No. 193.
Mr. Chang Yen
Hoon to Mr. Bayard.
Sir: I had the honor to receive, on the 4th instant, your note dated the same date, inclosing four copies of an act of Congress, approved by the President February 23, 1887, touching the restriction of the opium [Page 239] traffic, with a request that the same be communicated for the information of my Government.
I have carefully read the act and find that the prohibition of Chinese subjects against opium traffic in the United States and that of American citizens against the same in China, is to be enforced in conformity with the provisions stipulated in the treaty concluded between China and the United States on the 17th day of November, 1880.
Section 3 of this act states that the consular courts of the United States in China shall have jurisdiction to hear, try, and determine all cases in which citizens of the United States may offend against the foregoing provisions of that section, subject to the general regulations provided by law, and punish them upon conviction thereof by a fine or imprisonment; and that every package of opium or package containing opium, either in whole or in part, dealt in contrary to the provisions of that section, shall be forfeited to the United States for the benefit of the Emperor of China, etc.
On this point I had the honor of informing you in my previous note that this section interferes with the customs regulations and the rights of local self-government of China. The customs power of forfeiting is as important as that of levying duties. By the hitherto established regulations of the customs in China, all goods illegally imported by merchants of any nation, on their seizure after discovery, are immediately forfeited to the customs without the interference of the consul of the nation to which the offender belongs.
Rule 3 of a tariff and rules appended to the treaty of 18th of June, 1858, concluded between the United States and China, reads as follows:
Import and export trade is alike prohibited in the following articles: Gunpowder, shot, cannon, fowling pieces, rifles, muskets, pistols, and all other munitions and implements of war, and salt.
Rule 5, section 1, says:
It [opium] will be carried into the interior by Chinese only, and only as Chinese property. The foreign trader will not be allowed to accompany it.
Section 5 says:
Infractions of the conditions, as ahove set forth, uuder which trade in opium, cash, grain, pulse, saltpeter, brimstone, and spelter may he henceforward carried on, will be punishable by confiscation of all the goods concerned.
The confiscation to the Chinese Government of all goods illegally imported has been practiced by the customs authorities ever since this treaty. Now, as American citizens and Chinese subjects are prohibited by the treaty to traffic in opium in the country of the other, the case of any American subject infringing the treaty stipulations concerning opium traffic at any port in China should be treated the same as in other cases of illegal importations. Section 2 of the act provides that proceedings for the declaration and consequences of the forfeiture of opium imported into the United States by a Chinese subject may be instituted in the court of the United States as in other cases of the violation of the laws relating to other illegal importations.
This shows that there is but one principle for eradicating evils and punishments for dishonesty. By Rule 5, above quoted, it has long been the practice that any opium, if carried into the interior of China by any American merchants, should, in whole, be confiscated to the Chinese Government; therefore, the same rule, without exception, should apply in the case relative to the prohibition of American citizens from importing opium into any port of China, for they are both, in substance, alike I am led to believe that the reason why there was no provision made [Page 240] in the supplementary treaty of 1881 for forfeiture was that there was no necessity for making any, as it was covered by provisions clearly made in the treaty of 1858.
Article 14 of the treaty of 1858 reads as follows:
Any citizen of the United States who shall trade in any contraband article of merchandise shall be subject to be dealt with by the Chinese Government, without being entitled to any countenance or protection from that of the United States.
This shows that China, by right of domestic administration, has the power to deal with and forfeit in all cases of infringement against illegal importations, without the necessity of giving in detail the methods of carrying out its administration. China strictly enforces the prohibition of import and export trade in contraband goods, such as mentioned in Rule 3, and the customs authorities have hitherto and invariably dealt with such cases by confiscation and fine, which acts have never been questioned by any nation on the ground of the absence of such provision in the rule referred to. That they have not done so is no doubt due to the fact that the contraband goods in such cases, when seized, are subject to be dealt with by the Chinese Government.
The customs 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 those 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, wherein only forfeitures were made coupled with a fine, there was no necessity for the consular interference.
Imported opium once leaving any treaty port in China, is considered as property owned by Chinese subjects, liable to pay any taxes that may be levied thereupon, so the local authorities have the power to punish by a fine any delinquent who may commit acts of irregularity and attempts at defrauding the Government.
The last two paragraphs of section 3 of the act read as follows:
The consular courts of the United States in China shall have jurisdiction to hear, try, and determine all cases arising under the foregoing provisions of this section, subject to the general regulations provided by law. Every package of opium, or package containing opium either in whole or in part, brought, taken, or transported, trafficked, or dealt in contrary to the provisions of this section shall be forfeited to the United States for the benefit of the Emperor of China; and such forfeiture and declaration and consequences thereof shall be made, had, determined, and executed by the proper authorities of the United States exercising judicial powers within the Empire of China.
By this it appears that the motive of your Government in investing your consuls with special power was to suppress and punish acts committed by citizens of the United States in China against the treaty stipulations; but this in reality interferes in an indirect way with the independent power of the customs authorities in China, for if the United States officials were to have, instead of Chinese, jurisdiction of forfeiture, and to exercise the function of conveying the proceeds thereof to the Chinese Government, would not that be like an assumption on the part of the United States officials to collect on behalf of the Chinese Government customs duties and hand the same to it? This would seem to be inconsistent with the treaty stipulations as well as the laws of nations, and is what I mentioned in my previous note to you relative to my apprehension of an interference with the regulations of the [Page 241] customs and the rights of local self-government of China. There are established precedents showing the customs system of China known to every nation, China will, therefore, only act in conformity therewith, and can not do otherwise, or make any irregular concession. Your Government is faithful and equitable in its international intercourse, and has never done anything to disturb or encroach upon the rights of the Governments of other nations, and I have always endeavored to carefully maintain the friendly relations that have been existing between your Government and China for many years. It behooves me now, after a careful examination of the act, to state for your information the methods of my Government in dealing with imported opium as above mentioned, feeling sure that my failure to do so would cause a controversy in the future which might jeopardize the cordial friendship of the two nations, and that such conduct could not be considered as the sincere and fair way to discharge my duties towards your Government. In the present year, by rules fixed by the foreign office in Peking, both duties and taxes are levied at the same time on imported opium. The power of the customs authorities is therefore greater than before when only duties were collected. I have written the above especially for your information, which I hope you will kindly submit to the consideration of his excellency the President.
I have forwarded the translation of the act in question to the foreign office in Peking.
Accept, etc.,