I hope you will see that Consul General Seward’s letter to me, now with
Mr. Chew, shall receive due consideration; that the college bill, so
important, now in Mr. Raymond’s hands, shall not be forgotten; that the
question of a legation presented in my despatch No. 25 may go to
Congress; that your wise suggestion, that a war vessel shall be tendered
to the first representative sent by the Chinese to this government shall
have fruition; and that a sufficient force may be sent to the Chinese
waters to perform our part in suppressing piracy.
One flag-ship of large tonnage, with five swift vessels like the
“Winooski,” should, in my judgment, be placed at once on the Chinese
station. This force will be small as compared with that of France and
Great Britain.
I beg you to request that officers of the highest standing may be sent to
command them—men who will at all times be regardful of the rights and
feelings of the Chinese, and who will understand the co-operative policy
which is a substitution of fair diplomatic action for force.
That you may see what questions are submitted to me, I send (marked A)
those of Mr. Heard, as answered by Mr. Dexter, a reputable lawyer of
Boston, in relation to Chinese emigration. Now the laws of China are
against emigration, but if we desire it they may be changed. I have not
as yet matured my views on this subject, and only call your attention to
it as one likely to require careful consideration in the future,
Mr. Dexter to Mr. Heard
Boston, January 31, 1866.
Dear Sir: You inquire whether contracts
with coolies, to labor for a term of years, can be so made in China
by an importer of them to the United States, as to be of substantial
assignable value on arrival of the coolies here. The answer to this
question depends upon several considerations.
1st. Are such contracts valid under the law of the place where they
are made?
2d. If not, are they so far valid under the law of the place of
performance as to diminish or remove the importance of the preceding
consideration?
3d. How can they be enforced in case of refusal of the coolie to
perform them after arrival here?
I. I am not informed as to the laws of China respecting the validity
of contracts made by its subjects in contemplation of emigration. I
have understood from you that there is reason to suppose emigration
to be prohibited by those laws. The general rule of law is, that a j
contract unlawful where made is void ab
initio, and can be enforced nowhere. There are, however,
reasons to doubt whether that rule would be applied by our own
courts to the matter in question. It is a recognized exception to
the latter clause of that rule that a contract lawful where made
will not be enforced in another, if injurious to the interests or
contrary to the policy of the state in which its enforcement is
sought. I see no difference in principle between the application of
this exception to the latter or former clause of the rule.
It is the settled policy of the United States to encourage
emigration, as beneficent and important to the interests of the
country, and I think that if the courts should be satisfied of the
illegality of emigration by Chinese law, they would find little
difficulty in deciding that the interest of their own country is of
paramount importance, and that the legality of such contracts should
depend upon the law of the place of performance. The practice of
abiding by the laws of the place of contracting, in construing the
contract or ascertaining its legality, is founded on the comity of
civilized nations, and it seems improbable that the [Page 493] courts of any self-called civilized
country would consider themselves bound to recognize that comity
towards China, in opposition to the interest and policy of their own
government.
II. The validity of such contracts, under the law of this country, is
next to be considered.
The matter of immigration is included in that class of subjects upon
which the United States Congress has power to legislate under
section VII, p. 4, of the Constitution, provided that such
legislation is not in conflict with other constitutional provisions
or with any treaty. (Smith vs. Turner, 7
Howard, United States Supreme Court Rep., 283.) Congress has passed
various laws regulating the matter of immigration, among which are
the acts of February 22, 1847, and March 3, 1849, prescribing the
provisions and accommodation to be furnished on immigrant ships, and
has enacted laws relating specially to coolies and to immigrants of
a somewhat similar class. By the act of February 19, 1862, it is
provided that no citizen or ship of the United States shall engage
in transporting coolies from China or elsewhere, to any foreign
place whatever, to be disposed of in any way or for any time as
servants or slaves; but that this act shall not interfere with
emigration of the Chinese, certified to be voluntary by the United
States consul at the port of departure.
By the act of July 4, 1864, the offices of commissioner and
superintendent of immigration are created, with the duty of
regulating contracts made by emigrants in foreign countries, of
protecting them after arrival here against imposition, and of
forwarding them to their places of destination. The same act
provides certain means for enforcing contracts so made, the
efficiency of which will be considered hereafter.
