TRANSIT THROUGH UNITED STATES TERRITORY OF CRIMINALS AND FUGITIVES FROM JUSTICE IN COURSE OF EXTRADITION FROM ONE FOREIGN COUNTRY TO ANOTHER. File No. 4904. Memorandum from the Japanese Embassy. IMPERIAL JAPANESE EMBASSY, When a foreign functionary or a foreign vessel comes into a harbor or roadstead of a country with a criminal or a fugitive from justice on board, for the purpose of extraditing him to a third power, the territorial sovereign, it is assumed, will, on general principles, have the right to demand that the person under arrest be set at liberty. The department of justice of the Imperial Government has requested this embassy to ascertain what is the practice of the United States in reference to the transit through its territories of criminals and fugitives from justice on their way of extradition from one country to another. File No. 4904. Memorandum to the Japanese Embassy. DEPARTMENT OF STATE, The Japanese embassy nas requested, in its memorandum of January 21, 1907, a statement of the practice of the United States in reference to the transit through its territories of criminals and fugitives from justice in course of extradition from one foreign country to another. The memorandum states that in such cases the territorial sovereign, it is assumed, will, on general principles, have the right to demand that the person under arrest be set at liberty." In consequence of the theory of English and American jurisprudence regarding the territoriality of crime, no person can lawfully be arrested or held in custody in this country for a crime committed outside of its jurisdiction, except as provided by statute or by treaty. The laws of the United States contain no provision authorizing the detention or custody of a fugitive in transit between two foreign countries from which and to which he is being extradited, and the only authority for such detention would, therefore, be a provision of treaty. The only treaty to which the United States is a party which provides for the question of transit is the treaty with Mexico. In other cases, even though the government to which the fugitive is being returned may have a treaty in force with the United States covering the crime for which the fugitive is being surrendered, this Government is bound to surrender such person only upon compliance with the treaty requirements, which are not fulfilled in the ordinary case of transit across its territory. Therefore, the only way a prisoner under such circumstances can, in the full strictness of the law, be conveyed across United States territory is for the demanding government to institute formal extradition proceedings in this country in accordance with treaty requirements. The existence of this rule in other countries has sometimes necessitated the making of special arrangements for the return of a fugitive where the vessel conveying him must stop at an intermediate port. In one case the department applied, through the diplomatic channel to the Government of the authorities of such port, for the provisional detention of the fugitive, in case he should attempt to secure his release upon habeas corpus or analogous proceeding. Once in a case of transit across the Isthmus of Panama in 1888, the fugitive was permitted to escape altogether. (For. Rels., 1878, p. 151.) Many of the States of Europe and South America have enacted laws so as to permit transit through their territory upon more or less liberal conditions. Some provisions stipulate that the request shall be made through the diplomatic channel, and some require the presentation of the documents forming the basis of the demand for the extradition. In England the practice is the same as in the United States. In 1878 the American minister at London was told by the British foreign office, regarding the contemplated transit through British jurisdiction of an American fugitive surrendered by Portugal to the United States, that if he were landed in England he would be "entitled to apply for a habeas corpus, and if the judge decided he was not in lawful custody, he would be set at liberty." The question of the amendment of our extradition statutes so as adequately to cover the situation under discussion has twice been made the subject of recommendations to Congress by the President. In his second annual message of December 6, 1886, President Cleveland said: Experience suggests that our statutes regulating extradition might be advantageously amended by a provision for the transit across our territory, now a convenient thoroughfare of travel from one foreign country to another, of fugitives surrendered by a foreign Government to a third State. Such provisions are not unusual in the legislation of other countries, and tend to prevent the miscarriage of justice. And President McKinley, in his second annual message of December 5, 1898, renewed the recommendation of his predecessor (Rich. Messages, vol. 10, p. 187), but no legislative action resulted in either case. The foregoing observations, it will be noted, have been addressed to the strict question of law, as to whether or not the Government has a