captain to do it, as a means of preventing their being eluded.

Even supposing, however, that it had been, right to proceed against the captain, the causes adduced by the Japanese authorities themselves for bringing the whole of the coolies ashore, and for continuing the inquiry, are wholly insufficient. Thus, the letter of Mr. Benson, dated August 8, (inclosure No. 1,) and the reports of Messrs. Hayoshi and Hill, dated the 15th of the same month, (inclosure No. 2,) show that the only complaints lightly preferred by the coolies had reference to acts alleged to have taken place out of Japanese jurisdiction, and the declaration of the governor, Mr. Oye Takee, before the court on the 19th August, shows that the emigrants were brought ashore and the inquiry continued with the object of investigating alleged complaints of kidnapping at Macao; that is to say, arrogating the right to investigate acts supposed to have taken place out of Japanese jurisdiction, and not piratical in their nature.

It will be well not to forget that the Maria Luz carried on board a number of emigrants under contracts entered into freely and spontaneously by them, in accordance with the laws of Portugal and of Peru, which allow this traffic, at the same time that it is not prohibited by the laws or customs of Japan. These facts were proved in the course of the proceedings by the exhibition of the certified contracts, the sea-license passport of the Macao emigration superintendency, bill of health, and the other ship’s papers, the whole in proper order. In spite of so convincing evidence the greater portion of the “inquiry” was occupied with investigations into those very contracts; that is, into acts accomplished out of Japanese waters, giving thus in the inquiry more weight to the assertions devoid of proof of the coolies than to the unquestionable evidence offered by the documents above mentioned, which the kencho completely disregarded both in the proceedings and in the decision.

In this connection I think it opportune to recall here the reply, dated 15th day of the 8th month, 5th year of Meiji, given by his excellency Mr. Soyeshima, minister, then, for foreign affairs, to the complaint of his excellency Viscount de Son Jamacio, His Most Faithful Majesty’s envoy extraordinary and governor of Macao, in which Mr. Soyeshima literally says: “At no stage of the proceedings has the government I have the honor to serve questioned that the government of His Majesty the King of Portugal has done all that is thought necessary to secure that the emigration of Chinese subjects from Macao should be conducted in accordance with the principles of justice and humanity; and no tribunal of Japan has or will hastily presume that the rules which guide the emigration from Macao, and which were framed with the view of protecting [Page 590] Chinese subjects, were other than calculated to meet the object in view.” (Appendix F to the official publication made by the guaimsho on the case of the Peruvian bark Maria Luz.)

If another proof were wanting of the legal manner in which the Macao authorities observed the existing rules and regulations in the contracts, embarkation, and dispatch of the Maria Luz emigrants, I beg to refer to the inclosed copy of dispatch and accompanying certificate which I have received from the governor of that colony, (inclosure No. 3,) for which document I have been waiting on account of its inestimable value.

In order to demonstrate the illegal constitution of the court, and which comprises the second point of invalidity, it will be sufficient to analyze the express tenor of the convention of October 28, 1867, (inclosure No. 4,) concluded at Yedo between the representatives of England, France, United States, Prussia, and Holland, and accepted in all its parts by your excellency’s government in the dispatch dated the 22d day of the 11th month, 3d year of Kei, addressed by his excellency the minister for foreign affairs, Ogasawora Iki no Kami, to Messrs. Van Brandt, the American and Prussian ministers, and to other foreign representatives, in which dispatch it was said:

“The regulations of police and roads within the foreign settlement of Yokohama, being negotiated between your excellency and the English, Netherlands, and Prussian ministers, is sent to me by the English minister.

“I have also agreed with it, and taken in the moment Mr. Martin Dohmer, in the English consulate, in service, to charge with the police of settlement.

Inclosing the said regulations I have to bring it to your excellency’s notice. (Inclosure 5.)

This approbation of the Japanese government was communicated to the Government of the United States by their minister, Mr. Van Valkenburgh, in a letter dated November 16, 1867, as may be seen on page 73, part 2, of the United States Diplomatic Correspondence for 1868. (Inclosure 6.)

Section fourth, of the said convention, provided that the only court that could have jurisdiction over the subjects and citizens of non-treaty powers residing within the Yokohama settlement, or within the port of Kanagawa, was one composed of the governor of Kanagawa, acting with the advice and assistance of the foreign director, and with the advice of the foreign consuls if obtainable.

The above section of the convention has been acted upon by the Japanese authorities, in proof of which it is sufficient to cite the letter of Mr. Mutza Munemitzu, governor of Kanagawa, dated June 3, 1872, (inclosure 7,) a few days before the arrival, in distress, of the Maria Luz, addressed to the foreign consuls, concerning a complaint made by Captain Spinks, of the Tunisian steamer Sadkia, against his crew, and in which the governor requests the consuls to attend at the investigation of the complaint in accordance with the convention concluded October 28, 1867.

Nevertheless it appears from the original records of the Maria Luz proceedings that neither did the foreign director form part of the court nor was the advice of the consuls taken, so that a tribunal was created which had no legal jurisdiction in that case.

But the Kanagawa kencho was found not only violating the fourth section of the convention of Yedo, but was not even organized as a duly constituted Japanese court, or tribunal, since it was partly composed of persons who did not belong to it and who had no right to act in it. Among others there sat with the kenni two American lawyers, one of whom was a mere practitioner, and an English judge, by all of whom many questions were put directly to the witnesses and by whom suggestions were made which appear to have been acted upon by the court.

Now the functions of a tribunal, especially when sitting more or less as a criminal court, are sacred and can hardly be delegated to any persons whatever other than the duly constituted members of that tribunal, and least of all to persons who are not only not citizens of the country but are not even within its jurisdiction. Such, unquestionably, is the law and practice of all civilized communities, and such, also, I am sure, must be the custom of the Japanese Empire in its relations with the citizens of other states. That the proceedings of the kencho were not only arbitrary but violative to all legal forms indispensable in the rightful administration of justice, which constitutes the third point of invalidity, is easily shown by following the concatenation of its very singular acts.

