Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 5, 1881

No. 129.
The commission to Mr. Evarts.

United States Commission,
Peking, November 3, 1880.

No. 11.]

Sir: Our dispatch. No. 8, of October 23, 1880, brought the history of our negotiation down to the inverview of that day with the Chinese commissioners, and briefly summarized its result. We now have the honor to inclose a full précis of the conversation on that occasion.

When that précis was submitted to the Chinese commissioners, we asked for an interview (which was appointed for the 31st ultimo), in a note, a copy of which will be found inclosed.

The conference was held on the day appointed, and at its opening the Chinese commissioners submitted to us the project of a treaty, a translation of which will be found herewith. This being in Chinese, we could only gather its general purport from a rapid translation by Mr. Holcombe. Mr. Trescot, on behalf of the commissioners, informed the Chinese commissioners that we would take it into consideration, but that we could and ought to say at once that there were some points which were inadmissible, and could not be received by us even for consideration. The first was the limitation of the provisions of the treaty to Chinese immigration into California. To this the Chinese commissioners replied that such was not their intention, but as they had been led to suppose, from all they heard, that objection to such immigration existed chiefly, if not only, in California, they had suggested this form in order that its discussion might lead to a better understanding.

The second point was the provision that the limitation of such immigration should be confined only to the prevention of the entry of Chinese labor, and should not impose penalties or disabilities of any kind upon such immigrants. Mr. Trescot said that this provision was too obscure, and seemed to involve questions not within the scope of the present discussion. The right to prevent immigration, without the use of such means as the Government of the United States might deem judicious and necessary to enforce the prevention, was scarcely worth considering.

To this objection the reply of the Chinese was not precise enough for accurate report, but their apprehension seemed to be that such power of prevention might be made to justify or excuse unfavorable legislation by the States against such Chinese immigrants as might be found within their borders.

Another point was the exclusion of “artisans” from the class of Chinese labor whose immigration was forbiddon by the proposed provisions. In reference to this, Mr. Trescot stated that it was an inadmissible limitation upon that definition of Chinese labor which had been suggested by the United States commissioners.

It was deemed best by the United States commissioners not to do more at this interview than signify their great disappointment at the scope and tenor of the Chinese project, and to reserve a full review of its provisions until it had been translated.

After full consideration, the United States commissioners drafted a counter project with observations, which they sent to the Chinese commissioners by Mr. Holcombe, as secretary of the commission. This was accompanied by a note of instruction to Mr. Holcombe, a copy of which will be found inclosed. The result of his interview was the appointment of a meeting, to be held at an early day, the language of the members of the Yamen being such as to indicate the prospect of a satisfactory conclusion.

It may be well to state here that, in all our conferences, there have been present, besides the two commissioners, other members of the Yamen, making the Chinese representation never less than four and oftener six. The discussions, as far as they had practical point, were conducted to a large degree by Shen, a member of the privy council and one of the oldest and most influential of the Yamen, and Wang, who, although the youngest member, has the reputation of being one of the most distinguished statesmen of the country.

The discussions were, however, often very general, and participated in by all those present.

We have the honor to be, sir, your obedient servants,

• JAMES B. ANGELL.
• JOHN F. SWIFT.
• WM. HENRY TRESCOT.

[Inclosure 1 in No. 11.]

Précis of a conversation had between the United States commissioners and the Chinese commissioners, on Saturday, October 23, 1880.

Mr. Trescot, on behalf of the United States commissioners, said that they had received the memorandum of the Chinese commissioners on the project submitted, and thanked them for the promptness of their reply and the friendly spirit which marked it. That as to the first article, it was, as the Chinese commissioners said, only a summary or recapitulation of the provisions of existing treaties on the subject of the emigration and residence of the citizens of either country in the other. The article was suggested simply under the impression that, as the object of the present negotiation was one branch of immigration, it would be as well to make any treaty now negotiated a complete treatment of the whole subject. But if the Chinese Government preferred to leave the provisions standing as they now do in several treaties, and confine this negotiation to the immigration of Chinese labor, the United States commissioners would not object and would not of course press any further consideration of the first article.

