Mr. Williams to Mr. Seward

No. 3.]

Sir: A case has just been brought before this legation by the Chinese government, which involves so many questions of international obligation that I have deemed it to be due alike to our own position as a nation and to the safety of this people, and to satisfy its officers that we are desirous,to protect and aid them as far as possible against our own evil-minded citizens, to refer its decision to the department.

Referring you to Mr. Burlingame’s despatches, No. 44, of June 23, 1863, and No. 81, of June 4, 1864, and their enclosures, which should be read in this connexion to obtain the previous history of Burgevine, I now add such particulars as I can learn of his proceedings up to the time of his arrest.

A few days after the despatch No. 81 had been sent away last year, it was reported that Burgevine had stolen back into the country at Ningpo; but the correspondence which took place thereupon (enclosures A and B) gives no idea of the alarm which filled the minds of the high officers here at this news, for they were convinced that no sense of obligation or honor had power any longer to restrain him. So completely did he elude detection, however, that it was concluded that he had died or met a violent end. But last month he reappeared off Formosa, where he had gone from the main land. I insert an extract from a despatch of R. Swinhoe, her Britannic Majesty’s consul at Formosa, dated May 15, kindly furnished me by T. F. Wade, G. B., the chargé d’affaires of her Majesty in Peking, stating the following particulars:

“Troubles still continue in Chang-hwa, and rumors of mandarin slaughter frequently reach us. * * * * * Another cause of alarm has lately much troubled the authorities. An American schooner, the General Sherman, arrived at Ta-kow, in Taiwan-fu, with Burgevine and some others on board. They had been trying to get to the Changchau rebels via Ting San, at which port the vessel was seized by the customs schooner Vindex and taken to Amoy. She had no contraband of war on board, and was released. But Burgevine was on board, and no one recognized him. After dodging about the channel for some twenty days she put across here, and finally entered Takow, inquiring for a cargo. The mandarins were informed of the dangerous arrival by Mr. Commissioner Maxwell, and ever since communications have been pouring in asking for my assistance. I was at Tai-wan-fu when this vessel arrived, and she had departed before I got back. I am told that the magistrate of Fungshau made his appearance here with two hundred braves, and was for going on board to seize; but this, of course, Mr. Maxwell prevented, the only precaution being [Page 453] taken that none of the suspicious characters were allowed to land. The schooner was refused a cargo, and she returned to Amoy.

The despatch of Prince Kung (enclosure C) gave me the first authentic information of Burgevine’s arrest. I have not received Mr. Irwin’s report, and I learned the same day that the British legation had received full particulars of the arrest of Culling, an Englishman, taken at the same time, and soon after given up to the British consul for trial. It is apparent, from this despatch, that the imperial government is determined to do whatever it can to stop this man’s further schemes to injure it, and it must be granted that the provocation has been very great.

Before answering the communication I deemed it best to confer with the members of the Foreign Office, to learn their views, and found that they regarded Burgevine as entirely their prisoner, alleging that Mr. Burlingame had yielded all claim over him if he should again be taken in the Emperor’s dominions. They were inclined to show him the less mercy because he had confessed to the commander-in-chief, when brought before him, that he intended to enter that city, if possible, to help the insurgents. I replied that none of Mr. Burlingame’s despatches at all supported their inference that he had yielded his authority in this case, though the expression “severely dealt with” might involve the extreme penalty of the law to be inflicted, but not by the Chinese authorities.

The case presented peculiar difficulties. On the one hand, while section fifteen of the act of Congress of June 22, 1860, makes rebellion against the Chinese government, with intent to subvert the same, a capital offence, it would be almost impossible to convict this man. If he was tried for his previous acts in joining the rebels at Suchau, and his subsequent connexion with them near Shanghai, the absence or death of important witnesses would render conviction, according to our laws, very difficult. On the present occasion he was taken when in company with a British subject, before they had actually joined the rebels, though I suppose there is no doubt that such was their intention.

On the other hand, it is very desirable to give every assurance to this government that no effort shall be spared on our part to aid it in preventing our citizens joining the rebels, or furnishing them with arms or ammunition; and also no trifling with justice, in punishing those who have given them aid and comfort. It justly demands it; and while we promise to do what is right, we often find our actual means inadequate to carry our purpose into effect along such an extended coast as this. Burgevine had shown a settled determination to do the Chinese authorities all the harm he can, and they have now stopped his career, as he was on the point of accomplishing his purpose. They expressed themselves willing to surrender him to the consul for trial, if I would assure them beforehand that he should be executed for the crime of rebellion; but as I could not do this, I endeavored to explain to them some of our modes of procedure on trials, in order to show that it was not from a desire to let him escape.