No distinct verbal or written notice was ever given to Captain Heriera of any of the charges which were imputed to him, and so, moving entirely blind, he lost his ship and passengers. Under the enormous weight of a degrading criminal action he was simply ordered to attend at the saibansho. (Inclosure 8.)

Upon the representation made to them the Japanese authorities ought to have instituted on board a preliminary investigation before commencing proceedings. This was not done, but some days afterward an inquiry was made by their officers, Mr. Benson and Mr. Hayashi, into the truth of the alleged ill-treatment, and this inquiry did not only not bring out a single proof of any offense having been committed by the captain [Page 591] within Japanese jurisdiction, but negatived completely the suspicions upon which the inquiry in question was instituted. (See inclosures Nos. 1 and 2 referred to.)

The above-mentioned reports are corroborated by the ample, strong, and incontestable evidence given before the kencho on the 19th September, 1872, by Captain McDonald, Captain Purvis, and Mr. Bevill. The first-named, a Lloyd surveyor, and for many years a master mariner, deposed that the ship was fitted out as any other ship; that she was equal to any coolie-ship of India or China, and that the passengers seemed to be comfortable.

Captain Purvis, of the royal navy, and English naval officer of thirty years’ standing, declared: that he went on board the bark the first day she came in; that he went round the ship and found her clean; that the accommodations seemed to him better than that of many other ships he had seen; that having been on board several times afterward he found no difference; that the coolies were not confined, they were amusing themselves smoking and playing cards; that when he was in the British Peninsular and Oriental Company he heard of cases where first-class passengers were confined to their cabin, as the captain had authority over any passenger, whatever his rank may be. He added, that the berths were longer by two and a half inches than those of men-of-war; that the ventilation was better than on a man of-war, and the height a good deal greater than in other ships.

Mr. Bevill, a sub-editor of the Japan Mail, a newspaper which throughout the proceedings manifested a bitter hostility to the Maria Luz, said that the appearance of the passengers struck him as being very favorable, and that they looked well fed and healthy; that he once sailed in an emigrant ship from England, and one adult and about fifteen children died on the voyage; that in that ship the food was kept short, and there were constant complaints about it; besides she was very dirty, while the Maria Luz was clean and good-looking; that he had also been on steamers, and in one case had seen the captain exercise his authority over a first-class passenger, detaining him on board because he could not pay his passage. Again, notwithstanding that the suspicions on which were founded the representations made in order to detain the Maria Luz and institute proceedings were completely destroyed by the official report of Messrs. Benson and Hayashi, sent on board commissioned for that determinate object, and in spite of the right which the contracts gave the captain to restrain the emigrant coolies from leaving the ship during its accidental stay in Yokohama, the “inquiry” was continued, and on the 22d August the whole of the coolies were brought ashore in charge of Japanese policemen, a proceeding, which, according to the statement of Mr. Oye Take, before mentioned, was intended to interrogate them about the charge of their having been kidnapped as it was said at Macao, and other acts of similar character all supposed to have taken place in foreign jurisdiction.

The bringing ashore of the coolies was thus done with an illegal object, but even admitting that it had been so they would only present themselves at court as witnesses or as plaintiffs; if they were brought as witnesses they never acted as such upon complaints of acts done within Japanese jurisdiction, simply making allegation on their own behalf and without even proving the allegations of others of them. If they were all plaintiffs some preliminary inquiry should have been held on board to substantiate their complaints, to find out if a clear case would be made out, justifying the institution and prosecution of a regular criminal process; that requisite was not complied with.

And not only this, but the coolies were brought ashore without giving the captain any guarantee that they would be returned on board, or he be indemnified if it should turn out that the alleged accusation was baseless or capriciously made, as it happened. Thus, only the interests of the coolies were attended to without taking the least care of those of the captain or charterers; nor was any attention paid to the protests of Captain Heriera nor to those of the foreign consuls (inclosure No. 9) made against the course of action adopted by the kencho, who simply referred the matter to your excellency’s department, who at once ordered the court to disregard them, (inclosure No. 10,) that is to say, that the principles of justice and existing international obligations should be sacrificed directly injuring the interests of citizens of Peru; such was the tortuous path that was followed until the final and unjust sentence was pronounced.

Finally, in undertaking and commencing these proceedings, in the course of them, and in coming to a decision the kencho did not exercise its own independent judgment, but constantly obeyed the pressure of an executive department to which it owed no obedience. Thus, we see in the record that the court commenced proceedings not upon the complaint of any interested party, but at the order of the gaimsho, so that the very court which was to judge the matter because the prosecutor in this way combining two perfectly incompatible functions.

The same practice was observed by the kencho through the course of the proceedings, which were conducted under the direction of the gaimsho, to whom most questions of importance were referred, just as if the court were a mere sub-department of the foreign office. Thus, the kencho obeyed the orders of the gaimsho with respect to the [Page 592] protests of the captain and of most of the foreign consuls against the infringement of the convention of Yedo of 1887.

Lastly, if we subject the finding and judgment to an impartial and critical inspection, we discover in their form and style that they were not the products of an unbiassed deliberation of the court, but the foregone conclusions of outside and irresponsible advisers, to which your excellency’s government gave its anticipated sanction.

I beg your excellency to permit me, before making a recapitulation of the facts which have been demonstrated, not to close this dispatch without alluding once more to Minister Soyeshima’s words in our conference of the 8th March and in which, speaking of the Maria Luz, he told me that “in that case his government had proceeded animated only by sentiments of humanity.” It is not possible for me to pass by unnoticed the expression of a sentiment which I profess and respect, as it tends to comply with the wholesome precepts of morality. This may be the proper moment, sir, since the case of the Maria Luz has been discussed with so much exaggeration and passion, and charges of abuses, cruel treatment, and the like, have been invested, to bring to your excellency’s knowledge the official statement, printed in the inclosed number of the Bulletin of the province of Macao and Timor. (Inclosure No. 11.) In that report, on the movement of colonists in the year 1872, the superintendent of emigration says: “I beg also to report in this place, that many of the emigrants who in that bark (the Maria Luz) put into Japan, have again emigrated through this superintendency in several ships, and they continue, from time to time, appearing in small numbers in order to re-embark again, with the greatest satisfaction.”

