No. 321.
Mr. Bingham to Mr. Evarts
.
United
States Legation,
Tokei.
Japan
,
October 7, 1878. (Received
November 7.)
No. 873.]
Sir: On the 31st of July last, his excellency Mr.
Terashima, the Japanese minister for foreign affairs, addressed a
communication to me (a copy of which is herewith), wherein he informed me of
a violation of His Imperial Majesty’s railway regulations, on the 24th of
March last, by Mr. Frank Grasper, a citizen of the United States; that said
offense or trespass was committed within the Hiogo (Kobe) consulate, and
that the [Page 515] offender forcibly and
unlawfully entered the railway close of this government on that day, and
without having obtained a ticket, leaped through a window into the railway
car when the train was moving, and remained therein until the train reached
Kioto, a distance of 60 miles, without having paid fare as required by the
law of the empire. His excellency also stated in his communication that
complaint was duly made to Mr. Benson, in charge of the Kobe consulate, by
the agent of the government, Mr. Page, and that Mr. Benson in reply
forwarded a letter of apology from Gasper, and added thereto that “As the
act complained of was not of an aggravated character,” * * * he could see no
good reason why Mr. Gasper’s apology should not be accepted. Mr. Page
replied, giving good reasons why the apology could not be accepted, and
therefore requested again that the acting United States consul should
entertain the complaint and proceed against Gasper. The minister says the
acting consul refused to proceed, and added that he could not “understand
how the United States consul can refuse to issue summons against the
offender,” &c., and therefore requested me to give “instructions to the
consul to the end that the case be properly heard,” &c. This
communication by the minister reached me on the 10th of August, during my
sojourn in the mountains, and I immediately addressed a note of that date to
his excellency Mr. Terashima and also to Mr. Benson (copies of which are
inclosed), in which I acquainted him of the complaint of this government and
declared the act of Gasper an inexcusable violation of the railway
regulations, and also instructed him to have the agent of the government,
Mr. Page, verify the complaint, and to issue process against Gasper and
judicially try the same. This Mr. Benson neglected to do, but on the 19th of
August acknowledged the receipt of my instruction of the 10th of August, and
requested that I “would be good enough to inform him where, in American law,
he would find authority for the punishment of a citizen of the United States
for such an act as that charged against Gasper,” and repeated his request on
the 29th of August. These requests not having reached me until the 1st of
September, on the 4th ultimo I replied to both of the last-named notes of
Mr. Benson, referring him to consular regulation 424, and to sections 4086,
4087, 4088 of United States Revised Statutes, for authority to proceed
against Gasper, and suggested to him that the complaint be made in the form
of civil action for trespass, and that he should have Mr. Page verify the
complaint, as required by the court regulations, informing him that the law
implies damage for every unlawful trespass committed with force against
property, &c.
On the 6th of September Mr. Benson informed me that Gasper had left Japan by
reason of ill health, and on the 21st September he informed me that he had
acquainted Mr. Page, the agent, that according to my instructions the civil
action could be proceeded with though Mr. Gasper had departed the empire.
(See Consular Court Regulations, p. 3, sec. 13.) On the 20th September Mr.
Benson again addressed a note to me, in which, to my surprise, he stated
that as a civil action in trespass was the only form of action which could
be brought in the case, according to my instruction, he would place the
matter in my hands, inclosing copies of a correspondence with Mr. Page. Upon
the receipt of this dispatch from Mr. Benson, on the 3d instant I addressed
to him a dispatch (a copy of which is herewith), requesting him to
respectfully inform Mr. Page that our court regulations and laws must govern
in all proceedings criminal and civil in the United States consular courts,
and also reminding him that in my No. 571, dated May 29, 1878, I had
transmitted to him a copy of the railway regulations and had therein
instructed him that [Page 516] they were
obligatory upon American citizens in Japan, the same having been promulgated
before the commission by Gasper of the alleged trespass or misdemeanor, and
in my said dispatch of the 3d instant I also stated that I was not aware
that I had given him any instruction to the effect that the civil action in
trespass was the only form of action upon which he could judicially proceed
against Gasper, but that I had suggested a civil action in the premises
because I supposed it would be satisfactory to this government, inasmuch as
any damages adjudged therein against Gasper would be payable to the Japanese
Government and would also enable the consul to proceed even if Gasper had
departed the empire. The chief importance which attaches to this case is
that I think it essential that all our consuls in Japan, the consul-general
included, should be required in all cases wherein this government complains
of violations of law by American citizens to its injury to proceed without
delay and to proceed at once under my direction, in accordance with personal
instructions, article 18, and consular regulation 43.