In order to show that I wished to do what would secure the ends of justice, I then proposed to the officials to leave Burgevine in their hands as a prisoner, on the ground that he had formerly held office under them, while I referred the case to Washington. They consented, after some discussion, and I accordingly replied the next day to the Prince’s despatch, (enclosure D,) recapitulating some of the leading points of the discussion, and maintaining that rights guaranteed by the treaty were not yielded. I have not yet received a reply to this communication, nor have I any authentic information regarding the disposal of their prisoner by the provincial authorities after they had taken him to Fuhchan.

I beg most respectfully to lay this appeal before you for advice or decision, and I think you will not deem it strange that cases may arise, under the regime of ex-territoriality, presenting peculiar features to be considered and decided by the highest authority. In the opinion of the Chinese, Burgevine’s criminality is aggravated by his having voluntarily offered to drill their troops under [Page 454] General Ward, and received honor and commendation for his bravery and skill on many occasions. They entered into no stipulations with the United States authorities respecting his rights or position; and while they conveniently suppress all reference to the provocation he received, they see in it no justification for his turning traitor to the flag he served under, and joining their rebellious subjects. This offence was twice passed by, and he gave the consul general a solemn assurance that he would finally leave the country; otherwise he would have been tried for his life.

It appears to me that this fact of receiving official trusts and rewards from the Emperor does aggravate the offences of him who, to gratify a private pique, collects a band of foreigners and leads them off to fight his former masters. The report that the rebels at Suchau in 1864 suspected his fidelity to them is not improbable; but he seems to have thought it indifferent which side he took.

By leaving him in the hands of the Chinese his detention devolves on them until your reply is received, whether or not he has forfeited his claim for protection. I do not apprehend that he will be injured while in their hands, and when I proposed to pay the expenses of his imprisonment they declined to discuss the point. I insisted at first that the United States consul should see after his condition, but as they wished to remove him from the sea-coast, and had fears that such communications might afford an opportunity for escape or collusion, I agreed to their assurance of his safe-keeping.

I am under the strong impression that this man’s conduct has been a reproach to the fair name of all western nations; for all other foreigners, so far as I know, who commanded the imperialists, have acted honorably in this particular, leaving the service if they were dissatisfied, and not turning against it, I am mortified that an American should have held this bad position; and Burgevine thought that his own country would protect him, perhaps, and that his life was safe from judicial condemnation. If I am rightly informed, he once aided Walker in Central America, and was included in the sentence of outlawry.

I do not think that the Chinese government will quote this case as a precedent to refase the surrender of other prisoners who may be captured when aiding the rebels; for you will see from enclosures E, F and G, that three or four other Americans taken about the same time near Amoy have been given up to the consul, and the officials here have expressed themselves satisfied with deportation. But how can we secure that these men will not return to try again to join the rebels? The Chinese usually destroy their own subjects taken in arms, whose rebellion is often prolonged and energized by the aid and skill of foreigners. By yielding this prisoner to them, the example will deter others from trespassing so far on the rights of Americans as to stir up sedition, trusting to the want of witnesses and other legal proof to escape condemnation.

Cases have already occurred in China of aggravated manslaughter, and even of deliberate killing of the natives by foreigners, whose crimes have been punished by simple fines or mere deportation or short imprisonment; while foreigners strenuously insist en full justice when life is taken by the natives, or maiming with intent to kill. Such deeds are happily diminishing, as foreigners are learning that they cannot so easily escape justice, and the native officiais are becoming more willing to co-operate in maintaining peace. The difficulties of independent nationalities exercising collateral jurisdiction in the same region are likely to increase almost to a state of hostility, if the original native power feels that its rights and safety are continually jeopardized by the insufficient restraint of the foreign powers over their own subjects, who constantly plead their own laws and escape the consequences that overtake the natives for the same offence.

As this case involved some questions of general interest, I early consulted with Mr. Wade upon the propriety of this disposal of Burgevine, and found that his views coincided with my own as to the importance of assuring this government that in some way it should be secured against his further machinations, [Page 455] and that a reference of the case to Washington was, under the circumstances, the preferable course to take.

