No. 166.
Mr. Avery
to Mr. Fish.
Legation of
the United States,
Peking, June 23, 1875.
(Received August 13.)
No. 70.]Sir: I have the honor to inclose herewith copies of
a correspondence between this legation and Mr. Eli S. Sheppard, consul at
Tien-tsin, and between Mr. Sheppard and the customs Taotai at Tien-tsin,
touching the construction of the 28th article of our treaty with China,
regarding the conduct of trials between citizens of the United States and
Chinese.
[Page 348]
This correspondence grew
out of the trial of a collision case between the American steamer Shantung
and a Chinese junk. The customs Taotai wished to depute Mr. Twinem, a
British subject, serving the Chinese as customs commissioner, to sit in his
place in Mr. Sheppard’s court, but Mr. Sheppard declined this arrangement on
the ground that a foreign employé in the China maritime customs service is
not a public officer of China, within the meaning of the treaty. The Taotai
seems to have yielded the point, and even to have instructed Mr. Twinem not
to appear at the trial officially in his behalf, but that gentleman,
nevertheless, obtruded himself and claimed a right to participate in the
trial, although the Taotai was duly represented by two Chinese officials
then present. I need not enlarge upon the facts so clearly stated in Mr.
Sheppard’s dispatch, nor upon the reasoning by which he defends his refusal
to recognize the customs commissioner. The impropriety and impolicy of
allowing foreign customs employés to arrogate judicial and political
functions in questions arising between foreign residents and the Chinese,
are plainly apparent. I promptly approved the decision of Mr. Sheppard, and
supposed that no further attempt would be made in the same direction, but it
appears from a memorandum forwarded to me subsequently by Mr. Sheppard that
Mr. Twinem, taking advantage of a new and inexperienced Taotai being
appointed at Tien-tsin, presented himself again in another collision case,
in a most pertinacious and officious manner. There is no reason to believe
that these attempts to put foreign customs employés upon an equality with
the consular and native authorities in the trial of international questions
were inspired by the Chinese government, but should they be continued a
formal protest to the government might become necessary. The diplomatic and
consular bodies in China freely acknowledge the valuable aid which the
foreign customs-staff, from the able inspector-general down, has afforded in
systematizing and facilitating commercial relations with the native
authorities, and in carrying out the fine light-house and other improvements
requiring foreign skill and attention, but they would be a unit in resisting
an extension of the functions of this staff beyond its legitimate field. So
far as the customs employés can guide and direct the native authorities by
friendly and judicious counsel, they are welcome to all the influence they
may acquire, but it is clearly not their right to claim or exercise judicial
and magisterial functions as Chinese officers, in conjunction with consuls.
If commissioners of customs may act in this capacity, then there is no
reason why their superior, the inspector-general, should not represent the
Tsungli Yamen at the legations.
I have, &c.,
[Inclosure 1 to No. 70.]
Mr. Sheppard to Mr.
Avery.
United
States Consulate,
Tien-tsin, May 24,
1875.
No. 25.]Sir: I beg to inclose herewith a copy of a
letter from the customs Taotai of Tien-tsin, and of my reply thereto,
touching the right of a foreign commissioner of Chinese maritime customs
to sit in conjunction with a United States consul, acting judicially, in
the trial of cases between American citizens and Chinese subjects. The
question came before me in connection with the trial of a collision case
between the owners of a Chinese junk and the American steamer Shantung.
The Taotai had, in compliance with my customary request in such cases,
and being unable to be present himself,
[Page 349]
appointed two Chinese officials to represent him
in the joint hearing, and in courtesy to the Taotai I had consented to
this arrangement.
On the day preceding the trial the Taotai wrote requesting me to permit
Mr. Twinem, a British subject, acting commissioner of Chinese customs at
this port, to sit conjointly with me in the trial. I declined to accede
to this request, and in my reply to the Taotai gave him my general
reasons for doing so, which were, briefly, that the 28th article of our
treaty provides that, “If controversies arise between citizens of the
United States and subjects of China which cannot be amicably settled
otherwise, the same shall be examined and decided conformably to justice
and equity by the public officers of the two nations, acting in
conjunction.”
