Isaac F. Shepard to William H. Seward, August 26, 1879

Mr. Shepard to Mr. Seward.

Sir: I have the honor to acknowledge receipt of your dispatch No. 68, of July 26, and of No. 69, of July 30. I have not as yet heard from the intendant on the subject of the latter. To the several inquiries of the former I herein respond as fully as in my power.

• —To your query A, my answer is that at this consulate all civil cases arising between the Chinese and our people have been examined and decided by the officer of the defendant during my term of office; nor do I find any record that the United States consul and any native official have ever sat together as a mixed court.
• —The answers to the series of questions from B to O inclusive are involved in the foregoing, with the explanations to be made in my remarks on the general topic. It is to be remarked, however, that in correspondence with the present Taotai he has claimed that any deputy he might indicate would be competent to act with the consul on equal terms in any investigation arising, but I have dissented from this claim.
• —I think that no other consular officer here, except Her Britannic Majesty’s consul, has desired any formal trial with a native official. Mr. Consul Hughes, in a conference sought by myself, was understood to say he had on some occasion demanded a joint investigation, but so much hostility to it had arisen and so many obstacles had been interjected that he gave it up in disgust. I think in that case the matter was arranged between deputies of both nationalities. I speak not with absolute certainty, however, for Mr. Hughes has left China, and I cannot verify my recollections of his statement. I can say, nevertheless, that Mr. Hughes fully indorsed my own rights to a full and unconditioned joint examination in a case hereinafter to be referred to (that of Russell & Co.), and in my demand that the Taotai must sit with me in person and upon equal terms, expressing great interest to see my intents fully carried out.

Having thus disposed of the specific questions, I avail myself of your invitation to more fully discuss the several topics of the general subject.

Several cases have been brought to me by Chinamen for breach of civil contract by Americans—for non-payment of wages claimed and for moneys due in various ways. As the official of the defendant, I have in every separate ease been enabled to bring matters to a satisfactory settlement by conference and advice without the necessity of any formal trial. Thus no occasion has arisen for either party to demand an appeal nor for me to call for a formal judicial sitting with a native official, either as a court of the defendant with a Chinese magistrate advising, or as a mixed court. In case such joint action were demanded, I should insist upon an official coadjutor of equal rank with myself, and give him equally honorable position. I should have each witness’s testimony recorded as given by the clerk of the court if in English, and by the Chinese scribe of the court if in Chinese, and each one’s testimony read over to him and by him subscribed, as in courts-martial. I should allow plaintiff’s presence and the introduction of any witness pertinent, to be examined and cross-examined by my native associate at his pleasure. I should be guided in the conduct of the case according to customs of common pleas courts in the United States as far as circumstances were analogous, without a jury. The provisions as to appeals I should apply as they exist in the consular court regulations. Thus much where our people are defendants.

This course of procedure and its results are, I think, in exact conformity with the of ink given by Attorney-General Cushing, September 19, 1855, that “subjects of China and of any government who, by voluntarily making themselves parties complaint ant or demandant before the consular court, appeal pro tanto, to the laws of the United States.”

But there is another class of cases, some of them of considerable magnitude, wherein Americans are the complainants or demandants, and a Chinese the defendant. In Mr. Cushing’s language in the opinion above quoted, “the former must of necessity be content with such judicial or executive action of the Chinese Government in the premises as appertains to their institutions, or * * * as may be required on the part of the public officers of the United States.”

Several such cases have been brought before me, being for violations of contract, for balance of moneys due, and for claims on broken native banks. In the spirit of the language quoted I have uniformly brought these claims before the intendant and sought his intervention in their settlement. With a single exception, the case of Messrs, Russell & Co. versus Shin-Ton-Shan, heretofore reported in full to the legation, the intendant has procured acceptable settlement without formal trials, or at least without any joint action with the consul being demanded. In some instances much correspondence has been required which might largely have been avoided by a joint’ investigation promptly given. But the end has finally been a concession of all the consul demanded for his clients, including money collections, or such arrangements as were satisfactory to the parties complainant. Thus I have had no experience in this class of cases on which to formulate answers to your questions beyond the general replies already recorded.

