Avery, to B. P. Avery , United States, June 23, 1875

No. 166. Mr. Avery to Mr. Fish.

Sir: I have the honor to inclose herewith copies of a correspondence between this legation and Mr. Eli S. Sheppard, consul at Tien-tsin, and between Mr. Sheppard and the customs Taotai at Tien-tsin, touching the construction of the 28th article of our treaty with China, regarding the conduct of trials between citizens of the United States and Chinese. This correspondence grew out of the trial of a collision case between the American steamer Shantung and a Chinese junk. The customs Taotai wished to depute Mr. Twinem, a British subject, serving the Chinese as customs commissioner, to sit in his place in Mr. Sheppard’s court, but Mr. Sheppard declined this arrangement on the ground that a foreign employé in the China maritime customs service is not a public officer of China, within the meaning of the treaty. The Taotai seems to have yielded the point, and even to have instructed Mr. Twinem not to appear at the trial officially in his behalf, but that gentleman, nevertheless, obtruded himself and claimed a right to participate in the trial, although the Taotai was duly represented by two Chinese officials then present. I need not enlarge upon the facts so clearly stated in Mr. Sheppard’s dispatch, nor upon the reasoning by which he defends his refusal to recognize the customs commissioner. The impropriety and impolicy of allowing foreign customs employés to arrogate judicial and political functions in questions arising between foreign residents and the Chinese, are plainly apparent. I promptly approved the decision of Mr. Sheppard, and supposed that no further attempt would be made in the same direction, but it appears from a memorandum forwarded to me subsequently by Mr. Sheppard that Mr. Twinem, taking advantage of a new and inexperienced Taotai being appointed at Tien-tsin, presented himself again in another collision case, in a most pertinacious and officious manner. There is no reason to believe that these attempts to put foreign customs employés upon an equality with the consular and native authorities in the trial of international questions were inspired by the Chinese government, but should they be continued a formal protest to the government might become necessary. The diplomatic and consular bodies in China freely acknowledge the valuable aid which the foreign customs-staff, from the able inspector-general down, has afforded in systematizing and facilitating commercial relations with the native authorities, and in carrying out the fine light-house and other improvements requiring foreign skill and attention, but they would be a unit in resisting an extension of the functions of this staff beyond its legitimate field. So far as the customs employés can guide and direct the native authorities by friendly and judicious counsel, they are welcome to all the influence they may acquire, but it is clearly not their right to claim or exercise judicial and magisterial functions as Chinese officers, in conjunction with consuls. If commissioners of customs may act in this capacity, then there is no reason why their superior, the inspector-general, should not represent the Tsungli Yamen at the legations.

I have, &c.,

Memorandum in the matter of the “Chihli” collision suit, heard in the United States consular court at Tien-tsin, June 14, 15, and 16, 1875.

After the trial of the “Shantung’s” case a new Taotai came into office. So when the day was fixed for the trial of the “Chihli’s” case, I notified the Taotai of it, and requested him to appear in person and be present with me at the trial. He replied that he “would come along with Mr. Twinem,” and attend the trial. In order to avoid any trouble, I went to see the Taotai, and asked him in what capacity Mr. Twinem was coming. His answer was a little vague, but from the way in which he insisted that Mr. Twinem was a Chinese official, I could see that he meant for him to come officially. Before going to see the Taotai, I had seen Mr. Twinem, and had told him that I had instructions from you, and I begged of him not to be lugged into this case, as it would only make it unpleasant for me; that my duty was plain, and that I could not permit him to take any part in the trial, &c. I told the Taotai that I had talked with Mr. Twinem about the case, and that I had instructions from the minister, and that the commissioner could not be permitted either to sit with the court or take any part in the conduct of the trial. The Taotai said he would wait until he got some instructions about it from the Tsungli Yamen. I told him, as politely as I could, that this was a question for the American minister to decide for himself, and that the Tsung-li Yamen had nothing to do with it; that the minister made rules for the consular courts, and that the Yamen could only make rules for his (the Taotai’s) court. I showed him that our consular courts were United States tribunals, and that by our laws the rules governing all our consular courts in China are made by the minister, and that it was nobody else’s business to make such rules, because Congress had authorized the minister to make the rules. He then said he knew nothing of the business himself, as he was just new here, and had never transacted any business with foreigners before, but that he would consult with Mr. Twinem about it. From this I saw clearly that Twinem was pushing himself forward. I may mention that the arguments made to me by Mr. Twinem, in support of his right to take part in the trial of cases in consular courts, were repeated almost verbatim by the Taotai; so that it is manifest that the Taotai; had been prompted by Mr. Twinem himself. There can be no longer any reasonable doubt as to the fact that the commissioner, and not the Chinese, was forcing this issue upon me.