That as to the second article, the United States commissioners want some fuller explanation of the meaning of the language used in the Chinese memorandum.

The memorandum says: “At the moment we are only prepared to negotiate for a mode of limitation, having in mind the interests of both governments. We are entirely ready to negotiate most carefully with your excellencies to the end that a limitation, either in point of time or of numbers, may be fixed to the emigration of Chinese laborers to the United States.”

The United States commissioners would like to have a more definite statement of what such limitation meant, and how it was proposed to carry it into effect.

The Chinese commissioners replied that they had informed the secretary of the commission verbally that there would be difficulty in their accepting the word “prohibition”, used in the second article; and, assuming that the word “regulate” would cover generally the other words “limit and suspend,” they had suggested this limitation in hopes of learning from the United States commissioners what their idea of limitation was, and they would like to hear.

Mr. Trescot replied that the United States commissioners were not quite prepared to say, because, as the article they had submitted was a distinct proposition, they had been led by the language of the memorandum to suppose that the proposition for limitation in time and numbers was a substitute for that article and not a response to it, and that they had therefore expected that the Chinese commissioners would be prepared to explain it in some detail.

The Chinese commissioners said they did not intend their proposition to be considered as a substitute for Article II, or in any sense an ultimatum on the part of the Chinese Government. They rather intended it to induce a free discussion of the subject so it should be thoroughly understood. By limitation in number they meant, for example, that the United States having, as they supposed, a record of the number of immigrants in each year as well as the total number of Chinese now there, that no more should be allowed to go in any one year in future than either the greatest number which had gone in any year in the past, or the least number which had gone in any year in the past, or that the total number should never be allowed to exceed the number now there. As to limitation in time they meant, for example, that Chinese should be allowed to go in alternate years, or every third year, or, for example, that they should not be allowed to go for two, three, or five years.

Mr. Trescot replied that the United States commissioners feared there was some misunderstanding on the part of the Chinese commissioners as to the meaning of Article II. The United States Government did not ask the Chinese Government to regulate, limit, suspend, or prohibit immigration, but to leave that to the discretion and action of the United States Government itself. That under the Burlingame treaty, as construed in practice, the Chinese had the absolute right in any numbers to come to the United States. This had caused trouble and embarrassment. What the United States Government asked was that the Chinese Government should consent to such a modification of the Burlingame treaty as would enable it, without raising unpleasant questions of treaty construction, to exercise that discretion. The reasons why the United States Government should be allowed to do this rather than to impose the task upon the Government of China are manifest. If undertaken by China it would necessitate complicated regulations; the appointment of special officers at each port to enforce them, and, failure to enforce the rules on the part of the local officers would raise questions between the two governments. Besides, as the memorandum of the Chinese commissioners states, they could only apply to the ports of China, while the larger portion of emigrants go from Hong-Kong and Singapore.

It is far easier to prevent them from entering the United States than to prevent their leaving China. If the United States had the right it would most easily find the power to accomplish this result by appropriate legislation.

They thought it best for the friendly relations and the interests of both countries that the United States should have the right to limit, suspend, and prohibit and to enforce such limitation or prohibition by their own laws, in their own ports, without imposing further responsibility upon China.

The Chinese commissioners asked if the United States commissioners could give them any idea of the laws which would be passed to carry such power into execution.

Mr. Trescot replied that this could hardly be done. It would be as difficult to say what would be the special character of any act of Congress as it would be to say what would be the words of an edict of the Emperor of China to execute a treaty power. That two great nations discussing such a subject must always assume that they will both act in good faith and with due consideration for the interests and friendship of each other. That the United States Government might never deem it necessary to exercise this power. It would depend upon circumstances.

If Chinese immigration concentrated in cities where it threatened public order, or if it confined itself to localities where it was an injury to the interests of the American people, the Government of the United States would undoubtedly take steps to prevent such accumulations of Chinese. If, on the contrary, there was no large immigration, or if there were sections of the country where such immigration was clearly beneficial, then the legislation of the United States under this power would be adapted to such circumstances. For example, there might be a demand for Chinese labor in the South and a surplus of such labor in California, and Congress might legislate in accordance with these facts. In general the legislation would be in view of, and depend upon, the circumstances of the situation at the moment such legislation became necessary.

