No. 179.
Mr. Cadwalader to Mr. Avery.
Washington, August 16, 1875.
Sir: Your No. 70, treating of the right of persons of foreign nationality employed in the Chinese customs-service to sit in conjunction with the United States consular officers in the trial of causes, has been received.
From your dispatch and the in closures it appears that the Taotai at Tien-tsin deputed Mr. Twinem, a British subject, and acting customs-commissioner in the Chinese service, to sit in his stead, in conjunction with Chinese deputies, in Mr. Sheppard’s consular court during the trial of an important case, whom Mr. Sheppard refused to receive in that capacity.
The 28th section of the treaty of 1858 provides “that if controversies arise between citizens of the United States and subjects of China which cannot be amicably settled otherwise, the same shall be examined and decided conformably to justice and equity by the public officers of the two nations acting in conjunction.”
Substantially the same provision was contained in the Russian, French, and English treaties negotiated in 1858. In these, however, the officials referred to were designated as the “Chinese authorities” instead of public officers.
It is quite clear that these provisions, among other things, were intended to secure the attendance of a Chinese official of position and influence on the occasion of a trial of this nature, who might not only watch over the interests of his own countrymen, and assist in a proper manner therein, but whose standing, intelligence, and rank would serve as an assurance to his countrymen of the justice of the judgment which might be rendered.
The precise official designated was not named, because within the limits I have referred to it might well be left to the Chinese authorities to choose such person as might from time to time be best fitted to attain the desired end.
[Page 401]A foreigner, however, and a person of inferior position, although attached to a branch of the Chinese service, such as Mr. Twinem, complies with none of the requisites, is in no respect a public officer of the Chinese nation within the meaning of the treaty, and his presence could not secure the intended purpose.
Mr. Sheppard’s refusal to allow Mr. Twinem to sit was proper, and his course on the question seems to have been dignified and judicious.
I have referred only to the general question, and have not adverted to the fact that Mr. Twinem seems to have caused and kept alive the difficulty, and that the Taotai seems to have been otherwise represented, as those matters which would apply to this case alone were disposed of at the time.
I am, &c.,
Acting Secretary.