File No. 294.11Ei5/31.

Ambassador Guthrie to the Secretary of State.

No. 22.]

Sir: The Department’s telegram of September 25, instructing me to request the provisional arrest and detention of John Eills on a charge of perjury, pending arrival of the extradition papers, and instructing me to take special precautions for the protection of the defendant’s infant daughter in the meantime, was duly received, and a formal application in accordance therewith was immediately made to the Minister for Foreign Affairs.

On October 11, I received a letter from the Foreign Office advising me that the defendant has been located on information furnished by this Embassy, and would be arrested on the morning of that day, and requesting me to take proper steps for the protection of the child, as there would be no one to care for her but a Japanese maid, who it was feared might desert her through fright on learning of the arrest.

Presuming that the arrest had been effected in accordance with the above-mentioned advice from the Foreign Office, in the afternoon I sent Mr. Caldwell of the Embassy, accompanied by his wife, to Eills’ home, and took the child under my own care. It turned out, however, that the defendant had not been arrested; and when he learned of my action, he called for his child, took her away, and, in pursuance of a promise made to me, placed her in the household of Baron Kanda, a gentleman of high character, who undertook to care for her, agreeing to keep her until extradition has been disposed of. This arrangement was faithfully carried out.

The defendant was finally arrested on the 13th of October, and kept in prison until November 7, when he was discharged on the order of the Minister of Justice.

The defendant was very anxious to be released on bail pending the receipt of the extradition papers, and as the Department of Justice refused to grant bail without my consent, he both personally and through his attorney and friends made a proposition to secure such consent, which was cabled to the Department under date of October 15. This proposition was that, if consent was given to the release of the defendant on bail, he would agree not to resist extradition, and would place his daughter with such temporary guardian as I might select. On the receipt of the Department’s telegram of October 17, stating that the extradition papers had been found to be in proper form, and instructing me not to consent to bail, the negotiations were broken off.

On receipt of the extradition papers, they were promptly delivered to the Minister for Foreign Affairs for transmission to the Department of Justice.

On the 7th instant the request for extradition was refused and the defendant discharged, of which action I was duly informed by a [Page 590]note from the Minister for Foreign Affairs, dated November 8, a copy of which is herewith enclosed.

So far as I can learn, the consensus of professional opinion here is that the affidavits on which the warrant of arrest was issued do not charge any acts on which a person could be held for perjury in Japan.

This opinion seems to be based on two grounds: First, that in Japan a proceeding for the confinement of an alleged insane person is administrative, not judicial, and therefore an affidavit made in such a proceeding is extra-judicial and not covered by the law defining the crime of perjury; secondly, that in Japan a party in interest is not entitled to be sworn as a witness, and even if erroneously so sworn, a false statement made by him will not constitute perjury under the law.

The representative of the Commonwealth of Massachusetts, after taking local advice, did not request me to file a protest against the decision with the Department for Foreign Affairs and accordingly I have not done so.

As there is no definition of perjury in the treaty and we could not therefore demand extradition, unless the acts charged would under the laws of Japan constitute that crime if committed in Japan, it seemed to me that the only possible ground would be a denial of the interpretation of their own laws by the Department of Justice. Accordingly, I thought it proper to await further instructions after a full report.

While as already stated I have not filed a formal protest, I have had two protracted interviews with Mr. Denison, Legal Adviser to the Foreign Office, in which the questions involved were fully discussed. Mr. Denison was positive in his approval of the position taken by the Department of Justice, saying that there was not the slightest doubt that the facts charged in the affidavits on which the warrant was issued would not constitute perjury under the laws of Japan.

Messrs. Dewey and Flynn, concluding that extradition could not be secured on the evidence contained in the present extradition papers, have left for the United States.

With a view to the possibility of securing the surrender of the defendant’s daughter, by bringing an action in the Japanese courts, Mr. Dewey has entrusted Mr. N. W. McIvor, an American lawyer in Yokohama, and Mr. Akiyama, a Japanese barrister-at-law of prominence, to investigate the law on the subject.

I have [etc.]

Geo. W. Guthrie.
[Inclosure—Translation.]

The Minister for Foreign Affairs to Ambassador Guthrie.

No. 98.]

Monsieur l’Ambassadeur: In reference to the request made by your excellency’s Government for the extradition of John Eills, the fugitive from the justice of the United States, I had the honor to reply by my note dated the 28th ultimo that said Eills having been arrested, proper steps are being taken in the matter by the competent authorities of the Empire. As the result of [Page 591]their inquiry into the matter, the identity of the fugitive in question has been established and it has been made clear to their satisfaction that the copies of the depositions are duly authenticated, that a warrant had been issued when the request for his provisional arrest was made and that the request for the extradition was made through the proper diplomatic agent. In their opinion, however, the act committed by Eills does not constitute perjury under the laws of the Empire; in other words, under the laws of the Empire the present case cannot be deemed to afford sufficient criminal evidence to justify his examination; and accordingly, in view of the stipulation of Art. V., Clause 3 of the Extradition Treaty between Japan and the United States, the Imperial Government are not in a position to surrender Eills. Under these circumstances the Imperial Government regret that they are unable to comply with the request for the extradition of John Eills.

I avail [etc.]

Baron N. Makino.