Page images
PDF
EPUB

:

2. In all cases where an applicant to be enrolled cannot furnish a passport or other legal proof of his citizenship, he shall make oath that he is a citizen of the United States; and if the consul deem desirable, be required to bring such further evidence as he sball consider satisfactory.

ANSON BURLINGAME. LEGATION OF THE UNITED STATES,

Peking, April 22, 1864. Assented

GEO. F. SEWARD, Consul General. PEKING, April 22, 1861. Assented to:

OLIVER H. PERRY, U. S. Consul. CANTON July, 12, 1861. Assented to:

J. C. A. WINGATE, U. S. Consul. SWATOW, September 3, 1864. Assented to ;

OLIVER B. BRADFORD, U. S. Vice-consul, AMOY, August 30, 1861. Assented to:

A. L. CLARKE, U. S. Vice-consul. FOO-CHOW-F00, 1864. Assented to:

EDWARD C. LORD, U. S. l'ice-consul. NINGPO, June 20, 1864. Assented to:

WM. BRECK, U. S. Consul. HANKOW, June 11, 1864. Assented to:

H. G. BRIDGES, U. S. Vice-consul. KINKIANG, June 13, 1864. Assented to:

G. H. COLTON SALTER, Acting U. S. Consul. CHINKIANG, June 2, 1864. Assented to:

S. W. POMEROY, JR., U. S. Vice-consul. TIENTSIN, April 27, 1864.

Regulations for the consular courts of the United States of America in China. In pursuance of section 5 of the act of Congress, approved June 22, 1860, entitled "An act to carry into effect certain provisions in the treaties between the United States, China, Japan, Siam, Persia, and other countries, giving certain judicial powers to ministers and consuls, or other functionaries of the United States in those countries, or for other purposes, I, Anson Burlingame, minister plenipotentiary and envoy extraordinary of the United States to the empire of China, do hereby decreo tho following rules and regulations for the guidance of the consular courts in China:

I.-ORDINARY CIVIL PROCEEDINGS.

1. Horo commenced.-Civil proceedings between American citizens must commence by written petition veritied hy oath before the consul.

2. Three classes of action.—Ordinary personal civil actions are of three classes, viz: contract, comprising all cases of contract or debt; wrong, when damages are claimed for a wrong; replevin, when possession of a specified article is claimed.

3. Demand necessary in contract and replevin.-In contract, the petition must aver that payment, or a performance of the conditions of the contract has been deinanded and withheld; and, in replevin, that the articles to be replevied have been demanded.

4. Petitioner must deposit money.The petitioner shall be required to deposit a reasonable sum to defray the probable expenses of court and defendant's costs; subsequent deposits may be required, if found necessary.

5. Notice to defendant.-Upon deposit of the money, the consul shall order notice on the petition, in writing, directing defendant to appear before the court at a given day and hour to file his written answer on oath.

6. Serrice.-Notice must be served on each defendant at least five days before return day, by delivery of an attested copy of the petition and order, and of any accompanying account or paper.

7. Personal service should always be required when practicable.

8. Default .-On proof of due notice, judgment by default shall be procured against any defendant failing to appear and file his answer as required; but the default may le taken off for good cause within one day after, exclusive of Sunday.

9. Damages. But in actions of wrong, and all others where the damages are in their nature unliquidated and indefinite, so that they cannot be calculated with precision from the statement of the petition, the amount of the judgment shall be ascertained by evidence, notwithstanding the default.

10. Answer.--If defendant appears and answers, the consul, having both parties before him, shall, before proceeding further, encourage a settlement by mutual agreement, or by submission of the case to referees agreed on by the parties, a majority of whom shall decide it.

11. Amendments.-Parties should, at the trial, be confined as closely as may be to the averments and denials of the statement and answer, which shall not be altered after filing except by leave granted in open court.

12. American witnesses compelled to attend.-On application of either party and advance of the fees, the counsel shall compel the attendance of any witness within his jurisdiction before himself, referees, or commissioners.

13. Parties are witnesses. Each party is entitled and may be required to testify.

14. Decrees to be obeyed.-Judgment may be given summarily against either party failing to obey any order or decree of the consul.

15. Attachment and arrest. -For sufficient cause, and on sufficient security, the consul, on filing a petition, may grant a process of attachment of any defendant's property to a sufficient amount, or of arrest of any defendant not a married woman, nor in the service of the United States under commission from the President.

16. Dissolution of attachment.--Defendant may at any time have the attachment dissolved by depositing such sum, or giving such security, as the consul may require.

17. Sale of perishable property.—Perishable property, or such as is liable to serious depreciation under attachment, may, on petition of either party, be sold on the consul's order, and its proceeds deposited in the consulate.

