Mr. Williams to Mr. Seward
No. 35.]
Legation of the United States,
Peking,
June 12, 1866.
Sir: I have the honor to acknowledge the
receipt of several despatches, Nos. 23 to 28 inclusive, from the
department. The first one, referring to measures to be undertaken in
co-operation with the British minister, by the naval forces of the
United States and Great Britain, has been communicated to Sir R. Alcock.
You will have seen from enclosure 3, in my despatch No. 32, that the
Chinese government is beginning to move in the matter; but there is a
great want of small vessels suitable for chasing the pirates over
shallow waters into their retreats, without which they frequently
escape.
I have now the honor to send you a correspondence relating to a case
involving the improper use of the American flag on the Yangtsi-kiang,
which presents several features illustrative of the practical working of
the exterritoriality laws under which we live. The correspondence marked
A to I contains all the important papers, and I respectfully commend
them to your perusal in limine, explanatory of a
few remarks showing the bearing of the case.
There are two disadvantages, it may be premised, connected with the
discussion and settlement of such cases in this country; one is, the
difficulty of [Page 520] obtaining
accurate information; the other, the length of time consumed in
corresponding with officials at the ports. It is now exactly ten months
since the junk was detained at Hankau, and I am only just now able to
prepare the papers to send to you. Meanwhile Mr. White, the principal
witness and person interested in it, has gone, and the evidence on both
sides is very imperfect, as there has been no trial or examination. The
necessity of obtaining minute information in order to rebut the
misstatements of Chinese officials, who are apparently never at loss for
facts to uphold their proceedings, is particularly important; and if
months are spent in obtaining the facts of the case, the moral effects
of a decision are weakened. It is not unlike the labor of Sisyphus to
teach the native authorities a high regard for treaty stipulations, and
their ignorance and disregard of precedents as to their working are
alike discouraging.
In this instance Mr. White seems to have had no idea that it was against
the laws of his own country to furnish a flag to a Chinese boat under
the plea of acting as an agent in chartering such boat from her native
owners for other native traders to carry native produce on the Great
river. Nor does Mr. Salter seem to have been aware of the impropriety of
the thing, when the case came before him, and that he could give no
legal protection to the agent, while the present incumbent, Mr. Bridges,
pleads time and custom in defence of the practice. And no doubt, in the
circumstances, a good deal can be urged on their side.
It was this impression of the lawfulness of this system of “selling
flags,” as the Chinese term it, that I suppose led to the suppression of
the fact in the first report to me (enclosures A, B) that the junk was
not really American property, and that the fine was paid by the native
owner, through Mr. White. Not knowing these facts, I strongly urged the
immediate repayment of the money, in the belief that there had been a
flagrant violation of the treaty, though Mr. White’s offer to pay a fine
of 100 taels to release the boat might have excited a doubt. I can only
explain this ill-judged and arbitary act of the intendant by supposing
that the owners, having refused to pay the fee for his connivance, he
determined to show that they were not beyond his reach; or that the fine
was exacted to revenge a private pique of him or his friends. He issued
a notice to the tradesmen of Hankau some time in December last,
forbidding the use of foreign flags by native-owned boats, but I have
not learned whether it has checked the business.
I think that the intendant was practically right in his argument to Mr.
Salter; that, as Mr. White had been selling the American flag, he had no
claim for damages for what was in itself illegal; but, apparently out of
mere wilfulness he took the worst possible way of upholding it,
misquoted the treaty and river regulations, and disregarded the official
position of the consul, when a candid statement of the case or a
reference to Peking would have strengthened his position. He seems to
have been alarmed at his own conduct, however, as it was not until he
had received instructions from his superiors, in December, that he
issued his prohibition, mean while permitting the practice togo on.
This case shows how easily usages and malpractices, more or less opposed
to the treaties, can grow to be of almost equal authority, until they
are exposed and, checked, and how both natives and foreigners quote the
connivance or dereliction of magistrates in extenuation of their acts.
My despatch, No. 32, relating to steamers navigating the inner waters of
China is ad rem, and a reference to Mr. Parker’s
published despatches, pages 681, 774, 778, 787, &c., will furnish
further particulars respecting a similar misuse of the American flag ten
years ago.
