Mr. Denby to Mr. Blaine.

No. 1049.]

Sir: In compliance with your dispatch No. 476 of December 12, I have the honor to inclose herewith copies of all the correspondence that has taken place between the Tsung-li yamên and myself touching the claim of Louis McCaslin for damages suffered by him in the sudden closing of a bridge of boats by the bridge tenders at Ningpo the 29th day of April, 1887.

My first dispatch is No. 17 and bears date November 17, 1888. I therein set forth in detail all the facts of the case. I make a legal argument designed to show that under the treaties the foreigners in China are entitled to joint investigations by the taotais, at which their consuls may appear and assist. I show that the evidence taken by the taotai was ex parte.

The next inclosure is No. 13 of November 23, 1888, from the foreign office to me. The foreign office therein informs me that it has directed the governor of Che-Kiang to clearly investigate and take action in the premises.

The next inclosure is No. 2 of February 9, 1889, from the foreign office to me. The yamên therein set forth a copy of a communication of the governor of Che-Kiang to it, wherein the bridge-tenders are excused. An argument is made to justify the action of the taotai.

The next inclosure is my communication No. 3 of February 22, 1889, to the yamên. I therein repeat my demand for a joint investigation, and I controvert the facts as stated by the yamên and argue the question of contributory negligence.

The next inclosure is No. 8 of March 3, 1889, from the yamên. They simply reiterate therein that the governor has been instructed to take action. They did not thereafter make any communication to me touching the ordering of a joint investigation of the case. But the governor of Che-Kiang did order such investigation. Thereupon I sent to the’ consul at Ningpo the dispatch of which a copy is hereto appended. It occurred, as is stated in my dispatch No. 988, October 31, that the consul did not produce the foreign witnesses at the joint investigation. The taotai decided that McCaslin was not entitled to damages. The consul reported the matter to me in divers dispatches, of which he will send you copies. Thereupon, on the 6th day of August, 1889, in a communication numbered 21, I addressed the yamên again, of which a translation is herewith inclosed. I therein set forth the inadvertence of the consul in not introducing before the joint commission the evidence of the foreign witnesses, and explain how it arose, and state that it thus happened that the yamên and I did not have the same evidence before us, and request that the last finding in the case be set aside and the case reopened, so that all the evidence can be sent to Peking and the case intelligently heard and examined. On August 14, 1889, the yamên sent to me a communication numbered 23, of which a translation is herewith inclosed. The yamên therein refuses to order the judgment to be reopened and to allow another trial to be had. They go to some length in the case and argue the facts, as well as the law. On the 26th of August, 1889, I sent to the yamên a communication numbered 23, a copy whereof is herewith inclosed. I therein reargue the question of law as to the reopening of the judgment, and seek to show that this case was not a case between individuals, but in its issue was against the local authorities, and that strict rules of law, if applicable [Page 166] at all, ought not to be relied on. I reiterate the fact that the yamên has never had before it all the evidence, and therefore can not decide the case justly, and I offer, in the event that the case is not reopened, to send to the yamên all the evidence in my possession.

On the 4th of September, 1889, in a communication numbered 25, of which a translation is herewith inclosed, the yamên replies to my communication of August 26. The yamên therein claims that the judgment is final and can not be reopened under Chinese law; that the plaintiff did not appear before the court and did not introduce any witnesses, and that he must suffer the consequences of his negligence. Then follow some remarks on the contrast that I had presented between the treatment of the Chinese in America, to whom heavy damages were paid in several cases, and the treatment of Americans in China. This communication ended the correspondence between us.

The dispatch to Consul Pettus heretofore alluded to is No. 28 of April 3, 1889. I inclose herewith a copy thereof. It will be seen that the consul was instructed to attend the joint investigation and “to make the best ease” he could. These instructions were, unfortunately, not carried out literally. It would seem, however, from the whole correspondence, that the yamên would in no event have ordered the payment of damages. If the Department, from a perusal of this correspondence and of such papers as Consul Pettus may forward, concludes that injustice has been done to Mr. McCaslin, it may still be possible some time in the future, following the precedent in the celebrated Hill case, to provide that, in the event of any claim being made by Chinese subjects against the United States for damages, the claim of McCaslin should be recouped.

