Benj. P. Avery to Eli T. Sheppard, May 31, 1875

Mr. Avery to Mr. Sheppard.

Sir: I have received your No. 24 and No. 25, the former inclosing copies of a correspondence between yourself and the customs Tao-tai of your port, touching the competency of a foreign subject in the imperial customs-service to sit with you in the trial of a case between citizens of the United States and Chinese, the latter giving at length the reasons for your refusal to admit such competency. It appears that the Taotai wished to depute Mr. Twinem, a British subject, acting commissioner of customs, to represent him in the joint trial of a case in your consular court, under the twenty-eighth article of our treaty with China, which provides for joint trials, in certain cases, “by the public officers of the two nations,” and that you declined to accede to the Taotai’s request, on the ground that Mr. Twinem is not a public officer of the Chinese government in the sense contemplated by the treaty. I am quite of your opinion in this matter, and think your reasoning on the subject is conclusive. A foreign employé in the imperial customs-service is certainly not a Chinese officer, having judicial or magisterial functions, and qualified to sit as an equal in a consular court, and to assist in determining international cases arising under treaty. Article XVII and XVIII of the British treaty conform to the above-mentioned article of our own treaty in referring to “the Chinese authorities” for the trial, in conjunction with British consuls, of cases arising between the subjects of the two nations. It surely could not be held that a British subject in the employment of the Chinese should rank as one of the “Chinese authorities” for the trial of an international dispute before a British consul; and if not in a British consular court, with what more right or propriety in the consular court of any other nationality? It only needs such an illustration to show the unsoundness of the claim made on behalf of Mr. Twinem.

But extended argument on this question is unnecessary. Your decision and views have my approval.

I am, sir, your obedient servant,