E. Peshine Smith's nationality

Proceedings of the U.S. Consular Court in Yokohama, 1873

By William Wetherall

First posted 10 July 2007
Last updated 15 July 2006

E. Peshine Smith: Journalist, lawyer, diplomat

Once upon a time in a land called Japan there was a character whose full name was Rasmus Peshine Smith (1814-1882) -- better known, even to himself, as E. Peshine Smith.

Smith did of a bit of everything before coming to Japan in 1871. At one time or another he was a journalist and newspaper editor, a professor of mathematics, and a public education official and court reporter in the state of New York -- in addition to being student of law and economics.

In A Manual of Political Economy, published in 1853, Smith set down principles of American (as opposed to British) style capitalism. The book's "man is Lord of Nature" viewpoint -- which argued that human progress is measured "by the extent to which the natural agents are made serviceable" -- was inspired by his mentor, the economist Henry Charles Carey (1793-1879), who had been an advisor to Lincoln.

Smith was also an associate of William Henry Seward (1801-1872), who was Secretary of State under both Lincoln and Jackson. Apparently both Carey and Seward arranged for Smith to become an advisor to the Ministry of Foreign Affairs in Japan on matters related to Japan's economic and industrial development.

Smith arrived in Japan in 1871 and stayed until 1876. He was instrumental in helping Japan draft its bank and coinage acts, and other legislation crucial to the building of the country's financial and industrial infrastructure -- from the more protectionist standpoint of the Carey school. Smith is also credited with helping to infuse Japan's system of universal education with faith in science and technology.

Wore kimono and swords

Apparently Smith went native in Japan -- to the point of going around Tokyo wearing kimono and swords. He also claimed, according to the court proceedings presented below, that he was no longer a US citizen but had become Japanese.

On 23 September 1871 (Meiji 4-8-9 lunar calendar), a Great Council of State proclamation required shizoku (legal title of members of former warrior caste) to cut the topknots (ŽU”― sanpatsu), which had been a trademark of their status, but permitted them to brandish their swords (’E“ dattō) -- whereas heimin (legal title of commoners), who had begun to wear swords, were prohibited from doing so.

Then on 28 March 1876 (Meiji 9-3-28 solar calendar), another Great Council of State proclamation (No. 38) forbid all wearing of swords (‘Ρ“ taitō) -- "other than use with court dress [taireifuku] or uniforms of military personnel and police" (‘εβX•žβƒjŒRlŒxŽ@Š―—™“™§•ž’˜—pƒmŠO›ζ“‹ΦŽ~).

The 1876 proclamation triggered strong reactions from some shizoku, particularly in Kyushu but also in Yamaguchi. Reactions to stripping former samurai their last outward emblem of caste distinction fed the uprisings that led to the Seinan War. Shizoku continued to be a legal status until 1886, and notations in family registers were discontinued from 1914.

Smith was in Japan precisely between the 1871 and 1876 proclamations. Would he, had he stayed, joined the protesting shizoku -- imagining, perhaps, that he was one of them? Had he done so, he would have been -- judging from his court testimony -- in perfect character.

Coined "telegram"

Smith coined the word "telegram". In a letter to the editor of the Albany Evening Journal, published on 6 April 1852, he suggested that "telegram" be used to replace "telegraphic dispatch" or "telegraphic communication". Some linguists argued that it should be "telegrapheme" -- but "telegram" prevailed.

1873 Consular Court proceedings

I am grateful to my good friend Kamiyama Masuo for the following text. He claims to have transcribed it in its entirety from a facsimile of the newspaper that carried the original report, but he is unable to provide further particulars.

The following text is reproduced as I received it, with only minor changes in presentation. I have not edited inconsistencies of style or other anomalies, which may have been that way in the original text, or may be transcription errors.

Apparently before 1899, the U.S. government was responsible for registration of American citizens living in Japan. The following is a transcript of the proceedings of the U.S. Consular Court in Yokohama, held before Mr. Consul Shepard on Saturday, Jan. 11, 1873. It appears in The Japan Weekly Mail of the same date.

