Historical Documents - Office of the Historian

[Inclosure 1.]

Captain Heriero to Mr. De Long.

Yokohama, August 30, 1872.

Sir: I beg respectfully to lay before your excellency a letter addressed by me to the Kanagawa Kencho, demanding an order to send back the Chinese passengers taken from on board my ship, the Maria Luz, together with a document received in answer to this letter.

The Japanese government, instead of complying with my request, demands me to commence an action against every one of the passengers, stating that the same have declared not to go on board again from their own will, although the legal contracts under which they shipped at Macao are in its possession.

I now humbly beg to crave your excellency’s assistance in this matter, trusting that, through your excellency’s influence with the foreign ministry in Yedo, a modification of the resolution may be obtained.

I have, &c.,

RICARDO HERIERO.

[Inclosure 2.]

Captain Heriero to the Kanagawa Kencho.

Yokohama, August 30, 1872.

I respectfully request that the Chinese passengers who have been taken from on board my ship, the bark Maria Luz, by order of this Kencho, be sent back again today, they being bound by legal contracts deposited with the Kencho to proceed to Peru.

RICARDO HERIERO.

[Inclosure 3.—Translation.]

Kanagawa Kencho to Captain Heriero.

Kanagawa, Japan, August 30, 1872.

Sir: Your communication of this date, requesting that the Chinese passengers of the Maria Luz, who were summoned by this Kencho to testify in the late inquiry before me, may be returned on board the said ship, is at hand, and has received attention.

I have to inform you that each of those Chinese declines to return on board of the ship, and can only be compelled to do so by this Kencho, after a judgment to that effect regularly obtained in an action brought before me. Such an action any person interested is at liberty to institute, as expressed in the finding already announced, and when this shall be done the case will be adjudicated. This Kencho has certainly no right or authority to force those persons on board your ship against their will, merely at your request.

I am, &c.,

[Inclosure 4.]

Mr. De Long to the ministers of foreign affairs.

United States Legation,
Yokohama, Japan, August 31, 1872.

No. 103.]

Your Excellencies: The captain of the Maria Luz, a Peruvian citizen and an officer of that government, in command of a vessel now at anchor in the port of Yokohama, has addressed me a letter, (inclosure No. 1,) inclosing therewith a copy of a note [Page 528] addressed by him to the Kanagawa kencho, (inclosure No. 2,) with a copy of the reply of the Kencho thereto, (inclosure No. 3.) It will be seen that the captain complains that your local authorities at this port, having summoned his Chinese passengers to land at this port to give evidence in a proceeding set on foot in part by a complaint made to you by Her Britannic Majesty’s chargé d’affaires, and in part by your own direction, now holds those Chinese in confinement, and refuses either to order their return on board the Maria Luz or to extend any aid to the captain to restore them to his ship. I inclose also for your excellencies’ consideration a published copy of the judgment of your Kencho in the above-mentioned proceedings, (inclosure No. 4;) and also refer your excellencies to the following language addressed by your Kencho to the captain, through the interpreter, after having rendered judgment, to wit: “As the Chinamen have determined not to return on board ship, they will be detained here for a few days in charge of officers appointed to look after them, so that if any action be brought on their contracts they can be found.”

Your excellencies have been officially informed by me that at the instance of the government of Peru I have been requested by the honorable Secretary of State of the United States to act for the Peruvian government in this empire in all matters not incompatible with my instructions as the representative of the United States.

That, under such request, I have assumed to act for the government of Peru, and in such capacity I have heretofore been fully recognized and treated with by your government.

Distinctly disavowing any wish or desire to influence your excellencies in your action relative to this matter, and frankly admitting my abhorrence for the so-called coolie-trade, yet, as I have undertaken a charge for a power friendly to my own Government, whose citizen, Captain Heriero, is now here involved in trouble and totally powerless to approach you officially except by my assistance; and as he has appealed to me to aid him to the extent of placing his complaint before you, I feel that I am not acting in contravention of my duties as the representative of the United States and only fulfilling the obligations I have assumed for the Peruvian government in herewith forwarding these communications and in asking you to officially inform me, that I in turn may advise the Peruvian government if it is true—

That by and with your advice and direction the investigation at the Kencho in Yokohama was called and held.

If the Chinese summoned by your authorities and brought on shore from the Maria Luz to give testimony as witnesses are now, by your direction, held in custody?

If you authorize and sustain thee Kncho in refusing to return them on board the Maria Luz?

And if these things are true, by virtue of what law, custom, or precedent such action has been or is now being taken?

I trust that your excellencies will favor me with an early and explicit reply to this note, as the Maria Luz is being detained to await your final advices.

I also trust that orders will be given directing your Kencho at this port to take no other or further action until I am advised of your final determination of this matter.

I have, &c.,

C. E. De LONG.

[Inclosure 5.—Translation.]

Soyeshima Tane-omi to Mr. De Long.

The 30th of the 7th month of the 5th year, Meiji.

Sir: In replying to your letter of August 31, 1872, I am not to be understood as admitting that this government is under any obligations to receive any communication from you in behalf of the government of Peru. I am, however, anxious that Señor Heriero, the captain of the Maria Luz, should not fail to obtain any information to which he is entitled by reason of his incapacity to address this department in his own person. I answer you, therefore, as his representative and for his information, but not for the information of the Peruvian government, as follows: Having been informed by Her Britannic Majesty’s chargé d’affaires that cruelties had been committed on board the bark Maria Luz, in the harbor of Yokohama, I requested the Kanagawa kencho to investigate the facts.

The Chinese witnesses brought on shore from the Maria Luz are not, by any direction of this department, held in custody. They remain on shore of their own free will, and are watched by proper officers so that they may be forthcoming if called upon to answer to any action against them founded upon the alleged contracts which were produced before the Kencho. The resolution of the Kencho to refuse to return these people against their free will to the Maria Luz has been fully approved.

[Page 529]

I decline for the present to enter into any argument in justification of the action of the Kencho or of the foreign office. I content myself with saying that I know of no law, custom, or precedent which requires this government, or any other government, to force any person to return to a ship against his will unless he be a fugitive, criminal, or a deserting seaman. While the comity of nations may require the restoration of a criminal, it does not require the restoration of a seaman who violated his contracts and deserts from his vessel unless there is an express treaty providing for such restoration.

With respect, &c.,

SOYESHIMA TANE-OMI.

[Inclosure 6.]

Mr. Watson to Soyeshima Tane-omi.

Yeddo, August 3, 1872.

Sir: I beg leave to bring to your excellency’s notice the following facts in connection with a Peruvian vessel named the Maria Luz, now in the port of Yokohama, and enjoying the hospitality of the Japanese government.

This ship is engaged in the transportation of coolies from the coast of China to Peru. She has put into this port under stress of weather. The coolies on board are stated to be free emigrants, taking passage under contracts, the nature of which is not apparent. Some time ago a man was found (fortunately at night) alongside Her Britannic Majesty’s ship Iron Duke, in a state of extreme exhaustion. He was taken on board, and having partially recovered, stated that he had swam from the ship in question, and claimed the protection of the British authorities. As this is not a British port he was handed over to Her Majesty’s consul, and was transmitted by him to the Japanese authorities, who appear to have sent him back to the ship.

This is not the only case in which the alleged passengers of that ship have endeavored to place themselves beyond the reach of those in authority on board; and information having reached me that these men have been severely ill treated, I determined to go on board and inquire into the facts.

I did accordingly go on board, accompanied by the flag-lieutenant of the Iron Duke. The disinclination of the officers whom we found in command to show me the ship or allow me to see the alleged emigrants was very apparent, and it was only when I threatened to obtain what I asked through the assistance of the Japanese authorities that I was permitted to go below, but I was not allowed to take with me the Chinese interpreter whom I had brought with me, and who was the only unbiased medium through whom I could communicate with the alleged passengers. I refrain for the present from entering into the question of the accommodation afforded by the ship, as that may be a fitting subject of hereafter inquiry by your government. On my return to the upper deck I requested to see the man who had taken refuge on the Iron Duke, to whom I have alluded. After some hesitation the man was sent for. He appeared ill and to have suffered much, and upon my proceeding to ask him through my interpreter what had happened since his return to the ship, he was forthwith violently ejected by the mate from the cabin. This conduct raised in my mind a suspicion that lie had been ill used, a suspicion borne out by his appearance and by the fact that his tail had been cut off.

Under these circumstances I think it my duty to bring the matter before your government.

The coolie-trade between Macao and the western ports of South America, particularly the Peruvian, has been characterized by such barbarity and by such disregard to the rights of the Chinese government, that it has most justly excited the strongest feeling in Europe and all civilized countries. The contiguity of Japan to China, and the importance to both countries that nothing should disturb the good feeling at present existing between them, renders it most important that Japan should not permit its hospitality to be abused to the possible injury of natives of China.

Hitherto the shores of Japan have been free from the scandal of this abominable traffic, and I think that your excellency will agree with me in deeming that the surest way of preventing its extending would be for the government, promptly and without hesitation, at once firmly to avow its determination not only not to permit it, but to prevent, by every means within its power, the possibility of its being carried on by the subjects of other nationalities.

This Peruvian ship has claimed and has received the hospitality of the Japanese government, which hospitality is of course due alike to every one on board that ship, as well passengers as officers or owners; but in the present case there is grave reason to believe that more than one person on board has been treated in a manner which no law could sanction, and it appears that without reference to your government within whose jurisdiction every soul on board is, by the force of circumstances, placed. The [Page 530] officers have assumed the right to punish as criminals men of another nationality whom they allege to be no more than passengers. This, I submit, they had no right to do within Japanese jurisdiction and in the presence of Japanese tribunals, and their assumption appears to me not only a gross breach of hospitality extended to them, but an insult to your excellency’s government. Whether this be so or not I leave to your excellency’s better judgment to decide.

The circumstances that I have narrated appear to justify me in requesting you to exercise the power which you unquestionably possess to institute an inquiry into events which have occurred within Japanese waters, and in order to do this effectually I would beg to suggest that you should take my application as the basis upon which the inquiry should proceed; that you should interrogate the captain and mate of the vessel; that you should place your authorities in communication with the alleged passengers, and particularly with the first man who sought refuge on board the Iron Duke, and that you should moreover call upon the captain to produce any contract he may have made with his passengers, and likewise any regulation he may have on board for the observance of order on his ship.

As in the present instance the Chinaman in question was delivered up to the Japanese officials by the British authority, I consider that I have the right to request that you will do me the favor of informing me when the inquiry will take place, so that I may be present on the occasion, and you may rely on my rendering you every assistance within my power.

As I am informed that the Maria Luz is about to leave the port, measures should, I think you will consider, be taken to detain her.

Probably this might best be effected by her papers being stopped, but inasmuch as it is possible that every attempt may be made to elude inquiry, steps might perhaps be taken to place the ship under surveillance.

I need hardly say that as the ship is under the flag of a country having no treaty relations with Japan, no other power can control your right to take proceedings which the circumstances that I have detailed appear to me amply to justify and which common humanity demands.

I avail myself, &c.

R. G. WATSON,
H. B. M.’s Charge d’Affaires ad int.

[Inclosure 7.]

Mr. De Long to the ministers of foreign affairs.

United States Legation, Japan,
September 3, 1872.

No. 104.]

Your Excellencies: The undersigned has the honor to acknowledge the receipt by him this day of your note in reply to his own relative to the affair of the Maria Luz; also at the hands of your interpreter of copies of papers in the case, to wit: copies of the ship’s papers, copy of the note from Her Britannic Majesty’s chargé d’affaires to you, of date August 8, 1872, relative to the Maria Luz, and also copy of the findings of the Kencho in the Maria Luz examination.

For these very polite favors I thank your excellencies very much.

I beg to again repeat to your excellencies that in addressing you relative to this affair I had not nor have not any desire to influence your actions or opinions. I only sought to obtain information to lay the same before the Peruvian government; such information as I felt sure you would not only be willing to furnish to me, but to the whole world.

I had no desire to lead your excellencies into any argument in explanation or defense of the proceedings that have been taken. My every feeling is antagonistic to this so-called coolie-trade, in which this vessel, it appears, is engaged. I made my inquiries as representative of the United States, lending my good offices to a power friendly to my own to the extent only of obtaining an authentic history of an action that had been brought and tried in the courts of your country, in which persons and property Peruvian had been involved. I have heretofore made known to your excellencies’ predecessors my authority for extending my good offices in this empire to Peruvian citizens. I had supposed it assented to and allowed by your government, but by your note of to-day, and, further, by information derived from my interpreter, I learn that my right to this act is questioned.

I now have the honor to inclose to your excellencies a copy of a dispatch received by me from the honorable Secretary of State of the United States, requesting me to so act, and I beg your excellencies to make known to me if there is any, and, if so, what, objection on your part to my acting for Peruvian interests to the extent suggested.

I have, &c.,

C. E. De LONG.

[Inclosure 8.—Translation.]

