duties, and the means of securing their payment; and the provision on these points consists of political engagement. The consul of the United States is to adjust all disputes of appraisement with the Chinese superintendent of customs. (Art. xi.) That is political, not judicial, action. So, without payment of duties, the superintendent refuses to deliver a clearance, and the consul withholds the ship's papers. (Art. XXIII.) That 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.

I do not mean to say that the treaty might not have stipulated a purely judicial remedy in these cases. I merely say that, in my opinion, 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, and to that and all other governments, as courts within the United States are, an opportunity will be afforded during the next year, when, by the terms of the treaty, it becomes subject to revision and amendment. (Art. XXXIV.) But whether any such change be expedient or not, is a diplomatic question for the determination of the President.

The act of Congress, herein commented on, is a most important and valuable one. It made 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. I beg leave to call your attention to the instructive suggestions on this point, which occur in one of Mr. Marshall's dispatches. (Mr. Marshall to Mr. Marcy, December 8, 1853. (B), Ex. Doc., ubi supra, p. 331.)

Permit me to observe, in conclusion, that the transaction referred to in your note, in respect to duties claimed of citizens at Shanghai, was not judicial in its nature, either in form or in substance. It was a decision by the commissioner. There could be no judicial decision by the commissioner, except on appeal from the consular court at Shanghai. In that court, to constitute the ground-work of action by the commissioner, there must have been a trial and decision by the consul, with dissenting opinions of his assessors, certified in due course to the commissioner. None of these things appear. On the contrary, it is clear that the commissioner decided the question in his political or individual character as arbitrator between the Chinese government and the particular citizens of the United States, and the decision has validity as an arbitral award of his, not as a judicial decision of the consular court of Shanghai. (Mr. McLane to Mr. Marcy, Nov. 25th, 1854; and Exhibits, especially, Exh. F., MS. State Dept.)

I have the honor to be, very respectfully,

Hon. W. L. MARCY,

Secretary of State.

C. CUSHING.

Regulations

FOR THE CONSULAR COURTS

OF THE UNITED STATES OF AMERICA IN CHINA.

By authority of Congress given for the fulfillment of existing treaty stipulations between the United States of America and China, the following Regulations and Forms for the use and government of the United States Consular Courts in China, are ordered and established, in conformity to an Act of Congress hereunto prefixed, approved August 11th, 1848, entitled "An Act to carry into effect certain provisions in the treaties between the United States and China and the Ottoman Porte, giving certain judicial powers to Ministers and Consuls of the United States in those countries."

The treaty between the United States and China is to be the paramount law to the Consul, in the exercise of his judicial functions. The law of the 11th of August abovementioned, and the laws of Congress generally, so far as they are applicable, are to be strictly observed, and executed with as much promptness and impartiality as practicable.

Before entering upon the discharge of his judicial duties, the Consul will take and subscribe the following oath before some person competent to administer the same.

I, (A. B.) do solemnly swear (or affirm) that I will administer justice without respect to persons, and will in all things faithfully and impartially discharge all the duties incumbent upon me, as judge of a Consular Court in China, to the best of my ability; according to the constitution and laws of the United States. So help me God.

A copy of this affidavit is to be spread upon the records of the Consular Court, with the date, and the name of the person administering it.

By the 10th, 11th, and 15th sections of the Act before referred to, it is provided, that Consuls shall summon to sit with them in the trial of certain specified causes, a citizen or citizens of the United States, not to exceed four in number, "of good repute and competent to the duty," who shall give his, or their advice and judgment, to the Consul in the case under consideration.

By the 31st section of an Act of Congress, approved February 13th, 1801, entitled "An Act to provide for the more convenient organization of the Courts of the United States;" the Consul, as judge of a Consular Court, is authorized and empowered to administer all necessary oaths and affirmations.