I have, etc,

Charles Denby.
[Inclosure 1 in No. 1049.]

Mr. Denby to the Tsung-li yamên.

No. 17.]

Your Highness and Your Excellencies: I have the honor to submit for your favorable consideration the following facts touching a claim for damages of Louis McCaslin, a citizen of the United States residing at Ningpo, which has been sent to me by the United States consul. It has been submitted to my Government, and I have been ordered to bring it to the attention of Your Highness and Your Excellencies. The facts, as they appear in bulky depositions and affidavits in my possession, are as follows: On the morning of the 29th of April last Mr. McCaslin, the claimant, entered his house boat with Captain Pratt, wife, and child, and two Chinese servants, together with four Chinese boatmen, and started on a pleasure trip to Ning-wang-shan, some 12 or 15 miles from Ningpo. The weather being unfavorable, they did not go farther, but started on their way home. They came to the bridge of boats, a public highway having drawbridges, or certain pontoons that could be opened for the passage of junks, ships, etc. Mr. McCaslin found the tide high and that an opening was made for the passage of a junk having mandarins on board; he fell into the wake of the junk, so as to keep a safe and speedy passage through, as agreeable to the custom of passage of boats; his house boat was only some 15 feet in the rear of the junk, but on his entering the open space made for the passage of the junk, which had just cleared, to the surprise of all on board the house boat the bridge keepers commenced closing the opening, although the Chinese boatmen begged them not to do so, as did Captain Pratt. Fortunately, but for the presence of mind of Captain Pratt, of the steamer Kiangtun (an old and experienced seaman), the boat would have capsized and about 10 lives on board would have been lost. Mr. McCaslin, the claimant, in aiding Captain Pratt and the boatmen in their time of danger, was struck on the right ear by the pontoon, jamming him up against the forward end of the house boat and knocked him through the door into the boat, causing great injury to his right jawbone, [Page 167] it being broken in three places, both ends of the bone sticking up against the roof of his mouth, his right arm injured and his thumb dislocated, which injuries Dr. Daly, who attended him, declares would be permanent. On the happening of these injuries the consul addressed to the taotai at Ningpo a communication relating thereto and asking an investigation and proper reparation. The taotai replied that the matter should have attention, and directed Major Watson, an Englishman employed on the police, to examine the boatmen touching the same and report.

Consul Pettus was notified May 4, 1888, that the boatmen would be examined on that day. The evidence of the boatmen was taken and is conclusive that the bridge-keepers intentionally shut the gate on the house boat. Afterwards the taotai addressed a note to the consul stating that he had examined these persons connected with the bridge and the evidence of the boatmen, and that he had closed the case. This extraordinary conclusion was reached without giving the consul or Mr. McCaslin any opportunity to be heard at all. The consul remonstrated with the taotai, stating that his conclusion did not correspond with the evidence of the boatmen, copied by his interpreter, and that he demanded, under the treaty stipulations, a joint investigation of the case.

On the 11th of the fourth moon (May 21) the taotai answered that the case was closed upon the evidence he had; but he did not furnish to the consul a copy of the evidence, as he had been requested to do. The consul thereupon notified the taotai that he would himself bold a court of investigation the 2d day of the fifth moon. This examination was held, and the proof was taken. It shows conclusively that the bridge-keepers willfully shut the gate and caused the injuries complained of. In China, if an injury is done by a foreigner to a Chinese subject, it is entirely competent for the injured” party to sue the foreigner in the consular or other court of his nationality. If the case is reversed, and an injury is done by a Chinese subject to a foreigner, the rule is not to sue the Chinese subject in a native court, but to apply to the local authorities for redress, and, failing to get redress, to appeal, as is done in this case, to the legation to present the matter to Your Highness and Your Excellencies for your kind consideration.