Soyeshima Tane-omi to Mr. De Long.

Foreign Office,
Tokei, the 19th of 8th month of the 5th year Meiji.

I have the honor to acknowledge the receipt of your excellency’s letter of September 3, 1872. In your note of June 21, 1870, you stated that you had been instructed by your government to attend to any matter that might be intrusted to your charge by the government of Peru.

It did not appear, however, that the government of Peru had then intrusted any matter to your charge, or even that it had requested the United States to lend the services of their minister.

Having now been favored with a copy of Mr. Fish’s instructions to you, inclosed in the note to which this is a reply, I take pleasure in saying:

That the desire of the republic of Peru that you should extend your good offices to its citizens in this empire being now clearly made known, the government of His Majesty the Emperor has no objections whatever to your acting for Peruvian interests to the extent suggested. In the year 1867 several if not all of the European governments withdrew their diplomatic representatives from Mexico, and desired that the minister of the United States should be charged with the protection of the interests of their respective subjects.

The American and the Mexican governments consented that the American should accept the trust confided to him.

The manner in which he was to act is stated in a letter to the American minister from the Mexican minister of foreign relations in these words, which I copy from the diplomatic correspondence of the United States, courteously presented to the gwainusho by the Department of State.

“The government of Mexico, desiring to avoid all danger of disturbance of its friendly relations with the United States, feels that it would be better that you should not interpose any mediation of an official character in the instances in which the subjects of France and Belgium might desire to promote their interests. But should you wish to interpose your good offices privately, the government will attend to them with all possible consideration.”

The Mexican minister of foreign relations subsequently adopted the same language in regard to the good offices for French and Prussian subjects. The mode of conduct described in the above extract having had the approval of so many governments, I do not hesitate to adopt the language of the Mexican minister in the present case.

It is to be understood that citizens of Peru who voluntarily come into the territories of Japan submit themselves in all respects to the laws and to the tribunals of this empire.

They will none the less be treated with justice and humanity.

It may even happen that they will be regarded more favorably than other foreigners who betray distrust by insisting upon being under the jurisdiction of their respective consuls.

With respect, &c.,

SOYESHIMA TANE-OMI.

[Inclosure 9.—Translation.]

Soyeshmia Tane-omi to Mr. De Long.

Foreign Office,
Tokin, the 25th of the 8th month of the 5th year Meiji.

Sir: I have the honor to acknowledge the receipt of your excellency’s letter of September 3, 1872. In your note of June 21, 1870, you stated that you had been instructed by your Government to attend to any matter that might be intrusted to your charge by the government of Peru. It did not appear, however, that the government of Peru had then intrusted any matter to your charge, or even that it had requested the United States to lend the services of their minister.

Having now been favored with a copy of Mr. Fish’s instructions, inclosed in the note to which this is a reply, I take pleasure in saying that the desire of the republic of Peru that you should extend your good offices to its citizens in this empire being now clearly made known, the government of His Majesty the Emperor has no objection whatever to your acting for Peruvian interests to the extent suggested.

In the year 1867 several, if not all, of the European governments withdrew their diplomatic representatives from Mexico, and desired that the minister of the United [Page 532] States should be charged with the protection of the interests of their respective subjects. The American and the Mexican governments consented that the American should accept the trust confided in him. The manner in which he was to act is stated in a letter to the American minister from the Mexican minister of foreign relations in these words, which I copy from the diplomatic correspondence of the United States, courteously forwarded to the gwaimusho by the Department of State:

“The government of Mexico, desiring to avoid all danger of disturbance of its friendly relations with the United States, feels that it would be better that you should not interpose any mediation of an official character in the instances in which the subjects of France and Belgium might desire to promote their interests. But should you wish to interpose your good offices privately the government will attend to them with all possible consideration.”

The Mexican minister of foreign relations subsequently adopted the same language in regard to the American’s good offices for French and Prussian subjects.

The mode of conduct described in the above extract having had the approval of so many governments, I do not hesitate to adopt the language of the Mexican minister in the present case.

It is to be understood that citizens of Peru who voluntarily come into the territories of Japan submit themselves in all respects to the laws and to the tribunals of this empire. They will none the less be treated with justice and humanity. It may even happen that they will obtain favor unexpectedly.

With respect, &c.,

SOYESHIMA TANE-OMI.

[Inclosure 10.]

Mr. De Long to the minister of foreign affairs, Lima, Peru.

United States Legation,
Yokohama, Japan, August 19, 1872.

No. 86.]

Sir: In the month of May, A. D. 1871, I received a dispatch from the Hon. Secretary of State of the United States advising me that on the 18th of March, 1870, your excellency, on behalf of your government, requested the United States Government to permit its ministers in China and Japan to act as the ministers of Peru with those governments respectively, and further stating “that in view of the friendly relations existing between the United States and Peru I will consequently thank you to attend to any matters which maybe intrusted to your charge by the government of that republic, so far as this can be done compatibly with other instructions from this Department. (Inclosure No. 1.)

On the 20th of June I replied to that dispatch, accepting the trust for your government, (inclosure No. 2,) and immediately afterward I called at the foreign office in Yedo and notified the ministers of foreign affairs of the purport of this correspondence. By a dispatch, dated November 17, 1870, addressed to your excellency, I also notified you of this request of the Secretary of State of the United States and of my reply thereto. In the same communication I tendered my services to your government to negotiate a treaty between the governments of Peru and Japan, and of the absence of any difficulty in securing it. (Inclosure No. 3.)

On the 12th November, 1870, I addressed a note to the ministers of foreign affairs of this empire (inclosure No. 4) in reply to a note received by me that same day from them (inclosure No. 5) relative to a vessel, the bark Cayatte, in which note I advised them, in writing, of my representative capacity for Peru, and claimed that vessel as Peruvian property. By a note addressed to you, of date November 22, 1870, I advised you about this vessel and asked instructions relative thereto. (Inclosure No. 6.)

On the same date I inclosed and forwarded both of the foregoing dispatches to your consul-general in San Francisco, accompanying the same with a note to him informing him of my official character; that the dispatches inclosed were upon official business connected with his government, and requesting him to forward the same to you. (Inclosure No. 7.) In due course of mail I received from Mr. Federico de la Fuento a reply acknowledging the receipt of the letters and promising to forward the same to you by the first opportunity. (Inclosure No. 8.) From none of these communications to your office have I ever received any reply or acknowledgment, which inclines my mind to the belief that they were never received.

The Maria Luz, a Peruvian bark en route from Macao to Callao, having been driven into this port by stress of weather, is now detained here by the Japanese authorities pending some investigations that are being made relative to some charges that have been preferred against her captain. At the time of her arrival, and when these proceedings were commenced, I was absent, and Mr. C. O. Shepard, the chargé d’affaires [Page 533] for the United States Government in Japan, in view of the instructions issued by the honorable Secretary of State of the United States relative to the coolie trade, deemed it incompatible therewith for him to extend any aid or assistance to the officers or crew of this vessel on account of the business they were engaged in, and Captain Heriero had applied to and obtained the counsel and assistance of H. E. Señor Tibrucio Rodriguez y Munoz, chargé d’affaires in Japan for Spain, with whom I have co-operated to the extent of urging upon the Japanese officials the propriety of giving the captain and his officers a fair, speedy, and a public trial, upon the charges preferred against them. I have also urged upon them the very great desirability of their acting justly in view of the friendly relations existing between Peru and their own country. I am watching the proceeding with close attention, and when the investigation is concluded and a judgment rendered, I will, by the first opportunity, advise you fully relative thereto. To this extent I have deemed it my duty and privilege to go.

Trusting to your excellency’s kind approval of my action, I have, &c.,

C. E. DE LONG.

[Inclosure 11.]

Mr. De Long to the minister of foreign affairs, Lima, Peru.

United States Legation, Japan, September 5, 1872.

No. 97.]

Sir: Since the date of my last advices to you the proceedings in the Kencho here have been concluded and a judgment rendered, a copy of which I send you. (Inclosure No. 1.)

After the rendition of this judgment the captain applied in writing to have his Chinese passengers returned to his vessel by these authorities, who had brought them ashore as witnesses. (Inclosure No. 2.)

To this request the Kencho replied, refusing the same, and admitting the holding of the Chinese in Japanese custody. (Inclosure No. 4.)

The captain then addressed me, soliciting my assistance. (Inclosure No. 4, bis.)

Upon receipt of this I addressed the foreign office of this government in his behalf, requesting to know if these proceedings had been had with the knowledge and consent of the Japanese government, if it approved the same, calling for a copy of the record of the action, that I might advise your government thereof, and further asking them to advise me as to the law or authority upon or under which these proceedings were taken.

To this note I received a reply certainly very equivocal in its nature, refusing to recognize my right to ask for such advices on behalf of your government, but advising me, as the representative of the United States, that the proceedings were authorized, and the judgment and subsequent proceedings affirmed by the central government; also granting my request for copies of the record of the court’s proceedings. (Inclosure No. 5.)

As their excellencies questioned my authority to be heard in this matter on your behalf, I replied, inclosing to them a copy of the dispatch received from the honorable the Secretary of State of the United States, directing me, as requested by your government, to act in this empire as Peruvian minister, and requesting their excellencies to recognize me as such or advise me of their reasons for refusing so to do. To this note I have not as yet received any reply.

I have thus far received from them a copy of the judgment, copy of the letter of H. B. M.’s chargé d’affaires in this empire, upon which these proceedings were based, (inclosure No. 5,) and copies of the ship’s papers, passports, &c., offered in evidence on the trial, (inclosure No. 8,) also the record of the testimony taken, but the latter I received too late to be able to furnish you with a copy of the same by this mail, but I will, forward it by the next with a copy of the reply of the foreign office to my unanswered note.

Trusting to your excellency’s approval of my action, I have, &c.,

C. E. DE LONG.

[Inclosure 12.—From the Japanese Gazette.]

Yokohama, Japan, September 18, 1872.

In the Sabansho, before his excellency Oye Tak, governor, this day.

Heriero vs. Chinese.—This was a suit to compel the fulfillment of the contract by certain Chinese on board the Maria Luz.

Mr. Dickens appeared for plaintiff, Mr. Davidson for defendants.

Plaintiff prayed that the Chinese be ordered to pay an indemnity for non-fulfillment of contract and cost of the ship’s delay, or be forced to re-embark and proceed to Peru. Defendants alleged the contracts were null and void, and fraud, force, and fear exercised [Page 534] to obtain their persons; unjust confinement, ill-treatment, insufficient food, so that health and life were endangered, and extortion against the terms of the charter-party; that it was not within the province of the court to enforce specific performance of the contract, which was contra bonos mores, and ought not to be enforced, and was in violation of the law and China, and ab initio bad.

Mr. Davidson, addressing the court, said there were points which arose as the pleadings, points of law and questions of fact, and when Mr. Dickens had ended his arguments on the two first, and produced evidence of his facts, he would reply. In one case, that of Low Chong, however, a question arose as to whether the captain was the proper agent of Armero, who was, however, expected hourly by the French mail. The arguments would be nearly the same in all cases.

Mr. Dickens then arose and observed that the facts of this case were already before the court in the pleadings. He was instructed by representatives of Portugal and the other powers interested in the case of the Maria Luz, to demand that the cases be heard by a court constituted, in accordance with the fourth section of the convention of Yedo, dated 28th September, 1867, of the governor, acting with the advice and assistance of the municipal director and such as he may obtain of the foreign consuls. He asked if the court was or was not so composed before which this case was to be heard.

Mr. Davidson observed, on this, that it was a recommendation and not a concluded convention. In the second place, it was not in the power of any representative of a treaty power to occupy a place on the bench sitting on subjects concerning non-treaty powers whose citizens were subject to the jurisdiction of Japanese authority alone. Foreign ministers, if sitting on the bench, would exceed their powers and involve themselves. Thirdly, the fourth section of the convention was simply a consent that whenever the government should try cases of this it might do so with the assistance of the foreign consuls. It simply said “may.” If the governor chose to do so, he may ask the consuls to give him advice if they choose. So the only conclusion to be come to was that the foreign consuls might give advice, and then only when the governor asked them to.

Mr. Dickens replied that the recommendation was agreed to and became binding upon them. In proof of that he would inquire of the British consul and his predecessor whether that recommendation had not been adopted and had not become binding. He thought it was impossible for language to be plainer. It was such advice and assistance as he “may” obtain, and this meant such advice as he possibly could obtain. He therefore asked the Kencho to direct that a proper court be established in accordance with section 4, and the case be adjourned to be heard before that court.

The governor said the foreign department had ordered him to proceed with the case.

Mr. Dickens handed in a written protest, and the case proceeded.

