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Subsequently, however, the Rev. Mr. Reed, occupying the position of minister, negotiated a treaty, in which provision for the payment of the Caldera's claims was made and guaran. teed through the customs of Canton, Shanghai, and Fubchau, and as received applied by instalments to the liquidation of adjudicated claims. The Caldera's claims, among others, were submitted to a board of commissioners in China, appointed by the government at Washington, for adjudication of claims—the American minister, the Hon. Mr. Ward, acting as umpire.
Meanwhile it became necessary to bring the Caldera's claims before the government at Washington for decision upon the legality of the claims under the American treaty with China, and also under the law of nations. Mr. Cass, then Secretary of State, lost no time in decidivg the claims to be valid, not only under the treaty with China, but also under the law of nations, and instructions were sent to the resident minister, Mr. John E. Ward, to so consider it. This settled the principle and disposed of the case, so far as the government was concerned.
The case then, among others, came up before the two commissioners; Mr. Roberts decided in favor, and Mr. Bradley against it; the Ilon. Mr. Ward, meanwhile, unaccountably and strangely withholding the decision of the government from the commissioners. Mr. Roberts awarded 40 per cent., with interest.
Under the instructions Mr. Ward received from the Secretary of State, he of course confirmed Mr. Roberts's award; the latter, however, was kept in total ignorance of the instructions of the government to Mr. Ward, which undoubtedly would have aided the commissioners in reaching a very different result.
We now complain of the amount adjudicated for the reason that time was not allowed, through notice from the commissioners, to prepare an argument to cover the case when under their examination; and owing to the board not being conversant with insurance, did not consider the merits of the marine loss through the protest, with full evidence and testimony before them; thus the interest of the claimants suffered in the absence of any protection. The claimants now petition and pray of the government to reopen the commission at Washington for a hearing upon their case, on the ground that twelve months' notice at least should have been given to the parties in the distance, and afforded them time to have placed before the commissioners a full argument upon the equitable and legal amount to which they were entitled. If it could be adjudicated at Washington, it would be the shortest mode of settlement; it would also seem as if, with all the testimony in the United States for a reconsideration before commissioners at Washington, or before the Secretary of State, who may be authorized to act through an act of Congress, it might be speedily settled here.
Mr. Robert S. Sturges and D. N. Spooner, in China at the time of the destruction of the Caldera, and latter then United States consul, both of whom were partners of Russell & Co. at the time, and sided strongly in favor of the claims without abatement, still declare the full amount with interest should be collected.
Now, you will pardon me for asking if it is right and just for these claims to be debarred a hearing, when such injustice has been so monstrously made apparent, particularly so when considered with the fact that the minister, Mr. Ward, withheld from the commissioners his instructions to require indemnity—at the same time provision already made by the Chinese government to indemnify the claims in full, leaving no adjudication really necessary, as the underwriters bad paid the assured in full, for the face of the policies. It would seem a hard case indeed, if, ample funds still existing and provided to pay these very identical claims, under a special decision of the government at Washington, equity and right should fail to correct the oversight and errors of the commissioners under Mr. Ward's administraLion; and I cannot, under the facts and circumstances set forth, for a moment doubt you will withhold your kind offices in recommending the case to Washington, which will readily settle the matter. Indeed, it was in a favorable train for such an end when your despatch of the 19th of May, 1862, reached the Secretary of State and frustrated, for the time being, the steps already taken, through the Committee on Foreign Relations. Here the matter rests at present to afford the claimants time to address you, with the hope you may reconsider the matter, and report to the government favoring their petition for a hearing at Washington.
Giving the case immediate attention, and report by an early mail to enable the claimants to renew their efforts in December next, you will confer a very great favor on, dear sir, yours very truly,
M. H. GRINNELL. His Excellency A. BURLINGAME,
United States Minister, &c., &c., &c.
