Mr. Dun to Mr.
Gresham.
Legation of the United States,
Tokyo, Japan
,
December 23,
1893
.
(Received January 19, 1894.)
No. 48.]
Sir: On the 14th instant I received information
from His Imperial Japanese Majesty’s minister for foreign affairs to the
effect that one Lake, a citizen of the United States, had been deported
from Nagasaki, Japan, in conformity with Article vii of the treaty of 1858 between the United States and Japan;
that the said Lake having returned to Nagasaki without permission in
January of the present year, W. H. Abercrombie, esq., United States
consul at that port, had informed the Japanese authorities of Nagasaki
Ken that the said Lake was an outlaw, and that he (the United States
consul) had withdrawn from him the official protection of the United
States, and that the said Lake was therefore no longer subject to the
jurisdiction of the United States consular courts in Japan, but was in
all cases subject to Japanese jurisdiction. I was further informed that
Mr. Abercrombie’s action in this matter did not accord with Article vii of the treaty as interpreted by His
Imperial Japanese Majesty’s department for foreign affairs, and I was
requested, in case my views concurred with those of the department for
foreign affairs, to take such action as I might deem proper to rectify
what was by them considered an error in judgment on the part of Mr.
Abercrombie. I at once telegraphed to Mr. Abercrombie (see first
telegram embodied in inclosure 1) to the effect that, having received
this information from the department for foreign affairs, [Page 377] I advised him under concluding
paragraph of Department instruction No. 158, Foreign Relations, 1879, page 698,
“that American consuls can in no case refuse jurisdiction over American
citizens.”
On the 15th instant I received from Mr. Abercrombie the telegram from him
embodied in inclosure 1, and on the same day I sent him in reply my
second telegram, embodied in inclosure 1. On the 18th instant I mailed
to him my dispatch (inclosure 1) No. 26, of date the 18th instant,
embodying copies of the above-mentioned telegrams, and giving him at
some length my opinion in regard to the correct interpretation of
Articles vi and vii
of the treaty.
On the 20th instant I received from Mr. Abercrombie a dispatch, dated the
16th instant, a copy of which and its inclosures I have the honor to
inclose herewith, giving a history of the case of G. W. Lake from the
time of his deportation in 1871 and of his (Mr. Abercrornbie’s) action
in the matter since Lake’s return to Nagasaki in January, 1893, and
inclosing a copy of the correspondence between the Japanese authorities
at Nagasaki and himself in connection with Lake’s return.
On the 21st instant I visited the foreign office, and had an interview
with Mr. Mutsu, His Imperial Japanese Majesty’s minister for foreign
affairs, relative to the matter under consideration.
I frankly expressed to Mr. Mutsu the same views, in substance, in regard
to jurisdiction that I had sent as an opinion to Mr. Abercrombie in my
dispatch of the 18th instant. Mr. Mutsu said that he fully concurred in
the opinion that the Japanese authorities could not, under the treaty,
assume jurisdiction over an American so long as he was recognized as a
citizen of the United States, and he informed me that instructions had
been sent to the Japanese authorities at Nagasaki not to take
jurisdiction at this time over Lake. But, he said, this man Lake is in
Japan in violation of the stipulations of Article vii of the treaty, and it is in the expectation that the
obligation implied by those stipulations will be fulfilled by the United
States that the Japanese Government has sent those instructions; and
that, in case the United States authorities should continue to refuse to
exercise jurisdiction over Lake, a contingency that he did not
anticipate, he could not say that in such case the Japanese Government
would not regard him as a man without a country, and assume jurisdiction
over him accordingly.
I informed Mr. Mutsu of the communications I had made to Mr. Abercrombie,
and expressed my conviction that that gentleman would exercise
jurisdiction, but that I would again telegraph to him strongly advising
him to do so; and that in case Mr. Abercrombie should find himself
unable to act in accordance with the opinion I had expressed I should
submit the matter by telegraph to my Government for instructions. In
consequence of this interview I telegraphed, on the 21st instant, Mr.
Abercrombie (inclosure 3) to the effect that the Japanese authorities
would not interfere with his exercising jurisdiction over Lake, and that
I strongly advised him to do so. On the same day I received a
telegraphic reply (inclosure 4) from Mr. Abercrombie, saying that he
would assume jurisdiction as advised.