I held that the construction to be put upon the phrase “public officers
of the two nations,” when applied to the exercise of judicial functions,
was not so elastic as to be made to include foreign employés of the
Chinese maritime customs-service; and I intimated that I would proceed
with the trial conjointly with the two Chinese officers already
appointed. When the court was opened for the trial, the day following
the correspondence above referred to, the Chinese officers representing
the Taotai being present, Mr. Twinem appeared and claimed an official
standing in the court as a representative of the Taotai equally with the
Chinese officials then present. He stated that he had seen the
correspondence of the previous day, but that he came as a “deputy,” in
the same capacity as the Chinese officers appointed by the Taotai, and
desired to’ be officially recognized as such. In reply, I remarked that
I could not admit his claim to an official status in this consular court
as a representative of the Chinese authorities, and I explained to him
the grounds of my objection as I had written to the Taotai. Mr. Twinem
reluctantly yielded to this decision, and remained in court to the close
of the hearing, when he requested permission to join in my deliberation
with the Chinese deputies; and this too I was obliged to refuse.
I was surprised to learn afterward that, on the receipt of my note
previous to the trial, the Taotai had at once instructed Mr. Twinem not
to appear at the trial officially in his behalf. Having received such
instructions, Mr. Swinem’s pertinacity in claiming to be recognized as
the Taotai’s representative appears strangely inconsistent.
The question thus raised a second time—for it has been once similarly
decided in the United States consular court at Foochow—is a somewhat
important one, when the scope to which it is capable of developing, if
allowed to do so, is duly considered. Shall foreigners in the Chinese
customs-service be recognized as having authority to assume the
functions of the Chinese magistracy, and stand between the foreign and
Chinese officials in the adjustment of international affairs? I consider
such an admission to be contrary to both the letter and spirit of the
treaty. Excepting those few who are specially designated, the Chinese
authorities with whom United States consular officers transact
international business are referred to throughout our treaty as the
“local officers,” “local authorities,” “local authorities of
government,” “local authorities of the Chinese government,” “Chinese
local officers,” “the government,” and “Chinese local officers of
government,” all of which designations are expressed in the Chinese text
by one and the same term, i. e., “ti fang kuan.”
I conceive the meaning of this Chinese term to signify precisely what
was intended by the framers of our treaty, who expressed it in so many
different forms, viz, those officers holding commissions and appointed
by the state to administer local government according to Chinese
law.
It seems evident that the foreign employés of the Chinese customs-service
are not and never can be included within this category while they remain
in such special service; nor until a foreigner possesses a regular
commission from the State, and is appointed to administer local
government, could he be recognized, it would appear, as the properly
authorized person designated by treaty to transact international
affairs. But one isolated instance of a foreigner being invested by the
Chinese government with the actual functions, in distinction from the
mere honorary rank of a civil official, has occurred in modern times;
that single instance was Marco Polo, who was appointed to the government
of Yang C ho by a Chinese Emperor in the thirteenth century. There has
been no other exception down to the present day, though brevet rank, or
honorary titles—merely the name of an office without the reality—have
been occasionally conferred on foreigners. Several other reasons might
be mentioned in support of the position I have taken; but the views I
have now expressed are, perhaps, sufficient for the present occasion. I
hope to hear that my action and the grounds upon which it was based have
met with your approval.
I am, sir, your obedient servant,
Hon. B. P. Avery,
United States Minister, Peking.
[Page 350]
[Inclosure in inclosure 1 in No.
70.]
The Taotai at Tien-tsin
to Mr. Sheppard.
Sir: I have already appointed deputies to sit
conjointly with you in the trial of the collision case between the junk
Chin I Hung and the American steamer Shantung; but on considering the
unusual gravity of this case—the serious damage to the junk and the
large quantity of rice involved—I wished to go in person and sit with
you, but I cannot arrange to leave my business, which is very pressing
just now. I have therefore requested Mr. Twinem, acting commissioner of
customs, to appear at your consulate to-morrow morning, at 10 o’clock,
and represent me in acting conjointly with you in the hearing of this
case, in order that a due regard may be shown for im portant
business.
I avail myself, &c.
Cards and compliments of
Eli T. Sheppard, Esq.,
United States Consul, &c., &c.