PEKING, October 1, 1863. SIR: I have carefully read the two letters of Mr. Grinnell, dated June 15th and 16th ultimo, which you placed in my hands, and in compliance with your request, I now inake 3 few remarks upon them, explanatory of the claim of the underwriters of the Caldera, and its decision by the commissioners of claims in January, 1860.
In the letter of June 15 Mr. Grinnell remarks, in reference to the convention of claims, signed November 8, 1858, that the sum given by the Chinese government was intended to cover all private claims of American citizens to that date, estimated from a schedule presented to their officers by Mr. Reed; and, to quote his wor is, “was a fund for the satisfaction of all just and reasonable claims committed to the Unied States in trust to be distributed among the parties beneficially interested in the fund.” This explanation of the principle of the convention is no doubt a just one; and yet if he means thereby to convey the impression that the Chinese pegotiators granted so much money out of the duties op American commerce to the United States minister with which to pay a certain number of claims of American citizens presented to them, Mr. Grinnell has been misinformed as to the details of the negotiations. No schedule was ever presented to the Chinese officers, nor did they ever ask for a list of the claims; and when questioned as to a participation in their adjudication, declined to have anything to do with the decisions. The amount inserted in the convention was reduced by $140,000 from the sum first demanded, in consequence of further information obtained by Mr. Reed respecting the claims, and not at the request of the Chinese. The United States government was made the sole judge of the justice of the claims, and the Chinese have never made any inquiry as to the disposal of the money.
It is incorrect, therefore, to infer, that by presenting the schedule of claims to the Chinese officers they accepted them; and that by the same act Mr. Reed considered them all to be valid; for, in fact, no schedule was ever laid before them, nor did Mr. Reed examine them judicially in reference to their accuracy or validity. He merely submitted them to the State Department, with such explanations and classifications as seemed desirable for understanding the whole subject. In no sense can it be said, therefore, as Mr. Grinnell remarks, " that the validity of the claims was ever recognized by the Chinese government.” On the contrary, when this particular case was presented to them, in 1856 and 1857, they rejected it peremptorily as not coming under the treaty. In reality, they paid the demands made upon them by the English and French ministers as well as the American, under pressure; and never admitted that there was any justice in any of them, nor would they voluntarily have ever paid a single claim.
The case or the Caldera, consequently, came before the board of commissioners of claims, as all the others did, entirely upon its own merits ; and the members of that board never had an idea that their awards on it or any other claim were to be influenced by what the Chinese thought of them. It had been put out of their power to offer even an opinion of the justice of the award in a single instance.
In his letter Mr. Grinnell complains that the claimants for the Caldera suffered injustice because they were not heard before the commissioners or minister; but in truth this case was illustrated by more evidence, direct and collateral, than any other one presented-not only as to the condition of the ship and cargo after the storm, the circumstances of the several attacks of the pirates, and the disposal of the cargo after she had been pillaged, but by full arguments in regard to the legal and international features involved in the transaction. All the evidence obtained at Hong Kong, Macao, Kulan, and Canton, in 1854, at the time the casuulty occurred, was before the board, showing all the known facts; and so, too, were all the arguments contained in the correspondence of Mr. McLane and Mr. Parker with Chinese officials, and of the former with the agents in China of the underwriters, and the elaborate argument of Mr. F. B. Cutting, of December 3, 1855, in behalf of the case. All the vouchers, accounts, policies and athidavits pertaining to it were on haud and spread before them; and it is nearly certain that no new fact could have been discovered if the case had been argued in the United States, for the actors in the transaction were not there; nor can I imagine what new arguments tho claimants would bave brought forward. It is difficult to perceive wherein they have lost any advantage by having their case decided in China.
