forme. You lay stress on the want of legal knowledge among merchant consuls; and it is not unlikely, of course, that such a one may not always possess the necessary knowledge to decide a nice point of law; but in such cases, which are exceptions, the right of appeal to a superior officer obviates this incompetency or disadvantage, and secures the parties from injustice. If the rules of procedure in a consular court are laid down with clearness, they can be followed by any person with a fair education, and the value of his decision can be increased by requiring him to get the advice of assessors. Most of the cases in China consist of damages for injury to person or property, for debts, or divisions of estates, such as require no high legal attainments for their equitable settlement. But permit me to observe further, that the difference is not merely formal; that when a consul at one port can only receive the evidence of the opposing parties and their witnesses, to send it off many scores of miles to another port, as seems to be the rule in the Prussian consulates, the plaintiffs are not so likely to receive justice, irrespective of the delay, before the judgment is rendered. The value of conflicting testimony can best be decided by him who hears it, as well as the competency and credibility of the different witnesses be better weighed by a judge who watches them as they give their depositions. On paper much of this vanishes; and in no case can a man write more than a portion of the evidence. Some of the energy and distinctness of witnesses must be lost when they feel that they are really talking and acting for one not present, who will, after all, get only an imperfect idea of what has passed. Besides, in some cases the locality of the occurrence has a very important bearing in making up a decision. Then, further, with regard to the judge himself. He is likely to have a great number of cases to investigate, each of them demanding an immediate decision, in order that the parties shall not suffer more than is absolutely necessary from the delay. One does not doubt that he desires to do even and speedy justice, but his time and strength have limits. If new points come up demanding investigation, more time must be consumed in obtaining further facts. When the case has been decided, the parties may have all separated and gone elsewhere; the ships left the port and gone from China; the property in dispute may have spoiled or deteriorated; the consul himself departed; a dozen contingencies may have arisen that render it impossible to carry out fully a sentence that at first could easily have been executed. The case cited by Mr. Meadows of the brig Japan running down a junk in the Pei-ho, so far as I know the facts, will illustrate the inconveniences from delay to which I now allude; inconveniences which, in my view, far exceed the risks and wrongs likely to be suffered by allowing a merchant consul to decide cases brought before him. The same risks were somewhat anticipated when constituting the consular courts of the United States in China 20 years ago, and were provided against by the framers of the act of Congress in 1848; but when it was revised and reissued, in 1860, it was found to need few alterations. The evils suffered in these courts since 1848, through the incapacity, ignorance, or inefficiency of merchant consuls, have been trifling, and I remember no complaint brought before this legation on these grounds. The evils resulting from the other mode of jurisprudence would have been greater. In your excelleney's dispatch it is admitted that the plan of sending cases to Mr. Tettenborn, as good a lawyer and judge as he is, is assez compliquée. Perhaps I have shown that it is more than complicated, and that its inherent delay works a wrong to both parties. I fully agree with you that there is no denial of justice in the theory; but in practice, an American citizen bringing a complaint at Canton or Tientsin, before a consul of the North German Confederation, would not seldom find the delay of sending the documents to Shanghai nearly equivalent to a denial. In some cases, as where the parties all resided at the port, in a suit of debt, for instance, the result would be less detrimental. In the case before us both the parties happen to be at Tientsin for only a few days. Let me reverse the case, for illustration. If the Talee had run into the Manchu, both parties would doubtless have wished to leave port long before the American plaintiff could have got judgment. If she was detained by Mr. Spohn as security till the damages were assessed by Judge Tettenborn, she might lose as much by the demurrage as by the accident. If she was allowed to depart, the delay to the other party works an additional loss, in settling a simple question that two or three sensible shipmasters, called in on the spot, could have decided in a few hours better than anybody else. You will pardon me, sir, if I have made these observations with more freedom than is requisite to explain my position. I speak from an experience of 12 years in seeing the workings of the American consular courts in China, and am quite satisfied, on the whole, with their results. The subject here discussed you may deem to be