Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1875, Volume I
No. 127.
Mr. Williams to Mr. Fish.
Peking, October 28, 1874. (Received December 26.)
Sir: The series of letters (Nos. 1 to 17) now forwarded with this dispatch relates to a controversy which has arisen at New-chwang respecting 1 he control over an American, engaged by the Chinese licensed-pilot service, who had been punished by the consul for an assault on a Chinese woman, and in consequence of this conduct had been suspended by the harbor-master.
The correspondence furnishes all the facts and arguments, so that I need only recapitulate the principal points, and indicate that on which the conflict has arisen, and the way it has been adjusted.
The pilot, D. J. Haliday, a naturalized American, on his liberation from jail, applied for his license, (inclosure 2,) which the harbor-master declined to return, giving his reason for so doing through the manager of the pilot company, (inclosures 3, 4.) Haliday hereupon appealed against this refusal to the United States consul, (inclosure 5,) who immediately applied to the harbor-master for the charges brought against his employé. Some further correspondence ensued between them respecting the grounds for his authority for this suspension, which the consul thought trenched on his own appellate jurisdiction. (Inclosures 6, 7, 8, 9.) The other contented himself by quoting the clause of the regulation under which he acted.
In his last reply, (No. 10,) Mr. Knight carefully reviews the whole case, and bases his objection to the man’s suspension on the ground that he had done nothing wrong in his capacity of pilot, urging his sacrifices to make the woman comfortable as an extenuation of his delinquencies, and a reason why he should not be further punished by the loss of his situation.
In another dispatch of the next week (inclosure 12) the consul sends me the harbor-master’s acknowledgment of His decision, viz: That Hal: day’s license shall be returned to him for the rest of this season, and its restoration next spring to depend on the approval of the United States minister. This temporary adjustment of the matter he agreed to, (inclosures 13, 14, 15,) and thus the pilot company in the port is maintained at its full efficiency.
In addition to the consular dispatches, I inclose a summary (inclosure 16) of a report from Mr. Man, the commissioner of customs, reviewing Mr. Knight’s argument, and detailing facts about Haliday’s conduct while in the pilot service; he also criticises Mr. Richards’s affidavit, (inclosure 11,) and furnishes these statements to prove that Captain Rennell has neither acted hastily nor unreasonably.
[Page 206]In my reply (inclosure 17) I have endeavored to show that the section in question gives the harbor-master certain powers over the men under him; and that these powers are complementary to those granted him to constitute a pilot service and engage men in it. I tried to show that it is unreasonable to give him powers to engage a man and not allow him the right to dismiss or suspend him. In the present case, I think it has been justly exercised by Captain Rennell, as Haliday’s conduct has been such as to render him a reproach to the company of which he is a member.
Section 2 of regulation 7, whose intent is the subject of this discussion, reads as follows:
“If guilty of any misconduct for which consular punishment has been inflicted, or if proved to have committed any offense against the revenue laws, the individual concerned may be suspended or dismissed by the harbor-master, subject to an appeal to his consul. If a foreigner, the appeal to be lodged within three days.” (See J. Ross Browne’s dispatch, No. 8, December, 1868.)
Mr. Hart, the inspector-general of customs, has talked with me on the bearing of this stipulation, and also favored me with the perusal of a reply to Mr. Man, in which, after going over the bearings and difficulties of this case, he concludes with stating this alternative:
“My own views are opposed to the regulation which limits the number of pilots. I think that the working of the natural laws of demand and supply might fairly be trusted to; and I would limit customs action to seeing that licenses are issued only to duly-qualified men, or retained only by the continuously efficient, thus leaving it to consuls to deal with unlicensed piloting and misconduct of any kind on the part of their nationals. But with the limitation-of-numbers rule in existence, those other parts of the general regulations, which empower the board to refuse admittance to men who cannot produce certificates of character, and the harbor-master to suspend or dismiss a licensed pilot guilty of misconduct for which consular punishment is inflicted, are obviously necessary and complementary. In this case, the harbor-master would do well to dismiss Haliday; and if this action is upheld by the authorities concerned, well and good; if not, we must take steps to rescind the limitation-of-numbers rule.”
It does not, however, seem to be necessary to alter the present regulations as they stand; for, during the six years they have been in operation, very few difficulties have arisen, and the pilot-service is conducted along the coast with efficiency and general satisfaction. Where, as in this case, a companionship of authority necessarily exists, it is not strange that the two powers sometimes come into conflict, but with a disposition to arrange each case as it comes up, the pilot-service has received no hinderance. Disagreements arise more frequently in the smaller ports than in the larger ones, and a good deal depends on the personal character and tact of the harbor-master; and it is an evidence of their general fitness for their duties that so few cases of appeal like the present have come up. A harbor-master is restrained by this right of appeal and its consequent scrutiny into his conduct; and consuls seldom go counter to his action and try to force him to retain an unworthy man. I see many more reasons for retaining than altering the present rules; and I trust you will approve the decision given in this case at Kew-chwang.
I have, &c.,
Mr. Knight to Mr. Williams.
New-chwang, 6th October, 1874.
Sir A perusal of the inclosed copies of letters, which I have the honor to hand yon, will explain a difference of opinion which I have arrived at with the harbor-master of this port, in reference to the meaning of clause 2 of regulation 7 of the pilotage Regulations.
The question is one of great importance as regards the jurisdiction of this consulate, and others as well; and, should you approve the stand I have taken, I shall feel obliged if the harbor authorities of the port are so instructed.
My dispatch to the harbor-master contains all I have to say on the subject while the reading of the clause remains the same.
I have, &c.,
S. Williams, Esq., LL. D., &c.
Mr. Holiday to Mr. Rennell.
September 28, 1874.
Sir: Captain Lowell, of the American schooner Almatia, has applied for me to pilot his ship to sea this afternoon, and I now beg of you to hand in my license to pilot said ship to sea.
