Edward W. Lawton, in his own behalf, and as attorney in fact and trustee for John G. Whitehorne, surviving partner of John G. and Samuel Whitehorne, Charles Devens, John S. Langley, John Stevens, William Littlefield, Samuel Allen, Benjamin Weaver, surviving partner of Solomon G. and Benjamin Weaver, George Hall, Henry Bull, executor of Henry Bull, deceased, Augustus Bush and John T. Bush, executors of Thomas Bush, deceased, Stanton Peckham and John B. Weeden, administrators of Isaac C. Peckham, deceased, Peleg Clarke and Josiah S. Munro, assignees of Sanford Bell, and Russell Coggeshall.. T. Perkins Pingree Benjamin W. Rogers, president; William Whitlock, jr., Duncan P. Campbell, John B. Cazeau, Francis Barrett, Elisha Riggs, and Richard M. Lawrence, surviving directors of the New York South American Steamboat Association in trust for the said association and for themselves and the other shareholders of said association Hyman Gratz, president of the Pennsylvania Company for Insurance, etc.. Patrick Barry Hayes, administrator of Isaac Austin Hayes .... $878.58 41.11 23, 321.73 390.87 771.48 The foregoing list is attested June 30, 1852, as correct, by George P. Fisher, commissioner, and Charles Howard Edwards, clerk. CHAPTER J. THE CHINESE INDEMNITY: CONVENTION BETWEEN THE UNITED STATES AND CHINA OF NOVEMBER 8, 1858. Origin of the Fund. On the night of December 14, 1856, the foreign factories at Canton were burned and foreigners were compelled to flee the city; and on the 13th of the next month all foreigners were forced to abandon Whampoa, the port of Canton. These incidents were the result of the hostilities between China and Great Britain growing out of the controversy concerning the lorcha Arrow-a controversy which served to inflame the feelings of the Chinese against all foreign residents. "The destruction of the foreign settlements at Canton, although apparently the act of incendiaries," was "known to have been arranged by the authorities of Canton, who made no distinction between enemies and neutrals; and the subsequent proceedings of the Canton government in offering rewards for the heads of all foreigners indiscriminately," were, together with the preceding acts of injury, considered as making the "provincial government and consequently the imperial government responsible to the fullest extent." American citizens having thus been "obliged to leave Canton and Whampoa to save their lives from the indiscriminate fury of the populace, supported by the authorities," claims for their losses in consequence of the destruction of their property and the interruption of their business were preferred by the United States against China. These claims were made the subject of negotiation by Mr. William B. Reed in 1858. In the negotiation of his treaty of amity and commerce with China in that year he endeavored to secure the insertion of an article in relation to claims. The Chinese plenipotentiaries refused to admit it, and he subsequently proposed an arrangement whereby the claims might be gradually liquidated without any open acknowledgment of imperial liability. This end was to be accomplished by devoting a certain proportion of the duties collected on American goods and bottoms at three treaty ports to the payment of the American claims. To this proposal the Chinese plenipotentiaries assented, and it was agreed by means of an exchange of notes that a fund of 600,000 taels, or about $840,000, should be raised in the manner described. In this agreement, however, there were certain elements of inconvenience and uncertainty. It was provided that in the adjudication of claims, and especially of those at Canton, the Chinese Government should be represented by an officer appointed to act for it. This provision was thought 1 McCarthy's Short History of Our Own Times, 164. 2 H. Ex. Doc. 29, 40 Cong. 3 sess. 152. 3S. Ex. Doc. 30, 36 Cong. 1 sess. 371. to involve delay, if nothing more. Besides, no apportionment was made between the three treaty ports of the proportions of duties to be reserved in them, nor was any specification made of the time at which the agreement was to take effect, except the contingent one of the restoration of business at Canton. These features of the agreement caused Mr. Reed to desire its modification. He wished to make it more precise in its terms, as well as to give it the solemnity of a conventional form. On November 8, 1858, therefore, he signed at Shanghai a convention by which, though he accepted 500,000 taels, or $735,238.97, instead of 600,000 taels, in settlement of the claims, he obtained an exact apportionment of the fund among the ports of Canton, Shanghai, and Fuh-chau, together with a provision for the issuance of