The following is the form of the oath to be administered by the Consul to such citizens of the United States, as he may summon to sit with him in any trial:—

You (and each of you) do solemnly swear that you will faithfully hear, and duly consider the testimony to be submitted in this case, wherein the United States is plaintiff, and (M. N.) is defendant, [in civil suits, wherein (O. P.) is plaintiff, and (R. S.) is defendant,] and a fair and impartial opinion give to this Court, in the premises, to the best of your ability. So help you God.

In cases where citizens of the United States sitting upon any trial with the Consul shall concur in his judgment, they shall sign the docket with him; and if they, or either of them, dissent from the Consul's opinions, they shall respectively enter their judgments upon the docket, and sign the same.

The amount allowed for the services of citizens associated with the Consul in trials, will be found in the annexed table of fees.

CLERKS.

Each Consul may appoint a clerk, to perform such services as shall properly appertain to the duties of a clerk to a Consular Court, who, before entering upon his said duties, shall take the following oath, which shall be administered to him by the Consul.

You do solemnly swear (or affirm) that you will faithfully record all the proceedings of the Consular Court of the United States at in China, and duly and promptly perform all the duties incident to that station during your continuance in office, to the best of your ability. So help you God.

The clerk will be entitled to receive for his services, fees at the rate fixed in the table hereunto annexed.

MARSHALS.

Each Consul shall be entitled to appoint a marshal, who shall perform all the executive duties enjoined upon him by the Consular Court making snch appointment, and who, before entering upon the duties of his office shall give bonds to the United States in such penal sum as the Consul may direct, conditioned for the faithful performance of his duties, and the paying over to the Court without delay, any and all moneys by him collected. He shall also, before entering upon the duties of his office, take the following oath to be administered by the Consul.

You do solemnly swear (or affirm) that you will faithfully discharge all the duties incumbent upon you as marshal for the United States' Consular Court at in China, to the best of your

ability. So help you God.

The fees to which the marshal shall be entitled for his services will be found in the table of fees annexed.

All criminal prosecutions shall be brought in the name of the United States. All bonds and recognizances taken in criminal proceedings shall be made payable to the United States, and if necessary sued for and collected in the name of that authority, judgment having been first rendered thereon according to equity. And all fines and forfeitures collected, shall be duly reported semiannually to the Commissioner for the time being of the United States in China.

By section 7th of the Act abovenamed, the jurisdictions of Consuls in criminal cases are concurrent over citizens of the United States in China. In all cases of

complaint made, or information filed, charging crime upon any person under the Consul's jurisdiction, such complaint or information shall be verified by affidavit, unless he has good reason to believe the same true. For form of Warrant to arrest on a criminal charge, see Appendix, No. 1.

Upon arraigning any person upon a criminal charge, the Consul will state to him the offense with which he stands charged, and before proceeding to his trial, if he desire a reasonable time to procure witnesses to testify in his behalf, such reasonable time may be granted if justice require it; and at the opening of the trial, the Consul will propound the question to the accused whether, to the charge against him, he pleads Guilty or Not Guilty. If the accused pleads Guilty, the Consul may examine any witnesses he produces in mitigation of his punishment, snd may also examine any witnesses in behalf of the United States to show that the offense was one of an aggravated char

acter.

If the accused pleads Not Guilty, the Consul will proceed to examine such evidence as may be before him, allowing to the accused the privilege of cross examining the witnesses for the United States in a respectful manner, after they shall have testified in chief; and after hearing all the testimony, and carefully considering the facts presented, if the Consul should be of opinion that the accused is guilty of the offense charged, or any minor offense that may properly be included in such charge, he will proceed to assess such punishment upon him, as, according to his sense of justice under the laws of the United States, his crimes may merit.

In the trial of all criminal prosecutions, as well as civil suits, if a witness, having been duly subpoenaed, shall fail or refuse, to attend at the time and place required, the Consul may issue his writ of attachment (see form, No. 2), and bring such witness before him to answer for a contempt, and upon a careful hearing of his case, if justice demands it, the Consul may punish such witness by fine or imprisonment.