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the case. But if the plaintiff really and truly felt that he had been wronged or op pressed, he naturally would have shown an anxious desire to appear in court and pray for redress. Then, again, if he were engaged, he should also (in that event) necessarily have gone to the court to watch the proceedings-this is a well-settled governing principle. But as it is, the plaintiff, since he did not appear in court (at the joint investigation), nor request the consul to communicate with the Ningpo taotai asking that the hearing of the case be postponed; and, further, as to the question whether he should have appeared in court or not-in all these the wrong or blame rests with himself. It is the universal rule or practice in the courts of western countries that when a case has been clearly set down for hearing at a fixed time, and the plaintiff has failed to appear in court, the judge can not wait, and the cause at issue can be imimmediately decided. In the case under consideration, since there were witnesses for the prosecution present in court whose testimony was taken conjointly by the taotai and consul, a decision should, of course, be rendered; and the action taken was not at variance with what is fitting and right. Further, the four boatmen were employed by the plaintiff, and really if they had not heedlessly and rashly ventured in the path of danger how could they have been willing to become resigned and submissive!
The old bridge of boats is an important thoroughfare, and there was hung up a prohibitory notification against small boats following in the wake of the large boats passing through the bridge; but they must pass through the opening or arch on the east, on the side of which is suspended these characters, Tui Wo Lui," come this way." The old regulations are all very clear and explicit. Mr. McCaslin's boat had violated the regulations; he was desirous of seeking his own convenience and had rashly and blindly followed the large boat, with the result that he received injuries. But certainly the fault is entirely his own. The same, for instance, as in western countries, where prohibitory notices are posted on railroads warning persons that no blame can attach to the railway companies if any persons who, seeking their own convenience, heedlessly venture in the way of danger, are thereby killed or wounded. The circumstances attending the present case are precisely identical. In a word, this case has been tried before a joint tribunal in a clear and thorough manner. The plaintiff failing to appear before the court, it was right that upon the evidence submitted a decision should be pronounced. In China, as well as in western countries, the modus operandi is the same. The examination of the witnesses having finished, the decision rendered was still in accordance with the former one (given by previous taotai).
The United States consul did not make any comments, from which it may be known that the taotai had certainly not been unjust or indulgent in the treatment of the case. Therefore, the request which Your Excellency has at this time made, that another joint trial be made, is one which the prince and ministers find it difficult to comply with.
And, as in duty bound, they present the foregoing circumstances of the case as presented by the Ningpo taotai, which, they hope, will receive a candid examination by Your Excellency.
A necessary communication, etc.
[Inclosure 8 in No. 1049.]
Mr. Denby to the Tsung-li yamên.
AUGUST 26, 1889.
YOUR HIGHNESS AND YOUR EXCELLENCIES: On the 17th instant I had the honor to receive a communication from Your Highness and Your Excellencies in relation to the case of Louis McCaslin, wherein you decline to direct the taotai at Ningpo to reopen the said case for the purpose of hearing the testimony of the foreign witnesses. By a misconception of my implicit instructions, and by a misconception, also, of the real meaning of the statement made by the taotai as to the necessity of producing the said witness before the joint commission, the consul had failed to summon the important witnesses of the plaintiff to appear. Your Highness and Your Excellencies correctly state the facts preceding the last examination. My purpose in asking for an order that the witnesses should all be reëxamined before a joint commission was simply that Your Highness and Your Excellencies and I might have before us in the discussion of the case exactly the same evidence. This result has not been obtained. While I have before me all the evidence, as well of native as of foreign witnesses, Your Highness and Your Excellencies still have only the evidence reported by the taotai, which does not cover the evidence of the foreign witnesses. How, then, can Your Highness and Your Excellencies determine as to the merits of the case with only one-half of the evidence in your possession ↑
