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cable at all, ought not to be relied on. I reiterate the fact that the yamên has never had before it all the evidence, and therefore can not decide the case justly, and I offer, in the event that the case is not reopened, to send to the yamên all the evidence in my possession.
On the 4th of September, 1889, in a communication numbered 25, of which a translation is herewith inclosed, the yamên replies to my communication of August 26. The yamên therein claims that the judg ment is final and can not be reopened under Chinese law; that the plaintiff did not appear before the court and did not introduce any witnesses, and that he must suffer the consequences of his negligence. Then fol low some remarks on the contrast that I had presented between the treatment of the Chinese in America, to whom heavy damages were paid in several cases, and the treatment of Americans in China. This communication ended the correspondence between us.
The dispatch to Consul Pettus heretofore alluded to is No. 28 of April 3, 1889. I inclose herewith a copy thereof. It will be seen that the consul was instructed to attend the joint investigation and "to make the best case" he could. These instructions were, unfortunately, not carried out literally. It would seem, however, from the whole correspondence, that the yamên would in no event have ordered the payment of damages. If the Department, from a perusal of this correspondence and of such papers as Consul Pettus may forward, concludes that injustice has been done to Mr. McCaslin, it may still be possible some time in the future, following the precedent in the celebrated Hill case, to provide that, in the event of any claim being made by Chinese subjects against the United States for damages, the claim of McCaslin should be recouped.
I have, etc,
[Incloguro 1 in No. 1049.]
Mr. Denby to the Tsung-li yamên.
NOVEMBER 17, 1888.
YOUR HIGHNESS AND YOUR EXCELLENCIES: I have the honor to submit for your favorable consideration the following facts touching a claim for damages of Louis McCaslin, a citizen of the United States residing at Ningpo, which has been sent to me by the United States consul. It has been submitted to my Government, and I have been ordered to bring it to the attention of Your Highness and Your Excellencies. The facts, as they appear in bulky depositions and affidavits in my possession, are as follows: On the morning of the 29th of April last Mr. McCaslin, the claimant, entered his house boat with Captain Pratt, wife, and child, and two Chinese servants, together with four Chinese boatmen, and started on a pleasure trip to Ning-wangshan, some 12 or 15 miles from Ningpo. The weather being unfavorable, they did not go farther, but started on their way home. They came to the bridge of boats, a public highway having drawbridges, or certain pontoons that could be opened for the passage of junks, ships, etc. Mr. McCaslin found the tide high and that an opening was made for the passage of a junk having mandarins on board; he fell into the wake of the junk, so as to keep a safe and speedy passage through, as agreeable to the custom of passage of boats; his house boat was only some 15 feet in the rear of the junk, but on his entering the open space made for the passage of the junk, which had just cleared, to the surprise of all on board the house boat the bridge-keepers cominenced closing the opening, although the Chinese boatmen begged them not to do so, as did Captain Pratt. Fortunately, but for the presence of mind of Captain Pratt, of the steamer Kiangtun (an old and experienced seaman), the boat would have capsized and about 10 lives on board would have been lost. Mr. McCaslin, the claimant, in aiding Captain Pratt and the boatmen in their time of danger, was struck on the right ear by the pontoon, jamming him up against the forward end of the house boat and knocked him through the door into the boat, causing great injury to his right jawbone,
it being broken in three places, both ends of the bone sticking up against the roof of his mouth, his right arm injured and his thumb dislocated, which injuries Dr. Daly, who attended him, declares would be permanent. On the happening of these injuries the consul addressed to the taotai at Ningpo a communication relating thereto and asking an investigation and proper reparation. The taotai replied that the matter should have attention, and directed Major Watson, an Englishman employed on the police, to examine the boatmen touching the same and report.
Consul Pettus was notified May 4, 1888, that the boatmen would be examined on that day. The evidence of the boatmen was taken and is conclusive that the bridgekeepers intentionally shut the gate on the house boat. Afterwards the taotai addressed a note to the consul stating that he had examined these persons connected with the bridge and the evidence of the boatmen, and that he had closed the case. This extraordinary conclusion was reached without giving the consul or Mr. McCaslin any opportunity to be heard at all. The consul remonstrated with the taotai, stating that his conclusion did not correspond with the evidence of the boatmen, copied by his interpreter, and that he demanded, under the treaty stipulations, a joint investigation of the case.
