Mr. Bingham to Mr. Evarts.
Tokei. Japan, October 7, 1878. (Received November 7.)
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.,