Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873, Part I, General Correspondence; and Papers Relating to Naturalization and Expatriation, Volume I

No. 262.
Mr. De Long to Mr. Fish.

Legation of the United States,
Yokohama, Japan, June 19, 1873. (Received July 22.)

No. 429.]

Sir: A few days since the Japanese minister handed to the Peruvian envoy his reply in the Maria Luz case. At my request he very courteously allowed Mr. Rice to make a copy of the original on file in the foreign office. (Inclosure No. 1.)

The Japanese minister, a day or two before sending in this answer, conversed with me at great length relative to it. I was a little at a loss when he finished to know exactly what he meant for me to understand, but, on the whole, I gathered the idea that this reply had been considered by the grand council in two lengthy sessions, the Emperor being present in person. That while this had been adopted they entertained grave doubts relative to its correctness, and would welcome an offer to arbitrate should it be made by the Peruvian minister: and it was desired that in some way, without committing him, I would make this known to the Peruvian government, also letting him know that he, the Japanese minister, was prepared to discuss the case further, verbally or in writing. There seemed to exist an apprehension that the Peruvian government would treat their reply as an end of the discussion and resort to hostilities.

As requested I called on Señor Garcia and told him that I had been advised by the Japanese minister that his reply would be sent in within two days; that it would be at variance in its argument and conclusion from the case as stated by him, but that I felt well satisfied that any further discussion he might wish to hold would be welcomed by the Japanese, who in their anxiety to keep the peace and do justice, I felt convinced, would consent to an arbitration if proposed by him.

He thanked me for my information and deferred further comments until the answer should be received, remarking, however, that it was not for him to propose an arbitration when such a course had been indicated by the Japanese minister in opening the case. I replied that this was denied by the present minister, who claimed that what was said on that subject was merely a passing remark to the effect that in presenting his side of the case if any difficulties presented themselves that he should confer freely with the representatives from foreign states at the Japanese court. This was disputed by Señor Garcia, who assigned very good reasons against its verity. I urged him to press the discussion further, and not treat the reply as conclusive; and I also intimated an opinion that he might, with great propriety, propose the arbitration. He dissented strongly from this view, stating that if he should propose this and it should be rejected, his position would be very unenviable. I replied that I had excellent reasons for stating that it would be accepted. He replied that he would, after receiving the answer, let me know his views more at length. A few days afterward I met him and we read over the answer together. He asked my opinion as to whether he should reply in writing, or ask for a conference. I replied that if in his position I should prepare a reply in writing briefly and pointedly stating the points in controversy, and then request an interview at which to discuss those points. He seemed to agree with this view, and then asked me, if I should be requested so to do, if I would, as a mutual friend lending my good offices to each, suggest to both a reference of this matter to arbitration, provided in the end no agreement could be arrived at between the two principals. I replied that I would do so with pleasure. Señor Garcia, with some bitterness of tone, then called my attention to the paragraph in the reply wherein it was stated that it, the Japanese government, had been counseled to take the action that it did with regard to the Maria Luz, by the British and American chargé d’affaires, and he asked me if this was indeed true. I had to admit that it was, to the extent of Mr. Shepard’s having written a note seconding Mr. Watson’s demand for an investigation into the affairs on board of that vessel.

Señor Garcia then remarked that from the newspapers he had learned that you had approved of Mr. Shepard’s action in this affair. I replied that this was true, but that I believed it was also true that when you did so you had no knowledge that Mr. Shepard had taken the action now referred to. He then intimated an opinion to the effect that I should have let him know of this. I replied that it wasi nformation lie had not called for, that I did not consider it material for him to have, and thereupon useless to mention. He replied that he felt it to be his duty to address Mr. Freyre a note on this subject, as it now appeared that while this captain was appealing to Mr. Shepard for aid, he, Shepard, was not merely refusing assistance, as his reply to the captain stated, but at the time, and secretly, he was prompting the persecution. I replied that I regretted that he should feel that he had any cause of complaint; that I did not believe that this note of Mr. Shepard’s had in any manner influenced the action of this Government, and I had kept silent about it mainly because my relations with Mr. Shepard not being very kind, and nothing having been said calling this out, I felt that to make it known voluntarily would bear the appearance that I was doing so with the purpose of involving Mr. Shepard in trouble.

