Mr. De Long to Mr. Fish
Sir: At the risk of being disagreeable in so persistently urging upon your attention the imperfections of our laws to meet and provide for the wants of American citizens in Japan, I shall venture in this dispatch to call your attention to imperfections in our existing laws, and to the manifest necessity for other and further legislation. I perform this labor at this time that my suggestions, if any of them should be fortunate enough to meet with your approval, may be laid by you before Congress at its next session, with such recommendations as the President or yourself may see proper to make.
Calling your attention in the first place to the provisions of the sixth [Page 591] article of our treaty with Japan, signed at Yeddo, July 29, 1858, (see bound volume of treaty with Japan, page 33,) which reads as follows: “Americans committing offenses against Japanese shall be tried in American consular courts, and when found guilty shall be punished according to American law,” I presume that I am justified in saying that Americans resident here cannot be tried or punished for violating any Japanese law or regulation unless a similar law or regulation exists in our country. Following this, I beg leave to refer you to section four, act of June 22, 1860. (Bee new consular regulations, page 245.) This provides a similar limitation over our judicial tribunals, directing them to exercise their jurisdiction, civil and criminal, “in conformity with the laws of the United States;” but it also further provides as follows: “But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law, including equity and admiralty, shall be extended in like manner over such citizens and others in the said countries; and if defects still remain to be supplied, and neither common law, including equity and admiralty, nor the statutes of the United States, furnish appropriate and suitable remedies, the ministers in the said countries respectively shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies.”
In your dispatch to me, No. 48, of the 20th of December, 1870, you give a construction to this act limiting my powers in issuing decrees and regulations; to directing a mode of proceedure for the enforcement of existing laws, and not to the creation of law.
This construction drives the judicial officer here in punishing a citizen to the terms of some act of Congress or some provision of the common law of equity or admiralty.
In fact it drives the officer in punishing crimes to the common law, because we have no statutes of the United States defining crimes and providing punishment except in a very few and generally inapplicable cases. Equity and admiralty, of course, are civil exclusively.
Driven, then, to the common law in exercising our judicial powers for the prevention of crimes, allow me to ask what common law are we to be governed by?
Statute law of the several States of the United States can hardly be called common law, but if by a stretch of imagination they are included, then it follows that no uniform rule exists, because in one State the law is different from that of another, and a judge would be left to mete out hanging and uncertain punishments for the same offense, and bring ridicule and contempt upon our tribunals here, besides inflicting serious injustice upon individuals.
If, then, it is the common law of England that is intended for us to execute when no United States statute covers the case, we find in many cases an absence of any express or well-known provisions for the government of many cases. For instance, the rule of the road in driving or riding in England is to turn to the left, and that rule has been adopted by the Japanese; with us, on the contrary, it is to turn to the right.
Now, supposing an American, in riding or driving, adhering to his own laws on this subject, willfully collides with a vehicle driven by some other foreigner here, or by a Japanese, and damage is caused, or a personal injury is inflicted, how is the man to be punished?
Again. In this community gambling is openly carried on in defiance of the laws of this empire and of the expressed wishes of the Japanese authorities; houses of ill-fame are openly and sometimes boisterously conducted in the city; furious riding and driving is indulged in in the [Page 592] streets; and the use of fire-arms in cities is made in a way dangerous to life; yet in the common law we find no suitable provisions for enabling us to regulate or prohibit these things.
Unfortunately, owing to the proximity of Japan to California, many of the very worst characters of both sexes that infest these ports and are guilty of these offenses are American citizens, and upon our country, its officers and institutions, are inflicted the disgrace which these things entail.
We have cities here without any town councils or mayors, each quota of its inhabitants being left, for all general and special government, to the ministerial and consular authorities of their own countries for government.
My brother officers here and myself, while not desiring to exercise doubtful or extraordinary powers, are still desirous of being armed with sufficient authority to preserve as good order among our people as other authorities among theirs; yet we find it quite impossible.
For these reasons I again call this matter to your attention, in hopes to secure from you such recommendations to Congress as will cause that body to legislate for this community in a manner to free us from these difficulties.
In connection with these remarks, I beg leave to call your attention to the imperfections in the act of July 1, 1870. This statute is, in my opinion, almost wholly wrong, and I respectfully submit that it should be repealed.
I invite your attention to the following brief review of it:
Section 2 of that act, in its first provisions, takes from the consul general, or the consul residing at the capital, the judicial powers vested in him by the act of 1860, and confers the same on you. Those judicial powers are simply all of the powers vested in me as minister, both appellate and original.
To illustrate the operations of this statute, allow me to imagine a case.
Suppose I should leave Japan temporarily, or that I should die, and during the period of my absence, or before the vacancy caused by my death was filled, a person should wish to bring an action against one of our consular officers, or an action in which one of our consular officers should be a material witness; where would be bring such action? By the law of 1870 he would be compelled to commence his suit before you, the Secreraty of State of the United States. The plain unconstitutional nature of that provision I think should of itself warrant its repeal; but besides this, it is palpably violative of our treaty with Japan, which promises Japanese suitors that their complaints against Americans shall be tried in the courts of the United States in this empire. (See article 6, treaty of Yedo, of July 29, 1858.)
In addition to this, it is impracticable, and calculated to retard and defeat justice by driving litigants into a strange field, at an immense distance from where they reside and where their evidence is obtainable.
Actions of this nature are quite frequent. I have tried several such cases, and now have four or five pending before me.
