Mr. Burlingame to Mr. Seward
No. 54.]
Legation of the United States,
Peking,
November 5, 1863.
Sir: The accompanying enclosures relate to a
proposition on the part of the Chinese government to modify Art. XIV of
the American treaty, which they think bears hardly on our citizens in
some of its applications; and I have the honor to bring the subject to
your notice, with one or two remarks.
It grew out of a complaint made to this government by its officers at
Shanghai, (enclosure A,) that it was a common practice of American
shipmasters to present false manifests of their cargoes, and that the
consuls were unable or
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unwilling to remedy it. I replied to this allegation, (enclosure B,)
that it was necessary to state particulars; but deemed it pertinent to
their despatch to mention the judgment given in two cases of violations
of regulations, in order to show them that our consuls did what they
could to maintain the laws over American citizens.
To this Prince Kung replied (enclosure C) with a suggestion to modify the
XIVth article of the American treaty, so as to conform the penalty for
presenting false manifests to that laid down in the British treaty. His
reasoning seemed to me just, and the proposal indicated more
thoughtfulness than I had looked for, and a desire to harmonize the
diversities found in the treaties. I accordingly agreed to the
suggestion (enclosure D) until a reference could be made to the
government at Washington, and have already issued a notice to the
consuls to this effect, (enclosure E.)
I submit the question for your consideration, with the respectful request
that instructions may be furnished me, so that I may inform the Chinese
officials.
I have the honor to be, sir, your most obedient servant,
Hon. William H. Seward,
Secretary of State.
A.
Prince Kung to Mr. Burlingame
Prince Kung, chief secretary of state for foreign affairs, herewith
sends a communication.
A despatch has been received from his excellency Li, superintendent
of commerce at Shanghai, as follows:
“I have been informed by the intendent of circuit at Shanghai that
Mr. Macpherson, acting collector at that port, has written to him,
stating that it is the common practice of masters of American ships
at that port to present false manifests of cargo, nor will the
United States consul pay any attention to this fraudulent conduct of
the shipmasters. If they continue to act thus, measures should be
taken to deal strictly with them in order to put a stop to this loss
and injury, and I request you to inform the United States consul,
that he may attend to the matter.
“The intendent thereupon wrote to Mr. Consul Seward respecting it,
who replied, ‘the presentation of false manifests is a great evil,
and is practiced to some extent, but until I have reported the
question to the United States minister at Peking I cannot levy any
fines.’ I accordingly refer the whole subject to the foreign office
for instructions how to act in such cases.”
On receiving the above despatch I examined the treaty, and find that
the XIVth article provides: “That any citizen of the United States
who shall trade in any contraband article of merchandise shall be
subject to be dealt with by the Chinese government, without being
entitled to any countenance or protection from that of the United
States.” The XXIst article further stipulates: “That if the
superintendent of customs, on examination, shall detect any fraud on
the revenue in the case, then the goods shall be subject to
forfeiture and confiscation to the Chinese government.”
Now, it is both a fraud and a loss of revenue to present a false
manifest; and as the consul knew that the detriment was great he
ought to have aided the collector and carried out treaty
stipulations, and by inflicting the punishment to have deterred
others from like practices. Moreover, his excuse that he could
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not punish the delinquent
because he had not yet reported the matter to the United States
minister was an evasion of duty far from an honorable and
straightforward course.
In addition to sending this despatch to your excellency and orders to
Li, the superintendent of commerce, that he may inquire into the
matter and settle it, I likewise request that you will enjoin on all
the American consuls that whenever a case of presenting false
manifests comes before them they will strictly carry out the full
stipulations of article XIV of the treaty about clandestine trade,
and also of article XXI respecting frauds on the revenue.
It is to this end that I write, and in the hope of receiving a
reply.
His Excellency Anson Burlingame,
United States Minister.
September 22, 1863, Tungchi 2d year, 8th
moon, 10th day.
B.
Mr. Burlingame to Prince Kung
Legation of the United
States,
Peking,
October 5, 1863.
Sir: I have the honor to acknowledge the
despatch of your imperial highness of September 22, in which you
inform me of the practice of masters of American ships presenting
false manifests, and that the consuls would not interfere to remedy
the evil, &c., &c.
As this despatch indicates no names, nor specifies the dates or kind
of property, I have no data on which to instruct the consuls to act,
nor have I heard before of this practice of rendering false
manifests. But in respect to the suggestion to enjoin United States
consuls to observe treaty stipulations I beg to enclose a copy of a
correspondence with the consul at Shanghai respecting a case of
infringing the Tangtsze regulations, from which you will perceive
the desire on our part to strictly enforce the rules.
In August last he wrote as follows: “The firm of Frazar & Co. had
bought two native boats which were sent up the Yangtsze river with
cargo to the open ports, but at the end of the three months, which
the regulations require as the limit at which the shipping permit is
to be returned, they did not present the one for these boats, but
said that if required they could bring evidence that the goods had
entered the customs.
“The firm of Leighton & Co. seat a vessel up the Yangtsze with
cargo, whose permit was in like manner not returned in time, but was
handed in at the Shanghai custom-house after the three months. Now,
both of these were cases of infringement of the regulations, though
one returned the permit and the other did not. They have stated
their cases to me, and, so far as I can see, the one overpassed the
time and the other lost the permit; they were not engaged in
smuggling, and might be released from the fine.
“The customs officers said the merchants were not smuggling, but
still had broken the regulations, and should be fined fifty taels
each for their offence instead of five hundred. This was reported to
me and I confirmed the decision, but it appears that the two firms
resist this judgment, and refuse to pay the fine because they had
not been smuggling. The customs officers maintained, however, that
this infraction of the regulations caused them much inconvenience; I
have, therefore, deemed it best to report the two cases for your
decision, for this violation of the regulations and refusal to pay
the fines are against all order.”