The minister replied that he well understood my feelings, and on my account would with pleasure pass the matter by, but he felt it to be his duty to make known to Mr. Freyre this heretofore unknown action of Mr. Shepard. This terminated our interview, and I have not since heard anything of the case.

I am, &c.,

C. E. DE LONG.

Mr. Oyeno Kagenori to Mr. Garcia.

[Inclosure 1.—Translation.]

Foreign Office, Tokée,
The 13th of 6th month of 6th year of Meiji.

Sir: I have the honor to acknowledge the receipt of the letter which you addressed to me under date of March 31, 1873, in relation to the case of the hark Maria Luz.

That vessel entered the port of Yokohama in order to repair damages suffered at sea. If engaged in a legitimate commerce, hospitality and protection were due to the officers, the crew, and the passengers on board.

I do not think it necessary at this time to inquire whether the employment of a vessel in what is known as the coolie trade may justly debar her from the privileges granted to ships overtaken by marine disaster upon a voyage of the most inoffensive and honorable character.

The privilege which the usage of nations has allowed to ships taking refuge in their ports, not from choice but from necessity, rests in part upon a motive of humanity, in part upon the principle of natural justice, which exempt from punishment those whose offense was committed involuntarily, and without evil intention.

Humanity dictates that such succor shall be given as will enable the vessel to resume her voyage; justice requires that the owners, the officers and crew shall not be subjected to penalties prescribed by a local law they had no design to violate; especially if the penalty, by condemning the vessel or imprisoning the crew, would bring the voyage to an end.

These principles do not apply to free passengers not bound to nautical service. The presence of such persons on board is not essential to the navigation of the ship, but imposes trouble, expense, and often danger, as was illustrated in the short voyage of the Maria Luz.

If the case of the Creole, to which your excellency refers, seems to extend the doctrine of immunity from local jurisdiction to passengers, it is only because the living cargo of that ship were treated as property only.

They were slaves, mere chattels, by the law of the states in which they were born, and simply in virtue of their birth. They were in the evil days when the Creole case arose, and was decided just as much freight as pigs or oxen would have been.

Nobody thought of calling them passengers, or even emigrants.

Having thus stated the only reasons for any discrimination between vessels entering a foreign port in distress and those which voluntarily come within an alien jurisdiction, I invite your excellency’s attention to the opinions of most ancient writers on international law as to the extent of that jurisdiction.

Sir Francis Travers, D. C. L., recently Her Britannic Majesty’s advocate general, in his work “On the rights and duties of nations in time of peace,” says: “So complete (page 230) is the authority of the lex loci over all persons and property on board of private vessels that if a vessel under the British mercantile flag were to enter the port of Charleston, having free negro sailors among her crew, the mercantile flag will not protect those sailors from the operation of the territorial law of South Carolina, which forbids a free negro to be at large within the limits of that State.

“It has thus frequently happened that negroes, or persons of color, though free subjects of Her Britannic Majesty, and duly entered on the muster-roll of a British merchant-vessel, have, on such vessel entering the port of Charleston, been taken out of her by the officers of the port under the authority of the local law, and have been detained in custody until the vessel has cleared outward, when they have been again placed on board the ship, with permission to leave the country.”

It is not necessary for me to justify this practice, but I may remark that so strong and proud a nation as Great Britain submitted to it so long as slavery prevailed in the United States, not only in Charleston, but in Mobile, New Orleans, and other ports.

The American writer, Halleck, (page 172,) states the rule to be that “the local authorities have the right to enter on board a foreign merchant-vessel in port for the purpose of inquiry universally, but for the purpose of inquiry only in matters within their ascertained jurisdiction.”

He proceeds to state that facts happening on board “which do not concern the tranquillity of the port, or persons foreign to the crew, or acts committed on board while such vessel was on the high seas, are not amenable to the territorial justice.”

Wheaton says that the legislation of France waives, in favor of such vessels, the exercise of the local jurisdiction to a greater extent than appears to be imperatively required by the general principles of international law. He then shows that the liberal waive of jurisdiction does not extend to offenses committed on board of it, against persons not belonging to the ship, citing in translation a decision of the council of state in 1806.

The original text of this decision shows plainly the distinction between the crew and others on board not belonging to the crew. I extract as follows:

“Les gens de son equipage sont egalement justiciable des tribunaux du pays pour les debits qu’ils y commettraient méme à bord, euvers des personnes étrangérs à l’equipage. Mais que si jusque lá la jurisdiction territoriale est hors de donte il n’eu est pas ainsi á l’egard des debits qui se commettait à bord du vaisseau neutre de la part d’un homme de l’equipage neutre euvers un autre homme du méme equipage.”

