No. 401.

Mr. Bingham to Mr. Frelinghuysen.

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.

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.