Article xxviii of the treaty of 1858 with the United States provides that if controversies arise between citizens of the United States and subjects of China which can not 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. It would seem that the taotai entirely ignored this clause in the treaty. He refused to order a joint investigation and closed the case on ex parte testimony, taken without notice to, and in the absence of, the injured party. As the bridge-keepers in this case were public officials in the employ of the local authorities, they are clearly responsible for their willful misconduct. If this be not so, the foreigner in China would rarely have a remedy for any injury done him, because employés are ordinarily irresponsible.

If redress can not be obtained before the local authorities, the foreigner has no recourse except to treat the claim as one of an international character and to look to the Imperial Government for redress.

In this case the damages suffered by Mr. McCaslin are very serious, and he demands 10,357.50 taels as compensation therefor. The case as presented is important. It is desirable to know whether Your Highness and Your Excellencies will sustain the taotai in his arbitrary refusal to order a joint investigation.

I have the honor to request that he be ordered to have an immediate joint investigation of the case, and to decide it fairly on the facts and law, and, if he refuses to allow Mr. McCaslin any damages, that he be required to report in detail the evidence in the case to Your Highness and Your Excellencies. In that event the evidence presented by the claimant will also appear, and I do not doubt that on appeal to Your Highness and Your Excellencies and myself we will arrive at a correct conclusion. Should this course be not adopted, I have then to request that Your Highness and Your Excellencies will kindly consider the evidence in my possession, which will be furnished to you if desired, and that, after examining it, Your Highness and Your Excellencies will order the sum demanded to be paid to the claimant.

With assurances, etc.,

Charles Denby.
[Inclosure 2 in No. 1049—Translation.]

The Tsung-li yamên to Mr. Denby.

No. 13.]

Your Excellency: Upon the 17th of November the prince and ministers had the honor to receive a communication from Your Excellency in regard to the case of Mr. Louis McCaslin, an American merchant, who sustained injuries at the hands of the [Page 168] bridge-keeper in charge of the bridge of boats at Ningpo, and that the intendant of Ningpo had refused to hold a joint investigation of the case with the consul.

Your Excellency requested that the intendant be instructed to take up the case and deal with it fairly, etc.

In reply, the prince and ministers would observe that the yamên have already sent a communication to the governor of Che-kiang to clearly investigate and take action in the premises, and on receipt of his report they will inform Your Excellency.

As in duty bound, the prince and ministers send this communication beforehand for Your Excellency’s information.

To His Excellency Charles Denby.

[Inclosure 3 in No. 1049—Translation.]

The Tsung-li yamên to Mr. Denby.

No. 2—1889.]

Your Excellency: Upon the 17th of November, 1888, the prince and ministers had the honor to receive a communication from Your Excellency in regard to the injuries which Mr. Louis McCaslin received at the bridge of boats (in Ningpo), wherein you requested that instructions be sent the Ningpo taotai to at once hold a joint investigation of the case and to satisfactorily decide the same in an impartial manner, etc. At the time the yamên addressed a communication upon the subject to the governor of Che-kiang and also acknowledged Your Excellency’s communication, all of which is a matter of record. The governor of Che-kiang has replied, giving the following statement submitted to him by the taotai of the Ning-Shao-Tai circuit (Ningpo), viz: “He has carefully examined and made inquiries and had obtained the true facts of the case, and it appears that the men in charge of the bridge really had no intention to try to do evil or harm to Mr. McCaslin as a matter of revenge; that it was a question of carelessness on the part of the boatmen, and he certainly could not hold the bridgemen responsible for the offense of causing the collision. Further, there is the evidence taken by Major Watson. The said foreign merchant has gradually recovered from his injuries, and there is no need to hold a joint investigation, thus saving further trouble.”