I have the honor to be, sir, your obedient servant,

S. WELLS WILLIAMS.

Hon. William H. Seward, Secretary of State, Washington, D. C.

[Enclosure A.]

Mr. Burlingame to Prince Kung.

Sir: On the 3d of May last I had the honor to inform yon that the United States consul general at Shanghai had reported his action in ordering General Burgevine to leave the country, and that he had already sailed, but, greatly to my surprise, I received a letter two days ago from the same officer, dated the 13th instant, in which he informs me that he had heard it reported that General Burgevine, in defiance of the laws of his country, had stealthily returned to China, acting most audaciously in so doing, but that he (the consul general) was using every effort to apprehend him and deal with him severely.

It certainly shows a reckless disregard of all honor and propriety for this man thus to steal back into the country after having left it as he did, and I have this day written to the consul general at Shanghai, urging him to adopt every possible means to have General Burgevine arrested and dealt with severely. It is for this purpose that I have made this communication; and have the honor to be, sir, your obedient servant,

ANSON BURLINGAME.

His Imperial Highness Prince Kung, &c.,&c.,

B.

[Translation.]

Prince Kung to Mr. Burlingame

Prince Kung, chief secretary for foreign affairs, herewith makes a communication in reply:

I have received your excellency’s despatch of the 23d instant, in which you inform me that General Burgevine, though he had been ordered to leave the country, had returned here in a stealthy manner, audaciously setting the laws of his country at defiance by so doing, but that you had at that moment sent instructions to the consul at Shanghai to take every measure to seize and punish him severely.

This man deserves the severest punishment by the laws of China for the injury he has done to her; and both your excellency and myself have repeatedly treated him with leniency, even beyond the limits of law, by ordering him to depart the country and never return to stir up confusion. Our consideration towards him has been great, but he has no sentiment of regret for his misdeeds, and this contemptuous disregard for the laws of his own country, in stealing back to China, shows bow Unmindful he is of the singular kindness we have both shown him. His offences are such that it will be nearly impossible for him again to escape a merited end.

As your excellency has already sent orders to the consul general at Shanghai to exert himself to seize and punish General Burgevine, so have I also issued injunctions to the local authorities at every port to immediately co-operate and do what they can speedily to seize him, which is the purpose of this communication in reply.

His Excellency Anson Burlingame, United States Minister.

C.

[Translation.]

Prince Kung to Mr. Williams

Prince Kung, chief secretary of state for foreign affairs, herewith makes a communication:

On the 13th instant a despatch was received from Li, the superintendent of commerce at Shanghai, enclosing the following report from Kwoh, acting commander-in-chief in Fuhkien:

“Mr. Stanley, a foreigner who is engaged in drilling the troops, while off the port of Amoy, on the 13th ultimo, happened to observe Burgevine and an Englishman named Kihling [Page 456] (Culling) on board of a schooner, and learned that they intended to go to Chang-chan-fu to join the rebels. He also ascertained afterwards that they had embarked for the city in a small boat, and stopped at a place called Chin-mun, about a league distant. Stanley thereupon sent a letter to the commissioner of customs at Amoy, who had himself just received a communication from the customs office in Formosa, stating that Burgevine had gone over to Amoy to join the rebels at Chang-chan, and he immediately despatched some of the foreign tide-waiters to go out in search of the two men. They were taken and carried prisoners to the camp of the commander-in-chief, and on being questioned by officers there, confessed that they intended to join the rebels, and so were sent on directly to his excellency Tso, the governor general of Fuhkien and Chehkiang, with the request that we would take the case in hand, execute Burgevine as a felon, justly obnoxious to the laws, and hand over the other man to his own consul for punishment.”