In the consideration of this case it is well to bear in mind that it was not an ordinary suit at law by one individual against another, by an American citizen against a Chinese subject. It was essentially a claim against the local authorities for an injury done by their servants, the bridge-tenders. The joint commission was resorted to by me as presenting the surest method of securing all the evidence. Not being a suit by an individual against another individual, the strict rules of law do not apply to it. But even if they did, in western countries several methods are provided for reopening judgments when they are claimed to be erroneous. The fact on which Your Highness and Your Excellencies comment, that the plaintiff McCaslin did not appear, has no significance. All the facts could be proved by other disinterested witnesses. In western countries it is not at all necessary that the plaintiff should appear, and it is only within a comparatively few years that the plaintiff has been permitted to give his own testimony as witness. Your Highness and Your Excellencies proceed to argue the case on its merits, although you have not before you any of the testimony of the foreign witnesses, which was most important to a proper understanding of the facts. Your Highness and Your Excellencies seem to base your conclusion that Mr. McCaslin ought to receive no damages on the statement that he was himself guilty of negligence, that he violated the rules as to passing the bridge. I am not greatly learned in Chinese jurisprudence. What I do know of it induces me to believe that identical principles of right and justice underlie the civil jurisprudence of all civilized nations, and Your Highness and Your Excellencies can not properly determine whether McCaslin was guilty of negligence or not, not having all the evidence before you. Where an injury has been willfully and wantonly inflicted, the negligence of the injured party cuts no figure. Thus, if a person comes expressly to kill me and I am guilty of negli gence in not properly taking precautions to defend myself, I am, nevertheless, entitled to damages for the wrongful act. I claim in this case that the whole evidence will show that the bridge-tenders were repeatedly warned and begged not to close the bridge, and that they wantonly and willfullydid so, although they knew that their act in so doing would cause great injury to the occupants of the boat and possibly loss of life. If this be true, it does not at all matter in point of law that the boatmen ought not to have attempted to pass by the opening in which the injury occurred. I therefore renew my request that the evidence of the foreign witnesses may be taken before the taotai and reported to Your Highness and Your Excellencies for your final action. Failing in that, I ask to be permitted to send to Your Highness and Your Excellencies the evidence on file in my legation, and that this claim be considered in view of all the evidence heretofore taken. If, in the end, Your Highness and Your Excellencies adhere to your present decision, I can simply report your determination to my Government.
I beg leave to remind Your Highness and Your Excellencies in all courtesy that my Government, in matters of a character similar to this, has been exceedingly liberal in dealing with the claims of Chinese subjects who have suffered injuries in the United States, having paid in a short period nearly half a million of dollars for such purpose. I have, etc.,
Inclosure 9 in No. 1049.-Translation.
he Tsung-li yamèn to Mr. Denby.
SEPTEMBER 4, 1889..
YOUR EXCELLENCY: On the 26th of August the prince and ministers had the honor to receive a communication from Your Excellency in relation to the case of Louis McCaslin, wherein you again request that the Ningpo taotai be directed to reopen the case and take the evidence before a joint tribunal of the foreign witnesses and to report it to the yamên for final action in the premises, etc.
In regard to this case, it was clearly and concisely discussed in the yamên's communication in reply to Your Excellency of August 14, and there is now no need to reiterate the arguments then presented. But from Your Excellency's dispatch it would seem that your wish is to have the case determined here and between the yamên and yourself. The prince and ministers are of the opinion that in the trial of cases it is natural to take the evidence submitted in court and rely on it as the proof. Before the joint examination commenced the Ningpo taotai stated to the consul that as to whether the plaintiff should appear before the court or not was a question which he must decide for himself. At the joint investigation, however, the plaintiff did not appear, as the consul did not summon him. It was not (the case) that the taotai did not wish to take the testimony of the foreign witnesses. A decision in the case was thereupon rendered upon all the evidence submitted without objection or opposition from any of the parties (literally, all of them). Now, after judgment has been rendered
and the case settled, Your Excellency requests that the taotai be instructed to reopen the case for the purpose of taking, conjointly with the consul, the evidence of the foreign witnesses. Such a rule of action or procedure has never been practiced in China.