A short note has been received in reply to my last, (enclosure I,) in
which Prince Kung repeats the reasons stated in enclosure H for not
refunding the 400 taels; but I think the discussion has shown the
members of the foreign office the evil effects of a course of conduct
such as the intendant has exhibited, even in pursuing a right end. It
might, à priori, be supposed that many
conflicting views would arise between native and foreign authorities in
China as to the limits [Page 521] of
their jurisdiction; and that the former would be jealous of their
position, formerly so unquestioned in the eyes of their own subjects;
but on the whole, fewer disagreements have arisen, and all questions are
discussed in a better spirit than might have been expected.
I have the honor to be, sir, your obedient servant,
S. WELLS WILLIAMS, Chargé
d’Affaires,
Hon. William H. Seward, Secretary of State, Washington, D. C.
A.
Mr. Bridges to Mr. Williams
Consulate of the United
States, Hankau,
October 23, 1865.
Sir: I was left in charge of the consulate
August 22, and it therefore devolves on me to lay before you the
following enclosures, marked A to H, which will give you the
particulars and circumstances of a heavy fine imposed by the customs
upon Mr. H. E. White, an American merchant at this port, in
consequence of one of the crew of his junk having attempted to
smuggle on board a small quantity of straw rope, the export and
coast trade duties on which would be less than half a tael.
I cannot find anything in the treaties or river regulations,
sanctioned by the minister, which empowers the intendant of circuit,
acting as superintendent of the foreign customs, to inflict such
fine, or do more than confiscate the smuggled cargo; and should you
have a similar view, I beg you will take measures for the recovery
of the fine of 400 taels, which Mr. White paid under protest, in
order that he might be able to despatch the junk for her
destination.
I should have addressed you on the subject before, but have been
waiting to obtain a promised translation from the customs
interpreter of the tantai’s reply to Mr. Salter, but have been
obliged to put up with an inferio: interpretation. Regarding the
expressions in Mr. Salter’s letter, to which the tautai makes
objection in such strong language, I beg to say, you will be the
best judge as to the correctness of the translation, and also as to
the apparent discourtesy of the latter’s remarks to the consul. If
the translation of the latter despatch is not correct, it arises
from the unfortunate want of proper American consular officers at
this port.
The proceedings of the tautai in this matter are in accordance with
his usual high-handed measures.
I have the honor to be, sir, very respectfully, your obedient
servant,
H. G. BRIDGES, Acting United States
Vice-Consul.
S. Wells Williams, Esq., United States Charge d’Affaires
B.
Affidavit of H. E. White, at
Hankau.
Personally appeared before me, H. G. Brieges, acting United States
vice-consul for the port of Hankau, Mr. H. E. White, and having
taken oath, said that: On the 12th instant I cleared, from the
office of customs and United States consulate at this port, the
American chartered junk W. No. 258. On the 13th (said junk having
been detained in port by the stress of weather, &c.,) the
customs officers in charge of Hanyang branch of the Hankau customs
discovered one of her crew attempting to smuggle on board of her 200
coils of straw rope, weighing about three piculs, and in value about
6,500 copper cash. The customs officers referred to above, having
reported the matter at the Hankau custom-house, a customs officer
from there was immediately ordered to go and remain on board of the
said junk. Early on the morning of the 14th I called on the
commissioner of customs and requested him to seize and confiscate
the straw rope, and offered to deliver up the Chinese sailor who had
attempted to smuggle the same on board of the said junk at any time
when he thought proper to apply for him. On the 15th, by order of
the commissioner of customs, the said junk was thoroughly searched,
but no cargo in excess of the amount specified in her manifest was
found on [Page 522] board of her. On
the 19th the commissioner of customs informed me that his excellency
the tautai, (or intendant,) acting as superintendent of trade at
this port, considered that in lieu of confiscating the junk and her
cargo, he was acting leniently in fining the junk 500 taels. I told
him that I did not admit that the intendant was right in
confiscating a vessel’s cargo as a penalty for a transgression of
the customs regulations committed by one of her crew. He then wrote
another despatch, a translation of which was to be forwarded to the
intendant. His despatch was read to me, and was to the effect that,
as the amount of rope which the Chinese sailor attempted to smuggle
was small, and that as the imperial revenue would have been
defrauded of only about taels 0.2.5, he was of the opinion that the
infliction of a fine of 100 taels would be quite sufficient. On the
21st the commissioner of customs informed me that he had received
from the intendant, as superintendant of trade, another despatch,
wherein he was instructed to enforce a fine of 400 taels in the case
of the junk W. No. 258, in lieu of confiscating the whole of her
cargo, to which he considered himself entitled. This fine I paid
under protest, and the said junk left this port on the 22d instant,
after having suffered from a detention of eight days.