The above, and another report which has been received from Mr. Hart, the inspector general, having reached me, (Prince Kung,) I find that this man Burgevine has broken the laws a great many times and ways. He has struck our officers and robbed our money. In 1864 he skulked off to Su-chan to join the Taiping insurgents, and help them with arms and supplies, &c. He committed piracy by seizing a steamer with which to resist his Majesty’s forces. Now, for one who, like him, had taken an official salary from China, to voluntarily join the rebels was an act in violation of our laws, and it was a great disgrace to the fair fame of the United States also, and he well deserved to have been executed when he was arrested, or if he had been shot down by our troops it would have been no more than his crimes deserved. This was stated formerly in one of our despatches to Mr. Burlingame. But seeing that Colonel Gordon interceded for him at the time, and he himself expressed regret for his misdeeds and intended to reform, they were mildly inquired into, and I agreed with Mr. Burlingame to let him off from further inquiry, if he would leave China, never more to return. But in May, last year, it having been reported that Burgevine, utterly despising the laws of his own country, had stealthily returned to China, and proved in doing so that he had no regard for anything, Mr. Burlingame informed me that he had ordered the consul to seize and punish him, and I also enjoined our officers to take him wherever he could be found. He being set in his evil courses, has now tried to get into Amoy, and secretly join the insurgents in that region. His object from first to last is to injure China as much as he possibly can. He has neither respect nor dread of the laws and penalties of either his own country or of this, and is, as your excellency has truly observed, no longer to be regarded as an American who deserves to be protected.

While, therefore, the three criminals, Ward, Butler, and Carter, who were arrested at Chang-chan for aiding the rebels, shall be handed over to their consul, and the Englishman Culling will be delivered to the British consul, for the purpose of each of them being examined and punished as their cases deserve, Burgevine, who has been arrested as he was on his way to join the rebels, should be treated as before decided, and be now executed Such a course would please the minds of all, and deter other wicked men from similar conduct.

If hereafter other Americans should follow the same lawless course, and join the insurgents, I confidently trust that your excellency will give such orders to the United States consuls on the coast to exert themselves in assisting to arrest them as will strengthen the amicable relations now existing between our countries.

I shall expect a reply to this despatch.

His Excellency S. Wells Williams, United States Chargé d’Affaires.

[Enclosure D.]

Mr. Williams to Prince Kung.

Sir: I have the honor to acknowledge the receipt of your Highness’s despatch of the 16th instant, informing me that Burgevine, while on his way to join the insurgents at Changchan, had been seen by Stanley, and reported to the commissioner of customs at Amoy, who had immediately sent tide-waiters to search for him; and that they had arrested him and another foreigner, who had been given over to the charge of Kwoh, the commander-in-chief, and by him sent from the camp to the office of his excellency Tso, the governor general of Fuhkien and Chehkiang, to be immediately examined, requesting, at the same time, that he would carry out the law upon Burgevine in conformity to previous agreement, &c.

Since the receipt of your Highness’s despatch of June 27, 1864, in which you stated that you had also issued injunctions to the local authorities in every port to co-operate in trying to seize him, that he might be severely punished, I have heard no tidings of Burgevine until this time, when his arrest is reported in the present despatch.

He having now been arrested as a criminal, it is required by the eleventh article of the treaty that he should “be given up to the American consul, to be tried and punished; but when his repeated offences, and contemptuous disregard of the laws, both of the United States and China, are considered, all proving that he is reprobate to all good things, it is difficult to extenuate them.

[Page 457]

I therefore request your Highness to detain this man in confinement in the country a few months, while I refer his case to my own government for instructions, stipulating in the dis-tinctest manner that the officers in whose hands he is placed shall not injure or insult him in any way. In so doing, I will inform them of his whole conduct, especially that he has been in the service of the imperial government, but, by deserting and joining rebels in arms against it, he has lost his position, and forfeited all respect; and still more, by stealthily returning to China, the question arises whether his own authorities are bound any longer to protect him, and whether he should not be given up to be tried by Chinese laws.

As soon as I receive instructions how to dispose of this unusual case I will inform you; but this arrangement appears likely to uphold treaty stipulations, and, at the same time, afford security that the guilty shall not escape.

I have the honor to be, sir, your Highness’s obedient servant,

S. WELLS WILLIAMS.

His Imperial Highness Prince Kung, &c., &c., &c.

[Enclosure E.—Translation.]

Prince Kung to Mr. Burlingame.

Prince Kung, chief secretary of state for foreign affairs, herewith makes a communication:

I yesterday received a despatch from Li, the imperial commissioner and governor of Ki-ang-su, at Shanghai, which contained the following extract from the report of Tsang, the intendant of the Hinghwa and Tsiuenchau circuit, then in charge of the military operations at Amoy:

“I have lately captured an insurgent, named Sie Ying-lung, and three foreigners, whom I have fully examined, and now forward their depositions, requesting you to look at them and furnish me with instructions how to act.”