Mr. Dickens then went on with his argument, referring to the case of the F. A. Palmer, which had come in port in a lamentable state, with several deaths on board, yet no investigation took place; its passengers were not landed at all, and when landed, from motives of humanity were kept under surveillance, and finally returned to the ship. He felt entitled to ask that the same hospitality should be extended to the Maria Luz as was shown to the F. A. Palmer. As to the contracts, it was not necessary to read them or explain their nature more than was explained in the petition. They were genuine contracts, viséd and authenticated by the proper authorities, and there was evidence from the authorities of Macao to prove the contracts were regular. He therefore submitted that the burden of proving they were not genuine would rest with the opposite side rather than him. The validity of a contract was dependent on its validity at the place where it was made, and he asserted they were according to Portuguese law, though a question might arise whether their validity was not to be judged by Peruvian law. The contracts were made between Portuguese subjects and Peruvian subjects, at Macao. He argued that they were as enforceable as those articles of agreement which sailors signed. A ship-master had power to enforce by force the work of his sailors. The cooly trade was carried on by the English from the East Indies, and still carried on by England, France, Portugal, and Peru. It was therefore not without the pale of international law. Of course it might be cruelly carried on; but the regulations of the Portuguese government provided that the sum of $1,000 was to be deposited by the captain of every Chinese passenger-ship from Macao to Peru, which would be forfeited in case of cruelty. The F. A. Palmer was cleared from Hong-Kong; and as these proceedings had been instituted at the instance of the British minister, he therefore thought that fact was worthy of notice. The contracts made had nothing to do with China in a legal sense, but with a Portuguese colony, and must be governed by the laws of place where each was made. But by the Chinese code of Taout-Sing-Lao-Lee, in the fifth division of Hin-Poo, it was provided slaves should be punished as parricides who slew their masters, and in the next section parents were permitted to sell their children, except to magicians. This showed that Chinese law permitted slavery. The last point was if contracts, if valid in the land where made, were enforceable according to the custom of Japan. On that part he would say that contracts of worse nature were daily enforced by the government, the latter punishing laborers hired at [Page 535] less than market prices. Lately, a number of unwilling emigrants were sent to Yesso, and a certain proportion of labor they were to render to the person nominated. He had a much stronger case within the knowledge of the court, for the rendering of service the most disgusting that any human being could perform, for terms of six, eight, and ten years, and often with minors. He referred to the prostitution contracts, authorized and administered by the Japanese government, as set forth by Dr. Newton, who appeared to have regarded the system with favor, as the least of many evils.

He quoted from this “the indentures of a prostitute for a term of years.” These were specifically enforceable. If the girl ran away, she must be discovered and returned, the right to her services was assignable, and the document legally bound her for the term specified. He here read the copy of an actual contract. The court ruled it was not necessary to read it.

In answer to Mr. Davidson Mr. Dickens stated it was not stamped with the government seal, but he would proceed to show how the government intermeddled in it. Those contracts were between government authorities or not. He would say they were. At signature a stamp duty was paid to the government, and the Yoshiwarra was under the direct supervision of the government officers, who daily and hourly lent their aid to enforce them, the gates being guarded and the very liberty of ingress and egress denied girls. Abortion was permitted and practiced, and brothel-keepers looked on as very good citizens. This showed what the custom was, and that only could be gone on—a kind of common law instead of common law. They might be punished and tortured for insubordination and refusal to receive men. In view of this, how could contracts giving the Chinese the same rights as Peruvian citizens be looked on as illegal? In this view contracts for work and service were specifically enforeeable. With regard to the points of fact. The defendant in his answer first denied that Heriero was the agent of Armero, and then acknowledged that he was. The contracts were genuine, valid, and enforceable by Japanese customs. In the answer, it was asserted, first, that the contracts were never entered into; and, if entered into, then that they were voided by fraud. He did not see how those statements were justified at all; but asserted that the contracts were duly entered into; that the passengers embarked of their own free will on board the ship, knowing perfectly well what their destination was; and being assembled on two successive days, had the contracts read out and explained to them by three Chinese interpreters of the various dialects used. Hence, they had full opportunity of stating whether they had been decoyed or kidnapped. On the third day the contracts were signed by them before the proper authorities; not only that, but before the ship sailed the proper officer came on board the ship and afforded them all an opportunity of making any reclamation. They saw there was sufficient space, and that the ship was well found, and for any breach of the regulations the captain was punishable. The examination of the coolies and the signature of the contracts took place at Macao, in the superintendency on shore. During the voyage the passengers on the whole, were contented and happy. The only instances of punishment were these: 12th June one coolie put in irons for selling tea at $1 per tin; on another day, eleven, for having concocted a plot to assassinate the master and crew of the vessel. This was not joined in by the rest of the passengers. It must be remembered that South China is infested by pirates, and from time to time a certain number of these piratical Chinese are to be found; but ninety-nine out of a hundred are always contented and tranquil, so long as left alone. With those exceptions, no punishments were inflicted on the passengers between Macao and this port; and there was no matter to justify the detention of the captain for offenses alleged to have been committed on the high sea, and the proceedings were entirely illegal, in which view every foreign representative in the place concurred expressly or tacitly. The passengers were fully provided with food. There were 230 on board, and the daily allowance of food to them was, rice, three piculs, one tin salt or fresh pork, (120 pounds weight,) a tin of pickles, a picul of beans or two of potatoes. Twelve pigs were taken and two oxen. Besides, once a week each man was allowed an egg, and every day each could have as much tea as he liked, for which the daily average of water was from 200 to 240 gallons. There were 321 piculs of rice on board, being the anticipated allowance for 100 days. Chinese wine, tobacco, oil, and lemon-juice were put on board, and everything as in English emigrant ships, allowing for the difference between Chinese and European passengers. On the ship arriving in Yokohama on July 9, and up to the period when the ship was boarded under threat of compulsion, no complaint had been made to the captain, who went round with the mate every night and asked if there were any complaint. No complaint was made until the coolie had swam to the Iron Duke, when the disturbances commenced, and the complainants had every reason to suppose there was a plot on the part of the passengers so to damage the ship as to oblige the captain to put them on shore here, where they supposed there was a chance of bettering themselves much nearer China than Peru was. But for the uncalled-for interference of the British minister, none of the trouble and annoyance would have occurred. With respect to the contract entered into for Awo, by his guardian, he cannot produce Awo to swear he signed it, but could only refer to the contract as genuine, and to the officers [Page 536] who saw that contract executed. But if he was not his guardian, Awo had full opportunity of declaring he was not. Many of the statements made at the kencho were simply falsehoods. Several at the superintendency declared themselves to have different names from those they alleged here they bore. He could prove that no contract was signed on board, while their assertions of ill-treatment on board were simply allegations, which the captain denied totally, and would support by the evidence of every individual member of the crew. It is sometimes reproached against the ship that seven deaths took place on board. Let those who cared refer to the year 1834, on the conduct of British emigration: 730 persons died out of those voyaging in seventeen ships in one year between Liverpool and America. He held it was with very bad grace indeed that England mixed herself up to interfere against a vessel driven into a Japanese port, and requiring no assistance other than was privately to be paid for. Were any passengers harshly treated, then it might perhaps have come under the notice of the Japanese authorities; but the only punishments inflicted on board were those which he had enumerated—one for an instance of extortion, while the other was for an attempted act of piracy, while their appearance showed they certainly had not been ill-treated. The reporters for the newspaper were unanimous in their admiration (!) of the system pursued on board, and an experienced surveyor stated the accommodation was superior to that of many English emigrant ships. With regard to the question of agency, he expected Signor Arnero hourly, otherwise he would show that Captain Heriero was morally, if not actually in law qualified as Arnero’s agent.

Mr. Dickens then applied for an adjournment to procure a Spanish interpreter.

The court placed its interpreter at his service. Mr. Dickens said the captain could not understand him. The interpreter said he had been three years in Spain and could always make Spaniards understand.

The court decided to try him,

Mr. Dickens was about to ask questions of the witness.

Mr. Davidson objected; saying he ought to be put on oath.

Mr. Dickens objected, as the witnesses against him had not; besides, he might have religious objections.

Mr. Davidson. I should think he had; the former was only an inquiry, but this is a new trial, and the procedure on this occasion will serve as a precedent on others.

The court decided to administer the oath.

Mr. Dickens said he had religious objections to being sworn by the Japanese government.

The governor then ordered him to be told that he must make a true statement.

Captain Heriero deposed: I am a lieutenant in the Peruvian navy. I have commanded six Chinese emigrant ships from Macao, and am well acquainted with the regulations of the Portuguese government relating to those ships. The contracts now in court are similar to the contracts made with passengers on other vessels. I have never been fined for breach of regulations. The Maria Luz is not as large and well found as any other vessel I have commanded. I have been in both larger and smaller. None of the contracts were signed on board; all were signed on shore in the superintendency; I was not present when they were signed. I did not inflict punishment whilst on board more than twice, from leaving Macao to coming here. I received no complaints during the voyage from the passengers. I went round the ship daily. If any passenger had wanted to complain to me he could have done so easily. There was an interpreter on board. The food of the passengers was better than the food of the crew. The Chinese never complained of want of water. There were no symptoms during the voyage of a want of water. They always got water in tins. They could get water at all times; 220 gallons a day were used by the ship. They never took water, but always tea. None of the passengers, at any time, told me they had been kidnapped, nor was there any report, I heard of, during the voyage that any of them had been kidnapped, nor have I any reason to believe any were. I never confined any passengers without just cause, nor did I ever beat any passenger badly. They all got sufficient food, and had enough to throw overboard. They did not throw it over because it was bad, but because it was too much to eat.

Witness Heriero continued: Nothing occurred on board to endanger the life or health of any Chinese. I never extorted money from any one. I never took any money from them, nor did any one by my order. Complaint has been made to me of the cook, No. 96, doing so, and I put him in irons. I fulfilled the terms of the charter-party with Signor Armero. I have never rendered it impossible for any cooly to return on board the ship. I do not know in what way it will be dangerous for any cooly to go on board. I had a Chinese doctor on board. There have not been many ill at a time—very few; five or six at a time—never more, except when they were sea-sick, which at some times would be more than at others. The passengers did not appear to be uncomfortable or miserable on board until they got to Yokohama. They passed the time card-playing, smoking, and drinking. They were not ill-humored. After arriving at Yokohama they became discontented, after the one who jumped overboard was returned. I do not know the reason why he did. He had not been ill-treated nor punished. I put into [Page 537] port because I was forced by stress of weather. No others jumped overboard, nor did any of the passengers in any way try to get out of the ship before he did, while in Yokohama.

Mr. Dickens. He is justified by the regulations in preventing the coolies from leaving the ship.

Mr. Davidson objected, as they were not in evidence.

Mr. Dickens said the regulations were in court.

Mr. Hill said that they had been sent to the foreign office, at Yedo.

Witness continued: I do not remember the British minister boarding my ship. I was not on board, and the mate was in charge of the ship. I am well acquainted with the trade between China and Peru. I do not know that the trade is carried on in a cruel manner. I do not know of any complaints at Macao or Peru of its being carried on in a cruel manner. When the ship arrives at Peru, an officer comes on board, and asks if there is any complaint made by the coolies. I knew of no instance of any captain being punished for cruel treatment. There might be instances, but very seldom, The Chinese authorities had never requested the authorities at Macao to discontinue the trade, to his knowledge. The provisions are served out on board by the mate. The mate’s book is correct. All the passengers were “stout” when they came on board in Macao.

Cross-examined by Mr. Davidson: My government is aware I am engaged in this trade. There is no penalty attached to an officer of the Peruvian navy engaging in this trade. The superintendent gets the coolies on board this ship when I go to Macao. I do not employ any one to get them to come to the superintendency. The barracoon men get them. They are Portuguese and Chinese. I do not employ them to make the contracts. The Portuguese government employed them. I was only there to get these men. My agent, Armero, in Macao, made the contract. I do not employ agents in Canton to bring coolies down, or in other parts of the country, nor do I know how much is paid to the people who bring these men. I have seen receipts for sums paid them. Different men bring the coolie for their money. I do not employ these men. Armero pays them their money. I did not see any contract signed on board; only saw those of the twelve boys signed at the superintendency. I saw them all. Their families brought the boys—some were brought by the father, brother, or mother. I gave money to them—$45 or $50 for each. I engaged these twelve boys for myself. I am entitled, under my agreement, to take these boys on my own account. It is not in the charter-party; it is forbidden there. I am to pay for their food and voyage. I have provided separate food for them. I have not the written consent of Armero to this. I have not it here. I did not have it. I do not think Armero would be surprised if he knew of it. He has been on board and seen the boys. I bring back from Peru to Macao sometimes guano, sometimes nothing. I have been five years and a half in the traffic. I have brought back seventy, another time fifteen, in the last ship I brought back five; I should think, altogether, one hundred and thirty. I have taken, altogether, from Macao to Peru, about three thousand. The Chinamen paid their passage. When they arrive at Peru, I deliver them to the person named in the paper. They have to do the work specified in the contract—nothing else. The contract says if a cooly is compelled to work beyond contract time, he can proceed according to Peruvian law. That means he has the same right as a Peruvian. I am not a lawyer, and don’t know what that means.

