No. 438.
Mr. Fish
to Mr. Bingham.
Washington, July 20, 1874.
Sir: I am in receipt of your dispatch of Jane 3, 1874, No. 88, in reference to the refusal of the Japanese court to issue process to compel the attendance of witnesses in a civil proceeding commenced by A. G. Dunn, an American citizen, in the Japanese court, and of the written statement of Mr. Dickins, the counsel of Mr. Dunn, as to the facts of the case.
From such statement it appears that the court refused to summon the witnesses as requested, “alleging that by the rules of the court each party had to bring his own witnesses, and that the court only summoned those whom for its own satisfaction it wished to examine,” but that no such rules appeared to exist in a printed form.
You state in your dispatch that “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 [Page 692] of their just claims against the Japanese,” and that it might be called “a denial of justice.”
In the opinion of this Department the treaty of 1858 opens the Japanese courts to American citizens to the same extent and with like limitations as such courts are open to the Japanese. American citizens are entitled to all the advantages and facilities which are accorded to their own suitors.
Your dispatch fails, however, to inform this Department upon the vital point to be considered in determining whether there has been a denial of justice, or the withholding of any of the means of compelling the attendance of witnesses. An expression of opinion by the Department on this point will be withheld until you ascertain and report whether the practice of the Japanese courts was correctly stated, in the decision of the court, to summon the witnesses, as quoted in your dispatch and as cited above; also whether any unjust discrimination was made against Mr. Dunn.
If, as matter of fact, the system of justice as administered in Japan does not provide for the compulsory attendance of unwilling witnesses, this Department would hesitate in demanding in behalf of American citizens an intervention of the court not exercised or allowed in behalf of Japanese.
If, however, it should appear, after a careful examination of the facts, that in this case Mr. A. C. Dunn was not accorded the same facilities and opportunities to obtain testimony as are allowed Japanese suitors, you will make such representation as may seem proper under the circumstances.
I am, &c.,