The Chinese commissioners said this explanation was satisfactory; that they had not intended to ask for a draft of any special act, but for some general idea how the power would be exercised. What had just been said gave them the explanation which they wanted, and they asked that it might be given to them in writing. Mr. Trescot replied that a précis of the entire conversation would be given to them. They further remarked that they were satisfied that if any special legislation worked unanticipated hardship the Government of the United States would listen in the most just and friendly spirit to the representations of the Chinese Government through their minister in Washington.

Mr. Trescot expressed the gratification of the United States commissioners at this confidence, which was not misplaced. The United States Government had been very careful of the feelings of the Chinese Government. They had not, like some of the English colonies, undertaken to settle the matter absolutely by their own legislation. Congress had passed the fifteen-passenger act, which the President had vetoed, not because he did not feel very strongly the difficulties consequent upon the present condition of the question, nor because he did not regard unrestricted Chinese immigration as a great evil, but in order that this commission might first be sent to find in consultation with the Chinese Government a friendly and fair adjustment. That the Chinese commissioners must be aware that the subject was one of great popular interest in the United States and had been the theme of excited and even angry comment in Congress. And it was much to be feared that if the commission failed to reach a satisfactory conclusion, the government might be forced by the difficulties of the situation to take the question into its own hands and abrogate the Burlingame treaty. The government did not desire this, but only sought a certain elasticity of action under the treaty as the exigencies of the situation might demand.

The United States commissioners thought it would be a most fortunate thing for the continued friendship of the two countries if they could communicate a satisfactory conclusion of these negotiations to their government before the next meeting of Congress in December. That as for the special words to be used, the United States commissioners would receive with the utmost consideration any suggestions from the Chinese commissioners, but it would be very gratifying if an agreement could be reached as to the principle of the article which they had submitted.

The Chinese commissioners said, the commission might be assured that China did not in any way mistrust the motives and purpose of the United States, nor for an instant doubt that the Government of the United States would act with entire fairness towards the Chinese. If the Government and people of the United States had treated Chinese laborers as they had been treated elsewhere, the Government of China would be anxious that their people should not go thither. China would never forget that it was the Government of the United States through its representatives abroad that first called the attention of the Government of China to the cruelties to which its subjects were subjected in Cuba and elsewhere. They appreciated fully the spirit in which the United States Government had treated the subject; that the United States commissioners might be assured that they had but one purpose, and that was to reach at an early period a satisfactory solution of the question, and that such solution might be certainly anticipated, so that the United States commissioners would not be detained by the closing of navigation, and they asked that a précis of this conversation might be furnished them.

[Inclosure 2 in No. 11.]

The United States commissioners to the Chinese commissioners.

The undersigned, the United States commissioners, have the honor in conformity with the request of their colleagues, the Chinese commissioners, to inclose for their consideration a précis of the conversation had at the interview of the 23d instant, which they hope will be found correct.

In doing so the United States commissioners cannot refrain from expressing their gratification at the spirit in which the discussion was conducted and the fair and just view taken by the Chinese commissioners of the representations submitted to their consideration.

Feeling that there is every reason to hope for a satisfactory solution of the questions they have now considered with their colleagues, the commissioners of the United States, without pressing unduly upon the time and other engagements of the Chinese commissioners, would ask that, as both parties are now fully in possession of each other’s views, as early an interview as possible may be accorded them, in order that they may take joint action with their colleagues upon the definite proposition contained in article second of the project.

We have the honor, &c.,

• JAMES B. ANGELL.
• JOHN F. SWIFT.
• WM. H. TRESCOT.

Peking, October 27, 1880.

[Inclosure 3 in No. 11.]

Treaty project from foreign office.