Having received the yamên’s communication, the governor respectfully presents the circumstances of the action taken by the Ningpo taotai, together with copies of the correspondence (between the consul and the taotai), the evidence taken at the police office, and the facts or circumstances ascertained upon inquiry.

With regard to this case, it seems that the said taotai had carefully examined into and made secret inquiries regarding it, and, as there was not the least ground to doubt that what was right and proper had been done, he thereupon gave his decision. Further, when the examination was held at the police office, the interpreter of the United States consulate was present and watched the proceedings, and this should be regarded in the same light as a joint investigation. As in duty bound, the prince and ministers transmit herewith a copy of the reply of the governor of Che-kiang for Your Excellency’s perusal. Besides, there is the evidence taken at the police office and the facts ascertained by secret inquiries being made by the police in disguised dress; but, as Your Excellency stated in your dispatch that you had on file in your legation the papers and evidence of the ease, copies of them are not sent. But should Your Excellency wish to peruse them, the prince and ministers will have copies made and transmitted to you.

A necessary communication, etc.

[Inclosure 4 in No. 1049.]

Mr. Denby to the Tsung-li yamên.

No. 3—1889.]

Your Highness and Your Excellencies: I have the honor to acknowledge the receipt of the communication of Your Highness and Your Excellencies to me of date the 9th of February, 1889, in regard to the claim for injuries received by Louis McCaslin at the bridge of boats at Ningpo.

You therein state that the evidence was taken before the police superintendent, Major Watson, and that the taotai “made secret inquiries,” and that a joint investigation which the treaty requires is not necessary. I know of no mode of arriving [Page 169] at the whole truth in judicial matters except an open investigation, at which both parties are present and have the right to sift matters to the bottom by examination and cross-examination of witnesses. This case fully illustrates this idea. I have before me the evidence of the boatmen, which fully sustains the justice of the claim. Your Highness and Your Excellencies also allude to the evidence in your possession, which can not be the same as that which is in mine. You allude, also, to “secret inquiries.” But if “secret inquiries” are to control, all persons could make any statement they pleased.

  • The first boatman examined states: “We called out to the people not to close; they looked at our boat, and, seeing it was foreign, they turned and closed the bridge.”
  • The second boatman says the injuries happened “because the bridge-keepers persisted in closing the bridge, although we repeatedly asked them not to when the boat was partly through.”
  • The third boatman says: “The houseboat was partly through the bridge when the keepers began closing it; we called out to them to stop, but they looked at us and took no notice; they turned and proceeded to close the bridge.”
  • The fourth boatman says: “We shouted to them not to close, but they took no heed, but proceeded to shut the bridge, striking our boat.”

This is the evidence as reported to me, which was taken at the Compo police station. Negligence or a willful desire to inflict injury could scarcely be more clearly shown.

Other proof in my possession from foreign witnesses is still stronger. Some stress is laid upon the statement that Mr. McCaslin has gradually recovered from his injuries. That has nothing to do with his right to recover damages.

Some stress is laid, also, on the statement in the report that if Mr. McCaslin had not gone to the front of the boat he would not have been injured. This may or may not be true. It is altogether likely that his courage and devotion prevented a serious accident, which would have resulted in the sinking of his boat and the drowning of all the occupants thereof. But, however that may be, it is a universal principle that where, by the negligence of others, a man is put in circumstances of great peril he is not chargeable with negligence, even if, acting on the spur of the moment, he runs into danger. Thus, when a collision takes place between two vehicles, one who endeavors to save himself by jumping and is therefore injured is not liable to have imprudence or carelessness imputed to him. But this is not the time to argue what the effect of evidence is. The evidence has not been taken by a joint investigation, and we have not got it in full before us. This mode of examination is just to all parties. If Your Highness and Your Excellencies establish the precedent that a joint investigation shall not be had whenever the said taotai announces that he has prejudged the case it will return to plague you on many future occasions. It may work in your favor in this instance, but your opponents may rely upon it when it suits them, and a correct decision may thus be often avoided. I trust that on a reconsideration of the question Your Highness and Your Excellencies will see that no harm can possibly arise by standing by the rule that legal investigations affecting foreigners under the treaties should be open and joint. I ask at present that the taotai be ordered to hear this case in the regular way and to report the evidence taken before the joint tribunal. The presence of the interpreter of the consulate at the police officers’ examination was in no sense a joint investigation. If, however, Your Highness and Your Excellencies so consider it, then I say that the evidence taken sustains Mr. McCaslin’s claim, and I have only to ask that it be ordered to be paid.

