Mr. Burlingame to Mr. Seward

No. 117.]

Sir: Agreeably to your request, I send, on leaving, a brief memorandum of suggestions relating to China.

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,

I have the honor to be, sir, your obedient servant,


Hon. William H. Seward, Secretary of State, Washington, D. C.

Mr. Dexter to Mr. Heard

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,


To John Heard, Esq.