debentures by the collectors of customs on the first day of the next Chinese year. Distribution of the The distribution of the fund was committed to a board of two commissioners, from whose decision an appeal was allowed to the minister of the United States in China.' As commissioners the President appointed, by and with the advice and consent of the Senate, Mr. Charles W. Bradley, United States consul at Ningpo, and Mr. Oliver E. Roberts, "late vice-consul at Hongkong." According to the designation of time made by Mr. John E. Ward, then minister of the United States in China, the commissioners met at Macao November 18, 1859. They caused a notice of their meeting to be published in the China Mail, of Hongkong, and ordered all claims to be filed before December 15, 1859. They concluded their labors January 13, 1860. In most cases they came to a decision, and in every case in which they made a joint report it was approved by Mr. Ward. The total amount of the claims presented was $1,535,111.35. The claims allowed in full amounted to $75,506.83; those allowed in part amounted, so far as allowed, to $414,187.95. The whole amount allowed was, therefore, $489,187.95. The claims that were wholly disallowed amounted to $273,783.43. As the fund amounted to $735,238.97, there was a surplus left, after paying the awards, of nearly $250,000. Claims Allowed. Some of the claims as at first presented to the board were afterward reduced "to a considerable extent by the recovery of property supposed to be lost, or by its honorable restitution by some of the principal Chinese merchants who had taken charge of it during the emergency." The board made it a rule to allow only "claims for actual losses, understanding by these words losses of actual property existing at and before the conflagration at Canton." "Besides these losses there have been," said the commissioners, "losses arising from the interruption of business by reason of the circumstance of hostilities, which may be called real losses in one sense; but these have been in every case disallowed, as well as all constructive and speculative losses of every kind. In disallowing all claims except those for destruction of actual property, we have followed the rule laid down by the Supreme Court of the United States and the usages of governments in similar cases. 12 Act of March 3, 1859, 11 Stats. at L. 408. 2 Report of Messrs. Bradley and Roberts, January 13, 1860, H. Ex. Doc. 29, 40 Cong. 3 sess. 151-152. Interest. The commissioners allowed interest at the rate of 12 per cent per annum on the claims from the time of their origination to December 15, 1859, in most cases a period of three years. They were induced to give this liberal rate by consideration of the fact that some time must elapse before the complete collection of the indemnity through the Chinese custom-houses could be effected; and they intended to make their awards a final settlement of the question of interest. In their final report the commissioners referred to the Case of the "Caldera." case of the Caldera as having been settled by the decision of the American minister. This case involved a delicate question as to the responsibility of the Chinese Government, and gave rise to more discussion than any other claim before the board. The Chilean bark Caldera, Matthew Rooney, master, sailed from Hongkong for San Francisco October 5, 1854. On the 7th of the same month the bark, having encountered a typhoon, was compelled to put into a bay near Koelan, about 70 miles southwest of Hongkong, within the jurisdiction of China. Here she was pillaged by four successive bands of pirates, one of which consisted of a large fleet of piratical junks which took away her cargo. The bark and a large part of the cargo were insured by American underwriters. Other parts of the cargo, belonging to Messrs. Alvord & Co., American merchants at Canton, and Matthew Rooney, were not insured. The case was brought to the attention of the Chinese authorities, and through their exertions a small part of the cargo was recovered, while some of the dwellings and junks of the pirates were destroyed. The Chinese authorities declined, however, to entertain a claim by the American underwriters for reparation for the destruction of the bark and for unrecovered portions of the cargo; and Mr. McLane, then American commissioner to China, accepted their view. The Department of State at Washington, on the other hand, instructed Mr. Parker, Mr. McLane's successor, to demand indemnity on the ground that the case involved an "aggravated wrong," though it might not come within the express provisions of the treaty between the two countries. Subsequently, the Department of State maintained that the