[Inclosure in No. 561.]
Mr. Stahel to Mr.
Seward.
Hiogo, December 10,
1879.
My Dear Mr. Seward: I have received your two
memoranda, and I congratulate you on the able manner in which yon deal
with the subject. You have clearly shown that by the treaties ample
provision is made for a kind of “mixed court,” where an official
assessor of plaintiff’s nationality shall sit and have a voice,
judgment, however, to be finally given by the presiding officer, who
must be of defendant’s nationality.
If this arrangement were carried out in practice it would undoubtedly
accomplish much toward alleviating the natural apprehensions of a
plaintiff when suing in the court not of his nationality, toward a
careful, dignified, and impartial trial, and toward a cordial acceptance
of the principle of extraterritoriality, and I think it would generally
insure right decisions, and go far to mitigate the bitterness of feeling
which frequently, and sometimes with apparent good reason, regards
decisions against the plaintiff by the court of the opposite nationality
as foregone conclusions and denials of justice.
But to carry out this very desirable arrangement effectively, both
nations ought to appoint official assessors for this special purpose,
whose qualifications and integrity should be unquestionable. It is
impossible that consuls, however irreproachable, should fulfill this
duty in addition to their ordinary duties.
Any other kind of mixed court than these (I agree with you) is
impracticable. For the first thing courts involve is a code of laws, and
mixed courts would involve a mixed code, the successful and intelligent
construction of which, in our present condition of knowledge as to
Chinese and Japanese methods and principles of justice, or in any
knowledge we are likely to gain of them during this generation, would be
a task which would fail even our ablest men, and is probably
impracticable.
Far better than any such attempt would be a suitable provision for
carrying out the treaty stipulations now existing, and securing the
presence, at every trial, of an official assessor of plaintiff’s
nationality with rights and powers to make his presence effective toward
securing an equitable decision according to the laws of defendant’s
nation; and the importance of this is at least as great in civil as in
criminal matters, for it is in the adjudication of civil cases that
injustice is now more frequent.
I think the proposals which you make are very appropriate and entirely
practicable. But permit me to suggest that No. 3, on page 11 of your
memorandum of date the 4th of October, should make it imperative on the
consul (at plaintiff’s demand) to sit as assessor.
Any interference of the consul with the magistrate’s procedure (except,
of course, in protection of his own national) would probably work only
harm, and should not be allowed. In practice, and with the exercise of
the tact you urge, repulsive measures for exacting truth would rarely be
resorted to in presence of the foreign official.
The general rule that justice should be done according to the law or
practice of the court sitting should be scrupulously adhered to,
otherwise advantage of the interference will surely be taken to defeat
justice. It must not be forgotten that Asiatic ideas on these points
radically differ from ours; that we cannot change these ideas during a
sitting of court, and that there undoubtedly exists a strong and
perfectly natural prejudice on the part of the Chinese and Japanese
officials of all classes in favor of their own nationals and against
foreigners, which tends against the obtainment of justice, even under
favorable circumstances.
Yours &c.,