[Inclosure 2 to inclosure 1 in No.
70.]
Mr. Sheppard to the
Taotai.
United
States Consulate,
Tientsin, May 19,
1875.
Sir: I have received your communication of this
date, informing me that in consideration of the gravity of the trial
which is to be held in this consular court to-morrow, in the case of the
junk Chin I Hung vs. the American steamer
Shantung, you have deputed Mr. Twinem, an English subject, at present
acting commissioner of foreign customs at this port, to sit in
conjunction with me in the hearing of said cause. I regret exceedingly
that your excellency cannot find time to sit in person with me in the
hearing of this trial, and I shall proceed to hear it in the presence of
the two Chinese deputies, Ta and Sung, whom yon have kindly named. As
for your appointment of Mr. Twinem to sit at the trial in conjunction
with me, it is proper that I remind you that according to the
twenty-eighth article of the treaty between the United States and China
it is stipulated that if “controversies arise between citizens of the
United States and China which cannot be amicably settled otherwise, the
same shall be examined and decided conformably to equity and justice by
the public officers of the two nations, acting in conjunction.”
The commissioner of customs is not a public officer of either nation
within the contemplation of the treaty, and consequently cannot sit in
conjunction with a consul in the adjudication of cases between American
citizens and Chinese subjects. Mr. Twinem cannot therefore be recognized
as having any judicial functions in the trial of this or any other case
in the United States consular court, nor can he be permitted to take any
part in the conduct of trials or the deliberations of the court. The
court is always open to all who wish to be present, but no person can be
permitted to occupy a seat upon the bench but the consul and the regular
Chinese deputies. This is in conformity with the treaty provisions for
the public officers of the two nations to act conjointly in hearing
suits.
I am, sir, &c.,
His Excellency Sun,
Customs Taotai, &c., &c.
[Inclosure 2 to No. 70.]
Mr. Avery to Mr.
Sheppard.
Legation of the United States,
Peking, May 31,
1875.
Sir: I have received your No. 24 and No. 25,
the former inclosing copies of a correspondence between yourself and the
customs Tao-tai of your port, touching the competency of a foreign
subject in the imperial customs-service to sit with you in the
[Page 351]
trial of a case between
citizens of the United States and Chinese, the latter giving at length
the reasons for your refusal to admit such competency. It appears that
the Taotai wished to depute Mr. Twinem, a British subject, acting
commissioner of customs, to represent him in the joint trial of a case
in your consular court, under the twenty-eighth article of our treaty
with China, which provides for joint trials, in certain cases, “by the
public officers of the two nations,” and that you declined to accede to
the Taotai’s request, on the ground that Mr. Twinem is not a public
officer of the Chinese government in the sense contemplated by the
treaty. I am quite of your opinion in this matter, and think your
reasoning on the subject is conclusive. A foreign employé in the
imperial customs-service is certainly not a Chinese officer, having
judicial or magisterial functions, and qualified to sit as an equal in a
consular court, and to assist in determining international cases arising
under treaty. Article XVII and XVIII of the British treaty conform to
the above-mentioned article of our own treaty in referring to “the
Chinese authorities” for the trial, in conjunction with British consuls,
of cases arising between the subjects of the two nations. It surely
could not be held that a British subject in the employment of the
Chinese should rank as one of the “Chinese authorities” for the trial of
an international dispute before a British consul; and if not in a
British consular court, with what more right or propriety in the
consular court of any other nationality? It only needs such an
illustration to show the unsoundness of the claim made on behalf of Mr.
Twinem.
But extended argument on this question is unnecessary. Your decision and
views have my approval.
I am, sir, your obedient servant,
Eli T. Sheppard, Esq.,
United States Consul, Tien-tsin.
[Inclosure 3 in No. 70.]
Memorandum in the matter of the “Chihli” collision
suit, heard in the United States consular court at Tien-tsin,
June 14, 15, and 16, 1875.
After the trial of the “Shantung’s” case a new Taotai came into office.
So when the day was fixed for the trial of the “Chihli’s” case, I
notified the Taotai of it, and requested him to appear in person and be
present with me at the trial. He replied that he “would come along with
Mr. Twinem,” and attend the trial. In order to avoid any trouble, I went
to see the Taotai, and asked him in what capacity Mr. Twinem was coming.
