Mr. Dun to Mr. Gresham.
Tokyo, Japan , December 23, 1893 .
(Received January 19, 1894.)
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the Japanese authorities of Nagasaki Ken that the said Lake was an outlaw, and that he (the United States consul) had withdrawn from him the official protection of the United States, and that the said Lake was therefore no longer subject to the jurisdiction of the United States consular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.,