Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1879
No. 112.
Mr. Seward
to Mr. Evarts.
Peking , September 18, 1879. (Received November 4.)
Sir: I bad the honor to transmit to you on the 29th of July a copy of a circular which I had addressed to the consuls in regard to procedure upon the trial of mixed cases occurring between our own people and the subjects of China, and I beg leave to hand to you now copies of the responses which I have received.
You will observe that there is a divergence of opinion between the consuls, but that the tendency is to favor the rule to which I adhere, that all such cases are to be tried in the court of the defendant.
My views on this subject are set forth with exactness in the protocol of November 25, 1876, and the dispatch with which I transmitted that paper to the Department, No. 177, of the 5th December following.
I am in hopes that these views will be fully indorsed at the approaching conference of the ministers at this court, and steps taken to gain the formal assent of the Chinese to it, and to the adoption of a few simple rules of procedure intended to aid our people in their efforts to secure the right hearing of their matters in the Chinese courts. This, of course, would be a modest beginning for judicial reform in mixed cases, but it may prepare the way for something still better.
I have, &c.,
Mr. Lincoln to Mr. Seward .
Sir: I have had the honor to receive your dispatch No. 58, of 26th ultimo, relative to the practice at this consulate in civil cases arising between Chinamen and Americans.
In reply to your interrogatories I have to say:
- 1st.
- Since Mr. Jewell’s administration of this office no such cases as you mention have arisen and been brought to trial.
- 2d.
- We have no mixed court here as at Shanghai.
- 3d.
- It has been and is the custom where claims are presented against natives for the consul to inform defendant of complaint and arrange, if possible, an amicable settlement; if not successful, then to present the case by dispatch to his excellency the viceroy, who, according to its importance, instructs either the prefect or one of the magistrates to take cognizance of the case. At this investigation the consul, with interpreter, plain tiff, and witnesses can be present if they so desire; this is seldom done however. In nearly every instance the case is conducted through correspondence.
- 4th.
- If not satisfactorily adjusted by the prefect or magistrate, complaint would be made to his excellency the viceroy. In case he should concur in the decision rendered, copies of correspondence, &c., would be referred Peking.
- 5th.
- Were a consul present at such trial it would only be to watch the proceedings, and in case of any injustice being done to enter protest. He would be received and treated on such occasions as he would be in making an official call. Seats would be so arranged that neither officer would occupy the seat of honor, though the native official should and would conduct the proceedings.
- 6th.
- In cases where foreigners are defendants and natives plaintiffs, suit would be brought before the consul either direct or through the native authorities at his request. If by the authorities, it would be carried on by correspondence; if by the plaintiff, notice would be issued for parties to appear, witnesses be summoned, &c. If the plaintiff desired a native official to be present, the consul would notify the viceroy of the pending suit, and request him to direct an officer to be present. The prefect would probably be sent, who would occupy a similar position to that of a consul at a trial before a Chinese official. In case of dissatisfaction with the decision, the case would be erred to Peking.
- 7th.
- Judgments against native defendants are enforced by seizure and sale of property and imprisonment of party until liquidation of claim.
- 8th.
- The practice as above stated is preferred by the consuls at this port.
- 9th.
- Taking in view the limited number of foreigners at this port and the infrequency of litigation arising, I think the practice followed here is preferable to the more complicated and formal practice of mixed courts.
Only one case of importance has been brought to suit here within several years. This was a claim for damage, or to enforce specific “performance of contract.” Suit was brought by a French firm against a native silk merchant. The loss sustained by nonperformance of contract was estimated at $80,000. It was tried before the prefect, the French consul, plaintiff, and witnesses being present. The consul claimed the right to and did conduct the proceedings, notwithstanding the prefect’s protest. He gave judgment for plaintiff, the prefect dissenting. Not having authority to enforce his judgment, the case was referred to Peking. I am told that the French minister declined to interfere in the matter, on the ground that the course pursued by the consul had been so erroneous—in fact, ridiculous—that the plaintiff had no other recourse but to submit, and so it ended.
Trusting the foregoing will prove satisfactory as a reply to your No. 58,
I have, &c.,
Mr. Scruggs to Mr. Seward.