In addition to and in connection with the above I may also quote the following paragraph from a letter I have received from the consul of Portugal in Yedo, dated the 16th March:

“I have seen in the Macao Gazette,” says Mr. Loureiro, “that the steamer in which Captain Heriera left as first officer took on board many of the emigrants that belonged to the Maria Luz, and they were recognized without difficulty.”

I leave to the impartial judgment of your excellency and of the imperial government the appreciation of such eloquent facts; they will answer better than my words can do it, if it was possible that those emigrants could have been kidnaped or cruelly treated by the captain of the Maria Luz.

The so-called coolie-trade about which, with so much emphasis and such bitter exaggeration, has been spoken, mostly by writers who have not taken the pains to study the physical and moral advantages obtained by the emigrant, particularly in Peru, is nothing else but the free and spontaneous emigration of a very small part of the exuberant population of the celestial empire, which is frequently subject to the horrors of hunger, wars, and pestilence, unavoidable among so immense an accumulation of people.

Transportation being offered to them their services are afterward well paid and their persons and rights protected. It is a current solicited by all agricultural countries which, like Peru, California, Cuba, and many French and English possessions, own rich virgin land which the intelligent hands of man transforms into new countries of universal prosperity.

Articles fifth and ninth of the convention between China and England and France, concluded at Peking on the 24th and 25th of October, 1860, and article 10th of the treaty of amity, commerce, and navigation, made with Spain at Tien-Tsiu on October 10, 1864, recognize the right which Chinese subjects have to emigrate to British, French, and Spanish colonies. (Inclosure No. 12.) I also beg your excellency to read the convention of March 5, 1866, signed at Peking by the Prince Kung with the English and French representatives, Sir Rutherford Alcock and Mr. Henri Bellonet, which regulates, in all its details, the Chinese emigration, and which was approved by the Emperor and has become a law of the empire according to a declaration made by the Prince Kung on the 22d of May, 1868.

In spite of all this, what treatment was given to one of the many ships which annually leave China for different countries? The Peruvian bark Maria Luz, which, by stress of weather, was driven on the shores of Japan, always regarded by Peru as hospitable? Her present abandoned condition in the bay of Yokohama may fitly answer for us.

That was an unusual persecution to which never were subjected, in any country, Peruvian ships engaged, like the Maria Luz, in the transportation of emigrants. Never did the authorities of Honolulu molest in the least the frigate Zoyla, Macao, Don Juan, and others which have voluntarily entered their ports, nor have those of Bat a via troubled any of the ships which, making the voyage by way of the straits, have touched on the coast of Java, nor has ever the circumspect governor of the British colony of St. Helena interfered with any of the vessels which continually touch there bound for Havana. Among these last I may name the Peruvian ships America, Macao, Amora, and various others. What took place, then, with the Maria Luz has no parallel in the annals of history, (not even in that of this country, which did not at all annoy another [Page 593] emigrant ship, the F. H. Palmer,) nor is it supported by any principle of law or justice.

I may go even further in my argument, and will suppose that the emigrants of the Maria Luz had been slaves, (who do not exist and cannot exist in Peru,) and even in this hypothetical ease the Japanese authorities had no right to exercise jurisdiction over the ship or its passengers. In this connection I need only present to your excellency’s consideration the important case of the American bark Creole. This vessel, carrying on board slaves in revolted condition, put into Nassau, a British port, in 1841. Slavery was then, as to-day, prohibited on English territory. A number of the slaves escaped ashore, favored by the British authorities, but without any forcible interference on their part. In consequence of this, restoration of the slaves was demanded by the United States, but not acceded to by the British government. Afterward, a claim for indemnity having been made by the Americans, it was referred to a mixed commission, and the decision was in favor of the United States, to whom an indemnity was paid by the English government. (See Lawrence’s-Wheaton’s International Law, part I, chaps. 2, 9; note 70 by the editor.)

Hence, if the British authorities were wrong in merely officiously interfering with a trader which was unlawful according to the British law, much more are the Japanese authorities responsible for a forcible interference on board a ship occupied in a trade not condemned by law, and which has been regulated even in its details by the laws of some countries, as China, Portugal, Peru, France, Spain, and England herself. (See the Chronicle and Directory for China, Japan, and the Philipines, which contains the various ordinances and acts on Asiatic emigration and Chinese passengers.)

Now, then, in the case of the Peruvian bark Maria Luz, recapitulating the preceding facts, it appears that:

1.: The so-called tribunal, created in order to institute proceedings against the ship, without having jurisdiction on the matter, detained the vessel and condemned a Peruvian citizen to a degrading punishment for alleged offenses said to be committed out of Japanese jurisdiction.
2.: By finding the captain guilty of forcibly restraining the coolies on board, the court took upon itself to deny the validity of contracts on their face perfectly genuine.
3.: The order to bring the whole of the emigrants ashore, based only on mere suspicions, was given without any guarantee to save the interests of the captain and the charterers.
4.: Even supposing the subject-matter of the proceedings to have been within the jurisdiction of a Japanese tribunal, the kencho was composed, not only violating the convention of 1867, but in addition was composed in part of members who could not by any possibility be recognized as having any right to sit on the bench of a Japanese court of justice. The proceedings and decisions of the kencho were consequently null and void, and as the former as well as the latter were directed and approved by your excellency’s government to the great damage of the interests of Peruvian citizens, your excellency’s government is responsible for those damages.
5.: Notwithstanding the assurances given by the governor that the “inquiry” was only a preliminary one, what was instituted and continued against the captain was a criminal process, and then in it were omitted a distinct direct charge made by the alleged offended party, and a proper notification of it duly served upon the captain, violating in this way the most sacred guarantees by which in every constituted community the honor and the interests of persons are protected.
6.: The captain was found guilty only on mere allegations of interested parties, not mutually corroborative, but very frequently self-contradictory, and not subjected to cross-examination. No evidence was heard on the part of the captain. His protest and those of the consuls were disregarded, and under the bewildering influence of such extraordinary haste sentences were rashly pronounced without any proof.
7.: The court having been entirely controlled in its proceedings and judgments by the gaimsho, the kencho throughout this unfortunate trial only played the part of a subordinate section of an executive department, constantly looking up for new inspirations to the superior council which had in so anomalous a manner been created.