treaty had been violated. By Article XXVII. of the treaty of 1844 it was provided that if any vessel of the United States should be wrecked or stranded on the coast of China, and be subjected to plunder or other damage, the proper officers of government, on receiving information of the fact, will immediately adopt measures for their relief and security." It was alleged that this engagement" was wholly disregarded by the Chinese Government in the present case; that the local authorities participated in or connived at the acts of plunder; and that the higher authorities took no measures of relief and security." There was also another stipulation of the treaty which was invoked by the United States. Article XXVI. provided as follows: "If the merchant vessels of the United States, while within the waters over which the Chinese Government exercises jurisdiction, be plundered by robbers or pirates, then the Chinese local authorities, civil and military, on receiving information thereof, will arrest the said robbers or pirates, and punish them according to law, and will cause all the property which can be recovered to be placed in the hands of the nearest consul or other officer of the United States, to be by him restored by the true owner. But if, by reason of the extent of territory and numerous population of China, it should in any case happen that the robbers cannot be apprehended, or the property in part only recovered, then the law will take its course in regard to the local authorities, but the Chinese government will not make indemnity for the goods lost.”1 The United States admitted that under this article the Chinese Government "might discharge itself of the obligation of indemnity by showing that the robbers could not be known to be apprehended or that the property could only be in part recovered." But attention was called to the fact that in the case of the Caldera the claimants "alleged that the property plundered was notoriously visible and accessible to the local authorities; that the latter participated in the plunder; that the robbers were known as such to the local and general authorities; and that the pirates concerned in it were, shortly afterward, with full knowledge, taken into the service of the imperial government." 2 In due course a claim was made before the present board by the American underwriters, and by the Messrs. Alvord & Co., and Matthew Rooney. The commissioners differed in opinion on the claim, Mr. Bradley holding that it should be rejected, while Mr. Roberts maintained that it should be allowed in part. Mr. Bradley argued that the case was a simple one of piracy on the high seas, and that, even assuming that the phrase "merchant vessels of the United States" would cover a Chilean vessel carrying a cargo belonging to citizens of the United States, the Chinese Government had completely discharged its obligations under the treaty. He maintained that the Chinese Government had been diligent in its efforts to detect and punish the pirates; that the alleged complicity of one or more native officers in the plundering of the bark was "neither proved nor shown to be fairly presumptive," and that there was no legal evidence that the pirate fleet had united with the imperial forces. It was well known, said Mr. Bradley, that piracy was and from time immemorial had been the normal condition of all the eastern seas. The character of the southern shores of China, with their countless islands and inlets, their intricate passages and obscure harbors, rendered that quarter a favorite resort for piratical outlaws and made their extirpation a work of no common difficulty, while the extreme poverty of the lower classes and their habits of aquatic life greatly promoted the perpetuation of the gangs. But it by no means followed that China was a piratical or semipiratical state, and as such answerable for acts of a piratical character. By her legislation she had treated piracy as a capital crime, and had suitably provided for its detection and punishment; and every year hundreds of freebooters suffered the extreme penalty of the law in the southern provinces as pirates. The imperial navy, such as it was, had been kept up chiefly for the suppression of piracy, and the cooperation of men-of-war of the United States and Great Britain in the matter had been welcomed. Under the circumstances the argument employed by Mr. Webster in the case of McLeod would apply to China in respect of piracy. In that case Mr. Webster, while denying any delinquency on the part of the United States in suppressing disorders along 1 H. Ex. Doc. 29, p. 10. 2 Mr. Cass, Sec. of State, to Mr. Ward, minister to China, May 5, 1859, H. Ex. Doc. 29, 40 Cong. 3 sess. 9. |