Calvo, the most eminent of South American writers on international law, declares that the absolute exemption from local jurisdiction belongs certainly and in full right only to ships of war, as a general rule, in the absence of stipulations to the contrary; exceptionally sanctioned by treaty, this exemption is never extended to commercial vessels.

He adds that the interests of maritime commerce, the peculiar police and discipline required for navigating the high seas, have nevertheless called for certain derogations from the rigor of this rule; they result sometimes from express international agreements, sometimes from local laws or administration measures. It is clearly his opinion that the exemption is not granted as a matter of obligation, unless when secured by treaty, but simply at the will and the comity of the power which concedes the favor.

I might quote other authorities to establish the distinction between crew and passengers in regard to exemption from local jurisdiction. I content myself with adding that whatever reasons may justify the exercise by the ship’s captain of a certain degree of coersive discipline upon his passengers on the high sea, where their conduct may endanger the safety of the ship and the lives of their companions, those reasons entirely fail when the vessel is sheltered in a friendly port and can obtain any necessary assistance from the authorities on shore. The captain is the master of his crew. To his passengers his relation is rather that of servant, analogous to that of the keeper of a hotel to the guests whom he has taken to provide with food, lodging, and attendance. I have thus asserted the right of territorial jurisdiction only in respect to controversies between the captain or a crew of a merchant-vessel and persons not belonging to the crew. This was sufficient in strictness for the present discussion.

As, however, your excellency appears to have access to the published diplomatic correspondence of the United States of America, I take the liberty of referring you to that collection to show that the two greatest commercial nations of the world understand the territorial jurisdiction to extend also to the captain and the crew.

In volume 1, Diplomatic Correspondence for 1866, 1867, page 140, you will find the letter of Mr. Adams, American minister in London, to the Secretary of State, in which the writer narrates the protest of the captain of the ship Kentuckian against the action of the authorities of Sutherland in releasing a certain number of his crew, confined by him on board under the advice of the United States consular agent, for threatening to desert the ship. Not only did they do this, but they also inflicted a fine on him for what they allege to have been an unjust assault.

Mr. Adams then states that after examination of the correspondence of his predecessors with the British Government, he finds “that without the presence of any treaty stipulations touching this matter, there is no power whatever to control the action of the local authorities upon all cases of desertion, mutiny, or refusal to work, among seamen belonging to foreign vessels in the ports of this kingdom.”

Upon page 169 of the same volume, you will find an instruction from Mr. Seward to Mr. Adams, proposing the negotiation of a consular convention to remedy the inconveniences of such a state of things as Mr. Adams described.

In the same volume will be found a letter from Mr. Buchanan, minister in London, to Earl Clarendon, in which he says: “The necessity for a treaty stipulation on this subject cannot be more forcibly illustrated than by the case perfectly within the Earl of Clarendon’s knowledge, of mutiny which occurred on board the American ship Sovereign of the Seas, in the month of March last, (1854,) on her voyage from Melbourne to London. On that occasion ten persons proved to have been guilty of mutiny were discharged from confinement for the reason that no law exists in England authorizing their detention.”

The action of the British tribunals, and the submission of the United States to it, can only be accounted for by the recognition by both nations of the doctrine that in the absence of a treaty there was no obligation requiring or even permitting the local authorities to waive their jurisdiction over even seamen of a foreign nation, who, being within a foreign port, claimed the protection of the local law, for in the words of Dr. Phillimore, now the head of the English court of admiralty, “it is a maxim that each state has a right to expect from another the observance of international obligations without regard to what may be the municipal means which it possesses for enforcing their observance.”

If this maxim could ever have been doubted, its truth and force have been emphatically established by the recent decision of the Geneva arbitrators upon the so-called Alabama claims of the United States against Great Britain.

Your excellency has stated, not with absolute precision, but with sufficient accuracy for the purpose of this discussion, what were the circumstances which induced this government to make an inquiry about outrages said to have been committed by the captain of the Maria Luz, in the harbor of Yokohama. These were alleged to be not punishments inflicted to maintain discipline among his crew, but the beating, maiming, and imprisonment of persons whom to the last hour Captain Heriera designated as passengers.

