Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session of the Fortieth Congress
Mr. Williams to Mr. Seward
Sir: I have the honor to submit for your consideration a correspondence with his excellency Baron Rehfues, the minister of the North German Confederation to China, growing out of the limited powers conferred upon the German mercantile consular agents in China, which prevents them from deciding cases brought into their courts. The case occurred at Tientsin, and was brought up by the United States vice-consul there to test the question of equality of powers by the consular authorities of the two countries. I respectfully commend it to your attention.
[Page 560]On receiving Baron Rehfues’s dispatch, (inclosure A,) I directed Mr. Meadows (inclosure B) to try the case, “Talee vs. Manchu,” on the ground that the jurisprudence of one nation could not be made amenable to the ideas or rules of another nation, and so informed the former, (inclosure C.) I, however, availed myself of the reply to explain my reasons for disapproving of the restrictions laid upon the jurisdiction of the German mercantile consular agents, and to show the inconveniences practically resulting therefrom.
The other letters, (inclosures D, E,) besides further explaining the case, refer to a question of consular usage, upon which I request your decision. It is the custom in the Prussian and British consular services, and seems to be also in that of other European nations, that when a mercantile consul fails in business, he must immediately demit his official functions, or if he omits to do so, he is presently superseded. I can find nothing that bears upon this point in the Consular Regulations, and should be glad to learn what is the custom in this particular in the United States service, for it frequently happens in China that merchants are the only persons who can be got to fill those consulates which are not salaried.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
A.
Baron Rehfues to Mr. Williams
Monsieur le Chargé d’affaires: I have the honor to send you herewith a copy of the judgment that the vice-consul of the United States at Tientsin gave on the 8th of this month, in the case of the bark Talee against the steamer Manchu, the reason of which is wholly opposed to all the principles of civil and international justice. Mr. Meadows says in his judgment, that American subjects and those of the North German Confederation are not on a footing of perfect equality, because the Prussian consul is not authorized to give judgment in a similar case; and that consequently it was his intention not to admit the plaints of the subjects of the North German Confederation against American subjects.
It is not necessary for me to explain to you, sir, that Mr. Meadows has acted in this decision on the totally erroneous supposition that Americans and others cannot find any basis before the Prussian consulate, in relation to the reclamations which they may wish to bring there against Germans. This supposition is wholly false.
Doubtless there does exist a difference between the position of the Prussian and American consulates at Tientsin, but it is only one of form. The Prussian government, being of opinion that merchant consuls, like Mr. Spohn and Mr. Meadows, do not possess the requisite knowledge of law to give decisions in cases, (as Mr. Meadows has shown in this instance,) have not accorded this power to such as they. The consular regulations prescribe the procedure in their case to be simply to receive the complaints against German subjects, make a full examination of them, and forward the papers and testimony to the nearest judge.
The course to be taken at Tientsin is in practice as follows: When an American, or anyone else, has a complaint against a German subject, he must address the Prussian vice-consul, who will receive it and make a preliminary examination, collecting all the documents relative to it. These he will then send to Mr. Tettenborn, who is a lawyer and the judge, for him to pronounce the sentence. This course is rather complicated, it is true, but it possesses the advantage of assuring the contestants more fully against the errors and ignorance of merchant consuls in legal matters. There is, therefore, at Tientsin, no denial of justice, however much Mr. Meadows may wish to have it believed, and even to establish it in a judgment.
It seems to me sufficient to apprise you of the serious error into which Mr Meadows has fallen for you to take measures to reverse, by the means at your disposal, a [Page 561] judgment which is not only contrary to all the principles of civil and international justice, but not at all in harmony with the amicable relations which exist between our governments. I need not add that, if this judgment be maintained, I shall be forced to bring it to the knowledge of the chancellor of the North German Confederation; and, while awaiting his instructions, to enjoin the Prussian consuls in China not to attend to the reclamations of Americans against the Germans residing in this land.