The last clause of the contract says that both parties understand the contract, which says that disputes shall be settled by Peruvian law. Six coolies died between Macao and here, and one in Yokohama. I went round the ship daily. I went down sometimes among the coolies in the hold at night; sometimes at day-time; sometimes I would go four times a day; sometimes not at all. They were kept between decks; they were not locked in; the hatches were barred; a grating was on them; they could come out to the water-closet; they could come out at any time they pleased. During the day all might come on deck at once. I knew that by my charter-party only one-third could be on deck at a time. They have never been on deck all at once; they could come and go as they pleased; they were never looked up at all during the day, between Macao and Yokohama.

Thursday, September 19.

Captain Heriero’s cross-examination continued:

I was on board the Maria Luz when the coolies were brought on board. They were not all brought at the same time; the first time 170 came, next the others; they were marched down from the superintendency to the boats in charge of the officers of the superintendency; they were locked up at night on the voyage, because I did not want them on deck. There are three doors to the hold. The coolies went down by a ladder into it. There are fourteen windows to the hold. I only punished twice on the voyage, for selling tea, and because of the revolution on board. I did not beat the man who sold the tea. I have used a rattan to the men, when they wanted a second time to make a revolution on board. This was on the 10th June. I put the conspirators that time in irons, till distress of weather, for thirteen or fourteen days. They [Page 538] were kept in irons at night—in any place that suited, sometimes below, sometimes on deck. They could go where they liked with the irons on. They were not fixed up to an iron rod about six feet long. I did not use that for these men. They were chained in couples, and the chain was passed over the iron rod. It was not fixed. They could walk about. We used 220 or 230 gallons of water daily. I had on board 38,000 gallons. I was twenty-eight days coming from Macao to here. I anchored so far from the shore because I liked it. I was told by the harbor-master to come in nearer shore. I knew it was the typhoon season. I do not know which coolie is meant if you mention his number. No coolies tried to escape at Macao. When marched on board they were put down in the hold at once. None of them were ironed then; they were not locked in then. A watch was put over them; the whole of the crew kept watch. One or two or three men were down below showing their places and bedding. There were no men watching the coolies. None were armed. No coolie ever attempted to escape. I think they were looking forward with pleasure to go on. Where Peru is was already explained to them on shore. I am surprised they are not eager and anxious to get on board that ship now. I am perfectly astonished. I have never knocked a coolie down. I have never struck a coolie with a rattan. I have cut off three queues, because the coolie escaped. I only ordered them to be beaten with a rattan on two occasions already mentioned. Fifteen or twenty jumped overboard here in Yokohama. I never threatened to shoot any of them with a pistol. I never said before a witness, I would have to kill six or seven of them again after I left this port. I do not remember saying that on board my own ship in presence of Mr. Hill and another gentleman. I did not say that I would murder anybody. I did not say I would kill anybody. If the Chinamen tried to kill the people on board first I would have to kill the Chinamen. I never killed any coolie on my voyage in self-defense, nor have I ever ordered any to be killed, nor ever heard of any ever being killed. I never saw any ship fired because the coolies could not stay on board. I have heard of such things. I do not know the reason for the conspiracy on board the Maria Luz. The coolies were well treated. They were perfectly happy and contented. The commanders of these ships are not generally taken from the Peruvian navy. They are of all classes and nationalities. I am not the only man in that navy engaged in that trade; one or two more are; not more.

Mr. Davidson. I am glad to hear it, for the honor of the navy.

Re-examined: My government never objected to my being engaged in the trade The boys engaged by me were willing to go. I cannot transfer their services to any other person. Armero said he had no objection to their being on board. The passengers are under Peruvian protection, and also under Portuguese protection. When at Peru the Peruvian officials and Portuguese consul board the ship and ask the coolies if they have been well treated. They are then transferred to a government ship, and then to the shore, where there are more than twenty places to receive them kept by the agents of the Peruvian government. There are four hatches on the ship and four ladders. The hatches are open all night, and besides them there are six ventilating openings. None of the crew were armed. When the coolies came on board they were not thrust down, but went down of their own accord. There were policemen on board to see that no violence was used. The officer of the port went round the ship with the captain, and saw every coolie on board. No complaints were made to him. The provisions were good and remained so. In South China there are many piratical villages, and some of the inhabitants might have obtained a place on board, and be among my passengers. I have more than 3 or 4 of them. It is true that 15 or 20 men jumped over in Yokohama. I sent a boat after them, and fetched them back. I met Mr. Hill in an eating-house in Yokohama some time since. Mr. Hill threatened me with cutting my head off, but not the heads of the crew. He said so seriously, and said I had better get away at once. I believe it was not in joke. I do not believe Mr. Hill looks like a person given to joking. I don’t know if Mr. Hill spoke as if he had the authority of the Kencho. Mr. Hill did not say this case would make him (Mr. Hill) famous. He said it would make the Japanese government famous. I do not remember Mr. Hill said that this thing would be heard of in the year 2000. He said it would be heard of in every place and every country.

Mr. Dickens. Coupled with the name of Mr. Hill, I suppose.

Captain Heriero. I don’t know that. I understood it was wished I should leave with my ship, and not trouble myself any more about the coolies on board. This is my opinion only.

Mr. Hill was about to ask the witness some questions, when

Mr. Dickens said: I must protest against Mr. Hill putting any questions whatever. The questions must only be put by the court or by the consuls present. I don’t recognize Mr. Hill as anything more than adviser to the court. Mr. Hill is a private practitioner here, and for aught I know he may have some interest in matters connected with the case, and it would not be fair for him to be allowed to put questions of his own motion.

[Page 539]

The governor, (through Interpreter Wills,) Mr. Hill is putting these questions for the court.

Mr. Dickens. Then every question ought to pass through the court.

Examined by Mr. Hill, (the questions being translated to the governor before being asked the witness by the interpreter.) There were four openings from the deck down which a man could go where the coolies were. When those 13 or 14 men jumped overboard there was no force used in making them return to the ship. I was on board when they jumped off. They did not swim back. Altogether so many jumped overboard I cannot count how many. Those who came in the boat were eight. The most that went over at any one time, so far as I remember, was 8 or 10. I could not count when they jumped. The captain’s boat brought them back. I did not let my boat take them on shore. None of them were punished afterwards. They were not put in irons or confinement. I do not know whether the passengers are domiciled at Macao or at outside villages. I do not know the register numbers of the coolies who jumped overboard. It is not noted in the log-book. I could not recognize those who escaped if brought here now. I might perhaps one or two. At the conversations which occurred between Mr. Hill and myself in town there was a witness, but whom I don’t know; perhaps he would know better. It was not Mr. Hyashi. It happened in the saloon at 55, and took place a few days after the decision given in the other case, during dinnertime. About how much per head is generally paid for coolies to bring them to Macao, I don’t know. I don’t know whether they come from Macao or not.

James Brown warned: “Any evidence you shall give in this case in this court must be the truth and nothing but the truth, under penalty of perjury.”

Examined by Mr. Dickens: I am carpenter of the Maria Luz. I have never seen or heard of any passegner being ill-treated by the captain or crew. I was on board when they came in the ship at Macao. I never heard any complaint from the coolies. Before she left, the captain of the court, the Peruvian consul, and others came on board and said it was properly ventilated and care taken of the coolies. They had fish, onions, garlic, potatoes, turnips, and pork. Their food was equal to that of the crew and sometimes better. They were between decks and occupied nearly the whole of the decks. They were as well lodged as the crew; if anything, better. They were on deck during the day, and at night-time whenever required. There were four hatchways and two other openings for free passage of air, and six ventilators. There were six ports, three each side. I have seen them punished for trying to raise a rebellion, and the cook punished for selling tea. It was not a very severe punishment. They were flogged on the breech with a rattan by their own men about 20 blows. They were put in irons, two and two together. They did not appear miserable. At night-time, from 6 to 8, they would be “skylarking, showing their science.” I have sailed in coolie-ships from Hong-Kong to San Francisco. They were not allowed to leave the ship in the harbor. That ship was not near so good as the Maria Luz. I think the accommodation for coolies on board the Maria Luz far superior to that for emigrants on merchant-vessels from England to New York, and their food more abundant and superior. I was on board when H. B. M.’s chargé d’affaires came on board. He came in an unarmed man-of-war’s boat. The lieutenant in the boat was not armed. I was on deck. He went down below. What occurred there I don’t know.

Cross-examined: The vessel I was on board was an American vessel. I am well-treated; that’s all I care about. If circumstances suited me I would go to Peru. As long as I earn good money that’s all I require. I am not aware I might be kicked about from one master to another. Seven or eight gangs of coolies were brought on board. Portuguese brought them in barges, each containing, perhaps, 30 or 40 coolies. They were searched, and then they went down peaceably between decks. I think they got up the same night on deck. A great many played on drums and fiddles. I did not put any in irons that day. I did afterwards—perhaps a week or a fortnight. I did not know what was the cause of the revolution. I never struck nor beat them with a rattan or rope’s-end. I do not know that anybody sold the coolies water except the Chinese who was punished. I do not know what has become of each man’s $8. I did not receive any of it. They bought cakes, fruits, and shoes here. None tried to escape at Macao. Here seven or eight jumped over altogether one night. The irons were riveted on these men. They were kept on all night. I never complained about my food on board that ship. I lived in the cabin, same as the captain. The coolies did not live better than us; better than seamen. They were all happy and comfortable till the man was brought back from the Iron Duke and poisoned the others’ minds.

Examined by the court through Mr. Hill: The captain of any ship may prevent any sailor from leaving the ship by force. I cannot say if he can any other class of persons.

William McDonald, warned to speak the truth: I have been master of a ship, and am now surveyor of ships. I visited the Maria Luz to satisfy myself, out of curiosity, having seen certain articles in the newspapers. I found her lumbered about the decks as any ship fitting out would be. I went between decks, and found them cool, airy, [Page 540] and well ventilated in every way, and the passengers seemed to be comfortable. I would not say she was equal to emigrant-ships at the present day, but she was equal to some I have formerly seen, and equal to any India and China ship engaged in the coolie trade I have seen. I came away favorably impressed. This was immediately after the second article appeared in the Japan Mail.

F. Bevill, warned to speak the truth, said: I am sub-editor of the Japan Mail. I cannot remember what date I visited the ship. I went round below between decks. Appearances struck me as being very favorable, much better than an emigrant-ship I was once in myself. I saw the coolies below. I saw no “blood-thirsty ruffians” watching them. The head men were down below. I thought they were well fed and healthy. I was once, in 1864 or 1865, 39 or 40 days from Liverpool to New York in a 1300–ton ship. She carried cargo. One adult and about fifteen children died on the passage. The officers and crew did not behave badly, except in the matter of food, concerning which there were constant complaints. The place was abominably dirty and no endeavor was made to keep it clean. Whereas the Maria Luz was clean. There was not much illness on board. I believe no complaints were made on arrival at New York. They chiefly complained of the food and cooking. I have known the captain of a steamer use authority over a first-class passenger, whom the captain kept on board because he had not paid his passage. He paid his money and went ashore. My visit was before Mr. Watson had visited her. I went with Mr. Kent. We had not a letter to the captain. We introduced ourselves to the captain.

Captain Purvis, warned, said: I went on board the Maria Luz the first day she was in. I went round her where the coolies were, and saw the ship was clean, and particularly contrasted her with the F. A. Palmer’s state. I have been on board often since, and never found any difference in her state except that her decks were lumbered. The coolies struck me as being particularly healthy. I asked, as far as I was able to, if there were any complaints. I never heard of any complaint till after the man swam to the Iron Duke. I have heard of a captain confining a first-class passenger in irons, and confining others to their cabin. He has full power, for the safety of the ship, to interfere with the liberty of a passenger. An uproarious or quarrelsome man I should warn and then confine to his cabin if he persisted. Men-of-war carry the same irons as this cooty-ship.

Cross-examined: I saw no appearance of any hatches anywhere. The fore main hatches and booby hatches were perfectly open and the after hatch covered with white meshed netting. There were also holes cat in the deck. Any time I went on board the hatches were not there. The sleeping place of each cooly is larger by 2½ inches to each man than in men-of-war. They sleep on board. The ship is seven feet between decks, and this is divided into two tiers of berths. The ventilation of the Maria Luz is better than that of any man-of-war I have been in for 18 years. I was not on board at night, but I can judge pretty well. Each man has 20 inches of space; he lies with his feet to the side of the ship sleeping athwart-ships. I don’t know the average breadth of the Chinese, but more space is thus allowed them than for an Englishman. If Mr. Bevill, Mr. Tellerman, and myself slept in the same bed, we should probably not occupy the same room.

Manoel, a sailor, warned: Never saw nor heard of ill-treatment or any complaints by the coolies. The ship was duly visited at Macao by two officers, accompanied by an interpreter. The food of the Chinese was very good, about the same as his own. The crew were not allowed to beat them. This was his second voyage in a coolie-ship. Both were about equally well fitted.