Sir: I have had the honor to receive your dispatch No. 141, of the 28th ultimo. It relates to civil cases arising between citizens of the United States and Chinese subjects, and contains some eighteen interrogatories touching the practice in such cases at this port.
The very short time elapsed since I assumed the duties of this office will, I fear, render it impossible to make my responses as full and satisfactory as you desire; but I most cheerfully comply with your request as far as I am able.
And, first, as to your inquiry marked A. The practice at this port, when a Chinese subject is a party to the action, is to notify him of his right to have a native official sit in conjunction with the consul, a right, however, which all Chinamen seem anxious to waive, and which has heretofore been waived in every instance. But, B, should no waiver be made, the consul would insist that the official so sitting be of a rank corresponding to his own; and,
- C.
- —Whether mixed or single, consular courts could scarcely be said to subserve the ends of justice unless “open for the personal appearance of the plaintiff and his witnesses,” or, indeed, to both litigants, for that matter; and, so far as I know, no other rule has obtained here.
- D.
- —In case of mixed courts, it would be but ordinary politeness to tender the seat of honor to the official who should attend at the office or yamên of the other; and when a different place of meeting is designated, relative positions as to precedence would have to be arranged according to those principles of comity recognized among intelligent men. The consul being present as an ex officio magistrate would be there in discharge of judicial functions of course.
- E.
- —In all such courts an interpreter would be necessary, and his position would, ex necessitate rei, be that of a member of the court, possibly with rank similar to that of clerk.
- F.
- —A full and accurate record, and in proper legal form, should be made of all the proceedings; and, so far as I know, this has always been done here. Furthermore,
- G.
- —This record would have to be made by some one duly authorized by the court; most likely the interpreter and his assistants, his position being that already indicated in E; moreover,
- H.
- —It should be in both languages, verified by the judges and signed by them in the alternat.
- I.
- —Appeals from the decisions (or rulings) of the Chinese official, sitting as one of the magistrates, would naturally be to the third magistrate (previously agreed upon), and in default of this precaution to the legation and the Tsung li Yamên.
- J.
- —The taotai, being of equal rank, would probably sit with the consul; the prefect, or inferior magistrate, with the vice or deputy consul.
- Your inquiries marked K and L are believed to be answered in D, E, F, G, and H, as above.
- M.
- —Presumably, the statutes of the United States, construed under liberal interpretation of existing treaties, in so far as applicable; the common law, the law of admiralty, [Page 223] the principles of equity, and of international law applicable to each particular case. And,
- N.
- —Judgments would be enforced by the judges, one or the other, according as the decision be for or against their respective countrymen.
- Your inquiries marked O and P are believed to be answered above in J and A.
- Q.
- —In cases of much magnitude, or where nice questions were involved, or the sum in litigation large, a mixed court would doubtless be preferable, so organized as to give the consul the casting vote, in case of disagreement. Section 4098 of the Revised Statutes seems to be mandatory as well as advisory. Consuls are to encourage settlements (especially of the class of cases indicated) by arbitration; and my observation in this and experience in other countries has been that this method of settlement seldom fails to put a satisfactory end to such controversies.
I am, &c.,
Mr. De Lano to Mr. Seward.
Sir: I have had the honor to receive your dispatch No. 80, of date July 26, making inquiry in regard to the practice at this consulate in civil cases arising between the Chinese and our people, and I proceed to answer your questions in order as they appear in your dispatch.
- A.
- —They are tried by the officer of the defendant.
- B.
- —Usually the district magistrate.
- C.
- —They are not.
- D.
- —He does not, but usually makes up a brief of the case for plaintiff and states what testimony can be produced in support of it. In point of fact the proceedings are irregular and partake very little of the nature of judicial proceedings.
- E.
- —The interpreter is sometimes sent to watch proceedings, and is given a seat next the magistrate’s.
- F.
- —The only record kept on the side of the plaintiff appears in the Record of Official Correspondence. A record of the proceedings of the court is made by the Chinese Hsii pans.
- G.
- —Have never yet had a case of sufficient importance to require the presence of the native assistant of the interpreter.
- H.