I trust that the instructions given by me to Mr. Benson may accord with your
judgment and meet your approval, and especially my instruction to him that a
forcible and unlawful entry into the close of this government, as charged
against and confessed by Gasper, is not only a trespass, for which a civil
action will lie, but also a misdemeanor, for which he may be held to answer
criminally if found within the jurisdiction of the United States consulate
in which the offense was committed, inasmuch as the act charged was
committed by force and was also committed in violation of the public law of
this empire.
I have, &c.,
[Inclosure 1 in No.
873.—Translation.]
Mr. Terashima to
Mr. Bingham.
Foreign
Office, Tokio
,
The 31st of the 7th month, the
11th year
Meiji
.
Sir: I have the honor to inform your excellency
that on the 24th of the third month last, as the train was moving from
the railway station at Sannomeya, within the jurisdiction of the Hiogo
Ken, Mr. Frank Gasper, a citizen of the United States and resident of
the port of Kobe, was observed to rush up to the wicket-gate for the
entrance of passengers, which was then already shut, and unfasten it by
forcibly removing the wooden bar, cross the metals, jump upon the steps
of a second-class carriage on the off side, and enter it through one of
the windows; and moreover, that he had not obtained a ticket, and only
paid the fare when he arrived at Kioto.
This act of Mr. Gasper being an infraction of the regulations relating to
the railways of this empire, Mr. Walter F. Page, agent of the railway
bureau, brought the matter before the United States consul at Kobe, who
in reply forwarded to Mr. Page Mr. Gasper’s letter of apology; and also
wrote a letter setting forth that such an occurrence on his part should
not happen again, and that as the act complained of was not of an
aggravated character and as no person or property suffered therefrom he
could see no good reason why Mr. Gasper’s apology should not be
accepted.
The statements of his apology referred to were to the effect that he was
not aware that he was violating any railway regulations by entering
through one of the windows of a second-class carriage while the train
was in motion, but that he was anxious to catch the train as the delay
of an hour and a half would have been a serious inconvenience.
He further stated that he regretted that by an act of thoughtlessness he
had given the railway authorities cause of complaint, and that he would
not be found committing such offense again, and that with this apology
he requested withdrawal of the formal complaint made to the United
States consul.
Mr. Page again wrote to the United States consul to the following effect:
That while expressing his sincere thanks for the trouble which the
United States consul had so kindly taken to induce Mr. Gasper to offer
an apology for his conduct, he very much regretted to say his
instructions would not admit of his accepting the same. There [Page 517] was a time when such an
apology might have been received, but Mr. Gasper having emphatically
refused to offer it then, or to admit that he had been guilty of any
irregularity whatever, Mr. Page had no authority at the present time to
stay proceedings against him, and therefore respectfully begged the
consul to be so good as to hear the charge.
To this letter, however, the United States consul only replied by stating
that he could see no reason to change the views expressed in his
previous communication addressed to Mr. Page, and no further step has
been taken by the consul to issue summons against the offender and hear
the charge, and therefore the matter has finally been referred to me by
the proper authorities.
I beg now to say that I cannot understand how the United States consul
can refuse to issue summons against this offender and hear the charges
preferred against him, while there is undoubted proof of his having
violated the railway regulations, and I therefore request that necessary
instructions be given to the United States consul to the end that the
case be properly heard and adjudicated without delay.
I avail myself of this occasion to renew to your excellency the assurance
of my highest consideration.
TERASHIMA MUNENORI,
His Imperial
Japanese Majesty’s Minister for Foreign
Affairs.
His Excellency John A. Bingham,
Envoy Extraordinary and Minister Plenipotentiary
of the United States of America.
[Inclosure 2 in No. 873.]
Mr. Bingham to Mr.
Terashima.
United
States Legation,
Tokei
,
August 10,
1878.
Sir: I am in receipt of your excellency’s note
of date the 13th ultimo, in relation to the complaint against Mr. Frank
Gasper, a citizen of the United States, and have the honor to acquaint
your excellency that I have requested Mr. Benson, the acting United
States consul, to take the oath of Mr. Page to his complaint, and to
issue process against Mr. Gasper, and try the complaint according to
law.