It seems, therefore, that the voluntary emigration of Chinese to this
country is directly legalized by Congress, but this legislation is
subject to all treaties made by the United States, and to all
provisions of the Constitution.
The treaty made with China, June 18, 1858, contains no provision
bearing upon the subject under consideration, unless involved in the
prohibition and clandestine, illegal, and contraband trades
contained and implied in article XIV. The terms of that article,
strictly construed, seem to apply only to merchandise, and to
trading at closed ports; and there can be but little doubt that any
commerce which is not prohibited under a strict construction of the
treaty, would be held not to come within such prohibition if found
to be advantageous to the other contracting power. The recent
amendment of the United States Constitution, proposed February 6,
1865, and now adopted, is a more formidable obstacle both to the
validity and the enforcement of any such contract as should give to
the importer a valuable and assignable title to the services of the
immigrant. By that amendment it is enacted that neither slavery nor
involuntary servitude, except upon conviction of crime, shall exist
within the United States. This provision seems to be fatal to any
means that could be devised, whether with or without the consent of
the laborer, for making such a contract with him in a foreign
country as should place him on arrival here in a condition of
involuntary servitude or in any condition essentially different from
that of a free immigrant, bound, indeed, by his contracts, but not
bound in any manner or to any extent differing from that manner and
extent in and to which other free men are bound by their contracts,
and this enactment prevents the States from adopting any laws
contrary to its provisions. I am therefore of opinion that a
contract made with coolies in China by the terms of which they
should agree to place themselves after arrival here in any state or
condition different from that of freemen, or by which they should
covenant to submit to other remedies for the enforcement of such
contract than those provided by law for enforcing contracts made by
and between freemen, would be void.
III. It is undoubtedly competent for coolies or any other persons to
contract for the performance of any kind of labor, for any term of
years, and at any rate of wages, and such contracts are assignable
unless it is otherwise stipulated.
The question next to be considered is how such contracts are to be
enforced in any case of refusal or failure to perform them on the
part of the coolies. There is no remedy in such cases known to the
law, except an action for money damages, unless the case be such as
would cause a court of equity to decree specific performance, or
unless the means provided by the act of July 4, 1864, can be availed
of.
With respect to a suit for money damages, it may be observed that
imprisonment for non-payment of such damages, if recovered, is now
rendered practically useless in almost all of the States and
actually abolished in some of them.
In actions brought upon contracts, the breach of which is in its
nature capable of being compensated in money, the inability of the
defendant to pay such damages as may be recovered is not a cause for
the interference of a court of equity, and as the contracts in
question are clearly of that description, there is no ground to hope
for such interference. Moreover, if courts of equity did so
interfere, they have no means but imprisonment of enforcing their
decrees. Imprisonment without food would hardly be tolerated in this
age and country, and imprisonment with food would probably be highly
agreeable to the delinquent.
Upon examination of the act of July 4, 1864, it will be seen that the
means, such as they are, therein provided for enforcing contracts
made with immigrants, apply only to such contracts as shall be in
conformity to the regulations of the commissioner of immigration,
and extend only to the giving of rights of action thereon in the
United States and State courts, and to providing a troublesome and
doubtful method of obtaining a lien on lands if acquired [Page 494] by the immigrant, but only
to the extent of his wages, for the term of twelve months, and only
for the repayment of the “expenses of immigration;” so that in case
the immigrant should in fact receive and spend his wages for twelve
months after arrival and should acquire no land, or if the importer
should fail to keep advised of the place of his settlement, the
remedy would be practically valueless.
The commissioner of immigration has published one set of regulations,
dated August 12, 1864, and I am advised of no others. In those it is
set forth that no contract is to be approved if made at rates of
wages unusually low or improvident, and it is clear that none of the
regulations are adopted for the encouragement of such contracts as
could be made practically valuable to the importer.
I am therefore of the opinion that such contracts as are the subject
of your inquiry cannot be so made as to be valuable to the importer,
for the want of means of enforcing them in his hands or in those of
his assignee.
Yours truly,