Sworn to and subscribed before me, H. G.
Bridges, acting United States vice-consul for
Hankau, this 24th day of August,
1865.
H. G. BRIDGES, United States
Vice-Consul.
C.
Mr. Williams to Prince Kung
Legation of the United
States, Peking,
November 27, 1865.
Sir: The United States vice-consul at
Hankau has sent the following report to this legation:
“Mr. White, an American citizen, appeared at this consulate some time
in the month of August, and stated that Ching, the intendant of
circuit, had seized and detained his native-built boat, and fined
him 400 taels in the most violent and unjust manner; but as the
vessel was on the point of sailing he had paid the money under
protest, and came now to have the case justly tried.
“It appeared that this native craft had already obtained her
clearance, and was soon to leave, when one of the Chinese sailors
smuggled a lot of grass-rope, worth about four taels, on board. The
master of the boat himself reported the affair to the custom-house,
and told the officers that this sailor’s offence was a very trifling
one, and he wished them to confiscate the goods. But on the
contrary, to his surprise, the collector, without consulting the
consul or regarding the circumstances, imposed a most exorbitant
fine for the offence, which he, however, paid under the most solemn
protest. I desired that the case should be judged in an equitable
manner, but the intendant has refused to listen to my proposal, and
I therefore report it for your action.”
From the above statement it is evident that the intendant, in quoting
that portion of the fourteenth article of the American treaty, which
refers to confiscating vessels detected in smuggling without any
protection from their own authorities, has overlooked the point that
it refers to vessels entering an unopened port in China, and has
nothing to do with vessels in a legal port. In the latter case,
goods alone can be confiscated, and a fine imposed by the consul
after due inquiry, but the vessel cannot be involved in the
punishment.
It is also stipulated in article eleven that in cases of litigation
or complaint the United States consul must be notified, and he will
examine into the circumstances and decide on the amount of fine or
punishment. The intendant at Hankau cannot be allowed to quote a
part of article fourteen in this partial manner to uphold his
proceedings; and still more, he cannot be permitted to violate
article eleven in so glaring a manner, and levy a fine of his own
accord on an American citizen. He most plainly has broken two
articles of the treaty; and I have therefore, in informing your
highness of the case, to request that you will order this official
to pay back the 400 taels to Mr. White, and afterwards refer the
case to the United States consul for adjudication.
I have the honor to be, sir, your highness’s obedient servant,
His Imperial Highness Prince Kung, &c., &c., &c.
D.
[Translation.]