Whereas in the 8th year of Hsien Feng A. D. 1858, a treaty of peace and friendship was concluded between China and the United States, and to which were added in the 7th year of Tung Chih, A. D. 1868, certain supplementary articles to the advantage of both parties, which supplementary articles were to be perpetually observed and obeyed;

And whereas the Government of the United States, because of the constantly increasing immigration of Chinese laborers to the State of California, and the embarrassments consequent on such immigration, now desires to negotiate an adjustment of the existing treaties which shall not be in direct contravention of their spirit:

Now, therefore, the Government of China has appointed—— ——as its commissioners plenipotentiary, and the Government of the United States has appointed—— ——as its commissioners plenipotentiary, and the said plenipotentiaries, having conjointly examined their full powers, have discussed the points of possible modification in existing treaties, and have agreed upon the following articles in temporary modification:

• Article I. The United States, in regulating the immigration of Chinese laborers to California, will limit the number who may enter the ports of the State, but will not prohibit such immigration. Only such Chinese will be included in this limitation as are found, after careful examination at the time of their entry into the ports of California, under rules to be established by the United States, to be actual laborers. Any regulations for limiting such immigration shall only be of such a nature as to hinder the entry of immigrants of the class specified to the ports named, and shall not impose disabilities of any other kind or class upon such immigrants.
• Art. II. Chinese who may be desirous of proceeding to any other part of the United States for purposes of labor, excepting only the State of California, shall be allowed to go of their own free will and accord. Persons of all other classes, with the exception of actual Chinese laborers, whose immigration into California will be temporarily regulated and limited by the United States, whether proceeding to California as teachers, students, travelers, traders, or artisans, as well as all Chinese laborers now in that State, will be allowed to go and come with entire freedom, and will not be included in the limiting regulations.
• Art. III. If Chinese laborers now either permanently or temporarily residing in the State of California meet with ill treatment at the hands of any other persons, the United States shall exert all its power to devise measures for their protection, and to secure for them the same privileges, immunities, and exemptions as may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty.
• Art. IV. The limitations to he placed upon the immigration of Chinese laborers will be temporary in their nature. The number of immigrants allowed by the regulations will not be excessively small, nor the term of years excessively long. Such regulations will apply only to Chinese laborers at work for and employed by American citizens. All other classes may go and come to and from the State of California, and their servants and employés, whether accompanying them or following them, shall not be included in the limiting regulations.
• Art. V. The Government of the United States will prepare regulations in the spirit of the foregoing articles, and communicate them to the Chinese minister at Washington for his consideration. If there are points in such regulations which need modification, they will be brought by the Chinese minister at Washington to the notice of the Secretary of State, and be adjusted. The Chinese foreign office may also bring such points to the notice of the United States minister at Peking, and adjust them in concert with him, to the end of securing mutual advantage and avoiding injury to either party; and thereafter such regulations will go into effect.
• Art. VI. The two governments having agreed upon the foregoing articles, copies have been prepared in each language, and signed, sealed, and exchanged by the respective plenipotentiaries. They will, however, go into effect only after their ratification by the governments concerned.

[Inclosure 4 in No. 11.]

Treaty project submitted by the United States commissioners, November 2, 1880.

Whereas in the 8th year of Hsien Feng, A. D. 1858, a treaty of peace and friendship was concluded between China and the United States, and to which were added in the 7th year of Tung Chih, A. D. 1868, certain supplementary articles to the advantage of both parties, which supplementary articles were to be perpetually observed and obeyed;

And whereas the Government of the United States, because of the constantly increasing immigration of Chinese laborers to the territory of the United States and the embarrassments consequent on such immigration, now desires to negotiate an adjustment of the existing treaties which shall not be in direct contravention of their spirit:

Now, therefore, the Government of China has appointed—— ——as its commissioners plenipotentiary, and the Government of the United States has appointed—— ——as its commissioners plenipotentiary, and the said plenipotentiaries, having conjointly examined their full powers, have discussed the points of possible modification in existing treaties, and have agreed upon the following articles in modification:

