No. 17.] Mr. Le Gendre to Mr. Seward. CONSULATE OF THE UNITED STATES OF AMERICA, Amoy, April 1, 1867. SIR: I have the honor to bring to your immediate knowledge an extract of a despatch just received (enclosure No. 1) from Mr. McPhail, of Formosa, and conveying to me the painful intelligence of the murder of 13 Americans. I shall leave at once for the seat of the occurrence, availing myself of the presence, at Foochow, of the United States gunboat Ashuelot to strengthen my hands in the measures I may be compelled to take to obtain redress and compensation from the local authorities of the island. I advise the minister at Peking of the affair, asking for instructions as to future steps. This painful news reached me as I was furnishing a special report of the Coolie case, tried in this court during the quarter ended March 31, 1867, which I had hoped to send you by this mail; I shall do so by the next French mail. This case appears, however, in the usual quarterly report sent to the department through the consulate general. I have the honor to be, sir, your obedient servant, Hon. WILLIAM H. SEWARD, Secretary of State, Washington, D. C. CHARLES W. LE GENDRE, United States Consul. Extract of letter of Mr. McPhail, of Formosa. About ten days ago the American bark Rover, from Swatow, bound to Neuchwang, in ballast, was wrecked on the "Bashas." The crew, 14 in all, made their way to a place called "Pang Livio," about 20 miles from Tachow, in the long boat, where they were all murdered by the savages, except one who has arrived at Takow. Mr. Burlingame to Mr. Seward. No. 145.] LEGATION OF THE UNITED STATES, SIR: I have the honor to forward a modification of the treaty respecting the penalty to be levied on the masters of merchant vessels for overpassing the allotted time of 48 hours after entering port without reporting their arrival. The reasons for this will be found in enclosures A and B. It is agreed between Prince Kung and myself, pending a reference to you, that the XIXth article of the treaty of Tientsin shall be understood to include hulks and storeships of every kind under the designation of merchant vessels; and shall be defined for this offence by the first sentence of article XXXVII of the British treaty, and the legal penalty to be inflicted on the master for neglecting to report his arrival within 48 hours shall be a fine of 50 taels for every day's delay, but not to exceed in all the sum of 200 taels. This modification is made known to United States citizens in China, in manner and form as set forth in enclosure C. This change in the treaty puts no additional hardships upon commerce, but removes doubts as to construction, and prevents a violation of the spirit of the treaty. I have the honor to be, sir, your obedient servant, Hon. WILLIAM H. SEWARD, Secretary of State, Washington, D. C. A. Prince Kung to Mr. Burlingame. [Translation.] Prince Kung, chief secretary of state for foreign affairs, herewith makes a communication: It is on record that the collector of the port of Canton informed the foreign office in the month of October, 1866, that the American sailing ship Tropic had entered that port, and that the consul had overpassed the limited time without reporting her to the customs. learning this proceeding, instructions were given to Mr. Hart, the inspector general of customs, to learn the facts of the case, and he has now sent in the following report: On "I have received a despatch from the commissioner of customs at Canton, in which he states as follows: "The foreign treaties all contain a provision that, when a merchant ship enters port, she is allowed 48 hours within which to report her arrival at the customs, and failing to do so, she subjects herself to a fine; but the treaty with the United States does not mention any fine, though the same limit is given for reporting the vessel. On the 19th of July, 1866, the American ship Tropic came up the river to Whampoa, but no notice having been given by the United States consul of her arrival for half a month afterwards, the collector sent a note to him inquiring about her. He replied that, as she was only a hulk, he did not deem it necessary to report her at the customs; to which the collector rejoined, that though she was a hulk, it was incumbent on the consul to report her just the same; and that, as she had overpassed the allotted time, she had subjected herself to a fine. The consul did not reply precisely whether or not he thought that she ought to be reported; but contended that, while the British treaty expressly mentioned the amount of the fine to be levied in such cases, the American treaty did not state any sum, and argued, further, that even if it should be decided that hulks should be reported the same as other vessels, this one could not, according to the American treaty, be fined for not doing so. During the month of August the statement of the United States consul of the circumstances connected with the Tropic coming into port, with the letters that passed between him and the collector, were all forwarded to Peking to the American minister, and to the foreign office, that the question might be discussed and settled between them.' "In looking over this correspondence between the consul and collector, it appears that the discussion involves two points: one, whether hulks come properly under the regulation about reporting ships; and the other, whether an American ship that has failed to report her arrival within 48 hours should be fined the