On the 11th of the fourth moon (May 21) the taotai answered that the case was closed upon the evidence he had; but he did not furnish to the consul a copy of the evidence, as he had been requested to do. The consul thereupon notified the taotai that he would himself hold a court of investigation the 2d day of the fifth moon. This examination was held, and the proof was taken. It shows conclusively that the bridgekeepers willfully shut the gate and caused the injuries complained of. In China, if an injury is done by a foreigner to a Chinese subject, it is entirely competent for the injured party to sue the foreigner in the consular or other court of his nationality. If the case is reversed, and an injury is done by a Chinese subject to a foreigner, the rule is not to sue the Chinese subject in a native court, but to apply to the local authorities for redress, and, failing to get redress, to appeal, as is done in this case, to the legation to present the matter to Your Highness and Your Excellencies for your kind consideration.
Article XXVIII of the treaty of 1858 with the United States provides that if controversies arise between citizens of the United States and subjects of China which can not 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. It would seem that the taotai entirely ignored this clause in the treaty. He refused to order a joint investigation and closed the case on ex parte testimony, taken without notice to, and in the absence of, the injured party. As the bridgekeepers in this case were public officials in the employ of the local authorities, they are clearly responsible for their willful misconduct. If this be not so, the foreigner in China would rarely have a remedy for any injury done him, because employés are ordinarily irresponsible.
If redress can not be obtained before the local authorities, the foreigner has no recourse except to treat the claim as one of an international character and to look to the Imperial Government for redress.
In this case the damages suffered by Mr. McCaslin are very serious, and he demands 10,357.50 taels as compensation therefor. The case as presented is important. It is desirable to know whether Your Highness and Your Excellencies will sustain the taotai in his arbitrary refusal to order a joint investigation.
I have the honor to request that he be ordered to have an immediate joint investigation of the case, and to decide it fairly on the facts and law, and, if he refuses to allow Mr. McCaslin any damages, that he be required to report in detail the evidence in the case to Your Highness and Your Excellencies. In that event the evidence presented by the claimant will also appear, and I do not doubt that on appeal to Your Highness and Your Excellencies and myself we will arrive at a correct conclusion. Should this course be not adopted, I have then to request that Your Highness and Your Excellencies will kindly consider the evidence in my possession, which will be furnished to you if desired, and that, after examining it, Your Highness and Your Excellencies will order the sum demanded to be paid to the claimant.
With assurances, etc.,
[Inclosure 2 in No. 1049-Translation.]
The Tsung-li yamên to Mr. Denby.
NOVEMBER 23, 1888.
YOUR EXCELLENCY: Upon the 17th of November the prince and ministers had the honor to receive a communication from Your Excellency in regard to the case of Mr. Louis McCaslin, an American merchant, who sustained injuries at the hands of the
bridge-keeper in charge of the bridge of boats at Ningpo, and that the intendant of Ningpo had refused to hold a joint investigation of the case with the consul.
Your Excellency requested that the intendant be instructed to take up the case and deal with it fairly, etc.
In reply, the prince and ministers would observe that the yamên have already sent a communication to the governor of Che-kiang to clearly investigate and take action in the premises, and on receipt of his report they will inform Your Excellency. As in duty bound, the prince and ministers send this communication beforehand for Your Excellency's information.
To His Excellency CHARLES DENBY.
[Inclosure 3 in No. 1049-Translation.]
FEBRUARY 9, 1889.
YOUR EXCELLENCY: Upon the 17th of November, 1838, the prince and ministers had the honor to receive a communication from Your Excellency in regard to the injuries which Mr. Louis McCaslin received at the bridge of boats (in Ningpo), wherein you requested that instructions be sent the Ningpo taotai to at once hold a joint investigation of the case and to satisfactorily decide the same in an impartial mauner, etc. At the time the yamên addressed a communication upon the subject to the governor of Che-kiang and also acknowledged Your Excellency's communication, all of which is a matter of record. The governor of Che-kiang has replied, giving the following statement submitted to him by the taotai of the Ning-Shao-Tai circuit (Ningpo), viz: "He has carefully examined and made inquiries and had obtained the true facts of the case, and it appears that the men in charge of the bridge really had no intention to try to do evil or harm to Mr. McCaslin as a matter of revenge; that it was a question of carelessness on the part of the boatmen, and he certainly could not hold the bridgemen responsible for the offense of causing the collision. Further, there is the evidence taken by Major Watson. The said foreign merchant has gradually recovered from his injuries, and there is no need to hold a joint investigation, thus saving further trouble."
