Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 5, 1881

No. 157.
Mr. Angell to Mr. Blaine.

Legation of the United States,
Peking, April 30, 1881. (Received June 20.)

No. 149.]

Sir: A recent trial in Her Majesty’s supreme court in China has raised certain questions which deserve the most careful consideration of the government of every nation whose citizens are employed as officials by the Chinese Government.

Edward Page, a British subject, employed in the imperial maritime customs at Canton, was arraigned upon an indictment charging him with murder and with manslaughter of a Chinaman, who on the 26th of October last was shot and killed, while attempting to smuggle goods into the country. Page pleaded to the jurisdiction of the court because, while declaring that he was not guilty, his acts on the occasion under consideration were official, and had been examined, approved, and ratified by the Tsung-li Yamên as acts of state. He maintained that Her Majesty’s court ought not to take cognizance of the indictment.

Chief Justice French * * * decided that he must plead. Accordingly he pleaded “not guilty,” was tried and acquitted. On the trial several customs officers, among them one or two Americans, refused as witnesses to give information in their possession on the ground of privilege, maintaining that their information belonged to the Chinese Government, and so could not properly be communicated to the court. The judge ruled that they must testify, but did not punish them for persisting in their refusal.

It is not alone the British who are concerned in the issues now raised. There are now in the customs service citizens of the United States and French and German subjects. The case has therefore attracted the attention of all the diplomatic representatives here, and all have thought it expedient to consult their governments upon the questions which this trial shows may be pressed upon us at any time.

I think the following is a fair statement of the questions in which the consuls and the ministers of the United States may be called to act, and on which therefore instructions, if the Department sees fit to send them before a case with one of our citizens actually arises, would be very acceptable.

1. If an American citizen in the official service of the Chinese Government is charged with crime, must the consul issue a writ for his arrest?

2. Must the accused obey the writ?

3. If he appears in court and pleads to the jurisdiction of the court, on the ground that his act is official and is approved by the Chinese Government, must he on showing that such is the fact, be discharged?

4. Shall any distinction be made between the case, when the person injured or wronged is a Chinaman, and the case when he is a European or American?

5. Shall an American citizen in the official service of the Chinese Government, if he is summoned as a witness, be permitted by the consular court to refuse to give oral evidence on the grounds that he is commanded by his superior to refuse, and that his information is the property of the Chinese government?

It is understood that the customs authorities hold that a plan substantially like the following should be followed:

If a foreigner in the Chinese service is accused, his consul should ascertain of the Chinese authorities whether the act complained of was done in the discharge of official duty. If they reply in the affirmative, the case shall go to the minister, who will adjust it with the Chinese Government. If they reply in the negative, they shall also discharge the accused from their service, and the consul shall take up the case judicially. If the foreign employé is wanted as a witness, the summons shall be sent to him through the Chinese authorities.

I may say that the ministers all fully appreciate the desirableness of sustaining and strengthening the foreign customs as far as possible consistently with the just use of the exterritorial rights which are secured by treaty, and which for the protection of our citizens we must exercise. But I think none are of the opinion that we can go quite so far in waiving jurisdiction as the customs authorities seem to desire.

While the object of this communication is to obtain the opinions of the Department rather than to argue the questions presented, still, perhaps, I may not improperly indicate some of the results of my study of the subject here upon the ground.

I conceive that we must look upon an exercise of jurisdiction over our citizens here not merely as a privilege, but also as a duty. It is a duty to the Chinese, to the citizens of other nations, to our own citizens, and especially to the latter. It is easy to see that if we should suffer lawless American citizens to commit crime with impunity, not only should we bring deserved reproach upon our name but we should furnish a provocation for this people, who do not at all enjoy the presence of foreigners, to subject our well-disposed citizens to annoyance, if not to peril. It is, therefore, only with the greatest caution and for very cogent reasons that we should relax the hold of our laws upon our citizens.

Bearing this obvious principle in mind as we consider the fine questions above raised, I do not see.

1. How when an American citizen, even though he be in the official service of the Chinese Government, is accused of crime, we can safely relieve the consul from the duty of bringing the accused before him for some kind of judicial inquiry into the facts.

2. It follows as a matter of course that the accused must appear in response to the writ.

3. In civil cases, if the defendant pleads and proves that his act is official and approved by the Chinese Government, I think his plea should cover him. But even in such cases he should appear before the consul and plead and prove his official authority for his act. The British Government, in a case which arose in 1863, so instructed the British minister at Peking.

In a criminal case, if the person injured is a Chinaman, and the Chinese Government approves the official act by which the injury has been done, I think, on the whole, the wisest plan is in general to recognize the plea of the accused that he is protected by the approbation of the Chinese Government as valid, and to discharge him. There may be indeed some danger that feelings of animosity against foreign officials will be excited; but the Chinese are so obedient to their government that the danger is not very great, and our government can, if it becomes necessary, forbid its citizens from entering upon the Chinese service. And possibly some limit might be set to the extent to which this plea should be recognized, if it is thought that there is danger of any abuse of it in aggravated cases.

4. If the person injured is not a Chinaman, I do not see how we can escape the duty of judicial investigation. No European government would be content if one of its citizens or subjects were harmed by an American citizen in the alleged discharge of his official duty under the Chinese Government, and the accused were not fully tried in our consular court. Nor, mutatis mutandis, should we be satisfied without a consular trial of a European in the Chinese service who had injured one of our citizens. I doubt whether in any such case the plea of governmental authorization and approval of the act should be accepted as sufficient ground for the discharge of the accused.

5. In respect to what shall be required of Americans in the Chinese service, when they are called into court as witnesses, I think it must be admitted that there are some things which they should not be asked to disclose. They should be permitted to plead privilege to a certain extent. Perhaps it must be left to the consul to decide in each case how far this plea shall be extended. But in view of the inexperience and lack of legal training of some of our consuls, it would be helpful if the government should lay down some general principles for their guidance.

It should of course be regarded as the duty of the consuls and the minister to avoid in every way all unnecessary interference with the officials in the Chinese service and to discourage vexatious proceedings against them. But so long as we claim exterritorial jurisdiction over our citizens, we must faithfully discharge the duties which it imposes upon us.

I have, &c.,

JAMES B. ANGELL.