Prince Kung to Mr. Williams
Prince Kung, chief secretary of state for
foreign affairs, herewith replies respecting the case of Mr. White,
of the Pau-ki hong, an American, who had reported to the United
States consul that the intendant of circuit at Hankau had unjustly
detained a native boat. Your [Page 523] excellency’s despatch was received in November last, stating that
as this officer had fined Mr. White 400 taels in an arbitrary
manner, and had perverted the meaning of article fourteen of the
treaty to uphold his proceedings and unjust exactions, you requested
that he be directed to pay back the fine, and then refer the case to
the United States consul for adjudication. No delay was allowed in
writing to the superintendent of commerce and the governor general
of Hukwang to learn the facts of the case; and the following answer
has been received from the former:
“All the details of this case had been secretly inquired into, and it
was ascertained that the cargo in this vessel really belonged to
native merchants, for whom a man named Kau-Wan-snun had bought a
foreign flag. This person was cited to appear before the magistrate,
and affirmed that he had opened a shipping and brokerage office in
Hankau. In July last some merchants from Tungchau, belonging to the
firm Tsiun-mei, had sent their partner, Yu Pu-ting, to him to
charter a vessel; he had hired the boat called Mau-kiang-hung, and
when it came, further recommended that he should go to Mr. White’s
office and buy a foreign flag for the sum of forty-five taels to put
on her. The cargo was then passed through the customs and the
regular tariff duties paid on it, when unluckily one of the crew
tried to smuggle some straw-rope on a Sunday; happily, it was seen
and seized, and a fine of 400 taels inflicted, which sum, as the
real owners were not in Hankau, was advanced by their agent, Yu
Pu-ting. The deponent says he will never again dare to buy a foreign
flag. The intendant obtained a written assurance while Kau-Wan-shun
was in custody, to which the partners of the large firm,
Hu-tung-hing, in Hankau, were sureties, that nothing more of the
kind should take place.”
On reading the above report, it appears to me quite plain that the
native merchant, Kau-Wan-shun, had opened an office at Hankau as a
shipping agent; he chartered a boat for the firm Tsiun-mei to take
their goods away, and presumed to apply to Mr. White for a foreign
flag for a consideration, foolishly hoping thereby to evade the full
payment of duties. But the intendant discovered the plan and
arrested the parties, and Kau-Wan-shun confessed, on examination,
that he had given a bribe to get a foreign flag for this vessel,
whose cargo all belonged to native merchants, and whose crew were
all Chinese. By the laws of his country his crime is very heinous,
and the decision of the intendant to compound his punishment for a
fine of 400 taels may be considered as rather lenient. Furthermore,
this action was quite in accordance with the spirit and intent of
article fourteen of the American treaty, concerning smuggling and
evasion of duties, which allows Chinese officers to manage and
adjudicate such cases. However, for the United States consul not
only to overlook the act of Mr. White in secretly selling the
American flag and pass it by without punishment, but even to try to
screen the man Kau-Wan-shun, and turn around and charge the
intendant with arbitrary and unjust exaction on himself levying this
fine, is totally opposed to the spirit of the treaty, which does not
permit an American official to collude with and screen his
fellow-citizens, much less to shield one who had sold his national
flag, and then attempt to defend the Chinese who had bought it. The
superintendent of commerce has learned all the facts respecting this
case, and has approved of the fine; it is one that wholly comes
within the jurisdiction of Chinese officers, and is levied on their
own subjects, and may, therefore, be regarded as finally closed. The
investigation of Mr. White’s offence in selling the flag, and the
punishment proper to be meted in order to promote justice and order,
falls entirely within your excellency’s jurisdiction.
January 4, 1866,
(Tung-chi 4th year, 11th moon, 18th
day.)
His Excellency S. Wells Williams, United States Chargé d’Affairs.
Mr. Williams to Mr. Bridges
E.
Legation of the United
States, Peking,
January 16, 1866.
Sir: I beg to acknowledge your despatch of
October 23, 1865, and its enclosures, relating to the case of the
chartered junk W. No. 258, which was fined 400 taels, in August, for
smuggling some straw-rope on board after receiving her clearance. I
wish that you had procured a translation to be made of the in
tendant’s reply to Consul Salter’s despatch, for then you could have
informed me with respect to the allegation made therein as to Mr.
White’s selling the protection of the American flag, which
constituted the real reason for the fine. A want of translators is,
however, I am well aware, one of the disabilities which the United
States consulates in China labor under, and you were probably not
aware of this important feature in the case.
I brought this matter before the Chinese government in November, just
as you reported it, and have since received the enclosed answer
which, I suppose, contains all that the intendant of circuit has to
say on his side. I have had a long discussion with the members of
the Foreign Office, who do not defend his conduct in all respects.
