Mr. Burlingame to Mr. Seward
Sir: I have the honor to inform you that I have just received from our consul, Mr. Mangum, at Ningpo, the following case for diplomatic action. The papers are so voluminous that I beg only to state their substance, with my action thus far.
Captain King, of the American bark Agnes, paid duties, and received a permit to discharge cargo at Ningpo. While discharging cargo he got into a dispute with a tide-waiter, by the name of Smith, about the time (sunset) when he should cease, and threatened with many curses, as the latter alleges, to throw him overboard. The captain denies this, but two witnesses are named by the superintendent of customs to prove it. On this statement of facts, the superintendent of customs addressed a letter to Captain King, in which he stated that the goods landed after sunset should be seized, and a prohibition put upon the vessel from landing any more cargo until he should apologize and pay a fine of three hundred taels. In this position of affairs the superintendent was sustained by the Taoutai. Mr. Mangum considered this as an infringement of his jurisdiction, and, after failing to get any satisfaction, addressed me the following despatch, together with all the papers in the case:
United States Consulate, Ningpo, November 3, 1862.
I have the honor herewith to transmit to you copies of communications that have passed between his excellency the Taoutai of Ningpo and myself in regard to the American bark Agnes, owned and commanded by T. H. King, and now lying at this port.
The communications explain the respective positions of his excellency the Taoutai and myself. I maintain that the Chinese authorities have no right to withhold a right from American citizens, or to punish them under any circumstances, except in the case of contraband goods; but for any alleged improper conduct, they can be judged and punished solely by their consul. The custom-house authorities, on the other hand, maintain that they have the right in this instance to prohibit the landing of cargo until their demands are complied with; that the captain shall pay three hundred taels, and render an apology to the commissioner of customs. In addition to these communications, I have had two personal interviews with his excellency the Taoutai, in which I strongly protested against his conduct as being unjust and illegal; but being unable to arrive at any satisfactory settlement of the case, I refer it to your excellency, and will await your action.
I have the honor to be, sir, your obedient servant,
W. P. MANGUM, United States Consul.
His Excellency Anson Burlingame, &c., &c., &c.
To the above letter I made the following reply:
Peking, December 9, 1862.
Sir: On the receipt of the papers in the case of the American bark Agnes, I at once brought the facts to the attention of the government. The officers who communicated with me through my interpreter professed great desire to accede to my wishes to have the ship released, and the damages for her detention paid, and stated that if I would in a formal despatch place the facts before them, they would communicate them to Sieh, the superintendent of trade in the [Page 917] province in which Ningpo is situated, with instructions that, if he found the facts as I had stated them, at least the ship should be instantly released.
I shall at once make such statement, and have it interpreted and acted upon. I regret that the mail which will take this leaves this morning; but their letter will doubtless be sent at once by their own courier overland. The case, as it comes to me, is somewhat embarrassing. The captain states one thing, and the superintendent of customs another. The captain denies having violated the customs regulations. Mr. Giguel declares that he has, and names two witnesses to prove it.
Now it is clear that the Chinese government, by the treaty, has the power to make customs regulations, and to enforce them by seizure and confiscation of property; but it has no power to impose fines, because these are imposed upon persons, and look to possible arrest and imprisonment. Punishment, by the XIth article of the treaty, can only be inflicted by the consul of the country to which the citizen belongs.
If Captain King, in this case, landed goods in violation of the regulations, the government was right in seizing them. If he did not, and it seized them illegally, then it was wrong, and the question becomes a political one for reference to the diplomatic agents at Peking, to be negotiated and decided upon according to the evidence and equity of the case. It is not necessary for the Chinese government to go into our court with such questions. It cannot if it would.—(See Attorney General Cushing’s opinion in consular instructions.) The Chinese government has nowhere in the treaty yielded up its sovereignty so far as to preclude it from enforcing its own revenue laws on its own territory, but, on the contrary, has expressly reserved the right to do so.—(See rules 6 and 10 of the supplemental treaty.)
In this case, when the superintendent of customs undertook to punish, by demanding that Captain King should come before him to relieve his person from the charge of having done an improper act, and by putting a prohibition upon his vessel until he should purge himself by apology and fine, he was wrong, and the Taoutai was wrong in sustaining him. Captain King, you say, had paid the duties, and had received a permit to discharge his cargo. He was therefore entitled to discharge it, subject only to the seizure of that portion discharged in violation of port regulations.
These hasty views are not a decision, as there is no case before me for judicial action. I shall do all I can for Captain King; but his misfortune is, that it will take so long to get action on the part of the Chinese government. I must thank you for doing all you could to settle the matter amicably.
I have the honor to be your obedient servant,
ANSON BURLINGAME.
Willie P. Mangum, United States Consul.
I shall inform you of the result. I fear, as soon as Sherrod Osburne, an energetic officer, takes command of the Chinese navy, we shall have sharp work. Our people, under the old regime, were not subject to a very severe application of customs regulations, and may be troubled for a time by an energetic enforcement of them by foreigners employed by the Chinese government. But we have agreed by express treaty stipulations to permit them to employ Americans without even asking our permission, (see rule No. 10,) and thus we are estopped from doing more than to hold the government to a strict accountability for any injustice it may do by an improper enforcement of its revenue laws.
I have warned my countrymen, that if they would not have trouble, they must strictly observe the customs regulations. I shall do all I can to see to it that they shall not suffer from ignorance of the regulations, by notifying them [Page 918] and by giving my opinions upon them as often as a proper opportunity shall offer. A great number of decisions must be made by me, which if rightfully made, will be of service to those who shall come after me in China.
I have the honor to be, your obedient servant,
Hon. William H. Seward, Secretary of State,