right to demand that a fugitive, under the circumstances stated, be set at liberty. A distinction is, however, made in practice between the existence of this right and its exercise by the United States. This department, as a mater of practice, does not in these cases interfere to secure liberty for a prisoner by reason of a technical violation of its jurisdiction, but leaves the prisoner to avail himself of the remedy afforded by the laws, without any interference or suggestion upon its part. As an instance of the department's attitude it may be stated that twice in recent years, when application has been made by the British ambassador, on behalf of Canadian authorities, for leave to take prisoners through United States jurisdiction from one part of Canada to another, the department has stated that it was not disposed to object to such transit, but that it reserved entire freedom of action in the event of an appeal being made to it on behalf of the prisoners, and that, moreover, its failure to object was not to be regarded as a precedent. The department's conclusion upon the question propounded is, therefore, that although the United States reserves at any time a right to object to the transit of fugitives in course of transportation between third States, this is a right which is in practice left to be invoked by the party in appropriate judicial proceedings, and not by this Government in the first instance. File No. 6241. MARRIAGE OF FOREIGNERS IN JAPAN. No. 204. Ambassador Wright to the Secretary of State. AMERICAN EMBASSY, SIR: I have the honor to report that shortly after the coming into force of the treaty of 1894 between the United States and Japan, namely, in May, 1900, a religious marriage between American citizens was solemnized at Tokyo by an American missionary bishop in the presence of the American deputy consul-general. The then newly promulgated codes of Japan being the subject of much difference of construction, especially as to the applicability of certain of their provisions to foreigners resident in Japan, the question of the necessity of the registration of such marriage arose. Article 775 of the Japanese civil code (Lonholm's translation) reads: A marriage takes effect upon its notification to the registrar. The notification must be made by the parties concerned and at least two witnesses of full age, either orally or by a signed document. As to form the customary Japanese marriage ceremony is not religious, and consists simply of a declaration of the contract in the presence of witnesses. The opinion of one of the most eminent Japanese barristers (Mr. R. Masujima) was taken and he advised that this article did not apply to foreigners in Japan. For further security the parties concerned caused formal inquiry to be addressed to the registrar of Kiobashi Ky, Tokyo, within whose jurisdiction the marriage was contracted. On May 8, 1900, that officer replied that no report was required to be made to the registrars of Japan when each party to the marriage was a foreigner and the marriage ceremony was celebrated in accordance with the law of their countries. Up to the latter part of 1906 our consular officers in Japan continued to issue certificates of marriage contracted in their presence in the form prevailing here previous to the operation of the treaty of 1894 (July 17, 1899). A like course, and without registration at the local Japanese office, I am informed, has been followed by British and other foreign consular officers in Japan. Such marriages of Americans during that period, I am informed, were in all cases solemnized by religious ministers or priests. In October, 1906, however, two American citizens of the Jewish faith at Yokohama desired to intermarry and insisted that the ceremony should be in accordance with the forms of their religion or, failing that, in a form of a purely civil character. There was then no Jewish rabbi available in Japan and the problem was brought to my attention by Vice-Consul-General Babbitt in a letter dated October 17, 1906, a copy of which is herewith inclosed. Upon inquiry I learned that the opinion among officials of the Japanese foreign office and of the Department of Justice was that article 775 of the civil code, quoted above, applied to all persons domiciled in Japan, except where otherwise provided by treaty and, in this connection, attention was called to section 13, of the Japanese law concerning the application of laws in general, a translation of which by Lonholm reads as follows: The requisites of a marriage are governed as to each party by the law of his or her nationality. As to the forms, however, the law of the country where it is celebrated governs. It thus becomes apparent that a serious difference of opinion had existed between executive officers of the Japanese Government as to the scope of the term "forms" as applied to foreigners domiciled here and, pending a solution of the question by some authoritative judicial decision, and to provide against possible complications in future cases, I replied to Vice-Consul-General Babbitt, under date of November 2, 1906: