Mr. Denby to Mr. Blaine .

No. 1113.]

Sir: In further reply to your dispatch No. 510 of March 24, 1890, relating to the claim of Louis McCaslin for injuries received by the wrongful closing of a bridge of boats at Ningpo, April 29, 1888, I have the honor to state that I have sent to the foreign office a communication, of which a copy is herewith inclosed.

I have, etc.,

Charles Denby.
[Inclosure in No. 1113.]

Mr. Denby to the Tsung-li-yamên.

No. 5.]

Your Highness and Your Excellencies: I have the honor to inform Your Highness and Your Excellencies that I have received instructions from my Government, to again bring to your attention the necessity of having a joint investigation in the McCaslin case, being a claim against the Government of China for injuries suffered by Louis McCaslin at Ningpo, April 29, 1888.

As to the most satisfactory mode of communicating the views of my Government, I have the honor to send you a translation of the material part of the dispatch I have received.

“I have to inform you that the Department has received from Mr. Pettus, United States consul at Ningpo, a dispatch bearing date the 12th of February, in which he transmits copies of his correspondence with yourself and the taotai and a report of the evidence in the case.

“The purpose of the new investigation of the matter by Mr. Pettus and the taoti was to take the evidence of the native and the foreign witnesses jointly. Each side had previously examined its own witnesses separately, and for this reason each refused to accept the testimony taken by the other.

“It thus became necessary, in order to secure a common ground for discussion, to have all the testimony taken jointly by the representatives of the United States and China. This point is made clear by the correspondence in the case and by your instructions to Mr. Pettus. The only explanation of his omission to produce his witnesses is found in the response of the taotai to his inquiry whether the foreign witnesses should be called. ‘If,’ said Mr. Pettus in his letter to the taotai of April 15, 1889, ‘you also wish that the foreign witnesses be called in again and their evidence retaken, I can have them summoned for the date decided upon.’

[Page 182]

“In his letter of the 1st of May, 1889, the taoti, replying to Mr. Pettus’s inquiry, said: ‘I beg to state you must suit yourself about the foreign witnesses.’

“From this Mr. Pettus inferred, and seems to have had good grounds to infer, that the presence and reëxamination of the foreign winesses would not be required.

“The natural construction of the taotai’s language would be that, if Mr. Pettus desired to reëxamine his witnesses for the purpose of eliciting new evidence, he would be at liberty to do so, but that, if he preferred, he might let the claimant’s case rest on the evidence already taken. When, however, the taotai had examined the native witnesses, he closed the case, refusing to consider the evidence of the foreign witnesses previously taken, and rendered a decision against the claimant.

“The first and only object of the reëxamination of the case was thus completely defeated by a misunderstanding, for which the taotai was certainly largely responsible, and of which he took advantage.

“It can not be said that there has been any joint investigation of the case in the sense in which that term was understood by yourself and the imperial authorities when Mr. Pettus and the taotai were respectively instructed to proceed to the reexamination of the matter.

“The Imperial Government should not permit a fair and just consideration of the case to be prevented by such a misunderstanding between the consul and the taotai, or permit an adverse judgment of so doubtful a character to stand.

“You are instructed to communicate these views to the Imperial Government.”

I made substantially the same argument to Your Highness and Your Excellencies on divers occasions.

My Government puts the facts and the law in a very strong light, and I trust that Your Highness will now see the propriety of setting aside the judgment complained of, and that justice may be done.

I avail, etc.,

Charles Denby.