It seems to me clear that Mr. Abercrombie’s action in this matter has
been dictated by an erroneous construction of the treaty of 1858, of the
laws of the United States, and of the instructions from the
Department.
That an American citizen not beyond the reach of lawful authority, and
entirely subject to any penalty that that authority may lawfully impose,
can be declared an outlaw appears to me to be in conflict with [Page 378] our ideas of justice and with
the dictates of humanity and enlightened civilization. While the United
States maintains jurisdiction over her citizens in Japan for the purpose
of affording them the protection of our laws she can not, in my opinion,
refuse to accept the obligation implied to at all times maintain that
jurisdiction for the punishment of crime and as a means of requiring
that her citizens shall respect the rights of others.
Mr. Payson, in his instruction No. 158 to Mr. Yan Buren, dated November
23, 1878 (see Foreign Relations, 1879, p.
697), says:
* * * 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.
In the next paragraph Mr. Payson observes:
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.
In the case of John Rogers, the sentence that Rogers should “be
imprisoned at hard labor for the term of one year and that he forfeit
his right of residence in Japan” met with the approval of the
Department. (See Department instruction to Mr. de Long, of date 16th
April, 1873.)
It appears to me that the hypothetical case mentioned by Mr. Payson has
in the case of Lake become a real one, inasmuch as he has refused to
comply with the requirement of the Japanese authorities under the
seventh article of the treaty, that he should forfeit his right of
residence in Japan, by coming back to Japan without permission.
You will please observe that in the last paragraph of Mr. Abercrombie’s
dispatch to me (copy herewith, inclosure No. 2), he requests me to
advise him, first, whether he shall resume jurisdiction over Lake;
second, whether Lake shall be forcibly redeported by him on the 31st of
December, and what subsequent steps shall be taken to prevent his
landing at Kobe or Yokohama.
In answer to Mr. Abercrombie’s first inquiry, I refer him in a dispatch
of this date to my telegrams and my dispatch to him of the 18th intant
on the subject. In reply to his second inquiry, I refer him to Mr.
Payson’s instruction to Mr. Van Buren, of date November 23, 1879,
already referred to in this dispatch. In reply to his last inquiry, I
inform him that I am not prepared at this time to say what steps should
be taken to prevent Lake from landing at Kobe or Yokohama, but that I
shall refer the entire matter to the Department for instructions. As you
will observe from the correspondence between Mr. Abercrombie and the
Japanese authorities, there were possibilities of serious complications
arising that might have proved difficult of satisfactory adjustment. I
was therefore constrained to act promptly in the matter, and to use the
telegraph more freely than would under other circumstances have been
deemed desirable in official correspondence without the use of a code.
For the same reason I have in this ease used greater freedom in giving
advice relative to the course that a consul should pursue in his
judicial capacity than I should have otherwise felt inclined to use.
In my last telegram to Mr. Abercrombie (see inclosure 3) I ventured to
suggest to him section 4101, Revised Statutes, as a means of enforcing
sentence of court in case he should find that Lake had forfeited his [Page 379] right of residence in Japan.
The paragraph of section 4101, referred to, reads:
* * * It shall, however, be the duty of such officer to award
punishment according to the magnitude and aggravation of the
offense. Every person who refuses or neglects to comply with the
sentence passed upon him shall stand committed until he does
comply or is discharged by the order of the consul, with the
consent of the minister in the country.
This matter, in my opinion, involves questions of much importance, and
therefore I deem it my duty to submit it to the Department, with a
request for instructions in the premises.
I have, etc.,
[Inclosure 1 in No. 48.]
Mr. Dun to Mr.
Abercrombie.
Legation of the United States,
Tokyo
,
December 18, 1893
.
Sir: On the 14th instant I was informed by
His Imperial Japanese Majesty’s department for foreign affairs that
charges having been brought before you against a certain Lake, a
citizen of the United States now resident at Nagasaki, Japan, you
had refused to entertain them on the ground that, the said Lake
having been deported from Japan in 1871 and having returned to
Nagasaki without permission, you had withdrawn from him your
official protection, and he was therefore no longer subject to your
jurisdiction.
Upon the receipt of this information I telegraphed you as follows:
I am informed by foreign office that you refuse to exercise
jurisdiction over Lake. I advise you under concluding
paragraph, Department instruction 158, Foreign Relations 1879, page
698, that American consuls can in no case refuse
jurisdiction over American citizens. Send particulars.
Dun,
Minister.