To justify an inquiry, it is only necessary that this government should have had credible information that it was reasonably probable an offense had been committed. An inquiry is, in the nature of things, an attempt to ascertain the truth of allegations not sufficiently verified to justify action upon the mere assumption that they are true. The credibility of the informant is to be judged in the first instance by his personal character.

Whether his allegations were rash surmises or were supported by the facts can be determined only by the evidence brought out upon the inquiry.

The information came originally in the form of an official letter to the gaimushe from Mr. Watson, Her Britannic Majesty’s chargé d’affaires, supported by a letter from Mr. Shepard, then the chargé d’affaires of the United States, who also prayed that an investigation might be made.

I am sure that your excellency will be slow to suggest that a written statement made by the diplomatic representative of a friendly power is not prima facie credible. If in the case of a private individual, this government might have required the sanction of an oath, before taking any action based upon his statement your excellency is very well aware that the representative of a foreign nation is privileged from being called upon to testify, or rather that it is the privilege of his sovereign that he shall be exempt from being called as a witness in the country to which he is accredited.

You may not be aware, however, that what in Christian countries is called an oath—a solemn appeal to Heaven in attestation of the truth of one’s statement—was a ceremony unknown in the judicial tribunals of Niphon.

This government was entirely free to institute an investigation in any mode and by any agents, executive or judicial, which its laws provided.

In point of fact, for ages before and during the proceedings in the Maria Luz case, the executive officers of each province [Ken] were also clothed with judicial functions. This may have been an imperfect mode of administration and it has been changed. But every nation is free to adopt its own methods, and to apply them indiscriminately to natives and to aliens.

The rule of international law was laid down by Mr. Secretary Marcy to the American minister at Vienna, in an instruction, dated April 6, 1855, in these words:

“All that we can ask for our citizens in a foreign country is that in proceedings against them she shall give the full and fair benefit of her judicial system, such as it is.”

On the 27th of February, 1823, Mr. Caverning, the illustrious secretary for foreign affairs of Great Britain, spoke thus in reference to the case of a British subject who had been imprisoned for some time in France, upon mere suspicion, and was then dismissed without trial:

“It is one of the most important principles of the law of nations that a stranger vetting a foreign country, virtually hinds himself in a temporary and qualified allegiance to its laws, and submits to their observance, however unwise such laws may appear to him to be, however harsh and oppressive they are. * * *

“When an Englishman goes to France or to Spain, to Russia or to Prussia, his own government cannot be expected to protect him from the operation of the laws of the countries in which he may be; nor when he goes to such places as Constantinople, Aleppo, Algiers, and other despotic states where law is scarcely heard of, is he to expect that British laws and institutions are to be transplanted thither for his peculiar protection or to distinguish him from the other subjects.”

A very instructive case on this point is that of the discussion between Great Britain and Paraguay, arising from the imprisonment in the latter country of Canstatt, who claimed to be a British subject.

The correspondence was conducted on the part of Paraguay by Mr. Charles Calvo, special envoy for that purpose, and honorably known not only in South America, but throughout the world, as an experienced statesman, and most learned and conscientious writer upon international law.

He was supported by written opinions of Doctor Phillimore, now the chief judge of the British court of admiralty, and by Mons. Thouvenal and Mons. Drouyn de Lhuys, one then French minister for foreign affairs, the other law-officer of the foreign department, and afterward minister.

Canstatt had been imprisoned several months. For a considerable time he was excluded from all legal advisers or private friends, or the British consul, who formally demanded an interview with him. The preparatory evidence was collected without his being confronted with the witnesses against him. Nevertheless, these severe proceedings were successfully defended, upon the ground that Canstatt had been subjected to no different treatment than a Paraguayan would have experienced in similar circumstances.

Dr. Phillimore said, “that the laws and customs of England in criminal proceedings are better, wiser, and more humane than those of Paraguay is true, in my own personal opinion, but it is nothing but a petitio principii (begging the question) to apply this opinion to a foreign state. It is notorious, for example, that the principles and the modes by which criminal trials are conducted in France are in many cases and in various respects altogether opposed to the principles and the method of criminal proceedings in England; but an Englishman put upon trial for having attempted the life of the Emperor would demand in vain the application of rules for his defense which are regarded in England as inseparable from justice.”

