[Inclosure in No. 47.]
Mr. Strobel to
Mr. Abercrombie.
Department of State,
Washington, February 16,
1894.
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.