Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1875, Volume II

No. 384.
Mr. Bingham to Mr. Fish.

United States Legation, Japan,
Tokei, June 7, 1875. (Received July 9.)

No. 232.]

Sir: On the 26th ultimo, I received from Thomas B. Van Buren, esq., United States consul-general at Kanagawa, the inclosed communication, (inclosure 1.)

In reply thereto, I this day addressed to the consul general a dispatch, a copy of which is herewith, (inclosure 2)

You will observe that the consul-general, in his communication, states that he has informed the governor of Kanagawa, in writing, that he (the consul-general) should, on the 30th ultimo, withdraw from J. M. Rappeport, an American citizen, his official protection, leaving him to be deported or punished for future offenses by the Japanese authorities.

You will notice that the 7th article of the treaty of 1858 defines the forfeitures to which American citizens convicted of felony, or twice convicted of misdemeanors committed in Japan, shall be subjected. These forfeitures are restriction to one Japanese ri inland from the places of their respective residences during the time allowed by the consul after their enlargement from prison, not exceeding one year, and, after the expiration of the time so allowed, the loss of right to reside longer in Japan.

By no rule of construction, it seems to me, can the consul-general declare the right of a citizen of the United States to be tried for all offenses committed in Japan before an American consul, and on conviction to be punished according to American law, forfeited, and such citizen to be subjected thereafter to trial by torture in Japanese tribunals and to the cruel and inhuman penalties of Japanese law. The express provision of the treaty, that the forfeitures following conviction of felony, or repeated convictions of misdemeanors, shall be as above stated by necessary implication excludes all other forfeitures.

The rule universally accepted, that effect must be given, if possible, to every express provision of a written law, seems to require that the treaty-provision, which is the supreme law for all American citizens, shall be observed, to wit: Americans committing offenses against Japanese shall be tried by American consular courts, and, when found guilty, shall be punished according to American law. (Article VI, Treaty of 1858.) By the act of June 22, 1860, (12 Statutes at Large, page 72, section 2,) Congress has construed this provision of the treaty so as to subject all American citizens, for all offenses, against law in Japan, to trial only before American tribunals, and to such punishment, upon conviction, as is therein authorized. The treaty-provision that the Japanese authorities may require the parties who forfeit the right of permanent residence in Japan “to leave the country,” does not, in my opinion, confer upon Japanese tribunals jurisdiction over the persons of American citizens so convicted, nor does it subject them to trial and conviction in Japanese tribunals. Laws enacted by this government not in conflict with our treaty and laws may and ought to be enforced against Americans in Japan by American consular courts. If the Japanese government, therefore, sees fit, there is no reason why it cannot make a law declaring that the continued residence of such convict in the country should be punished by fine and imprisonment, after the sentence of an American consular court that he is guilty of a felony or is convicted of a second misdemeanor, and shall forfeit his right of residence in Japan. This was the sentence of the consular court in the case of John Rogers, which the Department approved in the instruction to my predecessor, No. 193, of date 16th April, 1873.

It seems to me that my reply to the consul-general, inclosed herewith, and all that I have herein stated, but reflects the results of all my instructions hitherto received, and especially the instruction of the Department to my predecessor, No. 87, of date 22d May, 1871, as well as No. 193, above mentioned. Instruction No. 87 to Mr. De Long contains these words:

All that has been sought by the Christian powers is to withdraw their subjects from the operation of such laws as conflict with our ideas of civilization and humanity, and to keep the power of trying and punishing, in the hands of our town representatives.

It seems clear to me that the enforcement of our treaty with this government, and of all laws, whether Japanese or American, upon all American citizens offending against the same in Japan, is intrusted exclusively to American tribunals, governed, as to modes of procedure and penalties, by the provisions of American law.

This matter is of so much importance, that I deem it my duty to submit it to the consideration of the Department for instructions thereon.

I am, &c.,

JNO. A. BINGHAM.

[Inclosure 1 in No. 232.]

Mr. Van Buren to Mr. Bingham.

United States Consulate General,
Kanagawa, (Yokohama,) Japan, May 25, 1875.

No. 850.]

Sir: One J. M. Rappeport, an American, citizen residing in Yokohama, who has spent the greater part of the past year in the jail of this consulate, upon convictions for grossly assaulting and heating a woman he calls his wife, is now undergoing a ninety days’ sentence, (for the like offense,) which will expire on the 30th instant. He is a notorious drunken ruffian, and it is certain that he will not be ten days at liberty without repeating the offense. Therefore, in passing the last sentence upon him, I announced that upon its expiration I should recommend to the Japanese authorities to deport him.

Accordingly, I have informed the governor of this ken, in writing, that I should on the 30th instant withdraw from him my official protection, leaving him to be deported or punished for future offenses by the Japanese authorities.

In reply I have received a request from the governor to deport him “in accordance,” as he says, “with Art. VII of the treaty.”

This I have declined to do, explaining that no such right was conferred upon me by the article referred to.

I am told that there is on file at your legation instructions from the Department upon this subject. If so, will you kindly furnish me with a copy, and oblige,

Your obedient servant,

THOS. B. VAN BUREN,
United States Consul-General.

Hon. John A. Bingham,
United States Minister, &c.

[Inclosure 2 in No. 232.]

Mr. Bingham to Mr. Van Buren.

United States Legation,
Tokei, June 7, 1875.

No. 167.]

Sir: Referring to your dispatch of date the 25th ultimo, No. 850, in relation to J. M. Rappeport, and the request of the Japanese governor of Kanagawa for his deportation, I have to say that, in my opinion, the provision of the VIIth article of the treaty of 1858, that the Japanese authorities may require Americans who may have been convicted of felony or twice convicted of misdemeanors to leave the country, does not, as your dispatch seems to imply, confer the power upon the Japanese government either to deport such convicted Americans or to subject them to Japanese jurisdiction and punishment. By such conviction of felony or such repeated convictions of misdemeanors the American so convicted forfeits his right to go more than one Japanese ri inland from his residence, or to abide in Japan beyond the time allowed by the American consul, not exceeding one year hut, in my opinion such convict does not forfeit his right to he tried for all further offenses which he may commit in Japan by American consular courts, and, if found guilty, to be punished according to American law.

I inclose for your information, as you request, a copy of Department Instructions, No. 193, of date 16th April, 1873, in which it appears that, in the case of John Rogers, Consul Shepard, in the opinion of the Department, “did not transcend his power.” The Department, you will observe, says “the judgment and sentence appear to have been authorized by law,” &c. The judgment and sentence in the case reads as follows:

“Of the crime charged the court finds the prisoner guilty, and the sentence is, that John Rogers be imprisoned at hard labor for the term of one year, and that he forfeit his right of residence in Japan.”

It would seem from the last paragraph of the inclosed instruction that no authority was given by law to the consul, in the opinion of the Department, to deport such convicted citizens, as the Department says the consul will “be instructed to explain to the Department by what authority he sent American citizens out of the country.”

I am, sir, your obedient servant,

JNO. A. BINGHAM.

Thos. B. Van Buren, Esq.,
United States Consul-General, Kanagawa.