Lord John Russell was reminded by Mr. Calvo that he had, on the 31st of January, 1860, in the House of Commons, defended the refusal of the British government to interfere in behalf of a British subject who had been confined in Spain for seven months without trial, for no other offense than selling English Bibles.

The principle that every country is free to administer its own laws after its own fashions, which has been more than once vindicated with great ability by the statesmen of Peru, makes it unnecessary for me to reply to your excellency’s criticisms on the manner in which the preliminary inquiry into the treatment of the passengers on the Maria Luz, in the harbor of Yokohama, was conducted, or that of the two civil suits instituted by Captain Heriera in the Kanagawa kencho. The first of those proceedings, if in any sense judicial, was like the proces d’instruction in the nations of continental Europe, or the inquiry by a grand jury in Great Britain and in the United States.

So far as it differed from those methods of investigation it was favorable to Captain Heriera, because he was permitted to confront and to cross-examine the witnesses against him, to have the assistance of counsel, and to produce witnesses in his defense if he desired. Neither in these respects nor in any other was there a violation of the principles of universal justice, the observance of which may be required of all nations, whatever their diversities in form and methods.

While I deem it unnecessary, yet, out of respect for your excellency’s opinion, I think it right to correct some errors into which you have fallen regarding the persons who were charged with the preliminary inquiry at the Kanagawa kencho, and also in regard to what you call the Jedo convention of 1867. The copy of that paper, in the dispatch of Mr. Van Valkenburgh, (marked No. 6 of the inclosures,) with your letter, is designated by him by the less imposing title, “an arrangement.” In truth, it was not in form or substance a convention, in any diplomatic sense. In the preamble it only purports to be a recommendation made by certain foreign ministers, not in the name nor on behalf of their respective governments, but as the friendly agents of land-renters at Yokohama. The latter wished the government to resume the control and management of municipal affairs in the foreign settlement, which the land-renters had found onerous and expensive. The principal feature of the arrangement was the establishment of a land and police office in charge of a foreign director, “who will be subordinate to the governor of Kanagawa.”

The fourth section provides for the exercise of jurisdiction by the governor of Kanagawa, acting with the advice and assistance of said director, and with such advice as he might obtain from foreign consuls, over the subjects of China and the subjects and citizens of non-treaty powers,

This not being an international compact, it was not reduced to the form of a solemn convention, and was never ratified by His Majesty the Tenno, or the Thozun, or by the chief of any of the treaty powers.

It was a temporary arrangement thought essential, say the foreign ministers who recommended it, “under present circumstances, to secure the maintenance of order and health within the foreign settlement.” It did not fix any time during which it should remain in force. It is, therefore, either binding forever, or it might be abrogated at the pleasure of this government. This is particularly true of the fourth article, which, if considered as a perpetual obligation, is one of ridiculous absurdity. All the treaties made by Niphon were by their express provisions to expire at her option in July, 1872. It is impossible to suppose that the foreign minister, or the officers of the Thozun who accepted their recommendation, intended to make an arrangement which should control the rights of subjects of powers which they did not represent for any longer a period than their own fellow-subjects whom they did represent.

Peru was then and is now a non-treaty power.

Your excellency would be astonished and indignant if you were told by the officer whom His Majesty the Teuno may authorize to negotiate with you a treaty of amity and commerce, that, while perfectly free on all other points, we cannot relieve the citizen of Peru from being subject to coercive jurisdiction exercised by the majority of a board of foreign consuls. You would ask, I think, by what right the ministers of Great Britain, France, the United States, Germany, and Holland undertook to stipulate in what manner the citizens of Peru should be tried, not for a few days, “under present circumstances,” but for all time? If the pretension of some of the consuls were admissible, that they had a right not only to give advice, but that their advice or that of a majority of them should be controlling—so that the governor of Kanagawa would be only a mouth-piece to utter their decision—then the extraordinary result would follow, that this government might be made responsible to a foreign nation for an erroneous decision which it had no power to prevent or reverse.

In point of fact the governor of Kanagawa in the preliminary inquiry did have the advice and assistance of the foreign municipal director. He moreover invited the attendance and advice of the foreign consuls, as he did that of certain legal gentlemen to whom you allude.

He adopted just so much of the advice of those persons as commended itself to his judgment and conscience. He disregarded the rest, as was his right and his duty. He was to be responsible for the recommendation he should make as to the result of the inquiry, not they nor any of them.