His answer was a little vague, but from the way in which he insisted
that Mr. Twinem was a Chinese official, I could see that he meant for
him to come officially. Before going to see the Taotai, I had seen Mr.
Twinem, and had told him that I had instructions from you, and I begged
of him not to be lugged into this case, as it would only make it
unpleasant for me; that my duty was plain, and that I could not permit
him to take any part in the trial, &c. I told the Taotai that I had
talked with Mr. Twinem about the case, and that I had instructions from
the minister, and that the commissioner could not be permitted either to
sit with the court or take any part in the conduct of the trial. The
Taotai said he would wait until he got some instructions about it from
the Tsungli Yamen. I told him, as politely as I could, that this was a
question for the American minister to decide for himself, and that the
Tsung-li Yamen had nothing to do with it; that the minister made rules
for the consular courts, and that the Yamen could only make rules for
his (the Taotai’s) court. I showed him that our consular courts were
United States tribunals, and that by our laws the rules governing all
our consular courts in China are made by the minister, and that it was
nobody else’s business to make such rules, because Congress had
authorized the minister to make the rules. He then said he knew nothing
of the business himself, as he was just new here, and had never
transacted any business with foreigners before, but that he would
consult with Mr. Twinem about it. From this I saw clearly that Twinem
was pushing himself forward. I may mention that the arguments made to me
by Mr. Twinem, in support of his right to take part in the trial of
cases in consular courts, were repeated almost verbatim by the Taotai;
so that it is manifest that the Taotai; had been prompted by Mr. Twinem himself. There can be no longer any
reasonable doubt as to the fact that the commissioner, and not the Chinese, was forcing this issue upon
me.
At the opening of the trial the Taotai and myself took our seats
behind a large table at the head of the court-room. Mr. Pethick was
sworn as interpreter, and stood in front and to my right hand. The
Taotai sat at my left. Twinem was present, and in order to be civil
to him, I had a chair placed about six feet in front of us for him,
and by the side of it was placed a small table, on which he could
make any notes, if he
[Page 352]
wished to do so. He sat down in the chair, and the trial began.
During the day, while one of the plaintiff’s witnesses was
testifying, Mr. Twinem arose and said, “May I be permitted to ask
the witness a question?” I replied promptly, “No, sir. If the Taotai
desires to ask any further questions, they will be put through the
sworn interpreter, but persons not connected with the court cannot
be permitted to conduct the examination of witnesses.” Thereupon he
subsided for that day.
The court commenced the hearing as before. Presently Mr. Twinem
quietly shoved his little table to one side and cautiously “inched”
up toward the large table where the Taotai and myself were sitting.
No notice was taken of this, and presently he pulled up a little
closer, and then closer and closer, and finally he got near enough
to lay his notes upon the large table, and then he began to write.
Finding that no notice was taken of his intrusion, he commenced
talking to the Taotai, and getting bolder, he rose up and said, “May
I be allowed to make a suggestion?” I replied, “No, sir. The court
cannot entertain suggestions from outside parties.” “But,” said he,
“I came here as the Taotai’s scribe and I
think I ought to be allowed to”____
“Mr. Twinem, if you are here as the Taotar’s scribe there is a table for you yonder. You will greatly
oblige the court by being seated at the table set apart for your
use.” He then retired reluctantly to his place and sat down. Shortly
after this, I was pointing out to the Taotai that the testimony
given by the customs tide-waiter (Mr. Castle) did not agree with the
testimony of the Chinese witnesses, and asked him how he could
reconcile these conflicting statements of the plaintiff’s witnesses.
The Taotai could not do it, but proposed to re-examine Mr. Castle;
to which I assented. But Mr. Castle’s cross-examination did not mend
matters, and Twinem began to feel very nervous, seeing that the
tide-waiter’s testimony was destroying the plaintiff’s theory of the
case. So he rose up and said, “May I be allowed to make an
explanation for the witness?” I answered, “No, sir. The witness is
under oath, and should make his own explanation.” “But,” said he, “I
hold that I have the right to make an explanation for my
subordinates.” I replied, “Mr. Twinem, the court holds differently.
Take your seat.” And he took it.
