Mr. Payson to Mr. Van
Washington, November 23, 1878.
Sir: Your dispatch No. 324, of the 9th of September last, has been received. It relates to the powers of consular courts in-Japan, under the treaty of 1858 between the United States and that country, to deport from Japanese territory citizens of the United States convicted of felony or twice convicted of misdemeanors; and in consequence of a supposed ambiguity in the views which the department has previously expressed upon the subject, it requests definite instructions for your future guidance.
Your dispatch also refers to the sentence passed by you in the consular court at Kanagawa upon Thomas Glass, convicted of assault and battery, to be imprisoned for ten days and then turned over to the Japanese authorities to be removed from the country. It further appears that at the expiration of the ten days’ imprisonment you addressed a communication to the kenrei of Kanagawa, advising him that you had concluded [Page 698] to withdraw your official protection from Glass, and left the kenrei to deal with him in accordance with the treaties between the United States and Japan.
The Revised Statutes of the United States (Sections 4083–4089) as well as the treaty of 1858 between this country and Japan (Article VI) provide that American citizens residing in Japan shall be tried and punished for offenses committed by them in that country by consular courts of the United States, in accordance with American law. The department has consequently, disapproved sentences of deportation whenever they have been pronounced by consuls of this government, as being a mode of punishment not recognized in this country. The sentence of Consul Shepard in the case of John Rogers, in regard to which you appear to consider the instructions of the department at variance with its previous position against deportation by consular sentence, was that Rogers should “be imprisoned at hard labor for the term of one year and that he forfeit his right of residence in Japan.” It is difficult to perceive how the opinion of the department that the consul did not transcend his powers” in this case can be construed as an approval of forcible deportation.
According to the usual and most reasonable construction of Article VII of the treaty of 1858, if the Japanese authorities desire that an American citizen shall leave Japan under the stipulations of the said article, they should communicate such desire to the proper representative of the United States, whose duty it shall be to give due notice thereof to the offender, giving him sufficient time, not to exceed one year, to make the necessary preparations for his departure. So far as the department is informed, all requirements on the part of the Japanese authorities under the seventh article of the treaty of 1858 have heretofore been voluntarily obeyed, and there seems to be no immediate necessity of determining what course should be pursued in the hypothetical case of a refusal to comply with such demand.
Under no circumstances, however, has the department authorized a consul to withdraw official protection from an American citizen who has been tried and convicted in a consular court, and to remit him to the jurisdiction of the Japanese authorities before the expiration of the time allowed him to leave the country pursuant to the requisition of the said authorities.
In the case under consideration it appears that you advised the kenrei of Kanagawa that you withdrew official protection from Glass and turned him over to the Japanese authorities, even before they had made any requisition in regard to him. The chief object of the feature of exterritoriality in the treaty with Japan and treaties with other unchristian powers is to secure citizens of the United States under any and all circumstances from being subjected to the modes of trial and personal punishment considered alike repugnant to Christian civilization and the Constitution and laws of the United States which have heretofore prevailed, and, although now much modified, still prevail to a dangerous degree in those countries. Your course, being in violation alike of treaty stipulations with Japan and the Constitution and laws of the United States, cannot be approved. It is, therefore, to be regretted that you disregarded, in this case, the opinion communicated to you by Mr. Bingham, at your request, on the 7th of June, 1875, in the case of Rappeport.
I am, sir, your obedient servant,
Third Assistant Secretary.