No. 194.
Mr. Bayard to Mr. Shu Cheon
Pon.
Washington, June 23, 1887.
Sir: I have the honor to acknowledge the receipt of the note from your legation of the 18th March last, and, in reply, to say that the act in question, 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. But in so far as the act creates a new penal offense, the jurisdiction to try and punish citizens of the United States therefor rests, as heretofor, under the treaties, in criminal cases, with the duly-constituted authorities of this Government.
The Government of China has heretofore recognized, even in the administration of the customs regulations, the distinction between mere cases of confiscation of property and those involving penal consequences to individuals. In the sixth of the eight rules adopted in 1868 to govern the investigation of cases of confiscation and fine by the customhouse authorities, it is provided 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 regulation 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.”
It is then stipulated that the consul shall fix a day for trial at which the commissioner may appear, either personally or by deputy and conduct the, case for the prosecution.
[Page 242]“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.”
The act of February 23 is not interpreted as questioning the right of the Chinese Government to seize and confiscate contraband goods, or as intended to confer upon the consuls of the United States any exclusive jurisdiction on that subject. When, however, a citizen of the United States is arrested for importing or dealing in opium contrary to that act, which was passed to carry into effect the agreement entered into by this Government with that of China in Article II of the treaty of October 5, 1880, the person so accused is to be tried for the offense, as in other criminal eases, by the duly-constituted authorities of the United States, and if convicted, the confiscation of the opium, if any, found in his possession and imported or dealt in contrary to the act, 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. In this manner the exclusive conventional jurisdiction of the authorities of the United States in China over the persons of American citizens for offenses there committed is maintained as heretofore, and the right of the customs authorities of China to administer her customs regulations in accordance with the rules heretofore observed remains unimpared.
Accept, etc.,