Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Fortieth Congress
Mr. Burlingame to Mr. Seward
Sir: I have the honor to forward a modification of the treaty respecting the penalty to be levied on the masters of merchant vessels for overpassing the allotted time of 48 hours after entering port without reporting their arrival.
The reasons for this will be found in enclosures A and B.
It is agreed between Prince Kung and myself, pending a reference to you, that the XlXth article of the treaty of Tientsin shall he understood to include hulks and storeships of every kind under the designation of merchant vessels; and shall be defined for this offence by the first sentence of article XXXVII of the British treaty, and the legal penalty to be inflicted on the master for neglecting to report his arrival within 48 hours shall be a fine of 50 taels for every day’s delay, but not to exceed in all the sum of 200 taels.
This modification is made known to United States citizens in China, in manner and form as set forth in enclosure C.
This change in the treaty puts no additional hardships upon commerce, but removes doubts as to construction, and prevents a violation of the spirit of the treaty.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D, C.
A.
Prince Kung to Mr. Burlingame
Prince Kung, chief secretary of state for foreign affairs, herewith makes a communication :
It is on record that the collector of the port of Canton informed the foreign office in the month of October, 1866, that the American sailing ship Tropic had entered that port, and that the consul had overpassed the limited time without reporting her to the customs. On learning this proceeding, instructions were given to Mr. Hart, the inspector general of customs, to learn the facts of the case, and he has now sent in the following report :
“I have received a despatch from the commissioner of customs at Canton, in which he states as follows :
“‘The foreign treaties all contain a provision that, when a merchant ship enters port, she is allowed 48 hours within which to report her arrival at the customs, and failing to do so, she subjects herself to a fine; but the treaty with the United States does not mention any fine, though the same limit is given for reporting the vessel. On the 19th of July, 1866, the American ship Tropic came up the river to Whampoa, but no notice having been given by the United States consul of her arrival for half a month afterwards, the collector sent a note to him inquiring about her. He replied that, as she was only a hulk, he did not deem it necessary to report her at the customs; to which the collector rejoined, that though she was a hulk, it was incumbent on the consul to report her just the same; and that, as she had overpassed the allotted time, she had subjected herself to a fine. The consul did not reply precisely whether or not he thought that she ought to be reported; but contended that, while the British treaty expressly mentioned the amount of the fine to be levied in such cases, the American treaty did not state any sum, and argued, further, that even if it should be decided that hulks should be reported the same as other vessels, this one could not, according to the American treaty, be fined for not doing so. During the month of August the statement of the United States consul of the circumstances connected with the Tropic coming into port, with the letters that passed between him and the collector, were all forwarded to Peking to the American minister, and to the foreign office, that the question might be discussed and settled between them.’
“In looking over this correspondence between the consul and collector, it appears that the discussion involves two points: one, whether hulks come properly under the regulation about reporting ships; and the other, whether an American ship that has failed to report her arrival within 48 hours should be fined the amount mentioned in the treaty with another country.
“As to the propriety of hulks reporting their arrival in port to the customs, it is enough to refer to the article XIX of the American treaty, in which it is stipulated: ‘Whenever a merchant vessel belonging to the United States shall cast anchor in either of the said ports, the supercargo, master, or consignee shall, within 48 hours, deposit the ship’s papers in the hands of the consul, who shall cause it to be communicated to the superintendent of customs,’ &c, &c. Now, the expression merchant vessel has a wide signification. It includes the greatest and smallest craft; those made of wood, and those made of iron; those with one, two, or three masts, whether called sailing vessels or steam vessels; whatever floats that is employed to convey merchandise or passengers, whether it goes and comes at certain intervals, or remains constantly at anchor within the limits of the port, storing goods in its hold, or affording accommodation as a residence. These are all properly termed shang chuen or merchant vessels, and the tun chuen or hulks are nowise different, and, like other merchant vessels, should be reported at the custom-house. Now, it is plain that this ship Tropic should have been reported by the consul the same as any other trader, for she was once a regular merchantman, which had afterwards been lying in Hong Kong as a receiving hulk, and had now come up to Whampoa to go into dock to be fitted up for freighting cargo.
“In regard to the other question, whether an American merchant vessel that is not reported at the customs should be fined according to the stipulations of another treaty, as, for instance, the British, it may be observed that, when a British vessel overpasses the prescribed limit without being reported, she is of course fined according to it. But let this question be looked at from another point of view. Although article XXXVII of the British treaty contains an express provision that a vessel that is not reported subjects herself to a fine, yet it might sometimes be excused if the reason for overpassing the stated time had been owing to the captain or consignee’s inability, or any other cause; but the delay in reporting this ship was entirely owing to the American consul erroneously concluding that it was needless to do so in the case of a hulk. It was, in fact, only at the end of August, after a long controversy on the subject, that he first reported her.