To the court: He heard the Chinese intended to burn the ship from the interpreter. He had seen the straw they were collecting on board for the purpose of the fire. This was before reaching Yokohama.

W. H. Smith, cautioned: I was formerly an officer in the royal marines, and was during the China war; I had charge of a portion of a cooly corps to assist the British arms. The army employed Chinamen; I don’t think it is likely the consent of the Chinese government was asked. They were brought chiefly by placards. They entered into no written contract. They could not leave at any moment they liked. I should have punished any attempting to desert, by flogging or any other way, as I might think proper. This I suppose was with the knowledge of the diplomatic and military authorities. They were all Chinese subjects. According to military law, a man fighting against his own country is liable to death. Sixty of these ran away to the enemy, and fifty-nine had their heads struck off at once. They came from all parts. The advertisements were put up about the colony of Hong-Kong. I only had one interpreter who spoke Cantonese.

Serrano, a Chilian, steward of the Maria Luz, cautioned: Had neither seen nor heard of ill-treatment. He served out provisions and never heard any complaint about them or about water; they were good and abundant. At Macao the officials inspected the ship and passengers. The cooly food was better than his. The crew were not allowed to beat them. They were “all as they like it,” playing cards, dominoes, and guitars, and [Page 541] were not dejected in appearance. He had sailed in other coolie-ships; they were about the same.

Cross-examined: He gave out water to the men. The Chinamen took water themselves. He did not know what quantity they had; they always had enough. He did not give an account to the captain every day how much he gave out. He had to fill-several large vessels daily. Did not know how much they contained.

Examined by the court: He had seen the straw and wood fixed ready to set fire to the vessel. He discovered it after they left Macao. It had not been lighted. He heard it was to be set fire to; whether this was before or after the loss of the masts, he did not know.

Francisco Paul Xavier, interpreter, said he saw the contracts signed in the superintendency. The Chinese were questioned, if they were willing to go to Peru, and said “yes,” being questioned on three separate days. He went around with the harbormaster and another interpreter from the shore to ask if any refused to go. He heard of no complaints of ill-treatment. He went among them every day. It was impossible for any contract to be signed on board. He knew the ordinary life of Chinese villagers. They got perhaps one-tenth of the food served out on board. They would earn 20 or 25 cents a month. They could move about freely on board, and were satisfied. Had been in many cooly-ships, but now sailed for the first time from Macao. He knew the man who swam to the Iron Duke. He had not been ill-treated or punished. Did not know his reason for jumping overboard.

Cross-examined: He did not sell food or water or tea to the coolies. He was interpreter. Some were beaten 14 or 15 days after leaving Macao because there was a revolution. Had seen 10 or 11 in irons at a time.

To the court: He understood the Hakow, Punti, and Fokien dialects. There were three interpreters of the superintendency present when the contracts were signed; afterward the governor’s seal was stamped, and that of the Peruvian consul. After that the Chinese got their money and clothes. He had never received any money of the Chinese for any purpose, nor had they asked him to keep any. He had only seen the cook sell tea, but had never seen any water sold. The cook was a Chinese, and one of the passengers.

Adjourned till 10 a.m. to-morrow.

Friday, September 20.

P. Areas, mate of the Maria Luz, called, duly cautioned.

To Mr. Dickens: I am a Spaniard. Never saw coolies ill-treated on board; had seen them twice punished, but no more. Heard no complaints about food or water. The officials at Macao and the Peruvian consul were on board previous to leaving. Do not know who was with them. I went round the ship with them. They went all round the ship and asked if there was any complaint, but no complaint was made. An interpreter was with them. The crew were not allowed to beat the Chinamen or sell them anything. The Chinamen, in good weather, could come up all on deck in the day and at night if they wanted. The Chinamen were satisfied on the voyage and happy. The food of the Chinamen was better than that of the crew. Know the man who swam to the Iron Duke; he never was ill-treated or punished. All punishments were put in the log-book that occurred during the voyage, but no account was kept in port. The man that went to the Iron Duke was not punished on his return to the ship. Was on board when the English minister came on board; an English lieutenant was with him, in uniform and armed. The minister asked who was in charge, and the mate said he was, but could not show him round, as he had no permission from the captain. The minister and lieutenant went down below, but not the interpreter. The minister spoke loud, and he replied the same way. The minister spoke English. The minister did not threaten to obtain force to seize the ship from the Japanese. He was on board about a quarter of an hour. The man who swam to the Iron Duke was brought before the minister, who wanted to question him, but he sent the man away and would not allow the questions. The man was sent away between decks. The minister wanted to keep the man.

To Mr. Davidson: The Macao harbor-master and Peruvian consul and an interpreter went round the ship at Macao. Do not speak Chinese, and do not know what questions were asked. On the voyage the Chinese could get on deck when they liked; the hatches were not fastened, and they had not to ask leave to come out. On coming on board they were sent below. No one was put to guard them. Know of no one who was punished but the Chinaman for selling tea, and the money was returned to the Chinaman who had bought the tea. There was plenty of food and tea for all. The Chinaman was willing to buy the tea. The English officer who came on board with the minister had a sword. Refused permission to the interpreter to go below, as he had not leave of the captain. Was on board when others had come on board to see the ship. When the Chinaman came back from the Iron Duke he was not punished. Do not know if his cue was cut off. When the minister came on board it had been cut off. When he returned from the Iron Duke his tail was not cut off. He was not punished, but [Page 542] care was taken by two Chinamen not to let him jump overboard again. He was allowed on deck as usual in the day, but one Chinaman was constantly watching him. The English minister’s interpreter did not go below, nor did the minister question the passengers. The minister spoke English. The interpreter looked round, and asked if the passengers had enough to eat. They said “yes;” also said there were no prisoners on board. Did not prevent the minister putting any questions. Did not tell the interpreter that the men were not to answer certain questions unless pressed. Seven men died between here and China; do not know what was the matter with them; three or four died of disease and the rest jumped overboard. This was out at sea. They did so as they liked it. The men who died had not been beaten.

To Mr. Dickens: No one else came off on board in the man-of-war’s boat but the English minister; did not believe it was the minister at the time. The minister put three or four questions through the interpreter, who answered him; but the interpreter did not question the Chinamen. Did not refuse the minister permission to question the Chinamen until he had been below. Did not prevent him putting questions through the interpreter. The minister tried to question the man who swam to the Iron Duke, but I prevented him. The captain gave Mr. Bevill leave to go round the ship. He was not in a man-of war’s boat. Did not say he was a minister or even a consul.

To the court: The man who jumped overboard was a passenger. Prevented him speaking to the minister, as he did not like him to tell what occurred on board without the permission of the captain.

Mr. Dickens objected to the interpreting as being in many cases simply ridiculous.

Mr. Davidson suggested that the answer be written down in Spanish by witness. This was done, and it was, “That without the permission of the captain he did not want any of the passengers to be specially questioned, as he had no permission of the captain.” Did this as he liked it. Persons came on board from the shore three or four times.

Mr. Dickens to the court: Mr. Watson asserts in his communication to the foreign department that he menaced this officer that he would obtain leave from the Japanese authorities unless he was allowed to go below, as there was at first much disinclination on his part to let him do so.

Examination continued.

To Mr. Dickens: The British minister showed no authority to come on board and ask questions.

To Mr. Davidson: Did not like the minister to speak to the passengers. Could give no reason for his objection. Had received orders from the captain not to allow any one to question the passengers. This is the first time he had been on board a cooly-ship; never was in a coolie-ship before. Other ships carried cargo and passengers. It was not the rule of the ship then to prevent persons speaking to the passengers on board.

Chum Ping Him, a Chinese doctor, cautioned: Come from Canton. The coolies on board would not complain to me about provisions. I am a doctor, and have not charge of the food. About 30 or 40 persons were sick during the whole of the voyage. There were about seven serious cases; seven died between Macao and here. Three jumped overboard and four died, three at sea and one in port here. I do not know if the men had enough food or not. It was pretty good food. None of them ever complained of want of food to me. The coolies were many of them farmers, and many from the interior. In China they would receive about $3 or $4 per month. Know two or three of the coolies. Think they would be better off in their villages than on board the ship, as they would then be free and not confined. Have never been to Peru. Did not know the name of the man who jumped overboard and swam to the Iron Duke. I cured the most of the sick in about 10 days. The coolies were not in a good state at first, and had been beaten. Had told the captain they were not strong men. The captain said they must be punished, as they had tried to make a revolution. They were beaten very hard with rattans, and then with a bull’s hide; did not see how they were treated; sometimes four or five came on deck in the day. Chinese head-men watched at the hatches, and the coolies had to ask leave to come on deck. I kept in my own room, and do not know if they were miserable or not. A man, if sick, came to my room. When the passengers came on board in Macao, he did not examine them, nor did he afterwards. The seven men who died on the voyage died, one of dropsy, one of general swelling, one of rum, others of pestilence. The general sickness on the voyage was fever and ague. When the men were flogged they were tied up with ropes, and beaten with rattans. The men who were punished were kept in irons till the ship came into harbor, from five or six days after she left Macao. An unlawful weapon had been used to flog them with; but he told the captain it was poisonous, and it was given up for a rattan. The coolies were not allowed to come up when the sun was hot. He had not recommended the captain not to. The men in irons put cloth on to prevent wounds from the irons. He never saw them forced or sent below. The locks of the irons were opened the day the ship arrived here. He did not think any cases of illness which he treated arose from ill-treatment on board ship. It was very hot below. The men in [Page 543] irons could walk with them. Their wrists were not tied. When he came ashore, he went to the grog-shop; he did not see the Chinese guild.

To the court: When the three men jumped overboard on the voyage, they did so at different times. The first one jumped overboard when four or five days out; he did not know on what account. He never talked to the men unless they wanted doctoring. They never tried to save the first man who went over. There was always one ladder kept by which to descend from the deck to the hold; it was in the bow. Did not know whether the captain knew of the men jumping overboard or not. The police on board the ship called out and then he came on deck. The first went over about 8 a.m., another about 3 p.m. When the other went he did not remember. He did not see any attempt to save any one of them.

Mr. Dickens here stated that the Chinese doctor’s statements were directly opposite to what he had told him in private.

R. G. Watson, cautioned, said: I am H. B. M.’s chargé d’affaires in Japan. I am interested in the case of the Maria Luz. I have given Mr. Dickens no instructions in regard to that ship. On or about the 1st August, I proceeded on board the ship with a lieutenant of the Iron Duke; I requested permission to go down below; the mate refused permission as the captain was not on board. I mentioned who I was, and said as I was interested in two coolies who had taken protection under the British flag I should make application to the Japanese government to give me authority to visit her. The mate then gave me permission, but would not allow the interpreter. I went down with Lieutenant Dickens. The interpreter was distinctly refused permission to go down. We were only allowed to go on condition we left him on deck. We found many of the coolies debilitated, emaciated, and suffering, and all apparently in a very melancholy and unhappy condition. I asked to see the man who had escaped to the Iron Duke. At first the mate gave instructions to his interpreter that he was to delay me and raise every obstacle in the way that he could, but said that if I insisted on seeing the man he was to be produced. He said this, thinking probably that I did not know the language he spoke in. I did, and of course I insisted, and the man was brought up. He came tottering into the room, scarcely able to stand, and my interpreter said to me, “They have cut off his cue.” I said to my interpreter, “Tell him to tell me what they have done since he left the Iron Duke.”

The mate jumped violently at the man’s collar and flung him violently out of the cabin. That brought the communication to an end, and I went over the side into the boat. The impression on my mind was he had a great deal to conceal, and raised every obstacle he possibly could. I took measurements of the coolies’ space. There was 18 inches exactly for each person. I know that the cooly traffic is regarded with great horror in Europe, and it was no later than last year when the English government made vigorous representation to the Portuguese and Peruvian governments on the subject. This was caused by the destruction of the Don Juan, when 500 Macao coolies were left helpless to be burned or smoked or drowned. When Lieutenant Dickins went on board with me he had his uniform on. I don’t know if he had his sword on. I went on board as a private person, wishing to see the ship. I was dressed in plain clothes, but told him who I was. I cannot divest myself of my character as British representative. It was not a very hot day. I observed marks about the legs of the men and scrofulous marks. When the man who swam to the Iron Duke was brought he was not there a minute. When he was thrust out of the room he did not fall; he was caught by another man who had supported him in. The berths were marked off and numbered. The majority of the men were in these berths. I do not know that 418 feet would give 21½ inches to each coolie. I measured them with a yard-measure. At first I thought it was less than 18. I have no instructions from the home government to make representations to the government of Japan relative to the coolie trade. I do not know if there are laws in Japan against the coolie trade. She has so recently come into the comity of nations it is only now that precedents are being established. I am aware that the circumstances of the F. A. Palmer did not call for severe investigation. I don’t think any one is justified in asking me what my instructions are. I am quite sure that I am acting in accordance with the policy of Her Britannic Majesty’s government in pointing out to the Japanese government the view my government take of the cooly trade, which is a very strong one. I am aware that coolie emigration is carried on from English colonies, but under different conditions, and the regulations are so modified it has almost altogether ceased. I never urged the Japanese government to detain the ship of a friendly power. I merely urged them to have an investigation into the circumstances connected with the two coolies who took refuge under the English flag. That is a quotation from my letter: “As I am informed that the Maria Luz is about to leave this port, measures should, I think you will consider, be taken to detain her. Probably this may best be effected by her papers being stopped, but as it is possible every attempt may be made to elude inquiry, steps might, perhaps, be taken to place the ship under surveillance.” I meant to detain her after the inquiry had been gone into.