As you had the authority to demand my license, doubtless you are possessed of the authority to hand me the same, or a definite answer whether I am a suspended pilot or nos.
I am, sir, yours, respectfully,
- D. J. HA LID AY.
- T. B. Rennell, Harbor-Master.
Mr. Rennell to Mr. Holiday.
New-chwang, September 29, 1874.
Sir: I have to acknowledge the receipt of your letter dated September, 1874.
The manager of the pilot company has already been informed officially by me that, pending the settlement of a point bearing upon your case of suspension, (through imprisonment by the consul of the United States,) I cannot give him the authority to enable you to resume the exercise of your functions as a licensed pilot at this port.
I am, sir, your obedient servant,
- T. B. RENNELL, Harbor-Master.
- Mr. D. J. Haliday.
Mr. Rennell to Mr. Richards.
New-chwang, September 30, 1874.
Sir: I have very carefully considered the case of Pilot Haliday, lately guilty of misconduct, for which consular punishment has been inflicted.
Under all the circumstances, I do not believe that the ends for which I have been invested with power in such matters would be obtained did I fail to exercise them as [Page 208] against an individual acting in a manner which must tend to discredit a body of public servants in whom, as being placed under my orders, I am officially interested.
I, therefore, by virtue of my authority as harbor-master, suspend Mr. Haliday from his office as pilot; and, pending a reference which I shall make to another quarter, retain his license in my possession.
I am, &c.,
- T. B. RENNELL, Harbor-Master.
- Mr. G. C. Richards,
Manager Pilot Company.
Mr. Haliday to Mr. Knight.
Sir: I beg to inclose a copy of a letter from T. B. Rennell, harbor-master at this port, addressed to the manager of the pilot company, in which he states that, by virtue of his authority as harbor-master, he suspends me from the office of a pilot, pending a reference that he will make to another quarter, and retains my license in his possession.
Although his letter is not altogether plain as to his reasons for such summary action in my case, I can only presume that his authority is based on paragraph 2 of regulation VII of the pilotage regulations for this port. Under such supposition, and not being aware of a single charge ever being laid against me as a pilot since 22d September, 1864, when I first received a certificate, I now beg to make the appeal before you, as expressly permitted in the regulation above referred to, against the harbormaster’s decision.
I am, sir, yours obediently,
F. P. Knight, Esq., &c.
Mr. Knight to Mr. Rennell.
New-chwang, October 1, 1874.
Sir: Mr. Pilot Haliday, an American citizen, has produced me a certified copy of your dispatch of the 30th ultimo, addressed to G. C. Richards, manager of the pilot company, and I now beg to inform you that by virtue of his right, as given in General Regulation VII of the pilotage regulations for this port, Haliday has this day made formal appeal to me, his consul, against your decision as given therein.
To enable me to give a decision in this appellate case, will you be good enough to furnish me with your charges against the appellant, and your reasons for (withholding his license) suspending him from his office of pilot.
I am, sir, your obedient servant,
U. S. Consul.
T. B. Rennell, Esq., Harbor-Master.
Mr. Rennell to Mr. Knight.
New-chwang, October 2, 1874.
Sir: I have the honor to acknowledge the receipt o>f your dispatch of 1st instant, regarding Mr. D. J. Haliday, a citizen of the United States, suspended by me from his position as a licensed pilot at this port.
My action as above is taken under clause 2 of Regulation VII of the Chinese pilotage laws, and is in consequence of a verdict of guilty pronounced and a subsequent punishment of imprisonment inflicted by yourself. Members of a privileged and protected [Page 209] body should, I opine, be above such reproach as must now, for more than one offense and its consequences, be against the appellant. I will therefore ask you, in the interest of discipline and efficiency, to aid the stand I have taken in face of proceedings calculated to discredit the Chinese pilotage service in general and the local branch coming under my immediate control.
I propose referring the case, (as was done in a similar instance some years since,) through a the commissioner of customs, to Peking. Whether my view that the license should be withdrawn is finally sustained or otherwise, I yet trust that your co-operation and support will meantime be accorded.
I am, &c.,
Harbors-Master.
Francis P. Knight, Esq., &c.
Mr. Knight to Mr. Rennell.
New-chwang, October 3, 1874.
Sir: I beg to acknowledge the receipt of your dispatch No. 18, of the 2d instant, having reference, in reply to my letter No. 271, to your suspension of Pilot Haliday.
I make due note that your action is taken under clause 2 of General Regulation 7 of the pilot regulations, and I have under consideration your intelligent views generally as given.
Before proceeding further, however, in the case of Haliday’s appeal against your decision, I will ask you to be so good as to explain to me, as unqualifiedly as possible, the meaning of the last sentence of your letter under reply, which, I take it, implies disrespect of the final and instant appellate jurisdiction in the case of this consulate.
I am, sir, your obedient servant,
U. S. Consul.
T. B Rennell, Esq., Harbor-Master, New-chwang.
Mr. Rennell to Mr. Knight.
New-chwang, October 4, 1874.
Sir: In answer to the concluding paragraph of your dispatch No. 272, of the 3d instant, I need hardly assure you that no want of courtesy or due regard to your appellate jurisdiction was intended or implied in my previous communication, (No. 18.) My meaning is, I think, sufficiently obvious. I am in duty bound to act in the manner set forth, i. e., to refer my action, through the medium of my superior officer, to the inspector-general of customs.
In the present case I proceed on the presumption that you will not do otherwise than uphold me in the exercise of the discretionary power I possess. I have, of course, no desire to leave my own clear path to trench on the ex-territorial rights of foreign officials, and I certainly cannot give an opinion as to how far those rights extend.
I am, sir, your obedient servant,
Harbor-Master.
F. P. Knight, Esq., Consul for the United States.
Mr. Knight to Mr. Rennell.
New-chwang, October 6, 1874.
