De Long to the board of Dainegons, August 31, 1871

Mr. De Long to the board of Dainegons

Your Excellencies: The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America in Japan, in accordance with the privileges allowed by the laws of your empire, begs leave to address, in a most respectful manner, to your high and honorable body this appeal from the action and conclusions of the minister for foreign affairs of your empire, in a certain matter of business that he has had occasion officially to place before them. The undersigned begs leave to assure your excellencies that, in addressing this appeal to you, he does so in no spirit of complaint or fault-finding with their excellencies, the ministers for foreign affairs, or with any of them, with all of whom the undersigned has ever sustained, and trusts always be able to sustain, the most cordial and friendly relations. Neither is the undersigned moved to take this appeal by any sense of the importance or necessity for haste that there is attending to the settlement of the special matter upon which this appeal is founded, but the undersigned thinks that the present system pursued by your government, in its management of affairs of this nature, is grievously faulty; and with a view of being able to convince you that reforms are needed, and of showing you in what manner the reforms desired might be worked, this appeal is taken.

The undersigned begs leave, therefore, to premise by advising your excellencies of certain rules and principles that obtain in American and European countries, in meteing out justice and settling disputes between people, whether native or alien, and the reason why such rules are followed.

One of the first objects of all law is to mete out justice; another object is to make justice pursue quickly on the heels of wrong; for justice delayed often fails to properly indemnify the injured party, especially in business transactions; therefore, when a system is found to be so faulty that a wrong-doer may, for a long time, by tricks and artifices avoid doing justice, it should be so remodeled as to permit the officers of the law, whose duty it is to see justice done, to prevent such unreasonable delays. The next object of the law is, in all cases, to ascertain the truth. To do this, in judicial investigations, it has for a long time been admitted by the jurists and statesmen of all civilized countries that witnesses, men called upon to declare the truth about transactions within their knowledge, should be subject in their examinations relative to such matters to examination and cross-examination, by and in the presence of both the parties to the controversy. In this way the conscience and knowledge of the witness is best sifted, so that the judicial eye can the clearest see the truth. Another object our law has in view, in the adoption of rules for the government of trials, is that thus all claimants and defendants are treated alike, and none may complain of the course that is pursued with all.

To that end, when one person wishes to commence in our courts a civil action for the enforcement of a claim for money or damages against another, our law compels him to file a written statement of his grievances, stating concisely who his claims are against, and upon what grounds he asks for his relief. The court then issues a writ called a summons, notifying the party complained of (called by us the defendant) of the complaint made against him, and of the relief or judgment that is asked, and notifies him to appear within some certain specified time, (usually regulated by the distance where he is when he is summoned from where the court sits before which he is to appear.) and file with the court his written reply, if he has any to make, to the complaint filed against him. If he fails to obey this summons, in some cases our courts, without further investigation, decree the complainant the relief he seeks; or the court may, notwithstanding the defendant offers no defense, call upon the complainant to prove his case before awarding him a judgment.

If the defendant in reply to the summons admits the truth of the complainant’s statement, judgment is at once rendered against him. If, however, he answer, denying in whole or in part the complaint of the complainant, the court causes at once a copy of his reply to be given to the complainant, so that he may know which of his statements stand contradicted, and may, therefore, correctly judge what he will be called upon to prove. Thus he is saved the necessity of going to the expense of procuring witnesses to prove uncontroverted assertions. Then the cause is set for trial at a certain place on a certain time, and both parties are notified to be there present with their witnesses. At that time the examination proceeds in the presence of the court, which first hears the witnesses for the complainant and then those for the defendant, and finally any additional evidence that may be proper.

When a party who produces a witness has concluded his examination of him, the other party is allowed to question him, and thus in the presence of the court a witness is often detected in telling an untruth, the sagacity of the court being aided and reenforced by the knowledge of the opposite party who is interrogating the witness. After such examination the court renders judgment by the light of the law, to which all must cheerfully submit. This course, to which all foreigners are accustomed, is not followed by either your local governors or ministers, to whom consuls and representatives are compelled to address the demands of their countrymen for examination and determination. No known rules in regard to the time within which cases will be tried and decided, or rules of evidence by which causes are determined, are published and made known so as to be understood by foreign officers, who are, therefore, compelled constantly to grope in the dark in transacting business of this nature with your government.

