No. 401.
Mr. Bingham to Mr.
Frelinghuysen.
Legation of
the United States,
Tokio,
Japan, February 18, 1885. (Received
March 30.)
No. 2013.]
Sir: Some months since his excellency, Count
Zaluski, the envoy of the Imperial Government of Austria-Hungary at this
court, brought to my attention the question of granting consular relief by
our Government to a subject of Austria-Hungary who had deserted from our
naval service at Nagasaki from the United States naval steamer Alert, on
which he owed service at the time as a naval seaman of the United States,
and asked especially my construction in connection therewith of article 12
of our consular convention, concluded in 1871 by the United
[Page 557]
States with the monarchy of Austria-Hungary,
to which I made reply at the time verbally that in my opinion the said
convention in no wise affected the question of naval seamen of the United
States of whatever nationality when within this Empire, and only applied
territorially to the respective dominions of the high contracting powers to
said convention of 1871.
The minister addressed to me a note on the subject dated the 12th ultimo (a
copy of which is inclosed herewith), wherein he informed me that my
construction of our consular convention of 1871 with his Government had met
the entire approval of the Austria-Hungarian Government, but requested of me
a confidential statement of the correspondence which had taken place between
myself and Sir Harry S. Parkes, late Her Britannic Majesty’s minister at
this court, in relation to naval seaman of foreign nativity in the service
of the United States (to which I made reference in my conversation with
Count Zaluski), and also requested my reasons for holding as I did in said
conversation that a deserting seaman from our naval service in Japan was not
entitled to relief through our consuls after desertion from our service.
On the 31st ultimo I made reply to Count Zaluski’s letter, a copy of which
reply I have the honor to inclose herewith. You will please observe that in
my reply I informed the count that the case to which I had reference in my
conversation with him was that of Peter McCondrill, a native of England,
who, having enlisted in our naval service as a seaman on the U. S. S.
Lackawanna, on the 10th of November, 1874, when on shore at Yokohama
committed an offense against the peace, and was tried therefor in the
British court at that port, to which action of the British court I took
exception on the 15th December, 1874, and that my action in the premises
having been reported by me to my Government had been approved by my own
Government, and that the same views as expressed by me as to naval seamen
had subsequently been adopted by the Government of Great Britain, as per
instructions given me by the Department in 1875.
For the views herein referred to as having been expressed by me in
McCondrill’s case and having been approved by the Department, I beg to refer
you to my No. 204, dated March 20, 1875, respecting the case of McCondrill
and my action therein, and my views in relation thereto; also, to Department
instruction to me, No. 144, dated June 5, 1875, approving the general ground
assumed by me in my correspondence with Sir Harry S. Parkes in the case of
McCondrill; also to Department instruction tome, dated November 2, 1875,
marked “separate,” wherein as to United States naval seamen committing
offenses on shore in China and Japan, I was instructed that jurisdiction
belongs to the courts of the country under whose flag the offender is
serving, adding that the Government of Great Britain, entertaining these
views, had lately issued instructions to its authorities in China, Japan,
and Siam, to abstain from interference with British subjects serving on
United States or other foreign men-of-war. I would also refer you to
paragraph 259 of United States Consular Regulations for 1881, which provides
that no relief is authorized to be granted by our consuls to destitute
America seamen discharged or deserting from naval vessels of the United
States, and that expenditures for such relief should not be allowed if found
in the consular accounts, and by paragraph (ib.) 263
it is declared that care should be taken that the provisions for the “relief
of destitute seamen should not be allowed to operate as an inducement to
desertion.” In this connection allow me to add that inasmuch as in my No.
204 in McCondrill’s case, as also in my No. 1124, dated May 22, 1880, No.
1127,
[Page 558]
dated June 1, 1880, No.
1134, dated June 16, 1880, in the case of Ross, a merchant seaman of the
United States, I expressed the opinion that the jurisdiction was exclusive
when within Japan or its territorial waters, in all cases affecting merchant
seamen of the United States, of whatever nationality, as well as naval
seamen. It gives me pleasure to note that by Department circular
instruction, addressed to me under date of June 1, 1881, section 99 of the
Consular Instructions was amended as follows:
In China and Japan the judicial authority of the consuls of the
United States will he considered as extending to all persons duly
shipped or enrolled upon the articles of any merchant vessels of the
United States, whatever he the nationality of such person. And all
offenses which would he justiciable by the consular courts of the
United States, where the persons so offending are native-born or
naturalized citizens of the United States employed in the merchant
service thereof, are equally justiciable by the same consular courts
in the case of seamen of foreign nativity.
In view of the long contention in the Ross case, &c., I deem of the first
importance that our exclusive jurisdiction over all our seamen while in this
Empire shall be maintained so long as the extraterritorial power granted by
our existing treaties with Japan shall be retained by our Government.
I have, &c.,
[Inclosure in No. 2013.]
Count Zaluski to
Mr. Bingham.
My Dear Colleague: Towards the beginning of
September last year I had the honor to communicate orally to your
excellency a report of the Austro-Hungarian Consul at Nagasaki,
concerning a subject of his Imperial and Royal Apostolic Majesty, a
seaman named Edward Sabagalia, who had deserted from the American ship
Alert. I took then the liberty to ask your excellency if, no steps
having been taken by the captain of the Alert for bringing the man back
on board the American vessel, the burthen of relieving him in his
destitute condition in a foreign country was not to fall upon the United
States exchequer.
