themselves of it. If oral pleading was desirable to secure a successful issue, as Mr. Grinnell intimates, why did not the agents in China come before the board and plead the case? There' can be little ground for supposing that either the commissioners or minister lacked any evidence or argument to enable them to come to an intelligent decision.

Among the papers now on file relating to the Caldera, there is no copy of a protest or appeal from Messrs. Russell & Co. when they received the award; nor when I paid them the first dividend of $21,950 62 in January, 1860, did I receive a protest, and I have no recollection of hearing of it at any time after that date. Messrs. Alvord & Co., whose claim for losses at the same time was decided on the same principle, made no appeal against their award.

The remarks in Mr. Grinnell's letter relating to the decision of the Caldera's case need some correction, for he seems to have been misinformed. As soon as the board commenced its sittings, November 14, 1859, all the documents relating to it, as well as others, were handed to the commissioners out of the archives, and, as appears by their journal, those concerning this case were discussed on two or three occasions. Their views concerning it finally differed so entirely that they deemed it best to write out their reasons at length and submit them to Mr. Ward as umpire. The two documents number forty-six folio pages. and recite the particulars connected with the piracy and collusion of the officials, and enter at length into the question as to the liability of the Chinese government to make compensation for the injury done by its lawless subjects, the whole drawn up so carefully as to render it almost unnecessary to refer elsewhere for information or argument.

Mr. Ward was at first inclined to take Dr. Bradley's view of the case; but when the despatch of Mr. Marcy, of October 5, 1855, was referred to, and its subsequent confirmation by Mr. Cass, in May, 1859, he remarked with some degree of satisfaction that the decision was thereby taken out of his hands, and, as he observes in his written award, "his duty will be discharged by ascertaining as near as possible what have been the actual losses of our citizens." Mr. Grinnell seems to lay so much stress on the words actual losses in Mr. Marcy's despatch, as to overlook the principle that they should be construed by the context of circumstances, and to be defined and to include and mean only those losses caused by the pirates. Mr. Marcy could hardly have intended that the Emperor of China should be made responsi ble for damages by tempests and leakage, even if intimately connected with these by pirates in time and place. But Mr. G. almost assumes that the commissioners or Mr. Ward had no option left as to their decision, but must pay the whole claim of $89,727 09, because it was all an actual loss. This idea he derives from the postulate, on the one hand, that the Chinese government had accepted the schedule of claims presented to them by Mr. Reed, and had paid a sum of money to liquidate them, which were thereby supposed to have been declared valid; and, on the other hand, because the Secretary of State acknowledged this one in particular to be a just claim. He then concludes that as these two principal parties had thus acted, there was no real authority left with the board of claims to adjudicate it and no occasion for them to interfere.

But it has been shown that no list was presented to the Chinese by Mr. Reed, nor did he decide on the validity of one of them, and that the commissioners were made by the act of Congress the sole judges of all claims presented to them. Mr. Ward made his decision after reading his instructions, which I know were spoken of to them at the time, for I was cognizant of all the circumstances; and, moreover, the copy of this decision now on file is partly in the handwriting of Mr. Roberts.

What advantage Mr. Ward proposed to himself or any one else by withholding Mr. Marcy's despatch I cannot conceive, for he could not take the case out of the commissioners' hands, and their written statements prove that they decided it on its own merits. Mr. Roberts's favorable award is based on broad grounds of international law, and implied protection and fulfilment of treaty rights by the Chinese government, which obliged them to act more ener getically to remedy the piracies common along their coasts, and the pleading concludes with the admission that the claimants "are entitled to all equity which the facts of the case can possibly give. Their loss has been absolute and without contingency or construction."

He then indicates the basis for an award: "Equity, however, requires that the allowance of the claim should be made with a deduction. The underwriters and others should not be placed in a better position than if no piracy had occurred. The ship suffered heavily in the hurricane, and a large claim on the insurance offices would have been made. The vessel had four feet of water in the hold, and had been much strained; the masts, sails, and rigging had been nearly lost before the pirates came alongside. It is impossible now to say what the exact amount of repairs, salvage or general average would have been, or what portion of the cargo was damaged by the water in the hold or other leakage. After considering all the circumstances and taking testimony, I deem it fit to allow but forty per cent. of the claim on the policy covering the hull, and the same on the policies covering the cargo, with five years' interest at twelve per cent. to the underwriters in the United States.

"The rejection of this claim in 1854 (on grounds which, in my opinion, overlook the distinguishing features of it) has necessitated a careful review. I have endeavored to view the subject as if it was now presented for the first time. I have regarded it merely as a legal question, which requires a judicial solution according to the best of my ability."

This award was accepted in principle and amount by Mr. Ward, but I think that neither of the commissioners would have at any time regarded Mr. Marcy's despatch as superior, or contravening the act of Congress which authorized the board of claims. They would rather have explained it according to the act, that being the highest authority. I do not know when they first learned the purport of the despatch, but the charge brought against Mr. Ward of withholding it seems to be both unfounded and unnecessary.

