Zappe to True copies: J. FREDRICO ELMORE , Secretary Permian Legation, August 6, 1872

Sir: With reference to the inclosed copy of the minutes of the consular meeting held to-day for the purpose of considering the finding and recommendation laid by your good selves before the consular board in the case of the Peruvian ship Maria Luz, I beg to forward to you a copy of the recommendation and advice given by Mr. Zappe, His Danish Majesty’s acting consul-general, to which Mr. Loaviro, consul for Portugal, Mr. Bruni, acting consul for Italy, and myself give our full approval.

I remain, sir, your obedient servant,

E. DE BAVIER, His Danish Majesty’s Consul-General.

Consular meeting held at the German club, August 29, 1872. Present, E. de Bavier, esq., His Danish Majesty’s consul; E. Lourend, esq.; F. W. Hill, consul; A. L. Bauduin, esq., His Netherlands Majesty’s acting consul; F. Bruni, esq., Italian consul; E. Zappe, esq., His Imperial German Majesty’s acting consul-general; C. O. Shepard, esq., United States consul; Russell Robertson, esq., Her Britannic Majesty’s consul.

Mr. Zappe reads his written objection to the judgment delivered in the case of the Maria Luz by the local Japanese government.

These objections are supported by Mr. Bavier, Mr. Lourin, and Mr. Bruni.

Mr. Robertson agrees with the finding and recommendation of the Japanese authorities.

Mr. Shepard, considering that the letter of the convention of October, 1872, having been complied with by the governor, and farther considering that the matter is one in which only the Japanese, Portuguese, and Peruvian governments are concerned, declines to express any opinion or give advice.

Mr. Bauduin is of opinion that the governor of Kanagawa, after the convention of October, 1867, ought to have called for the advice of the consular body about the steps to be taken in the case of the Maria Luz. The governor did not do so, and made himself a court of inquiry, and afterward submits his decision to the consideration of the consuls. That, therefore, Mr. Bauduin does not agree with the steps taken by the governor in the matter from the very beginning, and wishes now to leave entirely to him the responsibility of such decision as he thinks proper.

Oye Takee, esq., Kanagawa Ken Gon no Kami. I cannot approve of the finding and recommendations laid before me by the Kanagawa kencho, because—

• The governor recommends to punish an offense about which no trial has taken place. The inquiry I have partly intended, I have been several times assured by the governor was to be only a preliminary inquiry, and a judgment can only be given after a formal trial has taken place.
• Even if I admit that the proceedings just now referred to have been a regular and lawful inquiry, even then I cannot give my consent to the finding and recommendation in question, because all the evidence which has been elicited is one-sided, the court having heard the evidence of the complaining parties only, and since the contract which each coolie has entered into is an agreement between two different parties in the presence of witnesses, each contract bearing the stamp of the government office in Macao and the signatures of two Portuguese government officers, these parties must be heard before a decision can be given about the validity of the contract.
• Too little weight has been bestowed on the evidence of the captain, who flatly contradicts the statement of each coolie, notwithstanding the fact that each contract is in his favor—that is to say, corroborates his statements. The construction of the court has not been in accordance with the convention of October, 1867, which provides that the government shall exercise jurisdiction over non-treaty subjects with the municipal director, and with the advice of the foreign consuls if obtainable. In this case the governor has not once, up to the present, deemed it necessary to ask my advice or to ask the advice of my colleagues, although he has taken steps in the matter of the Peruvian ship Maria Luz which carry with them grave responsibilities. On the contrary, the court has in reality only been constituted by the governor and a Mr. Hill, known to me as a practitioner in Yokohama, not to mention foreign functionaries not connected with the board of consuls, who obtained permission to put questions to the coolies, although, if the stipulations of the above convention had been observed, Mr. Hill would scarcely have had a right to occupy the conspicuous place on the bench which he did occupy, as if he had been called there by the joint consent of the consuls and the governor. But, even if I waive my former objections, I come to the question which I consider the most important to be decided on, namely, the question of competence to exercise jurisdiction in this matter; and, after due deliberation, I must deny the competency of Japanese authorities. The right of jurisdiction, civil or criminal, over all persons and property within the territorial limits, which is incident to a state relating to its own subjects and their property, extends also, as a general rule, to foreigners commorant in the land. This means, in other words, that territorial jurisdiction may be exercised over foreigners commorant within the territories of a state for offenses or crimes committed within the limits of a state. The right of the Japanese authorities to exercise jurisdiction over the Maria Luz and the captain is doubly dubious, because—
  • The captain, and the property in his charge, the ship, are not commorant within the limits of the Japanese territory, but have only been forced into these limits by powers over which they had no control—by winds and weather—and would have left these limits if force had not prevented their leaving.
  • The Japanese authorities are not competent to punish offenses or crimes committed on the high seas under the Peruvian flag, which is equal to being on Peruvian territory.
  • The Japanese authorities are not competent to give a decision on the validity or non-validity of a contract made between foreigners in places outside of Japan.

My advice, therefore, is, to return the coolies to the ship, and put the captain on formal trial for offenses committed in this harbor, if such is deemed necessary.