Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part III
Mr. Burlingame to Mr. Seward
Sir: Permit me, most respectfully, to call your attention to the letter (marked A) to Consul General Seward; it cost me much careful labor. I believe it is sound in its views and policy; and what strengthens me in this belief is, that my colleagues, after a most thorough examination of the points discussed, unanimously approved of it, and will send it to their governments as an authoritative exposition of their views. Sir Frederick Bruce, the British minister, informs me that he will send it to her Majesty’s consuls for their guidance. I feel very grateful to my colleagues for their approval, and only hope to be equally fortunate with my own government.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State.
A.
Mr. Burlingame to Mr. George F. Seward
Sir: From many letters received by me from the ports, it appears that a misunderstanding prevails as to the extent of the rights and duties of American citizens under the treaty, and the regulations made in pursuance thereof. I have felt, therefore, that it might facilitate the administration of our affairs if I express my opinion in relation to these questions, and about which there has been controversy. I accordingly address you, and through you the other consuls and my countrymen, giving my construction of the treaty and regulations upon several disputed points, as well as a few directions in relation to ships, passports, &c., and some general suggestions in reference to the co-operative policy agreed upon by the representatives of the treaty powers at Peking.
I hold that the Chinese government has the right, as an incident of its un-yielded sovereignty, to enforce its own revenue laws, and to make such regulations as may be necessary to that end. [See rules 6 and 10 of the supplementary treaty, and my despatches to the Department of State Nos. 30 and 32, approved by government.]
That the foreign minister, when notified of regulations, if he find them to be in accordance with the treaty, is, after having, in his diplomatic character, done what he could to perfect them, under obligations to notify them to his countrymen, upon whom they become binding. [See letter of E. Hammond, for British [Page 427] government, in reply to the Shanghai Chamber of Commerce, and despatches of British and American ministers in relation in the Yangtse regulations, approved by their governments.
That no authority interior to that which made and approved the regulations can absolve persons from their observance.
That the Chinese government having by treaty yielded jurisdiction over the persons of our citizens, so that it cannot punish them even by fine, it is obligatory upon us to punish them for infractions of the treaty and regulations. [See despatches of Mr. Marshall to Mr. Marcy, November 26, 1853; and same to Cunningham, vice-consul at Shanghai, November 1, 1853; Mr. Cushing to Mr. Marcy, September 19, 1855; Fitzroy Kelly and James Stephen, Temple, May 22, 1862. MS.]
The manner of doing this is pointed out in sec. 7 of the act of Congress approved June 22, 1860. It is to be done through the consuls, the minister only having original jurisdiction in cases of felony, murder, and rebellion, and where a consul is interested [See secs. 13, 24, and 27 of the act.]
The Chinese government cannot withdraw a consul’s exquatur, for it has yielded this right under the law of nations in the grant of entire jurisdiction over our citizens. Besides, the consuls in China have a peculiar status—they are judicial officers, and exercise many powers under the treaty unknown to consuls in the west. [See my despatch (72) and discussions with the Chinese government; also letters of Mr. Cushing to Mr. Marcy, November 7, 1854, and October 8, 1855.]
That though the Chinese government may not sue in the consular court as a party to the record, still it may go there to make complaint and to give information, which the consul is bound to entertain. This is political action. [See Cushing, idem.; G. Wingrove Cooke and James Hennen, Temple, January 13, 1862. MS.]
If the consul shall fail to do his duty in respect to punishment, then the question becomes one for reference to the “superior officers of the government, who shall see that full inquiry and strict justice shall be had in the premises.” [Art. X of treaty.]
The Chinese government cannot be compelled to plead in the consular courts at the suit of any one; hence controversies between the consulates and the customs, if they cannot be arranged, become diplomatic questions, to be referred to Peking. [See Cushing, idem.; Sir Frederick Bruce in re. Bowman vs. Fitzroy, Blue Book No. 3, approved by British government; also my despatches to Consul Mangum, at Ningpo, December 9, 1862, in case of bark Agnes, approved by the United States government.]
A citizen of the United States in the Chinese customs service cannot, in that character, be held to answer in the consular court of his country for acts done in the line of his official duty under the orders of the Chinese government. In such case the remedy is against that government. [Opinion of Sir W. Atherton et al., Temple, March 6, 1862. MS.]
