No. 201.
Mr. Davis to Mr. Bingham.

No. 679.]

Sir: Your dispatch of the 5th ultimo, No. 1523, in relation to the requirement of the British order in council, of the 25th of October, 1881, to the effect that a foreign resident in Japan, of any other than British nationality, in order to the maintenance by him of a civil action in the British consular courts in that country against an English subject must—

First obtain and file in the court the consent in writing of the competent authority of his own nation to his submitting, and that he does submit, to the jurisdiction of the court, and, if required by the court, give security to the satisfaction of the court and to such reasonable amount as the court directs by deposit or otherwise to pay fees, damages, costs, and expenses, and abide by and perform the decision to be given either by the court or an appeal—

[Page 376]

has been received; and in connection with a dispatch of the 21st of June last, No. 632, from Consul-General Van Buren on the same subject, and, indeed, relating to the precise case which Mr. Stahel presents to you, has received attentive consideration.

The general question was brought to the attention of the Department by Consul-General Van Buren in April last, in his dispatch No. 619, and on the 9th of May, following, Mr. Bancroft Davis, Assistant Secretary of State, replied by instruction No. 277 to Mr. Yan Buren that he conceived the requirement of the British order in council to be “fair and just.” Although the instruction referred to was brief, it was, nevertheless, the result of careful consideration as Mr. Davis was at that moment engaged in examination of the general question of extraterritoriality, and had the whole subject before him.

Mr. Stahel, in his reply to the British consul, an extract from which General Yan Buren transmits in his No. 632 of June 21 last, says:

Further, it appears to me that such submission, with my consent, to the jurisdiction of your court, to have the effect which the order in council you refer to must have contemplated, would require me, in case of need, to execute the judgment of your court, thus placing not only citizens of the United States under the jurisdiction of, but, virtually, the United States consular court officers subject to the orders of, Her Majesty’s court.

I am unable to perceive that any such result would follow from the permission (for that is the proper word) of the United States consul to a citizen of his nation, or from anything in the terms of the order in council which is now before me. The citizen of the United States suing a British subject, in a British court, under the conditions referred to, submits himself to the process of the court in which the proceedings are had—nothing less and certainly nothing more.

You advance two objections to the British requirement:

First. That the British court may adjudge damages against the American plaintiff and in favor of the English defendant in a claim of the latter in nowise connected with or growing out of the plaintiff’s cause of action.

I think you will at once perceive that this objection is met by provision C in 47 of the order in council; but, secondly, you add, that the court may, in case the plaintiff fails to perform its decision in the premises, commit the American citizen to a British consular prison by order of a British consular court.

With “great deference for any opinion that you might express on any legal question, I must be permitted to say that that appears to me to be a forced construction of the order. Except for contempt and to enforce specific orders and decrees in chancery, imprisonment cannot properly be an element of procedure in civil actions in English any more than in American courts. Without, however, enlarging on this point, I must believe that in this respect your apprehensions are scarcely warranted.

You are quite right, I think, in saying that British subjects resident in Japan cannot, except by comity, sue in an American consular court; the same, of course, must be admitted as to an American’s status toward a British consular court.

Now, on this, as well as other grounds, and in the light of the broad view which sound policy dictates should be taken of this extraterritorial judicial system, established as it has been for the common benefit and protection of foreign citizens of Christain nations, resident in the countries in which it is recognized, it appears to me most desirable that, in its administration, harmony and comity should be cultivated between [Page 377]the different foreign nationalities, and that niceties and technical views should be as far as possible ignored, thereby facilitating that justice to foreign residents in those countries which the system was intended to secure.

You will consider the views imparted to General Yan Buren by Mr. Bancroft Davis in the instruction already referred to, a copy of which I inclose, as the ruling of the Department.

I also transmit for your convenience a copy of a letter on the general subject, addressed to the chairman of the Senate Committee on Foreign Relations, on the 29th of Aj)ril last, by the Secretary of State.

I am, &c,

JOHN DAYIS.