amount mentioned in the treaty with another country. "As to the propriety of hulks reporting their arrival in port to the customs, it is enough to refer to the article XIX of the American treaty, in which it is stipulated: Whenever a merchant vessel belonging to the United States shall cast anchor in either of the said ports, the supercargo, master, or consignee shall, within 48 hours, deposit the ship's papers in the hands of the consul, who shall cause it to be communicated to the superintendent of customs,' &c., &c. Now, the expression merchant vessel has a wide signification. It includes the greatest and smallest craft; those made of wood, and those made of iron; those with one, two, or three masts, whether called sailing vessels or steam vessels; whatever floats that is employed to convey merchandise or passengers, whether it goes and comes at certain intervals, or remains constantly at anchor within the limits of the port, storing goods in its hold, or affording accommodation as a residence. These are all properly termed shang chuen or merchant vessels, and the tun chuen or hulks are nowise different, and, like other merchant vessels, should be reported at the custom-house. Now, it is plain that this ship Tropic should have been reported by the consul the same as any other trader, for she was once a regular merchantman, which had afterwards been lying in Hong Kong as a receiving hulk, and had now come up to Whampoa to go into dock to be fitted up for freighting cargo. "In regard to the other question, whether an American merchant vessel that is not reported at the customs should be fined according to the stipulations of another treaty, as, for instance, the British, it may be observed that, when a British vessel overpasses the prescribed limit without being reported, she is of course fined according to it. But let this question be looked at from another point of view. Although article XXXVII of the British treaty contains an express provision that a vessel that is not reported subjects herself to a fine, yet it might sometimes be excused if the reason for overpassing the stated time had been owing to the captain or consignee's inability, or any other cause; but the delay in reporting this ship was entirely owing to the American consul erroneously concluding that it was needless to do so in the case of a hulk. It was, in fact, only at the end of August, after a long controversy on the subject, that he first reported her. "Furthermore, supposing the Tropic had been a British ship, on this reasoning she could not have been fined even with the declaration in the British treaty of the amount of the fine; and of course still more so in the case of an American ship, judged by a provision in the British treaty. The whole argument would go to nullify the reason for fining any ship whatIf the stipulation in this matter in the British treaty be taken as the test, and it be ever. undetermined whether offending American vessels can be brought under it, the whole question under discussion becomes very difficult of decision. For if, when the treaty of one country states no definite sum, and the case can be decided only by the express declaration given in the treaty of another nation, it is not permitted to refer to that treaty, the point can only then be decided by general principles of international law. "The treaty stipulations of one country refer only to the natives of that country, and are to be carried out by its particular officers. In article XL of the French treaty it is stipulated that whatever provisions in the treaties with other countries are not contained in the French treaty, shall yet be enjoyed by all French subjects; and a similar favorable clause is also contained in the American treaty. Even if the principles of international law confirm the view, that an American vessel should be fined according to the stipulations of the British treaty, yet as both the French and American treaties contain clauses which give them its advantages, there seems to be no need of inquiring what decision international law would give in this question. "It is known that every foreign treaty contains an express stipulation requiring the consignee of every merchant vessel on entering port to hand in a true manifest of her cargo, and that if she be detected in giving a false manifest, she subjects herself to a fine of 500 taels. But the American treaty, while stipulating that every American merchant vessel must hand in a true manifest, says nothing of the fine to be levied for infringing this requirement. The foreign office brought this point to the notice of the United States minister in 1863, and after a full examination of the subject he agreed to a modification, and sent instructions to all the United States consuls at the ports, making it a rule that whenever the consignee of any vessel gave in a false manifest of her cargo, the vessel was subjected to a fine of 500 taels, according to the provisions of the British treaty. Now it would be well if this case of the Tropic could produce another like arrangement, and a rule be made that hereafter, whenever an American ship came into port, and overpassed the time for reporting herself, her offence should be brought under the same rule. A limit of two days for reporting at the customs causes no damage or hindrance to the merchants; and as a proviso in the treaty clearly stating it is desirable for carrying on business at the custom-house in a uniform manner at all the ports, I