On receiving this report and perceiving that the conduct of the two
firms, in
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refusing to pay
the mitigated fine of the customs officers, indicated great
disregard of the Yangtsze regulations, I immediately directed the
consul at Shanghai to adjudicate the cases according to the strict
letter of the regulations, and levy the fines as therein stated.
From this statement your imperial highness will perceive that the
United States consuls are zealous in carrying out all the
regulations respecting the trade on the Yangtsze river.
As to what is said in the despatch under reply about rendering false
manifests, and the indifference of the consuls about attending to
the matter, you will perceive from this that all the officers of the
United States regard the treaty as of the highest importance. There
is not, therefore, at present any need of enjoining this matter upon
them, as they already know their duties and desire to fulfil
them.
I have the honor to be, sir, your obedient servant,
His Imperial Highness Prince Kung,
&c., &c., &c.
C.
Prince Kung to Mr. Burlingame
Prince Kung, chief secretary of state for foreign affairs, herewith
sends a communication.
On the 2d instant I received your excellency’s reply to my previous
despatch respecting the common practice of American merchants
presenting false manifests, and my request that instructions might
be sent to the United States consuls to carry out the provisions of
the XIVth article of the treaty respecting smuggling, in which you
say that as no names are mentioned, or the time or sort of goods
indicated, there are no data to act on, and it is difficult to send
specific orders to remedy it. In this reply a letter from the consul
is copied, and particulars are given respecting the violation by the
firms of Frazar & Co. and Leighton & Co. of the limit
allowed for returning a permit, and of the fine imposed on them, all
of which I fully understand.
I have ascertained that the injurious practice of rendering false
manifests is not confined to one port or one nation. If an English
ship does it her master is fined five hundred taels, according to
the XXXVIIth article of the English treaty; but if the offender be
an American the provisions of article XIV of his treaty must apply
to the case, and the Chinese officers be allowed to deal with it
without his being entitled to any protection from the officers of
the United States. Therefore, in all such cases, when the offender
is an American, the penalty is not one of a fine at all, and yet it
is an offence deserving of punishment. If, however, it is only
lightly fined, it will be dealt with differently from what the
English treaty requires, and the merchants of the two nations will
not then be treated alike. Furthermore, the laws of China are
strict, and if an American merchant merely smuggles, and no other
crime is involved in the act, there is no mode of arriving at an
equitable decision in the case, while the penalty [of his own
treaty] seems to be too severe.
While I desire to observe all the provisions of the treaty most
carefully, I still think that a more equitable law respecting this
matter might be settled, so that the American merchants be not fined
too heavily, and it is for this purpose that I now address another
communication to your excellency upon this matter.
I propose the question for you to consider, when tie American
merchants present false manifests of cargo they shall be punished
according to article XIV of their own treaty, and be dealt with by
the Chinese officers alone, or be fined five hundred taels,
according to the provision of the English treaty, and
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thus all parties be placed
upon the same footing. I hope that you will examine this proposal
and decide on the point, so that orders may be sent to the several
consuls directing them how to act in such cases.
As to the cases of Messrs. Frazar & Co. and H. Leighton &
Co., let them be punished by fine, according to the Yangtsze
regulations, as their vessels and property may have been valued.
His Excellency Anson Burlingame,
United States Minister.
October 16, 1863, Tungchi 2d year, 9th
moon, 3d day,
D.
Mr. Burlingame to Prince Kung
Legation of the United
States,
Peking,
October 21, 1863.
Sir: I beg to acknowledge the receipt of
your imperial highness’s despatch of the 16th instant, in which you
remark that the presentation of false manifests is not confined to
any nation, nor to any one of the ports. If an Englishman is
convicted of this offence, the thirty-seventh article of the British
treaty provides that it be punished by a fine; but in case of an
American committing it, his treaty brings it under article fourteen,
wherein it is stipulated that all such cases shall be punished by
the Chinese government, &c. It appears, therefore, that offences
of this description are decided by a different rule from the
English; and I wish to express my thanks for the thoughtfulness
herein exhibited in that, while desirous of carefully observing all
treaty stipulations, you still think that a more equitable rule can
be made whereby American merchants shall not be mulcted more heavily
than others. It is clearly the most equitable mode of disposing of
such cases.
The consuls of the United States in China will, therefore, for the
present, decide all cases of presenting false manifests of cargo in
conformity to the provisions of article thirty-seven of the British
treaty; but in respect to adopting this as a permanent modification
of the fourteenth article of the United States treaty, it will be
necessary first to represent the circumstances and argument of your
present despatch upon the subject to the government at Washington.
When I have received a reply I will communicate further upon the
matter.
I have the honor to be, sir, your obedient servant,
His Imperial Highness Prince Kung,
&c., &c., &c.
E.
Notice to the consuls in China.
Legation of the United
States,
Peking,
October 22, 1863.
Sir: The United States minister having been
in consultation with his Imperial Majesty’s ministers respecting the
penalty to be levied under the treaty of Tientsin for presenting
false manifests of cargo, it has been agreed between them that,
pending a reference to Washington, the fourteenth article of the
said treaty shall be defined in this respect and for this offence by
the last sentence
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of
article thirty-seven of the British treaty, and the legal penalty on
conviction shall be a fine of 500 taels.
I am directed to make known this modification of article fourteen of
the American treaty for your guidance and the information of
American citizens.
By order:
[seal.]
To —— ——, United States Consul at ———,
&c.
