No. 372.
Mr. Bingham to Mr. Frelinghuysen.

No. 1573.]

Sir: Referring to your instruction No. 679, of the 11th of August last, in relation to the 47th section of the British order in council of 1881, for China and Japan, I beg leave to acquant you that I am in receipt of a communication from Mr. Consul Stahel, of date the 19th ultimo, in which he inclosed for my information a dispatch on the same subject, addressed to him by Mr. Mr. Woolley, Her Britannic Majesty’s acting consul in Kobe, a copy of which dispatch of Mr. Woolley I have the honor to inclose herewith.

It is gratifying to note that Mr. Woolley recognizes and accepts what I said to Mr. Stahel in my instruction to him of the 1st of July last, a copy of which I had the honor to inclose with my dispatch to you, No. 1523, to wit: That British subjects could only claim the right to maintain civil actions in our consular courts in Japan upon the principle of mutual comity $ in other words, whatever privileges were accorded by our Government in the premises to British subjects should be accorded [Page 601]by Her Britannic Majesty’s Government to American citizens in the British consular courts of Japan.

Understanding your said instruction No. 679 to approve my views in this behalf, and believing it my duty to respect the same, I have accordingly instructed Mr. Stahel by a dispatch of date the 2d instant that he should consent to the submission by citizens of the United States to the jurisdiction of British courts, as required by said section 47 of Her Majesty’s order in council in all civil actions instituted by them against British subjects, upon condition expressly stated by our consul in his written consent to such submission, that a like submission should be made in all civil cases by British subjects who institute actions against American citizens in our consular courts in Japan. You will please observe that Mr. Woolley says to Consul Stahel—

Your consent, if given, will be considered as having been given upon this understanding, or, if you desire, it [your consent] may be accompanied by a statement that it is given upon this understanding.

I consider my advice to Consul Stahel on the 2d instant as herein reported to be in consonance with your instruction in your No. 679, that the comity we extend to British subjects in Japan “must of course be extended to Americans suing in British consular courts in Japan.

I have, &c.,

[Inclosure in No. 1573.]

Mr. Woolley to Mr. Stahel.

Sir: With reference to your dispatch of the 9th June, 1882, in which you pointed out to me your objections to giving your consent in the manner required by the 47th section of the China and Japan orders in council 1881, to the submission of American citizens to the jurisdiction of H. B. M.’s provincial court for Hiogo and Osaka, in cases in which they appear as plaintiffs against British subjects, I have now the honor, in compliance with instructions from Sir Harry Parkes, to furnish you with the opinion of Mr. Wilkinson, the crown advocate for China and Japan, on the above-mentioned section.

Mr. Wilkinson is of opinion—

  • “1. That the formal submission to jurisdiction and the consent of the plaintiff’s national authority to such submission gives to the court no more power or authority in the suit than it acquired under the old practice by the mere fact of the plaintiff’s filing his petition.
  • “2. That the national authority in giving his consent to the petition undertakes no responsibility whatever for the execution of the judgment, and that the court, if it desires to see its judgment duly enforced, must take such security as may be necessary to attain that object.
  • “3. That Her Majesty’s consuls, in any case where their consent is required to a British subject submitting as plaintiff to the jurisdiction of a foreign court in any suit in which he may in the ordinary course wish to institute in that court, ought to give such consent in cases instituted in their courts.”

You will thus observe that the crown advocate is of opinion that Her Majesty’s courts acquire by the foreign plaintiff’s submission and his consul’s consent thereto no further jurisdiction than they acquired under the old practice, tacitly or impliedly, by the mere fact of the petition being filed, and I hope, in view of this opinion, you will see your way to give your consent in any case that may hereafter arise.

Your consent, if given, will be considered as having been given upon this understanding, or, if you so desire, it may be accompanied by a statement that it is given upon this understanding.

I have, &c.,