Your courts examine by themselves, unknown to us, the defendant and his witnesses; we do not even know what is in dispute or what is necessary or unnecessary for us to prove. While foreign officers are thus situated, in attempting to obtain legal redress for their countrymen against Japanese subjects, all foreign powers having treaties with Japan hold courts constantly open, governed by published and proclaimed rules and laws, that may be known to all, and Japanese claimants are kept constantly advised as to what time trials will be held, what they will be required to prove, and are allowed to be present to hear what the witnesses may have to say who testify against them and to ask of such witnesses all proper questions. In this way foreign tribunals mete out justice to Japanese subjects by the same rules that it is administered to the citizens or subjects of their own or other states. This system brings content and satisfaction to all classes, but, above all, it inspires the masses with respect for and confidence in the laws, and thus secures the ruler in his place by inspiring obedience. When, therefore, I present a claim or demand on behalf of any of my people at the Foreign Office, I should, I think, be given to understand within what time the officers, han, or individual complained against would be compelled to answer my complaints. When the answer is filed, I should, without delay, be furnished with a copy of it, and the cause set down for hearing at some certain time, within which the attendance of the necessary witnesses can be procured, and a trial follow, participated in by both parties, with all of the witnesses present. I can best illustrate the grievances of which I complain by stating the facts of the case upon which this appeal is based:

On the 28th day of May last, I presented to the minister of foreign affairs a claim of Messrs. Walsh, Hall & Co., American citizens, against the Uki han for some twenty-three thousand dollars, the value of a certain quantity of rice sold and delivered by them to that han under contract bearing the seal of the han. From time to time I inquired what had been done or was being done about this matter, and was answered that the governor of Kanagawa was investigating the case, under the direction of the Foreign Office; that his report might soon be expected, and then I would be fully advised, and thus the matter continued. I did not know, nor could I find out, what investigation was being made; whether our claim was disputed or admitted, and, if disputed, what grounds of defense were assigned; neither do I know at present. I was informed that it was alleged that the seal of the han had been stolen and used by a discharged officer. I urged upon the minister that we could prove that the han had received our rice, and hence we ought to be allowed our money for it, regardless of whether the seal of the. han was properly placed on the paper or not; hence, that I did not think it proper that our claim should be delayed pending an investigation which was being made, not to determine whether our claim was just or not, but to determine whether a certain man ought to be punished or not. I waited patiently until yesterday, when their excellencies informed me that the report of the governor had been received, but it was not satisfactory, and a further investigation had to be made.

When I inquired how long it would be before I could find out about this matter I was advised that no reply could be promised for thirty days. I then felt, and still feel, that such delays amount to a denial of justice. An investigation is pending that I am not allowed to participate in, or know anything about, and which is to decide a right of my countrymen.

One of the main witnesses on my behalf has been imprisoned by your authorities, and has died in prison; thus we are deprived of his evidence.

I have now no more assurance as to when I may expect judgment, or what kind of judgment I may expect, than I had three months ago; whereas, in the meantime, one of the officers, and the main one who conducted this business with Walsh, Hall & Co., is daily in our sight; even the other day was engaged in attempting to negotiate a large loan of money at one of the foreign banks in Yokohama, apparently having plenty of money, his full liberty, and fairly laughing to scorn all attempts to make him do justice.

This condition of affairs leads to immeasurable evils. Foreigners, in dealing with Japanese, are led thereby to charge them unreasonable prices for moneys loaned, or goods sold on credit, because they calculate the difficulties and delays in obtaining justice, and they increase their charges proportionally. They make secret and unreasonable contracts with Japanese, seeking to avoid and conceal their transactions from their own and the Japanese authorities, because of their fear of them, and their want of confidence in them.

Troubles are increased on every hand, not alone to the foreign, but to the Japanese authorities, and all because foreigners, not understanding your methods of settling disputes, are afraid to trust to your tribunals. Evil-minded persons spread about reports to the effect that subordinate officers in the departments, if paid money, will expedite or retard the collection of claims; hence some of them resort to attempts to bribe your officers, and if, in the conduct of their business, your officers decide against them, instead of being contented with their decisions, they are discontented and troublesome; they imagine thaty our officers have been corrupted, and so, constantly, false and infectious impressions are allowed to gain ground, to the injury of the good name of His Majesty’s government abroad.