Sir: I have the honor to acknowledge the receipt of your dispatch No. 19, of the 4th instant, (Sunday.)
In general reply now to your dispatches Nos. 18, 19, it is with regret, all things considered, [Page 210] that I am forced to write you that, in the case of D. J. Haliday, an American citizen and a licensed pilot, on appeal, before me, his consul, against your decision canceling his license, as given in your letter No. 17, of the 30th ultimo, addressed to the manager of the pilot company at this port, I not only cannot, in the light of justice, agree with your views as to the necessity of withdrawing the appellant’s license, but that I take exceptions to your unprecedentedly mischievous interpretation of your duty and rights (unmistakably implied in your communications Nos. 17, 18, 19) in the case, which are so plainly and unqualifiedly set forth in clauses 1 and 2 of General Regulations VII of pilotage regulations, approved, with the inspector-general of customs, by the United States minister on the 3d of March, 1889, and forwarded hither for your guidance and my own as well.
The case of the appellant stands at this consulate, the place only, I hold, where his moral character is to be correctly measured, thus: The appellant has held a license as a pilot since the 22d of September, 1864, during which long interval, be it noted, not one single complaint of any kind has, to my knowledge, ever been laid against him as a pilot. He is popular with shipmasters of all nations; he is skillful as a pilot, and has been exceedingly fortunate with shipping.
Against this good professional character it may be said that he is a man who, judging by past experience, at intervals may be influenced by drink, and may commit some act of violence. During the ten years that the appellant has resided at this port, I have had three charges of assault against him. Others of the pilot-body have been no less fortunate.
The appellant’s first trouble commenced nine years ago. Then again in 1870 he was brought up for some squabble. Finally, after a long interval of unexceptional good conduct, on the 16th ultimo, I regret to say, Haliday appeared in the court of this consulate to answer a charge of assault with violence on a native woman with whom he lived. Jealousy and excitement from drink was the plea, but it being proved that he had beaten the woman, I adjudged that he should be sent to jail for a fortnight and pay heavy costs of court.
All this is very much against the appellant, as a man; but I consider it much in his favor that, during his imprisonment, he showed great signs of sorrow and shame, and was most anxious to make any and all amends to the woman that I might dictate. The end was, that he parted from the woman, paid her $1,000 in money, and her passage to her home; which are acts of reparation only years of good conduct and thrift enabled him to perform. Thus, for this intemperate violence then, the appellant has suffered a loss, in all, of about $1,300 and a fortnight’s imprisonment.
There are grades of crimes and grades of punishment for them.
Haliday is a good pilot, but on three occasions during ten years he has been drunk and violent; otherwise he is, beyond question, one of the most orderly and respectable of the pilot company.
All the circumstances considered, I say the appellant has suffered enough, and that to wish to cancel his license, cause him a further pecuniary loss of nearly $800 to $1,000 by a forced sale of his pilot property, take away an annual means of living, (for although Haliday is interested in a shop, he is no shop-keeper and intends selling out his interest,) is simply an error of judgment on your part, and if carried out would be an act of persecution, which, after considerable thought, I decline to be a party to.
But there are other considerations in this case which weigh with me.
Knowing, as I do, that the commissioner directs your acts and dictates your letters in this matter, I note the fact that your letters Nos. 16, 17, 18, and 19 were witten at his instance, with the knowledge of my views, as given herein, expressed to him at great length and with earnest consideration during two personal interviews, one before the trial of Haliday, and on another occasion the day before his release. The interview referred to before the trial was of my seeking, in consequence of some information subsequently given in an affidavit before me, copy of which affidavit, as it concerns yourself, I inclose herewith. I then reasoned at length with the commissioner that you had obviously at the outset been guilty in this case of a singular excess of authority.
The commissioner told me that you denied some portions of the affidavit statement, and as a point of veracity is not for a moment to be thought of with your worthy self, there is a mistake of memory somewhere, for Richards is not an unreliable man. However, I then said that, with your experience, you did very wrong to meddle with Haliday’s movements previous to his trial when he was in charge of this consular court—even to control his license. At the second personal interview, when the commissioner was good enough to come to my house, we discussed the 2d clause, regulation 7, particularly, and I was firm then of the opinion that if the clause in question was somewhat ambiguous, it was my view that you were called to act under it only when the acts of pilots affected them, as pilots. This is my opinion to-day.
For I am not aware that either yourself or the commissioner of customs possesses majesterial powers in any way, (although I may be wrong;) and by any other view [Page 211] than mine, I do not think the right of appeal would have been provided, probably by the inspector-general of customs at Peking.
Members of a privileged and protected body, (as you call them, although it sounds odd to me,) to some extent, I admit pilots are, but they are necessary to and closely connected with commerce; they have vested rights in their business, and I contend that those rights of property cannot be dissolved by a stroke of the pen—excepting when they fail grossly as pilots—as is sought to be done in your rather summary letters.
Were a pilot convicted of manslaughter, theft, or fraud, or any serious charge in an in way connected with shipping or pilotage matters, I should not, I think, interfere in his behalf as against your ruling.
But your letters Nos. 18, 19 I must regard as unfortunate, for I respectfully submit that they do imply an attempt to question the appellate jurisdiction of the consul in the case, which causes me quite as much surprise as did the French minister’s letter, (rê pilots,) when shown to the commissioner.
From all the above you will gather—
- 1.
- That I cannot approve of withdrawing and canceling the appellant’s license. I would return it to him with a caution (if necessary) indorsed thereon.
- 2.
- That I think, in a case where a pilot’s license is to be really canceled, some regular form of procedure should take place at your office, and if your opinion is not unshaken, your decision should be given in writing, and the delinquent fairly informed of his right of appeal, under certain regulations.
- 3.
- That lam firmly convinced as to the intention of the framers of clauses 1 and 2 of regulation 7 of the pilotage regulations as to the right of this consulate that the appelate jurisdiction of the consul, under the clause in question, is as absolute as any of his lawful judgments.
