withholds the ship's papers. This is political action on both sides. And it is preventive action, and, therefore, better than remedial. The government of the United States engages to the government of China that, until the duties be adjusted, no ship shall receive her papers; and the consul sees to this on the part, and as the officer of the United States.

132. It is not maintained that the treaty might not have stipulated a purely judicial remedy in these cases, but only that it has not done this. It has provided other remedies, such as the high contracting parties at the time saw fit to agree to by sovereign convention. If it be desirable on either side to change the provision of the treaty in that respect, and to open the consular courts to the Chinese government for the collection of duties, as, to that, and all other governments, courts within the United States are open, an opportunity may hereafter be afforded when the treaty becomes subject to revision and amendment. But whether any such change be expedient or not, is a diplomatic question, for the determination of the President.

133. The act of Congress, which is here commented Importance of on, is a most important and valuable one. It made the act. provision, however, for a description of cases new, in form at least, to the legislation of the United States, and subject, of course, to such amendment as time. and experience might show to be desirable. Instructive suggestions on this point have been presented to the Department by the commissioner of the United States in China.1

1 Mr. Marshall to Mr. Marcy, December 8, 1853, Ex. Doc. No. 133, B, 33d Congress, 1st sess. p. 331; many of these suggestions have been embodied in the act of June 22, 1860. Statutes at Large, vol. xii. pp. 72, 79.

CHAPTER IV.

Treaty stipulations.

Act of August 11, 1848.

DUTIES OF UNITED STATES CONSULAR OFFICERS IN CHINA.

134. UNDER the treaties of the United States with China, American citizens charged with the commission of criminal offences in China are withdrawn from the jurisdiction of that country, and are subject to be tried and punished only by the consul, or other public functionary of the United States thereto authorized, according to the laws of the United States. In like manner, all litigated questions arising between American citizens in China, involving the rights of persons or of property, are subject to the jurisdiction and regulation of the authorities of their own government; and controversies occurring in that country between American citizens and the subjects of other governments are to be regulated by existing treaties without interference on the part of China.1

135. These are very important concessions to American citizens, and, taken in connection with the acts of August 11, 1848,2 and of June 22, 1860, to carry into effect the provisions of the existing treaty with China and the Ottoman Porte, by vesting judicial powers in the commissioner and consuls in China, they impose weighty duties and responsibilities.

1 Statutes at Large, vol. viii. p. 597.

2 Ibid. vol. ix. p. 276; ibid. vol. xii. pp. 72-79. See also chapter iii.,

supra.

sions.

136. By the provisions of these acts, the laws of Statute provithe United States are extended over the citizens of the United States in China; and wherein they are found deficient, recourse is to be had to the common law; and if neither the common law nor statutes of the United States furnish suitable remedies, the minister is authorized by decrees and regulations, which have the force of law, to supply the deficiencies: such regulations and decrees are required to be transmitted to the Secretary of State to be laid before Congress. The decision of the consular officer, who, in cases of intricacy is to be aided in his judgment by one or more citizens of the United States, is subject, in civil cases beyond a certain amount, to an appeal to the minister. The only capital cases are murder, and insurrection or rebellion against the Chinese government; and in all other criminal cases the punishment is fine and imprisonment, with an appeal to the minister; and no person can be convicted of a crime punishable with death, unless the consular officer and his associates all concur in opinion, and the minister approves of the conviction. The minister and the consuls may call on the Chinese authorities to support them in the exercise of the powers confided to them.

137. It is provided by the fifth and sixth sections of the act first above mentioned, that, in order to organize and carry into effect the system of jurisprudence demanded by said treaty, the commissioner, with the advice of the several consuls for the ports named in said treaty, or so many of them as can be conveniently assembled, shall prescribe the forms of all processes which shall be issued by any of said

1 Statutes at Large, vol. xii. p. 75.

decrees, etc.

consuls; the mode of executing and the time of returning the same; the manner in which trials shall be conducted, and how the records thereof shall be kept; the form of oaths for Christian witnesses, and the mode of examining all other witnesses; the costs which shall be allowed to the prevailing party, and the fees which shall be paid for judicial services to defray necessary expenses; the manner in which all officers and agents to execute process, and to carry the act into effect, shall be appointed and compensated; the form of bail bonds, and the security which shall be required of the party who appeals from the decision of a consul; and, generally, without further enumeration, to make all such decrees and regula tions from time to time, under the provisions of the act, as the exigency may demand: and all such regulations, decrees, and orders, shall be plainly drawn up in writing, and submitted, as above provided, for the advice of the consuls or as many of them as can be consulted without prejudicial delay or inconvenience, who shall each signify his assent or dissent in writing, with his name subscribed thereto; and after taking such advice, and considering the same, the minister may, nevertheless, by causing the decree, order, or regulation to be published with his signature thereto, and the opinions of his advisers inscribed thereon, make it become binding and obligatory until annulled or modified by Congress, and it shall take effect from the publication or any subsequent day thereto named in the act.

Publication of 138. All such regulations, orders, and decrees shall, as speedily as may be after publication, be transmitted by the commissioner, with the opinions of his advisers, as drawn up by them severally, to the

Secretary of State, to be laid before Congress for

revision.

139. The high powers conferred by these and other Cautionary inprovisions of the acts referred to, are to be exercised, junctions. after careful deliberation, with the utmost discretion; a thorough study of the instructions, in the preceding chapter, on the "judicial authority of the commis

sioner or minister and of consular officers of the United States in China and Turkey," is specially enjoined upon all officers exercising such functions in those countries.

140. It is of the utmost importance to the inter- Observance of ests of the United States in China, that the stipula- the treaty. tions of the treaties should be carefully regarded, and all violations thereof, either by our own citizens or by the Chinese, repressed or prevented; and in all controversies between them, growing out of commercial or social intercourse, justice should be promptly and impartially administered.

treaties.

141. A rigid observance of the faith of treaties Sanctity of is appreciated by all mankind, whether civilized or savage, and consuls cannot be too vigilant, both by their authority and influence, in their efforts to impress upon our countrymen in that distant region the necessity of regulating their conduct toward the natives by those great principles which bind nations together in bonds of mutual peace and harmony. A trifling individual advantage, unfairly obtained in our intercourse with so jealous and suspicious a people as the Chinese, may do essential injury, for years to come, to the character of our country, and its great commercial interests.1

142. In the present agitated state of China, the

1 Instructions to Commissioner Everett, MS., April 15, 1845.