Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1890

Mr. Tsui to Mr. Blaine.

Chinese Legation,
Washington, March 26, 1890. (Received March 28.)

Sir: Under date of the 26th of January, 1889, my predecessor submitted some considerations to your Department upon the act of your Congress of October 1, 1888. Mr. Secretary Bayard, on the 2d of February, 1889, referred to that note as containing “highly important matters” and promised to “make more extended reply” thereto. But nearly 6 months having passed without a reply being received, and in view of the advent meanwhile of anew Administration of your nation, my Government deeming it important that the subject be freshly brought to your attention, my predecessor, under date of July 8, 1889, submitted to you further considerations, which, it was hoped, would bring about some change in the legislative and executive attitude of the American Government. The receipt of that note was courteously acknowledged on the 15th of the same month, and the assurance given that the subject would “receive the very careful and prompt attention of the Department.”

I have waited patiently upon the strength of this assurance for the past 8 months, and should not now break silence on the subject if I could do so with a proper regard for the instructions of my Government and for the condition of my unfortunate countrymen, whose rights and interests are so sorely vexed by this legislation of your Congress and by the resulting action of the executive department. When it is borne in mind that a year and a half has passed since your Congress and President united in a measure which (as the Supreme Court decided) compelled the authorities to disregard and trample upon solemn treaty stipulations, and during which time not only the measure itself has been most rigidly enforced, but to its severities have been added by executive action new restrictions upon Chinese subjects in the United States, it certainly will not surprise you if I communicate to you the earnest and anxious desire of the Imperial Government that I should obtain from you some expression of the views and intentions of your Government on this important subject.

In order that I may enlist your sympathy with the desire of my Government, and that you may be persuaded of the reasonableness of it, I beg that you will indulge me while I state some of the effects of the act of October 1, 1888, and of the resulting policy of the Treasury Department. Although the treaty of 1880 stipulated that Chinese laborers then in the United States should “be allowed to go and come of their own free will and accord,” and should have the same treatment as other foreigners, they conformed to the exceptional provision of a law which required them, on departure for temporary visits to their native land, to take a certificate from the customs authorities at the port of departure, descriptive of their person, and which contained a statement that the person to whom it was issued was “entitled * * * to return and reenter the United States.” The official statistics show that at the time the act of 1888 went into effect there were outstanding at the single port of San Francisco over twenty thousand of these certificates. At that very time there were about six hundred of the holders of these certificates who were on the high seas en route for San Francisco, and who had no notice or means of knowledge of the passage of the act till they reached that port; and yet the supreme tribunal of your country has decided that it was the duty of the authorities of the port of San Francisco, under the act, to dishonor their own certificates, and turn these poor laborers back from its shores out upon the broad ocean, and force them to seek a more hospitable haven elsewhere.

The tens of thousands of Chinese subjects who temporarily left the shores of the United States, armed with the signed and sealed assurance of this Government of their right to return, and relying upon its good faith, in almost every case left behind them in this country property, business, families, relatives, obligations, or contracts, which have been imperiled, broken up, or in some shape injuriously affected by their unexpected and unwarranted exclusion. The vast number of Chinese laborers who were in the United States at the time of the passage of the act of 1888 had come here under the guaranty of solemn treaty stipulations, which allowed them “to go and come of their own free will and accord” and on the solemn assurance that i:hey would be maintained in this privilege against “legislative enactment;” and under this act, if they should visit their native land, drawn thither by the ties of family, patriotism, or business, they must sacrifice and abandon all their interests and property in the United States; they must choose between a complete breaking up of long-established business relations here, and a perpetual banishment from their native land by a continuous residence in this country.