[Page 544]

Re-examined:

My impressions are that the coolie traffic at Hong-Kong stopped in consequence of the restrictions put upon it by the English government.

Mr. Dickens here read one of the coolie contracts, which was put in with Dr. Newton’s report on the Yoshiwarra Lock Hospital, a contract concerning one Hura, which the Kencho had declared enforcible in favor of one O–Yoné; the Chinese passenger act and an extract from the China overland trade report was read to show that a coolie contract, agreed on by an international convention, was almost identical with the Portuguese contract.

Mr. Dickens then summed up his evidence.

Case adjourned till to-morrow.

Saturday, September 21.

Witness Brown, recalled, stated:

That he could not remember the day he took the men in irons out. It was not on arrival, but about ten days before arrival. The Chinese doctor’s cabin was forward.

Captain Heriero, recalled, said:

The irons were struck off ten days before arrival in port. I was present. I don’t remember how much I paid for the little girl. I have the receipt. The numbers of the coolies who jumped over were No. 126 and No. 215. It was nine or ten days before arrival here that the irons were struck off the men in confinement. The date of the revolt was the 8th June. The date of the arrival of the ship in Yokohama was the 10th July. There was another log-book which showed all about the ironing, &c.

Mr. Dickens. Why did not you show me that book?

Mr. Hill said that the court desired to see it.

Mr. Dickens said he did not propose to put it in evidence.

Mr. Davidson replied that the captain might be asked if he objected to produce it.

Mr. Dickens. He must object. I object for him.

Mr. Hill said the government considered this was a very important case, and was desirous of examining the matter fully.

The captain refused to produce the book.

The court directed that he should produce it for their examination.

Mr. Dickens. It is in my possession, and I object to its being taken out of my possession.

Mr. Davidson. The court has power to do it. So have I. I can move for all documents, log-books, and papers in your possession.

Mr. Dickens. I shall defend the motion. I refuse to put it in, unless it is taken by force, till I have read it. I have not yet read it, and I don’t know whether there is anything private in it or not.

Mr. Davidson. You can’t take your objection. In a civil court, you know, the plaintiff has only to move that all things in connection with the case shall be produced and it will be granted. This is not a private book; it is a public log-book, and the entries in this very log-book bear upon this very case. Every ship involved in any case of this kind is bound to produce its log-book.

Mr. Dickens. I object to putting it in. If obliged to do so I shall do it.

Mr. Davidson. I never heard a log-book was a private communication before.

Mr. Dickens. You hear it now. It’s either between the captain and owners or mere private memoranda.

Mr. Hill. Please state shortly what the objection is to producing the book.

Mr. Dickens. I have not read it, and I can’t advise him till I have read it.

Mr. Hill. The court says whether you have read it or not it doesn’t matter. It is the log-book of the ship and it must be produced.

Mr. Dickens. It is either private memoranda, as between the captain and passengers, or it’s nothing at all. There may be private matter in it.

Mr. Davidson. It has something to do with the case, since it contains accounts of the men jumping overboard.

Mr. Dickens. We’ll have extracts made.

Mr. Davidson. No, we’ll have no extracts; I don’t trust the other side sufficiently.

The governor said if it was a private matter he should not wish it put in, but if it was the history of the voyage of the ship it should be produced.

Mr. Dickens. Even if it was that, it could only be produced at the instance of the proper authorities. It ends with the arrival of the ship in harbor, and the Japanese government have nothing to do with the voyage, or what happened in it.

Mr. Davidson. The question of cruelty has been raised, and you have led evidence on the subject which goes beyond the harbor. Any man who subjects himself to this jurisdiction is bound to submit to its procedure.

Mr. Dickens. He doesn’t submit himself. He is driven into it.

Mr. Hill. The governor says, in these cases, all these books, writings, logs, and [Page 545] documents of any kind whatsoever, are handed in for the inspection of the court, as is customary at Japanese law.

Mr. Dickens. Ask him are there any log-hooks kept on board Japanese ships?

The Governor, (through Mr. Hill.) There are.

Mr. Dickens. I don’t put it in, (throwing the book on the table.) There it is. If the court chooses to take it they can do so. I can’t prevent them.

The court engaged in consultation, when

Mr. Dickens observed: In order to put an end to this interruption to the case, I’ll put it in.

F. P. Xavier, Chinese interpreter, recalled:

He never told the captain the men were too ill to be flogged. He never saw any ill after being flogged. He went round the decks every day. The ordinary wages of a Chinese coolie was twenty-five to fifty cents a month. When flogged the few lashes did not affect the men at all. He only counted three or four lashes. He was not present at the flogging.

Captain Heriero re-examined:

He occasionally put men in irons for a few hours at a time. He was not perfectly sure because he did not perfectly remember. He, himself, never flogged any men. He caused them to be flogged twice.

E. H. House, called for the defense, stated:

I am a teacher in the Kaiseijo. I saw a report of the case on the 20th September, containing the evidence of Captain Heriero. I observed statements made by him concerning what he had said in my presence. He said, in general words, he believed he would be obliged to kill several of the men, in consequence of the action of the Japanese government, after he left Yokohama; he then thought he would take all the men with him; it might have been six or seven, or several. I was so startled by that statement I requested either Mr. Hill or Mr. Hiyashi should ask again. He repeated the same thing; he said it twice; Mr. Hiyashi and Mr. Hill were there.

Cross-examined:

I went on board of my own accord; I proposed it myself. The captain spoke in English; I teach English; he speaks quite sufficiently well not to make a mistake about a matter like this; I cannot define if he spoke half as well as I can. I don’t know anything about your capability; if you cannot understand him, I can. He spoke of that necessity as one of the usual events of his life. I don’t propose to give my opinion on how many men he has killed before. From his statement I am of opinion it is one of the usual events of his life, and I am of opinion he would kill men if he was obliged to. If I was obliged to kill a man under any circumstances, I cannot conceive of any circumstances which would oblige me to. The conversation was not on my part; it commenced with Mr. Hill. It seemed to me he was holding a court of inquiry then. I can’t tell the first question he asked; he asked many; I can’t tell you what the first was; they appeared to be for the purpose of discovering the condition of the men on board. It was a perfectly spontaneous remark on the captain’s part, and not made in response to any question. I think it is possible that the captain might apprehend the action of the Kencho would stir up a mutiny. I did not eat or drink anything on board; the captain offered it; I presume the others did so. You needn’t say that judge, jury, and accused all hobnobbed together; no, that’s an observation of your own.

Re-examined:

I am under impression that this killing Chinese is an ordinary event in the life of such a man, and that he would not scruple to do it.

(To the governor.) I went below in the hold. The men appeared to be in a very terrible condition; I could judge only by their manner and aspect of countenance; I had no doubt they were treated with great cruelty. I could not say as to the space; it struck me as being very small. The smell was such I did not desire to stay there long; the means of ventilation were obviously wrong. When we were on deck there was no entrance possible unless they allowed it; they had to put up a ladder for us to go down; it was brought from below.

Mr. Davidson, in reply, said the F. A. Palmer case had been incorrectly stated by Mr. Dickens. The most violent cases of small-pox existed on board, and she was put in quarantine. After a while a representation was made by Heard & Co. and the coolies were allowed to land, and the charterer of the vessel sent them on per steamer to California. In that case there was no jumping overboard or cruel treatment, starvation, beating, kidnaping, or putting in irons, and the matter was not thus brought before the Japanese government. The English contracts provided for the coolies to be enabled to break their contract at the end of any year for a shorter time, and for free communication with their friends in China, and they were not transferable.

The court then adjourned.

[Page 546]

Monday, September 23.

Mr. Davidson wished to call attention to one or two points. He had shown that the case of the F. A. Palmer was wholly different to that of the Maria Luz. As to the law of Japan, he would mention that the Yeso emigrants were all willing to go, and no complaints had been made. As to the enforced labor, this municipal labor was for the public advantage in the same way as there was compulsory military labor in France and Prussia. As to the Yoshiwarra contracts, he would quote from Dr. Newton’s pamphlet, which stated that the consent of the woman to be a prostitute must always be obtained, except in the case of children, who are at the disposal of the parents. The state had nothing to do with these latter, the children being naturally supposed to be safe in their charge. If the parents did what was immoral, it was hardly to be quoted against the government. In fact, the Yoshiwarra contracts could not be considered as having anything to do with the case in point. Mr. Davidson, arguing on the question of the lex loci contractis, maintained that the contracts should be according to the law of China, since Macao, unlike Hong-Kong, had never been ceded away by the Chinese. Mr. Davidson then put in Chinese books said to be published by the government, and with their entire sanction, against all emigration. The learned counsel then alluded to the opposition of all civilized countries to this coolie traffic, showing how anxious both the English and the American nations were for the abolition of the trade. Turning to the contracts with the adults, he held that they were in their nature contracts of slavery; they were assignable, and the men were bound to exactly what their masters desired, and, in fact, were to all intents and purposes slaves. Mr. Dickens had said that Mr. Altas was a Peruvian government official; but he submitted that there was no evidence of that, while here was evidence that. Mr. Altas engaged the coolies as a private individual. He also maintained that the coolie contracts, like those of slavery, were contra bonos mores, and were so held by civilized countries.

1.: Even if the contracts were proved to have been executed by the parties, and to be untainted by fraud, or force, or fear, so as to be binding upon the defendants, still there is no law which requires the court to order specific performance, because courts of law do not make such orders, either in cases of personal service or where the contracts are contra bonos mores.
2.: The decreeing of specific performance is always a matter of discretion (not of obligation) with the court, and it will not decree it where it is not equitable to do so nor where there is fraud or fault on the part of the person claiming it, nor where it is impossible to carry out the judgment.
3.: That on the face of the pleading and the contracts they are contracts partaking so largely of that species of personal service called slavery that no court could either acknowledge or sanction them by decreeing their enforcement.
4.: That in those analogous cases where extradition is demanded of criminals who have fled from the justice of their own country, and of political refugees when a government demands the recall of its subjects for military service—in all these cases the persons so demanded are not given up by the natives in whose territory they are, unless there has been an express treaty between the two governments, binding each to do so. So also in cases of runaway slaves.

The learned counsel then adduced a number of references from English and American authorities bearing upon the case and concluded his comments upon the legal points of the case. As to the plaintiff, he had to prove a variety of facts, which he held had not been sufficiently shown; thus, for instance, the agency, the signature of the parties, &c. The defendants alleged kidnaping, bad treatment, starvation, &c., and he held that the plaintiff had himself definitely proved it to the satisfaction of the court. He had proved that the contract had been broken by the plaintiff, and the court could not enforce the contracts. In his evidence the captain said that all was comfortable, there never was any discontent till they reached Yokohama; yet diretly afterward it was admitted that three men jumped overboard in mid-ocean. The learned counsel then instanced a number of contradictions in evidence of the captain and rest of the ship’s company. The carpenter’s evidence-was too good, and was not straw. As to the worth of the statement that there was enough tea for all, he would contradict that by showing that the cook sold a tin of tea for $1; if there was enough tea why was it bought? Then Manuel, a sailor, said he heard all the questions and answers between the Macao officials and the coolies, yet he did not go round with them, but staid on deck; then the steward, he knew nothing; as to the interpreter, his evidence was unsatisfactory; he said all the coolies were anxious to go to Peru, yet they were guarded to the ship; then as to his knowledge of South China, he at one time said he knew all about South China, yet he never left Macao till he left on the Maria Luz; then the mate denied the captain’s statement that the coolies could get on deck at night; then as to the visit of the minister, he went on board with a lieutenant; he was refused admission, but subsequently got on board the ship and I went below, but he was not allowed to take his interpreter; he was not to hear the I truth of the case, everything must be kept quiet; the captain was not on board and the mate could not let the minister see the coolies without his permission, yet subsequently [Page 547] some persons were allowed to come on board without the captain’s permission; then the mate would not allow the interpreter to bring forward the man who swam to the Iron Duke; however, he was brought, and the man could hardly stand; when Mr. Watson put some question, the man was flung out of the room; the mate’s evidence was, in fact, useless; as to the doctor, he was cross-examined by his own counsel; the doctor contradicted all, and gave some insight as to the state of the ship; in conclusion Mr. Davidson maintained that the plaintiff had not made out his case. Indeed, he held that the plaintiff had given such evidence as to warrant the court in giving judgment in favor of the defendants at once, and asking that the court would consider the case as to whether or not it should be stopped, the plaintiff’s case having broken down. Mr. Davidson concluded his address. Mr. Davidson said, with reference to the power of attorney, it had been signed since the raising of the actions, and therefore Captain Heriero had no power to raise there. Its date was 9th September. He consigned there was sufficient before the court now to enable it to base its judgment upon. He should therefore only call one further witness, the English consul here. He also produced one of the contracts of the defendant, stating that no signature or seal had been attached by the contractee, (the defendant,) while it did not bear the stamp of the Peruvian consulate, and therefore was additionally invalid. The facts elicited from the plaintiff and witnesses conclusively proved that he was not entitled to have specific performance of contract for which he asked, nor could it possibly be decreed by court, as it could not go beyond its own limits to enforce it, and the extradition law clearly went in his favor. Upon these grounds he asked for judgment in favor of the defendants on all points.