• Article I. Whenever, in the opinion of the Government of the United States, the coming of Chinese laborers to the United States or their residence therein, affects, or threatens to affect, the interest of that country or to endanger the good order of the said country, or of any locality within the territory thereof, the Government of United States may regulate, limit, or suspend such coming or residence, and the words Chinese laborers are herein used to signify all immigration other than that for teaching, trade, travel, study, and curiosity.
• Art. II. Chinese subjects, whether proceeding to the United States for purposes of teaching, study, travel, curiosity, or trade, with their body servants, shall be allowed to go and come with entire freedom.
• Art. III. If Chinese laborers now either permanently or temporarily residing in the State of California meet with ill treatment at the hands of any other persons, the United States will exert all its power to devise measures for their protection and to secure to them the same privileges, immunities, and exemptions as may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty.
• Art. IV. The Government of the United States will communicate to the Chinese Government the legislative measures adopted by it in accordance with the provisions of the foregoing articles, and in case such measures work unexpected hardship to Chinese subjects, will give the fullest consideration to such representations as the Government of China may see fit to make in the premises.

In faith whereof the respective plenipotentiaries have sealed and signed the foregoing at Peking, in English and Chinese, being three copies of each text of even tenure and date.

[Inclosure 5 in No. 11.]

The commission to Mr. Holcombe.

United States Commission,
Peking, November 2, 1880.

Dear Sir: You will receive with this a memorandum containing the views of the commissioners as to the project of treaty submitted to our consideration by the Chinese commissioners. You will submit it to them in order that they may be prepared for a discussion of our points of difference at the next interview. In your conference with them we think it would be advisable without a formal expression of our opinion, which we reserve for an interview, to impress upon them your conviction that our project goes as far in the way of concession as we can go, and the stipulation of Article I is the least that we can accept in the fulfillment of our instructions.

• JAMES B. ANGELL.
• JOHN F. SWIFT.
• WM. H. TRESCOT.

memorandum.

The United States commissioners have received and considered the project of a treaty from the Chinese commissioners. They submit a counter project with the following observations:

1. The United States commissioners are willing to consult the wishes of the Chinese Government in preserving the principle of free intercourse between the people of the two countries as established by existing treaties, provided that the right of the United States Government to use its discretion in guarding against any possible evils of immigration of Chinese laborers is distinctly recognized. Therefore if such concession removes all difficulty on the part of the Chinese commissioners (but only in that case) the United States commissioners will agree to remove the word “prohibit” from their article and to use the words “regulate, limit, or suspend.”

The Chinese commissioners have in their project explicitly recognized the right of the United States Government to use some discretion, and have proposed a limitation as to time and number. This is the right to “regulate, limit, or suspend,” but it is accompanied in the project by conditions which cannot be accepted. The United States commissioners think that the Chinese Government ought to assume that this right will be exercised by the United States Government in a friendly and judicious manner, but it would be entirely useless to the United States Government without the power of using it when and how, in the judgment of the government, it ought to be used. Consultation and conference between the two governments upon every occasion when it might be necessary or upon every detail in the method of its use would be so inconvenient as almost to be impossible.

2. The United States commissioners feel it their duty to insist upon their definition of Chinese laborers, viz: “the word Chinese laborers are herein used to signify all immigration other than that for teaching, trade, travel, study, and curiosity hereinbefore referred to and provided for in existing treaties.” They cannot consent that artisans shall be excluded from the class of Chinese laborers, for it is this very competition of skilled labor in the cities where the Chinese labor immigration concentrates which has caused the embarrassment and popular discontent they wish to avoid. But they are willing to adopt an article providing that the classes who are authorized to come to and reside in the United States shall bring the servants who are necessary to their convenience.

3. The United States commissioners cannot consent to the limitation that Chinese laborers excluded shall be those only who are employed by American citizens. This so far from being a check upon such immigration would be simply a prohibition of the use of cheap labor by the American citizens. Every other person, that is, any and every resident, French, English, German, Chinese, would have the right to bring into the country and use such labor in direct competition with the American citizen. The United States commissioners can scarcely think that this proposition was fully considered by the Chinese commissioners.

4. The United States commissioners would further call to the attention of the Chinese commissioners the necessity of correcting all those phrases in their treaty project which would seem to confine the negotiation to Chinese immigration into California. As they intimated at the last interview, they could not even take into consideration a treaty so limited in its scope, and they have proceeded with the examination of the project upon the assurance then received that no such limitation was intended by the Chinese commissioners.