No. 181.
Mr. Bayard
to Mr. Denby.
Washington, June 25, 1887.
Sir: Relating to the punishment of citizens of the United States by the consular courts of this Government in China, under the act of Congress of the 28d of February last, I have received, under date of the 18th of March last, a note* from the Chinese minister at this capital, a copy of which note is herewith inclosed. His excellency objects chiefly to that part of section 3 of the act which provides for the forfeiture by the consular courts to the United States, for the benefit of the Emperor of China, of opium dealt in by citizens of the United States in China, contrary to the provisions of the section which forbids citizens of the United States to import opium into any of the opium ports of China, or to transport it from one open, port to another, or to buy or sell it in any such port. The provision as to forfeiture is deemed by his excellency to be “an interference with the regulations of the customs and the right of local self-government of China,” And his excellency further says:
The customs officials in China, in addition to forfeiture, found that under certain circumstances they had to deal more severely with some cases and punish the delinquents by imprisonment as a warning. In these cases they communicated with the consul of the delinquents, who accordingly awarded a certain term of imprisonment, thus showing that China did not desire to have its own punishment inflicted upon the subjects of other nations, thereby, through the generosity of its Government, according to the consuls of other nations the power of jurisdiction over the subjects of their respective Governments. But in ordinary cases, where only forfeitures were made, coupled with a fine, there was no necessity for the consular interference.
It is to be observed that the act of February 23, 1887, was passed “to provide for the execution of the provisions of Article II” of the treaty of October 5, 1880, which reads as follows:
The Governments of China and the United States mutually agree and undertake that Chinese subjects shall not be permitted to import opium into any of the ports of the United States, and citizens of the United States shall not be permitted to import opium into any of the opium ports of China; to transport it from one open port to any other open port, or to buy and sell opium in any of the open ports of China. [Page 226] This absolute prohibition, which extends to Teasels owned by the citizens or subjects of either power, to foreign vessels employed by them, or to vessels owned by the citizens or subjects of either power and employed by other persons for the transportation of opium, shall be enforced, by appropriate legislation on the part of China and the United States: and. the benefits of the favored-nation clause in existing treaties shall not be claimed by the citizens or subjects of either power as against the provisions of this article.
The object of this article was to bind the contracting parties to adopt appropriate legislation to prevent their respective citizens or subjects from engaging in the opium trade, and there is nothing to show that any change was intended to be made in the conventional arrangements previously existing in respect either to the punishment of offenses or the administration of the customs.
The act of February 23 is to be construed upon the same principle. In so far as it creates a new penal offense, the jurisdiction to try and punish citizens of the United States therefor rests exclusively with the duly constituted authorities of this Government, in this country or in China as the case may be. On the other hand, the act can not be supposed to have been intended to question or interfere with the right of China to administer her customs regulations in the manner heretofore agreed upon and followed, under and in conformity with the treaties.
The distinction between mere confiscation cases and penal charges against individuals is fully recognized in the 6th rule of 1868, which may be found at page 527 of Part I, Diplomatic Correspondence, 1868, and which provides that “when the act of which a merchant at any port is accused is not one involving the confiscation of ship or cargo, but is one which by treaty or regulations is punishable by fine, the commissioner will report the case to the superintendent, and at the same time cause a plaint to be entered in the consular court.” The consul is then to fix a day for trial, at which the commissioner is to appear, either personally or by deputy, and conduct the case for the prosecution. “When the treaty or regulations affix a specific fine for the offense, the consul” (the rule further provides) “shall, on conviction, give judgment for that amount, the power of mitigating the sentence resting with the superintendent and commissioner. If the defendant is acquitted and the commissioner does not demur to the decision, the ships or goods, if any be under seizure, shall at once be released, and the circumstances of the case be communicated to the superintendent.”
So far as the act of February 23 relates to the forfeiture of opium, it may be regarded as contemplating a course of procedure not inconsistent with that provided for in the above rule. The right of the Chinese Government to seize and confiscate contraband goods remains unquestioned and unimpaired. When, however, a citizen of the United States is arrested for importing or dealing in opium contrary to the law, he is to be tried for the offense in the proper consular court, and, if convicted, the confiscation of the opium, if any, found in his possession, and illegally imported or dealt in, to the use of the Emperor of China, would be an incident of his sentence; and the confiscated property would accordingly be delivered to the Chinese authorities. But if the defendant should be acquitted, this would not necessarily imply a release of the opium, which might be subject to confiscation, notwithstanding that the person charged with importing, or transporting, or buying or selling it may have been found guiltless of that charge; and in such case, the goods would be dealt with in accordance with the rules in force and heretofore observed by the two Governments in respect to forfeiture of goods for violation of the Chinese customs laws.
[Page 227]I approve, therefore, your proposed instruction to the consuls to deny the right of the Chinese Government to try or punish a citizen of the United States for an infraction of the opium act, and in confiscation cases to be guided by the rules above mentioned. For the cardinal object sought to be secured by the United States is the continued maintenance of their exclusive jurisdiction over the personal liberty and safety of American citizens in China, leaving it to the Government of that country to deal as heretofore with questions of confiscation of property introduced into the country in violation of the customs laws. Under the instructions above referred to, it is believed that the contentions of the two Governments are equally and respectively upheld.
I am, etc.,