Complaint is also made in these letters of want of time to prepare the case for a hearing by the commissioners, owing to the distance, the limited period of their session, and inadequate notice. The fact of distance could not have been a hardship, for the claimants knew as early as March, 1859, when the act of Congress was passed, that the board was directed to sit in China, and that their case was to come before it; and, consequently, that no time need be lost to prepare their proof. But nearly a year before, on the 27th of May, 1858, I addressed a note to Messrs. Russell & Co., and Nye Brothers & Co., as agents for the insurance companies, asking them to prepare and furnish evidence respecting the ownership of the property, and circumstances of the loss of the Caldera, that it might be deposited in the archives, to be used in case the claims were adjusted with the Chinese government. In reply to this note, apparently, Mr. Cutting, their attorney, sent three documents, September 10, 1858, to Mr. Reed, explanatory of the case, and after the bourd commenced its sittings at Macao, Russell & Co., in December 5, 1859, added many more vouchers and accounts, making in all about thirty separate papers and pleadings, touching upon this one claim. There were nearly as many more besides, scattered through the archives of the legation, which were accessible to the commissioners.
It is always difficult to disprove negative assertions, but in this case I cannot see how the distance, or the limited session of the commission, operated against the claimants, for they had a longer notice than they now say would have sufficed, and seem to have fully availed
themselves of it. If oral pleading was desirable to secure a successful issue, as Mr. Grinnell intimates, why did not the agents in China come before the board and plead the case? There can be little ground for supposing that either the commissioners or minister lacked any evidence or argument to enable them to come to an intelligent decision.
Among the papers now on file relating to the Caldera, there is no copy of a protest or appeal from Messrs. Russell & Co. when they received the award ; nor when I paid them the first dividend of $21,950 62 in January, 1860, did I receive a protest, and I have no recolleo tion of hearing of it at any time after that date. Messrs. Alvord & Co., whose claim for losses at the same time was decided on the same principle, made no appeal against their award.
The remarks in Mr. Grinnell's letter relating to the decision of the Caldera's case need some correction, for he seems to have been misinformed. As soon as the board commenced its sittings, November 14, 1859, all the documents relating to it, as well as others, were handed to the commissioners out of the archives, and, as appears by their journal, those concerning this case were discussed on two or three occasions. Their views concerning it finally differed so entirely that they deemed it best to write out their reasons at length and submit them to Mr. Ward és umpire. The two documents number forty-six folio pages, and recite the particulars connected with the piracy and collusion of the officials, and enter at length into the question as to the liability of the Chinese government to make compensation for the injury done by its lawless subjects, the whole drawn up so carefully as to render it almost unneces sary to refer elsewhere for information or argument.
Mr. Ward was at first inclined to take Dr. Bradley's view of the case; but when the despatch of Mr. Marcy, of October 5, 1855, was referred to, and its subsequent confirmation by Mr. Cass, in May, 1859, be remarked with some degree of satisfaction that the decision was thereby taken out of his hands, and, as he observes in his written award, “his duty will be discharged by ascertaining as near as possible what have been the actual losses of our citizens." Mr. Grinnell seems to lay so much stress on the words actual losses in Mr. Marcy's despatch, as to overlook the principle that they should be construed by the context of circumstances, and to be defined and to include and mean only those losses caused by the pirates. Mr. Marcy could hardly have intended that the Emperor of China should be made responsible for damages by tempests and leakage, even if intimately connected with these by pirates in time and place. But Mr. G. almost assumes that the commissioners or Mr. Ward had no option left as to their decision, but must pay the whole claim of $89,727 09, because it was all an actual loss. This idea he derives from the postulate, on the one hand, that the Chinese government had accepted the schedule claims presented to them by Mr. Reed, and had paid a sum of money to liquidate them, which were thereby supposed to have been declared valid ; and, on the other hand, because the Secretary of State acknowledged this one in particular to be a just claim. He then concludes that as these two principal parties had thus acted, there was no real authority left with the board of claims to adjudicate it and no occasion for them to interfere.
But it has been shown that no list was presented to the Chinese by Mr. Reed, nor did he decide on the validity of one of them, and that the commissioners were made by the act of Congress the sole judges of all claims presented to them. Mr. Ward made his decision after reading his instructions, which I know were spoken of to them at the time, for I was cognizant of all the circumstances; and, moreover, the copy of this decision now on file is partly in the handwriting of Mr. Roberts.