With assurances, etc.,

Charles Denby.
[Inclosure 5 in No. 1049.—Translation.]

The Tsung-li yamên to Mr. Denby.

No. 8.]

Your Excellency: Upon the 22d of February last the prince and ministers bad the honor to receive Your Excellency’s communication in regard to the claim for injuries received by Louis McCaslin at the bridge of boats at Ningpo. You state in your communication that the evidence of the boatmen in possession of the yamên can not be the same as that in Your Excellency’s, and you again request that the taotai be ordered to hear the case in regular way before a joint tribunal with the consul. The yamên have addressed the governor of Che-kiang to instruct the taotai to satisfactorily and speedily take action in the premises, and on receipt of a report the prince and ministers will inform Your Excellency. In the meantime, as in duty bound, the prince and ministers send this communication for Your Excellency’s information.

A necessary communication, etc.

[Page 170]
[Inclosure 6 in No. 1049.]

Mr. Denby to the Tsung-li yamên.

No. 21.]

Your Highness and Your Excellencies: On the 22d of February I had the honor to ask Your Highness and Your Excellencies to order that a joint investigation of the McCaslin case be had by the taotai and the American consul at Ningpo. Your Highness and Your Excellencies kindly agreed to this proposition, and the joint investigation was ordered. The American consul inquired of the taotai whether he should introduce the foreign witnesses whose testimony had already been taken by him, and he was told to “suit himself.” He took this statement as meaning that the foreign witnesses need not be introduced before the taotai, but that their evidence already given would be considered by the taotai the same as if they had been examined before him. But after the taotai had taken the testimony of the native witnesses he refused to consider the testimony of the foreign witnesses on the ground that it was not taken before him. It thus happens that the only proof that avails Mr. McCaslin is the testimony of the four boatmen, and that you will still not have before you when you undertake to consider this case any proof of the foreign witnesses, which is most material to the plaintiff’s case.

Article iv of the treaty of 1880 between China and the United States, which is entitled, “Treaty concerning commercial intercourse and judicial procedure,” provides that in controversies arising between the subjects of China and the citizens of the United States the properly authorized official of the plaintiff’s nationality, “if he so desires, shall have the right to be present, to examine and to cross-examine witnesses. The American consul would have availed himself of this right if he had not been misled by the taotai’s statement above quoted. I have the honor, therefore, to request that Your Highness and Your Excellencies will direct the taotai at Ningpo to reopen the case and to examine the foreign witnesses in the presence of the United States consul. Then, if the taotai decides that no compensation is due to the plaintiff, he be directed to send all the evidence, foreign and native, to Your Highness and Your Excellencies, so that Your Highness, Your Excellencies and myself can have before us the same evidence and can arrive at a just conclusion.

I avail, etc.,

Charles Denby.
[Inclosure 7 in No. 1049—Translation.]

The Tsung-li yamên to Mr. Denby.

No. 23.]

Your Excellency: On the 6th instant the prince and ministers had the honor to receive a communication from Your Excellency in relation to the case of Louis McCaslin, wherein you requested that the taotai of Ningpo be directed to reopen the case and examine the foreign witnesses in the presence of the United States consul, etc.