- —It is made in Chinese, and a copy of it is given to the consul, if he requires it. The only certification is the seal of the magistrate.
- I.
- —Usually to the prefects, but the consul may, if he chooses, take the case to a higher court; the intendants or the neatais, but if to the latter, application would be made to the governor or governor-general to have such officer deputed to try the case on appeal.
- J.
- —There is no mixed court at this port.
- K.
- —Answered. See J.
- L.
- —Answered. See J.
- M.
- —Answered. See J.
- N.
- —Judgments are enforced by imprisonments or other punishments, such as flogging or torture, but if payments are actually enforced it is usually absorbed wholly or in part by the mandarins and their underlings. I have never yet known of a judgment being paid in full to a foreign plaintiff.
- O.
- —Answered. See J.
- P.
- —Practice is the same in all the consulates, as far as I know. Trials in the consular courts are preferred by foreign defendants, and would be also by most native defendants if it were practicable. Foreign plaintiffs would greatly prefer to have their cases tried in a mixed court if one existed here.
- Q.
- —I have been an advocate of mixed courts, and have often suggested the organization of one here. The proposition has been favorably met by the more enlightened officials, and others have strongly opposed it. I am not advised as to the views of other consuls on the subject. The great distance of the foreign settlement from the city might be urged as an objection to the establishment of such a court.
At the trial of important cases in the court of this consulate, the presence of some intelligent native official is often solicited, but the Chinese officers are very averse to the presence of foreigners in their courts. In fact, I have been obliged to make emphatic demands, based upon treaty stipulations, on occasions, before gaining their assent to the presence of the interpreter in their courts.
If a mixed court could be established here for the trial of causes in which natives are defendants, leaving it optional with native plaintiffs to avail of such court, or bring their suits in the consular courts, as they might elect, the ends of justice might [Page 224] be more easily attained, but it is not likely that such an arrangement would be acceptable to the Chinese authorities.
I have, &c.
Mr. Shepard to Mr. Seward.
Sir: I have the honor to acknowledge receipt of your dispatch No. 68, of July 26, and of No. 69, of July 30. I have not as yet heard from the intendant on the subject of the latter. To the several inquiries of the former I herein respond as fully as in my power.
- A.
- —To your query A, my answer is that at this consulate all civil cases arising between the Chinese and our people have been examined and decided by the officer of the defendant during my term of office; nor do I find any record that the United States consul and any native official have ever sat together as a mixed court.
- B to O.
- —The answers to the series of questions from B to O inclusive are involved in the foregoing, with the explanations to be made in my remarks on the general topic. It is to be remarked, however, that in correspondence with the present Taotai he has claimed that any deputy he might indicate would be competent to act with the consul on equal terms in any investigation arising, but I have dissented from this claim.
- P.
- —I think that no other consular officer here, except Her Britannic Majesty’s consul, has desired any formal trial with a native official. Mr. Consul Hughes, in a conference sought by myself, was understood to say he had on some occasion demanded a joint investigation, but so much hostility to it had arisen and so many obstacles had been interjected that he gave it up in disgust. I think in that case the matter was arranged between deputies of both nationalities. I speak not with absolute certainty, however, for Mr. Hughes has left China, and I cannot verify my recollections of his statement. I can say, nevertheless, that Mr. Hughes fully indorsed my own rights to a full and unconditioned joint examination in a case hereinafter to be referred to (that of Russell & Co.), and in my demand that the Taotai must sit with me in person and upon equal terms, expressing great interest to see my intents fully carried out.
Having thus disposed of the specific questions, I avail myself of your invitation to more fully discuss the several topics of the general subject.
Several cases have been brought to me by Chinamen for breach of civil contract by Americans—for non-payment of wages claimed and for moneys due in various ways. As the official of the defendant, I have in every separate ease been enabled to bring matters to a satisfactory settlement by conference and advice without the necessity of any formal trial. Thus no occasion has arisen for either party to demand an appeal nor for me to call for a formal judicial sitting with a native official, either as a court of the defendant with a Chinese magistrate advising, or as a mixed court. In case such joint action were demanded, I should insist upon an official coadjutor of equal rank with myself, and give him equally honorable position. I should have each witness’s testimony recorded as given by the clerk of the court if in English, and by the Chinese scribe of the court if in Chinese, and each one’s testimony read over to him and by him subscribed, as in courts-martial. I should allow plaintiff’s presence and the introduction of any witness pertinent, to be examined and cross-examined by my native associate at his pleasure. I should be guided in the conduct of the case according to customs of common pleas courts in the United States as far as circumstances were analogous, without a jury. The provisions as to appeals I should apply as they exist in the consular court regulations. Thus much where our people are defendants.