I trust that proper and prompt action will be had.
I have the honor to be, sir, your obedient servant,
His Excellency Terashima Munenori, &c., &c., &c.
[Inclosure 3 in No. 873.]
Mr. Bingham to Mr.
Benson.
United
States Legation,
Tokei
,
August 10,
1878.
Sir: I am informed by the foreign office of His
Majesty the Emperor of Japan that in March last one Frank Gasper, an
American citizen, was guilty of a rude and inexcusable violation of His
Majesty’s railway regulations at Sanomeya, within the jurisdiction of
the Hiogo United States consulate; that due complaint has been made
before you in the premises by Mr. Page, the Japanese agent of the
railway bureau, and that you have declined to bring Gasper into court to
answer for the trespass, transmitting his apology to the effect that he
was not aware that he was violating law by entering a car through a
window when the train was in motion, and that he would not commit such
offense again.
As our treaty obligations and our statute law require that for all
offenses committed by citizens of the United States in Japan against
Japanese, such offenders shall be tried in the United States consular
court, and upon conviction shall be punished in accordance with American
law, and as His Majesty’s Government insists that process shall be
issued against Mr. Gasper, and that he shall be held to answer for the
unlawful trespass so committed, I trust that you will have Mr. Page
verify his complaint, as required by the consular court regulations,
issue process against Mr. Gasper, and judicially try and determine the
same.
It is the declared policy of our government to observe all its treaty
obligations with Japan, and require a like observance of its treaty
obligations by the Japanese Government in all cases of complaint by our
citizens.
[Page 518]
You will please advise me of the action you may take in the matter upon
the receipt of this.
I am, sir, your obedient servant,
- JNO. A. BINGHAM.
-
E. S. Benson, Esq.,
United States Vice-Consul, Hiogo and
Osaka.
[Inclosure 4 in No. 873.]
Mr. Bingham to Mr.
Benson
.
United
States Legation,
Tokei,
Japan
,
October 3,
1878.
Sir: Your No. 211, of date the 28th ultimo, in
relation to the complaint of Mr. Page against Mr. Gasper, is received
together with inclosures.
Mr. Page should be respectfully informed by you that our laws and
regulations must govern all proceedings, criminal and civil, in the
United States consular courts in Japan, and that no action, criminal or
civil, can be brought therein until a complaint in writing is therein
made and duly affirmed or sworn to by the complaining party.
In my No. 571 I inclosed to you a copy of the railway regulations and
instructed you that they were obligatory upon American citizens in
Japan. If, as I suppose they do, these regulations prohibit unauthorized
porsons from opening the railway inclosure and from entering the cars
through the windows without a ticket or special authority to do so, the
person so offending is guilty of a trespass and a misdemeanor, for
which, if an American citizen, he is liable both in a civil and criminal
action in our consular courts in Japan under the laws of the United
States and our treaties with this government.
The act charged against Gasper was a misdemeanor, as it was an act
committed in violation of a public law of this empire, which, as I had
already instructed you, was obligatory upon American citizens in
Japan.
I note your remark in your No. 211, that a civil action is by my
instructions to you the only form of action which you “can judicially
act upon,” and have to say that I am not aware that I gave you any such
instruction, but I did say to you in my Nos. 610, 612, and 625, to
proceed against Gasper in a civil action for his unlawful trespass, and
that the judgment therein should be according to the aggravation of his
offense against the law. I supposed this action would be satisfactory to
the Japanese Government, as it would assure to it the money that might
be exacted of Gasper, and also enable you, though Gasper had departed
from Japan, as you informed me, to proceed on such complaint for
trespass by publication of summons as provided in court regulation 13,
page 3 of Consular Court Regulations. As you state in your letter to Mr.
Page, No. 210, of date September 27, that “Gasper has committed no
crime, offense, or misdemeanor, he cannot be tried, convicted, or
punished,” you are requested to furnish me a copy of article 5 of the
railway regulations, and also to state whether such railway regulations
do not in that or some other provision thereof forbid and prohibit such
acts as were charged against and confessed by Gasper, as you have
reported to me.
As I have before advised you, our government intends to respect all its
treaty obligations with Japan, and to punish as therein required all
offenses committed against Japanese or against Japanese law by Americans
in this empire.
I am, sir, your obedient servant,
- JNO. A. BINGHAM.
-
E. S. Benson, Esq.,
United States Consul, Kobe.
