Scruggs to William H. Seward, August 11, 1879

Mr. Scruggs to Mr. Seward.

Sir: I have had the honor to receive your dispatch No. 141, of the 28th ultimo. It relates to civil cases arising between citizens of the United States and Chinese subjects, and contains some eighteen interrogatories touching the practice in such cases at this port.

The very short time elapsed since I assumed the duties of this office will, I fear, render it impossible to make my responses as full and satisfactory as you desire; but I most cheerfully comply with your request as far as I am able.

And, first, as to your inquiry marked A. The practice at this port, when a Chinese subject is a party to the action, is to notify him of his right to have a native official sit in conjunction with the consul, a right, however, which all Chinamen seem anxious to waive, and which has heretofore been waived in every instance. But, B, should no waiver be made, the consul would insist that the official so sitting be of a rank corresponding to his own; and,

• —Whether mixed or single, consular courts could scarcely be said to subserve the ends of justice unless “open for the personal appearance of the plaintiff and his witnesses,” or, indeed, to both litigants, for that matter; and, so far as I know, no other rule has obtained here.
• —In case of mixed courts, it would be but ordinary politeness to tender the seat of honor to the official who should attend at the office or yamên of the other; and when a different place of meeting is designated, relative positions as to precedence would have to be arranged according to those principles of comity recognized among intelligent men. The consul being present as an ex officio magistrate would be there in discharge of judicial functions of course.
• —In all such courts an interpreter would be necessary, and his position would, ex necessitate rei, be that of a member of the court, possibly with rank similar to that of clerk.
• —A full and accurate record, and in proper legal form, should be made of all the proceedings; and, so far as I know, this has always been done here. Furthermore,
• —This record would have to be made by some one duly authorized by the court; most likely the interpreter and his assistants, his position being that already indicated in E; moreover,
• —It should be in both languages, verified by the judges and signed by them in the alternat.
• —Appeals from the decisions (or rulings) of the Chinese official, sitting as one of the magistrates, would naturally be to the third magistrate (previously agreed upon), and in default of this precaution to the legation and the Tsung li Yamên.
• —The taotai, being of equal rank, would probably sit with the consul; the prefect, or inferior magistrate, with the vice or deputy consul.
• Your inquiries marked K and L are believed to be answered in D, E, F, G, and H, as above.
• —Presumably, the statutes of the United States, construed under liberal interpretation of existing treaties, in so far as applicable; the common law, the law of admiralty, the principles of equity, and of international law applicable to each particular case. And,
• —Judgments would be enforced by the judges, one or the other, according as the decision be for or against their respective countrymen.
• Your inquiries marked O and P are believed to be answered above in J and A.
• —In cases of much magnitude, or where nice questions were involved, or the sum in litigation large, a mixed court would doubtless be preferable, so organized as to give the consul the casting vote, in case of disagreement. Section 4098 of the Revised Statutes seems to be mandatory as well as advisory. Consuls are to encourage settlements (especially of the class of cases indicated) by arbitration; and my observation in this and experience in other countries has been that this method of settlement seldom fails to put a satisfactory end to such controversies.

I am, &c.,