The foregoing shows that there are three classes of Chinese laborers whose treaty rights have been grievously impaired in different ways by the operation of the act of 1888, to wit, those who were on the ocean, those who were abroad holding return certificates, and those who were in the United States at the time the act was passed. But there are two other classes of Chinese subjects whose treaty rights have been abrogated or impaired since that act was passed, not by the direct application of its provisions, but, I am sorry to say, by new restrictions and regulations of the executive department of your Government. In my notes of November 5 and December 16 last I have shown you how the transit of Chinese laborers through the United States has been obstructed and in great measure cut off since October, 1888, notwithstanding the law officers of your Government acknowledge that there has been no legislation of your Congress, either in 1882, in 1884, or in 1888, which in the slightest degree affects the treaty rights on this subject. It has been serious enough when the Imperial Government beheld the manifest intention of your Congress in the years named to obstruct and finally abrogate the treaties existing between the two nations 5 but it regards with real alarm the apparent disposition of the Treasury Department to go even beyond the enactments of Congress in the same direction. In addition to the stoppage or obstruction of transit, the Chinese merchants who have been established in the United States, as well as those in China or in foreign nations who have trade relations with this country, have encountered much harsher treatment and increasing embarrassment during the past year and a half from the customs authorities; and it has become much more difficult than formerly for them to carry on commerce in and with the United States.

Such, Mr. Secretary, are some of the losses, injuries, and hardships which have been and are being suffered by my countrymen as the direct and indirect effects of the passage of the act of 1888, and which, I trust, will more fully explain to you the anxious desire of my Government to receive from you some expression of the views and intentions of your Government on the important subjects communicated in the cited notes of this legation. But I must ask your indulgence while I attempt, as briefly as I can, to show you the reverse side of this question, to wit, how the American Government expects and demands the treaties to be observed in China, and how, in fact, the Imperial Government does observe and enforce them. And for this purpose I confine myself to the past 2 years, within which the most objectionable legislation and restrictions have been adopted in the United States.

The two classes of American interests represented in China are, first, the missionaries and their propaganda, and, second, the merchants and their commerce. I need not cite facts to show one so intelligent in the world’s affairs as you that the most fruitful source of trouble and embarrassment for China in its relations with the treaty powers has been the presence in my country of the missionaries. In substantiation of this, your own worthy minister quotes to your predecessor the language of Prince Kung in these words:

The missionary question affects the whole question of peaceful relations with foreign powers * * * the whole question of their trade. (Foreign Relations, 1887, p. 197.)

But, notwithstanding the prejudices of our common people and the embarrassments which constantly surround the authorities, the whole power of the Government has at all times been exercised to protect the lives and property of this disturbing class of foreigners. So far as I can remember, not a single American missionary has lost his life, none of their treaty guaranties have been violated with either the consent or connivance of the Government, and every dollar of loss which they have sustained from violence brought about through either their own imprudence or the sudden outbursts of the populace has been reimbursed to them by the Government. And this has not only been true as to the past 2 years, but through every year since the first treaty between the two nations was signed in 1844. I need not point out how marked has been the contrast in this respect of the treatment of Chinese residents in the United States. And it is to be noted that in the defense of the claims of the missionaries the American minister and his Government have not been content with requiring a strict observance of treaty stipulations, but have gone beyond them and demanded protection and indemnity in cases where they admit that the terms of the treaties do not justify such demands.

It has been continuously admitted that “the true construction of the treaties” does not secure to the missionaries the right of permanent residence or ownership of real estate in the interior of China; and yet, because the local authorities have tolerated their residences in isolated cases, it is insisted that the American missionary thereby “acquires vested rights, which his own Government and the Imperial Government also are bound to secure to him if attacked.” (Foreign Relations, 1888, vol. i, pp. 220, 271.) And we find that the American minister at Peking has in the past 2 years been very zealous in demanding the protection of missionaries, reimbursement of their losses, and reinstatement on their lands in cases where it is admitted that the terms of the treaties do not sustain such demands, his position being that though “the United States could not, as a matter of treaty stipulation, insist” upon such treatment being awarded to American missionaries, yet where residence and ownership of land are “accorded to citizens or subjects of other foreign powers under the favored-nation clause, exact equality should be insisted upon.” And the minister might well take such an advanced position when it appears that he has been instructed by his chief to obtain for his countrymen “no less measure of privilege than is granted by treaty, conferred by favor, or procured through use and custom for the missionaries of any other nation or creed.”