Having received the yamên's communication, the governor respectfully presents the circumstances of the action taken by the Ningpo taotai, together with copies of the correspondence (between the consul and the taotai), the evidence taken at the police office, and the facts or circumstances ascertained upon inquiry.
With regard to this case, it seems that the said taotai had carefully examined into and made secret inquiries regarding it, and, as there was not the least ground to doubt that what was right and proper had been done, he thereupon gave his decision. Further, when the examination was held at the police office, the interpreter of the United States consulate was present and watched the proceedings, and this should be regarded in the same light as a joint investigation. As in duty bound, the prince and ministers transmit here with a copy of the reply of the governor of Che-kiang for Your Excellency's perusal. Besides, there is the evidence taken at the police office and the facts ascertained by secret inquiries being made by the police in disguised dress; but, as Your Excellency stated in your dispatch that you had on file in your legation the papers and evidence of the case, copies of them are not sent. But should Your Excellency wish to peruse them, the prince and ministers will have copies made and transmitted to you.
A necessary communication, etc.
[Inclosure 4 in No. 1049.]
Mr. Denby to the Tsung-li yamén.
FEBRUARY 22, 1889.
YOUR HIGHNESS AND YOUR EXCELLENCIES: I have the honor to acknowledge the receipt of the communication of Your Highness and Your Excellencies to me of date the 9th of February, 1889, in regard to the claim for injuries received by Louis McCaslin at the bridge of boats at Ningpo.
You therein state that the evidence was taken before the police superintendent, Major Watson, and that the taotai "made secret inquiries," and that a joint in vestigation which the treaty requires is not necessary. I know of no mode of arriv
ing at the whole truth in judicial matters except an open investigation, at which both parties are present and have the right to sift matters to the bottom by examination and cross-examination of witnesses. This case fully illustrates this idea. I have before me the evidence of the boatmen, which fully sustains the justice of the claim. Your Highness and Your Excellencies also allude to the evidence in your possession, which can not be the same as that which is in mine. You allude, also, to secret inquiries." But if "secret inquiries" are to control, all persons could make any statement they pleased.
The first boatman examined states: "We called out to the people not to close; they looked at our boat, and, seeing it was foreign, they turned and closed the bridge." The second boatman says the injuries happened "because the bridge-keepers persisted in closing the bridge, although we repeatedly asked them not to when the boat was partly through."
The third boatman says: "The house boat was partly through the bridge when the keepers began closing it; we called out to them to stop, but they looked at us and took no notice; they turned and proceeded to close the bridge."
The fourth boatman says: "We shouted to them not to close, but they took no heed, but proceeded to shut the bridge, striking our boat."
This is the evidence as reported to me, which was taken at the Compo police station. Negligence or a willful desire to inflict injury could scarcely be more clearly shown.
Other proof in my possession from foreign witnesses is still stronger. Some stress is laid upon the statement that Mr. McCaslin has gradually recovered from his injuries. That has nothing to do with his right to recover damages.
Some stress is laid, also, on the statement in the report that if Mr. McCaslin had not gone to the front of the boat he would not have been injured. This may or may not be true. It is altogether likely that his courage and devotion prevented a serious accident, which would have resulted in the sinking of his boat and the drowning of all the occupants thereof. But, however that may be, it is a universal principle that where, by the negligence of others, a man is put in circumstances of great peril he is not chargeable with negligence, even if, acting on the spur of the moment, he runs into danger. Thus, when a collision takes place between two vehicles, one who endeavors to save himself by jumping and is therefore injured is not liable to have imprudence or carelessness imputed to him. But this is not the time to argue what the effect of evidence is. The evidence has not been taken by a joint investigation, and we have not got it in full before us. This mode of examination is just to all parties. If Your Highness and Your Excellencies establish the precedent that a joint investigation shall not be had whenever the said taotai announces that he has prejudged the case it will return to plague you on many future occasions. It may work in your favor in this instance, but your opponents may rely upon it when it suits them, and a correct decision may thus be often avoided. I trust that on a reconsideration of the question Your Highness and Your Excellencies will see that no harm can possibly arise by standing by the rule that legal investigations affecting foreigners under the treaties should be open and joint. I ask at present that the taotai be ordered to hear this case in the regular way and to report the evidence taken before the joint tribunal. The presence of the interpreter of the consulate at the police officers' examination was in no sense a joint investigation. If, however, Your Highness and Your Excellencies so consider it, then I say that the evidence taken sustains Mr. McCaslin's claim, and I have only to ask that it be ordered to be paid.
