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claim, because they do not expect to be paid twice. Supposing the Chinese government bound to pay anybody, it is clear that the payment should be made to the only parties who have lost anything. The underwriters and one firm uninsured are now the only parties who have lost.
"I propose to consider the main question of the responsibility of the Chinese Government in this case by inquiring
“1. Whether the treaty of 1844 prohibits this claim.
“2. Whether the same treaty supports the claim either expressly or by inference.
“3. I shall then consider the subject under international law, independently of the treaty; and,
“4. Discuss some popular objections to this claim.
“1. Piracy has prevailed on the coast of China for centuries. It has assumed two forms. The first may be said to be a normal condition of piracy existing among the villagers and fishermen who dwell along a line of coast extending two thousand miles.
“When a vessel is stranded in their neigbborhood, they come forth to plunder it, and then retire to their usual occupations. To-day they are fishermen or agriculturists; to-morrow they are pirates as occasion serves. They number many millions probably, and their predatory habits arise from their moral condition, for which no government can be held responsible. It is difficult to see how force could be advantageously applied against this thievish population, unless when engaged in some overt act of robbery. On a recent occasion a stranded steamer was surrounded by seventy boats, containing each six to ten men armed with swords and spears. To this normal condition of piracy on the coast, the treaty of 1844 justly applies. Due regard was had to the extent of the coast, the difficulty of preventing the robberies, and the ease with which the thieves might escape with their plunder, and all trace of them be lost among the myriad population dwelling in innumerable villages. Every possible leviency was shown to the weakness of the Chinese Government or empire. The 26th article of the treaty of 1844 declares, in regard to piracy, as follows: ‘But if, by reason of the extent of territory and numerous population of China, it should in any case bappen that the robbers cannot be apprehended, or the property only in part be recovered, then the law will take its course in regard to the local authorities, but the Chinese Government will not make any indemnity for the goods lost.' Nothing could be more reasonable than such a provision, however much we may deplore the condition of things which the treaty contemplates.
“On the other hand, we find frequently on the coast of China great pi. ratical fleets. These have sometimes assumed political importance, and even acquired historical celebrity. The piratical fleet at Koelan numbered 78 large junks, containing probably one hundred men each. The expeditionary force met twenty rebel boats, carrying, as they reported, one hundred men each. The piratical fleet was in fact a great navy approximating to the dimensions of the United States navy in number of vessels and men, though of course no comparison can be instituted in respect to courage or efficiency. It is probable that the shore population in league with the fleet equaled in number the piratical crews. It is difficult to see how the terms of the treaty of 1841 can apply to this tremendons piratical organization. It is difficult to see how the extent of territory or numerous population of China'could afford any excuse to the Chinese authorities. The existence of such a fleet must have been known to Governor Yeh. This is clearly proved by the fact that the imperial squadron near Koelan was negotiating with the pirates. The proceedings of such fleets cannot be concealed. They generally range over some hundreds of miles, devastating as they go. No extent of coast could give obscurity to such a fleet as that wbich chose Koelan for its home and depot. Neither could the numerous population of China' allow 78 great junks and 6,000 to 8,000 men to hide away as a thief in a crowd. If, therefore, the Chinese authorities took no measures against the Koelan fleet, either before or after the piracy on the Caldera, they cannot be excused (in the terms of the treaty) by reason of the extent of the territory or the numerous population of China.'
* The terms of the treaty are utterly inapplicable to the facts regarding this great piratical organization. The treaty of 1844 pays regard to the weakness of the Chinese Government, and marks out, in my opinion, the exact limit within which that government cannot reasonably be beld responsible. The circumstances of this case are entirely beyond that limit. I therefore conclude that the treaty of 1844 doos not prohibit this claim.