In Your Excellency's communication you observe: "By a misconception of your implicit instructions, and by a misconception, also, of the meaning of the statement made by the taotai as to the necessity of producing the said witnesses before the joint commission, the consul failed to summon the witnesses of the plaintiff," etc.
To this the prince and ministers would remark that the charge of carelessness must be borne by and rest on the consul; the Chinese authorities have not acted in an unreasonable or unjust manner. Your Excellency further remarks that your Government, in matters of a character similar to this, has been exceedingly liberal in dealing with the claims of Chinese subjects who have suffered injuries in the United States, having paid, within a short period, nearly a half million of dollars for such purposes. In regard to the cases at Rock Springs and other places, which occurred in recent years, these were cases where many innocent Chinese, who had committed no crime, were killed and their houses and property destroyed. The suffering and cruel treatment they endured one can not bear to express. The United States Government indemnified the sufferers as an act of commiseration, which fully evinced a staunch and thorough feeling of friendship on the part of a friendly nation, and China is not unaware of this and is grateful for this act. But the circumstances of the present case are different and should not be taken up as being the same and discussed from that standpoint. The prince and ministers therefore present to Your Excellency the true circumstances upon which they can not consent to having a further joint examination for the taking of the testimony of foreign witnesses, and they still hope that Your Excellency will view their decision in a candid and fair spirit. A necessary communication, etc.
[Inclosure 10 in No. 1049.]
Mr. Denby to Mr. Pettus.
APRIL 3, 1889.
SIR: Your dispatch No. 37 of the 25th ultimo is at hand.
After considerable discussion with the Tsung-li yamên, I am satisfied that the better plan will be to have the joint investigation which the yamên has ordered. This, on the part of the yamên, is a concession which may pave the way to the recovery of damages. They insisted on the evidence which the taotai sent forward; I insisted on that which you had sent me. A joint investigation will secure the same evidence. After you have taken it, if the taotai still refuses satisfaction, you can appeal to the legation. Then the evidence will be undisputed and there will be common ground for the yamên and the legation to meet on. There is no other possible solution, because as long as the yamên relies on proof which differs from the proof sent by you nothing can be done. I am satisfied that the consent to have a joint investigation is the beginning of a concession which will lead to a payment of damages. Your dispatch is the first intimation I have had that a joint investigation had been ordered. You are therefore instructed to consent to a joint investigation and to make the best case you can. With my knowledge of Chinese character, I am induced to believe that you and the taotai can agree on a settlement if you can make the necessary overtures. If you do not agree, then let the case come to Peking as an appeal from a joint investigation, as the treaty provides. CHARLES DENBY.
Mr. Blaine to Mr. Denby.
SIR: I have received your No. 1018 of the 30th of December last, in relation to the issue of a travel certificate to Chun Arfat, a Chinaman who claims to be a naturalized citizen of the United States.
DEPARTMENT OF STATE,
Washington, February 20, 1890.
In your letter of the 29th of December to Consul Crowell you take the correct position that, unless Chun Arfat has a passport or makes application for one, no ground exists for the issue of a travel certificate.
As to the general subject, the Department is inclined to revert to Mr. Frelinghuysen's position that a travel certificate should only issue for the particular trip undertaken by the applicant. It should not be issued under circumstances which permit it to be used in lieu of a passport for residential purposes. The term during which such a travel certificate may be valid can not well be fixed by a general rule. Circumstances may determine a long and circuitous journey, with necessary halts, extending over a considerable period of time. The purpose of the journey, its course and objective point are chiefly to be considered in issuing such a certificate, and not the time during which the holder may rove at will or reside outside treaty ports.
If a permit to travel be expanded by a time limit, so as to be tantamount to a permit of residence of specified duration, the door is opened to a logical claim on the part of the Chinese authorities to intervene to attach conditions to the contemplated sojourn of the bearer, thus introducing unnecessary and undesirable complications.