Russell Robertson warned:

I am the consul of the Queen of England in Kanagawa. I remember its (F. A. Palmer) coming into port in June, 1870. She arrived, flying the flag of San Salvador, with 800 passengers on board. She put in in distress and flew the quarantine flag. It was found virulent small-pox was on board. At the request of the consuls a cordon of boats was placed round her for several days and the men prevented landing. The agent of the ship, Mr. Fraser, (for A. Heard & Co.,) represented that the Chinamen were in great want of a run on shore to complete convalescence. The agents guaranteed the expenses, and the whole 730 were landed and taken to Kanagawa and placed in barracks. They remained there so long that the shipper, Lee Sing, came up himself and found it his interest to send them Pacific Mail Steamship Company to San Francisco at $40 or $50 a head. There was no complaint whatever, and no question was made as to the delivery of the coolies. They were each provided with a passage-ticket. There were no contracts at all. It was a speculation to undersell the Pacific Mail Steamship Company.

Cross-examined:

I do not think there was a treaty with China. There have always been special provisions with regard to Chinese based on a treaty for the settlement of a guild at Nagasaki.

Mr. Dickens asked whether the coolies were still under surveillance or not.

Mr. Hill said the coolies were being protected by the government. When the last finding of the court took place it was stated the coolies would be detained a few days, and this had been done.

Mr. Dickens, in reviewing the case, said the actions had been brought to put before the Kencho the arguments under which it might be induced to reconsider its decision and give up the coolies—although he did not anticipate much success by an action before a court which had actually already judged the question. But the trade was not condemned by either the public or private law of any country, except America. These contracts, if valid in their inception, had not since been voided by fraud or cruelty, although, perhaps, one or two might, owing to the action of the captain after he came to Yokohama. But he did not ask for specific performance of them, but only such as the men themselves were now capable of. The action was not brought against the coolies as free persons, but to induce the court to reconsider its action in the matter. He argued that the cases of the F. A. Palmer and Maria Luz were nearly identical, and contracts entered into by the passengers of the Maria Luz only differed from the model contract in the services of the men being assignable by a private person in the one, and only assignable by an official in the other. These men were being taken to Peru to labor on the railways there, as he was informed, and Serrano was one of the officials. If there was no special provision for sending letters or money home, there was nothing to prevent the coolies doing so, as they had all the privileges of Peruvian citizens. It was also argued that the model contract was redeemable. Let this be granted; but where was the coolie to get his money to effect the redemption provided for? He did not see how the end of the Yasso municipal forced labor justified the compulsory means used. After alluding to the enforcement of the superintendence of prostitutes as being a very different thing to the enforcement of contracts made for prostitution, [Page 548] as whatever public necessity for the first, there could be none for the other. In reply to the statement that Macao was politically, as well as physically, Chinese territory, he stated it was a Portuguese colony by cession and conquest, and an abandonment of that place by the Chinese had been conceded in a treaty-draught drawn up by them, but not ratified by Portugal. The Chinese edicts were not against the coolie-trade, or even slavery, but against kidnaping. If it were proved kidnaping were used in the Maria Luz he would throw up the case at once. Even if these contracts were tainted with slavery Chinese laws would uphold them. How could the contracts be against bonos mores? Were they against those of Japan, which enforced prostitution, or against those of all the rest of the world, which recognized the coolie-trade, with the exception of America? Extradition cases had nothing to do with the subject. With regard to an indemnity he would, if it were agreed to be given, leave its sum to the board of consuls. The captain, if guilty of cruelty on the high sea, was only amenable to the Peruvian or Portuguese government. In fact, the coolies were, during the whole term of their servitude, under the special protection of the Portuguese government, who had established Consuls through Peru. His concluding words would be few, for he would not attempt to gain his cause by calling witnesses liars or fools, or to indulge in long adjectives, tall expression, or vituperative language, leaving them to those better able to use them than himself. The counsel for the defense simply summed up his defense: “O, I am perfectly content to rest my case on the statement of the plaintiff; he is such a liar and his witnesses are such liars.” But he imagined the force of such a trick as this would be entirely lost on this court, whatever it might be with a jury. After stating that Mr. Davidson had asserted the mate had given conflicting evidence with the captain, he went onto assert that the evidence was altogether in his favor, and had been distortedly quoted by the defense.

Mr. Davidson. That’s not true.

Mr. Dickens. That what I assert?

Mr. Davidson. I say it’s not true, and is a very insolent observation, which ought not to have been made.

Mr. Dickens proceeded to maintain the veracity of the witnesses for the plaintiff, with the exception of the Chinese doctor, whose statement, he argued, should be struck out, since he had been refused an advance of wages that very day, and had since disappeared altogether. In conclusion he put in a cane with which, he stated, the men had been punished; and asked whether the degree of cruelty of punishment with it was not less than that with the cat-o’-nine-tails, and whether any punishment with it would be commensurate with the offense. He wound up with the assertion that he had proved all the points of his petition, and by praying for a judgment in favor of his client.

Mr. Hill asked what Mr. Dickens’s explanation of the contract held by the cooly not having the Peruvian consulate seal.

The captain said that one was the official document, the other simply a copy.

The court then arose.

In the Kanagawa Kencho, before H. E. Ohye Tak Gon no Kami.

Between Senor Armero, of Macao, China, a Spanish subject, by his agent, Don Ricardo Hereiro, master bark Maria Luz, a Peruvian citizen, plaintiff, and Li Chong, a Chinaman, passenger by the said bark, defendant;

And between Don Ricardo Hereiro, master of the Peruvian bark Maria Luz, and a Peruvian citizen, plaintiff, and Lai Taim, a Chinaman, a passenger by said bark, defendant.

Finding and judgment.

In the consideration of these actions I have been very much assisted by the books and authorities produced by the counsel both for plaintiff and defendant; for it has been my desire to be guided by the generally approved maxims of international law and the practice of courts of other states whenever such maxims and practice have been found to apply, as well as by the somewhat broader principles of natural justice and equity which are of universal application.

Japan, by her treaties with other states, has entered the comity of nations, and has thus accepted the system of international law as it is found to be practiced by independent and sovereign states. On all powers by whom that system is recognized and accepted, it imposes obligations and confers benefits; and Japan while she will endeavor to meet the obligations which thus rest upon her in good faith, as she is able to learn and understand them, desires and expects also to avail herself of the rights and privileges which are at the same time conferred.

The actions above entitled involve questions somewhat diverse, and will be more conveniently considered separately.

In the first action named above it appears on the face of the alleged contract that one Althaus is the principal on the one part and the Chinaman Le Chong on the [Page 549] other part. Senor Armero purports to act as the agent of Althaus in Macao, and has signed the instrument as such agent. But that an agent cannot, without special power given him so to do, delegate his authority, is a maxim of every known law; and as neither Senor Armero or his so-called agent Heriero or his counsel have in any way shown that he has that special power, or even the fact of his agency, he cannot therefore delegate any authority to Captain Heriero. The latter has consequently no right to ask for the enforcement of the alleged contract, or to take any action under or in respect of it in any manner whatever. There are, however, other questions raised by the pleadings which seem deserving of consideration on their merits.

1st.: Was the alleged contract duly executed, and is it valid and enforcible where made?
2d.: Is it one which is contra bonos mores?
3d.: Is it void by reason of fraud, or has it been first broken by the plaintiffs by ill-treatment?
4th.: Should it be enforced by this court in the manner and to the extent prayed for?

As to the first question, it would seem that the allegation of due and proper execution, and that it is a contract valid and enforcible where made, must clearly and affirmatively appear; for that such a contract, even without objectionable feature of being assignable, if made in this empire, is not valid and enforcible, is certain. It would be wholly and completely void as opposed to the interests and settled policy of the empire. That undeviating rule has always guided the present imperial government, and in many instances when parents or guardians have entered into such contracts, and children have under them been taken from their houses to be clandestinely conveyed from Japan to serve for a term of years, this government has adjudged such contracts null and void and has compelled the parties coucerned to return the child to its home. Some twenty children have at different times been so recovered. (Vide records of Kanagawa Kencho.)

No such instance coming to the notice of the authorities has been passed without such action and exercise of all possible means to procure the return of the person so conveyed away. Such a case occurred a few weeks since. The Japanese consul at Shanghai, after great exertions, recovered the child and took charge of her to be sent to her parents in Japan. (See record of foreign office.) The particulars of this case were given in the Japan Gazette of September 20, 1872.

On a still more extended scale were conducted the negotiations in respect of the persons taken to Hawaii, many of whom were subsequently returned to Japan. (Vide records in foreign office.) In that case the persons were of full age and no imputation of fraud was made.

The class of contracts which were referred to by plaintiffs’ counsel as existing in Japan, and which were adduced in support of this action, do not appear to the court to bear the analogy to those we are considering that was claimed for them. The important incident that the party shall go to a foreign country, and thus lose the protection and care of his own, is wholly wanting in those adduced. Such an incident is utterly repugnant to the fixed and unvarying policy of this government, and would be held to make completely void any contract executed here. A peculiar domestic institution may exist in a state, and to an extent receive its countenance without any intention of encouraging its establishment abroad or forcing it upon the attention of the world. Even where domestic slavery exists the import and export of slaves is often strictly prohibited. Such was the case in the United States for a period of above fifty years. The contracts referred to by the counsel are a peculiar feature of a strictly domestic institution, and it is not supposed that, even were it possible they could in any manner come before a foreign tribunal, that they would be regarded as having any force.

It may, therefore, be broadly stated to be the well-considered and settled policy of this empire that no laborers or other persons subject to this government or enjoying its protection shall be taken beyond its jurisdiction against their free and voluntary consent, nor then without the express consent of the government, and that a contract entered into for such a purpose will be held wholly and completely void. We have said, therefore, that the proposition that such a contract is enforcible when made should clearly appear.

The general rule as to foreign contracts is that the lex loci contractus is to govern the construction, and that they will usually be enforced according to that law. But we find it a principle of international law that when the lex loci and the lex fori conflict or come into collision the rule must yield, as when it contravenes the public policy of a state, and neither does it apply when the parties had at time of contracting in view the law of another state. (Forsyth’s Cases and Opinions on Constitutional Law, 1869, pp. 240, 243, and 250; Kent’s Comment., lecture 39, page 462; and Story, Conflict of Laws, sees. 254, 327, 328, and Wheaton’s International Law, sec. 93.)

2. Is the contract one contra bonos mores? The court has not been able to find in the authorities produced an instance where a contract of like character has been adjudicated, and is thus without a guide in arriving at an opinion on this important point. It must, therefore, be guided by general principles, and although it may not quite be said that the alleged contract is of a character which, in contemplation of universal [Page 550] law, renders it void ab initio, yet it is true that it does contain features which are not and cannot be reviewed with favor by nations other than those concerned, and that the most stringent and binding laws and regulations have been enacted by some of them in respect to the species of emigration of which it is an incident. (Herein see act of Congress of the United States, and also resolution of same body, and instruction from State Dept. to ministers and consuls, Consular Regs., 3d ed., 1868, pp. 85, 86; and British Govt. Regs, and instructions; vide evidence Mr. Watson.)

The alleged contract is not one of any ordinary character. Besides that it provides that the person bound shall proceed to a foreign country, it has the peculiar feature before referred to of being assignable, and seems to demand the most careful scrutiny. Under it the status of a person bound has most of the features of personal servitude, with the exception that there is a limit to the time during which the instrument shall have effect. For the term of years stipulated the person bound is no longer a person, but a chattel subject to an instrument which may be assigned and transferred to A, B, or C, may descend to the heirs, or be seized by the creditors of him who for the time being may be the custodian.