The suggestions involved in the inquiries marked M, N, and O have often been considered, and my conclusions have not been entirely satisfactory to myself. Of course a consular court in China under United States law is exterritorial, and has no jurisdiction over any persons excepting citizens of our own government. It can take no compulsory course toward any but its own citizens, and can therefore enforce no judgments against the Chinese. The native authorities alone are competent to do this, as Chinese law must prevail over their own subjects, just as we apply United States laws to our people resident in China, the conditions being reversed, i. e., a Chinaman being the complainant against an American. I see no appeal possible, therefore, in the strict legal application of the term.

When a case is wrongfully decided, and when investigation and justice is refused by a native official, the only remedy I have been able to discover is the privilege of reporting the whole matter to the legation, who may present the facts to the foreign board, or other proper authorities. Doubtless here would be the power to see that wrongs were righted, judgments reversed, and exactions made. But it is not to be lost sight of that even the legation, and its nationality itself, must in the ultimate “be content with such judicial or executive action in the premises as appertains to Chinese institutions.” If justice is decreed and enforced it is matter of congratulation; if the contrary, I can only hope for future remedy by wise and successful diplomacy.

Your final query, Q, remains to be noted. For myself, I answer clearly I am in favor of a mixed or joint court, in which the nationalities shall be equally represented, with equal privileges, rights, and authority. Such I deem to have been the intent of Article XXXIII of the treaty of 1858, and it commends itself to my judgment as the reasonable method of reaching a correct result. The facts in any given case may thus be brought to light through the vigilance and in the presence of the two officials, so there can be no mutual doubts, and the standpoints for opinions will be equally grounded. The law governing proceedings must in any event be that of the defendant, since his representative official alone has jurisdiction over his person and property. The prime idea of a trial is, or ought to be, to discover facts. Applications and rulings of law, and administration of judgments are consequents. In civilized courts the presumption is that the law and judgments will correspond to the burden of the facts. In the application of Chinese law and judgments we are at the best at their mercy, and decisions, whether consistent or not, must be accepted finally, so long as there is between them and us no community of ideas, no common law of nations.” I trust it is not an impossible matter for the legations of Christendom to lead the Chinese Government to some proper and authoritative regulations for such a mixed court, wherein due regard may be had to the proprieties of rank and etiquette, as well as to the more vital purpose of securing mutual justice.

From my present light, I can see no such practical good as the certain outcome from a court where an official of one nationality sits as judge and jury, and the other merely attempts to watch proceedings. The authority of the latter is nothing; his influence is nullified, his judgment is silenced, his protests inadmissible. He is in a humiliating position, without even a right to certify proceedings.

In a case now before you, already referred to, where the intendant of this circuit is defendant official, he consents only to a degraded seat for the consul; his interpreter and native scribe are required to be out of sight of the court; examination of witnesses is forbidden except by himself; cross-examination, and even any question to to witnesses, forbidden, and no provision is intended for an official record. I am not sure, however, that in all this he exceeds his rights in such a trial, as seems intended by the provision in the Chefoo convention, from which he models his intended court. If it be his court solely, and no authority is given to plaintiffs official in it, it seems to be quite the correct thing for him to dictate all the minutiae. While protesting against it all, I have recently felt that he was right on the basis of such a court. But, most certainly such a state of facts could never have been contemplated by our treaty as referred to, and is not legitimate from it. The provisions of that treaty are to my mind wise and practicable, and, in my judgment, should be firmly adhered to until the progress of civilization induces China to a greater comity among the family of nations.

I have thus endeavored to meet your request considerately, and with my best judgment, without prolixity.

I am extremely glad you are engaged in the investigation of the subject, for you are aware it has given me much trouble in the defense of the interests of our citizens, and I know of no one point in our relations with China more important. I trust you may succeed in a fortunate solution, and if in any wise I can furnish you other aids or fuller answers, I shall most gladly serve you.

I have, &c.,