The responsibility of such acts rests, then, wholly in your excellency’s government, which, having accepted an arbitrary representation, given to it sufficient importance to serve for the institution of a trial, aided in the prosecution of it, and having finally approved its consequences, was the cause of a Peruvian ship having been detained and abandoned, with great injury to its owners and charterers. But great is also my confidence in the uprightness and spirit of justice of the Japanese government, which, I am sure, will not hesitate one instant following its frank, noble, and satisfactory avowal made to the undersigned at an official interview, to the effect that in its action relative to the Maria Luz no intention existed to wound the honor of the republic of Peru, in making reparation for the damages caused by paying a just compensation to those of its citizens who have been injured. Your excellency’s government will thus increase its prestige, proving to the world how much it values and respects the inalienable rights of sovereign nations.

[Page 594]

It has been, excellency, painful to me to have to commence my regular correspondence with your excellency’s government by presenting a claim which, in view of its peculiar nature and circumstances, it was impossible to pass over in silence; but, founded as it is on strict right, I firmly believe that, it being so acknowledged by the Japanese government, we shall be able to fix on the immutable principles of justice the relations of our two countries, which are destined to cultivate the closest bonds of friendship.

I avail myself of this opportunity to renew to your excellency the assurance of the high and distinguished consideration with which I have, &c.,

AURELIO G. Y GARCIA.

A true translation:
J. Frederico Elmore,
Secretary Peruvian Legation.

[Inclosure 1.]

Mr. Benson to Sanquii Fau.

Municipal Office, Yokohama , August 8, 1872.

Sir: In compliance with your request I visited, yesterday afternoon, the Peruvian bark Maria Luz, having on board a number of Chinese coolies bound from Macao to Peru.

I was accompanied by Mr. Bata, a Japanese officer and Chinese interpreter, attached to this office. Below the deck I found the men in as comfortable quarters as is usually provided for Chinese steerage passengers, their general appearance giving no indication of insufficient food or bad usage. Several of the men were brought aft and questioned. They all said they have enough to eat and were not ill-used. They complained of having been kidnapped in Macao, and implored assistance. I inspected some of the food that had just been prepared for the afternoon meal. It consisted of rice, fish, and a sort of cabbage, and appeared to be clean and well cooked.

In relation to the replies to questions as to food and treatment, I respectfully suggest that you seriously consider whether the fear of punishment after the vessel leaves port has not strongly influenced these men against making any complaint against the captain.

The captain informed me he would be ready for sea in three days.

With respect, &c.,

E. S. BENSON.

A true copy.

J. FREDRICO ELMORE,
Secretary Peruvian Legation.

[Inclosure 2.]

Translation from Japanese minutes of visit to ship, return, and report of Hayoshi Gontenji and Geo. Hill.

On the 14th day of the seventh month, at one and a half o’clock p.m., I went on board the Maria Luz, and calling from below a few of the Chinese into the cabin, questioned them. Coolie No. 1 stated: I am employed for eight years; have received no wages. Left Macao on the 22d day of fourth month. Signed contracts on board ship 19th of fourth month. Since went on board ship have never been on shore. If I work one month I will get wages from the captain. Was employed as cook on board ship, and have done some work on board; have worked since ship left on 22d fourth month. The men who are doing work on ship are about eighteen. I have been told by Chinamen that we ought to go to Peru. Have sufficient provisions, and no complaint.

Coolie No. 15 stated: We left on 24th of fourth month. Signed contract on 18th of fourth month. Received $8 on shore. I have spent $4 on shore and lost $4; am entitled to receive $4 per month. Was told I was to work on board, but have never done so. The hatches were closed to prevent me going on shore. The captain has prevented me from coming on deck. I only learned that the ship would leave Macao in a few days, but did not learn where she was bound to. Was told by the captain I was to work for eight years. Don’t know what sort of work, only told must work. When I signed the contract there were about 240 men together. Contract was read to me on shore by a foreigner in the Chinese language. Just now, I think, I am bound for Peru by the contract. Since I came to this port have not had sufficient food only twice a [Page 595] day. Iam not allowed to go on deck until I get to Peru. Signed contract on this ship; it had been read to me before. The captain treats me well, but the head men very badly.

Coolie No. 5 stated: Latterly we have had sufficient provisions, but for a few days not enough. Don’t know where I am to go. Received $8 and spent it. I am to work one year for the $8. The head men always prevented me from going on deck. One day I was tied to the mast and beaten by the Chinaman No. 8, a head man, with a ratan. Am not allowed on deck either in fine weather or foul. The head men are permitted on deck.

Coolie No. 8 stated, (showing a stick:) This is the stick I beat No. 5 with. I was ordered to do so by the captain. The contract was read to me by a Peking man. I came on board the ship four or five days before the ship left, in a small boat with four or five other Chinese. The contract was signed two days before the ship left. I was forced to sign by a foreigner. The contract was brought from on shore with me. No one threatened me with a pistol or other arms when the contract was signed.