respectfully request the foreign office to communicate and consult on the subject with the American min ister, and request him to issue a notice like the one he issued in 1863, to all the United States consuls at the ports, requiring them whenever a merchant vessel of any size or description enters a port, to report her arrival at the customs within the appointed time; and if it be overpassed without reporting, that then, although the American treaty does not mention any sum, she shall be fined according to the provisions of article XXXVII of the British treaty. A notice like this will make the practice uniform at all the custom-houses, and prevent all further controversy on this point. This present case of the Tropic, charging her with not having been reported within the specified time, resulted, in fact, partly from the unintentional mistake of the American consul, and partly from the remissness of the consignee in not reporting to him; it therefore need be no further discussed, nor the amount of the fine to be levied." On reading this report of the inspector general, I find it stated that in the year 1863, when the American traders were found on some occasions to have given in false manifests of cargo, that this office consulted with your excellency on the subject, and it was decided that in future such offences should be punished by fine according to article XXXVII of the English treaty, so that they need not be subject to any heavier mulct. It appears, too, that article XIX of the American treaty stipulates that a period of two days after entering the port is allowed every merchant vessel to report to the customs; and the phrase "merchant vessel" is a term of wide application, and includes hulks as well as all other sorts, and that when these last enter port they should be required to report within two days, as well as all others, under penalty of a fine. The American ship Tropic has committed the offence of not reporting within the appointed time, and as it appears from the inspector general's report, in conse quence of the neglect of the consul at Canton. It is not clear on what grounds the consul excuses this neglect, for his correspondence does not agree with itself. It ought to be punished by the fine stated in article XXXVII of the British treaty, but as Mr. Hart explains the circumstances of the transaction, it may be overlooked, and no further discussion taken on it. It is proper, however, to request your excellency, for the regulation of the American trade in China, to issue a notice similar to that made in 1863, to the merchants through their consular officers, directing that in all cases when an American merchant vessel of any description enters any port, that she must be reported at the customs within two days, under penalty of the fine stated in article XXXVII of the British treaty. A distinct rule of this sort will prevent a consul repeating the mistake of not reporting a vessel, and also prevent the merchants being involved in a mulct without any fault of their own, an advantage in fact, to both nations. The adjudication of the offence of the consul at Canton in not reporting the vessel, is left entirely in your excellency's hands. His Excellency ANSON BURLINGAME, United States Minister. JUNE 29, 1867, (Tungchi, 6th year, 5th moon, 28th day.) Mr. Burlingame to Prince Kung. LEGATION OF THE UNITED STATES, SIR: I have the honor to acknowledge your despatch of the 29th ultimo, in which you inform me that the American ship Tropic, which came into port at Canton in July, 1866, was not reported at the custom-house for a fortnight after her arrival, and that when the collector wrote to inquire about it, the United States consul replied that he did not deem it necessary to report hulks; to which the collector rejoined, that it was not only necessary that hulks should be reported like other vessels, but this one had subjected herself to a fine for not doing it; whereat the consul again gave answer that the treaty with the United States contained nothing about fining a vessel for failure to report; and that finally the discussion on these points could not be satisfactorily terminated by these officers. I have carefully examined into this case and conclude that the consul, supposing it to be unnecessary to report hulks at the customs, allowed the Tropic to overpass the allotted time for doing so. Moreover, as he did so with a full knowledge of all the circumstances, he has sent me a report of all, so that I can understand and decide the matter. It has been the custom for many years past for hulks to come up the river to Whampoa, and there remain without reporting to the customs, so that, seeing that the usage had existed for so long a time, it does not appear that it was an unintentional mistake of the consul in not doing so. But the reasons alleged in the despatch now under reply, why hulks should be reported like other merchant vessels, commend themselves to my judgment as being proper; and so also do those urging that when an American vessel overpasses the allotted time for reporting herself, she should be fined. I have accordingly deemed it proper to inform the consuls of the United States at all the ports, that for the present, whenever an American merchant vessel enters any port and exceeds the allotted time without reporting herself at the custom-house, she shall be liable to the same fine as stated in article XXXVII of the British treaty. I shall send a full statement of this matter to the government of