worthy of referring, for consideration, to those who can have no other desire than to facilitate the settlement of such disputes as the present one at Tientsin, and measurably, at least, to prevent any international disagreements. If I might be allowed to add a suggestion, a Prussian mer chant consul might have the power to give a suspensory verdict, to be ratified by the judge, and which the contending parties in the suit could for the time accept as a final one, subject to that ratification. I avail myself of this occasion, Monsieur le Ministre, to renew to you the assurances of my high respect. His Excellency BARON REHFUES, Envoy Extraordinary and Minister Plenipotentiary S. WELLS WILLIAMS. of the Confederation of North Germany. D. Baron Rehfues to Mr. Williams. TA-CHIAO-SZÈ, June 29, 1868. MONSIEUR LE CHARGÉ D'AFFAIRES: I have had the honor to receive your note of the 25th instant, relating to the case of the Talee vs. Manchu, and I have not failed to inform the King's consul at Tientsin of the instructions which you have been good enough to give to Mr. Meadows. While thanking you for the readiness with which you have co-operated to avoid the serious complications which would necessarily have resulted from carrying out the decision in this case taken by the United States consulate at Tientsin, it only remains with me to give you some explanation of the principles in force in Prussia and elsewhere relative to consular functions, which, it appears, are very different from those adopted by the United States. From your note of the 25th, it seems that the consular regulations of the United States allow a consul in bankruptcy to continue his functions. This is not the case in Prussia, and, so far as I know, in other nations too, where they are required to demit their functions as soon as they suspend payment, which was the case last year with the Hanseatic consul at Tientsin, who, having become a bankrupt, had of course to resign his consular functions. Thus it follows that a consul in bankruptcy cannot act as judge, being himself before the court. According to the usages of all nations, Mr. Meadows would not be able at this time to exercise judicial functions. But this only concerns the government of the United States, and I state it simply to indicate the difference which exists in this respect between their practice and that of European governments. In respect to the principle adopted by the Prussian government, of not granting full jurisdiction to merchant consuls, it has been the result of experience, and of the conclusion that a rather more complicated procedure would be better, and offer more guarantee for the administration of justice, than if allowed to persons wholly without fegal education, and consequently liable to commit irreparable mistakes. This principle has also latterly been adopted by most of the European governments, who are of the opinion that out of two evils it is best to choose the least. In order to remedy the inconveniences which result from the state of things in China, and chiefly those which arise from the distances between the several ports, the King's government has for a long time resolved to grant entire jurisdiction, exceptionally, to the consuls at Canton and Tientsin; it has actually been the case at Canton for two years, where Mr. Carlowitz is charged with judicial powers. At Tientsin it has not been impossible to do so, but on the other hand it has been decided to make it a paid consulate, and has been hitherto delayed only because of the immediate creation of the consulates of the Confederation of North Germany. It is certain that the near completion of the plans of the chancellor of this confederation will alter the present state of things at Tientsin, which have always been regarded as temporary. The case of the Japan, to which you allude, moreover, furnished me with a good reason to urge Count Bismarck to hasten the institution of a consulate at Tientsin. Hoping that the American government will not delay to follow the example of the confederation, and establish a paid consulate at Tientsin, I seize this occasion to renew, sir, the assurance of my highest regard. Monsieur WELLS WILLIAMS, Chargé d'Affaires des Etats-Unis d'Amerique. E. Mr. Williams to Baron Rehfues. REHFUES. LEGATION OF THE UNITED STATES, MONSIEUR LE MINISTRE: I have had the honor to receive your reply of the 29th ultimo, in relation to questions of consular control growing out of the case of the Talee rs. Manchu. I have since heard from the United States vice-consul at Tientsin that the dispute has been settled between the parties. I have carefully perused your remarks, but I cannot perceive that the bankruptcy of a mercantile consul has any necessary connection with his ability to exercise his consular functions; and that whatever other reasons may exist to make it desirable for an unfortunate debtor to demit his office on declaring his bankruptcy, they do not affect his judicial position. In the present case, Mr. Meadows, though now a merchant, was in the British consular service for many years, where he became familiar with its details. I am induced, therefore, to make an extract from his report in this case: "After I had read over the plaint, the defendant, Captain