In this case the prince and ministers would observe, that after receiving Your Excellency’s communication in February last, in compliance with Your Excellency’s request, they instructed the Ningpo taotai to satisfactorily and speedily take action in the premises. Now, that officer has recently presented a report embracing all the circumstances, a minute and detailed statement of which the prince and ministers present to Your Excellency. With regard to this case, if there never had been from the first to last a joint investigation of it, the prince and ministers would naturally have taken action in accordance with the request contained in Your Excellency’s communication. But before the joint investigation took place the taotai addressed a communication to the United States consul at Ningpo, wherein he stated that, as to summoning the plaintiff or not, it was a question which he (the consul) must decide for himself. The taotai was, moreover, of the opinion that the plaintiff should, of course, appear in court; but, as he was a foreigner, he consequently requested the consul to act in the matter himself. When the joint investigation was opened, the plaintiff was not present; the taotai thereupon inquired of the consul the reason of his nonappearance, and the reply he received was that he was engaged, or had business, and did not come. But the consul did not state that, as the plaintiff had failed to appear in court, the case could not be determined; neither did he mention that, as the witnesses were not all present, the hearing should be postponed until another day. It is evident, therefore, that the taking of the evidence of the boatmen and bridgemen, representing both parties to the cause of action, was ample and sufficient to decide [Page 171] the case. But if the plaintiff really and truly felt that he had been wronged or oppressed, he naturally would have shown an anxious desire to appear in court and pray for redress. Then, again, if he were engaged, he should also (in that event) necessarily have gone to the court to watch the proceedings—this is a well-settled governing principle. But as it is, the plaintiff, since he did not appear in court (at the joint investigation), nor request the consul to communicate with the Ningpo taotai asking that the hearing of the case be postponed; and, further, as to the question whether he should have appeared in court or not—in all these the wrong or blame rests with himself. It is the universal rule or practice in the courts of western countries that when a case has been clearly set down for hearing at a fixed time, and the plaintiff has failed to appear in court, the judge can not wait, and the cause at issue can be im-immediately decided. In the case under consideration, since there were witnesses for the prosecution present in court whose testimony was taken conjointly by the taotai and consul, a decision should, of course, be rendered; and the action taken was not at variance with what is fitting and right. Further, the four boatmen were employed by the plaintiff, and really if they had not heedlessly and rashly ventured in the path of danger how could they have been willing to become resigned and submissive?

The old bridge of boats is an important thoroughfare, and there was hung up a prohibitory notification against small boats following in the wake of the large boats passing through the bridge; but they must pass through the opening or arch on the east, on the side of which is suspended these characters, Tui Wo Lui, “come this way.” The old regulations are all very clear and explicit. Mr. McCaslin’s boat had violated the regulations; he was desirous of seeking his own convenience and had rashly and blindly followed the large boat, with the result that he received injuries. But certainly the fault is entirely his own. The same, for instance, as in western countries, where prohibitory notices are posted on railroads warning persons that no blame can attach to the railway companies if any persons who, seeking their own convenience, heedlessly venture in the way of danger, are thereby killed or wounded. The circumstances attending the present case are precisely identical. In a word, this case has been tried before a joint tribunal in a clear and thorough manner. The plaintiff failing to appear before the court, it was right that upon the evidence submitted a decision should be pronounced. In China, as well as in western countries, the modus operandi is the same. The examination of the witnesses having finished, the decision rendered was still in accordance with the former one (given by previous taotai).

The United States consul did not make any comments, from which it may be known that the taotai had certainly not been unjust or indulgent in the treatment of the case. Therefore, the request which Your Excellency has at this time made, that another joint trial be made, is one which the prince and ministers find it difficult to comply with.

And, as in duty bound, they present the foregoing circumstances of the case as presented by the Ningpo taotai, which, they hope, will receive a candid examination by Your Excellency.

A necessary communication, etc.

[Inclosure 8 in No. 1049.]

Mr. Denby to the Tsung-li yamên.

No. 23.]

