No. 200.
Mr. Bingham to Mr. Frelinghuysen.

No. 1523.]

Sir: I am in receipt of two dispatches from Mr. Consul Stahel, numbered 1613 and 1628 and dated respectively the 17th and 27th ultimo, inclosing a copy of correspondence between himself and W. A. Wooley, esq., Her Britannic Majesty’s acting consul at Osaka and Hiogo, from which it appears that on the 3d ultimo Mr. Stahel transmitted to Mr. Wooley a complaint of Messrs. Meyer & Co., American citizens, against Messrs. Browne & Co., British subjects, for the recovery of $134.20, and that, on the 5th ultimo, Mr. Wooley notified Mr. Stahel that, before action would be taken in the premises, the plaintiffs must file in the British consulate the written consent of Mr. Stahel as well as their own consent, that they would submit to the jurisdiction of the British court, as required by section 47b of the British Order in Council of 1881, and which undertaking of the plaintiff it was said by the British consul should contain these words:

We, the said plaintiffs, hereby undertake, if required by the court, to give security, as the court may direct, for the payment of fees, damages, costs, or expenses, and for the performance by us of the decision of the court, or of the court of appeal.

This is certainly a novel requirement, that citizens of the United States, being plaintiffs in a civil action, cannot institute such action against a British subject in a British consular court in Japan until they shall give security as above, and especially that they will perform the decision of the British court, which may be supposed, without a violent construction, to imply that the said court may not only adjudge damages against the plaintiffs and in favor of the defendant, in a claim of the latter in no wise connected with or growing out of the plaintiffs’ cause of action, but also that the court may, in case the plaintiffs fail to perform the court’s decision in the premises, be committed to a British prison by order of a British consular court.

Mr. Stahel, very properly in my opinion, declined to give his consent to this demand of the British consul, for the reason following, that he had no authority by law or regulation to give such consent.

It is further shown by the correspondence between said consuls, inclosed to me with Mr. Stahel’s No. 1628, that on the 23d ultimo Mr. Wooley transmitted to Mr. Stahel the complaint of John Creagh, a British subject, against Frank Upton, an American citizen, for the recovery, by civil action in our consular court, of $21, which Mr. Stahel declined to entertain until, as he advised Mr. Wooley, American citizens should in like manner be permitted to prosecute civil actions in a British court against British subjects without being required to give the undertaking and consular consent now demanded by said British court. To this Mr. Wooley made reply, on the 24th ultimo, that he would bring the refusal of Mr. Stahel to the notice of Her Britannic Majesty’s minister.

On the 24th ultimo, Mr. Stahel, in a note to Mr. Wooley, inquired of him whether he had authority to give his consent in writing to the submission of a British subject to the jurisdiction of our consular court, and to a similar undertaking by the British plaintiff in our court to that required of American citizens when plaintiffs in civil actions in the British consular courts.

On the same day Mr. Wooley replied that if his consent were asked [Page 375] in such case by Mr. Stahel he (Mr. Wooley) would be willing to grant it, subject to the approval of Her Britannic Majesty’s minister.

Having considered the whole matter as presented by Mr. Stahel and the correspondence between the two consuls, I have concluded that as British subjects are not, it would seem, by any treaty provision entitled to prosecute civil actions against Americans in our consular courts, our consuls are not therefore obliged to entertain such actions, save as a matter of comity, and should not entertain them, unless British consuls will extend like privileges to American citizens, and on the same terms, to sue British subjects in British consular courts. I have accordingly approved Mr. Stahel’s action by a dispatch to him of date the 1st instant (a copy of which is herewith) in which you will please note that I advise him to adhere to his ruling in the premises until otherwise instructed.

Her Britannic Majesty’s minister, Sir Harry S. Parkes, has not brought this matter to my notice, nor have I any intimation that he has any power to authorize such consent by a British consul in civil cases brought by British subjects against American citizens in our consular courts.

Hoping my views may meet with your approval, I have the honor, &c.,

[Inclosure in No. 1523.]

Mr. Bingham to Mr. Stalel.

Sir: In reply to your Nos. 1613 and 1628, dated respectively the 17th and 27th ultimo, I have to say that I approve your action in the premises, believing as I do that the right of citizens of the United States to sue in British consular courts in Japan should in all respects be the same as the hitherto acknowledged right of British subjects to sue citizens of the United States in our consular courts in Japan.

Under existing treaties it may be doubted whether a United States consul is obliged, save as a matter of comity, to try and determine a civil action brought in his court by a British subject against a citizen of the United States. Be this as it may, in my opinion your action in the two cases named is right, and should be adhered to until otherwise instructed.

I am, sir, &c.,