No. 433.
Mr. Bingham to Mr. Fish.
United
States Legation, Japan,
Tokei, June 3, 1874.
(Received July 6.)
No. 88.]
Sir: As will appear by the inclosure, herewith,
addressed to me by Mr. Dickins, as counsel, A. C. Dunn, a citizen of the
United States, has instituted suit for breach of contract against certain
Japanese subjects in a Japanese tribunal, which suit is still pending. It
further appears from this letter that the Japanese court having jurisdiction
of the case refuses to Mr. Dunn, the plaintiff, process to compel the
attendance of his witnesses. It would seem that this refusal is in flagrant
disregard of article 6 of the treaty of 1858, which provides that the
Japanese courts shall be open to American citizens for the recovery of their
just claims against the Japanese. When it is considered that the limits to
travel to foreigners are denned and restricted under the treaty, this
refusal of the court to issue and execute process, especially outside of the
concession to foreigners, might be called a denial of justice.
Inasmuch as this is a private contest, over which I have no official
jurisdiction, I have thought it best, before taking any action with the
government, to ask your instructions for the government of my course, not
only in this, but also in all other like cases that may arise.
I am, &c.,
[Inclosure in No. 88.]
Mr. Dickins to Mr.
Bingham.
Sir: I beg to apply for your assistance on
behalf of an American citizen, Mr. Dunn, under the following
circumstances: Mr. Dunn is plaintiff in an action now being
[Page 684]
heard in the Tskiji Saibausho,
brought by him against the Japanese Petroleum Company for wrongful
dismissal from his employ in their service as chief engineer. The case
was part heard on adjournment yesterday. As Mr. Dunn’s counsel, I
applied to the court to summon two Japanese witnesses to appear to give
evidence for him. These witnesses had expressed a disinclination to
appear unless summoned, probably because they wished to avoid all
semblance of partiality for either side. My application was much
insisted upon by me, and the obvious reasons for it pointed out, but the
court absolutely refused to summon the witnesses, alleging that by the
rules of the court each party had to bring his own witnesses, and the
court only summoned those whom, for its own satisfaction, it wished to
examine. I asked to see such rules, but none such were shown, and indeed
did not appear to exist in a written form. I have several times
conducted cases in the Kanagawa kencho, and also before the gaimusho,
but have never before experienced any difficulty in procuring the
authorities to summon such witnesses as might be required.
The answer to my client’s petition (which answer was never served upon
us) charges him with falsely representing himself as a competent
engineer, with being an incompetent one, and with disobedience to
orders. The witnesses in question are necessary to my client for the
rebuttal of both the charge of incompetency and that of
disobedience.
Trusting, sir, that you may see fit to assist my client in such way as
your experience may deem advisable toward obtaining a just hearing of
his claim.
I have, &c.,
FRED’K DICKINS,
Counsel for Mr.
Dunn.
