No. 195.
Mr. Shu Cheon Pon to Mr. Bayard .

Sir: I have the honor to acknowledge the receipt of your note, dated the 23d ultimo; stating that the act of February, 1887, as interpreted by the Department, is not understood to interfere with the administration by the authorities of China of her customs regulations in accordance with the rules heretofore agreed upon and followed, and quoting Rule 6 of the eight rules adopted in 1868 for joint investigation in cases of confiscation and fine by the custom-house authorities.

By the rules of 1868 I find that a joint investigation by the superintendent of customs and consuls is only necessary in a case wherein there exists a difficulty to arrive at a prompt decision on account of a doubt, and wherein the customs authorities claim that the confiscation of ship or cargo under seizure as justifiable, but which is disputed by the party to whom the property belongs.

In Rule 6, as quoted, there are found the respective terms “on conviction” and “if the defendant is acquitted.” By these it is apparent that no decision of a case can be reached until an investigation is taken, thereby causing a great deal of discussion.

As there is not the least doubt that contraband goods, imported or dealt in contrary to the treaty stipulations, should be wholly confiscated, the customs authorities have, therefore, the right of confiscating the same themselves. The consul can not interfere in the matter by appealing [Page 243] to the rules of joint investigation of 1868. Since the importation of and dealing in opium at the open ports of China by an American citizen is expressly prohibited by the treaty, the customs authorities have accordingly the exclusive right to seize and confiscate any opium thus imported or dealt in, no matter how much or how little there may be.

They need not wait for the decision of the consul as to his delivery of the same to them, which act is not in accordance with the practice and rules heretofore followed.

In my opinion, Mr. Secretary, the jurisdiction to try and punish American citizens in China rests with the consul and the right to confiscate contraband goods under seizure rests with the customs authorities. If there be any case wherein some doubt and difficulty exist and which can not be decided without an investigation, then the rules of joint investigation should be appealed to, thus the respective rights of both countries may be asserted with proper discrimination and without the one interfering with the other.

Accept, etc.,

Shu Cheon Pon.