First. That American consular officers in Japan have no authority to perform a civil marriage ceremony. Second. That a civil marriage, consented to and announced by parties competent to contract it, in the presence of two or more witnesses, and duly registered before the proper local Japanese registrar, would be in accordance with the laws of Japan and would be held as lawful and binding in the United States and elsewhere. Third. The contracting parties may, at the time of such civil marriage, add to the form of the contract such ceremonies and forms as may be dictated by their religious belief. The consular officer can then certify as to the forms followed and that the marriage has been contracted in accordance with the laws of Japan. I inclose a form of certificate to be used in such case. The Japanese authorities being now willing to register marriages between foreigners in Japan, I suggest that it will be your duty in the future to see that all marriages of Americans in your presence, where your official certificate is desired, are duly registered by the proper local Japanese authority. It is desired that you will furnish copies of this letter to the several consular officers subordinate to your consulate-general for their guidance. A full copy of this letter is herewith inclosed. Since this letter to Mr. Babbitt all marriages between Americans in Japan, I believe, have been registered both at the consulate and at the local registry office. The consul-general at Yokohama, after frequent consultations with the authorities there, has finally succeeded in preparing forms in Japanese and English that meet with official approval, and under date of yesterday has transmitted to me copies thereof and a copy of the form of his official certificate now in use. Copies of this letter and forms of my reply are herewith inclosed. I have, therefore, this day addressed letters to the American consuls at Kobe, Nagasaki, and Tamsui, and to the consular agent at Hakodate, in the following words: With a view to securing uniformity of practice and for the purpose of removing any possible doubt as to the regularity of the mode of celebration and registration of marriages of American citizens in Japan, and in view of the fact that the Japanese authorities will now register such contracts, I inclose herewith for your information and guidance forms of consular certificate and of necessary documents in the Japanese language, which, after consultation with this embassy, are now in use at the consulate-general at Yokohama. Your particular attention is called to that part of the consular certificate which, to achieve the object sought now states that the contracting parties were "united in marriage before me, and in my presence, and in that of who performed the ceremony, and that such marriage has been duly registered, and is in accordance with the laws of Japan; and you will notify any American citizens who may apply to you in contemplation of marriage of the importance of complying with the formalities necessary to effect registration in Japan before the issuance of your certificate. A copy of this communication is herewith inclosed. LUKE E. Wright. [Inclosure 1.] No. 1258.] Vice-Consul-General Babbitt to Ambassador Wright. SIR: Mr. M., an American citizen of Jewish faith, born in Mississippi and with a legal residence in that State, but now a resident of Yokohama, desires to be married here. There being no rabbi at this port, certain of the Jewish community have appointed Mr. Maurice Russell rabbi pro tem., "to perform such functions as may be required of him." A certificate of appointment, accepted by Mr. Russell, is inclosed herewith, and I have the honor to request that I be advised if a marriage ceremony performed by him will be considered legal and will permit the issuing of a marriage certificate by me. This procedure was followed in the marriage of Mr. R. before Consul-General Bellows, April 8, 1904, by "Rabbi pro tem." L. Abenheim, elected for that purpose by the Jewish Benevolent Society, as in the present case. A copy of certificate issued herewith. I am told that this question came before Consul-General Miller, who declined to sanction the marriage, not being assured that the Jewish Benevolent Association had the authority to appoint a rabbi empowered to perform the marriage ceremony, and I do not care, without higher authority, to act in opposition to Mr. Miller's judgment. I am, etc., E. G. BABBITT. [Subinclosure.] YOKOHAMA, October 15, 1906. We, the undersigned, representing the Jewish Benevolent Association and acting on behalf of the Jewish community in Yokohama, do appoint Mr. M. Russell to act as rabbi pro tem. to perform such functions as may be required of him. No. 60.] Ambassador Wright to Vice-Consul-General Babbitt. AMERICAN EMBASSY, SIR: I have to acknowledge the receipt of your letter, No. 1258, of October 17, 1906, in which you ask instructions as to your authority to certify to the capacity of Mr. Maurice Russell to solemnize a marriage between American citizens at Yokohama, he having been appointed acting rabbi by the leading |