The Chinese government may confiscate goods landed in breach of port regulation, but only those in respect to which the infringement of the regulation was committed; that is to say, those landed, and not those still on board. [Sir F. Bruce, in case of the Blackburn, Blue Book No. 3; also my despatches in case of the Agnes, and that of Prince Kung, admitiing this doctrine.]
In cases of fine, where the words “not exceeding” are attached to the penalty, the consul may fix a smaller sum; but where the sum is fixed, there is no option, and the consul, upon proof, must inflict the fine; and all efforts to mitigate such fine must proceed upon equitable grounds, and not as matter of legal right. [Sir F. Bruce, in case of the Blackburn.]
Only three ports are now open to trade on the river Yangtse, viz., Chingkiang, Kinkiang, and Hankow; and trade at any other ports subjects ships and cargo [Page 428] to confiscation. There can be no trade, directly or indirectly, by tacit consent of local authorities, by towing and permitting the Chinese to cut the line where they will, nor in any manner whatsoever. [Art, XIV, United States treaty, art. 30, and arts. 10 and 11 of British treaty in connexion therewith; also provisional arrangements for the navigation of the river Yangtse, of December 5, 1861, and those adopted November 10, 1862, approved by British and American governments.]
If the Chinese authorities confiscate without sufficient proof of breach of regulations, then the aggrieved party may, through the consul, appeal against such action to the minister at Peking, whose duty it will be to reclaim against the Chinese government; but in no case is the citizen, or the consul for him, to take the law into his own hands. This would relieve the Chinese government from that responsibility which should attach to it, and render all friendly relations impossible. [Sir F. Bruce, in case of the Pearl; also his correspondence with Consul Gingell, at Hankow, approved by the British government; and instructions to Admiral Kuper. Blue Book No. 3.]
To secure an honest application of the confiscation power, I have, in conjunction with my colleagues, urged the establishment of a joint tribunal, or mixed commission, to sit in confiscation cases. The Chinese authorities have yielded this in principle, leaving the details to be arranged by the consuls and local authorities, first at Shanghai, provisionally, and afterwards at the other treaty ports, if found to work well. This will satisfy both sides, and facilitate settlement at the ports; or if the cases shall come to Peking by classification and arrangement of the evidence make decisions practicable. [See despatch of Prince Kung to me, June 13, 1864.]
The greatest care should be taken before extending the protection of the American flag to purchased vessels; the proof of citizenship and the bona fide character of the purchase should be required. The flag should not be lent or sold to dishonor, “or be abused by the subjects or other nations as a cover for the violation of the laws of the empire.” [See Consular Manual, p. 273, and Regulation of the Treasury Department, there referred to; also art. IV of the treaty.]
A wise discretion should be exercised by the consuls in granting passports to travel into the interior. The right to grant these is derived from Article IX of the British treaty, through the favored-nation clause (art. 30;) and though I do not hold that we are bound to take the construction of a treaty from the power through which we derive a privilege, still a desire for uniformity would suggest that such construction should receive our respectful consideration. [See my despatch No. 26, approved by government.]
I therefore call your attention to Sir Frederick Bruce’s circular of 21st November, 1860, to the British consuls, approved by the British government, and commend its several suggestions to you for your guidance. “When an application is made by a person claiming to be a native citizen of the United States for a passport, before it be granted he should make a written declaration to that effect, stating also his age and place of birth, which paper should be filed. The consul may, however, require such other evidence as he may deem necessary to establish the fact of the applicant’s citizenship. If the applicant claims to be a naturalized citizen, he should be required to produce either the original or a certified copy of his certificate of naturalization, or such other evidence as shall be fully satisfactory to the consul. [Extract from instructions to the diplomatic agents of the United States, page 17, and my letter to Acting Consul Pomeroy, at Tientsin.]