Three men were charged with non-registration. A.G. Bates and S.W. Williams both said they did not know of the Act, agreed to pay the cost of the summons ($6.55) and registered on the spot.

The third individual, E. Peshine Smith, an employee of the Japanese Gaimusho (Foreign Ministry) then approached the bench, saying, "the summons announces the people of the United States as my accuser -- and upon what proof, what evidence, does anyone venture to assert that I am an American citizen? Why do the people of the United States imagine that I am an American citizen. I call upon them for a reply."

His Honour: Where were you born?

Mr. Smith: I don't know.

Q. But what is your belief?

A. My belief is not evidence; but I believe that my parents resided in the State of New York. I have a mother, 75 years of age, and she used to tell me that some fifty years since a child, which she supposed was myself, was born. She did not know it, I maintain, and I cannot give evidence in her place.

Q. Have you ever voted in the U.S.?

A. Well; I must confess that I have voted; but then I might have done so wrongfully.

Q. If you have voted in the U.S. the Court must hold that you are a citizen of the U.S.

A. But I may have voted illegally, and it is a naturally inference that I have been already punished for my illegal actions.

Q. If you have voted it is a fair and proper supposition -- unless you can prove that you did so wrongfully -- that you are a U.S. citizen. How long have you been in Japan?

A. About 13 or 14 months.

Q. Did you know that you ought to have registered?

A. Had I been an American, I might have been expected to know something of the U.S. law, but being only a week, ignorant, heathen Japanese, I could not be expected to know the law of a foreign nation. I used to know many years ago a gentleman, a counsellor -- what the British call a Crown lawyer -- from whom I have imbibed all my early knowledge of the law, and under whom I have studied for many years. Indeed I learnt everything from him.

Q. Was not his name Mr. Smith?

A. It was.

Q. E. Peshine Smith?

A. E. Peshine Smith. But there are many Smiths, and there may be many E. Peshine Smiths. That gentleman was then thought to be respectable, tolerably so at least; but now I regret to say his character has changed. He is a man of dissipated habits, no social standing, and altogether a pretty poor creature. Still I know that since I have been out here President Grant has been heard to speak very respectfully of this person.

Q. You say you have been in the service of the Japanese Government for 13 or 14 months?

A. Yes.

Q. In what service were you before?

A. In that of the U.S. But still I do not know who it is that has been instigating you -- perhaps the clerk or the Deputy Marshal -- to assume that I am a citizen of the U.S. In a report drawn up by the Japanese Consul at San Francisco a number of names, among which was mine, were mentioned as those of "Japanese proceeding to Japan." There is the report (handing it into court.)

Q. But I see your residence here is at Washington. How can it be you are a Japanese? When did you, in your own opinion, become a Japanese?