And this broad doctrine is advocated and insisted upon by the Secretary of State at a time when the Congress, the Executive, and the Supreme Court of his country are setting it at defiance in cases where its application is invoked in behalf of Chinese residents in the United States. Your immediate predecessor even uses the freedom extended by China to foreigners in its treaties as an argument for the enlarged demands of the minister in these words:

When China was opened by treaties with foreign powers to the entrance and residence of foreigners, it was inevitable that the restricted limits of residence and business prescribed in these treaties should be extended. (Foreign Relations, 1888, pp. 266, 272, 301, 325.)

It would seem natural to presume that the “inevitable” effect which the Secretary here notes was the logical and customary experience among western nations concerning treaty concessions and privileges. But, unfortunately, China is compelled to look elsewhere than to the United States for a realization of the experience so forcibly and unequivocally assumed by this eminent authority. In 1868 the United States, for the first time by treaty guaranties, opened its territory to the entrance and residence of Chinese upon the same terms as were extended to the subjects of the most favored nation. But the “inevitable” result of such an act, as announced by the American Secretary of State, was not realized in this country. So far from the privileges of “residence and business prescribed in the treaty” being “extended,” they have been steadily and persistently restricted; first, by peaceful treaty negotiations in 1880; then by hostile legislation in 1882 and 1884; and, finally, by positive abrogation by Congress in 1888, approved by the Executive, and sanctioned by the Supreme Court.

But, notwithstanding this contrary treatment of the Chinese in the United States, the Imperial Government has steadily and uniformly recognized and enforced, not only its plain treaty stipulations respecting this disturbing element introduced into its territory, but, in its desire to deal justly and pursue friendly relations with America, it has gone beyond the treaties and yielded to the foregoing extreme and illogical demands of your Government. And I am gratified to know that this spirit of conciliation has been recognized by the Honorable Secretary of State, in the following words:

Experience shows that by a moderate amount of conciliation and good will the rights of foreigners will be gradually extended and interpreted by the Chinese in a more liberal spirit and beyond the limits of the treaty ports. (Foreign Relations, 1888, p. 310.)

Let us now turn for a few moments to the position of the American Government in respect to the rights of its merchants and commerce in China and the treatment they receive from the authorities there. It is natural that the American Government should take a deep interest in this trade because of its extent and importance. Mr. Denby, in a dispatch dated July 14, 1888, reports on the foreign trade of China that the exports and the imports from the United States stand second in volume, or next to those of Great Britain. Yet in the past 2 years or more I am not aware of any specific complaint of injustice or hardship suffered by a single American merchant in China, or any allegation of different treatment extended to them than to all other foreign merchants. The only question of trade which has arisen between the two Governments has been on the importation and regulation of trade in kerosene. Owing to its explosive character, many lives have been lost and much property destroyed in China, and certain of the provincial authorities have urged upon the Imperial Government the restriction of its importation by governmental control of its sale and by internal taxation; and, in furtherance of these views, one of the viceroys, in memorializing the Throne, referred to the position assumed by the United States in the exclusion of Chinese immigration, and said:

If they can prohibit our going there because Chinese labor is injurious to their interests, we have an equal right to prohibit the importation of kerosene when it is injurious to us.

But Minister Denby, usually so intelligent respecting Chinese matters, is oblivious to the force of this argument and transmits it to Washington, with the criticism that it is a “stupid memorial.” He follows it up with an earnest protest against the right of China to levy an internal discriminating tax upon kerosene after it has left the foreign merchant and passed into the interior, notwithstanding he admits that it is and long has been the law and practice of China that “once foreign goods have entered China and become the property of Chinese merchants, their taxation is a matter wholly and solely within the direction of China,” and notwithstanding he shows that the Supreme Court of the United States has recognized substantially the same power of taxation as belonging to the States of your Union. He further claims that such taxation is a violation of the spirit and intent of the treaty, though he does not contend that any specific clause is infringed thereby. He maintains that “the interpretation (of treaties) shall be favorable rather than odious; * * * that the reason of the treaty shall prevail.” And in these positions he is supported by the Secretary of State. (Foreign Relations, 1887, pp. 192, 225; 1888, pp. 267, 286.)