18. .Release of debtor.-Any defendant arrested or imprisoned on civil petition shall be released on tender of a sufficient bond, deposit of a sufficient sum, or assignment of sufficient property.

19. Debtor's disclosure.—Any person under civil arrest or imprisonment may have his creditor cited before the consul to hear a disclosure of the prisoner's affairs under oath, and to question thereon; and if the consul shall be satisfied of its truth and thoroughness, and of the honesty of the debtor's conduct towards the creditor, he shall forever discharge him from arrest upon that debt, provided that the prisoner shall offer to transfer and secure to his creditor the property disclosed, or sufficient to pay the debt, at the consul's valuation.

20. Debtor's board.—The creditor must advance to the jailer his fees and payment for his prisoner's board until the ensuing Monday, and afterwards weekly, or the debtor will be discharged from imprisonment and future arrest.

21. Èxecution.—On the second day after judgment (exclusive of Sunday) execution may issue, enforcing the same with interest at 12 per cent. a year, against the property and person of the debtor, returnable in thirty days, and renewable.

22. Seizure and sale of property.-Sufficient property to satisfy the execution and all expenses may be seized and sold at public auction by the officer after due notice.

23. Property attached on petition, and not advertised for sale within ten days after final judgment, shall be returned to the defendant.

24. Final judgment for defendant.-—When final judgment is given in favor of defendant, his person and property are at once freed from imprisonment or attachment, and all security given by him discharged. And the consul may, at his discretion, award him compensation for any damage nocessarily and directly sustained by reason of such attachment, arrest, or imprisonment.

25. Offset.-In actions of contract defendant may offset petitioner's claim by any contract claim, filing his own claim, under oath, with bis answer. Petitioner shall be notified to file his answer seasonably, on oath, and the two claims shall then be tried together, and but one judgment given for the difference, if any be proved in favor of either party, otherwise for defendant's costs.

26. Costs.-Except, as hereinafter provided, the party finally prevailing recovers costs, to be taxed by him and revised by the consul.

27. Trustee process.- In contract the consul may order defendant's property or credits in a third party's hands to be attached on the petition by serving him with due notice as trustee, provided petitioner secures trustee his costs by adequate special deposit.

28. Trustce's costs.-If adjudged trustee, the third party may retain his costs from the amount for which he is adjudged trustee if sufficient; otherwise the balance of trustee's costs must be paid out of petitioner's special deposit, as must the whole of his costs if not adjudged trustee.

29. Demand on trustee upon execution. The amount for which a trustee is charged must be inserted in the execution, and demanded of him by the officer within ten days after judgment, or all claim on him coases. Process against property or person of the trustee muy issue ten days after demand.

30. Debt must be at least ten dollars.- If petitioner recovers judgment for less than ten dollars, or if less than ten dollars of defendant's property or credits is proved in the third party's hands, in either case the third party must be discharged with costs against petitioner.

31. Replevin.-Before granting a writ of replevin the consul shall require petitioner to file a sufficient bond, with two responsible sureties, for double the value of the property to be replevied, one an American citizen, or petitioner may deposit the required amount.

11. —TENDER, ETC. 32. Before & creditor files his petition in contract, his debtor may make an absolute and unconditional offer of the amount he considers due by tendering the money in the sight of the creditor or his legal representative.

33. Deposit.—If not accepted, the debtor shall, at his own risk and paying the charges, deposit the money with the consul, who shall receipt to him and notify the creditor.

34. Demand or withdrawal.-It shall be paid to the creditor at any time, if demanded, unless previously withdrawn by the depositor.

35. Costs.-If the depositor does not withdraw his deposit, and, upon trial, is not adjudged to have owed petitioner at the time of the tender more than its amount, he shall recover all his costs.

36. Offer to be defaulted.-At any stage of a suit in contract or wrong, defendant may file an offer to be defaulted for a specific sum and the costs up to that time; and if petitioner chooses to proceed to trial, ånd does not recover more than the sum offered and interest, he shall pay all defendant's costs arising after the offer, execution issuing for the balance only.

III.- REFERENCE.

37. When parties agree to a reference, they shall immediately file a rule, and the case be marked “referred;" a commission shall then issue to the referees, with a copy of all papers filed in the case.

38. Award and acceptance.—The referees shall report their award to the consul, who shall accept the same and give judgment and issue execution thereon, unless satisfied of fraud, perjury, corruption, or gross error in the proceedings.

39. When transmitted to minister.-In cases involving more than five hundred dollars, if his acceptance is withheld, the consul shall at once transmit the whole case, with a brief statement of his reasons, and the evidence therefor, to the minister, who shall give his judgment on the award, or grant a new trial before the consul.