This course of procedure and its results are, I think, in exact conformity with the of ink given by Attorney-General Cushing, September 19, 1855, that “subjects of China and of any government who, by voluntarily making themselves parties complaint ant or demandant before the consular court, appeal pro tanto, to the laws of the United States.”
But there is another class of cases, some of them of considerable magnitude, wherein Americans are the complainants or demandants, and a Chinese the defendant. In Mr. Cushing’s language in the opinion above quoted, “the former must of necessity be content with such judicial or executive action of the Chinese Government in the premises as appertains to their institutions, or * * * as may be required on the part of the public officers of the United States.”
Several such cases have been brought before me, being for violations of contract, for balance of moneys due, and for claims on broken native banks. In the spirit of the language quoted I have uniformly brought these claims before the intendant and sought his intervention in their settlement. With a single exception, the case of [Page 225] Messrs, Russell & Co. versus Shin-Ton-Shan, heretofore reported in full to the legation, the intendant has procured acceptable settlement without formal trials, or at least without any joint action with the consul being demanded. In some instances much correspondence has been required which might largely have been avoided by a joint’ investigation promptly given. But the end has finally been a concession of all the consul demanded for his clients, including money collections, or such arrangements as were satisfactory to the parties complainant. Thus I have had no experience in this class of cases on which to formulate answers to your questions beyond the general replies already recorded.
The suggestions involved in the inquiries marked M, N, and O have often been considered, and my conclusions have not been entirely satisfactory to myself. Of course a consular court in China under United States law is exterritorial, and has no jurisdiction over any persons excepting citizens of our own government. It can take no compulsory course toward any but its own citizens, and can therefore enforce no judgments against the Chinese. The native authorities alone are competent to do this, as Chinese law must prevail over their own subjects, just as we apply United States laws to our people resident in China, the conditions being reversed, i. e., a Chinaman being the complainant against an American. I see no appeal possible, therefore, in the strict legal application of the term.
When a case is wrongfully decided, and when investigation and justice is refused by a native official, the only remedy I have been able to discover is the privilege of reporting the whole matter to the legation, who may present the facts to the foreign board, or other proper authorities. Doubtless here would be the power to see that wrongs were righted, judgments reversed, and exactions made. But it is not to be lost sight of that even the legation, and its nationality itself, must in the ultimate “be content with such judicial or executive action in the premises as appertains to Chinese institutions.” If justice is decreed and enforced it is matter of congratulation; if the contrary, I can only hope for future remedy by wise and successful diplomacy.
Your final query, Q, remains to be noted. For myself, I answer clearly I am in favor of a mixed or joint court, in which the nationalities shall be equally represented, with equal privileges, rights, and authority. Such I deem to have been the intent of Article XXXIII of the treaty of 1858, and it commends itself to my judgment as the reasonable method of reaching a correct result. The facts in any given case may thus be brought to light through the vigilance and in the presence of the two officials, so there can be no mutual doubts, and the standpoints for opinions will be equally grounded. The law governing proceedings must in any event be that of the defendant, since his representative official alone has jurisdiction over his person and property. The prime idea of a trial is, or ought to be, to discover facts. Applications and rulings of law, and administration of judgments are consequents. In civilized courts the presumption is that the law and judgments will correspond to the burden of the facts. In the application of Chinese law and judgments we are at the best at their mercy, and decisions, whether consistent or not, must be accepted finally, so long as there is between them and us no community of ideas, no common law of nations.” I trust it is not an impossible matter for the legations of Christendom to lead the Chinese Government to some proper and authoritative regulations for such a mixed court, wherein due regard may be had to the proprieties of rank and etiquette, as well as to the more vital purpose of securing mutual justice.
