Mr. Denby to Mr.
Blaine.
[Extract.]
Legation of
the United States,
Peking, December 13, 1890.
(Received February 7, 1891.)
No. 1212.]
Sir: As the foreign office did not answer my
communications relating to the McCaslin case, of which copies were inclosed
to you in my dispatches Nos. 1113, of May 5,1890, and 1125, of July 26,1890,
I again addressed the prince and ministers on the subject. I inclose
herewith a translation of their reply. It will be seen that they reiterate
the same arguments that they have often presented heretofore. In adhering to
the pretense of the binding force, of the judgment in this case, they cite a
quotation from one of my papers in the Russell case, wherein I stated that
“several years had elapsed since the original judgment was rendered; that
the original judgment had never been attacked in any way;” and that I could
not consent at this late date that the proceedings Should be set aside and
new trial ordered. They argue that the same principle applies to the Ningpo
case. They thus seek to put upon me the first allegation of the binding
effect of judgments, although I plainly showed them that in the western
systems of jurisprudence there were motions for new trials, bills of review,
and other modes of correcting errors in judicial proceedings. The order of
facts was this: In the McCaslin case, the yamén contended that the judgment
was a finality; in the Russell case, which arose after the McCaslin case,
the yamén sought to open the judgment; I quoted their words in the McCaslin
case to the effect that they had decided that a judgment could not be
opened. Now they seek to make it appear that I first advanced this theory in
order that in the Russell case they may still insist on the opening of the
judgment. My opinion is that the McCaslin case will have to be reserved for
final presentation when some financial settlement of mutual demand shall be
on tapis between the two countries. An examination of the proof submitted by
the consul will show that placards had been put up prohibiting foreign boats
from going through the opening where the accident happened. On this ground
the yamén contends that there exists no liability to pay damages. On our
side we rely on a willful intention to commit the injury. But the Chinese do
not understand these nice legal distinctions. Besides two taotais have heard
the case, and a third is now at Ningpo. I was anxious to vindicate Mr.
Pettus, who, not being a lawyer by profession, did the best he could. But I
think this case will have to stand over until a time arrives when something
may be done by mutual arrangement. The yamén excuses its delay in answering
my dispatches by the statement that I had said I proposed to call and orally
discuss this case. Such was my intention; but, in view of the pendency of
other matters of vastly greater importance that I was not prepared to
discuss, I deemed it advisable to postpone for the present a personal
interview.
I have, etc.,
[Inclosure in No.
1212.—Translation.]
The tsung-li yamén to Mr.
Denby.
Peking, December 8,
1890.
Your Excellency: Upon the 27th of November last
the prince and ministers had the honor to receive a communication from
your excellency in regard to the case of Louis McCaslin, wherein you
pointed out that in the communications (of May 5,1890, and August 4,
1890) you set out the views expressed by the honorable Secretary of
State that the trial heretofore had of the case was incomplete and
unsatisfactory,
[Page 355]
because by a
misunderstanding the foreign witnesses were not produced at the trial, %
and their testimony was not taken; that a new trial should be had, and
you desired an early reply as to the determination the prince and
ministers had come to in the premises, etc. With regard to this case,
the yamén had the honor to address your excellency two communications,
one dated the 14th of August, 1889, and the other dated the 4th of
September, 1889, wherein the views and position taken by the prince and
ministers were clearly set forth.
If at the time the joint hearing of the case was held before the taotai
and consul the consul objected to judgment being then rendered, he had
only to state his views in court and either have the foreign witnesses
again summoned to appear or have a time fixed for another joint
investigation of the matter at issue. On the day of the hearing one word
from the consul would have prevented judgment being rendered. But
judgment was rendered on the evidence submitted, and there were no
objections raised from either side. Further, there were four witnesses
for the prosecution who appeared in court; the only persons failing to
appear were the foreign witnesses, and it is clear and apparent that
they realized that the case was of an unsatisfactory nature, and they
therefore avoided putting in an appearance in court and for the purpose
of assuming a wily and crafty position. The case has been decided for a
long time, and the request of your excellency that judgment be reopened
on account of a misapprehension of the consul of the taotais views is
one that the yamén finds difficult to comply with. There can be no harm
in your excellency submitting the circumstances appertaining to this
case as set forth in the various communications of the yamén for the
consideration of the honorable Secretary of State, which will enable him
to see and understand for himself that China, in the action taken in the
case under consideration, has not in the least acted unfairly or
unjustly. The action taken accords with the representation made by your
excellency in the case of Russell & Co. versus Chen Tse Chi, “that several years had elapsed since the
original judgment was rendered; that the original judgment had never
been attacked in any way; and that you could not consent that at this
late date the proceedings should be set aside and a new trial ordered.”
Your excellency will clearly see that the same principle applies to both
cases. The yamén were about sending a reply to your excellency’s
communication of the 5th of May, but your excellency had already left
Peking. As to the communication of the 4th of August last, your
excellency stated in it that you intended to discuss the question of the
McCaslin claim orally with the yamén; hence the prince and ministers
proposed to wait the oral discussion of the matter with your excellency.
These are the reasons why no formal replies were sent to the
communications of your excellency.
Now, having received the communication under acknowledgment, as in duty
bound, the prince and ministers send this reply for your excellency’s
perusal and beg that you will transmit a copy of it to the honorable
Secretary of State.
A necessary communication addressed to his excellency, Charles Denby,
etc.
