No. 322.
Mr. Van Buren to Mr. Seward .

No. 324.]

Sir: In the year 1875, a correspondence took place between the United States minister in Japan and myself on the subject of the deportation of an American from Japan according to the provisions of Article VII of the treaty between the United States and Japan; which [Page 519] correspondence, together with a dispatch from Mr. Bingham upon the subject to the Department, was published in the Foreign Relations of that year, Part II.

With Mr. Bingham’s dispatch to me he inclosed a copy of Department instructions, No. 193, of date 16th April 1873, in the case of John Rogers convicted of crime, and deported by Consul Shepard, in which the Department approves of the action of the consul.

It seems, however, that explanations were asked by the Department, of Mr. Shepard, as to the authority under which he sent certain other citizens out of the country.

These other citizens, it appears, were discharged destitute seamen who were sent to the United States in accordance with law, and this simple explanation settled the matter.

It will be perceived that Mr. Bingham expresses his opinion that this instruction intended to convey the judgment of the Department “that no authority was given by law to consuls” to deport a convict. I do not so understand the instructions.

The judgment and sentence of the consul in the case of Rogers, referred to, was as follows: “Of the crime charged, the court finds the prisoner guilty, and the sentence is, that he be imprisoned for one year, and that he forfeit his right of residence in Japan.”

Concerning this the Department says that the consul did not “transcend his power,” and again, that “the judgment and sentence appear to have been authorized by law.” This seems to me to be a full and unqualified approval.

I find, also, from the records of this consulate-general that on the 26th of November, 1870, Mr. De Long, then United States minister in Japan, advised Mr. Consul Lyon that he was in receipt of instructions from the Department, that he (the consul) “could not legally render judgments of deportation; that his proper course to pursue in such cases, when the Japanese claim to have a citizen of the United States deported on account of his having been convicted of a felony or twice convicted of misdemeanors, was to notify such person of the demand, and inform him that he will be allowed a certain length of time in which to make his necessary preparations, specifying such length of time that you deem reasonable under the circumstances not to exceed one year, and further informing him that at the expiration of such allotted period, if he shall still remain in this empire, that he will not be accorded any protection by the American authorities here; and of such action on your part at once inform the Japanese authorities and the United States legation.”

No copy of this instruction of the Department was apparently ever furnished and is not on file here, but I beg you to observe, if its contents are correctly quoted in Minister De Long’s dispatch, as above, it materially differs from that furnished in the case of Rogers first alluded to.

Another similar case has lately arisen within my jurisdiction in which one Thomas Glass, an American citizen, residing in Yokohama, of notoriously bad character, having been frequently complained of, and three times convicted in my court of misdemeanors, was handed over by me to the Japanese authorities “to be dealt with according to Article VII of the treaty of 1860.”

This “handing over” consisted in a notification by me to the Japanese ken rei, or governor of this district, of the prisoner’s several convictions and his bad character, and of his (the governor’s) liberty to deal with him according to the treaty.

In reply, the governor, about twenty days afterwards, informed me [Page 520] that he had required Glass to leave the country, and requested me to fix the time of his leaving and to make the necessary preparations.

After an interview with Glass on the 1st instant, I fixed the limit of time at the 10th instant, he saying it was more than ample, as he had made arrangements to leave on the 2d instant. He did so leave on the 2d for Shanghai, China, providing for his own passage.

On the same date, the 1st instant, I received a dispatch from Mr. Bingham, stating that he had noticed a report of the case in one of the local newspapers here and desiring me to send him a full history of it.

As my action was judicial, I entertain serious doubts of the authority of Mr. Bingham to demand an explanation from me, but, in order to avoid controversy, I furnished him with a statement in extenso.

I now ask for the judgment of the Department as to my action, and its full instructions as to the intent and meaning of so much of the seventh article of the treaty of 1860 between the United States and Japan as treats of the subject-matter referred to.

I desire to be fully instructed as to the exact status of the rights of a citizen “convicted of felony or twice convicted of misdemeanors” as mentioned in the treaty referred to, and who shall have thereupon been required by the Japanese authorities to leave the country.

Between the time when such notice shall have been served upon the convict and that fixed by the consular authorities within which he is to take his departure, what jurisdiction is he subject to, and whose duty is it to enforce the requirement to leave?

I desire also to know, if such convict so notified to leave is not able to pay his passage away, at whose expense shall such passage be made, and to what place or country is he to be sent?

This subject has been the theme of extensive newspaper comments here, and it is hardly necessary to remark that its importance merits the serious attention of the Department.

I am, &c.,