Section 3 of the act of 1870 is open to still more serious objections, and it seems to me needs only to be carefully read to prove this assertion.
In the first place, it provides for an appeal from a judgment rendered by a minister in a criminal proceeding, when he sits as a court of original jurisdiction, when no law confers any original criminal jurisdiction upon the minister. This is harmless but useless. But the remaining portions of that section are extremely odd, and, I think, mischievous.
[Page 593]A party is given the right of an appeal from a judgment in a capital case, but is not allowed a stay of proceedings, unless the minister, the very officer who must by the law concur in the judgment to make it effectual, shall stultify himself by certifying that there is probable cause for such an appeal.
In other words, a minister who has approved a sentence as being regular and just, to grant a stay of proceedings pending an appeal, must issue his certificate certifying that the judgment is probably irregular or unjust.
But still the party may appeal, the advocate of the law of 1870 may say; so he may, is my reply, but, without the benefit of an order staying proceedings under the judgment, the appellant may be hung before his appeal is heard, and his heirs be left the benefit of a reversal of the judgment.
Sections 4 and 5 are objectionable, in my opinion, for the following reasons:
In the first place, consuls in Japan are not educated lawyers, and their courts are not conducted in accordance with the strict rules of practice governing courts of law at home. In fact, I believe all of their judgments would, upon appeal to the United States district court, be very liable to be reversed, if that court should hold strictly with them the same rules governing its decisions ordinarily. In other words, errors of form and in practice would compel these reversals, for however much that court might wish to allow for the exceptionable condition of these courts, still it could not admit two classes of decisions into its records, and what would be held to be error in a strict court of law at home would be held to be error here. Thus litigation here would be rendered vexatious and unending. Neither can you prevent this by a system of liberally-drawn rules, for at last you must provide that certain things must be done which, if left undone, would be error, and then what? Strange as it may seem, this law of 1870, in all of its provisions, says nothing about what disposition is to be made of a cause reversed upon appeal. Is it to be tried anew, and if so, where?
The author seems to have intended that upon the appeal the cause should be heard and decided upon the record above, as certified upon appeal; and that the judgment of the district court in all cases should be final, and no new trial be had.
Suppose, on the trial in the consular court, the appellant had offered to prove a certain fact, and the court had refused to admit the testimony offered; that an exception had been taken thereto, and formed one of the grounds of error presented to the district court on the hearing of the appeal; that the district court should regard this ruling of the consular court as erroneous, and hold that the appellant should have been allowed to have proven that fact if he could. Then suppose, further, that the fact that the appellant offered to prove was a material one—one that, if established, would entitle the appellant to a judgment—what in such a case could the district court do, except to reverse the judgment, and remand the cause to the court below for a new trial? It cannot be said that the district court in such a case should act as if the proof had been admitted and the fact proven, and made judgment accordingly, for it frequently happens in practice that a party offers to prove a fact that he would fail to be able to establish, even if allowed to proceed. This is sometimes done to make error in the record, and sometimes it is offered in good faith, and the party, when allowed to proceed, [Page 594] is disappointed in his own evidence or overcome by his adversaries. Then, too, if the district court in such a case was to assume that the appellant could and would have adduced the proof he offered and which was excluded, by what system of reasoning can that court conclude that the respondent might not have offered evidence against it sufficient to have disproven what the appellant sought to establish? It could not do this, nor would not; hence I insist that, notwithstanding the author’s intentions, new trials must necessarily follow reversals of judgments in many cases. Consider, then, the consequences of this system. Japanese litigants, notwithstanding the clause in our treaty that I have quoted, are in common with all other litigants, driven into courts five thousand miles distant, where they have no acquaintances or agents—about the rules of which they are in entire ignorance. Their business then falls in with the mass upon a calendar, to come up for disposition at some distant day, and if the judgment is reversed and a new trial ordered, if they are fortunate enough to try it anew in a proper court, another appeal may be be taken, and thus delays obtained so vexatious as absolutely to be destructive of the principles for which courts are established.
I think that when the operations of this law are known and understood by business men here of all nationalities, that it will be regarded by them as being calamitous, and result in a person’s sacrificing on large demands a very great portion of the sum justly due in order to obtain immediate payment and avoid the expense and delay that litigation under this statute will entail.
Sections 9 and 10 of the same act, although not very important, I regard as being unwise and unjust.
I know of no reason why the appropriations for jail and other expenses at Shanghai should be twice as much as at Kanagawa—a place of greater necessities in this line, as it is the naval station of several powers, besides bearing as important a mercantile character. But this is a matter that I am indifferent about; it is the residue of the sections that I object to. I do not think the system of appropriating a sum total for the several consulates is a good one. Neither consular officer knows, or has any means of knowing, how much of the prison fund has been drawn out by the others, nor has he any means of knowing until his drafts are dishonored because the fund is exhausted. I would recommend a change in this regard, so as to give to each a sum certain as a maximum. The appropriation need be no more in the aggregate, and yet each consul would know the limit of his yearly allowance, and avoid drawing for any excess.
With due deference, I submit that this act is almost wholly wrong and should be repealed. The tediousness of communicating one’s views by writing is such that I shall forbear pressing other views that I have, at least this time. I think, perhaps, that it would be well for me to visit Washington and confer personally with you about these and many other matters, including the course of action you wish me to follow in revising the treaties next year, in regard to the residue of the Semonosikey indemnity, the native Christian matter, &c. Should you deem it advisable for me to come to Washington and meet you, I shall only say that I shall be happy to do so, starting in October or November next.
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I have, &c.,