IV.-APPEAL.

40. Must be within one day.-Appeals must be claimed before three o'clock in the afternoon of the day after judgment, (excluding Sunday ;) but in civil cases, only upon sufficient security.

41. To be perfected within five days. -Within five days after judgment the appellant must set forth his reasons by petition filed with the consul, which shall be transmitted as soon as may be to the minister, with a copy of docket entries and of all papers in the case.

V.--NEW TRIAL. 42. Because of perjury.-On proof of the perjury of any important witness of the prevailing party upon a material point affecting the decision of a suit, the consul who tried it may, within a year after final judgment, graut a new trial on such terms as he may deem just.

43. Generally.-Within one year after final judgment in any suit not involving more than five hundred dollars, the consul who tried it, or his successor, may, upon sufficient security, grant a new trial where justice manifestly requires it; if exceeding five hundred dollars, with the concurrence of the minister.

VI.-HABEAS CORPUS.

44. Slares not to be held.No consul shall recognize the claim of any American citizen arising out of a violation of the provisions of the act of Congress approved February 19, 1862, relating to the "coolie trade," so called, nor any claim which involves the holding any person in slavery.

45. Hubeas corpus.-Upon application of any person in writing and under oath, representing that he or any other person is enslaved, unlawfully imprisoned, or deprived of his liberty by any American citizen within the jurisdiction of a consul, such consul may issue his writ of habeas corpus, directing such citizen to bring said person, if in his custody or under his control, before him, and the question shall be determined summarily, subject to appeal.

VII.--DIVORCE.

46. Libels for divorce must be signed and sworn to before the consul, and on the trial each party may testify.

47. Atiachment. The consul, for good cause, may order the attachment of libeller's proserty to such an amount and on such terms as he may think proper.

27 D c *

48. Husband to advance money.—He may also, at his discretion, order the husband to advance his wife, or pay into court, a reasonable sum to enable her to prosecute or defend the libel, with a reasonable monthly allowance for her support pending the proceedings.

49. Alimony.-Alimony may be awarded or denied the wife on her divorce, at his discretion

50. Custody of the minor children may be decreed to such party as justice and the children's good may require.

51. Release of both.-Divorce releases both parties, and they shall not be re-married to each other.

52. Costs.--Costs are at the discretion of the consul.

VIII.-MARRIAGE. 53. Record and return.- Each consul shall record all marriages solemnized by him or in his official presence.

IX. ---BIRTHS AND DEATHS.

54. The birth and death of every American citizen within the limits of his jurisdiction shall likewise be recorded.

X.-BANKRUPTCY, PARTNERSHIP, PROBATE, ETC. 55. Until promulgation of further regulations, consuls will continue to exercise their former lawful jurisdiction and authority in bankruptcy, partnerships, probate of wills, administration of estates and other matters of equity, admiralty, ecclesiastical and common law, not specially provided for in previous decrees, according to such reasonable rules not repugnant to the Constitution, treaties, and laws of the United States, as they may find necessary or convenient to adopt.

XI.-SEAMEN. 56. In proceedings and prosecutions instituted by or against American seamen, the consnl may, at his discretion, suspend any of these rules in favor of the seamen when, in his opivion, justice, humanity and public policy require it.

XII.-CRIMINAL PROCEEDINGS. 57. How commenced.-Complaints and informations against An rican citizens should always be signed and sworn to before the consul when the complainant or informant is at or near the consul's port.

58. Horo authenticated.--All complaints and informations not so signed and sworn to by a citizen of the United States, and all complaints and informations in capital cases, must be authenticated by the consul's certificate of his knowledge or belief of the substantial truth of enough of the complaint or information to justify the arrest of the party charged.

59. Copy of accusation.—No citizen shall be arraigned for trial until the offence charged is distinctly made known to him by the consul in respondent's own language. In cases of magnitude, and in all cases when demanded, an attested copy (or translation) of the complaint, information, or statement, authenticated by the consul, shall be furnished to him in his own language, as soon as may be after his arrest.

60. Presence of accuser.—The personal presence of the accuser is indispensable throughout the trial.

61. May testify.--He shall be informed of his right to testify and cautioned that if he chooses to offer himself as a witness, he must answer all questions that may be propounded by the consul or his order, like any other witness.

62. American witnesses compelled to attend.-The government and the accused are equally entitled to compulsory process for witnesses within their jurisdiction ; and if the cousul believes the accused to be unable to advance the fees, bis necessary witnesses shall be sun. moned at the expense of the United States.

63. Fine and cost.-When punishment is by fine, costs may be included or remitted at the consul's discretion. An alternative sentence of thirty days' imprisonment shall take effect on non-payment of any part of the fine or costs adjudged in any criminal proceeding.