Your Highness and Your Excellencies: On the 17th instant I had the honor to receive a communication from Your Highness and Your Excellencies in relation to the case of Louis McCaslin, wherein you decline to direct the taotai at Ningpo to reopen the said case for the purpose of bearing the testimony of the foreign witnesses. By a misconception of my implicit instructions, and by a misconception, also, of the real meaning of the statement made by the taotai as to the necessity of producing the said witness before the joint commission, the consul had failed to summon the important witnesses of the plaintiff to appear. Your Highness and Your Excellencies correctly state the facts preceding the last examination. My purpose in asking for an order that the witnesses should all be reëxamined before a joint commission was simply that Your Highness and Your Excellencies and I might have before us in the discussion of the case exactly the same evidence. This result has not been obtained. While I have before me all the evidence, as well of native as of foreign witnesses, Your Highness and Your Excellencies still have only the evidence reported by the taotai, which does not cover the evidence of the foreign witnesses. How, then, can Your Highness and Your Excellencies determine as to the merits of the case with only one-half of the evidence in your possession?

[Page 172]

In the consideration of this case it is well to hear in mind that it was not an ordinary suit at law by one individual against another, by an American citizen against a Chinese subject. It was essentially a claim against the local authorities for an injury done by their servants, the bridge-tenders. The joint commission was resorted to by me as presenting the surest method of securing all the evidence. Not being a suit by an individual against another individual, the strict rules of law do not apply to it. But even if they did, in western countries several methods are provided for reopening judgments when they are claimed to be erroneous. The fact on which Your Highness and Your Excellencies comment, that the plaintiff McCaslin did not appear, has no significance. All the facts could be proved by other disinterested witnesses. In western countries it is not at all necessary that the plaintiff should appear, and it is only within a comparatively few years that the plaintiff has been permitted to give his own testimony as a witness. Your Highness and Your Excellencies proceed to argue the case on its merits, although you have not before you any of the testimony of the foreign witnesses, which was most important to a proper understanding of the facts. Your Highness and Your Excellencies seem to base your conclusion that Mr. McCaslin ought to receive no damages on the statement that he was himself guilty of negligence, that he violated the rules as to passing the bridge. I am not greatly learned in Chinese jurisprudence. What I do know of it induces me to believe that identical principles of right and justice underlie the civil jurisprudence of all civilized nations, and Your Highness and Your Excellencies can not properly determine whether McCaslin was guilty of negligence or not, not having all the evidence before you. Where an injury has been willfully and wantonly indicted, the negligence of the injured party cuts no figure. Thus, if a person comes expressly to kill me and I am guilty of negligence in not properly taking precautions to defend myself, I am, nevertheless, entitled to damages for the wrongful act. I claim in this case that the whole evidence will show that the bridge-tenders were repeatedly warned and begged not to close the bridge, and that they wantonly and willfullydid so, although they knew that their act in so doing would cause great injury to the occupants of the boat and possibly loss of life. If this be true, it does not at all matter in point of law that the boatmen ought not to have attempted to pass by the opening in which the injury occurred. I therefore renew my request that the evidence of the foreign witnesses maybe taken before the taotai and reported to Your Highness and Your Excellencies for your final action. Failing in that, I ask to be permitted to send to Your Highness and Your Excellencies the evidence on file in my legation, and that this claim be considered in view of all the evidence heretofore taken. If, in the end, Your Highness and Your Excellencies adhere to your present decision, I can simply report your determination to my Government.

I beg leave to remind Your Highness and Your Excellencies in all courtesy that my Government, in matters of a character similar to this, has been exceedingly liberal in dealing with the claims of Chinese subjects who have suffered injuries in the United States, having paid in a short period nearly half a million of dollars for such purpose.

I have, etc.,

Charles Denby.

Inclosure 9 in No. 1049.—Translation.

The Tsung-li yamèn to Mr. Denby.

No. 25.]