He assisted them whenever it was requested, but as the Caldera was the only claim on which they differed, that assistance amounted merely to furnishing documents. There was no oversight or error on the part of any one in deciding the claims such as these letters describe, and particularly this one. Mr. Ward regarded himself as appointed by the act merely to approve their finding when it was unanimous, or decide which was just when it differed, not at all authorized to reject or modify it, or make one of his own. I may perhaps be allowed to add, that I know how much he endeavored to act impartially; also, that the commissioners took all possible precautions in forming their decisions. I heard several Americans in China, claimants and non-claimants, and some, too, whose claims had been cut down, express their approval of the carefulness and diligence exhibited in investigating the claims and the fairness of the awards. There was no end to be gained by the examiners in withholding money which seemed to be justly due the claimants, for neither of them would be benefited, and Mr. Ward, especially, could have no object in withholding his instructions. There were several claimants whose cases were rejected entirely, as not coming within the letter of the act, because they were not American citizens, or for other reasons, to whom this rejection was a great hardship. They were all included in the first schedule made out by Mr. Reed, and their losses were as actual as those of the insurers of the Caldera, and perhaps more serious to them. Some of these rejected claims were those of native employés, who stood by their masters in circumstances of great danger, and confided their property to them on the assurance of its safety, only to see it consumed without remedy, while, too, a number of their countrymen in English employ, and sufferers in like manner, have been compensated.

All these claims were (according to Mr. G.) considered alike valid by Mr. Reed; and if the commissioners had allowed them as they were claimed, the pro rata sum which the Caldera's claimants would have been entitled to by this distribution was only $16,655. Moreover, Mr. Marcy's despatch said nothing about interest, but the five years' interest at twelve per cent. paid on the award made the payment altogether nearly two-thirds of the claim.

The point of the case in which Mr. Grinnell's opinion seems to be that the despatch was to be considered absolute in regard to this claim, irrespective of all investigation as to its merits by the commissioners, and that as the Chinese government gave a sum of money to the United States government through Mr. Reed, after accepting the schedule of claims, all of it was to be divided among the claimants, more or less, but in the Caldera's case apparently not pro rata.

I have endeavored to show his errors as to facts, and that the case was fully shown in the evidence and argument before the board, that the claimants had ample time granted them to prepare and present their pleading, and that neither oversight nor injustice was done them in the premises. There is, therefore, not a sufficient ground to be found for reopening the case, nor for paying the additional sum now asked.

I am, sir, your obedient servant,

Hon. ANSON BURLINGAME, &c., &c., &c.

S. WELLS WILLIAMS.

No. 94.]

Mr. Burlingame to Mr. Seward.

LEGATION OF THE UNITED STATES,
Peking, November 9, 1864.

SIR: I have the honor to send two decrees made by me, and approved by the consuls, in pursuance of the act of Congress approved June 22, 1860. The first was rendered necessary by the irregularities of lawless men in connexion with the Chinese rebellion; the second by the act of Congress aforesaid. It will be observed that the second decree is largely taken from forms made by the United States consul general at Constantinople, which have already been submitted by you to Congress. With our minister, the Hon. E. Joy Morris, I wish to bear witness to the ability of Mr. Godard in this respect, and to beg that the credit ascribed to these rules may be transferred to him. I wish also to express my thanks to George F. Seward, esq., consul general at Shanghai,

for many valuable practical suggestions. I am chiefly indebted to him for the fee bill. He came to Peking at my request to consult in relation to these decrees. I have carefully compared these rules with those "framed for the supreme consular court, and other consular courts, in the dominions of the Sublime Ottoman Porte, under the order of her Majesty in council of the 27th day of August, 1860, by the judge of her Majesty's supreme consular court, and approved by one of her Majesty's principal secretaries of state;" and while I find them covering the same ground, I think those of Mr. Godard are less elaborate and more practical. Their adoption, as far as possible, in the very language of Mr. Godard, is a great advantage. They need but to be adopted in Japan to secure a uniform system throughout the east. Whatever other rules may be approved or rejected, I am sure that No. 44, which I inserted, will remain. It is this: "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 17, 1862, relating to the 'coolie trade,' so called, nor any claim which involves the holding any person in slavery." I send also the circular of Mr. Seward, (marked A.) I also enclose the decrees as printed. I have the honor to be, sir, your obedient servant,

Hon. WILLIAM H. SEWARD,

ANSON BURLINGAME.

Secretary of State.

SHANGHAI, November 1, 1864.

I have been directed by his excellency the honorable Anson Burlingame, United States minister plenipotentiary and envoy extraordinary to China, to publish the following decrees of 22d and 23d April last. Under the provisions of the act of Congress they become of binding force and effect from this date. Certified copies of the decrees have gone forward for simultaneous publication at the several ports.

GEO. F. SEWARD, Consul General,

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 cousuls, 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 decree the following rules and regulations, which shall have the force of law in the consular courts of China:

1. Every citizen of the United States residing within the limits of the ports open to foreign trade in the dominions of the Emperor of China is required to be enrolled in the consular register, and shall apply in person at the consulate within thirty days after the publication of this decree. Every American citizen who may arrive within the limits of the port, save and except any one who may be borne on the muster-roll of an American vessel, shall apply within ten days at the consulate to be enrolled. Any American citizen neglecting to be so enrolled will not be entitled to claim the protection or intervention of the authorities, unless he can furnish a valid reason for not so doing.

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.

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 decree the following rules and regulations for the guidance

of the consular courts in China:

I. ORDINARY CIVIL PROCEEDINGS.

1. How commenced.-Civil proceedings between American citizens must commence by written petition verified by 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 demanded 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. Service.-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 be 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. Execution.-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 necessarily 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 his 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. Trustee'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 ceases. Process against property or person of the trustee may 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.