The injustice of allowing this condition of things longer to continue will be manifest to your excellencies when you read that clause in your treaty with the United States which reads as follows: “The consular court shall be open to Japanese creditors, to enable them to recover their just claims against American citizens, and the Japanese courts shall in like manner be open to American citizens for the recovery of their just claims against Japanese.” This clause of the treaty the American Government has fully and constantly carried out, whereas the Japanese government has wholly failed to do so.

I am aware that your government has taken steps to do so, and to that end has sent to my Government for men learned in the law to assist in this work but, pending the arrival of those people, and until such courts are established, the reforms that I suggest should be adopted. My Government does not desire that its representatives here should have anything to do with claims such as are ordinarily tried and determined in courts. It is business that in other lands, ministers have no connection with. Their duties are higher, and are confined to the management of diplomatic affairs exclusively, while here, seven-tenths of the business I have to do, and that is done by your minister for foreign affairs, is the settlement of claims and demands of a purely private nature. It is exceedingly unfitting that officers charged with the high and responsible duties of managing the diplomatic affairs of state, should be expected to daily try causes, and differ and dispute about mere private demands.

I have consented to, and followed this course, so far, to accommodate your government for the present, and until you have the time and the assistance necessary to enable you to open regular courts, where my countrymen may bring actions, try the same, and obtain civil redress in the usual manner. This labor, that I do gratuitously, that is so unpleasant in its nature, should be made by you as easy as possible; this is a simple act of justice, that I feel that I have a right to ask for and expect.

Observe, if you please, the great difference that exists between your system and that of my Government, and its different results. My people purchase of yours annually nearly the whole tea crop of Japan, amounting to millions of pounds; also large quantities of silk, cabinet-ware, bronze, &c.; and yet your people are rarely ever defrauded of their dues. The reason why this is so is because our judicial system is such that justice outsteps fraud, and evil-doers are deterred from attempting to do wrong by the knowledge that they cannot escape with their ill-gotten gains. Thus you will observe that it is the certainty of punishment and the speedy retribution of our law that prevents wrongs.

Were the consular courts of the United States to be closed but for one month against Japanese creditors, and this fact become generally known among my people, I am of the opinion that evil-disposed men would defraud your people out of millions of dollars’ worth of property. Hence you will observe that if I should allow myself to be governed by passion, or a desire to retaliate against you, for the non-fulfillment by you of that clause of your treaty above quoted, the greater loss by far would be with you, for your people sell more property to mine than they purchase from them. Such a thought as this has never entered for one moment into my mind, and has only been referred to here to show you what a disastrous result would follow such a course should I adopt it. When a Japanese creditor wishes to bring an action against an American creditor, he finds our consular courts always open and ready to receive his complaints. As soon as it is filed in the court, the party complained against is summoned to answer the demand; as soon as his answer is filed, the Japanese plaintiff is advised of its nature, and can have a copy of it, if he desires; if the defendant admits that he owes the money, a judgment is at once entered against him, and his property is at once seized to satisfy the judgment. If he denies the demands, a day is set for the trial of the action; the plaintiff at once advised, and invited to be present with his witnesses. He knows from the answer of the defendant just which portion of his assertions in his complaints are denied, and which are admitted; he, therefore, knows that he will only be expected to prove those in dispute, and he is saved the necessity of bringing numerous witnesses. At the trial he hears what the defendant’s witnesses say, and has the privilege of asking them questions; thus truth is elicited, and justice done. May I not with propriety ask of your high and honorable body the adoption of some such rules governing the conduct of this kind of business in your Foreign Office? I ask it with all due respect to your excellencies, ministers for foreign affairs, whose labors in the dispatch of this kind of business are most severe and continuous. I willingly accord to them all praise for their uniform courtesy, integrity, and assiduity, but the system they are compelled to follow, while it materially increases their labors, as well as my own, subjects them, as well as myself, to constant complaints made by people pressing for a settlement of their claims.

I have, &c., &c.,