Your Excellency: On the 26th of August the prince and ministers had the honor to receive a communication from Your Excellency in relation to the case of Louis McCaslin, wherein you again request that the Ningpo taotai be directed to reopen the case and take the evidence before a joint tribunal of the foreign witnesses and to report it to the yamên for final action in the premises, etc.

In regard to this case, it was clearly and concisely discussed in the yamên’s communication in reply to Your Excellency of August 14, and there is now no need to reiterate the arguments then presented. But from Your Excellency’s dispatch it would seem that your wish is to have the case determined here and between the yamên and yourself. The prince and ministers are of the opinion that in the trial of cases it is natural to take the evidence submitted in court and rely on it as the proof. Before the joint examination commenced the Ningpo taotai stated to the consul that as to whether the plaintiff should appear before the court or not was a question which he must decide for himself. At the joint investigation, however, the plaintiff did not appear, as the consul did not summon him. It was not (the case) that the taotai did not wish to take the testimony of the foreign witnesses. A decision in the case was thereupon rendered upon all the evidence submitted without objection or opposition from any of the parties (literally, all of them). Now, after judgment has been rendered [Page 173] and the case settled, Your Excellency requests that the taotai be instructed to reopen the case for the purpose of taking, conjointly with the consul, the evidence of the foreign witnesses. Such a rule of action or procedure has never been practiced in China.

In Your Excellency’s communication you observe: “By a misconception of your implicit instructions, and by a misconception, also, of the meaning of the statement made by the taotai as to the necessity of producing the said witnesses before the joint commission, the consul failed to summon the witnesses of the plaintiff” etc.

To this the prince and ministers would remark that the charge of carelessness must be borne by and rest on the consul; the Chinese authorities have not acted in an unreasonable or unjust manner. Your Excellency further remarks that your Government, in matters of a character similar to this, has been exceedingly liberal in dealing with the claims of Chinese subjects who have suffered injuries in the United States, having paid, within a short period, nearly a half million of dollars for such purposes. In regard to the cases at Rock Springs and other places, which occurred in recent years, these were cases where many innocent Chinese, who had committed no crime, were killed and their houses and property destroyed. The suffering and cruel treatment they endured one can not bear to express. The United States Government indemnified the sufferers as an act of commiseration, which fully evinced a staunch and thorough feeling of friendship on the part of a friendly nation, and China is not unaware of this and is grateful for this act. But the circumstances of the present case are different and should not be taken up as being the same and discussed from that standpoint. The prince and ministers therefore present to Your Excellency the true circumstances upon which they can not consent to having a further joint examination for the taking of the testimony of foreign witnesses, and they still hope that Your Excellency will view their decision in a candid and fair spirit.

A necessary communication, etc.

[Inclosure 10 in No. 1049.]

Mr. Denby to Mr. Pettus.

No. 28.]

Sir: Your dispatch No. 37 of the 25th ultimo is at hand.

After considerable discussion with the Tsung-li yamên, I am satisfied that the better plan will be to have the joint investigation which the yamên has ordered. This, on the part of the yamên, is a concession which may pave the way to the recovery of damages. They insisted on the evidence which the taotai sent forward; I insisted on that which you had sent me. A joint investigation will secure the same evidence. After you have taken it, if the taotai still refuses satisfaction, you can appeal to the legation. Then the evidence will be undisputed and there will be common ground for the yamên and the legation to meet on. There is no other possible solution, because as long as the yamên relies on proof which differs from the proof sent by you nothing can be done. I am satisfied that the consent to have a joint investigation is the beginning of a concession which will lead to a payment of damages. Your dispatch is the first intimation I have had that a joint investigation had been ordered. You are therefore instructed to consent to a joint investigation and to make the best case you can. With my knowledge of Chinese character, I am induced to believe that you and the taotai can agree on a settlement if you can make the necessary overtures. If you do not agree, then let the case come to Peking as an appeal from a joint investigation, as the treaty provides.

Charles Denby.