No. 180.
Mr. Bingham to Mr. Fish.
Tokei, Japan, September 22, 1875. (Received October 26.)
Sir: I have the honor to acquaint you that on the 20th instant I received from Thomas B. Yan Buren, esq., a dispatch in Which he stated that an American vessel had just arrived in the port of Kanagawa having “on board one of the crew (an Italian subject) in irons, charged with a murderous assault upon the mate,” and asking upon this statement my opinion whether he (the consul-general) has jurisdiction to try the man for the offense, a copy of which dispatch is herewith inclosed, (inclosure No. 1.)
On the 21st instant, in reply to this dispatch, I addressed to the consul-general a communication stating that the question of jurisdiction in the case stated was one for judicial decision, and expressing doubts whether I was authorized to give to the consul-general an opinion in advance upon a judicial question upon which he was likely to be called to pass officially; but if I was authorized to express an opinion upon the question presented, it was needful that I should be advised whether the vessel was in the naval or merchant service of the United States; when and where, and for what term, the seaman charged was shipped; and when and where the offense charged was committed, and especially [Page 345] whether it was committed on the high seas; a copy of which communication I have the honor to inclose herewith, (inclosure No. 2.)
On the 21st instant the consul-general, in reply to my communication, addressed me a dispatch, a copy of which is herewith inclosed, (inclosure No. 3.)
You will observe that the consul-general in this reply states that the vessel is a merchant-vessel named “William Van Namee,” which sailed from New York, (without stating when;) that the accused was shipped with the rest of the crew for a term of two years, (without stating at what time he was shipped;) and that the alleged crime was committed upon the high seas.
Assuming that the accused was a seaman duly engaged on the vessel, as the fact seems to be from the general statement of Mr. Van Buren, it seems clear that the crime charged, if committed on the high seas, is not within the consular jurisdiction of Yokohama, but within the exclusive jurisdiction of the United States courts, inasmuch as it is a crime within the act of March 3, 1825, (section 5346, Revised Statutes,) it being an assault upon the high seas and on board an American vessel with intent to perpetrate a felony, to wit, to kill the mate of the vessel. The accused, in my opinion, can only be tried for the crime charged in the appropriate district of the United States by a United States court.
Neither the treaty with Japan nor the law of the United States confers jurisdiction on American ministers or consuls in Japan to try any citizen or seaman of the United States for crimes or offenses other than such as may have been committed in Japan, and therefore there is no color of excuse for supposing that either a United States minister or consul in Japan has jurisdiction to try any person for crimes committed on board an American vessel and upon the high seas.
You will notice that the consul-general in his dispatch of the 21st instant states that in this case his difficulty is, whether he has jurisdiction “to try for offenses any persons but citizens of the United States,” and that he has “failed in securing the instructions of the Department of State on the subject.”
The consul-general follows this statement by informing me that he supposed I would give him my impressions upon the question of jurisdiction in the case, and if, in my opinion, he had not jurisdiction, that I would advise him whether it was his duty “to return the man to the United States for trial, or turn him over to the Italian consul.” Surely the laws of the United States are as supreme upon every American deck on the high seas as they are in the District of Columbia, and there is no more warrant for the transfer, by order of the consul general, of au Italian subject, or any other person, committing a crime on board an American vessel and upon the high seas, in violation of American law, to the jurisdiction of an Italian consul in Japan, than there is for a like transfer by order of a United States consul of an “Italian subject” to an Italian consul to be by him tried for a crime against law committed in Washington City.
Our law above recited (see section 5346 Revised Statutes) holds every person of whatever nativity to answer to the United States courts for an assault committed on another upon the high seas “on board any vessel belonging in whole or in part to the United States, or any citizen thereof, * * * with intent to perpetrate a felony.” The subject of every country becomes the subject for the time being of American law whenever he voluntarily enters the naval or merchant service of the United States, or voluntarily sails upon an American vessel, or sojourns in American territory.
[Page 346]As the consul-general has once before sent an American seaman to an English court for trial, and now suggests that he wishes to know if he shall “turn over” this American seaman, charged with a crime committed on board an American vessel upon the high seas, to an Italian consul in Japan, to enforce upon him the penalties of American law, I have concluded that it was my duty to say to the consul-general that he has no power so to deal with such offenders against our laws, or to so dispose of an “Italian subject” who, on the high seas, on board an American vessel, it is alleged has committed an assault on another with intent to perpetrate murder, and that, in my opinion, the officers of the vessel should carry the person so charged to the United States and turn him over for trial to the United States court of the appropriate district.
Having received in your No. 144 the expression of your approval of the ground assumed by me in my correspondence with Sir Harry S. Parkes in relation to McCoudrill, an American seaman sent by the consul-general for trial to the English court in Japan, it seemed to me that I should make reply as above indicated to the consul-general’s dispatch of the 21st, as to his power to turn over this alleged offender to the Italian consul to answer for a crime committed upon the high seas on board an American vessel, against the life of an American citizen and in violation of American law. I have to-day addressed a note as above indicated to the consul-general, a copy of which I herewith inclose, (inclosure No. 4.)
Hoping, that my action may command your approval, and requesting instructions upon the question presented,
I have, &c.,