The governor then says: “I learn from the papers that one of these men named Hwarh (Ward) produced a passport which the American consul had furnished him, to go to Such an, in Kiangsu. They further state that this man is an American, and in company with others named Puh-ti-lih, (Butler,) and Koh-teh-lih, (Carter,) had gone to Changchan, (a city near Amoy,) for the purpose of selling foreign arms [to the insurgents.] It was affirmed that the last two were also Americans, and they all confessed that they had gone to Changchan to sell foreign arms. I therefore forward the whole case to you.”

I cannot but recall to mind the severe prohibitions existing against foreigners supplying rebels with arms, or assisting them at all, and that the same rule has long been embodied in the regulations for trade on the Yangtsz; and, furthermore, that in consequence of my reporting to your excellency that an American steamer had gone up to Nanking, in the winter of 1862, you replied, “The violation of treaty stipulations by this steamer is to be much regretted, and I shall carefully ascertain the facts, and punish her according to law. If others of my countrymen violate the rules and break the laws in this respect, I wish you to inform me at the time, and I will take due measures for their punishment.”

In a case like this, where traders violate the rules, there is no need of you and I issuing one order after another about it; so if Hwarh (Ward) and the others have had the audacity to avail themselves of a passport for Kiangsee to slyly go on to Fuhkien and sell their arms to rebels in actual insurrection, it is plain that they intended to break the treaty and all the prohibitions which you have issued.

The intendant of circuit Tsang examined them all in company with the two commissioners, Messrs. Meritens and Hughes, and there is no kind of doubt of the fact that these men did sell foreign arms to the rebels and assist them by so doing, and should, therefore, be pun-ished as the treaty requires, in order to deter others in future.

I have given directions to the local authorities to deal with the rebel Sie Ying-lung according to law, and now also inform your excellency of the circumstances connected with the charges against these three Americans of aiding rebels by selling them arms, to the end that you may send such instructions to the United States Consul Seward, to judge and punish them by American law, as are necessary. When the case is finished I wish you would inform me of the results.

His Excellency Anson Burlingame, United States Minister to Chima.

[Enclosure F.]

Mr. Burlingame to Prince Kung.

Sir: Last month I was informed by Mr. Seward, United States consul general, that the Chinese officers had seized some native rebels and foreigners who had been found illegally [Page 458] selling foreign arms to the people, and that the American consul at Amoy was about sending the foreigners to him to be tried before he had himself examined them.

I have now the honor to acknowledge the receipt of your despatch of yesterday, informing me of the arrest of the three Americans who were found selling arms to the rebels, and I shall direct the consul general to deal with them as the treaty requires, and punish them. As soon as I learn his action in the case, I shall inform your Highness of the same. I have the honor to be, sir, your Highness’s obedient servant,

ANSON BUKLINGAME.

His Imperial Highness Prince Kung, &c.,&c.,&c.,

[Enclosure G.]

Mr. Williams to Prince Kung.

[Extracts.]

Sir: Referring to his excellency Mr. Burlingame’s despatch of the 5th ultimo, informing you that he would take the earliest day after learning the particulars of the case of Ward and others, who had been charged with selling arms to the rebels, to acquaint you with what had been done, I now have the honor to inform your Imperial Highness that Mr. Seward, United States consul general at Shanghai, has sent me the following report:

“In March last three Americans were arrested near Amoy, whose names were Edward E. Ward, John W. Butler and John Carter, and on April 1st a fourth, named Hillman, all of whom were forwarded to me by Mr. Irwin, United States consul at Amoy, for trial. On the passage up from Amoy, Butler was wounded on board ship and died from the effects of the Wound at Ningpo. The other three on examination confessed that they had gone to Chang-chan, not to join the rebels, but only to help them as agents to purchase arms. They have all been straitly warned, and required to give bonds with sureties that they would leave the country, not again to come back, which they have done.”

In communicating this information of the proceedings taken respecting these three men, it is proper to observe, that from it your Highness will see that the United States consuls at the ports are exerting themselves as far as possible to aid in arresting and punishing criminals, and thereby preserve the peace.

I have the honor to be your Imperial Highness’s obedient servant,

S. WELLS WILLIAMS.

His Imperial Highness Prince Kung, &c.,&c.,&c.,