With assurances, etc.,
[Inclosure 5 in No. 1049.-Translation.]
The Tsung-li yamên to Mr. Denby.
MARCH 3, 1889.
YOUR EXCELLENCY: Upon the 22d of February last the prince and ministers had the honor to receive Your Excellency's communication in regard to the claim for injuries received by Louis McCaslin at the bridge of boats at Ningpo. You state in your communication that the evidence of the boatmen in possession of the yamên can not be the same as that in Your Excellency's, and you again request that the taotai be ordered to hear the case in regular way before a joint tribunal with the consul. The yamên have addressed the governor of Che-kiang to instruct the taotai to satisfactorily and speedily take action in the premises, and on receipt of a report the prince and ministers will inform Your Excellency. In the meantime, as in duty bound, the prince and ministers send this communication for Your Excellency's infor
A necessary communication, etc.
[Inclosure 6 in No. 1049.]
AUGUST 6, 1889.
YOUR HIGHNESS AND YOUR EXCELLENCIES: On the 22d of February I had the honor to ask Your Highness and Your Excellencies to order that a joint investigation of the McCaslin case be had by the taotai and the American consul at Ningpo. Your Highness and Your Excellencies kindly agreed to this proposition, and the joint investigation was ordered. The American consul inquired of the taotai whether he should introduce the foreign witnesses whose testimony had already been taken by him, and he was told to "suit himself." He took this statement as meaning that the foreign witnesses need not be introduced before the taotai, but that their evidence already given would be considered by the taotai the same as if they had been examined before him. But after the taotai had taken the testimony of the native witnesses he refused to consider the testimony of the foreign witnesses on the ground that it was not taken before him. It thus happens that the only proof that avails Mr. McCaslin is the testimony of the four boatmen, and that you will still not have before you when you undertake to consider this case any proof of the foreign witnesses, which is most material to the plaintiff's case.
Article IV of the treaty of 1880 between China and the United States, which is entitled, "Treaty concerning commercial intercourse and judicial procedure," provides that in controversies arising between the subjects of China and the citizens of the United States the properly authorized official of the plaintiff's nationality, "if he so desires, shall have the right to be present, to examine and to cross-examine witnesses. The American consul would have availed himself of this right if he had not been misled by the taotai's statement above quoted. I have the honor, therefore, to request that Your Highness and Your Excellencies will direct the taotai at Ningpo to reopen the case and to examine the foreign witnesses in the presence of the United States consul. Then, if the taotai decides that no compensation is due to the plaintiff, he be directed to send all the evidence, foreign and native, to Your Highness and Your Excellencies, so that Your Highness, Your Excellencies and myself can have before us the same evidence and can arrive at a just conclusion.
I avail, etc.,
[Inclosure 7 in No. 1049-Translation.]
The Tsung-li yamên to Mr. Denby.
AUGUST 14, 1889.
YOUR EXCELLENCY: On the 6th instant the prince and ministers had the honor to receive a communication from Your Excellency in relation to the case of Louis McCaslin, wherein you requested that the taotai of Ningpo be directed to reopen the case and examine the foreign witnesses in the presence of the United States consul, etc.
In this case the prince and ministers would observe, that after receiving Your Excellency's communication in February last, in compliance with Your Excellency's request, they instructed the Ningpo taotai to satisfactorily and speedily take action in the premises. Now, that officer has recently presented a report embracing all the circumstances, a minute and detailed statement of which the prince and ministers present to Your Excellency. With regard to this case, if there never had been from the first to last a joint investigation of it, the prince and ministers would naturally have taken action in accordance with the request contained in Your Excellency's communication. But before the joint investigation took place the taotai addressed a communication to the United States consul at Ningpo, wherein he stated that, as to suimoning the plaintiff or not, it was a question which he (the consul) must decide for himself. The taotai was, moreover, of the opinion that the plaintiff'should, of course, appear in court; but, as he was a foreigner, he consequently requested the consul to act in the matter himself. When the joint investigation was opened, the plaintiff was not present; the taotai thereupon inquired of the consul the reason of his nonappearance, and the reply he received was that he was engaged, or had business, and did not come. But the consul did not state that, as the plaintiff had failed to appear in court, the case could not be determined; neither did he mention that, as the witnesses were not all present, the hearing should be postponed until another day. It is evident, therefore, that the taking of the evidence of the boatmen and bridgemen, representing both parties to the cause of action, was ample and sufficient to decide