From my present light, I can see no such practical good as the certain outcome from a court where an official of one nationality sits as judge and jury, and the other merely attempts to watch proceedings. The authority of the latter is nothing; his influence is nullified, his judgment is silenced, his protests inadmissible. He is in a humiliating position, without even a right to certify proceedings.
In a case now before you, already referred to, where the intendant of this circuit is defendant official, he consents only to a degraded seat for the consul; his interpreter and native scribe are required to be out of sight of the court; examination of witnesses is forbidden except by himself; cross-examination, and even any question to to witnesses, forbidden, and no provision is intended for an official record. I am not sure, however, that in all this he exceeds his rights in such a trial, as seems intended by the provision in the Chefoo convention, from which he models his intended court. If it be his court solely, and no authority is given to plaintiffs official in it, it seems to be quite the correct thing for him to dictate all the minutiae. While protesting against it all, I have recently felt that he was right on the basis of such a court. But, most certainly such a state of facts could never have been contemplated by our treaty as referred to, and is not legitimate from it. The provisions of that treaty are to my mind wise and practicable, and, in my judgment, should be firmly adhered to until the progress of civilization induces China to a greater comity among the family of nations.
I have thus endeavored to meet your request considerately, and with my best judgment, without prolixity.
[Page 226]I am extremely glad you are engaged in the investigation of the subject, for you are aware it has given me much trouble in the defense of the interests of our citizens, and I know of no one point in our relations with China more important. I trust you may succeed in a fortunate solution, and if in any wise I can furnish you other aids or fuller answers, I shall most gladly serve you.
I have, &c.,
Mr. Lord to Mr. Seward .
Sir: I have the honor to acknowledge the receipt of your dispatch No. 42, dated the 26th ultimo, desiring answers to a series of questions relating to the course of procedure at this consulate in civil cases arising betwixt our people and the Chinese. In reply, I beg to submit the following as my answers:
A.—What is the practice at your consulate in civil cases arising between Chinese and our people? Are such cases tried by the officer of the defendant or by the consul and a native officer sitting as a mixed court?”
When cases are brought by the Chinese against our people I hear them, if lean-not persuade a private settlement, which, in all cases, I endeavor 1o do. When eases are brought by our people against the Chinese, my plan has been, first, to inquire carefully into their merits. If satisfied that they are more or less reasonable, I then usually address a private message to the party complained of, if in the neighborhood, requesting him, or them, to call and see me. If they do so, I explain to them the complaint, and advise a private settlement. In the majority of cases my advice is folio wed. In case the party is at a distance, or in case he is near and does not call, or in case he calls and does not heed my advice, then the case is sent either to the taotai, or to the prefect, or to the magistrate of the district in which the party resides, with the request that said officer will enforce settlement. And in nearly all of such cases settlement has been enforced.
There is no mixed court at this place. In one or two instances Chinese officers have attended cases brought against our people; and in one instance I was present at an examination, or hearing, had before the taotai, when Chinese were defendants. These cases were peculiar, and arose from some hoped-for advantage contemplated in that clause of the treaty pointing out this course of procedure.
“B.—If by the officer of the defendant, what native official sits for the trial in cases where a Chinese is the defendant?”
As I have remarked above, as a general thing, there are no mixed hearing of cases. The consul hears the cases when his people are the defendants, and the Chinese magistrate hears the cases when his people are the defendants. This is the common practice. Exceptions have arisen, and they might again arise. As to the officer that would sit in a mixed hearing when Chinese are defendants, supposing such a case to arise, something, I think, would depend on the nature of the case. It might be the taotai, or it might be the, district magistrate, according to its difficulty or importance.
“C.—Are the courts so held open for the personal appearance of the plaintiff and of his witnesses?”