What advantage Mr. Ward proposed to himself or any one else by withholding Mr. Marcy's despatch I cannot conceive, for he could not take the case out of the commissioners' hands and their written statements prove that they decided it on its owu merits. Mr. Roberts's för vorable award is based on broad grounds of international law, and implied protection and fulfilment of treaty rights by the Chinese government, which obliged them to act more energetically to remedy the piracies common along their coasts, and the pleading concludes with the admission that the claimants “are entitled to all equity which the facts of the case can possibly give. Their loss has been absolute and without contingency or construction."
He then indicates the basis for an award : “Equity, however, requires that the allowance of the claim should be made with a deduction. The underwriters and others should not be placed in a better position than if no piracy had occurred. The ship suffered heavily in the hurricane, and a large claim on the insurance offices would have been made. The vessel had four feet of water in the hold, and had been much strained; the masts, sails, and rigging had been nearly lost before the pirates came alongside. It is impossible now to say what the exact amount of repairs, salvage or general average would have been, or what portion of the cargo was damaged by the water in the hold or other leakage. After considering all the circumstances and taking testimony, I deem it fit to allow but forty per cent. of the claim on the policy covering the hull, and the same on the policies covering the cargo, with five years' interest at twelve per cent. to the underwriters in the United States.
“The rejection of this claim in 1854 (on grounds which, in my opinion, overlook the distinguishing features of it) has necessitated a careful review. I have endeavored to view the subject as if it was now presented for the first time. I have regarded it merely as a legal question, which requires a judicial solution according to the best of my ability."
This award was accepted in principle and amount by Mr. Ward, but I think that neither of the commissioners would have at any time regarded Mr. Marcy's despatch as superior, or contravening the act of Congress which authorized the board of claims. They would rather have explained it according to the act, that being the highest authority. I do not know when they first learned the purport of the despatch, but the charge brought against Mr. Ward of withholding it seems to be both unfounded and unnecessary.
He assisted them whenever it was requested, but as the Caldera was the only claim on which they differed, that assistance amounted merely to furnishing documents. There was no oversight or error on the part of any one in deciding the claims such as these letters describe, and particularly this one. Mr. Ward regarded himself as appointed by the act merely to approve their fiuding when it was unanimous, or decide which was just when it differed, not at all authorized to reject or modify it, or make one of his own. I may perhaps be allowed to add, that I know how much he endeavored to act impartially ; also, that the commissioners took all possible precautions in forming their decisions. I heard several Americans in China, claimants and non-claimants, and some, too, whose claims had been cut down, express their approval of the carefulness and diligence exhibited in investigating the claims and the fairness of the awards. There was no end to be gained by the examiners in withholding money which seemed to be justly due the claimants, for neither of them would be benefited, and Mr. Ward, especially, could have no object in withholding his instructions.
There were several claimants whose cases were rejected entirely, as not coming within the letter of the act, because they were not American citizens, or for other reasons, to whom this rejection was a great hardship. They were all included in the first schedule made out by Mr. Reed, and their losses were as actual as those of the insurers of the Caldera, and perhaps more serious to them. Some of these rejected claims were those of native employés, who stood by their masters in circumstances of great danger, and confided their property to them on the assurance of its safety, only to see it consumed without remedy, while, too, a number of their countrymen in English employ, and sufferers in like manner, have been compensated. All these claims were (according to Mr. G.) considered alike valid by Mr. Reed ; and if the commissioners had allowed them as they were claimed, the pro rata sum which the Caldera’s claim, ants would have been entitled to by this distribution was only $16,655. Moreover, Mr. Marcy's despatch said nothing about interest, but the five years' interest at twelve per cent. paid on the award made the payment altogether nearly two-thirds of the claim.