I have already written you in relation to the so-called concessions. There are no such things as concessions in the sense generally understood by that term. It is the right of our citizens to buy, sell, and live in any part of the treaty ports; and any claim by a treaty power of a concession of territory from [Page 429] the Chinese government, by virtue of which, it can exercise jurisdiction over the persons and property of our citizens., would, if admitted, be an abridgment of our rights. [See Marshall to Marcy, July 26, 1853, with history of efforts of United States Consuls Griswold and Cunninglam against concession claims, and disavowal by the British government of concession views through Consul Alcock; letters of Sir F. Bruce to Consul Medkurst, approved by British government; my despatch (42) approved by government in Mr. Seward’s despatch No. 40, and also my No. 37, in relation to municipal affairs at Shanghai, likewise approved by government.]
We have no right, for municipal or other purposes, to take jurisdiction of Chinese or other subjects of non-treaty powers, even though requested to do so by the Chinese authorities. We should seek to strengthen the Chinese administration, in the direction of order, to see to it that they should not shirk their treaty obligations. [See my letter to Consul General Seward, and Sir F. Bruce to Consul Sir Harry Parker, at Shanghai.]
With reference to the entrance of American citizens into the Chinese service, I can only gay that there can be no objections to their entrance into the civil service; but there are strong objections to their active participation in the strife in which this people is unhappily engaged. The penalty for entering the rebel service is well known; and there is a decree of my predecessor, Mr. McLane, of December 5, 1854, still unrepealed, against taking military or naval service under the government against the insurgents. In the peril of our interests at Shanghai from the rebels, this decree was not enforced; but subsequent events, leading to the death of General Ward and the Burgevine imbroglio, convinced me that taking such service not only endangered our relations with China, but might lead to complications with other treaty powers. I accordingly expressed myself in this sense in my despatch No. 44, and my views were “specially commended” by government.
I therefore reiterate them to the end that such service may be discouraged. The British government has already withdrawn its permission to its officers to take military service, and every effort has been and is being made by the British minister at Peking to induce the Chinese to strengthen themselves so as to relieve the British government, not only front the expense of keeping troops in China, but from the common danger of a Chinese force headed by adventurers. Major Gordon, who has done so well, earnestly wishes to be relieved, but is retained by a common sense of danger until he can weed the force of its dangerous elements, and safely hand it over to the entire control of the comparatively well-drilled and patriotic Chinese officers.
Mr. Berthamy, the enlightened representative of France, is equally desirous with the British minister of removing all cause of expense and anxiety to his country, and looks forward with hope to the day when the Chinese shall triumph over their difficulties, and be able to maintain order without external aid. I am happy also to inform you that Mr. Vlangaly, the able minister of Russia, is deeply impressed with the importance of repressing that adventurous element which, if fostered, can only lead to disaster in China.
At an early period of my mission I was instructed by the government to cooperate with the other treaty powers; and in my despatch No. 42 you will find a history of my efforts in that direction, and of the policy agreed upon. That policy has been fully approved by our government, and I believe by that of every other treaty power. It is briefly this: to consult and co-operate in China upon all material questions; to defend the treaty ports so far as shall be necessary to maintain our treaty rights; to support the foreign customs service in a pure administration, and upon a cosmopolitan basis; to encourage the Chinese government in its efforts to maintain order; to neither ask for nor take concessions of territory in the treat ports, nor in any manner interfere with the jurisdiction of the Chinese government over its own people, nor even menace [Page 430] the territorial integrity of the Chinese empire. I call your attention to this policy, that you may know the commitments of our government and ourselves with the other treaty powers.
You will perceive that we are making an effort to substitute fair diplomatic action in China for force; and thus co-operation becomes the rule in carrying out these relations. It should be sincere; and to be effective, requires in the first place a predisposition to get on well with one’s colleagues; and in the second, that just moderation which cannot fail to win the respect and confidence of one’s associates. While such are our obligations with respect to the foreign representatives in China, they are equally strong towards the Chinese officials, whether native or foreign; for it is through these that we maintain our relations with China, and any want of courtesy or consideration at once reacts upon ourselves, and destroys our power for usefulness. [See my despatch approving the conduct of Consul Clark at Fuchan.]
Hoping for your continued support, together with that of the other consuls, and my countrymen generally, of the views I have expressed, and the generous policy I have stated,
I am, sir, your obedient servant,
George F. Seward, Esq., United States Consul General, Shanghai.
P. S.—I have submitted the above letter to the British, French, and Russian ministers, and they authorize me to inform you that they entirely approve its views and policy.