“Furthermore, supposing the Tropic had been a British ship, on this reasoning she could not have been fined even with the declaration in the British treaty of the amount of the fine; and of course still more so in the case of an American ship, judged by a provision in the British treaty. The whole argument would go to nullify the reason for fining any ship whatever. If the stipulation in this matter in the British treaty be taken as the test, and it be [Page 504] undetermined whether offending American vessels can be brought under it, the whole question under discussion becomes very difficult of decision. For if, when the treaty of one country states no definite sum, and the case can be decided only by the express declaration given in the treaty of another nation, it is not permitted to refer to that treaty, the point can only then be decided by general principles of international law.
“The treaty stipulations of one country refer only to the natives of that country, and are to be carried out by its particular officers. In article XL of the French treaty it is stipulated that whatever provisions in the treaties with other countries are not contained in the French treaty, shall yet be enjoyed by ail French subjects; and a similar favorable clause is also contained in the American treaty. Even if the principles of international law confirm the view, that an American vessel should be fined according to the stipulations of the British treaty, yet as both the French and American treaties contain clauses which give them its advantages, there seems to be no need of inquiring what decision international law would give in this question.
“It is known that every foreign treaty contains an express stipulation requiring the consignee of every merchant vessel on entering port to hand in a true manifest of her cargo, and that if she be detected in giving a false manifest, she subjects herself to a fine of 500 taels. But the American treaty, while stipulating that every American merchant vessel must hand ina true manifest, says nothing of the fine to be levied for infringing this requirement. The foreign office brought this point to the notice of the United States minister in 1863, and after a full examination of the subject he agreed to a modification, and sent instructions to all the United States consuls at the ports, making it a rule that whenever the consignee of any vessel, gave in a false manifest of her cargo, the vessel was subjected to a fine of 500 taels, according to the provisions of the British treaty. Now it would be well if this case of the Tropic could produce another like arrangement, and a rule be made that hereafter, whenever an American ship came into port, and overpassed the time for reporting herself, her offence should be brought under the same rule. A limit of two days for reporting at the customs causes no damage or hindrance to the merchants; and as a proviso in the treaty clearly stating it is desirable for carrying on business at the custom-house in a uniform manner at all the ports, I respectfully request the foreign office to communicate and consult on the subject with the American minister, and request him to issue a notice like the one he issued in 1863, to all the United States consuls at the ports, requiring them whenever a merchant vessel of any size or description enters a port, to report her arrival at the customs within the appointed time; and if it be overpassed without reporting, that then, although the American treaty does not mention any sum, she shall be fined according to the provisions of article XXXVII of the British treaty. A notice like this will make the practice uniform at all the custom-houses, and prevent all further controversy on this point. This present case of the Tropic, charging her with not having been reported within the specified time, resulted, in fact, partly from the unintentional mistake of the American consul, and partly from the remissness of the consignee in not reporting to him; it therefore need be no further discussed, nor the amount of the fine to be levied.”
On reading this report of the inspector general, I find it stated that in the year 1863, when the American traders were found on some occasions to have given in false manifests of cargo, that this office consulted with your excellency on the subject, and it was decided that in future such offences should be punished by fine according to article XXXVII of the English treaty, so that they need not be subject to any heavier mulct. It appears, too, that article XIX of the American treaty stipulates that a period of two days after entering the port is allowed every merchant vessel to report to the customs; and the phrase “merchant vessel” is a term of wide application, and includes hulks as well as all other sorts, and that when these last enter port they should be required to report within two days, as well as all others, under penalty of a fine. The American ship Tropic has committed the offence of not reporting within the appointed time, and as it appears from the inspector general’s report, in consequence of the neglect of the consul at Canton. It is not clear on what grounds the consul excuses this neglect, for his correspondence does not. agree with itself. It ought to be punished by the fine stated in article XXXVII of the British treaty, but as Mr. Hart explains the circumstances of the transaction, it may be overlooked, and no further discussion taken on it.
It is proper, however, to request your excellency, for the regulation of the American trade in China, to issue a notice similar to that made in 1863, to the merchants through their consular officers, directing that in all cases when an American merchant vessel of any description enters any port, that she must be reported at the customs within two days, under penalty of the fine stated in article XXXVII of the British treaty. A distinct rule of this sort will prevent a consul repeating the mistake of not reporting a vessel, and also prevent the merchants being involved in a mulct without any fault of their own, an advantage in fact, to both narions.
The adjudication of the offence of the consul at Canton in not reporting the vessel, is left entirely in your excellency’s hands.
His Excellency Anson Burlingame, United States Minister.