The answer your excellency kindly gave me expressed the opinion that
article 12; of the consular convention between the United States of
America and the Austro-Hungarian monarchy, mentioning only the
territories of the contracting powers, their reciprocally assumed
obligations respecting deserters should not be extended to the
exterritoriality enjoyed by their diplomatic or consular
representatives. Your excellency added that a similar case had been
decided upon the same point of view some years ago between the American
and the British legations at Tokio.
My Government, who entirely approve of your excellency’s opinion, is
deeply interested in the theoretical part of this international
question, and anxious to procure some closer information about the
precedent hinted at by your excellency. May I then venture to request
yon, therefore, my dear colleague, to favor me with a confidential
communication of your correspondence with Sir Harry Parkes on the
above-mentioned subject, or at least with an extract of it sufficient to
elucidate the question of principle?
In anticipating an obliging response, I offer your excellency my
sincerest thanks; together with the assurances of my highest
consideration.
[Inclosure No. 2 in No.
2013.]
Mr. Bingham to
Count Zaluski.
United
States Legation,
Tokio,
Japan, January 30,
1885.
My Dear Colleague: I avail myself of the
earliest day possible to reply to your kind note of the 12th instant,
wherein you invite my attention to a report of the Austro-Hungarian
consul at Nagasaki, concerning a naval seaman named Edward
[Page 559]
Sabagalia, who lately
deserted, as your excellency informs me, from the United States naval
vessel Alert. It gives me pleasure to note that you inform me that your
excellency’s Government entirely approves the views expressed by me in
conversation with you in relation to the construction of article 12 of
the convention of the United States of America and the Austro-Hungarian
monarchy the ratifications of which were exchanged June 26, 1871, and
which views so expressed by me were to the effect that the reciprocal
obligations by said convention imposed, respecting sailors belonging to
the vessels of either of the high contracting powers, who may be guilty
of having deserted upon the respective territories thereof, do not
extend to or include desertion by sailors from the respective vessels of
either of said powers, which occur within the territorial dominion of
foreign states.
You further request that I should favor you with a confidential
communication of the correspondence which occurred between myself and
Sir Harry S. Parkes, late her Britannic Majesty’s minister in Japan, on
the subject of the exclusive jurisdiction of the United States over
foreign seamen, enlisted and doing duty as such seamen in the naval
service of the United States, when within the territory of Japan.
The exclusive jurisdiction of the United States over such naval seamen
enlisted in the United States service, when within Japanese territory,
rests upon the treaty grants, of his Imperial Japanese Majesty to the
Government of the United States, from which it results that such seamen,
during their service, are not only subject to all United States laws
regulating their duties as such seamen, but liable to all penalties and
forfeitures prescribed for offenses by them committed, either on board
the United States vessel to which they belong, or on shore when within
this Empire or the territorial waters thereof, and of necessity are
justiciable for all such offenses only in the United States tribunals.
The case to which I casually referred in my conversation with yon as
having been the subject of some correspondence between Sir Harry S.
Parkes and myself, was briefly this:
One Peter McCondrill, a native of England, was duly shipped as a United
States naval seaman on the U. S. S. Lackawanna for a term of service.
While still in our service, on the 10th of November, 1874, he went on
shore at Yokohama and committed an offense against the peace, for which
he was arrested and taken before the honorable Mr. Goodwin, judge of her
Britannic Majesty’s court in Japan, and was tried, convicted, and fined
in said court. On the 15th December, 1874, I brought the matter to the
attention of Sir Harry S. Parkes by a note of that date, protesting that
the jurisdiction over McCondrill was exclusively in the United States
courts in Japan, to which Sir Harry kindly replied on the 19th December,
1874, and also furnished me with a written opinion of Judge Goodwin on
the question.
In his reply of 19th December, 1874, Sir Harry says that the United
States consul-general at Yokohama, before whom McCondrill was brought,
“disclaimed jurisdiction over him and sent him to the British court”;
that “Mr. Goodwin had neither sought nor claimed jurisdiction over Peter
McCondrill, but the latter having been sent to him by the United States
consul-general as a British subject, Mr. Goodwin, dealt with him.”
I may add, that Judge Goodwin, in his opinion above mentioned, placed his
action in McCondrill’s case upon the ground “that General Van Buren
(United States consul-general) declined to take cognizance of the
charge, and directed him (McCondrill) to be brought to the British
court.”
Having reported this case to my Government, my views were approved, and I
was instructed that our tribunals in Japan had exclusive jurisdiction
over all foreign-born naval seamen of the United States for offenses
committed by them in Japan, either on shore or on board the United
States naval vessels when in Japanese waters. I may add, that I am
further instructed that her Britannic Majesty’s Government was of the
same opinion, and had in 1875 issued instructions to that effect to its
authorities in China, Japan, &c.
For your information I beg leave to say that, by the laws of the United.
States, desertion by a United States seaman is an offense punishable by
imprisonment, forfeiture of his effects left on board, and of all or any
part of his wages and emoluments which such deserter had then earned;
and, finally, it is expressly provided by our consular regulations (259)
that no relief is authorized to be granted to seamen, whether citizens
of the United States, or foreigners, who desert from the naval vessels
and naval service of the United States. It is but reasonable, in my
opinion, that deserters from the naval service of any country should not
be allowed to demand or receive relief from the Government from whose
service they have unlawfully deserted.
Be assured, my dear, colleague, of my sincere respect, and of my highest
consideration.