On the 15th instant I received from you telegraphic reply as follows:
Lake deported 1871, under article 7 of treaty. Returned
without permission last winter. I refused protection. See
letter Secretary Fish to De Long, September, 1870. Civil
case now pending before Japanese court. Lake notified by
Japanese to leave December 31. Shall I protect him? Wire
answer.
Abercrombie.
On receipt of this I at once sent you in reply the following
telegram:
It is my opinion that American citizens can not forfeit their
right of trial by American consular courts for offenses
committed in Japan, and as Lake is still an American citizen
you can not refuse jurisdiction over him in any case, civil
or criminal. (See Bingham to Van Buren, Foreign Relations, 1875,
part 2, p. 811.)
Dun.
I referred you to Mr. Bingham’s dispatch, dated Tokyo, June 7, 1875,
for the reason that it clearly covers the case now under
consideration, and furthermore, that the views expressed therein by
Mr. Bingham, No. 232, dated June 7, 1875, to Mr. Fish, covering his
correspondence with Mr. Van Buren, apparently met with the approval
of the Department, as the concluding paragraph of Mr. Payson’s
(Third Assistant [Page 380] Secretary
of State) instruction to Mr. Yan Buren (see Foreign Relations, 1879, p. 697),
No. 158, dated November 23, 1878, indicates as follows:
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 day of June, 1875, in the case of
Rappeport.
I so entirely concur in the views expressed by Mr. Bingham in his
dispatch of June 7, 1875, to Mr. Yan Buren, that I can not express
my own opinion more clearly than by quoting the first paragraph of
that dispatch.
Mr. Bingham says:
Referring to your dispatch, of date the 25th ultimo, No. 850,
in relation to J. M. Rappeport, and the request of the
governor of Kanagawa for his deportation, I have to say that
in my opinion the provision of the seventh article of the
treaty of 1858, that the Japanese authorities may require
Americans who have been convicted of a felony, or twice
convicted of a misdemeanor, to leave the country, does not,
as your dispatch seems to imply, confer the power upon the
Japanese Government either to deport such convicted
Americans or subject them to Japanese jurisdiction and
punishment. By such conviction of felony or such repeated
convictions of misdemeanors, the American so convicted
forfeits his right to go more than one Japanese ri inland from his residence, or to
abide in Japan beyond the time allowed by the American
consul, not exceeding one year; but, in my opinion, such
convict does not forfeit his right to be tried for all
further offenses he may commit in Japan by the American
consular courts, and if found guilty, to be punished
according to American law.
Instructions from the Department of State prior to 1875, and since
then Mr. Payson’s instruction to Mr. Van Buren, dated November 23,
1878, to which I referred you in my first telegram, seem to me to
sustain the views expressed by Mr. Bingham in the paragraph just
quoted. Article 6 of the treaty of 1858 says:
Americans committing offenses against the Japanese shall be
tried in American consular courts, and, when found guilty,
shall be punished according to American law.
And farther:
The consular courts shall be open to Japanese creditors to
enable them to recover their just claims against American
citizens.
It seems to me that by this article of the treaty Japan ceded to the
United States entire jurisdiction over American citizens resident in
Japan without any reservation whatever, and the article designates
clearly the courts by which that jurisdiction shall be exercised.
There is no reservation providing that under certain conditions
Japanese courts shall assume jurisdiction over American citizens.
That jurisdiction can, in my opinion, be exercised by the
authorities of the United States in Japan, and by them only. It
follows that, in the event of a consul refusing to take jurisdiction
over an American charged with an offense committed in Japan, he does
not by his failure to exercise it transfer that jurisdiction to the
Japanese courts. His action might result in a miscarriage of
justice, and be considered by Japan as just cause for complaint that
the United States had failed, through her consul, to fulfill treaty
obligations; but certainly it would not confer upon the Japanese
authorities the right to arrest, try, and, if found guilty, punish
that American citizen.
In reserving jurisdiction over her citizens in Japan the United
States withdrew them from the operation of laws which at the time
the treaty was signed were considered repugnant to our ideas of
civilization and humanity and at the same time she assumed the
obligation of maintaining tribunals not only to try Americans
charged with offenses against the law and punish them when found
guilty, but also to enable [Page 381]
Japanese creditors to “recover their just claims against American
citizens.” This jurisdiction and its attendant obligation are in
full force to day, and it seems to me clear that in no case where a
citizen of the United States is either the accused or the defendant
can a consul of the United States in Japan refuse to exercise the
one or accept to the other.
