Wells Williams to Baron Rehfles, Envoy Extraordinary and, June 25, 1868

Mr. Williams to Baron Rehfues

Monsieur le Ministre: I beg to acknowledge the dispatch of the 21st instant, which you have done me the honor to address to me, respecting the case of the Talee versus Manchu, and the refusal of the United States vice-consul at Tientsin to hear the complaint of Peter Thomsen, a German subject, on the ground that “American citizens and subjects of the North German Confederation were, under the present system, not on the same footing of equality as to attaining redress and justice;” and in which you likewise request answers to two questions respecting the functions and disabilities of an American consul.

Allow me here to reply to these two inquiries: 1st, so far as I am able to ascertain, bankruptcy of itself is not a bar to a consular officer in the service of the United States, who receives no salary, continuing to hold his post; and 2d, in all cases of damages under $500, the act of Congress does not require the consul to call in two assessors to aid him; he can do so, however, if he pleases.

I have perused your excellency’s dispatch with great care, and as I have no wish to hinder any subject of the North German Confederation from obtaining justice in the consular courts of the United States, I have to-day directed Mr. Meadows to hear the plaint of Peter Thomsen, and try his case on its merits. I hope, also, that he will suffer no injury from the delay.

In apprising you, sir, of this order sent to Mr. Meadows, I beg to add a few considerations upon the remark made in your dispatch that the difference in position between the Prussian consulate in Tientsin and that of the United States is one seulement de forme. You lay stress on the want of legal knowledge among merchant consuls; and it is not unlikely, of course, that such a one may not always possess the necessary knowledge to decide a nice point of law; but in such cases, which are exceptions, the right of appeal to a superior officer obviates this incompetency or disadvantage, and secures the parties from injustice.

If the rules of procedure in a consular court are laid down with clearness, they can be followed by any person with a fair education, and the value of his decision can be increased by requiring him to get the advice of assessors. Most of the cases in China consist of damages for injury to person or property, for debts, or divisions of estates, such as require no high legal attainments for their equitable settlement.

But permit me to observe further, that the difference is not merely formal; that when a consul at one port can only receive the evidence of the opposing parties and their witnesses, to send it off many scores of miles to another port, as seems to be the rule in the Prussian consulates, the plaintiffs are not so likely to receive justice, irrespective of the delay, before the judgment is rendered. The value of conflicting testimony can best be decided by him who hears it, as well as the competency and credibility of the different witnesses be better weighed by a judge who watches them as they give their depositions. On paper much of this vanishes; and in no case can a man write more than a portion of the evidence. Some of the energy and distinctness of witnesses must be lost when they feel that they are really talking and acting for one not present, who will, after all, get only an imperfect idea of what has passed. Besides, in some cases the locality of the occurrence has a very important bearing in making up a decision.

Then, further, with regard to the judge himself. He is likely to have a great number of cases to investigate, each of them demanding an immediate decision, in order that the parties shall not suffer more than is absolutely necessary from the delay. One does not doubt that he desires to do even and speedy justice, but his time and strength have limits. If new points come up demanding investigation, more time must be consumed in obtaining further facts.

When the case has been decided, the parties may have all separated and gone elsewhere; the ships left the port and gone from China; the property in dispute may have spoiled or deteriorated; the consul himself departed; a dozen contingencies may have arisen that render it impossible to carry out fully a sentence that at first could easily have been executed.

The case cited by Mr. Meadows of the brig Japan running down a junk in the Pei-ho, so far as I know the facts, will illustrate the inconveniences from delay to which I now allude; inconveniences which, in my view, far exceed the risks and wrongs likely to be suffered by allowing a merchant consul to decide cases brought before him. The same risks were somewhat anticipated when constituting the consular courts of the United States in China 20 years ago, and were provided against by the framers of the act of Congress in 1848; but when it was revised and reissued, in 1860, it was found to need few alterations. The evils suffered in these courts since 1848, through the incapacity, ignorance, or inefficiency of merchant consuls, have been trifling, and I remember no complaint brought before this legation on these grounds. The evils resulting from the other mode of jurisprudence would have been greater.

In your excelleney’s dispatch it is admitted that the plan of sending cases to Mr. Tettenborn, as good a lawyer and judge as he is, is assez compliquée. Perhaps I have shown that it is more than complicated, and that its inherent delay works a wrong to both parties. I fully agree with you that there is no denial of justice in the theory; but in practice, an American citizen bringing a complaint at Canton or Tientsin, before a consul of the North German Confederation, would not seldom find the delay of sending the documents to Shanghai nearly equivalent to a denial. In some cases, as where the parties all resided at the port, in a suit of debt, for instance, the result would be less detrimental.

In the case before us both the parties happen to be at Tientsin for only a few days. Let me reverse the case, for illustration. If the Talee had run into the Manchu, both parties would doubtless have wished to leave port long before the American plaintiff could have got judgment. If she was detained by Mr. Spohn as security till the damages were assessed by Judge Tettenborn, she might lose as much by the demurrage as by the accident. If she was allowed to depart, the delay to the other party works an additional loss, in settling a simple question that two or three sensible shipmasters, called in on the spot, could have decided in a few hours better than anybody else.

You will pardon me, sir, if I have made these observations with more freedom than is requisite to explain my position. I speak from an experience of 12 years in seeing the workings of the American consular courts in China, and am quite satisfied, on the whole, with their results.

The subject here discussed you may deem to be worthy of referring, for consideration, to those who can have no other desire than to facilitate the settlement of such disputes as the present one at Tientsin, and measurably, at least, to prevent any international disagreements. If I might be allowed to add a suggestion, a Prussian merchant consul might have the power to give a suspensory verdict, to be ratified by the judge, and which the contending parties in the suit could for the time accept as a final one, subject to that ratification.

I avail myself of this occasion, Monsieur le Ministre, to renew to you the assurances of my high respect.