Clarke, asked the viceconsul of the North German Confederation, who was present, if he could give a decision if a similar case should be brought into his court. He replied that he could not decide the case, and would have to send down the written evidence to the consul general at Shanghai, who would decide it. As long as the vice-consul of the North German Confederation at Tientsin has not judicial powers to decide cases similar to the consuls of France, England, and America, so long, I beg respectfully to state, will it be impossible for the subjects and citizens of those nationalities, on bringing plaints into the vice-consular court of the North German Confederation, to obtain redress. * Are not judges and associates, in cases tried in the British and American consular courts, guided very considerably in their judgments in deciding cases by the manner, personal demeanor, and appearance of the witnesses when giving their evidence? The consul-general of the North German Confederation residing at Shanghai, 700 miles from Tientsin, and not being present in the vice-consular court when the evidence was taken, is he in a position, in accordance with Anglo-Saxon ideas of trying cases, to give a just decision? I maintain not. I consequently considered it to be my duty to bring the position of the North German Confederation vice-consul prominently forward, whenever circumstances allowed my doing so, in order that nationalities suffering hardships through the system might take the opportunity to urge upon the high authorities of the North German Confederation to empower the vice-consul at Tientsin with judicial powers to decide all cases, so that justice may be measured out where the parties in the case are present." The fact that a salaried consul is soon to be appointed for the North German Confederation at Tientsin is proof that the inconveniences of the present arrangement have forced themselves on your notice; and I still think that you will agree with me that many of them can only be removed by granting judicial powers to all consular officers. I shall bring the desirableness of appointing a salaried consul for the United States at Tientsin to the notice of the Secretary of State, and also the other questions discussed in this correspondence. I avail myself of this opportunity to renew to your excellency the assurance of my high regard. His Excellency BARON REHFUES, Minister of the North German Confederation to China. Mr. Seward to Mr. Browne. S. WELLS WILLIAMS. DEPARTMENT OF STATE, SIR: Your letter, written at San Francisco on the 24th of July last, has been received. It is accompanied by a correspondence which has taken place between yourself and Mr. George Wilkes, director of the Lower California Company, on the subject of emigration from China to Lower California. I see nothing to disapprove of in your letter to Mr. Wilkes. The emigration movement which is the subject of this correspondence will doubtless prove beneficial, if justly, wisely, and generously conducted. I am, sir, your obedient servant, J. ROSS BROWNE, Esq., &c., &c., &c. No. 25.] WILLIAM H. SEWARD. Mr. Williams to Mr. Seward. LEGATION OF THE UNITED STATES, SIR: I have the honor to transmit for your consideration, and to be submitted to Congress, the original and printed copy of a decree dated June 1, 1868, (inclosure A,) which I have made in conformity with the act of Congress, and which has received the approval of most of the consuls, and been duly published. This measure of closing the cut-off near Nanking to all steamers navigating the Yangtsze river was proposed more than two years ago by Prince Kung, but owing to some informality nothing was done at the time. In January last he again urged it upon all the foreign ministers in a dispatch, (inclosure B,) wherein he stated the principal reasons for adopting it; but very injudiciously appended to his proposal the mode of punishing vessels offending against the rule. This addition would have involved a violation of treaty rights, and therefore could not be admitted, as I represented to him in my reply, (inclosure C;) but the desirableness of adopting the regulation on grounds of humanity was admitted by all. The masters and owners of most of the American and English steamers on the river, when inquired of, admitted the same also; and Messrs. Russell & Co., who have control of nearly one-half of the passage steamers, replied as follows when asked their views on the subject: In accordance with your request, we have made inquiries of the captains of the steamboats under our care, and the result is that we think there is reason in the proposition of the government to close it to foreign steamers. That the danger to native boats is exaggerated is quite possible, but the fact that the cut-off is the anchorage ground or port of Nanking seems clear, and the constant passage of steamers would be a great inconvenience to the native boats, to say the least. We trust, however, that acquiescence in this instance will not lead to other cut-offs being closed where no valid and peculiar reason exists, for if so the navigation of the river would be much interfered with. Mr. Sands, United States vice-consul at Chinkiang, while regarding the liberty to trade