The governor’s investigation led him to the opinion that while Captain Heriera had rendered himself justly liable to punishment for acts of cruelty to his passengers, committed in the harbor of Yokohama, yet, in consideration of the delay and inconvenience he had sustained, he recommended that his offense should be overlooked, and he be permitted to depart with his vessel. This recommendation was approved, and no further proceedings were taken against Captain Heriera. His ship was never subjected to any process or detention by this government. The captain himself stated to the court when it was hearing the civil action brought by him, “I understood that it was wished that I should leave with the ship and let the coolies remain behind, without giving any more trouble to the kencho.”

The captain chose to detain his vessel while the inquiry was in progress. During that time he was relieved from the expense of feeding his passengers, who, being kept as witnesses, were provided with food and lodging by this government. As to any delay caused by the civil suits, this was a matter of his own will, as was the subsequent abandonment of the Maria Luz, first by himself and afterward by the crew.

It may be said that the detention of the passengers during the preliminary inquiry—the captain was never arrested or restrained—made it a practical necessity for him to detain the ship. Supposing this to be true, we come to the question, did the facts justify that inquiry? Your excellency has been furnished most frankly with the original record of the proceedings at the Kanagawa kencho, and has doubtless preserved in copy such extracts as you deem material. You remark that the greater portion of the “inquiry” was occupied with investigations into acts accomplished out of Japanese waters.

Let us see how that happened. The first witness was the Chinaman Mok-hing. The governor, after alluding to his having jumped overboard from the Maria Luz, being taken up and sent back to the ship, said to him, “I now wish to know exactly why you left the ship.” This was intended to call out any complaint he might have to make about wrong committed on him in the harbor, without indicating in the slightest degree the answer that was expected and desired.

Mok-hing, of his own accord, replied: “On the 18th day of the 4th month I was kidnapped by some Chinamen who brought me on board the ship * * *. A few days afterward I was locked up by the captain and ill-treated.”

Thus far his statement related to acts which had occurred within the jurisdiction of China, or upon the high seas. It was volunteered by him, not sought by the governor.

As he spoke only Chinese, which had to be translated into the language of Niphon, the governor could not know what he said until his answer was completed and turned into Japanese by the interpreter. The governor, therefore, could not arrest a statement if he had thought it irrelevant.

Mok-hing then continued in these words, (as translated into English,) making apart of the same answer:

“As I did not like to die on board the ship I jumped into the water. I was badly treated and struck, and finally my cue was cutoff.”

These last facts, abundantly confirmed by other testimony, occurred in the harbor of Yokohama.

I pause to remark that your excellency very much underestimates the injury to a Chinaman from the loss of his cue. The operation, it is true, occasions no physical pain. It is very probable that Captain Heriera selected this mode of punishment with the view of giving a most impressive and deterring example to the other Chinamen, without bodily suffering to the individual offender.

He had made six voyages with Chinese passengers, and he knew that the cutting off of the cue is an ignominious punishment in their country, and that the want of it is the mark of crime and degradation. You remark that the amputation of the cue is “not an affront, as very few Chinamen use their tails out of their own country.” This has probably been what your excellency has seen in Peru.

Practices like that of Captain Heriera may explain the fact. But you may easily observe that you meet no Chinaman in Japan destitute of his cue, nor will you find one among the thousands of Chinese who every year pass through Yokohama upon the American mail steamers; nor, as I am informed, will you find one among the nearly 100,000 Chinamen in the United States, unless he has been outraged by mob-violence or punished for crime by his own countrymen.

Immediately after Mok-hing was examined, and upon the same day, Captain Heriera was called upon for his statement. He admitted that he had put this man and three or four others in irons, and that he had ordered the cues of three to be cut off in the harbor of Yokohama. He asserted that all the people on board were well off, and added: “It is no use to ask one man only; ask twenty-five or thirty of them—as many as you like.”

The governor accepted this invitation.

He sent for and examined all the passengers then on board with the exception of a girl of tender years. The captain did not affect to conceal, on this examination, that the object of these punishments was to confine the passengers on shipboard. He said: “There was no help for it. If all the Chinamen were trying to get ashore, how should I do?” He gave, as a further reason for beating them and ironing them, that “they tried to put fire to the ship.” Being asked how many men, he replied, “All of them.’