Questions of residential rights and privileges should in all cases rest on the treaties and on the passports which those treaties stipulate as sufficient evidence of the holder's rights.
Approving your views as expressed to Consul Crowell, and necessarily reserving any opinion as to Chun Arfat's citizenship till the question is presented,
1 am, etc.,
JAMES G. BLAINE.
Mr. Denby to Mr. Blaine.
LEGATION OF THE UNITED STATES, Peking, February 26, 1890. (Received April 15.) SIR: I have the honor to suggest that it is desirable that a circular should be issued by the Department directed to the consuls in China particularly setting forth the manner of applying for passports and of issuing travel certificates.
My reasons for making this recommendation are the following:
While the rules concerning passports (paragraphs 133 to 149, Consu lar Regulations, 1888) are full, as applicable to other countries, no special mention is made of China.
Here the rules have been modified to suit pecular conditions, and in another revision of the Consular Regulations these modifications should be inserted. One modification is that at places where no notary or other official empowered to administer oaths can be found a certificate may be substituted for the ordinary jurat.
Another modification is that the applicant for a passport must forward to the legation his full Christian and surname in Chinese and English. In Chinese these names are called Hsing and Ming. The yamên will not countersign a passport unless this rule is complied with.
It happens almost every day that we are compelled to return applications for passports to the consuls because this rule has not been complied with.
Again, the occasions on which travel certificates may be issued are not defined in the regulations. Paragraph 138 provides for the issuance of certificates only in countries where the local laws require the deposit of a passport during the temporary sojourn of a traveler. But
in China, by the direction of the Department, travel certificates are issuable in cases where the applicant has made application for a passport to the legation. In this connection, in my dispatch No. 1018 of December 30, 1889, covering a communication to the consul at Amoy, I recommend that travel certificates may in cases of emergency be issued by the consul when application is made for a passport. In such cases certifi cates should cover the proposed travel, and not for a year, as is now the rule.
I present, as a suggestion simply, a form of the proposed circular. I have, etc.,
[Inclosure 1 in No. 1058.]
Circular to the United States consuls in China.
Consuls are directed that the rules hereinafter set out must be complied with in making applications for passports to the legation in China.
(1) Duplicate applications must be forwarded to the legation complying in all respects with the forms which are now in use for native and naturalized citizens, as the case may be.
(2) In cases where it happens that no notary or other officer before whom an oath may be administered is accessible to the applicant for a passport, a form of certificate for an applicant for a passport which is herewith inclosed may be adopted. Two persons should sign as witnesses.
(3) In all cases in which application is made to the legation for a passport, the Christian and surnames of the applicant in both the English and Chinese languages must be forwarded to the legation.
(4) Consuls have no power to issue passports; but they may in cases of emergency issue travel certificates. Such certificates shall only be issued by the consuls where the applicant applies for a passport. At the time that the travel certificate is issued the consul shall forward to the legation at Peking the duplicate affidavits mentioned in clause 1 hereof, and he will retain the passport issued by the legation as his voucher for the right to issue a travel certificate until the travel certificate is returned to him, and the passport may then be delivered to the applicant. Such travel certificates shall be good for the proposed trip only, and shall not specify that they are good for 1 year or for any other given time.
Form of approved certificate for applicant.
I, the undersigned, do hereby certify and affirm that the matters stated in my application for a passport of date are true, and that this statement shall in all respects be held and treated the same as if I had personally executed such application before a consul of the United States.
Mr. Denby to Mr. Blaine.
LEGATION OF THE
UNITED STATES, Peking, March 6, 1890. (Received April 15.) SIR: Referring to my dispatch No. 1058 of February 26 last, relating to passports, I have the honor to call your attention to another phase thereof.
Paragraph 135, Consular Regulations, 1888, requires that a naturalized citizen applying for a passport shall produce the original or certi