the United States, and when I have been honored with the commands of the President in reply, I shall again bring the subject to the notice of your highness. ANSON BURLINGAME. I have the honor to be, sir, your highness's obedient servant. His Imperial Highness Prince KUNG, &c., &c., &c. C. Mr. Williams to United States consuls in China. LEGATION OF UNITED STATES, SIR: His Excellency Hon. Anson Burlingame, United States minister, having been in consultation with his imperial highness Prince Kung, respecting the penalty to be levied on the masters of merchant vessels under the treaty of Tientsin for overpassing the allotted time of 48 hours after entering port without reporting their arrival, it has been agreed between them that pending a reference to Washington, the XIXth article of said treaty shall be understood to include hulks and storeships of every kind, under the designation of merchant tessels, and shall be defined for this offence by the first sentence of article XXXVII of the British treaty, and the legal penalty to be inflicted on the master for neglecting to report his arrival within 48 hours shall be a fine of 50 taels for every day's delay, but not to exceed in all the sum of 200 taels. I am directed to make known this modification of article XIX of the American treaty for your guidance and the information of American citizens under your jurisdiction. By order: TA S. WELLS WILLIAMS, To United States Consul. Mr. Seward to Mr. Burlingame. No. 207.] SIR: I have to acknowledge the receipt of a despatch from you dated the 1st of May, No. 138. That paper is accompanied by copies of regulations relating to pilotage, and DEPARTMENT OF STATE, Washington, July 18, 1867. to passengers' luggage, proposed by the Chinese government and agreed to by the representatives of the treaty powers at Peking. While approving your action on assenting to the propositions referred to, it is deemed necessary to remark that such assent is not intended to modify our treaty rights in any manner, and that this government reserves the right of future objection to any interpretation of either of the regulations which may be found inconsistent with existing treaties. You are instructed to make these views known to the Chinese government. I am, sir, your obedient servant, ANSON BURLINGAME, Esq., &c., &c., &c. WILLIAM H. SEWARD. Memorandum on the pilot and port rules forwarded by Mr. Burlingame in his despatch No. 138. The pilot rules heretofore enforced in the ports of China have been promulgated by the foreign authorities. Those forwarded by Mr. Burlingame are proclaimed by the Chinese government, and assented to by Mr. Burlingame. The old system was never got to working well, as there would always turn up some impracticable consul to put obstacles in the way. The rules now proclaimed proceed from a central and undisputed authority, and are likely to be well worked in connection with the well organized customs establishment of the empire. Under the treaty we have, perhaps, no right to interfere with such pilotage rules as the Chinese make, unless they trench injuriously on the privileges of ex-territoriality accorded to our officers and people in China, or embarrass our trade. I do not know that these do or are likely to do the one or the other. It may be questioned, however, whether the Chinese have the right to hold the consignee of a vessel responsible for pilotages due on it, (Rule XIV;) and it should not be permitted that the customs should withhold the usual facilities to consignees or masters to enforce the decisions of the harbor-master in certain cases. (Rules XII and XIV.) The port rules for passengers' luggage, duty-free goods, and steam tugs seem well adapted to the purposes, and in accordance with the treaty and usages, with the following exceptions: The last clause of the rule relating to passengers' luggage should not be construed as a prohibition against conveying dutiable goods as may be convenient. Should there be intent to defraud, it would be right to confiscate the luggage, but, perhaps, not otherwise. And the last clause of the rule relating to duty-free goods might be complained of, as contravening the XX article of the treaty, which provides for the examination of goods when being shipped or discharged at the vessel's side, should it be enforced with unnecessary hardship. It is, I suppose, always understood that the assent of the minister to rules made by the Chinese government does not forestall his right to demand a change in them when in prac tical application they occasion unnecessary hardship, (vide article XXVIII,) or otherwise contravene our treaty rights. WASHINGTON, July 15, 1867. Memorandum by E. Peshine Smith. GEO. F. SEWARD. It seems to me that several of the regulations are so vaguely expressed that it is impossible to see they may not be so construed as to infringe on treaty rights, and therefore, that it might be well to accompany an approval of Mr. Burlingame's assent with a notice that we find it necessary to observe that the assent is not intended to modify our treaty rights in any manner, and reserve the right of future objection to any interpretation of either of the regu lations which may be found inconsistent with the treaties. E. PESHINE SMITH, Examiner. No. 208.] Mr. Hunter to Mr. Burlingame. DEPARTMENT OF STATE, Washington, July 24, 1867. SIR: I have to acknowledge the receipt of your despatch of the 29th of March last, No. 133, enclosing a memorandum drawn by Mr. Hart, illustrating the |