And I think it is a wise provision; for you will be so good as to pardon my adding that, in the judgments of both yourself and the commissioner as well, I think you are inclined to be a little severe.
In the above opinions I feel sustained by my reading of several authorities on the laws of pilots, also by some valuable notes collected by Sir Wm. Mitchell. Pilot boards are not (as a rule) concerned with civil offenses.
I am fully alive to your official position with the pilots, of the interest you take in the pilotage service, and I am not forgetful of my duty to sustain you in every way, when called upon, in my power.
From sentiments of respect to you, sir, I have made this reply as full as possible, that you may see that I (partially) overrule your judgment not without consideration.
It having been represented to me, and being within my own knowledge and experience, that at the close of the season twelve pilots are actually necessary for the benefit and safety of the shipping, I decide that Licensed-pilot D. J. Haliday shall receive back his license from your office, to hold the same provisionally until the end of the season; its renewal in March next to rest on the decision of the United States minister at Peking, who doubtless will confer with the inspector-general of customs.
This action on my part will, it is my hope, meet with the approbation of our respective chiefs.
I will ask you to be so good as to make known my decision (as with respect I shall send lira to you) to Pilot Haliday, the appellant.
And I remain, sir, your obedient servant,
United States Consul.
P. S.—I inclose press-copies of all the documents connected with this correspondence, thinking they may be of service.
T. B. Rennell, Esq.,
Harbor-Master.
affidavit of g. c. richards.
Affidavit.
United States Consulate, New-chwang, to wit:
George C. Richards, United States constable, and manager of the Newchwang Pilot Company, being duly sworn, says:
About 4 o’clock yesterday the harbor-master sent me a note, requesting me to call and [Page 212] see him. When I reached his office he informed me that what he was about to say was official. He then said, I suppose you are aware of Mr. Haliday’s case. I told him yes. He then said that I was not to appoint Haliday to any ship, or allow him to go on board of any of the company’s boats, because, after he was tried by his consul, he, Haliday, had to be tried here by the customs authorities.
I asked him the reason for this, saying that Haliday had given bail before his consul, and I had supposed he had a right to go where he liked. The harbor-master said that it did not matter; that it was purely a Chinese affair throughout; that it was a Chinese subject that Haliday had abused, and Haliday was licensed by the Chinese government.
Having given the United States consul the above information, with the desire only to learn what steps I should take as United States constable other than to prevent Haliday’s piloting, to prevent Haliday from going on board of the pilot-boats or elsewhere, I make this deposition at his, the consul’s, request.
United States Consul.
Mr. Knight to Mr. Williams.
New-chwang, October 13, 1874.
Sir: Having reference to my dispatch No. 274, of the 6th instant, I have the honor herewith to hand you three (3) inclosures further on the subject.
I shall now feel very obliged for your instructions regarding my action in the matter wherein the harbor authorities either have or have not tried to exercise an excess of authority to the prejudice of the pilotage regulations.
Not to override the harbor-master or the commissioner altogether, I have referred a point to Peking which I hold this consulate is competent to settle. The harbormaster’s letter No. 21 does not please me.
But feeling, as I must, under obligations to the customs for kindly-lent, interpreter-aid for years, I should be glad if my action was approved by the inspector-general, Mr. Hart.
I am, sir, your obedient servant,
S. Wells Williams, Esq., LL.D.,
United States Chargé d’Affaires, Peking.
Mr. Rennell to Mr. Knight.
New-chwang, October 8, 1874.
Sir: Your dispatch of the 6th instant reached my hands last evening, and I have to thank you for the general tenor of the same, while taking exception to certain points wherein, with all respect, I must consider you have fallen into error.
For instance, you are good enough to suppose throughout that my intention (or rather I should say my wish) has been to at once cancel Haliday’s license. A reference to my previous letters will, I think, convince you that I have put forward no such views.
Knowing that the man would, in the exercise of his most undoubted right, appeal against my suspension of his functions as pilot, I purposely so worded my notice to the manager of the pilot company as to leave the present settlement of his case a question to be decided upon after consultation with yourself.
I am entirely satisfied with the result now arrived at; it covers completely the point I have alone in the interest of the pilotage service desired to obtain.
I shall return Haliday’s license, with an indorsement thereupon to the following effect:
“The bearer of this Chinese government license, (No. 8,) David J. Haliday, having been found guilty in the local court of the United States of America of assault upon a [Page 213] native woman, was suspended by me under clause 2 of the 7th general regulation of the Chinese pilot service. On appeal to his consul it now has been decided that this license, hereby returned to the said D. J. Haliday, is to be considered as held by him provisionally only, and until the end of this season of 1874; its renewal, previous to the opening of the port in 1875, to rest on the decision of the high authorities at Peking”
I am, sir, your obedient servant,
Harbor-Master.
F. P. Knight, Esq.,
Consul for the United States.
Mr. Knight to Mr. Rennell.
New-chwang, October 8, 1874.
Sir Having reference to my letter No. 273, of the 6th instant, I have the honor to hand you, herewith inclosed, my decision as against your ruling in the appeal before me of D. J. Haliday, licensed pilot.
Although I have not been able to agree with your action in the case of Haliday, yet, with the wish only to lend support to your office, I hand the decision to you, with the request that you will make known its contents to the appellant, and be good enough on your part to conform thereto.
As your dispatch No. 21 has this moment reached me, and its contents connect with this communication, I will ask you to permit me to reply at once thereto, that I scarcely think I have fallen into error with regard to the intentional wording of your several letters as far as this consulate’s appellate jurisdiction is concerned.
With regard to the indorsement you purpose writing on Haliday’s license, I must confess that I highly disapprove of a proceeding having no possible necessity or requirement in the future.
I am, sir, your obedient servant,
Consul.