The law to which he is to be subjected is as yet a sealed book to him, for although it is referred to in the instrument itself, we learn from the evidence, (see testimony of witness Xavier, interpreter,) that it was neither read nor explained to him at the time of the alleged execution. That law is indeed as yet unknown to this court, for neither party was able to produce it on the trial.

That the term of this service is limited does not change its essential character. It will not be said that those persons are any the less slaves who may be so held under a system of jurisprudence which, while it recognizes and protects that relation, provides also that all such persons on reaching a certain age—an age of 90 or 50 years—shall be absolutely free. Nor can it be said that the provision for the payment of nominal wages redeems the alleged contract from the character above assigned to it. Wherever the relation of master and slave exists and comes under judicial cognizance and review, very peculiar obligations are recognized and enforced. Certain fixed and definite obligations have even been recognized as existing on the master’s part, none the less certain and binding because implied rather than expressed in writing. Such is the obligation and duty to furnish medical care and clothing, to allow hours for recreation, and to advance necessary moneys for the comforts and necessities of the slave. Substantially, then, the practical status, whatever name may be given it, to which it is asked that the defendant be consigned is that of slavery, a state which is so repugnant to all sense of natural justice that it has ever been held that it can exist or be recognized only by force of express law, and which, then, is no obligation on the part of a sovereign state, either in the law or comity of nations, to in any manner assist or countenance.

3. Is the alleged contract void by reason of misrepresentation, concealment, or fraud at its making, or ill-treatment and oppression since?

The evidence as to the execution of the instrument is not certainly clear and decisive, but the allegation of fraud does not seem to be made out, although no one who heard the evidence can doubt that misrepresentation and concealment were certainly employed to induce such consent as was given. The interpreter, Xavier, stated that the alleged contract was executed in duplicate and that one copy was given to each party. Later the consul’s attention being called to the lack of a seal on that given to the passenger, it was explained that this was not an original or duplicate, but a copy. If so, it seems strange that such signatures of other parties as are attached thereto should purport to be the real ones and not copies, and the question naturally occurs if the party bound be not himself possessed of a contract, how can he hereafter assert his rights thereunder or prove them in a court when it may become necessary? The copy in the defendant’s possession is not only without the consular seal, but neither is it countersigned by the register, J. Rodga Costa, as is the original. It is alleged that the subject of the action has received abuse and ill-treatment to the extent of being a breach of the alleged contract, and a good deal of testimony was heard to this point. As to the condition of the passengers on the ship on her arrival here, the statements of disinterested persons differed widely, some stating it to be wretched in the extreme and others finding it quite the reverse. This being so, other circumstances are of importance in coming to a correct conclusion as to the treatment of the passengers, and the fact that there were early and continued attempts to escape; that a rebellion was attempted for that purpose; that many of the passengers were severely punished in consequence; that three men deliberately jumped overboard on the voyage, in the case of two of them there being no attempt to rescue or save them; that while in this port a still larger number repeatedly endeavored to escape and were brought back; that a very strenuous disinclination was shown to permitting a conference between Mr. Watson and the passengers, the mate and interpreter using deception to effect that purpose, and that actual force was in at least one instance resorted to to prevent it, must all be taken to have much weight in support of the defendant’s allegation of ill-treatment and oppression. The log-book also shows that during the voyage other [Page 551] men attempted to jump overboard, but were prevented. The space also allotted to each passenger seems much less than that provided for in the British-Chinese passenger act, to which reference was made by plaintiffs’ counsel, to wit: 12 superficial and 72 cubic feet of space per passenger. The measurement of the Maria Luz, as appears by her register or flag license now in this Kencho, is, extreme length 109 feet by breadth of beam 24½ feet. The height of the hold between decks was by Captain Purvis estimated at 6½ feet. Twelve superficial feet and 72 cubic feet to each of 250 passengers would require a superficial area between decks of nearly 3,000 feet, a space certainly one-half greater than that afforded by the Maria Luz.

4. Should the alleged contract be enforced in the manner and to the extent prayed for? The instrument purports to be one for the performance of labor and personal services, an incident only of which is that the defendant will go to Peru for the purpose, and specific performance is sought of that particular act only. It must, of course, be considered as a whole and construed in its entirety, and with reference to all its parts, and the remedy sought being an equitable one, implies, under a familiar maxim, an offer and willingness by the plaintiff to do equity. The court finds, from the authorities to which it has been referred, and to which it had access, as to the practice of foreign courts of equity jurisdiction, that among the essential requisites of a contract upon which a decree for specific performance will be made are “that the mutual performance must be practicable,” and that “it must be necessary;” that is, that there be no adequate remedy in damages, and further, that the court must be able to secure performance to all parties before it will be decreed against one; and that when the principal agreement cannot be enforced the court will not decree special performance of an accessory agreement. (Story’s Eq. Juris., secs. 731 to 735, 793, f. 778, b. 10, Am. ed., 1870, and Bouvier’s Law Dictionary, vol. 2, p. 538, 12 and ed. in 1868.)

The court further finds that, using the exact words of the authorities, “The plaintiff should come with perfect propriety of conduct,” “clear from all circumstances of deceit;” “that the agreement be certain, fair, and just in all its parts,” and that “when it would subject a person to great hardship” it will not be decreed. (See various cases and reports quoted in Tudor’s Leading Cases in Equity, vol. 2, ed. 1850, pages 372, 374.) And to decree specific performance is universally stated to be wholly discretionary with the court.

The doctrines thus enunciated and confirmed accord with the soundest principles of natural justice, and are convincing to the judgment and discretion of this court. The general rule also undoubtedly is, (is subject, in certain particular cases, to qualification,) that a contract for personal services cannot be specially enforced by either party. (See Law of Contracts, by Prof. T. Parsons, 5 ed., vol. 3, p. 357, and cases and reports there cited, and Story’s Equity Jurisprudence, sec. 793, L. ed., 1870.)

These several rules are all under systems of domestic procedure, and when the parties litigant remain within the domestic jurisdiction, no instance has been found where a court has compelled an alien and stranger to go without its jurisdiction, or has placed him beyond its protection, except in compliance with the terms as an express and specific treaty stipulation to that effect entered into with the alien’s state. This is true even in case of criminals, and, a fortiori, it would apply when such a remedy is sought under contract.

Let us see, then, how the alleged contract answers the requirements thus seen to be necessary, for the principles thus adduced seem to be applicable in this case.

To decree what is here prayed for would be not to secure the performance by all parties of their several obligations, but rather to assist the plaintiff to avoid his if he were so inclined. Beyond Yedo Bay the ship and all passengers on board would be beyond the jurisdiction of this court or the authority of this empire. Suppose the court should make the decree sought and the ship should pass beyond its control, what would prevent the captain, were he so inclined, from taking these passengers to a place other than stipulated, or any place he may see fit? And, could he but elude the notice and vigilance of other nations, even from taking these men to a place where chattel-slavery exists and there selling them into a condition of absolute bondage?

Nothing that this court can now or could in such an event do would secure equity to those passengers. It would be powerless in the premises. Surely such consideration cannot be disregarded in influencing the conclusion of this court in a case like that under review.

We have already reviewed the circumstances attending the execution of the alleged contract and the conduct of the parties since. From that review the court cannot say that the plaintiff “comes with perfect propriety of conduct,” “free from all circumstances of deceit,” that “the contract is fair and just in all its parts,” or that it would “not subject the defendant to great hardship.”

From all the circumstances and facts thus reviewed, and guided by the la thus adduced, the court cannot therefore make the decree sought.

The conditional portion of the plaintiff’s proper, commencing “unless the plaintiff is prepared to pay,” suggests an absolute reversal of all known and ordinary methods of procedure, and could only be considered, if at all, in the sense of a demand for d mages; and besides which he does not ask this court to assess these alleged damages, but [Page 552] prays that another court, which has no existence in fact, may he constituted for this purpose.

No damages have, however, been proved. No attempt was made by the plaintiff to prove such, and none can be awarded.

The judgment of the court is for the defendant.

In the second action the same questions arise as in that we have considered, with the additional as to the wardship of the defendant.

The objectionable feature of the assignability is, however, absent from this contract, and it is in express terms stated to be not transferable.

We have already seen that such a contract, if executed in Japan, would be invalid, and the like remarks as were offered as to treatment on the voyage apply to this case also.

This contract per se cannot be said to be contra bonos mores.

For the reasons more particularly given heretofore, and in view of the same maxims of law, this court cannot decree a specific performance or award damages.

Damages is the usual and appropriate remedy on contracts of this character, but none were proved herein.

Although the wardship of defendant was alleged by plaintiff, no evidence was adduced in proof, and the defendant was sued in his own person. Why this course was chosen is not apparent to the court, but this action was considered deserving of an adjudication on its merits, and has been so considered and determined.

The judgment of the court is for the defendant.

Kanagawa Kencho, September 27, 1872.

[Inclosure 13.]

Mr. F. Dickens begs leave to acknowledge the receipt of a communication from the kencho, dated yesterday, informing him that the passengers of the Maria Luz, now under surveillance, will be allowed to go at large unless the twenty dollars per diem demanded by a previous communication of the kencho to defray the expenses of such surveillance, and paid up to yesterpay, continue to be paid. Mr. Dickens has accordingly caused a second sum of one hundred dollars to be transmitted to the kencho, a like amount having been previously transmitted in accordance with the kencho’s first communication on the subject.

Mr. Dickens protests most respectfully against this daily payment of twenty dollars continuing to be enforced. The passengers are ashore wholly by the executive act of the kencho, an executive act justifiable, if at all, only upon the ground of the invalidity of the contracts entered into by the passengers, the only question about to be determined in the action brought by the captain under the permission given in the finding of the kencho, and in respect of which the continued payment of the above-mentioned daily tax is demanded.

The kencho ought, therefore, to bear the expenses attending such surveillance, and have no just right to demand from the plaintiff the cost of their keep and that of the officers in charge of them; the captain having always been willing to keep them on board of his ship.

The first payment of one hundred dollars was made under the impression that the cases would be heard within a few days.

The cases are of the greatest possible simplicity, and a previous case essentially similar to the present, necessarily withdrawn in consequence of the variable and inconsistent orders of the kencho upon the form of the pleadings, has been before the kencho for a considerable time.

The order to pay the twenty dollars per day was an executive, not a judicial act.

The order was peremptory, the penalty for disobedience or neglect being the putting an end to the surveillance, and so practically entirely destroying the remedy of the plaintiff, a remedy which, by the above-mentioned finding, he is admitted to be entitled to.

The counsel for the defendants in the actions now before the kencho never demanded such a daily payment, and is probably as much surprised as I was at the plaintiffs being called upon to feed the defendants.

No opportunity was offered to us of showing cause why it should not be demanded.

By the admission of the kencho itself its acts hitherto in relation to the Maria Luz have been wholly executive in their nature.

The captain, then, has the right to protest against such acts when advisable, and he does so protest against them one and all. Every possible obstacle has been thrown in his way by such executive acts to prevent him from procuring a fair hearing of his case, and from sustaining and defending the rights and interests confided to his care.

[Page 553]

The proceedings against the captain wear the aspect of being merely undertaken upon foregone conclusions; of being a mode of obtaining by indirect means, having a specious look of regular procedure about them, results, the attainment of which directly has not apparently been preferred by the authorities under whose directions the proceedings in respect of the Maria Luz were commenced and prosecuted.

A copy of this communication will be forwarded to each of the foreign papers for publication, and to each of the foreign ministers and consuls.

FRED. V. DICKENS,
Counsel for Captain Hereiro.

September 14th, 1872.

Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873

No. 243.
Mr. De Long to Mr. Fish.

Captain Heriero to Mr. De Long.

Captain Heriero to the Kanagawa Kencho.

Kanagawa Kencho to Captain Heriero.

Mr. De Long to the ministers of foreign affairs.

Soyeshima Tane-omi to Mr. De Long.

Mr. Watson to Soyeshima Tane-omi.

Mr. De Long to the ministers of foreign affairs.

Soyeshima Tane-omi to Mr. De Long.

Soyeshmia Tane-omi to Mr. De Long.

Mr. De Long to the minister of foreign affairs, Lima, Peru.

Mr. De Long to the minister of foreign affairs, Lima, Peru.

Yokohama, Japan, September 18, 1872.

Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873

No. 243.Mr. De Long to Mr. Fish.

Captain Heriero to Mr. De Long.

Captain Heriero to the Kanagawa Kencho.

Kanagawa Kencho to Captain Heriero.

Mr. De Long to the ministers of foreign affairs.

Soyeshima Tane-omi to Mr. De Long.

Mr. Watson to Soyeshima Tane-omi.

Mr. De Long to the ministers of foreign affairs.

Soyeshima Tane-omi to Mr. De Long.

Soyeshmia Tane-omi to Mr. De Long.

Mr. De Long to the minister of foreign affairs, Lima, Peru.

Mr. De Long to the minister of foreign affairs, Lima, Peru.

Yokohama, Japan, September 18, 1872.

No. 243.
Mr. De Long to Mr. Fish.