No. 132.
Mr. Bayard to Mr. Denby.

No. 124.]

Sir: I have received your No. 212, of the 29th of September last, touching the Chungking riots, and inclosing correspondence with the Tsung-li yamên in relation thereto. The yamên, you state, has directed the local authorities to investigate the riot and make further report thereon, and, in the mean time, carefully abstain from any admission of responsibility in the matter beyond what may be inferred from the issuance of the Imperial decree ordering the local authorities to investigate the occurrence and do justice.

I am pleased to notice the firm and energetic tone of your correspondence with the Imperial Government. Not infrequently hitherto, in cases of outrage upon citizens of the United States, the Chinese Government has not only exerted its authority to punish its offending subjects, but has also made compensation for the injuries and losses of the sufferers, thus fulfilling the measure of its conventional obligation to afford special protection to citizens, of the United States who go thither under the express permission and guaranty of the treaties.

I am not surprised at the reference in the yamên’s note of September 23, last, to the outrages on Chinese in certain of the northwestern Territories of the United States, as in some sense an answer to the complaints [Page 170] of this Government on account of the riot at Chungking. The shocking and inhuman character of those outrages is deeply deplored, and has been fully admitted by this Government. At the same time I am compelled to deprecate the manifestation in the yamên’s note of a disposition on the part of the Imperial Government to depart from its former course of adhering to the stipulations of the treaties. If a policy of supposed retaliation be once commenced, it is not difficulty to foresee in its lamentable progress its necessarily deplorable effect upon the present friendly relations of the two Governments.

During the past year I have fully discussed, in my correspondence with the Chinese minister at this capital, the character of the outrages in the distant northwestern Territories, and the question of this Government’s liability therefor, both upon the general principles of international law and the provisions of the treaties. I desire especially to refer to my note to Mr. Cheng Tsao Ju of the 18th of February last. In that note I endeavored to impress upon his excellency the exceptional character of the unfortunate occurrences referred to, their remoteness from the centers of population and civilization, the suddenness of the attack, the absence of any official complicity, and the total lack of participation of citizens of the United States in the outrages which were shown to have been committed by foreigners abusing the privileges of residence in this country. I also emphasized the privilege of unrestricted resort to the courts of the country which is enjoyed by the subjects of China equally with those of the most favored nations, for the purpose of obtaining redress against the individual offenders.

This privilege is exercised by Chinese subjects on the same footing and subject to the same laws as by citizens of the United States, except that the former have in addition the option of resorting either to a State or a Federal tribunal for the trial of their rights, which in many cases is denied to our own citizens, and may at will remove their causes from a State to a Federal court.

It is unnecessary here to dilate, as was done in the note referred to, upon the essentially juridical character of our system of government. This is a fact of which all foreigners who come to our shores are presumed to take notice, and none more so than the Chinese, who come hither under stipulations of treaty which guaranty to them precisely the same rights under the law as are enjoyed alike by other foreigners and by citizens of the United States.

In China the system of government is radically different, and the rights of Americans who go thither are guarantied not by the general law of the land, which does not provide for equality of rights as between subjects and foreigners, but by the special stipulations of treaty. Without these foreigner would not enter the Empire, and indeed are not usually permitted to do so.

In this connection I invite your attention to the language of Article XIX of the treaty of 1844, which contains the first stipulation of the Chinese Government for the protection of citizens of the United States in China. The article reads as follows:

All citizens of the United States in China peaceably attending to their affairs, being placed on a common footing of amity and good will with subjects of China, shall receive and enjoy for themselves, and everything pertaining to them, the special protection of the local authorities of Government, who shall defend them from all insult or injury of any sort on the part of the Chinese. If their dwellings or property be threatened or attacked by mobs, incendiaries, or other violent or lawless persons, the local officers, on requisition of the consul, will immediately dispatch a military force to disperse the rioters, and will apprehend the guilty individuals and punish them with the utmost rigor of the law.

[Page 171]

These stipulations are somewhat amplified, but substantially affirmed in the eleventh article of the treaty of 1858.

Thus it is seen that the Government of China guaranties to the citizen of the United States, peaceably attending to their affairs, special protection, not only for themselves, but for “everything pertaining to them.”

In order to appreciate the obligation of the Imperial Government in this regard, it is only necessary to consider the circumstances under which the foregoing provisions were made, and the narrow territorial limits to which they were applicable. When the treaty of 1844 was signed China was a closed country. Her people were averse to the presence and association of foreigners, and no American citizen could enter the Empire with any guaranty of security for person or property. The purpose of the treaty of 1844 was to afford such a guaranty, which was defined in the article above quoted.

But the provisions of this article, it is important to observe, are restricted to an exceedingly limited area, and do not extend to the whole empire. It is provided by Article III of the treaty that citizens of the United States shall be permitted to frequent only five designated ports (the number of which has since been somewhat extended), and even in those places, as is provided in Article XVII, sites for the dwellings and business houses of Americans are to be selected with “due regard to the feelings of the people”.

Within these narrow confines alone did the Imperial Government engage to assert its authority, which is the only guaranty of the personal and property rights of Americans in the Chinese Empire. In the United States, on the other hand, not only are the subjects of China permitted to go freely into every part of the country, but the same constitutional and legal guaranties of their rights, as of those of our own citizens, everywhere prevail, save in the respect previously mentioned, that in many cases the foreigner may have special advantages in the selection of a forum.

It is therefore manifest that, although in those recently and sparsely settled regions of the United States in which social organization is necessarily imperfect, the administration of justice may not always be as prompt and efficient as could be desired, the temporary inability of the constituted authorities of a particular locality to enforce the rights of aliens or of citizens can not be regarded as evidence that such rights are not generally secured in the United States. In fact, there are at the present moment, residing in many parts of the United States, thousands of Chinese whose rights are effectually protected under the general law of the land. However much we may deplore those unfortunate occurrences, it can not be said that they have tended to render insecure the general situation of the Chinese in this country, or to expose them to further injury.

It may be stated, without fear of contradiction, that especial maltreatment of Chinese subjects in the United States is the rare exception, and not the rule. It is only in the remote districts, where lawlessness is naturally more apt to prevail, that the grievous instances of outrage which are so greatly deplored by us have occurred. In such regions our own citizens are frequently the victims of personal assaults, and mob law prevails where municipal law is weakest.

But what do we find to be the case when we consider the positions of Americans in China? Restricted in their movements to specific localities, and there compelled to select their places of residence and of business with due regard to the feelings of the people,” their only security for person or property is the protection of the Imperial Government. [Page 172] Any denial, therefore, of this protection, even in a single case, can only be viewed as a refusal on the part of China to fulfill her conventional engagement to protect Americans and as rendering their situation generally insecure. Such a refusal on the part of the Imperial Government may be likened to the enactment of a law by Congress (assuming that it possesses the constitutional power to make such discrimination) that certain classes of aliens should no longer be entitled to the remedies now afforded by the law for the enforcement of the rights of aliens and citizens alike.

I trust that in dealing with the Chungking riots the Imperial Government will assert its authority to secure to American citizens the full measure of protection and indemnity which the treaties promise.

I am, etc.,

T. F. Bayard.