811.91293/168
Memorandum by the Assistant Secretary of State (Johnson)
Mr. Secretary: The attached telegram, No. 512 of June 26, 6 p.m., from Peking,74 regard[ing?] Hallett Abend, informs us that the National Government of China has made a formal request of our legation at Peking that our legation “have him deported from China.” The National Government bases its request upon its right under international law “to exclude and expel undesirable aliens”. Mr. Abend is the New York Times correspondent at Peking. He has given offense to the National Government by his despatches to the Times, which have been published in this country. The two offending articles printed under Mr. Abend’s name on December 9, 1928 and April 25, 1929 respectively, are attached.75
As an American citizen Mr. Abend enjoys the protection of extraterritoriality and the Chinese cannot touch him. They are not able [Page 767] therefore to exercise their so-called right and deport Mr. Abend from China.
I am of the opinion, and my opinion is supported by the Solicitor of the Department, that there is no power under the laws of the United States, either in the administrative offices of the United States or in the courts of the United States (and this would include our extraterritorial courts in China) under which an American citizen could be deported from China. As a matter of fact, in a case that arose in Yokohama in 1878, the Department disapproved the action of the Consul General who turned over to the Japanese authorities for deportation an American citizen who had been convicted in the Consular Court of the offense of assault and battery, the Department informing the Consul General that deportation was a mode of punishment not recognized in the United States (Foreign Relations, 1879, page 697).
Thus it is clear that not only are the Chinese unable to deport Mr. Abend, but we are unable to deport him.
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