They see the incongruity of such [Page 524] a fine for so light an offence, and
acknowledge that he virtually consented to the illegal use of the
American flag by allowing the boat to depart under those colors,
instead of compelling her to resume her real character. But as I had
no counter evidence to bring forward against their assertion that
Mr. White did sell the protection of the flag for forty-five taels,
I could do no otherwise than allow it in argument; but I wish you to
sift the matter thoroughly, for if he did, he has made himself
amenable to your consular court for infringing the regulations
concerning chartering native vessels; if he did not, and the flag
was legitimately used, send me copies of the documents proving
it.
This despatch is sent you through the Foreign Office, with one to the
intendant, and I wish you to investigate the case with him. He can
confiscate goods detected in the act of smuggling, but he cannot
impose a fine on an American citizen except through the judicial
action of the consul. If the intendant thought that the flag was
illegally used he could have detained the vessel until the charge
was examined, and withdrawn her charter if proved; nor would I
complain at any fine or confiscation, for the matter would then
pertain entirely to the Chinese authorities. The American flag may
not be used to aid natives in evading their own laws.
I proposed to the officers here that the 400 taels should be
deposited in court till the cause was decided, and you will try to
have this done; and, on ascertaining all the facts, settle the
matter according to treaty and law.
I am, respectfully, yours, obediently,
H. G. Bridges, Esq., United States Vice-Consul.
P. S.—Since the above was written, I have learned some
particulars which go to show that Mr. White has been engaged in
selling the protection of the American flag to Chinese vessels.
If you had any knowledge that such was the case, he ought to
have been long ago cited to answer for his conduct. It may be a
matter of some difficulty to settle this case, seeing that the
wrong has been done, and the parties, perhaps, gone away. You
can inform the intendant that if he had at first told Consul
Salters all the truth about this boat, there would have been
less difficulty in punishing the guilty parties. Yet he cannot
be allowed to act arbitrarily even in the pursuit of a right
end, and doubtless would prefer to act in concert with the
consul if he was assured that the offenders would not escape. I
have confidence that you will do what is possible to bring this
about.
S. W. W.
F.
Mr. Bridges to Mr. Williams
United States Consulate,
Hankau,
March 21, 1866.
Sir: I am in receipt of your communication
of January 16, with reference to the fine of 400 taels imposed by
the tautai upon Mr. White, and note your request that I should sift
the matter thoroughly with a view to ascertain if he did sell the
American flag for forty-five taels. Mr. White had closed his
business and left this port a month before the receipt of your
despatch I am, therefore, unable to make any further inquiries into
the case.
In the postscript of your despatch, you write that you had “learned
some particulars which go to show that Mr. White has been engaged in
selling the protection of the American flag to Chinese vessels;” and
further remark, “if you had any knowledge that such was the case, he
ought to have been cited long ago to answer for his conduct.” In
reply, I have to say that I was not aware that he sold the American
flag, and that I never received any complaint from the authorities
of Mr. White carrying on a business of this kind. He may or may not
have been wholly or partly interested in the different junks he
despatched from this port, but as long as he appeared as the
charterer of the craft and shipper of the cargo it was incumbent on
the consul to apply for her customs papers, and give a consular
clearance; and I respectfully submit that the consul was in no way
bound to make unusual inquiries.
I believe that there are, at the present moment, many sea-going
vessels on the coast, trading under the flags of different nations,
which belong wholly to Chinese. During the late war in America many
American vessels sailed under English, French, and other colors, and
I presume this was an exact case of “selling flags;” but I have
never heard that any consular or other authority considered it his
duty to assiduously endeavor to ascertain the true ownership in such
cases.
On the Yaugtsi river the following circumstances have existed: During
the past four years numbers of native-owned junks have been
despatched from Hankau under American, English, and French papers,
(the greater number under the latter nationality,) with the
undoubted knowledge of the native authorities, who were only too
glad while Nanking was in possession of the rebels to foster the
native traffic by protection afforded in this way to native craft.
The authorities had given tacit consent to this system, and never
expressed any disapprobation [Page 525] of it until recently, and subsequently to the fine imposed on Mr.
White; and in proof of this, I would refer to the fact noticed by
yourself in your despatch, that the intendant allowed the junk W.