In conclusion, I beg that you will inform me, under these heads, whether—
1st. The laws of the United States permit a consul in bankruptcy to exercise the functions of a judge; and whether,
2d. A vice-consul is authorized to decide a case of a certain amount, without the aid of two assessors?
I seize this occasion, sir, to renew to you the assurance of my highest consideration.
Monsieur Wells Williams, Chargé d’affaires des Etats Unis d’Amerique.
Copy of plaint of P. Thomson.
UNITED STATES VICE-CONSULATE, TIENTSIN.
I, Peter Thomsen, master of the bark Talee, do hereby declare on oath, that on the morning of the 5th June, 1868, while my vessel was in the Pei-ho, the American steamer Manchu ran into her and damaged her; that I later had a valuation made of the damages, which were fixed at $200; that I applied to the master of the steamer to pay that amount, and that he refused to pay my claim.
I therefore have now to pray that you will summon him before you, to satisfy my claim for damages as stated above.
P. THOMSEN.
Taken before me, this 8th day of June, 1868, at the United States vice-consulate, Tientsin.
Copy of consuls decision.
The parties in the case being all present, the judge of the court opened the proceedings by reading over the plaint. Captain Clark of the Manchu, and the defendant, objected to the case going on on the ground of the Prussian vice-consul being unable to give a decision on similar cases being brought before him; and he therefore considered it would be only fair if the vice-consul of the United States did not entertain the present case; American citizens and subjects of the North German Confederation were, under the present system, not on the same footing of equality as to attaining redress and justice.
The judge then stated to the court that he was of the same opinion as Captain Clark, and that he consequently had to inform the parties in the case that he could not entertain the plaint; and that it was his intention not to entertain any plaint against American citizens on the part of North German confederate subjects, till the vice-consul of the North German Confederation at Tientsin was empowered to decide cases. At present the vice-consul of the North German Confederation could only take the depositions and evidence in a case, and could not decide it; the written evidence had, after that, to be sent down to Shanghai to the consul-general, for examination and for the case to be decided.
A case occurred here last year of a North German Confederation vessel, the Japan, running down a junk loaded with a valuable cargo; and the Chinese connected with the lost cargo, after undergoing a preliminary examination here by the vice-consul, and after reference to Shanghai of the evidence in the case, were called upon finally to go to Shanghai, 700 miles from Tientsin, at considerable expense and inconvenience, to be further examined by the consul-general, before the case could be decided. In many cases, plaintiffs would rather prefer suffering the loss of their claims, or not obtaining redress, to proceeding to Shanghai to continue their cases. Justice would not virtually be obtainable under the present vice-consular system of examining and deciding cases.
B.
Mr. Williams to Mr. Meadows
Sir: I have just received a communication from Baron Rehfues, the minister of the North German Confederation, inclosing an official opinion of yours, made on the 8th instant, in re Talee vs. Manchu, in which you decline to adjudicate the case on the ground that “American citizens and subjects of the North German Confederation were, under the present system, not on the same footing of equality as to attaining redress and justice,” and further state “that you intend not to entertain any plaint against American citizens on the part of North German Confederation subjects till the vice-consul of the North German Confederation at Tientsin was empowered to decide cases.”
In making this distinction respecting the judicial functions of the consuls of the North German Confederation, as compared with those of the United States, you have made an issue ex cathedra that belongs to their respective governments. The jurisprudence of the two nations has been arranged in China in consonance to their peculiar institutions; and in both, we are bound to believe, for the purpose of obtaining redress and administering justice between their subjects. Whatever disabilities and hinderances may appear in the execution of their respective laws, can properly become a matter of reclamation between the governments, with a view to melioration; but you cannot deny all justice in your consular court to a German who comes with a plaint against an American, because of an alleged deficiency in the laws of his country. This is to make our judicial system subject to the torts of other nations, and not one to be exercised on its own merits. If carried out, the principle would soon prevent all international action in China, and destroy the possibility of the comity now enjoyed. If you deem the consular laws of the North German Confederation as exercised in China incomplete for attaining the ends of justice, how much more equitably and firmly might you refuse to hear the plaint of a Chinese against an American, which yet by the treaty you cannot do.