The foregoing is given as an opinion, not as an instruction to you in
your official capacity.
I am, etc.,
[Inclosure 2 in No. 48.]
Mr. Abercrombie
to Mr. Dun.
Consulate of the United States,
Nagasaki
,
December 16, 1893
.
Sir: In reply to your telegram of the 14th
instant, I have the honor to transmit herewith a statement; of and
papers relating to the case of G. W. Lake, an American citizen.
In 1871 G. W. Lake, having twice been convicted of misdemeanor before
this consular court, was, at the request of the Japanese Government,
deported from this Empire in accordance with article 7 of the treaty
of 1858 between Japan and the United States. I have the honor to
refer you to the following copies of correspondence on file at the
legation: Letter from Mr. W. P. Mangum to Hon. O. E. De Long, No.
53, of July 8, 1871; letter from Hon. C. E. De Long to Mr. W. P.
Mangum, No. 19, of July 16, 1871.
Mr. G. W. Lake, having been duly notified of his sentence of
deportation, and having been accorded a few months in which to
settle his affairs, left Japan for the United States.
About the middle of January, 1893, without permission, he returned to
Nagasaki. Mr. Lake was immediately informed by me that no official
protection would be afforded him, in accordance with instructions by
Hon. Secretary Hamilton Fish to Mr. De Long, September 10, 1870,
and, also, by implication contained in instructions in Foreign Relations, 1879, page
697. Mr. Lake’s arrival was immediately reported to T. Nakano,
governor of Nagasaki Ken, January 14, 1893, a copy of which letter
is herewith inclosed (marked Inclosure No. 1), and the following
reply was received, the copy of which is marked Inclosure No. 2.
On January 14 Mr. Lake telegraphed for a traveling passport, which,
having been sent to this office, was returned by me with a statement
of facts to Hon. F. L. Coombs, dated March 3, 1893, a copy of which
is marked inclosure 3. On October 10, 1893, I received the following
communication from C. Ohomori, governor of Nagasaki Ken, a copy of
which, with my reply thereto, are marked inclosures Nos. 4 and 5. On
November 10, 1893, inclosure marked No. 6 was received. On November
27 a letter was received from S. Hatakeyama, president of the
district court, Nagasaki, a copy of which, with my reply, are marked
inclosures Nos. 7 and 8. At the present time two civil cases are
pending against Mr. Lake before the Japanese court, to be tried on
December 26 and January 11 respectively.
I have the honor to request you to advise me by telegram, immediately
[Page 382] upon receipt of this,
first, whether I shall resume jurisdiction over Mr. G. W. Lake;
second, whether he shall be forcibly redeported by me on the 31st of
December, the time allowed by the Japanese authorities, and what
subsequent steps shall be taken to prevent his landing at Kobe or
Yokohama.
I have, etc.,
W. H. Abercrombie,
U. S. Consul.
[Subinolosure 1 in No.
48.]
Consulate of the United States,
Nagasaki, Japan
,
January 14, 1893
.
Governor T. Nakano,
Kencho:
Sir: I have the honor to inform you that
Mr. George W. Lake, an American citizen, deported from Nagasaki in
1871 at the request of the Japanese Government, has returned to this
city.
Will you do me the honor to advise me, at your earliest convenience,
whether or not there is still existing objection to his residence
temporarily or permanently in this city?
I am, etc.,
W. H. Abercrombie,
U. S. Consul.
[Subinclosure 2 in No.
48.]
Nagasaki, Kencho
,
February 14, 1893
.
W. H. Abercrombie,
Esq.,
U. S. Consul,
Nagasaki:
Sir: I have the honor to acknowledge the
receipt of your dispatch, dated the 14th of January last, informing
me that Mr. George W. Lake, an American citizen, deported from
Nagasaki in 1871, has returned to this city, and asking me whether
or not there is still existing objection to his residence
temporarily or permanently in this country.
I regret to state, in reply, that as the said Mr. George W. Lake was
deported under the seventh article of the treaty between Japan and
the United States, I am prevented from allowing him to reside in
this country.
I have, etc.,
T. Nakano,
Governor of Nagasaki
Kencho.
[Subinclosure 3 in No.
48.]
Consulate of the United States,
Nagasaki
,
March 3, 1893
.