After I had examined these coolies one by one in the cabin I went with Mr. Hill, and bringing Ching Ching, the interpreter, down into the hold where the Chinese were, I informed them through the interpreter that while they were in port they would have the protection of the Japanese government, but that if they made a difficulty and were guilty of any offence, they would certainly be punished.

I then passed through the hold. Certain of the coolies came to us saying, through the interpreter, that they had been kidnapped and praying for the assistance of the government. Some of their numbers I took as follows: 187, 182, 157, 175 (changed from 176.) No. 5, who seemed very ill, and 160, who appeared very sullen. While I was taking down these numbers the others gathered together around me with great cries, and in the most earnest manner begging for assistance. They so pressed upon us that I was obliged to tell them their case would be looked into further. I could hardly escape from their importunity. I left the ship about 5 o’clock p.m.

(Signed)

HAYOSHI GONTENJI.

I have read foregoing translation of the returned report by M. Hayoshi Gontenji, and have compared it with the minutes kept by myself on the same occasion, and find it to be correct.

We found all the Chinese passengers confined below deck.

G. W. HILL.

A true copy.

J. FREDRICO ELMORE,
Secretary Peruvian Legation.

Yokohama, Japan , August 15, 1872.

[Enclosure 3.—Translation.]

Mr. De Castes to Mr. Garcia.

Legation of Portugal in Japan.

No. 47.]

Most Illustrious and Excellent Sir: His excellency the governor having to absent himself from this colony by virtue of his office of minister of plenipotentiary to the court of Siam, directs me to answer the dispatch which your excellency addressed him dated the 27th of last month, announcing the arrival of your excellency in Japan and offering him your service in the capacity of minister plenipotentiary of the republic of Peru to that court.

The expression of friendship with which your excellency addresses him was very, pleasing to his excellency the governor, and on his part he hopes to return it by giving all the aid to your excellency to accomplish the mission with which you are charged.

The close relations of friendship which bind our countries impose on his excellency this duty.

Concerning the principal object of the dispatch of your excellency with regard to the question of the bark Maria Luz, the governor of this province had decided before the arrival of your excellency to furnish you with all the documents which illustrate this affair, and it concerns not only the dignity of the country which he has the honor to represent, but also the good name and reputation of the authorities of this colony.

In the separate copy which I have the honor to forward, your excellency will see the way in which the emigration is made from this port. This document is signed by the authority which especially watches and superintends the affairs of the emigration, and is beyond all suspicion, and the veracity cannot be permitted to compare with the witnesses of the Coolie emigrants who testified at the tribunal of Kanagawa. If this question did not involve the national dignity, and that of the officials of this colony, [Page 596] which all the citizens should look to, his excellency the governor would not have cared to answer the accusations so devoid of truth as those uttered at the said tribunal. For your excellency to estimate the credence which the testimony of the emigrants of the Maria Luz deserves, the circumstances are sufficient of their giving false names, and the affirmation that they signed the contracts on board, when by the regulations, which I have the honor to forward to your excellency, such contracts are signed at the superintendency, and often even after embarkation, some of the coolies have been disembarked, not wishing to proceed on the voyage.

By the bulletin herewith, your excellency will see that the month in which the Maria Luz was dispatched 702 coolies were distributed to the country of their nativity. Equally by this same document is seen that some of the coolies of the Maria Luz, said to have been deceived, returned to Macao to emigrate, and of these dishonest men a good many are now on the way to Peru. In the month of May, when the Maria Luz left, 3,520 coolies were embarked in several ships, 790 were distributed, 58 taken by their parents, 22 preferred to remain in Macao, 21 waited to go to other countries, 11 disembarked after signing their contract—making a total of 902; or out of 100 colonists embarked 28.4 had the destination above mentioned.

Only those who are completely prejudiced by passion against emigration can say that it is not made from this port with the greatest liberty and spontaneousness on the part of the emigrants. The numbers I have marked are most significant, and against undeniable facts no arguments can be possible.

We can with bold front say to civilized nations that the Asiatic emigration, as it is to-day managed in the colony, is more spontaneous and more free than that which takes place from Europe to America. The governor of this colony has devoted a serious study to this branch of administration, and has succeeded by its regulations in accomplishing the desired object which he has in view. My scruple has been carried to excess, and the diatribes of the foreign press against the emigration have been responded to by giving the colonists new guarantees and new advantages, and enacting new measures of greater vigor against abuses.

The documents and regulations which I have the honor to place in the hands of your excellency, are more than sufficient to show the injustice of the tribunal of Kanagawa, and to manifest its false foundation.

I avail of this occasion, sir, to assure your excellency of my highest and distinguished consideration.

God preserve your excellency.

Macao , March 11, 1873.

The Secretary-General, Acting Governor,

HENRIQUE DE CASTES.

His Excellency Señor Don Aurelio Garcia y Garcia ,
Minister Plenipotentiary of the Republic of Peru to the Court of Japan.

[Inclosure.]

Secretary’s office of the Government of Macao and Timor,
Superintendency of the Chinese Emigration of Macao.

Most Excellent and Illustrious Sir: In obedience to your excellency’s orders I proceeded to enable myself, by the books of this superintendency, to have the honor to inform your excellency with regard to what relates to the Chinese, Mopin, Akun, Apon, Achon, Sampon, Ak-Kay, Akun, No. 176, affidavit Nos. 182 and 187, Sum-hoy, said to have been embarked on board the Peruvian bark Maria Luz, dispatched from this port on the 29th of May last, with two hundred and twenty-five Chinese coolies for Peru, and put into Japan on the 9th of July last.

Neither in the books of this superintendency nor of the deposits I caused to be brought to this department to be duly examined can I find the names mentioned above. But I can assure your excellency that in conformity with the regularities of the emigration from the port of Macao no coolies could have embarked in the Maria Luz that was not minutely examined in the superintendency; consequently it shows the bad faith of these coolies; and no reliance should be placed on their statements, as they either gave false names in this department when they were examined, or are doing so now in the tribunal of Japan where they are being interrogated. The Nos. 176, 182, 187, Afat Sum-hoy, are in the books of this department, and of the deposit designated by the letter L, of which is charged the assistant José Bernardino with the names of Sotung and Chan-sen-hoy, and the 182, that has no name, is in the same books with that of Holay.