64. Any prisoner, before conviction, may be admitted to bail by the consul who tries him, except in capital cases..

65. Capital cases. No prisoner charged with a capital offence shall be admitted to bail where the proof is evident, or the presumption of his guilt great.

66. After conviction.—After conviction and appeal the prisoner may be admitted to bail only by the minister.

67. American bail.-Any citizen of the United States offering himself as bail shall sign and swear, before the consul, to a schedule of unincumbered property of a value at least double the amount of the required bail.

68 Foreign bail.--Any other proposed bail or security shall sign and swear before the consul to a similar schedule of unincumbered personal property within the local jurisdiction of the consulate, or he may be required to deposit the amount in money or valuables with the consul.

69. Tuo sureties.-Unless such sufficient citizen becomes bail, or such deposit be made, at least two sureties shall be required.

70. Surrender.-Any American bail may have leave of the consul to surrender his principal on payment of all costs and expenses.

71. Prosecutor may be required to give security.-Any complainant, informant, or prosecutor may be required to give security for all costs of the prosecution, including those of the accused; and every complainant, &c., not a citizen of the United States, shall be so required, unless, in the consul's opinion, justice will be better promoted otherwise; and when such security is refused the prosecution shall abate.

72. Honorable acquittal.-When the innocence of the accused, both in law and intention, is manifest, the consul shall add to the usual judgment of acquittal the word “honorably.

73. Costs.-In such case judgment may be given and execution issued summarily aguinst any informer, complainant, or prosecutor for the whole costs of the trial, including those of the accused, or for any part of either, or both, if the proceeding appears to have been groundless and vexatious, originating in corrupt, malicious, or vindictive motives.

74. Minor offences. —Consuls will ordinarily encourage the settlement of all prosecutions not of a heinous character by the parties aggrieved or concerned.

XIII.-OATHS.

75. Oaths shall be administered in some language that the witness understands.

76. Not Christians.-A witness not a Christian shall be sworn according to his religious belief.

77. Atheist.--An avowed atheist shall not be sworn, but may affirm, under the pains and penalties of perjury; the credibility of his evidence being for the consideration of the consul.

78. Affirmation.--A Christian, conscientiously scrupulous of an oath, may affirm, under the pains and penalties of perjury.

XIV.-DOCKETS, RECORDS, ETC. 79. Ciril docket.—Each consul shall keep a regular docket or calendar of all civil actions and proceedings, entering each case separately, numbering consecutively to the end of his term of office, with the date of filing, the names of the parties in full, their nationality, the nature of the proceeding, the sum or thing claimed, with minutes and dates of all orders, decrees, continuances, appeals, and proceedings, until final judgment.

80. Criminal ---He shall keep another regular docket for all criminal cases, with sufficient similar memoranda.

81. Filing papers.--All origiral papers shall be filed at once and never removed ; no person but an officer of the consulate or minister should be allowed access to them. All papers in a case must be kept together in one enclosure, and numbered as in the docket, with the parties' names, the nature of the proceeding, the year of filing the petition, and of tinal judg. ment conspicuously marked on the enclosure, and each year's cases kept by theinselves in their order.

XV.-LIMITATION OF ACTIONS AND PROSECUTIONS.

82. Criminal.--Heinous offences not capital must be prosecuted within six years; minor offences within one.

83. Ciril.-Civil actions, based on written promise, contract, or instrument, must be commenced within six years after the cause of action accrues; others within two.

84. Absence ; fraudulent concealment.-In prosecutions for heinous offences not capital, and in civil cases involving more than $500, any absevce of respondent or defendant for more than three months at a time from China shall be added to the limitation; and in civil cases involving more than $100, the period during which the cause of action may be fraudulently concealed by defendant shall likewise be added.

XVI.-GENERAL PROVISIONS.

85. Trials public. All trials and proceedings in the United States consular courts in China shall be open and public.

86. Interpreting and translating:--Papers and testimony in a foreign language shall be translated into English by a sworn interpreter appointed by the consuī; in civil cases to be paid by petitioner. Oaths and questions shall be trauslated by the interpreter from the Eng. lish for any witness who does not understand English.

87. Testimony.-Parties may be required to file their petitions, answers, complaints, informations, and all other papers addressed to the court in English; or they may be translated by the interpreter at the consul's discretion. All testimony must be taken in writing in open court by the consul or his order, and signed by the witness, after being read over to him for his approval and correction, and it shall form part of the papers in the case.

88. Adjournment.--The consul may adjourn his court from time to time and place to place within his jurisdiction, always commencing proceediugs and giving judgment at the cousulate.

« PreviousContinue »