No. 258 to clear under the American flag as soon as the fine was
paid, though believing, as he asserts, that the boat and cargo were
native property; and furthermore, he did not request me to make
close examination into future applications for papers, with the view
to prevent the clearance of junks that might not be bona fide American property. After payment of
the fine, Mr. White cleared at the customs ten other junks without
remark from the native authorities. Time and custom had made the
practice so familiar that the tantai never made an objection to it,
until one was required as an argument in reply to Consul Salter’s
letter.
I cannot speak from any knowledge, but I think it is probable that
Mr. White was not the bona fide owner or
charterer of the numerous junks he despatched from this to his
American agent in Chin-kiang; but he may have teen part owner, or,
perhaps, only received a commission for the management of the
business. Premising, for argument, that Mr. White was only the
agent, the tantai’s conduct seems equally reprehensible, and the
precedent equally dangerous. If he chose to allow Chinese subjects
to protect their junks with an American flag the craft is subject to
the jurisdiction of the United States, and he cannot arbitrarily
fine the nominal owner, who is an American citizen. Shall the junk
have the advantage of flying the American flag without being subject
to the government of that country?
As Mr. White is not here I am unable to gain any information to the
statements made by the Foreign Office. We are simply in possession
of the fact that it was not any supposed Chinese owner of the junk
or cargo who was ordered to pay money; but that Mr. White, who
appeared before this consulate as the owner of the junk, was fined
by the customs 400 taels for a petty case of smuggling by one of the
crew, in evident disregard of treaty rights; and the Foreign Office
write you that the superintendent of commerce has approved of the
fine, and that it is one that comes wholly within the jurisdiction
of the Chinese officers. It seems to me that if an exercise of
arbitrary power like this is to be permitted, there is an excellent
precedent for the customs to fine or extort money at their will from
any American citizen, and that the judicial power of the consuls
over their citizens has passed partially into the hands of the
native authorities, and may eventually be lost altogether, and we
may consider this part of our treaty rights almost a dead
letter.
Considering the importance of the principle involved, I entertain
strong hopes that you will get the fine refunded, otherwise the
customs are likely to fine American boats and steamers at their
pleasure. In proof of this I would remind you that about two years
since the British steamer Express was fined fifty taels by the
customs in consequence of her river pass having been forgotten.
Mr. White has left power in the hands of a friend at Hankau to
receive the 400 taels when refunded.
I have the honor to be, sir, very respectfully, your obedient
servant,
H. G. BRIDGES, Acting United States
Consul.
S. Wells Williams, Esq., United States Chargé d’Affaires.
G.
Mr. Williams to Mr. Bridges
Legation of the United
States, Peking,
May 26, 1866.
Sir: I have to acknowledge the receipt of
your reply of March 21, respecting the claim of Mr. White, whose
previous departure from Hankau had prevented the affair of the junk
W. No. 258 from being investigated. This I regret the more as I am
obliged now to take the account of the Chinese authorities as the
true one, which shows that he had no interest in the vessel or her
cargo, whose native owners really paid the fine. If I had had the
same reason for believing it when I received your first
communication of October 23, 1865, I should not have been led into
the mistake of urging upon the Foreign Office the repayment of the
400 taels, under the idea that Mr. White had himself paid it, which
I fairly inferred from his affidavit.
The whole transaction has grown out of the irregular business which
he was engaged in—that of furnishing the American flag to cover
Chinese property; and as you seem to be unaware what has been done
in reference to this subject, I enclose a copy of a circular notice,
issued by Mr. Parker in 1856 to United States cousuls in China,
which will explain the view taken by the legation of this business.
(See correspondence of Mr. Parker, page 774, for this notice.)
Your reference to the transfer of American ships to English or French
flags during the late civil war is not to the point, nor the same
thing as the transfer of the American flag to a foreign vessel, for
the laws of England of France may differ from our own, and were (it
is [Page 526] to be inferred)
observed by those who took their flags; not, like the Chinese
traders, to protect themselves against their own rulers, but to
elude rebel cruisers. Moreover, Congress has just passed a law
prohibiting all American vessels which had thus been transferred to
foreign flags ever recovering their own flag, thus showing that the
proceeding was not altogether approved.
