Mr. Uhl to Mr. Dun.

No. 47.]

Sir: Acknowledging the receipt of your No. 48, of 23d December last, relative to the jurisdiction of the United States consul at Nagasaki over civil suits there instituted against the American citizen George W. [Page 386] Lake, I inclose a copy of an instruction to that consul which appears to contain an answer to your inquiries.

I am, etc.,

Edwin F. Uhl,
Acting Secretary.
[Inclosure in No. 47.]

Mr. Strobel to Mr. Abercrombie.

No. 25.]

Sir: Your dispatch No. 81,* of January 17 last, with its inclosures has been received and considered.

It raises the question of the status of one George W. Lake, an American citizen, who, having been twice convicted of misdemeanors by the American consular court in Japan, and consequently expelled from the country, pursuant to the provisions of Article vii of the treaty of 1858, has recently returned to Japanese, territory.

The Department some time since received from Mr. Dun a dispatch and inclosures in reference to this man Lake. The specific inquiry therein raised being whether you, as American consul at Nagasaki, had jurisdiction over civil suits there instituted against Lake. You now state that the civil suits brought against him before you, which gave rise to the question submitted by Mr. Dun, have proceeded to judgment by default. You further state that on December 31, the time allowed Lake by the consular court for the settlement of his affairs, having expired, he was arrested, and upon his refusal to comply with sentence was taken to jail, where he will be kept until he either, consents to leave Japan or you are otherwise advised by the Department. Finally, you request full instructions not only as to the further steps to be taken in Lake’s case, but as to the principles which should govern your action in similar cases, ab initio.

In reply, I have to say in the first place that you undoubtedly had jurisdiction over the civil suits brought against Lake, and the Japanese courts had no jurisdiction over them. Lake did not, either by being twice convicted of misdemeanors or by his expulsion from Japan, cease to be an American citizen, and upon his return to Japanese territory the jurisdiction of our consul over civil suits against him arose just as it would arise in respect to any other American citizen coming into Japan. Japan, it is true, might exercise her right under the treaty to expel Lake from the country, but so long as the Japanese authorities take no steps for his expulsion the treaty provisions as to consular jurisdiction apply no less to him than to other American citizens. The right of expulsion, however, belongs to and must be exercised by the Japanese Government. The expulsion can neither be decreed nor executed by our consul. The party’s refusal to leave the country is not a criminal offense of which our consular courts can take cognizance.

The party having been convicted of a felony or twice convicted of misdemeanors in the consular court, the right of the Japanese Government to expel him from the country arises without further action on the part of the consul. That officer’s duty in respect to the expulsion is merely to abstain from interference where the Japanese Government has the right to expel, unless this right should be exercised in an unnecessarily harsh and oppressive manner.

[Page 387]

The same is true in respect to the means to be adopted to prevent the person expelled from returning to the country. The consul has no authority to prohibit or prevent his return. That is exclusively a matter for the Japanese authorities.

I infer from your dispatch that Lake has been arrested and is now confined under your order for refusing to leave the country. As the preceding observations indicate, it was in the opinion of the Department no part of your duty to take this action. Lake’s expulsion must be effected by the Japanese authorities and they can not call upon you to assist in accomplishing it. You should therefore release him, and abstain from all participation or interference in the proceedings which those authorities may take for his expulsion, except to see that he is not subjected by them to harsh treatment further than may be necessary to compel him to depart.

I am, etc.,

Edward H. Strobel,
Third Assistant Secretary.
  1. Not printed.