I think that these views will approve themselves as tenable; and I direct you, therefore, to summon the parties in the case Talee vs. Manchu to your consular court, and try the case on its merits. I hope, too, that the time which has elapsed since they first appeared will not have brought about changes that will prevent them from again appearing.
I am, sir, your obedient servant,
John A. T. Meadows, Esq., United States Vice-Consul, Tientsin.
C.
Mr. Williams to Baron Rehfues
Monsieur le Ministre: I beg to acknowledge the dispatch of the 21st instant, which you have done me the honor to address to me, respecting the case of the Talee versus Manchu, and the refusal of the United States vice-consul at Tientsin to hear the complaint of Peter Thomsen, a German subject, on the ground that “American citizens and subjects of the North German Confederation were, under the present system, not on the same footing of equality as to attaining redress and justice;” and in which you likewise request answers to two questions respecting the functions and disabilities of an American consul.
Allow me here to reply to these two inquiries: 1st, so far as I am able to ascertain, bankruptcy of itself is not a bar to a consular officer in the service of the United States, who receives no salary, continuing to hold his post; and 2d, in all cases of damages under $500, the act of Congress does not require the consul to call in two assessors to aid him; he can do so, however, if he pleases.
I have perused your excellency’s dispatch with great care, and as I have no wish to hinder any subject of the North German Confederation from obtaining justice in the consular courts of the United States, I have to-day directed Mr. Meadows to hear the plaint of Peter Thomsen, and try his case on its merits. I hope, also, that he will suffer no injury from the delay.
In apprising you, sir, of this order sent to Mr. Meadows, I beg to add a few considerations upon the remark made in your dispatch that the difference in position between the Prussian consulate in Tientsin and that of the United States is one seulement de [Page 563] forme. You lay stress on the want of legal knowledge among merchant consuls; and it is not unlikely, of course, that such a one may not always possess the necessary knowledge to decide a nice point of law; but in such cases, which are exceptions, the right of appeal to a superior officer obviates this incompetency or disadvantage, and secures the parties from injustice.
If the rules of procedure in a consular court are laid down with clearness, they can be followed by any person with a fair education, and the value of his decision can be increased by requiring him to get the advice of assessors. Most of the cases in China consist of damages for injury to person or property, for debts, or divisions of estates, such as require no high legal attainments for their equitable settlement.
But permit me to observe further, that the difference is not merely formal; that when a consul at one port can only receive the evidence of the opposing parties and their witnesses, to send it off many scores of miles to another port, as seems to be the rule in the Prussian consulates, the plaintiffs are not so likely to receive justice, irrespective of the delay, before the judgment is rendered. The value of conflicting testimony can best be decided by him who hears it, as well as the competency and credibility of the different witnesses be better weighed by a judge who watches them as they give their depositions. On paper much of this vanishes; and in no case can a man write more than a portion of the evidence. Some of the energy and distinctness of witnesses must be lost when they feel that they are really talking and acting for one not present, who will, after all, get only an imperfect idea of what has passed. Besides, in some cases the locality of the occurrence has a very important bearing in making up a decision.
Then, further, with regard to the judge himself. He is likely to have a great number of cases to investigate, each of them demanding an immediate decision, in order that the parties shall not suffer more than is absolutely necessary from the delay. One does not doubt that he desires to do even and speedy justice, but his time and strength have limits. If new points come up demanding investigation, more time must be consumed in obtaining further facts.
When the case has been decided, the parties may have all separated and gone elsewhere; the ships left the port and gone from China; the property in dispute may have spoiled or deteriorated; the consul himself departed; a dozen contingencies may have arisen that render it impossible to carry out fully a sentence that at first could easily have been executed.