Hon.Frank L. Coombs, Tokyo:
Sir: I have the honor to return herewith
inclosed Mr. George W. Lake’s traveling passport, No. 6067.
Mr. Lake was deported from Nagasaki in 1871 at the request of the
Japanese Government, and returned to this city about the middle of
January from the United States. I informed the governor of Nagasaki
of his arrival and inquired whether or not there was still existing
objections to his residence, temporarily or permanently, in
Nagasaki, and received a reply that permission would not be accorded
him to again reside in Japan.
Mr. Lake has been accordingly informed by me that according to
article 7 of the treaty between Japan and the United States, no
protection will be afforded him by this consulate as an American
citizen, and any action they may see fit to take in the matter
looking to his redeportation will be sustained by me; and I also
advised him to leave Japan at the earliest possible moment. I would
respectfully request that in future no application for a passport be
considered unless coming through this consulate.
I have, etc.,
W. H. Abercrombie,
U. S. Consul
[Page 383]
[Subincloaure 4 in No.
48.]
Nagasaki Kencho
,
October 10, 1893
.
W. H. Abercrombie,
Esq.,
U. S. Consul, Nagasaki:
Sir: Since the receipt of your letter dated
the 15th February, 1893, informing me that no protection would be
afforded by the United States Government to Mr. George W. Lake, an
American citizen deported from Japan in 1871, I learned during the
month of August last that he has been allowed by your consulate to
stay here until the 31st December, 1893, and upon my communication,
addressed to Dr. Arnold, U. S. vice-consul, on the 22d of August,
asking his reason for allowing Mr. Lake to stay here, Dr. Arnold
replied to me that his reason for allowing Mr. Lake to stay here
until the end of the present year is to allow him time to settle his
affairs according to article 7 of the treaty between Japan and the
United States. I therefore beg to request that you will kindly
advise me definitely whether the said George W. Lake has since been
recognized by your consulate as an American citizen.
I also would like to know if the said George W. Lake would not be
recognized by you should the Japanese Government take action to
redeport him in accordance with your letter of the 15th February
last, and whether any necessary assistance could be afforded by your
consulate to our police in carrying out the execution.
I have, etc.,
C. Ohomori,
Governor of Nagasaki
Kencho.
[Subinclosure 5 in No.
48.]
Consulate of the United States,
Nagasaki
,
October 10, 1893
.
C. Ohomori, Esq.,
Governor of Nagasaki Kencho:
Sir: In reply to your communication of the
10th instant, asking information in regard to George W. Lake, I beg
to reply that as George W. Lake, deported from Japan in 1871,
according to article 7 of the treaty between Japan and the United
States, has returned to Nagasaki, his sentence of deportation still
being in force, he is no longer under the protection of the United
States Government, is an outlaw, and is amenable to whatever action
the Japanese authorities may see fit to take, whether in his trial
before their courts, his punishment, or deportation.
No authority is vested either in the vice-consul or in the consul of
the United States at Nagasaki, under the present circumstances,
permitting any official order of any kind being issued to the said
George W. Lake, all proceedings against him following the usual
course through the Japanese courts, as in the case of a
Japanese.
I would beg to suggest that as George W. Lake has been allowed to
remain undisturbed for many months subsequent to the notification of
the authorities by me of his illegal return, time should be given
him to rearrange his affairs before his redeportation. This,
however, is a matter for your consideration.
In regard to your inquiry, what assistance would be rendered the
Japanese police in case of his redeportation, I have to state that,
having no jurisdiction, I could render only the moral support
requisite to the fulfillment of the treaty existing between our
respective Governments; all other United States consuls in Japan
would be immediately notified of the fact of his outlawry and the
same action taken, probably, by them as by myself.
I am, etc.,
W. H. Abercrombie,
U. S. Consul.
[Subinclosure 6 in No.
48.]
Nagasaki Kencho
,
November 10, 1893
.
W. H. Abercrombie,
Esq.,
U. S. Consul, Nagasaki.
Sir: With reference to your letter of the
13th ultimo regarding Mr. George W. Lake, an American citizen
deported in 1871 from Japan, I have the honor to inform you that I
have, in accordance with the tenor of your letter, notified Mr.
George W. Lake this day that he must leave this country not later
than the 31st of December, 1893.
I have, etc.,
C. Ohomori,
Governor of Nagasaki
Kencho.
[Page 384]
[Subinclosure 7 in No.
48.]