“2. But we do not, on the other hand, find that the treaty supports the claim by any express stipulation. We have been referred to certain articles of the treaty which promise good treatment and protection to American citizens. I regard these as merely declaratory clauses in respect to that good treatment which all governments give to resident aliens. They are not guarantees of indemnity for losses by any ordinary felony, unless the government itself is guilty of collusion, gross neglect or somo unwarrantable act purely official in character. But I am of opinion that if the treaty does not support the claim expressly, it does so by inference beyond a doubt. The felony was extraordinary, and the terms of the treaty no more apply to it than a statute against petty larceny applies to the filibusters who invaded Nicaragua. There was within the empire of China, at Koelan and its neighborhood, a quasi-independent piratical state or district, having a vast organization for predatory purposes. The imperial officers in command of the Chinese squadron succeeding in negotiating with the pirates, and buying up thirty junks, leaving forty-eight, which were afterwards destroyed by the foreign naval forces. Negotiation implies a certain independence in the party negotiated with. As for the remaining forty-eight junks, they feared nothing from the Chinese authorities. Conscious of strength, they enjoyed perfect security. The official report of their destruction states that they were hauled upon the shore, and it would have taken a week to get them afloat. They were accordingly burnt. The evidence before us shows that the existence of this piratical fleet was (as it always has been in similar cases) a matter of notoriety. The goods were seen in the towns and villages all along the coast. The junks which took away the cargo were large ones, armed with 32-pounders, and the crews evinced considerable dicipline. Some of the cargo was found on board the large fleet, and I have no doubt the lion's share of the plunder was obtained by that fleet. It is, however, true that the Caldera was robbed by several parties of pirates, but they all thieved under the shadow of the great fleet, which bade defiance to the Chinese imperial squadron. I would here advert to the difficulty of getting positive evidence in cases like this. Had not the expedition, consisting mainly of British forces, gone against Koelan, we should be deprived of much light which has been thrown on this subject. It is not proved, but it is improbable, judging from what we know of Chinese officials in connection with piracy, that the thirty junks who joined the imperial squadron did so because they knew the foreign forces were coming. They may have carried a portion of their plunder with them and divided it with the imperial officers. In fact, the proceedings of Chinese officials in such cases afford no ground for disbelieving any allegations which the claimants make. But the proof of some minor matters (not necessary however, in order to arrive at a conclusion) is somewhat imperfect.
"In regard to the 26th article of the treaty, on the strength of which Governor Yeh and Mr. McLane rejected this claim, Mr. Cass, Secretary of State, stating some points hypothetically, says: Undoubtedly it (the Chinese Government) might discharge itself of the obligation of indemnity by showing that the robbers could not be known to be apprehended, or that the property could only in part be recovered.' We have already proved that the pirates were very well known, and if the goods were not recovered, it was owing to the impudent strength of the pirates and not to concealment. The inference is that the obligation of indemnity remains perfect. The obligation rests on the express stipulation that the Chinese Government will arrest and punish the robbers, and recover the goods, if accessible and visible. The goods being visible, and the robbers accessible, I infer the liability of the Chinese Government.
“3. If we regard the subject from a point of view under international law, we shall find that the piratical state of Koelan was within the jurisdiction of China, and the Chinese Government is responsible for its condition, although the piracy was not directly an act of the Chinese Government, or adopted by it in a direct manner.
“In regard to this piratical imperium in imperio, the Chinese Government might take several courses. Thoy might suppress the pirates by energetic action, as they were bound to do; they might merely make an indemnity for any losses inflicted on foreign commerce; they might leave foreign pations to take indemnity by reprisals, or take redress by bombardment (after a refusal of indemnity by the Emperor), as bas been done in times past against the Barbary States or savage islands in the Pacific Ocean. It is well to note here that the expedition against Koelan was not on account of this claim. The expedition went to recover the goods and chastise the pirates, as such, and not as subjects of China. Two mandarins accompanied the force as a manifestation of its peaceful character toward China and its government. Everything appears to have been done with international conrtesy and politic circumspection,
“In this case, the emperor has decided to make an indemnity, if it is due; that is, by agreeing to a convention of claims. He has made arrangements to pay this claim contingently upon its adjudication.
“4. I have now to consider certain objections to this claim of a popular nature, and shall du su briefly. It has been asserted that it has always been the custom of the Chinese Government to suppress pirates, banditti, and insurrections, by buying up the leaders, and giving them pardon and promotion to office, even among the people whom they have robbed. It is sufficient to say that iniquity of this sort cannot plead custom. We bave no reason to complain of the internal customs of China, but when those customs encourage piracy, which infringes our foreign commerce, the mildest redress which can be demanded is a pecuniary indemnity.
"If we consider the weakness of the Chinese Government an excuse in this case, we set aside the treaty, give immunity to the Koelan pirates, establish piracy by law, and issue in spirit, if not in fact, a roving commission to pirates to prey on American commerce, provided, for the time being, they are strong enough to be unusually audacious. It is not competent for this commission to regard these popular considerations. Commiseration for China is a point for the consideration of the United States Government when it makes treaties with China. On the other hand, the claimants are entitled to commiseration, for they have lost their property by a violent crime hostile to all human interests. They are entitled to all the eqnity which the facts of the case can possibly give. Their loss has been absolute and without contingency or construction.