You remark, when defending Mr. White’s proceedings, and inculpating
the intendant, that “Time and custom had made the practice of
sailing Chinese vessels under the American flag along the Great
river so familiar, that the intendant never made any objection to it
until one was required as an argument to reply to Dr. Salter’s
letter. * * * If the intendant chooses to allow Chinese subjects to
protect their junks with an American flag, the craft is subject to
the jurisdiction of the United States, and he cannot arbitrarily
fine the nominal owner, who is an American citizen. Shall the junk
have the advantage of flying the American flag without being subject
to the government of that country?”
This question shows very clearly the erroneous ideas entertained
respecting this business, which is indefensible in every way. The
intendant, it seems, had no right to allow Chinese traders to
protect their junks with the American or any other foreign flag; and
the United States statutes, especially the law of December 31, 1792,
still in force, would have shown Dr. Salter that he was required to
ascertain the character of a vessel before permitting her to carry
the American flag. It matters not how many other nations permit it,
the laws of the United States do not permit a consul to furnish this
flag to foreign-owned and foreign-manned craft of any nation, nor
knowingly to clear such a vessel at the custom-house.
I am not called upon to defend the arbitrary acts of the intendant;
nor do I fear that, if such acts as the one now under discussion are
permitted, the judicial power of the consuls over their countrymen
will pass into the hands of the native authorities, as you suggest;
for if the business itself is not lawful, either by Chinese or
American law, no tacit or open permission can make it right. Though
I am of the opinion that the American flag on the junk gave her no
protection against either fine or confiscation from the local
authorities, I now rather wish to show that when our citizens
violate the laws of their own country they cannot expect protection
or redress, whatever time or custom may have done to render the
practice common. Neither can the American consular or other officers
exert their influence to recover a fine for a native levied by his
own officials for this offence.
Mr. White should have been fined for furnishing the American flag;
for it did not make his act right because the intendant winked at
it, but it placed the consul in a wrong position, and of course
weakened his influence. If he had really owned the junk, he could
carry the flag according to the terms of the sea-letter, and load
her with any freight; but that is another question. The evils
connected with the illegal use of our own flag in Chinese inland
waters are greater, both to our citizens and the natives, than the
advantages, aside from the question of legality; and now that the
Yangtsi is becoming more peaceful, even the necessity that has led
natives to seek the protection of a foreign flag against the
exactions of their own rulers or the depredations of pirates will, I
hope, still more diminish.
I wish you to furnish me with whatever data you can obtain respecting
the extent of this business on the Yangtsi river; and to inform Mr.
White that no further steps will be taken to get the fine refunded,
which, I infer from the evidence, he never paid.
I am, sir, your obedient servant,
H. G. Bridges, Esq., Acting United States Vice-Consul.
H.
[Translation.]
Prince Kung to Mr. Williams
April 20, 1866,
(Tungchi, 5th year, 3d moon, 6th day.)
Prince Kung, chief secretary of state for
foreign affairs, herewith makes a communication respecting the case
of Mr. White, of the Pau-ki hong, who complained against the
intendant at Hankau for unjustly detaining his native boat:
When your excellency came to the Foreign Office to discuss this case
and maintain the principle that whenever a foreigner was involved in
a matter, as in the present instance, the intendant was bound to
confer with the consul, and could not of his own accord decide the
case and levy a fine as he pleased, you remarked that if the fine
was levied because Mr. White had smuggled some straw rope, and of
this article only a very little, which ostensibly belonged to him,
it was entirely unjust to levy a fine of 400 taels. Furthermore, as
you had learned that this money was paid by White, and not by
Chinese traders, it was desirable, for the sake of justice, that
orders be sent again to Hankau to examine and decide it according to
law.
