Mr. Bingham to Mr. Frelinghuysen .
Tokio, Japan , February 18, 1885. (Received March 30.)
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.,