This he said was within six or seven days previous to his statement, consequently it was after the arrival of the ship at Yokohama.

He also intimated at this time, what was fully proved upon the trial of the civil suits, that there had been a previous attempt of the passengers to set fire to the ship a few days after leaving Macao.

The Chinaman A’Tak testified that his cue was cut off by order of the captain because he escaped from the ship, and that the reason he ran away was because he had not enough to eat, and because he was beaten with a rattan. Almost all the Chinese complained of insufficient food, and several of cruel treatment. The facts admitted by Captain Heriera were amply sufficient to justify an inquiry into the condition of things on board the ship.

It was unmistakably shown that the passengers were dissatisfied with their treatment, and alarmed about the prospects for their future. Upon the trial of the civil actions the captain was called as a witness by his own counsel, as were also several officers of the ship.

We are entitled to the benefit of the corroboration thus volunteered to the allegations of the passengers.

I shall confine myself to the statements of the captain and his officers. The captain said that 15 or 20 of the coolies jumped overboard in the harbor of Yokohama, but they came back because they could not swim, the captain sending a boat to pick them up.

Your excellency speaks of the ennui which affects men not accustomed to life on ship-board. I must be pardoned if I hesitate to believe that this is sufficient to account for the willingness of fifteen or more men who knew that they could not swim, to peril their lives by jumping into the sea.

The captain also said, “I sometimes used a rattan for quelling the rebellion. I also put the conspirators in irons for thirteen or fourteen days, from the 9th day of June.” This shows that a state of aggravated ennui had developed itself at very early stage of the voyage.

The rebellion (as the captain called it) was described by Sevena, the ship’s steward, as an attempt by the passengers to set fire to the ship, which he himself discovered. Straw and other inflammable materials had been fixed for that purpose. All the passengers, he said, told that it had been arranged for such purpose.

He appears to have been experienced in such matters, for he added, “it had been done in the way it is generally done.”

Your excellency’s maritime experience has qualified you to state whether it is a usual occurrence, a thing “generally done,” for free passengers to sacrifice their lives by setting fire to their ship at sea. No such incident, I think, can be found among the millions of emigrants from Europe to North America.

From the statements of the captain and Ariers, the mate, it appeared that one passenger jumped overboard at sea on the 30th of May; another on the 6th of June, (two days before the first attempt to fire the vessel,) and a third at some date not known, but before the arrival at Yokohama. These antecedents were surely quite pertinent to the weighing of the probability of the complaints of wrong inflicted on the passengers after their coming within the waters of this empire. Suppose, for the sake of the argument, that this government had no right to relieve the passengers or to punish Captain Heriera on account of any facts which had happened upon the high seas, or in the territory of a foreign nation, nevertheless, for the mere purpose of ascertaining whether the captain or the passengers were to be believed in their conflicting stories about the treatment of them within the jurisdiction of Niphon, it was entirely proper upon all principles of judicial investigation to inquire into the history of the voyage so far as that would show whether the captain felt a necessity of using great severity to deter his passengers from abandoning the ship at Yokohama.

When the governor made his decision in the civil suits, refusing to compel two of the passengers to return to the Maria Luz, he acted in a judicial capacity.

I might invoke the well-known rule, that a nation has no right to intervene by diplomatic agencies in behalf of its subject, who supposes himself to have been injured by a judicial sentence, until he has exhausted all his remedies by appeal to the court of last resort. Neither Captain Heriera nor any other person made the appeal which they might have made to the shihosho, the highest judicial power of this empire.

I waive this objection for two reasons: First, because this government is content to abide the responsibility of the governor’s decision without desiring it to be reviewed by a higher tribunal; second, because I think the question was essentially one of extradition and the act of depriving a person of the protection of the government within which he may happen to be.

It is always one of executive or political administration, to which the judicial tribunals are only advisers, not the controlling power. I do not disclaim any one of the reasons by which Governor Oye Takee defends his decision, but I think a single one is sufficient to justify it.

The passengers had been brought on shore at the captain’s suggestion and by his request. They were legitimately in charge of the governor of Kanagawa. They begged the protection of this government. To drive them out of that protection under any pretense and by whatever name the process might be called, specific performance, for instance, is equivalent to the extradition of a fugitive criminal or of a deserting seaman.

