SHEPPARD, Consul to B. P. Avery , United States, May 24, 1875

Mr. Sheppard to Mr. Avery.

Sir: I beg to inclose herewith a copy of a letter from the customs Taotai of Tien-tsin, and of my reply thereto, touching the right of a foreign commissioner of Chinese maritime customs to sit in conjunction with a United States consul, acting judicially, in the trial of cases between American citizens and Chinese subjects. The question came before me in connection with the trial of a collision case between the owners of a Chinese junk and the American steamer Shantung. The Taotai had, in compliance with my customary request in such cases, and being unable to be present himself, appointed two Chinese officials to represent him in the joint hearing, and in courtesy to the Taotai I had consented to this arrangement.

On the day preceding the trial the Taotai wrote requesting me to permit Mr. Twinem, a British subject, acting commissioner of Chinese customs at this port, to sit conjointly with me in the trial. I declined to accede to this request, and in my reply to the Taotai gave him my general reasons for doing so, which were, briefly, that the 28th article of our treaty provides that, “If controversies arise between citizens of the United States and subjects of China which cannot be amicably settled otherwise, the same shall be examined and decided conformably to justice and equity by the public officers of the two nations, acting in conjunction.”

I held that the construction to be put upon the phrase “public officers of the two nations,” when applied to the exercise of judicial functions, was not so elastic as to be made to include foreign employés of the Chinese maritime customs-service; and I intimated that I would proceed with the trial conjointly with the two Chinese officers already appointed. When the court was opened for the trial, the day following the correspondence above referred to, the Chinese officers representing the Taotai being present, Mr. Twinem appeared and claimed an official standing in the court as a representative of the Taotai equally with the Chinese officials then present. He stated that he had seen the correspondence of the previous day, but that he came as a “deputy,” in the same capacity as the Chinese officers appointed by the Taotai, and desired to’ be officially recognized as such. In reply, I remarked that I could not admit his claim to an official status in this consular court as a representative of the Chinese authorities, and I explained to him the grounds of my objection as I had written to the Taotai. Mr. Twinem reluctantly yielded to this decision, and remained in court to the close of the hearing, when he requested permission to join in my deliberation with the Chinese deputies; and this too I was obliged to refuse.

I was surprised to learn afterward that, on the receipt of my note previous to the trial, the Taotai had at once instructed Mr. Twinem not to appear at the trial officially in his behalf. Having received such instructions, Mr. Swinem’s pertinacity in claiming to be recognized as the Taotai’s representative appears strangely inconsistent.

The question thus raised a second time—for it has been once similarly decided in the United States consular court at Foochow—is a somewhat important one, when the scope to which it is capable of developing, if allowed to do so, is duly considered. Shall foreigners in the Chinese customs-service be recognized as having authority to assume the functions of the Chinese magistracy, and stand between the foreign and Chinese officials in the adjustment of international affairs? I consider such an admission to be contrary to both the letter and spirit of the treaty. Excepting those few who are specially designated, the Chinese authorities with whom United States consular officers transact international business are referred to throughout our treaty as the “local officers,” “local authorities,” “local authorities of government,” “local authorities of the Chinese government,” “Chinese local officers,” “the government,” and “Chinese local officers of government,” all of which designations are expressed in the Chinese text by one and the same term, i. e., “ti fang kuan.” I conceive the meaning of this Chinese term to signify precisely what was intended by the framers of our treaty, who expressed it in so many different forms, viz, those officers holding commissions and appointed by the state to administer local government according to Chinese law.

It seems evident that the foreign employés of the Chinese customs-service are not and never can be included within this category while they remain in such special service; nor until a foreigner possesses a regular commission from the State, and is appointed to administer local government, could he be recognized, it would appear, as the properly authorized person designated by treaty to transact international affairs. But one isolated instance of a foreigner being invested by the Chinese government with the actual functions, in distinction from the mere honorary rank of a civil official, has occurred in modern times; that single instance was Marco Polo, who was appointed to the government of Yang C ho by a Chinese Emperor in the thirteenth century. There has been no other exception down to the present day, though brevet rank, or honorary titles—merely the name of an office without the reality—have been occasionally conferred on foreigners. Several other reasons might be mentioned in support of the position I have taken; but the views I have now expressed are, perhaps, sufficient for the present occasion. I hope to hear that my action and the grounds upon which it was based have met with your approval.

I am, sir, your obedient servant,