The coolies embarked in the said bark were interrogated in this superintendency, proceeding with the formality with all of them as follows:

During the days that they appeared at this superintendency, the contracts were read and explained to them in the three Chinese dialects—Puntis, Aka, and Chenchin; and [Page 597] made one zone in the office of the superintendency publicly, and in the dialect spoken by each of them the following questions: If they wanted to emigrate? If they knew where they were going to emigrate? (if not, it is explained to them.) If they knew the conditions of the contracts? (explaining and removing their doubts should there be any.) If they had been deceived or ill treated? telling them that they can, without fear, declare if they had been ill-treated or deceived, and assuring them the protection of the government until their distribution in case they should not wish to emigrate. This is all I have to say on the subject, and I hope having so satisfied the masters of your excellency.

God preserve your excellency.

Superintendency of the Chinese emigration, Macao, August 30, 1872.

HUMMIJELDI AUGUSTO PEREIRA RODRIQUES,
The Superintendent of the Chinese Emigration.

His Excellency Viscount San Juanario,
Governor of Macao and Timor, &c., &c., &c.

A true copy.

Office of the secretary of the government of Macao, March 10, 1873.

HENRIQUE DE CASTRO,
The Secretary-General.

A true translation:

J. FREDRICO ELMORE,
Secretary Peruvian Legation.

[Inclosure 4.]

convention.

Yedo , October 28, 1867.

The undersigned having met to consider the memorial of the land-renters at Yokohama to the foreign representatives, dated July 15, 1867, requesting that the Japanese government may be called on to assure the control and management of the municipal affairs of the foreign settlement of Yokohama, have agreed to recommend to the Japanese government the adoption of the following measures, as being essential under present circumstances of order and health within the said foreign settlement:

I.: That an office, to be called land and police office, be formed under the Japanese government at Yokohama, and placed in charge of a foreign director, who will be subordinate to the governor of Kanagawa.
II.: The said director, acting under the authority of the governor of Kanagawa, shall see to the repair, cleanliness, and efficiency of all the streets and drains in the foreign settlement of Yokohama. He shall be authorized to receive such complaints relative to police or the state of drains and thoroughfares as may properly be addressed by foreigners to the local government direct, and in the name of the governor of Kanagawa will prosecute foreigners before their own authorities for nuisances or any infringement of public order.
III.: The said director, acting under the authority of the governor of Kanagawa, will have the charge and direction of all foreigners who may be employed as for police, for the maintenance of security and order within the foreign settlement of Yokohama, or for the repression of disorderly conduct on the part of foreigners within the port of Yokohama.
: Whenever a subject or citizen of a treaty power is arrested in the commission of an offense by the said director, or any foreigner or Japanese acting under his direction, or the orders of the governor of Kanagawa, the person so arrested must be conveyed at once to the consul of his nation, who will take steps for the detention of the offender until he can be prosecuted.
IV.: The governor of Kanagawa, acting with the advice of said director, and with such advice as he may obtain from foreign consuls, will exercise jurisdiction, both civil and criminal, on the subjects of China and the subjects and citizens of other non-treaty powers residing within the said settlement or within the port of Kanagawa.
V.: The land-rents payable by foreigners will be collected by the said director as soon as they become due, for and on account of the governor of Kanagawa, and the said director, acting in the name of the governor of Kanagawa, will be empowered to sue foreigners for default of payment before their own authorities.
VI.: The undersigned undertake to instruct their respective consuls to confine within the narrowest limits compatible with public convenience, the number of licenses issued by them to their respective subjects or citizens, as sellers of foreign spirits or liquors, or as keepers of houses of entertainment, within the foreign settlement or within the port of Kanagawa. A copy of every license will be furnished by the consul, as soon as it is issued, to the governor of Kanagawa, and the said director will inform against [Page 598] any person who sells liquors or keeps a house of entertainment without the license of his authorities.
VII.: The Japanese government will make arrangements for the safe storage at reasonable rates, of gunpowder, or other explosive substances imported into the port of Kanagawa, and the undersigned will take the necessary steps to prevent their respective subjects or citizens from using any other place for the storage of those dangerous substances.

HARRY PARKES.
L. RICHES.
R. B. VAN VALKENBURGH.
VON BRANDT.
D. De GRÄFF VON POLSBROCK.

A true copy.

J. FREDRICO ELMORE,
Secretary Peruvian Legation.

[Enclosure 5.—Translation.]

To His Excellency R. B. Van Valkenburgh ,
Minister Resident of the United States of America:

I have the honor to inform the following to your excellency:

The regulation of police and road within the foreign settlement of Yokohama, being negotiated between your excellency and English, Netherland, and Peruvian ministers, is sent to me by the English minister.

I have also agreed with it, and taken on the moment Mr. Martin Dohenen, in English consulate, in service to charge with the police of settlement.

Inclosing the said regulations, I have to bring it to your excellency’s notice.

With respect and esteem,

OGUSAWANA EKE NO KAMI.

The 22d day of the 11th month of Kei, 3 years.

A true copy:

J. FREDRICO ELMORE,
Secretary Peruvian Legation.

[Inclosure 6.]

Legation of the United States in Japan,
Yedo , November 16, 1867.

No. 64.]

Sir: I have the honor to transmit herewith. (No. 1) copy of an arrangement providing for municipal government at Yokohama, (Kanagawa,) which is unanimously adopted and agreed to by the foreign representatives and the Japanese government.

You will perceive that the principle of exterritoriality has been carefully preserved, and that the citizens of the United States are in all cases of offense answerable only to the jurisdiction of our own authorities.