P. S.—Before having an opportunity of sending the present letter, my intention as to which was notified to you in my letter No. 273, Haliday has informed me of his receipt of his license with the disapproved indorsement thereon.
T. B. Rennell, Esq.,
Harbor-Master.
Mr. Rennell to Mr. Knight.
New-chwang, October 8, 1874.
Sir: I have the honor to acknowledge the receipt of your dispatch No. 274, inclosing your decision in the appellant case of D. J. Haliday, and informing me that you disapprove of the indorsement placed by me upon the license of said pilot.
I am, sir, your obedient servant,
Harbor-Master.
F. P. Knight, Esq.,
Consul for the United States.
Summary of dispatch of J. A. Man to R. Hart respecting the case of D. J. Haliday.
Sir:* * * It will be necessary for me to pick up the connecting narrative from the point where Mr. Knight intimated to me that he would “take time to [Page 214] consider” my suggestion that the man should be allowed to resign, to briefly review the letter written by the same gentleman on the 6th instant, and to disprove on behalf of my subordinate certain allegations imported, somewhat irrelevantly, I think, into the controversy.
Hearing that Haliday was to be released from prison in the afternoon of the 29th of September, I wrote privately to Mr. Knight to the effect that I did not wish to advise any steps being taken until I had heard from him with reference to our previous conversation. He did not reply until after the man had been liberated, and in that reply he completely ignored the subject of our conversation, and the understanding with which we had parted. He simply declined to “sanction further punishment.” I at once answered, regretting his decision, and advising him that I felt compelled to let the matter take its official course.
* * * * * * *
On the game day I directed Captain Rennell to act as I considered had become his duty under Regulation VII,§ 2, of the pilotage laws; and at my order he addressed a dispatch to the manager of the pilot company, which forms the first of the series.
The “United States consul lays down, in his letter of October 6, the view he held to me in conversation, that the harbor-master can only act when the crime of the individual affects him as a pilot. This is opposed to the ruling more than once recorded by yourself. In the case of Evans, a British subject, you remarked, “At a port where the number of pilots has a fixed limit—that limitation being in their own interests, and to enable them to make a comfortable livelihood—it is the more incumbent on each individual to conduct himself properly; and it is the more the duty of those to whom he is subordinate to see that he does so conduct himself, and that he is, at all times, ready as a public servant to enter upon the work for which he may be detailed.”
Mr. Knight says, “There are grades of crime, and grades of punishment for them;” and he proceeds to argue in favor of the appellant. Agreeing with him in this dictum, I may be permitted to cull from the record of this pilot’s proceedings, since he has been in the exercise of his calling at Newchwang, the following facts:
- 1.
- Nearly nine years ago, he was convicted of a most cowardly and brutal assault upon an old man who had offended him by certain published strictures on his conduct as a pilot.
- 2.
- The “squabble” (as Mr. Knight terms it) in 1870 was another, and almost equally cowardly attack again upon a person less than half his size. For this he suffered seven days’ confinement; and I am told that it originated in a dispute with a ship-master on a question of pilotage.
- 3.
- In November, 1872, an incident occurred not mentioned by Mr. Knight. While piloting the bark Baltic, she collided with a junk, and on the skipper coming on board the bark, Haliday interfered, assaulted the man, and drove him out of the ship. The German captain reported the case to the harbor-master, and lodged a complaint at his vice-consulate. Haliday was brought up and condemned to pay the junkman $50. Mr. Knight inflicted the sentence, and called in the harbor-master to assist in the investigation.
- 4.
- The last assault for which Haliday has been punished was upon his native mistress, a few weeks after her confinement, and while she was still weak and suffering. It was in cold blood and intentional, and preceded by a row in the saloon of which he is part owner.
- 5.
- In disturbances arising in the above-named establishment Haliday has at least on one occasion been concerned; but as I have no official knowledge, I only note the fact as bearing upon his character as given by Mr. Knight.
- 6.
- At his trial the other day his consul, before passing sentence, read, him a long and severe lecture, in which he animadverted, with just severity, upon his previous convictions, and laid stress upon the many admonitions he had received. “Have I not myself warned you fifty times?” said Mr. Knight. In the face of these words, it is strange to now find him describing the man as “beyond question one of the most orderly and respectable of the pilot company.”
I now turn to Mr. Knight’s charge against the harbor-master, of “singular excess of authority;” and to the affidavit on which he founds the charge. To the statement of Richards, (who is a pilot and a salaried officer in the United States consulate, too.) Captain Rennell requests me to give a most emphatic and complete contradiction, From first to last, the sworn words recorded in that document are declared to be false in spirit and in letter.* * *
To enable you to form your own conclusion as to the character of the deponent, I send you a letter he addressed to the harbor-master, in answer to an order to move a German bark out of a dangerous position in which she had been improperly moored. I may add that this is the same Richards whose savage beating of one McCutcheon, because he had complained of a former assault, was the immediate cause of the late Mr. Meadows’ report to her Majesty’s minister in regard to a series of outrages in 1868.
Mr. Knight, in his letter, records the opinion that the judgment of the harbor-master [Page 215] and commissioner is a little severe. In relation to Captain Rennell I do know, however, that the one point upon which I have occasionally differed from him has been in his leniency toward members of the pilot body when guilty of shortcomings. I have, however, latterly come around to his views, formed, as those views were, after considerable experience, from a conviction of the impossibility of obtaining adequate support in cases where American or Scandinavian pilots were interested, and the consequent manifest injustice thereby entailed upon men of other nationalities.
I trust that I have now placed the matter before you circumstantially and clearly. I regret troubling you at this time, but I feel that Mr. Knight’s action vs. the harbormaster’s covers a question of jurisdiction in matters of discipline which has long required settlement at Newchwang, and which, if longer delayed, will only render still harder the task of keeping within bounds the few black sheep still left as a legacy from by-gone days. I have the satisfaction of knowing that the course I have advised, and he stand I have taken, are both approved by the representatives of the other treat powers, by Lloyd’s agent, and I believe by nearly every respectable resident of this place.