District Court,
Nagasaki
,
November 27,
1893
.
W. H. Abercrombie,
Esq.,
U. S. Consul, Nagasaki:
Sir: I have the honor to inform you that a
petition claiming the payment of the price of the goods sold was
produced before the court by W. S. Stone, an American citizen, the
agent of the American Trading Company, resident at Yokohama, foreign
settlement, against George W. Lake, an American citizen, resident at
Oura, Nagasaki, and that to this petition a certificate, said to
have been given by you, is annexed, the copy of which is here
inclosed. In the certificate there is an item that the defendant is
not entitled to receive the protection of the American flag, but
(is) amenable to the Japanese laws, etc.
I should be very glad to know if you ever gave such certificate to
the plaintiff as above mentioned, and if so, is there no hindrance
to trying him by this court?
I have, etc.,
S. Hadakeyama,
President of District Court,
Nagasaki.
U. S.
Consulate,
Nagasaki
,
November 19,
1893
.
I hereby certify that George W. Lake, an American citizen, is not
entitled to the protection of the American flag, but is amenable
to the Japanese laws, and all suits against him must be tried
before Japanese courts.
W. H. Abercrombie,
U. S. Consul.
[Subinclosure 8 in No.
48.]
Consulate of the United States,
Nagasaki
,
November 29, 1893
.
S. Hadakeyama,
President of District Court, Nagasaki.
Sir: I have the honor to acknowledge the
receipt of your letter of November 27, and in reply I beg leave to
say that the inclosed copy of certificate given by me is a true copy
of the same, and that there is no hindrance to Mr. G. W. Lake’s
trial in the Japanese courts.
I am, etc.,
W. H. Abercrombie,
U. S. Consul.
U. S.
Consulate,
Nagasaki
,
November 19,
1893
.
I hereby certify that George W. Lake, an American citizen, is not
entitled to the protection of the American flag, but is amenable
to the Japanese laws, and all suits against him must be tried
before Japanese courts.
W. H. Abercrombie,
U. S. Consul.
[Inclosure 3 in No.
48.—Telegram.]
Mr. Dun to Mr.
Abercrombie.
Tokyo
,
December 21,
1893
.
Japanese authorities will not interfere with your taking jurisdiction
over Lake. I strongly advise you to do so. I advise you to
investigate his case judicially and suggest section 4101, Revised
Statutes, as means of enforcing sentence of court if ordered to
leave Japan. Wire me if you will take jurisdiction.
[Page 385]
[Inclosure 4 in No.
48.—Telegram.]
Mr. Abercrombie
to Mr. Dun.
Nagasaki
,
December 21,
1893
.
Will take jurisdiction as advised.
[Inclosure 5 in No. 48.]
Mr. Dun to Mr.
Abercrombie.
Tokyo
,
December 23,
1893
.
No. 30.]
Sir: I have to acknowledge the receipt of
your dispatch, No. 464, of date the 16th instant, together with its
inclosures, relative to the case of G. W. Lake, and the action taken
by you in connection therewith and correspondence with the Japanese
authorities in regard thereto.
In reply to your request for advice, as stated in the last paragraph
of your dispatch, I refer you, in reply to your first inquiry, to my
telegrams and to my dispatch of the 18th instant. As to the second,
“Whether he shall be forcibly redeported by me on the 31st
December,” etc., I can only refer you to Mr. Payson’s instruction,
No. 158, to Mr. Yan Buren, dated November 23, 1878 (Foreign Relations, 1879, p. 697),
in which you will find the following:
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.
In reply to your last inquiry, I have to say that at this time I am
not prepared to say what steps should be taken to prevent his
landing at Kobe or Yokohama. I shall refer the entire matter to the
Department by this mail for instructions in the premises.
I would suggest that upon a complaint being made by the Japanese
authorities you should summons Lake to appear before you in your
judicial capacity, and, should the finding of the court be that he
has forfeited his right of residence in Japan and is now here in
violation of law, that the court should fix a time when he shall
leave the country.
The part of section 4101, Revised Statutes, to which I desired to
call your attention in my telegram of the 21st instant, reads as
follows:
It shall, however, be the duty of such officer to award
punishment according to the aggravation and magnitude of the
offense. Every person who refuses or neglects to comply with
the sentence passed upon him shall stand committed until he
does comply or is discharged by order of the consul, with
the consent of the minister in the country.
I am, etc.,