The case cited by Mr. Meadows of the brig Japan running down a junk in the Pei-ho, so far as I know the facts, will illustrate the inconveniences from delay to which I now allude; inconveniences which, in my view, far exceed the risks and wrongs likely to be suffered by allowing a merchant consul to decide cases brought before him. The same risks were somewhat anticipated when constituting the consular courts of the United States in China 20 years ago, and were provided against by the framers of the act of Congress in 1848; but when it was revised and reissued, in 1860, it was found to need few alterations. The evils suffered in these courts since 1848, through the incapacity, ignorance, or inefficiency of merchant consuls, have been trifling, and I remember no complaint brought before this legation on these grounds. The evils resulting from the other mode of jurisprudence would have been greater.
In your excelleney’s dispatch it is admitted that the plan of sending cases to Mr. Tettenborn, as good a lawyer and judge as he is, is assez compliquée. Perhaps I have shown that it is more than complicated, and that its inherent delay works a wrong to both parties. I fully agree with you that there is no denial of justice in the theory; but in practice, an American citizen bringing a complaint at Canton or Tientsin, before a consul of the North German Confederation, would not seldom find the delay of sending the documents to Shanghai nearly equivalent to a denial. In some cases, as where the parties all resided at the port, in a suit of debt, for instance, the result would be less detrimental.
In the case before us both the parties happen to be at Tientsin for only a few days. Let me reverse the case, for illustration. If the Talee had run into the Manchu, both parties would doubtless have wished to leave port long before the American plaintiff could have got judgment. If she was detained by Mr. Spohn as security till the damages were assessed by Judge Tettenborn, she might lose as much by the demurrage as by the accident. If she was allowed to depart, the delay to the other party works an additional loss, in settling a simple question that two or three sensible shipmasters, called in on the spot, could have decided in a few hours better than anybody else.
You will pardon me, sir, if I have made these observations with more freedom than is requisite to explain my position. I speak from an experience of 12 years in seeing the workings of the American consular courts in China, and am quite satisfied, on the whole, with their results.
The subject here discussed you may deem to be worthy of referring, for consideration, to those who can have no other desire than to facilitate the settlement of such disputes as the present one at Tientsin, and measurably, at least, to prevent any international disagreements. If I might be allowed to add a suggestion, a Prussian [Page 564] merchant consul might have the power to give a suspensory verdict, to be ratified by the judge, and which the contending parties in the suit could for the time accept as a final one, subject to that ratification.
I avail myself of this occasion, Monsieur le Ministre, to renew to you the assurances of my high respect.
His Excellency Baron Rehfles, Envoy Extraordinary and Minister Plenipotentiary of the Confederation of North Germany.
D.
Baron Rehfues to Mr. Williams
Ta-chiao-szè, June 29, 1868.
Monsieur le Chargé d’affaires: I have had the honor to receive your note of the 25th instant, relating to the case of the Talee vs. Manchu, and I have not failed to inform the King’s consul at Tientsin of the instructions which you have been good enough to give to Mr. Meadows. While thanking you for the readiness with which you have co-operated to avoid the serious complications which would necessarily have resulted from carrying out the decision in this case taken by the United States consulate at Tientsin, it only remains with me to give you some explanation of the principles in force in Prussia and elsewhere relative to consular functions, which, it appears, are very different from those adopted by the United States. From your note of the 25th, it seems that the consular regulations of the United States allow a consul in bankruptcy to continue his functions. This is not the case in Prussia, and, so far as I know, in other nations too, where they are required to demit their functions as soon as they suspend payment, which was the case last year with the Hanseatic consul at Tientsin, who, having become a bankrupt, had of course to resign his consular functions. Thus it follows that a consul in bankruptcy cannot act as judge, being himself before the court. According to the usages of all nations, Mr. Meadows would not be able at this time to exercise judicial functions. But this only concerns the government of the United States, and I state it simply to indicate the difference which exists in this respect between their practice and that of European governments.