I have so done with the object of upholding a principle while ridding the locality of a bulky and the pilot-service of a disgrace.
I have, &c.,
Commissioner of Customs.
R. Hart, Esq.,
&c., &c., &c.
Mr. Williams to Mr. Knight.
Peking, October 24, 1874.
Sir: I have received your dispatches of the 6th and 13th instant, with their inclosures of the correspondence, relating to the suspension of D. J. Haliday by the bar I or-master; and the reasons of your refusal, on the appeal of the former against this suspension, to agree thereto. The action of the harbor-master is based on the fact that Haliday had been sentenced in your consular court to a fortnight’s imprisonment for an assault and battery, and not for incompetence or wrong-doing as a pilot; and his authority for so doing is derived from Regulation VII of the pilot-service, under which rules the man agreed to serve as a pilot. The second paragraph of this regulation permits the harbor-master to suspend or dismiss a pilot for two causes, but this power is restrained by the right of the latter to appeal to his consul. This right necessarily involves the power of approval or reversal by the consul of the action of the harbor-master; and its repetition in the previous paragraph indicates the importance attached to it. The object in allowing an appeal was probably to protect the pilot from the capricious conduct of an irresponsible superior, and also to preserve the complete judicial control of the consul over his countrymen in regard to punishment of any kind. I do not regard, however, the suspension or dismissal of a pilot, under the circumstances stated, as of the nature of a judicial punishment; it is more like the dismissal or fining of a clerk in a counting-house because of his bad conduct.
In the present case, the man having appealed to you against the suspension of his license as a pilot, you have an undoubted right to reverse or approve the action of his superior; and I uphold your action as being within the letter and spirit of the regulation, Here the matter ends, so far as the regulation goes, for no appeal is provided from the consul’s decision. The harbor-master’s action is nullified in the premises, so far is I can see, and he can only report the case to his superiors.
But, with commendable regard for the benefit and safety of the shipping of the port, while deciding that Haliday shall receive back his license to act for the rest of the season, you appeal this decision yourself to this legation, and make the man’s resumption of his work next spring conditional on the decision of the United States minister. To his the harbor-master assents as an equitable solution of the difficulty, and the pile t-service receives no detriment.
I Look upon this appeal, however, in the light of a reference, or as an arbitration, ma le to reach a decision where a conflict of authority had arisen otherwise hard to reconcile, and not an appeal like those provided for in the act of Congress, from which it is totally different. The Chinese authorities might, however, appeal against your decision overruling their harbor-master, on the ground that it neutralized the efficiency of the pilot-service by compelling him to retain a man in whom he had no confidence, one who had disgraced himself and the body he belonged to by criminal conduct, [Page 216] for which he had received merited punishment from you. The wording of your decision has obviated that alternative.
I may remark that the efficiency, character, and standing of the whole body of pilots in the port are worth more than that of any one of its members; and to maintain those qualities the harbor-master is the best judge, and to him has been intrusted their control. His primitive action is confined to suspension or dismissal, but not to go into effect until a pilot under him has been tried and punished by his national authorities. He himself does not sit in judgment on the man’s conduct, but accepts the judgment already given in a consular court as conclusive of his moral character. The whole scope and spirit of this regulation is to enable the harbor-master to maintain the efficiency, character, and standing of the body of men he employs, and says not a word as to the skill or experience they possess as pilots. Regulation IV deals with their fitness as pilots, and Regulation VII with their moral character.
You bring forward the punishment inflicted on Haliday as a reason why he should not suffer more by being suspended, and argue that Captain Rennell has only to do with his conduct as a pilot. You state how much he had already suffered, and how much more he had done to atone for his wrong-doing, and regard the suspension of his license as if it were an additional punishment. I look upon it as a consequence of what he had done and suffered, a just warning for his cruelty and passion toward a defenseless woman. It is not his first nor his second offense either, nor the first time he has been punished in your court; and while you say that you would not interfere in behalf of a pilot convicted of theft, fraud, or manslaughter, or any serious charge connected with shipping or pilotage matters, as against Captain Rennell’s ruling, you are unwilling to let him decide in a case of assault. But I think you can properly allow him the scope of action allowed him in the seventh regulation, which includes all offenses for which punishment has been inflicted. Haliday himself puts forward this plea in his letter to you of the 1st instant, but I regard it as quite untenable.
While, therefore, I regard your reversal of the harbor-master’s action in suspending the pilot Haliday as coming within your consular powers, I cannot agree with you in the reasons brought forward in the letters now before me for this refusal. On a careful review of the facts herein stated, I decide that the harbor-master had sufficient grounds for suspending Haliday’s license, and may, if he pleases, refuse to return it to him in the coming spring.
I shall communicate a copy of this dispatch to the inspector-general.
I am, sir, respectfully, your obedient servant,
Francis P. Knight, Esq.,
United States Consul, New-chwang.
GENERAL REGULATIONS.
general regulation 5.
Pilot’s license; by whom to be issued.
- 1.
- Pilots’ licenses shall be issued by the commissioner of customs in the name and on behalf of the Chinese government. Licenses issued to pilots not being natives of China shall subsequently be vised and registered at the consulate concerned.
- 2.
- On the first of July each year every pilot shall pay the sum of ten haikwan taels for the renewal of his license. * *
- * * * By-law.—At the port of New-chwang, every pilot shall pay a fee of ten haikwan taels on receipt of his license, and of five haikwan taels for each renewal of the same.
- 3.
- Every licensed pilot shall be given a printed copy of the general regulations and local rules, and shall produce the same, as well as his license, when required.
general regulation 6.
Apprentice pilots; how to be taken.
- 1.
- It shall be allowable for each licensed pilot to take an apprentice, for whom he shall be responsible. On the application of pilots the harbor-master will supply apprentices with special certificates.
