for all costs of the prosecution including those of the accused and every complainant and so forth not a citizen of the United States should be so required unless in the Consul's opinion justice would be better promoted otherwise, and if such security was refused the prosecution should abate.
In this particular case it was the duty of the United States to prosecute the man accused of this shooting. One Cheng Kam Chuen the brother of the deceased chose to come into that Court as an informant and prosecutor. He came into that Court as represented by Messrs. Mounsey and Brutton represented by Mr. Brutton. He could state of his own knowledge that when he was there in September he him. self told Mr. Brutton he would have to look out for his witnesses' fees and no objection was made to it. The only question was as to whether they would bring Mr. Randall across from Manila or not and he said that under agreement with the coun- sel his depositions could be taken there and expenses saved. Mr. Williams told him subsequent to the time he notified Mr. Brutton as to these witnesses' fees that Mr. Brutton told him if he said he must do it it should be done.
Mr. Williams-Is that a fact Mr. Brutton?
Mr. Goodnow, continuing, said there had been no objection on the part of the prosecutor to this until Friday, or Saturday. He himself spoke to år. Brutton on the matter on Saturday, at noon It had been the practice in the United States Courts in China that where a plaintiff or a complainant was represented by a reputable firm of Attorneys they had not required them to pay up in cash the costs before hand, but there never had been a case in his own knowledge before this where such Attorney had after the trial had begun and after having had due notice long before, that he was expected to do this, had refused to pay. It was the order of the Court that the complainant should pay the costs of the trial, unless the defendant has sufficient to pay his own witnesses' fees, and it was the order of the Court that unless the Counsel for the proscentor paid into that Court or satisfied that Court that the witnesses for the prosecution and other costs were paid, a copy of that order should be sent to the British Consul and that the Viceroy be notified of such failure on the part of the prosecutor and his Counsel to pay these fees and should be asked to force such payment. It was the order of the Court that until the expenses were paid Messrs. Mounsey and Brutton should not act in any United States Courts in China.
21. After the Consul-General had finished I attempted to say a few words and to correct some mis-statements but the Consul-General refused to hear me.
22. Accordingly I saw Mr. R. W. Mansfield H. B. M. Consul at Canton with reference to the order made in the U. S. Consular Court and he informed ine that H. R. Williams the Vice-Consul had given him an undertaking in writing on behalf of the U. S. Government to pay the reasonable expenses of witnesses subpenaed through H. B. M. Consul at Canton to give evidence in the case; issued to witnesses by the U. S. Consul were intituled, "In the cause of the United All the subpoenas States against Richard Toulmin" and the Consul-General at Hongkong wrote a letter to B. C. Randall one of the witnesses for the prosecution informing him that his reasonable expenses would be paid by the U. S. Government.
23. The indictment or information on which the accused was tried was also intituled "In the cause of the United States against Richard Toulmin." This infor- mation was drawn up by the U. S. Consul or on his behalf and was not the infor- mation filed by Cheng Kam Chuen on the 14th day of July, 1898, which was drawu up by me.
24. Shortly after my return from Canton on the 13th day of December, my firm received an order signed by H. R. Williams U. S. Vice Consul in charge Acting Judicially and John Goodnow Consul General U. S. A. dated the 12th, December 1898 in the words and figures following, that is to say :-
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United States Consular Court
Canton China
S. S.
It is the order of the Court that under rule 71 of the Regulations of the Consular Courts for the United States of America in China, it having been shown to the satisfaction of this Court that the Defendant is without means, the costs of this trial shall be paid by the Prosecutor, who intervened in this case on his own motion. It was both by the Consul and the Consul General formally stated to Mr. Brutton of Mounsey and Brutton that their client Cheng Kam Chuen the Prosecutor would be liable for said costs. Under the ordinary practice of Consular Courts in China the attorneys although of another nationality, considering themselves in honor bound as de facto Officers of the Court, have obeyed the orders of the Courts and have provided that costs against their clients should be paid. Therefore as Mounsey and Brutton in open Court after this trial has proceeded more than two days then for the first time refused to provide that such costs be paid, the Court of the U. S. Consulate at Canton has ordered and the U. S, Consul General has also ordered that a copy of this order be sent to the British Consul at Canton and H. E. Tan, Viceroy of Kwang Tung and Kwang Si, with a request that their respective nationals be ordered to comply with the order of this Court and that Mounsey and Brutton shall not practice before any American Consular Court in China until this order be complied with.
True copy dated 12th Dec. /98.
(sd.)
ANTO. DE SILVA,
Clerk of the Court,
(Sd.)
(SJ.)
H. R. WILLIAMS, JR. U. S. Vice Consul in charge Acting Judicially,
JOHN GOODNOW,
Consul General U. S. A.
"It was
25. In connection with this order it will be noticed that the following words are used "the costs of this trial shall be paid by the Prosecutor who intervened in this case on his own motion." The statement that the Prosecutor intervened on his own motion is incorrect. For from paragraph 2 in this statement it will be seen in what way and the reason why Cheng Kam Chuen filed the information against the accused, namely that there was a probability of the accused being released if no charge in writing was preferred against him, and in order to get justice done it was incumbent that a charge in writing should be filed in the United States Consulate. In the order the following words also occur. both by the Consul and the Consul General formally stated to Mr. Brutton that their client Cheng Kam Chuen the Prosocutor would be liable for said costs i. e. the costs of the trial. This is a mis-statement. No costs were mentioned at any time either before or during the hearing of the case, only the expenses for the attendance of the witnesses for the prosecution, not the costs of the trial. From paragraph 10 hereof it will be noticed that I told the Consul General that if the Chinese were expected to pay the expenses of the witnesses the case would be These words also surrendered into the hands of the United States Government. occur “Then for the first time refused to provide that such costs be paid" This is also incorrect as will be seen from paragraph 10 hereof and the last paragraph hereinbefore written.
26. It is from the order in paragraph 24 set out that I and my firm desire to be released and it is submited that no power is given by the Regulations for the Consular Courts of the United States of America in China to make such order and therefore the order set out above is illegal and should be over-ruled.
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