Chinese courts are hardly courts in our sense of the word. The officer in charge of them is very arbitrary and very summary in his proceedings; and the common opinion is that very little care is taken to secure justice. It is a place where Chinese dread to go, either as complainants or defendants, and they often suffer many wrongs in order to avoid it. No case has occurred where an American has attended such court with witnesses. He might possibly do so by previous arrangement of his consul with the officer, but I think it would seldom happen when a consul acquainted with Chinese matters, as they are understood and transacted here, would request such a course of procedure. It would result in no satisfaction, unless the magistrate were favorably disposed. And if he were favorably disposed, it would rarely happen when such attendance would be needed. The consul, in presenting the claims of his people, would be expected to present with them reasonable evidence of their validity. Unless this evidence could be clearly set aside, the case would be summarily decided. And if it were set aside, the case would be referred back to the consul for revision or withdrawal. In short, such matters are usually settled here, if settled at all, by correspondence rather than by judicial processes.
“D.—Does the consul attend; and, if so, what position is given him as to seat, etc., and what part does he take in the proceedings?”
If a case should occur where the consul should ask for a joint hearing, it would no doubt be arranged where the hearing should be. If at the yamên of the Chinese officer [Page 227] the consul would no doubt be requested to take she seat of honor, and all needed respect would be shown him. If he felt competent to question or cross-question or discuss any point of law or fact, he would no doubt be permitted to do so. The influence he would have would of course depend very much upon himself and upon the disposition of the magistrate towards him.
“E.—If the consul attends, does he take an interpreter; if so, what position is given to the interpreter?”
If the consul were to attend a hearing as supposed above, at the office of the Chinese magistrate, he would be likely to take with him an interpreter. If the interpreter were a foreigner he would certainly be treated with respect if his own conduct were respectful. If the interpreter were a native, judging from my own experience (I use only a native interpreter), I think he would be treated with entire respect. He would sit near his consul and act as the consul’s mouthpiece.
“F.—Is a full and accurate record made of the pleadings aud of the proceedings of the court?”
There may be some record kept of the cases brought before Chinese magistrates, but nothing’, I fancy, that could be called an “accurate record”; and pleadings in their courts are probably unknown, but in case a mixed or joint hearing were agreed upon, arrangements, I presume, could be made to secure such record.
“G.—If so, by whom is the record made; and if by the native assistant of the foreign interpreter, what position is assigned to him?”
Of course nothing has been arranged here for such proceedings; but speaking still of a supposed case, so far as I know, the record could be made by the interpreter’s clerk or assistant; and any officer or assistant attached to the consul would no doubt be treated with all needed respect. His position as to seat would naturally be at the side of the interpreter.
“H.—Is the record made in English and Chinese? If so, how are such records, or any which are made, certified to?”
Still speaking of what might be, records made where a Chinese officer is judge would naturally be in Chinese. They could, of course, be made in English also, were the consul provided with a clerk for the purpose; and either or both records, when made, could be read and interpreted in court; and when so read and interpreted, if assented to by magistrate and consul, they should be held to be full and accurate. Copies, or the originals, could be attested by both judge and assessor.
“I.—To what court do appeals from the decision of the native officer lie?”
The rule here is that all matters of debt, crime, or controversy are prosecuted before the district magistrate. There are no rules, as with us, of carrying cases to higher courts; yet it sometimes happens that appeals are made to the prefect, to the taotai, to the viceroy, and even to Peking. The cases presented to the native authorities by myself in behalf of our people are sometimes sent to one officer and sometimes to another. I am governed in this partly by the nature of the case and partly by the place where the party complained of resides.
“J.—If trials are in mixed courts, what native officer acts?
“K.—What positions are assigned to the consul and those with him?
“L.—What records are made and how are they made?
“M.—What law it taken as binding upon the court?
“N.—How are judgments enforced?
“O.—To what court do appeals lie?
“P.—Generally, is it the practice of other consuls at your port to sit in mixed courts, or is the system of trial in the court of the defendant preferred?”
The above seven questions are all answered in saying that there are no mixed courts here. It may have happened with other consuls, as it has once or twice with me, that there has now and then been a case of joint hearing; but, I think, nothing more.
“Q.—Have you any opinion as to which is the preferable procedure? If so, will you be so good as to state it as fully as possible? Will you please add also any remarks on the general subject which may appear appropriate to you?”
My opinion in regard to mixed courts must be mainly theoretical, as I have had no actual experience in them. But from what I think they are, or at least might be, and from what I know of others, my opinion is in favor of them.
