Wells Williams to William H. Seward, August 4, 1868

Mr. Williams to Mr. Seward

Sir: I have the honor to submit for your consideration a correspondence with his excellency Baron Rehfues, the minister of the North German Confederation to China, growing out of the limited powers conferred upon the German mercantile consular agents in China, which prevents them from deciding cases brought into their courts. The case occurred at Tientsin, and was brought up by the United States vice-consul there to test the question of equality of powers by the consular authorities of the two countries. I respectfully commend it to your attention.

On receiving Baron Rehfues’s dispatch, (inclosure A,) I directed Mr. Meadows (inclosure B) to try the case, “Talee vs. Manchu,” on the ground that the jurisprudence of one nation could not be made amenable to the ideas or rules of another nation, and so informed the former, (inclosure C.) I, however, availed myself of the reply to explain my reasons for disapproving of the restrictions laid upon the jurisdiction of the German mercantile consular agents, and to show the inconveniences practically resulting therefrom.

The other letters, (inclosures D, E,) besides further explaining the case, refer to a question of consular usage, upon which I request your decision. It is the custom in the Prussian and British consular services, and seems to be also in that of other European nations, that when a mercantile consul fails in business, he must immediately demit his official functions, or if he omits to do so, he is presently superseded. I can find nothing that bears upon this point in the Consular Regulations, and should be glad to learn what is the custom in this particular in the United States service, for it frequently happens in China that merchants are the only persons who can be got to fill those consulates which are not salaried.

I have the honor to be, sir, your obedient servant,

Copy of plaint of P. Thomson.

UNITED STATES VICE-CONSULATE, TIENTSIN.

I, Peter Thomsen, master of the bark Talee, do hereby declare on oath, that on the morning of the 5th June, 1868, while my vessel was in the Pei-ho, the American steamer Manchu ran into her and damaged her; that I later had a valuation made of the damages, which were fixed at $200; that I applied to the master of the steamer to pay that amount, and that he refused to pay my claim.

I therefore have now to pray that you will summon him before you, to satisfy my claim for damages as stated above.

P. THOMSEN.

Taken before me, this 8th day of June, 1868, at the United States vice-consulate, Tientsin.

Baron Rehfues to Mr. Williams

Ta-chiao-szè, June 29, 1868.

Monsieur le Chargé d’affaires: I have had the honor to receive your note of the 25th instant, relating to the case of the Talee vs. Manchu, and I have not failed to inform the King’s consul at Tientsin of the instructions which you have been good enough to give to Mr. Meadows. While thanking you for the readiness with which you have co-operated to avoid the serious complications which would necessarily have resulted from carrying out the decision in this case taken by the United States consulate at Tientsin, it only remains with me to give you some explanation of the principles in force in Prussia and elsewhere relative to consular functions, which, it appears, are very different from those adopted by the United States. From your note of the 25th, it seems that the consular regulations of the United States allow a consul in bankruptcy to continue his functions. This is not the case in Prussia, and, so far as I know, in other nations too, where they are required to demit their functions as soon as they suspend payment, which was the case last year with the Hanseatic consul at Tientsin, who, having become a bankrupt, had of course to resign his consular functions. Thus it follows that a consul in bankruptcy cannot act as judge, being himself before the court. According to the usages of all nations, Mr. Meadows would not be able at this time to exercise judicial functions. But this only concerns the government of the United States, and I state it simply to indicate the difference which exists in this respect between their practice and that of European governments.

In respect to the principle adopted by the Prussian government, of not granting full jurisdiction to merchant consuls, it has been the result of experience, and of the conclusion that a rather more complicated procedure would be better, and offer more guarantee for the administration of justice, than if allowed to persons wholly without legal education, and consequently liable to commit irreparable mistakes. This principle has also latterly been adopted by most of the European governments, who are of the opinion that out of two evils it is best to choose the least.

In order to remedy the inconveniences which result from the state of things in China, and chiefly those which arise from the distances between the several ports, the King’s government has for a long time resolved to grant entire jurisdiction, exceptionally, to the consuls at Canton and Tientsin; it has actually been the case at Canton for two years, where Mr. Carlowitz is charged with judicial powers. At Tientsin it has not been impossible to do so, but on the other hand it has been decided to make it a paid consulate, and has been hitherto delayed only because of the immediate creation of the consulates of the Confederation of North Germany. It is certain that the near completion of the plans of the chancellor of this confederation will alter the present state of things at Tientsin, which have always been regarded as temporary. The case of the Japan, to which you allude, moreover, furnished me with a good reason to urge Count Bismarck to hasten the institution of a consulate at Tientsin.

Hoping that the American government will not delay to follow the example of the confederation, and establish a paid consulate at Tientsin, I seize this occasion to renew, sir, the assurance of my highest regard.