“ 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 to say now 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 just to allow but forty per cent. of the claim of 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. A separate document will be submitted, showing the amount due the claimants respectively. The rejection of this claim in 1851 (on ground which, in my opinion, overlooked the marked distinguishing features of it) has necessitated a careful review. I have endeavored to view the subject as if it were 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."
1H. Ex. Doc. 29, 40 Cong. 3 sess. 178-180.
The report of Mr. Roberts was adopted and affirmed by Mr. Ward, and under the decision thus made the underwriters received $47,542.62, and Messrs. Alvord & Co., $7,023.52. The claim of Rooney, the master of the bark, was disallowed for want of proof of his American citizenship. Subsequently, such proof having been made, Mr. Burlingame allowed his claim to the amount of $3,010.1
The claimants being dissatisfied with the amount allowed under the decision of the board, Congress, by an act of June 9, 1878, referred the case to the Court of Claims. This tribunal rendered a decision in favor of the claimants, and on May 7, 1881, the decision of the Court of Claims having been affirmed by the Supreme Court, the Secretary of State paid out the sum of $113,077.11 in satisfaction of the judgment.
In the case of the Caldera reference has been made to Claim of Nott & Co. the claim of Nott & Co., which was disallowed by the
commissioners. It appeared that on October 16, 1857, Nott & Co., American merchants at Hongkong, shipped four boxes of specie, valued at $16,197.60, on board the British schooner Nera, at that port. The schooner sailed on the afternoon of the 17th of October, and during the evening, while she was lying at anchor at a short distance from the limits of the harbor, five Chinese came alongside and requested passage to Foochoo. At about 11 o'clock at night these supposed passengers, assisted by some Chinese members of the crew, took possession of the vessel, murdered the captain and some of the seamen, and seized the treasure on board. They subsequently escaped to the mainland near Mirs Bay. The remaining members of the crew brought the vessel back to Hongkong and made a report of the occurrence. The claimauts alleged that the local authorities did not exert proper diligence for the apprehension of the culprits and the recovery of the treasure; but owing, it was said, to the absence of their age in the northern part of China when the claim was rejected by the commissioners at Macao, they failed to take an appeal to the minister of the United States, Mr. Ward, and the decision of the commissioners was affirmed. Subsequently they sought to obtain payment of their claim from the United States out of the surplus of the fund,” and by an act of February 22, 1869, the case was referred to the Attorney-General. On the 3d of the next month he rendered an opinion in favor of the claim. ants, under wbich the Secretary of State paid them the sum of $38,242.53, which included interest up to the date of the Attorney-General's opinion.
It seems that when it was ascertained that a surplus Return of the Remain- would remain after the payment of tho claims allowed
by the board, the return of the money was proposed, but the Chinese Government declined to accept it.3 In his annual message of 1860, President Buchanan suggested that, as the remainder of the fund would in equity belong to that government, it should be appropriated" to some benevolent object in which the Chinese may be specially interested.” President Lincoln in his first annual message repeated this suggestion, but added that if it should not be adopted, the money might be invested as a
der of the Fund.
H. Ex. Doc. 29, 40 Cong. 3 sess. 189. 2 H. Ex. Doc. 29, 40 Cong. 3 sess. 206. 3 H. Ex. Doc. 29, 40 Cong. 3 sess.
fund for the satisfaction of claims against China which might arise in the future.
In 1863 Mr. Burlingame proposed that the money should be used for the establishment of an educational institution at Peking. No action, however, was taken by Congress on the subject, and in 1867 the money was ordered to be remitted to the United States. This was done, and the money was duly invested. Out of the fund thus created the subsequent allowances in the case of the Caldera and Nott & Co. were paid. Finally, by an act of March 3, 1885, Congress directed the Secretary of State, after deducting the sum of $130,000, which was to be paid to the executors of Charles E. Hill in satisfaction of his claim against the Chinese Government for the use and loss of the steamer Keorgeor, to turn over the remainder of the fund, together with the increment derived from its investment, to China. In accordance with this direction the Secretary of State on April 24, 1885, paid to the Chinese minister at Washington the sum of $453,400.90. In acknowledging its reception the Chinese minister said: “This generous return of the balance of the indemnity fund by the United States to China can not fail to elicit feelings of kindness and admiration on the part of the Government of China toward that of the United States, and thus the friendly relations so long existing between the two countries will be strengthened.”.
67, H. Ex. Doc.
1 Mr. Seward, Sec. of State, to Mr. Burlingame, 29, 40 Cong. 3 sess. 17. ? Treaty Volume, 1259; For. Rel. 1885, p. 183.