Mr. Burlingame to Mr. Seward
Sir: I have the honor to forward the conclusion of the discussion in relation to the United States bark Agnes, which I hope will prove satisfactory.
“The undersigned [with titles] has the honor to address to Prince Kung [with [Page 921] titles] a communication. The United States bark Agnes, Thomas H. King, commanding, at Ningpo, after having paid duties and received a permit to land her cargo, was, after landing a portion, prohibited from continuing, under the following circumstances: A tide-waiter of the custom-house, by the name of Smith, got into a dispute with the captain of the vessel about the time when he should land his cargo: the tide-waiter claiming that the time (sunset) to cease landing had arrived; the captain that it had not. The tide-waiter referred the matter to the commissioner of customs, Mr. Giguel, who, without more question, proceeded to seize the goods already landed, and to put a prohibition upon the vessel from landing any more until the captain had apologized to him, the commissioner of customs, and paid a fine of three hundred taels. In this position the commissioner was sustained by the Taoutai. Now, the undersigned does not deny the right of the Chinese government to enforce its revenue laws by the seizure and confiscation of that property which is found after the owner has violated the law, as when goods have been smuggled; but he does deny the right of the Chinese authorities to punish or fine citizens of the United States under any circumstances. That can only be done, according to Article XI of the treaty, by the United States consul. In this case the captain, after the duties were paid and the permit granted, was entitled to land his cargo. If, in landing it, he violated the port regulations, then only so much could be seized as was landed contrary to law; that which had not been landed was where it had a right legally to be. The captain denies that he violated the law as to those goods already landed, and begs to go before his consul to purge himself of any improper act; but the commissioner of customs, sustained by the Taoutai, takes the law into his own hands, and undertakes to punish the captain not only by the seizure of the goods already landed, but prohibiting the landing of the remainder until the captain had apologized and paid a fine. All this was an infringement of the jurisdiction of the United States consul, clearly wrong, and renders the wrong-doers responsible to the captain for any damages he may have suffered by such illegal proceedings. The undersigned is instructed that the captain is a worthy man, who, in a trade on the Chinese coast of many years, has never sought to violate law. He is a large sufferer by the course taken, and every day is suffering more. Where citizens of the United States undertake to deal in contraband goods, the undersigned will always be most happy to expose them, and aid the Chinese government in bringing them to justice; but when they are in the course of legal trade, he must demand for them (what he is sure your highness equally desires they shall have) the fullest protection. He then has to request that your highness will at once instruct the officers at Ningpo to remove the prohibition from the vessel, to restore to the captain his rights, and to compensate him for whatever loss he may have been subjected to by these illegal proceedings.
“The undersigned engages that the United States consul at Ningpo shall enter into a full examination of the conduct of the captain, and punish him for any improper act he may have committed.
“The undersigned has the honor to renew the assurances of his distinguished consideration.
“ANSON BURLINGAME.
“Peking, December 15, 1862.”
Prince Kung, chief secretary for foreign affairs, communicates the following reply:
Yesterday was received a despatch from your excellency in which it is stated that an American vessel at Ningpo, after having paid the duties and received a permit to land her cargo, was, after landing a portion of the same, prohibited from proceeding, under the following circumstances: A tide-waiter of the custom-house got into a dispute with the captain of the said vessel as to the time in [Page 922] which the goods ought to he landed: the tide-waiter affirming that the time to stop landing (sunset) had already arrived, and the captain that it had not; whereupon the former referred the matter to the commissioner of customs, who proceeded at once to seize upon the goods already landed, and also to prohibit the vessel either to land the remainder of the goods or to take in a new cargo until the captain shall have paid a fine of three hundred taels, &c., &c.
Now, it appears to Prince Kung that since the said vessel, on her arriving at Ningpo, did pay the duties and also get a permit to land her cargo, although the custom-house had a right to send a tide-waiter on board of her to superintend the landing, it had none to seize upon any goods or impose a fine of 300 taels. However, no goods ought to have been landed after sunset; the captain therefore did wrong in attempting to land by force against the remonstrances of the tide-waiter. But, on the other hand, the custom-house ought to have simply informed the captain that he should wait until the following day, and then land his cargo. It was also wrong on the part of the custom-house to put at once a prohibition upon the vessel, and impose upon the captain a fine of three hundred taels. Now, the arrangements in the custom-houses—as the appointment of officers, &c.—were specially made with a view to have the business of the customs transacted in a manner agreeable both to this government and the respective foreign countries. This office, therefore, has already transmitted a despatch to the governor of Chikiang, calling upon him to have the matter thoroughly investigated, and, of course, if anything contrary to law was committed on the part of said vessel, to decide the case impartially according to the provisions of the treaty; but if no attempt to smuggle, and, indeed, nothing besides landing cargo after sunset can be laid to the charge of the vessel, then to withdraw at once the prohibition, and by no means exact any fine from the captain. As soon as information with reference to this matter shall have reached this office your excellency shall be informed thereof at once. In the mean time it is but proper that this should be communicated in reply to your excellency’s despatch.
A communication to his excellency the Hon. Anson Burlingame, envoy, &c., &c. December 27, 1862.
The above despatch was translated by Mr. Scherryschwesky in the absence of Dr. Williams, who has gone to Macao to bring up his family in the spring. I send this via Russia. Will you be so kind as to note the time of its arrival?
I have the honor to be your obedient servant,
Hon. William H. Seward, Secretary of State.