If this policy respecting treaties which was urged upon China had been followed in the United States, how different would be the international relations of the two countries to-day. China has welcomed American commerce and placed its merchants upon an equal footing in its ports with those of the most friendly and favored nation, and the only question of difference which has arisen is respecting a matter of internal taxation, in which China follows the same law and practice as is allowed in the United States. Contrast this with the treatment of Chinese merchants in this country. Although by express treaty stipulation they are in the United States to be “allowed to go and come of their own free will and accord,” and are guarantied the treatment “accorded to the citizens or subjects of the most favored nation,” for the past 8 years no such treatment has been extended to them. While the merchants of all other nations of the earth are permitted free and unobstructed entrance into and departure from the ports of the United States, the Chinese merchant has by the legislation of your Congress had thrown around him the most obstructive, embarrassing, and humiliating restrictions. He is treated by the customs authorities with much the same surveillance as is extended to vagrants or criminals; and before he is permitted to land he is required to produce a certificate, the strict conditions of which make it difficult and expensive to comply with, and humiliating and objectionable to the man of honor and self-respect, it being necessary to set forth the amount and details of the business in which he is and has been engaged, with a statement of his family history and occupation, and all these matters are subject to the examination and approval of the American consul at the Chinese or foreign port whence he sails.

Only within the present month two of the most respectable Chinese merchants of Hong Kong arrived in the port of San Francisco, desiring to land temporarily and visit their customers in the various cities of the Pacific States; but, because they did not bring with them from that foreign port the certificate above described, which it was impossible for them to obtain, they were kept as prisoners on board the vessel upon which they arrived until it sailed on its return voyage, notwithstanding the collector of customs was satisfied they belonged to the exempt class entitled, under the treaty, to the same free entrance as a British or other merchant, and they were driven back upon their long voyage across the Pacific Ocean; a condition of things which your President 4 years ago recognized as contrary to the treaty and urged your Congress to rectify. (Senate Ex. Doc. 118, Forty-ninth Congress, first session.)

Such, Mr. Secretary, are some of the contrasts in the observance and enforcement of treaty rights between the two nations. Can you wonder that the Imperial Government is growing restive and impatient under such dissimilarity of treatment, and is urging me to obtain from you some satisfactory explanation of the conduct of the American authorities in the past and some assurance of the course to be pursued in the future?

You will observe that the object had in view in the cited note of this legation addressed to your predecessor was to induce the Executive to recommend Congress to undo the wrong and hardships inflicted upon my countrymen by its legislation; and in the subsequent note addressed to you this object was brought to your attention, and the hope was expressed that, with your earnest desire to deal justly and to “maintain the public duty and the public honor,” you would find a speedy method of satisfying the reasonable expectations of the Imperial Government. In view of the fact that one session of your Congress has passed and another is already well advanced without any communication from the President, and of your continued silence respecting my notes, I am being reluctantly forced to the conclusion that you regard that method of adjustment as impracticable. It will make me happy to be informed that this conclusion is erroneous, and that your Congress can yet be induced to “maintain the public duty and the public honor.” But, if this, unfortunately, may not be, then I can see only one other proper solution, and that the one indicated in the fifth point of my predecessor’s note of July 8, 1889. The public law of all nations recognizes the right of China to resort to retaliation for these violated treaty guaranties, and such a course applied to the American missionaries and merchants has been recommended to the Imperial Government by many of its statesmen; but its long-maintained friendship for the United States, and its desire to observe a more humane and elevated standard of intercourse with the nations of the world, point to a better method of adjustment. Conscious that it has religiously kept faith with all its treaty pledges towards your country, my Government is persuaded that America will not be blind to its own obligations, nor deaf to the appeals made to it on behalf of the Chinese subjects who have been so grievously injured in their treaty rights by the legislation of Congress.

It is a principle of public law, recognized, I believe, by all international writers, that a treaty between two independent nations is a contract, and that the nation which fails to execute or violates it is responsible to the other for all injuries suffered by its subjects thereby, and that it can not escape responsibility because of the action or failure of action of any internal power or authority in its system of government. But I need not quote any foreign publicists on this subject, because your own country furnishes abundant authority to sustain this position. The great American law writer Wheaton, whose wisdom and justice are recognized throughout all countries, says:

The King (or the President) can not compel the Chambers (or Congress), neither can he compel the courts; but the nation is not the less responsible for the breach of faith thus arising out of the discordant action of the international machinery of its constitution. (Lawrence’s Wheaton, p. 459.)