The point of the case in which Mr. Grinnell's opinion seems to be that the despatch was to be considered absolute in regard to this claim, irrespective of all investigation as to its merits by the commissioners, and that as the Chinese government gave a sum of money to the United States government through Mr. Reed, after accepting the schedule of claims, all of it was to be divided among the claimants, more or less, but in the Caldera's case apparently not
I have endeavored to show his errors as to facts, and that the case was fully shown in the evidence and argument before the board, that the claimants had ample time granted them to prepare and present their pleading, and that neither oversight nor injustice was done them in the premises. There is, therefore, not a sufficient ground to be found for reopening the case, nor for paying the additional sum now asked. I ain, sir, your obedient servant,
S. WELLS WILLIAMS. Hon. Anson BURLINGAME, &c., &c., &c.
Mr. Burlingame to Mr. Seward.
LEGATION OF The UNITED STATES,
Peking, November 9, 1864, Sir: I have the honor to send two decrees made by me, and approved by the consuls, in pursuance of the act of Congress approved June 22, 1860.
The first was rendered necessary by the irregularities of lawless men in connexion with the Chinese rebellion; the second by the act of Congress aforesaid.
It will be observed that the second decree is largely taken from forms made by the United States consul general at Constantinople, which have already been submitted by you to Congress. With our minister, the Hon. E. Joy Morris, I wish to bear witness to the ability of Mr. Godard in this respect, and to beg that the credit ascribed to these rules may be transferred to him. wish also to express my thanks to George F. Seward, esq., consul general at Shanghai,
for many valuable practical suggestions. I am chiefly indebted to him for the fee bill. He came to Peking at my request to consult in relation to these decrees.
I have carefully compared these rules with those “framed for the supreme consular court, and other consular courts, in the dominions of the Sublime Ottoman Porte, under the order of her Majesty in council of the 27th day of August, 1860, by the judge of her Majesty's supreme consular court, and approved by one of her Majesty's principal secretaries of state ;" and while I find them covering the same ground, I think those of Mr. Godard are less elaborate and more practical. Their adoption, as far as possible, in the very language of Mr. Godard, is a great advantage. They need but to be adopted in Japan to secure a uniform system throughout the cast. Whatever other rules may
be approved or rejected, I am sure that No. 44, which I inserted, will remain. It is this : “No consul shall recognize the claim of any American citizen arising out of a violation of the provisions of the act of Congress, approved February 17, 1862, relating to the coolie trade,' so called, nor any claim which involves the holding any person in slavery." I send also the circular of Mr. Seward, (marked A.) I also enclose the decrees as printed. I have the honor to be, sir, your obedient servant,
ANSON BURLINGAME. Hon. William H. SEWARD,
Secretary of State.
SHANGHAI, Notember 1, 1864. I have been directed by his excellency the honorable Anson Burlingame, United States minister plenipotentiary and envoy extraordinary to China, to publish the following decrees of 220 and 2:30 April last. Under the provisions of the act of Congress they become of binding force and effeet from this date. Certified copies of the decrees have gone forward for simultancus publication at the several ports.
GEO. F. SEWARD, Consul General.
Regulations for the consular courts of the United States of America in China.
In pursuance of section 5 of the act of Congress, approved June 22, 1860, entitled "An act to carry into effect certain provisions in the treaties between the United States, China, Japan, Siam, Persia, and other countries, giving certain judicial powers to ministers and consuls, or other functionaries of the United States in those countries, or for other purposes,' I, Anson Burlingame, minister plenipotentiary and envoy extraordinary of the United Siates to the empire of China, do hereby decree the following rules and regulations, which shall have the force of law in the consular courts of China :
1. Every citizen of the United States residing within the limits of the ports open to foreign trade in the dominions of the Emperor of China is required to be enrolled in the consular register, and shall apply in person at the consulate within thirty days after the publication of this decree. Every American citizen who muy arrive within the limits of the port, save and except any one who may be borne on the muster-roll of an American vessel, shall apply within ten days at the consulate to be enrolled. Any American citizen neglecting to be so enrolled will not be entitled to claim the protection or intervention of the authorities, uuless he can furnish a valid reason for not so doing.