A. I have been a U.S. citizen, but became a Japanese on Nov. 1st, 1871.

Q. By what ceremony of naturalization, did you become a Japanese.

A. There was no ceremony, but the Japanese have their own naturalization laws, and they know what was necessary.

Q. Have Consuls the right to naturalize?

A. I think not.

Q. By what authority then did you change your nationality?

A. I was engaged by Mr. A. Mori, Minister Resident at Washington. Why, I cannot tell. Perhaps, because I have travelled in the United States, or because I knew so much about Japan, or because my friend (previously mentioned) had taught me that by the laws of the United States a man who enters into the service of any foreign power ceases to be able to claim the protection of his original government. Mr. P. Smith, my teacher, had had great experience on this very question. Many persons went to South America, where there was constant war, and sometimes the Americans got shot before breakfast -- not one in 10 got there desserts any more than one person in 10 in Japan was murdered that out to have been murdered -- and the n the widows and families of these blackguards wanted to claim U.S. protection, but it was always ruled that it had been forfeited. Even in a case where out of four persons two were killed, one wounded and the fourth blackguard getting off, and when the U.S. Government made diplomatic representations to the Government of Columbia, where the men were murdered, the protection of the U.S. was decreed to have been forfeited. Here (continued Mr. Smith after an interruption caused by Mr. Williams wishing to ask a question) the men were in the naval service of Columbia, but the law applied to the civil as well as the naval and military services. A man loses all his privileges in going into a foreign service. Are you (addressing Mr. Shepard) a Christian? I suppose so, and it is not said "No man shall serve two masters." I cannot serve the United States and Japan as well. Perhaps you will remember having been in diplomatic charge of the U.S. interests in the country, and as Charge d'Affaires, you have met me at the Gaimusho where we have had considerable differences in discussion, you representing the U.S. and I Japan. Now here I have clearly acted against the interests of the U.S. and by a statute of the U.S. such conduct, without the authority of the U.S., is punishable by a fine not exceeding $5000 and imprisonment for not less than 6 months. I am ready if the case is decided against me to pay my paltry $10 (holding out a 10 yen piece) but would it not have been much better to have got the $5000 and --

Q. Yes, but Mr. Peshine Smith you were acting with and not without the authority of the U.S. were you not?

A. No one is bound to criminate himself.

Q. It is however within the knowledge of the Court that you have authority.

A. In the diplomatic not the judicial mind of the Court. And still a man in foreign service loses his original protection. I hold here a blue book of the British Government referring to the naturalization question and the law of Prussia --

Q. What has the law of Prussia to do with that of the United States?

A. You are not here to administer any particular law, but to adjudicate by the principles of morality. This blue book clearly shows -- and I maintain it as a fact -- that the law of Continental Europe is to the effect that a man entering foreign service changes allegiance and protection is correlative with allegiance. If the Japanese Government were to suppose, for any reason, that I had betrayed their interests -- either on account of being friendly with you or Mr. De Long or on account of a sneaking affection for the starry flag (here Mr. Smith broke down and the tears rolled down his cheeks in profusion) that waves over your Consulate -- the best and dearest flag in the world -- and should in consequence cut off my head I should deem it most impertinent on the part of the Consul or anyone else to attempt any demand for protection. I am content to "paddle my own canoe." If any Americans in the service of the Japanese Government want protection they are ninnies and idiots. For myself I am content to take my chance. I had an argument, said Mr. Smith in conclusion, to bring besides this but through I got it into my head I cannot get it out. I am a weak and ignorant Japanese, and a young man at best. I will leave the matter in your hands, feeling, that however disagreeable to leave Yedo and be summoned in this manner, I have done my duty to my Government.

His Honor said it was with the greatest astonishment he heard Mr. Smith say he did not want protection, but whatever Mr. Smith might urge he would say that Mr. De Long was his superior officer and he should not think of opposing his regulations.

Mr. Smith: May I be permitted to say a few words? It is on the question of these same regulations. Among them are the rules governing the procedure of the Court also one ordering registration and others applying to divorce or to capital offences. Now by the lay of the U.S. only the regulations referring to procedure are valid. I doubt the Minister's power to make the regulation referring to registration. It was not binding, though, of course, it was a matter of interest to the Japanese and to the counsel to ascertain the nationality of the residents.

Q. Is that your defence?

A. No my defence is that I am not an American subject!

Q: Well I may as well tell you that the Court decides you are an American subject.

A. Then I go on the registration regulation. I know of a paper sent from the State department in Washington to Mr. De Long disapproving of that and other regulations referring to legislation. I cannot get at the paper but you can.

Mr. Williams: Was not the author of that letter your teacher, Mr. Peshine Smith?

A. If he was on terms of confidential relation with the department and though might have told me the nature of the paper he would not tell me if he were the author. He may have been.

His Honour said that he was only anxious to deal equitably int he matter. Mr. Smith said that the State Department disapproved of the registration regulation. As this referred to all Americans he would, of course, defer judgement until he had ascertained the nature of the document in the possession of Mr. De Long.