Citation has already been made of the declarations of the Solicitor of your own Department to the same effect in even stronger language. And it seems that the distinguished statesmen who have preceded you in your great office have held the same just principle. I need only quote the words of Mr. Secretary Fish:

The foreign nation whose rights are invaded thereby [by legislation of Congress] has no less cause of complaint and no less right to decline to recognize any internal legislation which presumes to limit or curtail rights accorded by treaty. (Wharton, section 138.)

But the Supreme Court of your country, in the decision in which it sustained the act of 1888, has been very explicit in recognizing this principle. It declares that “a treaty * * * is in its nature a contract between nations,” and that “it must be conceded that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplemental treaty of 1880,” and, although the act of Congress is binding upon the internal authorities, that act does justify complaint on the part of the other contracting party. And this doctrine is made more clear by the learned American judges whose opinions are cited approvingly by the Supreme Court. Mr. Justice Curtis says:

The sovereign between whom and the United States a treaty has been made has a right to expect its stipulations to be kept with scrupulous good faith. (2 Curtis, C. C., 456.)

And again he says:

The responsibility of the Government to a foreign nation for the exercise of these powers (by legislation) * * * is to be met and justified to the foreign nation according to the requirements of the rules of public law. (19 Howard, 629.)

And the Supreme Court has held:

A treaty is primarily a compact between independent nations, It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If this fails, its infraction becomes me subject of international negotiations and reclamations, so far as the injured party chooses to seek redress. (112 U. S. R., 598.)

And further:

If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government and take such other measures as it may deem essential for the protection of its interests. (124 U. S. R., 194.)

To the foregoing I must add the declarations of two of the present members of that court. Justice Miller says, as to reclamations growing out of legislative violation of treaties:

Questions of this class are international questions, and are to be settled between the foreign nations interested in the treaties and the political department of our Government. (1 Woolworth, 156.)

And Justice Blatchford says:

Congress legislates * * * subject to the responsibilities of this Government, in its national character, for any breach of its faith with foreign nations. (8 Blatchford, 310.)

My predecessor expressed his amazement that the Supreme Court should announce the doctrine that the act of Congress must be obeyed though it is in plain violation of the treaty, and that surprise has been shared by my Government; but it is my duty to do justice to this high tribunal. I must express my profound obligations to it for making the further declarations in its opinion given above, but especially for citing the decisions from which I have just quoted. These show that this august body, while it confesses its obligation to enforce the will of Congress within the United States, recognizes a broader and higher obligation and responsibility as resting upon the American Government—an obligation which requires it to see that the stipulations of its treaties are “kept with scrupulous good faith,” and a responsibility which demands that “any breach of its faith with foreign nations is to be met and justified * * * according to the requirements of the rules of public law.” Hence, Mr. Secretary, I present this view of the question to you, with the utmost confidence in your readiness to accept whatever responsibilities have attached to your Government for the “breach of its faith “as the resulting act of the legislation of your Congress, supported, as I am, in my demand, not only by the international authority of all nations, but by your own Department and by the highest tribunal and judges of your own nation.

I have shown you how the legislation of your Congress, which is conceded by your Supreme Court to be in violation of the treaties, has impaired or destroyed the rights and property interests of the three classes of Chinese laborers described, as well as of Chinese subjects entitled to free transit through the United States and of Chinese merchants obstructed in their business and denied the privileges extended to those of other nations. I abstain for the present from presenting any formal estimate of damages and losses sustained by the above classes of subjects through the legislative infringement of the treaties. I shall await your reply to this and the previous notes of this legation, in the hope that even yet a method may be found of undoing the wrongful legislation and restoring to their treaty rights the Chinese subjects now in, or entitled to come into, the United States. But, whatever may be the ultimate decision of your Government on this point, I am persuaded that I have given you such cogent reasons to support the expectation of the Imperial Government to be informed without further delay of the views and intentions of your Executive respecting the treaty obligations toward China, that you will favor me with an early communication on the subject.

I improve, etc.,

Tsui Kwo Yin.