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

R. B. VAN VALKENBURGH.

Hon. W. H. Seward ,
Secretary of State, Washington, D. C.

A true copy:

J. FREDRICO ELMORE,
Secretary Peruvian Legation.

[Inclosure 7.]

Government Office, Kanagawa , June 3, 1872.

Gentlemen: Concerning the complaint made by Captain Spinks of the Tunesian steamer Zadkia against the crew on board of said steamer, which I have to investigate at this kencho at 10 o’clock a.m., on Wednesday next, the 5th day of June, I request you kindly to let me know whether you will attend said case in accordance with the convention concluded on the 28th October, 1867.

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

MUTZU MENCENUTZU,
Kanagawa Ken no Kami.

The Consuls of the foreign powers.

A true copy:

J. FREDRICO ELMORE,
Secretary Peruvian Legation.

[Inclosure 8.]

Government Office, Kanagawa , August 6, 1872.

Sir: You are hereby requested to appear in this government office, together with the Chinese that has been sent back on board by the police, to-morrow, Wednesday, the 7th August, at 10 o’clock a.m.

KANAGAWA

, Kencho.

Captain Ricardo Heriera,
Peruvian bark Maria Luz.

A true copy:

J. FREDRICO ELMORE,
Secretary Peruvian Legation.

[Inclosure No. 9.]

Danish Consulate-General,
Yokohama , August 6, 1872.

Sir: With reference to the inclosed copy of the minutes of the consular meeting held to-day for the purpose of considering the finding and recommendation laid by your good selves before the consular board in the case of the Peruvian ship Maria Luz, I beg to forward to you a copy of the recommendation and advice given by Mr. Zappe, His Danish Majesty’s acting consul-general, to which Mr. Loaviro, consul for Portugal, Mr. Bruni, acting consul for Italy, and myself give our full approval.

I remain, sir, your obedient servant,

E. DE BAVIER,
His Danish Majesty’s Consul-General.

Consular meeting held at the German club, August 29, 1872. Present, E. de Bavier, esq., His Danish Majesty’s consul; E. Lourend, esq.; F. W. Hill, consul; A. L. Bauduin, esq., His Netherlands Majesty’s acting consul; F. Bruni, esq., Italian consul; E. Zappe, esq., His Imperial German Majesty’s acting consul-general; C. O. Shepard, esq., United States consul; Russell Robertson, esq., Her Britannic Majesty’s consul.

Mr. Zappe reads his written objection to the judgment delivered in the case of the Maria Luz by the local Japanese government.

These objections are supported by Mr. Bavier, Mr. Lourin, and Mr. Bruni.

Mr. Robertson agrees with the finding and recommendation of the Japanese authorities.

Mr. Shepard, considering that the letter of the convention of October, 1872, having been complied with by the governor, and farther considering that the matter is one in which only the Japanese, Portuguese, and Peruvian governments are concerned, declines to express any opinion or give advice.

Mr. Bauduin is of opinion that the governor of Kanagawa, after the convention of October, 1867, ought to have called for the advice of the consular body about the steps to be taken in the case of the Maria Luz. The governor did not do so, and made himself a court of inquiry, and afterward submits his decision to the consideration of the consuls. That, therefore, Mr. Bauduin does not agree with the steps taken by the governor in the matter from the very beginning, and wishes now to leave entirely to him the responsibility of such decision as he thinks proper.

Oye Takee, esq., Kanagawa Ken Gon no Kami. I cannot approve of the finding and recommendations laid before me by the Kanagawa kencho, because—

1.

The governor recommends to punish an offense about which no trial has taken place. The inquiry I have partly intended, I have been several times assured by the governor was to be only a preliminary inquiry, and a judgment can only be given after a formal trial has taken place.

2.

Even if I admit that the proceedings just now referred to have been a regular and lawful inquiry, even then I cannot give my consent to the finding and recommendation in question, because all the evidence which has been elicited is one-sided, the court having heard the evidence of the complaining parties only, and since the contract which each coolie has entered into is an agreement between two different parties in the presence of witnesses, each contract bearing the stamp of the government office in Macao and the signatures of two Portuguese government officers, these parties must be heard before a decision can be given about the validity of the contract.

3.

Too little weight has been bestowed on the evidence of the captain, who flatly contradicts the statement of each coolie, notwithstanding the fact that each contract is in his favor—that is to say, corroborates his statements. The construction of the court has not been in accordance with the convention of October, 1867, which provides that the government shall exercise jurisdiction over non-treaty subjects with the municipal director, and with the advice of the foreign consuls if obtainable. In this case the governor has not once, up to the present, deemed it necessary to ask my advice or to ask the advice of my colleagues, although he has taken steps in the matter of the Peruvian ship Maria Luz which carry with them grave responsibilities. On the contrary, the court has in reality only been constituted by the governor and a Mr. Hill, known to me as a practitioner in Yokohama, not to mention foreign functionaries not connected with the board of consuls, who obtained permission to put questions to the coolies, although, if the stipulations of the above convention had been observed, Mr. Hill would scarcely have had a right to occupy the conspicuous place on the bench which he did occupy, as if he had been called there by the joint consent of the consuls and the governor. But, even if I waive my former objections, I come to the question which I consider the most important to be decided on, namely, the question of competence to exercise jurisdiction in this matter; and, after due deliberation, I must deny the competency of Japanese authorities. The right of jurisdiction, civil or criminal, over all persons and property within the territorial limits, which is incident to a state relating to its own subjects and their property, extends also, as a general rule, to foreigners commorant in the land. This means, in other words, that territorial jurisdiction may be exercised over foreigners commorant within the territories of a state for offenses or crimes committed within the limits of a state. The right of the Japanese authorities to exercise jurisdiction over the Maria Luz and the captain is doubly dubious, because—

1st.: The captain, and the property in his charge, the ship, are not commorant within the limits of the Japanese territory, but have only been forced into these limits by powers over which they had no control—by winds and weather—and would have left these limits if force had not prevented their leaving.
2d.: The Japanese authorities are not competent to punish offenses or crimes committed on the high seas under the Peruvian flag, which is equal to being on Peruvian territory.
3d.: The Japanese authorities are not competent to give a decision on the validity or non-validity of a contract made between foreigners in places outside of Japan.