- 2.
- When the circumstances of the port appear to demand it, the harbor-master may-authorize apprentices to act temporarily and within certain limits as pilots, provided they have received certificates of competency from the board of appointment.
general regulation 7.
Licensed pilots; to whom subordinated; unlicensed piloting, &c.
1. Licensed pilots may carry on their business singly or in companies. They must pay due respect to the wishes and instructions of the harbor-master under whose orders and control they are placed, and who is invested with power to suspend or dismiss, subject to an appeal to the consul concerned. When the pilot is a foreigner, the appeal to be lodged within three days.
If guilty of any misconduct for which consular punishment has been inflicted, or if proved to have committed any offense against revenue laws, the individual concerned may be suspended or dismissed by the harbor-master, subject to an appeal to his consul. If a foreigner, the appeal to be lodged within three days.
3. Any one piloting without a license, or making use of another’s license, shall be subject to prosecution, before his own authorities, who will deal with the offender in accordance with the laws of his country. Any pilot lending his license to another will be proceeded against and dealt with in the same way, in addition to forfeiting his license.
4. Any commanding officer employing an unlicensed person to pilot his vessel will be liable to be fined in the sum of one hundred taels by the authorities to whose jurisdiction be is amenable.
Local Rule 1.—Pilots shall not quit the port for purposes other than the performance of pilotage duties without the written sanction of the harbor-master.
The harbor-master shall have authority to provide for the presence of a sufficient number of pilots on the cruising-ground.
Local Rule 2.—Pilots desirous of leaving the port of Newchwang during the winter shall, when applying for the necessary permission, state the name of the vessel they purpose taking passage in, to what port they are bound, and the name of the individual left in charge of their interests in pilotage matters.
Local Rule 3.—In the case of pilots belonging to a company, no member of the same may, while under suspension, receive any share of or any benefit from the earnings of that company, under penalty of forfeiture of his license.
Local Rule 4.—The master of every vessel carrying off a pilot on or after the 10th of November, owing to the severity of the weather, shall pay to the pilot for the expense of return the following rates:
| From Tower Hill, or any point north of it | taels | 10 |
| From Chefoo | do | 75 |
| From Shanghai | do | 100 |
A guarantee to this effect shall be given to the consul of the master of the vessel previous to clearance. Pilots not returning immediately to this port, but wintering in the south, are not entitled to this compensation.
Local Rule 5.—Pilots shall not demand more or accept less money for piloting vessels than the amount authorized by the tariff.
Local Rule 6.—Pilots noticing changes in shoals or channels, or alterations of any kind n the river; or accidents to vessels, light-ship beacons, marks, or buoys; or any other occurrence concerning the harbor-master’s department, shall report the same, in wr ting, as soon as possible, to the harbor-master’s office.
Local Rule 7.—No pilot shall leave a vessel he has brought into port until she is moored with 30 fathoms of chain on each anchor.
Local Rule 8.—A pilot may not refuse to take charge of a vessel when once appointed to the same; and the manager or agent of a pilot company is bound to appoint a pilot to a vessel on application being made by the master.
A vessel making the customary signal for a pilot must be boarded and piloted, whether she be, at the time of making such signals, within the river or outside the bar.
general regulation 8.
Pilot-boats; regulations to be observed.
1. Pilot-boats shall be registered with their crews at the harbor-master’s office, where each boat will be given a certificate and number.
Tin words “Licensed pilot-boat” shall, with the number, be legibly painted at the stern and on the head of the mainsail; and a flag, of which upper horizontal half shall be yellow and the lower green, shall be flown. Such registered pilot-boats shall deposit their national papers with their consul or the customs; they shall be at liberty to move freely within the limits of the port and pilotage ground, and shall be exempt from tonnage dues. On the requisition of the harbor-master or his deputies, it will be obligatory on registered pilot-boats to convey, from place to place within the limits, [Page 218] employés belonging to either customs or harbor-master’s department, with such stores as may be wanted for either light-house or light-ship.
2. Every licensed pilot-boat shall pay a fee of twenty taels for renewal of license on the first of July each year. * *
* * *By-laws.—At the port of New-chwang every pilot-boat shall pay a fee of twenty haikwan taels for original license, and of ten haikwan taels for each annual renewal of the same.
3. In case of a pilot going off in an unregistered boat he will be authorized to carry the pilot-boat flag during the time he is on board; but no pilot is authorized to cruise in an unregistered boat without special permission from the harbor-master.
4. The owner or hirer of an unregistered boat, making use of a pilot-flag, and not having a licensed pilot onboard, shall be prosecuted before the authorities to whom he is amenable, or whose flag or national ensign he has the right to use.
5. A registered pilot-boat is not permitted to fly the pilot-flag save when there is a licensed pilot or certificated apprentice on board.
- Local Rule 9.—A pilot-boat proceeding temporarily to another port must be reported as about to leave the station; and on her return the fact is to be notified to the harbor-master, in writing, within 24 hours.
- Local Rule 10.—A log shall be kept on board each pilot-boat when on the cruising-ground, according to a form furnished by the harbor-master, to whom the same shall be exhibited when called for.
general regulation 9.
Flags to he exhibited on arrival.
When nearing the anchorage the pilot shall cause to be exhibited * * *—
A red and white flag, (No. 3,) if the vessel is from Hong-Kong, Japan, or any Chinese port.
A blue and white flag, (No. 2,) if from any foreign port.
A yellow and blue, (No. 10,) if the vessel is in ballast.
A red swallow-tail, (No. 5,) if the vessel has gunpowder or other combustibles on board.
* * * By-law.—At the port of New-chwang pilots shall, when nearing the anchorage, cause to be exhibited at the fore-royal masthead—
- If returning to port, No. 1 of Marryatt’s code.
- If from Tien-tsin, No. 2 of Marryatt’s code.