In the first place, they seem to me needed in the interest of justice. Justice is the equal right of plaintiff and defendant; and this right relates not only to the matter in dispute, but to the proceedings of the court to which appeal is made. In other words, the parties should have their case decided according to its merits; and in obtaining such decision they should be exempted from all needless inconvenience, and from all needless expense. Now such justice, I suppose, is seldom had, and seldom expected in Chinese courts; for everybody says, and what everybody says is commonly true, that bribery, corruption, and extortion reign in them and rule over them. Chinese courts have no juries, nor have they any adequate system of pleading or of evidence; and their judges are often ignorant, often unprincipled, and always arbitral Then, too, these tribunals, bad as they are, are surrounded by troops of hungry menials, [Page 228] who suffer no one to pass, either in or out, without exactions. I say “no one,” I mean, of course, no native; for over us they have yet no power. In applying to these courts, we ourselves may have little to fear. But this is not enough. It is an inconvenience and an evil to appeal to courts at all, but it is sometimes necessary; and when it is, we not only want justice for ourselves, but we want no injustice for others, however free we may be from its responsibility.
But in prosecuting the Chinese in their courts, as they now exist, we are not only sure to occasion them this wrong, for which we are not responsible, but we are liable to occasion them another for which we are responsible. In other courts there are heavy penalties, such as exposures, costs, fines, and counter-actions to restrain the prosecution of unjust claims; but defendants in Chinese courts have, with regard to us, very little, if any of this protection. Our prosecutions have too much facility, and when our claims are wanting in justice, as may sometimes happen, great and irreparable wrong is committed.
Then, too, we should not overlook the fact that while we can bring our cases into Chinese courts without the restraints above referred to, the Chinese cannot bring their cases into our courts on the same condition. Our courts are open, they can bring their cases into them if they like, but they must do it with the understanding that, if they fail to make them good, they are liable for costs. This, I think, is entirely right and as it should be. The wrong is on the other side, in the constitution and character of Chinese courts; and for this wrong I see no present remedy but the substitution of mixed courts. And if these courts were substituted, and properly organized. I think we should then have the means of securing substantial justice to all parties.
Justice, of course, is the first and great object to be aimed at in this matter, but it is not the only one. These courts would become institutions of great convenience in matters of record, reference, &c. They would also become institutions of great moral influence—training-schools, so to speak, where this people would gradually learn to understand their rights, and acquire power to assert them.
But these, courts, in order to meet the wants to which I have referred, would need great care in their organization, and great care in the selection of officers to preside over them. In theory all this might be easy, but in-practice it would no doubt meet with many obstacles. There would be the native jealousy, and the native incompetency; and for the present, and I know not for how long a time, there would be this difficulty, that our consulates would find it hard, if not impossible, to furnish officers competent to assist, and have the needed influence in these courts. But with all its difficulties the measure may be practicable, and, if so, I should be glad to see it undertaken.
I have, &c.,
Mr. Seward to Mr. Shepard .
Sir: Recurring to your dispatch No, 33, I beg leave to say that I have read your remarks upon the subject with much interest, and that they will be of much value to me in the further consideration of the subject. I entirely agree with you that, looking to the character of native courts and the interests involved, it is indispensable that the foreign officer present in the native court must be admitted to assist his national and the court, by intervention, intended to place the court in full possession of all the facts, and to see that their bearing is understood and appreciated. While in Shanghai I never found difficulty in accomplishing such intervention as fully as could be expected with reason. I accorded like privileges to the native officers who were present upon the trial of cases in which their people were complainants and ours the defendants, and it was a matter of satisfaction to me then, as it is of encouragement to me now, that I never failed to secure the approval of such officers to my judgments.
The views entertained by many that we should establish the principle of mixed courts, and make it effectual by securing the adoption of a code applicable to natives and foreigners alike, to be enforced in such courts, is an attractive one, but I fear that the prospects of success which could be entertained would not be great, and, moreover, as it seems to me, it is not desirable to fix upon the Chinese a system which, in the end, would still be irregular and abnormal. We may enlist Chinese pride in the demonstration of the merits of their courts, and in the introduction of ameliorations of their own system, but we could at best expect only a halting support to an institution of an exotic sort.
I am, &c.,