My advice, therefore, is, to return the coolies to the ship, and put the captain on formal trial for offenses committed in this harbor, if such is deemed necessary.

ED. ZAPPE.

True copies:

J. FREDRICO ELMORE,
Secretary Permian Legation.

[Inclosure 10.]

Kanagawa , August 30, 1872.

Sir: Your opinion upon the finding and recommendation in the case of the Maria Luz has been received by me, and has had my very careful attention.

The finding and recommendation had already been by me submitted to the foreign department of the empire and approved; and your communication dated yesterday has also (last evening) been transmitted by me to the foreign office for its consideration.

I am now directed by that department to deliver a judgment in accordance with the finding and recommendation.

As to the objection made in yours, I shall take an early opportunity to give you more fully in writing my reasons for the finding, and some explanation of wherein I think you have taken an erroneous view of the matter.

I have the honor, &c.,

OYE TAKEE,
Kanagawa Keii Gen. no Kaim.

Ed. Zappe, Esq.

A true copy:

FREDRICO ELMORE,
Secretary Peruvian Legation.

[Inclosure 11.]

Superintendency of Chinese Emigration from Macao.

No. 4.]

Most Illustrious Sir: I have the honor to forward herewith, to be presented to his excellency the governor, a table showing the movement of the colonists who emigrated [Page 601] through this superintendency during the year 1872, i. e., from January 2 to December 31.

As it is seen, there was last year an increase for Horuma of 908 colonists, and for Peru an increase of 3,429, being a total increase of 5,022.

The difference in the number of ships that received emigrants was six more than last year, five of them being steamers.

The increase in the number of colonists who left this port in that year is certainly due to the suitable measures taken by his excellency the governor at the commencement of his government, and which were of urgent necessity.

This office has made the greatest efforts in its power in order that his excellency’s orders should be, strictly carried out and the desired object obtained.

I am happy to repeat that no disaster is to be deplored last year, and that if all the ships have not arrived at their ports of destination as was hoped for, it has only been on account of the changes in the seasons which have lately done so much damage. Nevertheless, we know already of some having arrived in excellent condition, as may be seen by the reports of the respective consuls. The only circumstance which clouds this statement is the fact which occurred with the Peruvian bark Maria Luz, which, through stress of weather, arrived in Japan on the 9th of July, a case to which I referred in my note No. 350, of August 30, showing the little credit that ought to be given to the declarations which it was said the colonists were making before the Japanese court, as the names that they gave out there as their own did not exist in the books of any of our offices, which makes us suppose that even in this they swore falsely.

I beg also to report, in this place, that many of the emigrants who in that bark put into Japan have again emigrated through this superintendency in several ships, and they continue from time to time appearing in small numbers in order to re-embark again with the greatest satisfaction. I am also happy to be able to say that I am indebted to the good services, the honesty, and the prompt aid of the officers of this superintendency for being able to present now the inclosed table, which shows the favorable results obtained this year.

I hope that the labors of this office will be approved by his excellency the governor.

If his excellency thinks proper, I beg your honor to please have the table published, as is customary, in the Boletine of the province which your honor so ably conducts.

God preserve your honor.

Superintendency of Chinese emigration, Macao, January 4, 1873.

H. A. PERIRA RODRIGUES,
Superintendent of Chinese Emigration.

To the Illustrious Señor Henrique de Castro,
Secretary General, &c.

A true translation:

J. FREDRICO ELMORE,
Secretary Peruvian Legation.

[Inclosure 12.]

Convention of peace between Her Majesty the Queen of England and the Emperor of China’ signed at Peking 24th of October, 1860.

Article V.

As soon as the ratifications of the treaty of 1858 shall have been exchanged, His Imperial Majesty the Emperor of China will by decree command the high authorities of every province to proclaim throughout their jurisdictions that Chinese choosing to take service in British colonies or other ports beyond sea are at perfect liberty to enter into engagements with British subjects for that purpose, and to ship themselves and their families on board any British vessels at any of the open ports of China; also, that the high authorities aforesaid shall, in concert with Her Britannic Majesty’s representative in China, frame such regulations for the protection of Chinese emigrating as above as the circumstances of the different open ports may demand.

Convention of peace between the Emperors of France and China, signed at Peking 25th October, 1860.

Article IX.

On the exchange of the ratifications of the treaty of 1858, His Imperial Majesty the Emperor of China will by decree notify to the high authorities of every province that Chinese choosing to take service in the French colonies or other ports beyond the sea are [Page 602] at perfect liberty to enter into engagements with French subjects for that purpose, and to ship themselves and their families on board any vessel at any of the open ports of China; also, that high authorities aforesaid shall, in concert with the representative in China of His Imperial Majesty the Emperor of France, frame such regulations for the protection of Chinese emigrating as above as the circumstances of the different ports may demand.

[Translation.]

Treaty of friendship, commerce, and navigation between Spain and China, signed at Tien-tsin 10th of October, 1864.

Article X.

The imperial authorities shall permit that Chinese subjects, when they wish to go as laborers to the Spanish colonial possessions, may make contracts to that effect with the Spanish subjects, and that they may embark alone or with their families in any of the open ports of China; and the local authorities shall establish the necessary regulations in each port, in concert with the representatives of Her Catholic Majesty, for the protection of the said coolies. Deserters and those who may have been taken against their will shall not be admitted. If such a case should arise the local authorities may communicate with the Spanish consul, in order to have them returned.

J. FREDRICO ELMORE,
Secretary Peruvian Legation.

True copies and translation.