Such directions were accordingly sent to Li, the superintendent of
trade, and to Kuan-whan, governor general at Wu-chaug, to
investigate this matter in detail, and report; and on the 12th
instant I received the following reply from the former:
[Page 527]
“I have already examined into this case most thoroughly. The man who
bought the foreign flag was a Chinese merchant, and he who paid the
fine was a Chinese; it was a Chinese official, too, who judged this
offence against our laws, one with which the foreign merchant had no
concern. The straw rope smuggled on board was also the property of a
native. In short, the whole affair affected our people alone; and
the shopkeepers Kau-Wan-Shun, and others, willingly paid all the
fines, and thus settled the case.”
From the above report it plainly appears that the incident of
smuggling some straw rope, which belonged to a native trader, was
not the reason for inflicting a fine; that was done because native
merchants had violated a law of the land in buying a foreign flag,
and these native merchants, Kau Wan-Shun, Yu Puting, and others,
themselves paid the money. The transaction is one that the foreigner
had no interest in; and as the intendant at Hankau has already
settled it judicially I content myself with ordering him to leave
the American merchant White, who sold the flag, and the United
States consul, who allowed him to do it, to such action as your
excellency may deem proper, and have no more discussion with
them.
His Excellency S. Wells Williams, United States Chargé d’Affaires.
I.
Mr. Williams to Prince
Kung,
Legation of the United
States, Peking,
April 25, 1866.
Sir: I have the honor to acknowledge your
highness’s despatch [of January 4] relating to the petition of Mr.
White against the proceedings of the intendant at Hankau in
detaining his native boat; and that [of April 20 ] stating that it
was on account of the boat having bought a foreign flag. I made
inquiry of the United States consul at Hankau respecting the
circumstances, and have recently received the following report:
“It is totally unjust to charge a native merchant with violating the
law when he puts goods on board a vessel flying a foreign flag; for,
during the last three or four years, native boats, bearing the
American, English, and French flags, have been conveying large
quantities of goods out of the river. The rebels at Nanking and the
pirates on the Yangtsi were afraid to meddle with such boats, and as
the practice was not at all to defraud the revenue in any way, it
was not forbidden. When the intendant detained White’s boat and
fined it, he never said it was done because she carried a foreign
flag; and he allowed White afterwards to clear ten more boats under
the same flag. Many hundreds of native vessels have cleared hence
carrying foreign flags during these years, and none of them were
fined or prohibited. Why, then, should this single one be mulcted so
large a sum as 400 taels? Some months after it was done, an order
was issued prohibiting the sale of foreign flags to native boats,
since which date none have been furnished by White to any
native.”
It is apparent from the above statement that the reports made of this
case do not altogether agree. When the boat had bought a foreign
flag, as the intendant affirms, why did he not refuse her clearance;
and if he fined her for smuggling, why did he not first communicate
with the consul, and not himself violate the rules which were
established August 12, 1864, respecting the mode of procedure in
cases of confiscation?
Furthermore, to inflict a fine of 400 taels upon a boat for smuggling
some straw rope, and then turn around and allege that it was c one
for something else, is unjust. If the boat and cargo and owners were
all Chinese, why not say so, and not implicate an American merchant
in the matter?
The 14th article of the treaty, which your highness quotes, as
allowing Chinese officials to confiscate vessels detected in
smuggling and defrauding the revenue, refers only to vessels going
into ports that are not open to trade, and cannot be applied to
vessels that may be detected in smuggling at legal ports; nor can it
be adduced in the present instance as upholding the proceedings of
the intendant in fining the boat so much for so slight an act.
I have an earnest desire to settle this affair equitably, and the
government of the United States wishes to respect the laws of China;
but it is altogether wrong to allege that a law was violated in this
case by selling a flag to the boat, and then to charge the United
States consul with having falsified his statement of the
circumstances. Such things will soon destroy all cordial feeling
between our countries.
It is impossible to regard this case as settled, and unnecessary to
discuss it again, because the officers at Hankau assert it; and I
have therefore again to request your highness to require the
intendant at Hankau to pay back the 400 taels to the consul and
arrange the settlement of the case with him. This will accord with
the requirements of honor and equity.
I have the honor to be, sir, your highness’s obedient servant,
His Imperial Highness Prince Kung, &c., &c., &c