- If from Che-foo, No. 3 of Marryatt’s code.
- If from Shanghai, No. 4 of Marryatt’s code.
- If from Ning-po, No. 5 of Marryatt’s code.
- If from Foo-ehow, No. 6 of Marryatt’s code.
- If from Amoy, No. 7 of Marryatt’s code.
- If from Swatow, No. 8 of Marryatt’s code.
- If from Canton, No. 9 of Marryatt’s code.
- If from Formosa, No. 10 of Marryatt’s code.
- If from Hong-kong, telegraph flag of Marryatt’s code.
- If from Nagasaki, 1st distinguishing pendant of Marryatt’s code.
- If from Hiogo or Kobe, 2d distinguishing pendant of Marryatt’s code.
- If from Yokohama, 3d distinguishing pendant of Marryatt’s code.
general regulation 10.
Harbor-pilots; vessels in harbor: berthing, &c.
* * * No system for harbor-pilots exists at present at New-chwang.
1. The duties of the harbor-pilots, where such exist, * * * will be to take charge of vessels at the outer limit of the anchorage, berth them in accordance with the orders received from the harbor-master’s department, take charge of vessels shifting berths, going in or out of dock, or to and from a wharf, or out of the anchorage; and to assist in and report to the harbor-master’s office all matters concerning the shipping in port, and the conservancy of river or harbor.
2. In berthing vessels, the harbor-master will, as far as possible, meet the wishes of commanding officers and consignees; and the entrance, working, or clearance of vessels; taking berths not assigned to them shall be stopped by the customs until the harbormaster’s orders are complied with.
3. Vessels are to moor in accordance with orders received from the harbor-master, and are not to remove from the anchorage without his permission.
[Page 219]4. Tie harbor-pilotage fees, payable to the harbor-master, * * * are as follows:
| For berthing a vessel or taking her out of port | Taels. |
| For docking, undocking, mooring, &c | |
| For shifting a vessel’s berth | |
| For taking a vessel to or from a wharf | 10 |
∵ By-law.—Although the above charge is made payable by the general regulation to the harbor-master, it is to be paid, when incurred at the port of New-chwang, to the pilots themselves.
The above rules and regulations are provisional, and may be amended or added to according to circumstances.
Harbor-Master.
U. S. Consul, Vice-Consul of Germany, Sweden and Norway, The Netherlands.
Her Britannic Majesty’s Consul, Acting Consul of Denmark, Austro-Hungary, France.
PILOTAGE.
general regulations, local rules, and by-laws for new-chwang.
Notification No. 7.
The inspector-general of customs hereby notifies, for the information and guidance of all whom it may concern, the following amended regulations for the pilotage service in China.
By order inspector-general of customs.
Acting Chief Secretary.
The local rules and by-laws, which are inserted under the general regulations, have been drawn up at this port by the harbor-master in consultation with the treaty-power consuls.
All local rules and by-laws issued previous to this date are hereby canceled.
Commissioner of Customs.
CHINESE PILOTAGE SERVICE.—GENERAL REGULATIONS.
general regulation 1.
By-laws and local rules.
1. By-laws and rules necessary for the better ordering of pilotage matters at the ports are to be drawn up by the harbor-masters, in consultation with the consuls and chambers )f commerce, with whom also it rests, in the same way to fix the number of pilots and tariff of charges, and define the limits of the pilotage ground.
2. The number of pilots for the port of New-chwang shall be limited to twelve.
3. The pilotage ground for the port of New-chwang shall be defined as follows, viz: A radius of five miles from the light-ship when in position at the station-moorings, reckening from the west bank of the river-entrance by the west to the southeast bank of the same outside the bar.
4. The pilotage charges shall be as follows, viz:
| Steamers or sailing-vessels in tow, per foot. | Sailing-vessels, per foot. | |
| Taels. | Taels. | |
| Inward, from south of outer buoy | 3.00 | 4.00 |
| Inward, from inside of outer buoy | 2.00 | 3.00 |
| Outward, from inside of outer buoy | 3.00 | 4.00 |
By-law.—Inward pilotage fees are payable within twenty-four hours of the vessel’s entering at the custom-house, but masters may refuse to pay the said fees until such time as they are assured by the harbor-master or his deputy that the vessel is properly berthed.
Outward pilotage fees are payable before the vessel leaves the anchorage.
general regulation 2.
Pilots—Individuals eligible.
The subjects, citizens, or protégés of treaty-powers shall, equally with natives of China, and without distinction of nationality, be eligible for appointment when vacancies occur by the board of appointment, subject to the general regulations now issued and the by-laws to be under them enforced at the several ports respectively.
By-law.—No person shall be accepted as a candidate for a pilot’s license who cannot produce a proper certificate of service as master or mate.
general regulation 3.
Board of appointment; bow to be constructed.
The board of appointment shall consist of the harbor-master, as president, the (or a) senior pilot, and two persons whose names shall be drawn by lot by the harbor-master, from a list prepared and published by the harbor-master in consultation with the consuls and chamber of commerce.
general regulation 4.
Vacancies; how to be filled up.
- 1.
- Whenever there may be a vacancy among the pilots, it shall be duly notified in the local prints; and eight days afterward the board of appointment shall proceed to fill it up by a competitive examination.
- 2.
- The board may refuse to admit to the examination any one who, having once been a licensed pilot, has had his license withdrawn, and also any candidate who is unable to produce consular certificates as to character, &c.
- 3.
- The examination shall be public and gratuitous, and the vacancies shall be given to the most competent among the candidates, without distinction of nationality; provided, always, the competency of the first on the list be not relative, but absolute.
- 4.
- The consul concerned may, in person or by deputy, be present and take part in the examination of candidates.
- 5.
- The majority of the votes of the members of the board shall decide the admission of candidates for pilot-licenses, each member having one vote in the ballot; but in the absence of the consul concerned the harbor-master shall have a casting vote.