on the Yangtze as involving the right to use every part of its channel, still assented to the decree," because the Straw Shoe channel is not necessary to the navigation of the river by steamers, and it is used by the native craft as an anchorage during stress of weather, such an anchorage being very necessary to them, and steamers passing through the cut-off subject them to considerable damage in being thrown against each other by the swell made by the wheels of the steamers, although there has been but one case of collision in this channel since the river was opened between native craft and the steamers." Dr. Salter gives his reasons for declining to assent to the decree in his letter of July 2d, which, and my reply, (inclosures D, E,) furnish you with all that need be said, in addition to the above extracts, to explain the subject. The question brought up in this decree involves a peculiar and novel feature in the international relations between China and the treaty powers, inasmuch as it is territorial, and not commercial or political. The limits of the open ports, and the privileges of access into the interior, with the rights growing out of them, have been arranged in conformity to treaty stipulations; but the treaties contain no provision enabling either party to limit or extend any territorial right conceded in them. The only legal way to reach the object in view, as it appeared to me, so as to make the regulation binding on American citizens, was to make the decree enforce a prohibition of the Chinese government over its own steamers. The British minister took the same view of it; and I now respectfully submit my action for your consideration. I have the honor to be, sir, your obedient servant, Hon. WILLIAM H. SEWARD, Secretary of State, Washington, D. C. In order to show the action of the British minister, (but not making it a part of this dispatch,) I send a copy of his notification. Notification. BRITISH LEGATION, PEKING. Whereas, in consequence of collisions resulting in the loss of life and property having occurred between steamers and native craft in the channel commonly known as the Straw Shoe channel in the river Yangtsze, situated between the mainland and the island of Tsih-li-chan, called Tsau-hia on the admiralty charts, lying east of the city of Nanking, the Chinese government has thought proper to prohibit the use of this channel, extending from Theodolite Point to the eastern end of the island at Swallow Rock, to all steamers navigating the Yangtsze: This prohibition is hereby publicly notified to British steam shipping; and it is hereby ordered that it shall be competent to the officers in charge of her Majesty's consulates on the Yangtsze river to punish every infraction of the same by a fine of 100 taels; and in the case of collision, by the additional payment of full compensation for all injury done to the native shipping. And the foregoing regulations, being hereby declared urgent, shall take full effect in one month after the date on which it shall have been affixed and kept exhibited in the public offices of the consular officers, and so remain in full force until disapproved by her Majesty, such disapproval to be signified and made public in the manner provided by section 85 of the said order in council. Given under my hand and seal this 4th day of June, 1868. RUTHERFORD ALCOCK. A. Regulation for the consular courts of the United States, in China. In pursuance of section 4th of the act of Congress approved June 22, 1860, entitled "An act to carry into effect certain provisions in the treaties between the United States, China, Japan, Siam, Persia, and other countries, giving certain judicial powers to ministers and consuls, or other functionaries of the United States in those countries, or for other purposes,” I, S. Wells Williams, chargé d'affaires ad interim of the United States to China, do hereby decree the following regulation, which shall have the force of law in the consular courts: Whereas, repeated complaints having been made of the danger incurred by the native shipping from steamers passing through the channel commonly known as the Straw Shoe channel, situated between the main land and the island of Tsih-li-chan, called Tsau-hia on the admiralty charts, lying east of the city of Nanking; and collisions having already occurred between them and the native craft constantly using this reach, resulting in loss of life and property, the Chinese government has seen proper to prohibit the use of this channel, extending from the Theodolite Point to the eastern end of the island at Swallow Rock, to all steamers navigating the Yangtsze river. Now, therefore, in order to give full force and effect to this prohibition, be it known to all whom it may concern, that all steamers sailing under the American flag are forbidden to use or pass through the above-described Straw Shoe channel, and every infraction of this regulation will render the steamer liable to a fine of 100 taels, prosecutable in either of the consular courts of the United States on the Yangtsze river, or at Shanghai; and in case of collision to pay full compensation for all damages done to the Chinese or their shipping. [SEAL.] LEGATION OF THE UNITED STATES, S. WELLS WILLIAMS. |