I shall cite but one authority that there is no obligation of international law which requires one nation to hand over to another persons guilty of the blackest crimes unless there is a special treaty creating that obligation, which, in all cases, is reciprocal. When it has been done, as in some instances I admit it has been done, when no treaty required it, it was tor the reason that the presence of a criminal is dangerous to the peace and safety of the nation in which he has sought concealment and refuge.

Your excellency has referred to the case of the Creole. For that reason I quote from the letter of Mr. Webster (the American Secretary of State) to Lord Ashburton, the British minister, in relation to that very case: “If persons guilty of crime in the United States seek an asylum in British dominions, they will not be demanded until provision for such cases be made by treaty, because the giving up of criminal fugitives from justice is agreed and understood to be a matter in which every nation regulates its conduct according to its own discretion. It is no breach of comity to refuse such surrender.”

The right to refuse such surrender is made much stronger in the case of persons claimed only because they violate a contract which requires them to leave the country than in the case of persons who have been guilty of crimes. The contract of a seaman to assist in navigating a ship to the end of her voyage, is of the most honorable character. Your excellency, being yourself a gallant and distinguished sailor, has a natural abhorrence of the seaman who deserts his colors. If the sailors abandon a vessel she is quite as helpless as if she had lost her masts. All commercial nations have, therefore, the highest interest in compelling seamen to perform their contracts.

But you are very well aware that no obligation exists by which the nation in whose port a sailor deserts should compel him to return to his ship unless there is an express provision by treaty. The tenth article of the treaty between Peru and Great Britain, signed on the 10th of April, 1850, which creates such an obligation on both sides, is a proof that the obligation could only arise from a treaty. It was very carefully provided in the declaration made by Lord Malmsbury on exchanging the ratifications of this treaty, that it should not apply to seamen being slaves, who might desert from merchant-ships belonging to citizens of Peru.

Why this reservation should be made in respect to a nation which as early as 1821 had decreed the freedom of every slave who should arrive in the territory of Peru, your excellency may be able to explain.

The strongest illustration of this rule of international law is presented by Great Britain and the United States of America. They are the two most commercial nations of the world. The sails of their shipping whiten every sea. Their seamen speak the same language. From this fact, and the general similarity of habits and manners, a sailor of either country finds more facilities and temptations to desert in the ports of the other than he does in those of any third nation where the dialect and the customs are strange to him. Consequently, British seamen desert in America, where they have the special inducements of higher wages, and American seamen desert in the ports of Great Britain and of her colonies scattered over the globe every day. Neither nation surrenders them, simply because there is no treaty which commands the surrender, though both nations have enacted laws which provide for the surrender of deserting seamen to powers which have bound themselves to reciprocate the courtesy. This state of things has lasted since the United States began their existence as an independent power. It endures to this day, though both parties have so great an interest in making an arrangement.

Your excellency states that the case of the Maria Luz was the first in which any Chinese emigrants upon Peruvian ships have been set at liberty. You refer in particular to the ports of Honolulu, Batavia, and Saint Helena, at which ships freighted with coolies have voluntarily entered and have been allowed to depart with their passengers. I might suggest, by way of conjecture, that the reason was simply that the coolies had never the opportunity to ask a court to give them freedom. But I am able to cite a precedent at Honolulu, in which the supreme court of the Hawaiian Islands discharged Mong Song kept in restraint on board the Italian steamer Gleus-muox. This man admitted that he had voluntarily entered into a contract at Macao to work in Costa Rica. The judge declared, “I see no authority in the contract, and none in our laws or treaties whereby the captain can prevent this passenger from coming on shore, or which authorizes this court to order the passenger to remain on board. As far as our law goes, he can land on these shores as freely as any other passenger, and he is accordingly allowed to go at large.”

I confidently trust that upon considering this exposition of the affair the enlightened government of Peru will see that this government did no injustice to its citizens. It certainly had no intention to affront the dignity of Peru.

If any wrong whatever has been done it is because a number of Chinamen chose to violate their contracts. It was impossible in this empire to compel them to perform those contracts specifically, or to drive them outside of the protection to which they were entitled, not only by the laws of humanity but by the special obligations which connect this empire with the empire of China.

I shall await the further instructions which your excellency may receive from your government, and will give to any further communication you may make on this subject, after you have received such instructions, the most candid consideration, with the earnest desire to cultivate the most friendly relations with your interesting country.

With respect and consideration.

OYENO KAGENORI.