In respect to the principle adopted by the Prussian government, of not granting full jurisdiction to merchant consuls, it has been the result of experience, and of the conclusion that a rather more complicated procedure would be better, and offer more guarantee for the administration of justice, than if allowed to persons wholly without legal education, and consequently liable to commit irreparable mistakes. This principle has also latterly been adopted by most of the European governments, who are of the opinion that out of two evils it is best to choose the least.
In order to remedy the inconveniences which result from the state of things in China, and chiefly those which arise from the distances between the several ports, the King’s government has for a long time resolved to grant entire jurisdiction, exceptionally, to the consuls at Canton and Tientsin; it has actually been the case at Canton for two years, where Mr. Carlowitz is charged with judicial powers. At Tientsin it has not been impossible to do so, but on the other hand it has been decided to make it a paid consulate, and has been hitherto delayed only because of the immediate creation of the consulates of the Confederation of North Germany. It is certain that the near completion of the plans of the chancellor of this confederation will alter the present state of things at Tientsin, which have always been regarded as temporary. The case of the Japan, to which you allude, moreover, furnished me with a good reason to urge Count Bismarck to hasten the institution of a consulate at Tientsin.
Hoping that the American government will not delay to follow the example of the confederation, and establish a paid consulate at Tientsin, I seize this occasion to renew, sir, the assurance of my highest regard.
Monsieur Wells Williams, Chargé d’affaires des Etats-Unis d’Amerique.
E.
Mr. Williams to Baron Rehfues
Monsieur le Ministre: I have had the honor to receive your reply of the 29th ultimo, in relation to questions of consular control growing out of the case of the Talee vs. Manchu. I have since heard from the United States vice-consul at Tientsin that the dispute has been settled between the parties.
[Page 565]I have carefully perused your remarks, but I cannot perceive that the bankruptcy of a mercantile consul has any necessary connection, with his ability to exercise his consular functions; and that whatever other reasons may exist to make it desirable for an unfortunate debtor to demit his office on declaring his bankruptcy, they do not affect his judicial position. In the present case, Mr. Meadows, though now a merchant, was in the British consular service for many years, where he became familiar with its details. I am induced, therefore, to make an extract from his report in this case:
“After I had read over the plaint, the defendant, Captain Clarke, asked the vice-consul of the North German Confederation, who was present, if he could give a decision if a similar case should be brought into his court. He replied that he could not decide the case, and would have to send down the written evidence to the consul general at Shanghai, who would decide it. As long as the vice-consul of the North German Confederation at Tientsin has not judicial powers to decide cases similar to the consuls of France, England, and America, so long, I beg respectfully to state, will it be impossible for the subjects and citizens of those nationalities, on bringing plaints into the vice-consular court of the North German Confederation, to obtain redress. * * * Are not judges and associates, in cases tried in the British and American consular courts, guided very considerably in their judgments in deciding cases by the manner, personal demeanor, and appearance of the witnesses when giving their evidence? The consul-general of the North German Confederation residing at Shanghai, 700 miles from Tientsin, and not being present in the vice-consular court when the evidence was taken, is he in a position, in accordance with Anglo-Saxon ideas of trying cases, to give a just decision? I maintain not. I consequently considered it to be my duty to bring the position of the North German Confederation vice-consul prominently forward, whenever circumstances allowed my doing so, in order that nationalities suffering hardships through the system might take the opportunity to urge upon the high authorities of the North German Confederation to empower the vice-consul at Tientsin with judicial powers to decide all cases, so that justice may be measured out where the parties in the case are present.”
The fact that a salaried consul is soon to be appointed for the North German Confederation at Tientsin is proof that the inconveniences of the present arrangement have forced themselves on your notice; and I still think that you will agree with me that many of them can only be removed by granting judicial powers to all consular officers. I shall bring the desirableness of appointing a salaried consul for the United States at Tientsin to the notice of the Secretary of State, and also the other questions discussed in this correspondence.
I avail myself of this opportunity to renew to your excellency the assurance of my high regard.
His Excellency Baron Rehfues, Minister of the North German Cónfederation to China.