Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1888, Part I

No. 245.
Mr. Bayard to Mr. Chang Yen Hoon.

Department of State,
Washington, April 11, 1887.

Sir: I have the honor to transmit for your consideration and approval a draught of a convention embodying those views as to the prohibition of the future coming to this country of Chinese laborers, which, I believe, from our conversations heretofore had, meet our joint approval.

In view of your contemplated departure from the United States, I shall be glad, if it will suit your convenience, to meet you at this Department at 11 a.m. of Wednesday next, the 13th instant, for the consideration of the very interesting subject contained in the documents which I have now the pleasure to submit to you.

Be pleased, also, to receive my comments upon the paper expressive of your views and wishes in relation to extradition, and to the execution of treaty stipulations relating to Chinese subjects by the police powers of the United States.

Accept, etc.,

T. F. Bayard.

[Inclosure 1.]

Draught of Convention to Regulate Emigration from China to the United States.

Whereas, on the 17th day of November, A. D. 1880, a Treaty was concluded between the United States and China for the purpose of regulating, limiting, or suspending the coming of Chinese laborers to and their residence in, the United States;

And whereas the Government of China, in view of the antagonisms and much deprecated and serious disorders to which the presence of Chinese laborers has given rise in certain parts of the United States, desires to prohibit the emigration of such laborers from China to the United States;

And whereas the Government of the United States and the Government of China desire to cooperate in prohibiting such emigration, and to strengthen in other ways the bonds of friendship between the two countries;

Now, therefore, the President of the United States has appointed—— ——— as his Plenipotentiary; and His Imperial Majesty the Emperor of China has appointed —— ——— as his Plenipotentiary; and the said Plenipotentiaries, having exhibited their respective Full Powers found to be in due and good form, have agreed upon the following articles:

Article I.

The High Contracting parties agree that for a period of twenty years, beginning with the date of the exchange of the ratifications of this Convention, the coming, except under the conditions hereinafter specified, of Chinese laborers to the United States shall be absolutely prohibited.

Article II.

The preceding article shall not apply to the return to the United States of any Chinese subject who has a lawful wife, child, or parent in the United States, or property therein of the value of one thousand dollars, or debts of like amount due him and pending settlement. Nevertheless, every such Chinese laborer shall, before leaving the United States, deposit, as a condition of his return, with the collector of customs of the district from which he departs, a full description in writing of his family or property, or debts, as aforesaid, and shall be furnished by said collector with such certificate of his right to return under this Treaty as the laws of the United States may now or hereafter prescribe; and should the written description aforesaid be proved to be false, the right of return thereunder, or of continued residence after return, shall in each case be forfeited.

Article III.

The provisions of this Convention shall not affect the right at present enjoyed of Chinese subjects, being officials, teachers, students, merchants, or travelers for curiosity or pleasure, but not laborers, of coming to the United States and residing therein.

It is also agreed that Chinese laborers shall continue to enjoy the privilege of transit across the territory of the United States in the course of their journey to or from other countries, subject to such regulation by the Government of the United States as may be necessary to prevent said privilege of transit from being abused.

Article IV.

This Convention shall remain in force for a period of twenty years, beginning with the date of the exchange of ratifications; and if, six months before the expiration of the said period of twenty years, neither Government shall formally have given notice of its termination to the other, it shall remain in full force for another like period of twenty years.

[Inclosure 2.]

Memorandum on propositions left at the Department by the Chinese minister on the 18th of March last, respecting the emigration of Chinese subjects from China to the United States, and other subjects.

The memorandum left at the Department by his excellency the minister of China, on the 18th ultimo, after reciting the provisions of article 3 of the immigration treaty of 1880, and discussing the treatment of Chinese subjects in the United States during the past few years, submits for the consideration of the Department fifteen propositions looking to the adjustment of various questions.

The first proposition is, that China, having of her own accord prohibited the emigration of her subjects to the United States, will do so from time to time in such manner as may be required by circumstances, there being no necessity for fixing a certain period for that purpose.

The second proposition relates to the same subject and particularly to the punishment by China of her subjects who fraudulently attempt to emigrate to the United States.

The third proposition provides that no Chinese laborer who has returned to China from the United States shall be permitted to return hither unless he has a family or relations, money or property, or accounts pending settlement.

Proposition fourth touches the transit through the United States of Chinese laborers returning to China or going to other countries.

Proposition 5 provides that any Chinese laborer who desires to return to China from the United States shall, before his departure from the latter country, report to the consul-general of China at San Francisco, whether or not he has in the United States any family or relations, etc.

Under proposition 6 it is provided that the exempted classes of Chinese subjects possessing a certificate or other documentary proof of their character shall be at once permitted to land without any detention under any pretense.

Proposition 7 contains a request that the President proclaim to the public with a view to preventing Chinese subjects from being farther ill-treated in the United States, that the Chinese Government, of its own accord, has prohibited the coming of Chinese laborers to the United States, etc., and that any person who may hereafter commit acts of murder, arson, and robbery, similar to those in the past against the Chinese, shall be severely punished without the least leniency.

Proposition 8 outlines a special system of police for the protection of the Chinese in the United States, and suggests the appointment of a special officer at San Francisco to attend to such cases of difficulty between Chinese and other persons as have lately taken place.

Proposition 9 suggests that instructions be given to the military and civil authorities of all the States and Territories to take from time to time active measures for watching the development of circumstances, with a view to the prevention of outbreaks or disorders either by employing an extra number of police officers or enlisting militia, etc.

Proposition 10 suggests that hereafter if any persons acting in concert are guilty of assailing or killing Chinese by fire-arms they shall be punished by hanging, as warning to others. Those who aid or abet in the assault in arms to be severely dealt with, and not be permitted to escape punishment. This proposition, however, has no reference to ordinary and isolated cases of assault by one individual upon another.

In addition to the measure suggested in the preceding proposition for the protection of Chinese, the minister refers, in proposition 11, to the recent decision of the Supreme Court that no law of the United States at present in force provides for the punishment by the courts of the United States of persons who attempt to expel Chinese. The minister intimates that some such law should be adopted.

Proposition 12 suggests the payment by the United States to China of a sum sufficient to cover all losses and injuries to Chinese in the United States from mob violence; this sum to be distributed by China, as was done by China under the claims convention of November 8, 1858. If this is not acceptable, his excellency suggests that a claims commission be organized to decide upon the losses and injuries.

Proposition 13 suggests that the exempted classes of Chinese coming to the United States should be permitted to land upon the presentation of their certificates or production of other documentary evidence, or on giving proper security, without the necessity of going into court for examination.

Proposition 14 relates to extradition, and suggests that a treaty be made for the return to China of fugitive Chinese criminals.

Proposition 15 suggests the reduction of the duty on rice from $2.25 a hundred pounds, the present duty, to $1 a hundred pounds.

From this résumé it appears that seven of his excellency’s propositions, namely, the 1st, 2d, 3d, 4th, 5th, 6th, and 13th, relate to the subject of emigration. Five, namely, the 7th, 8th, 9th, 10th, and 11th, relate to the protection of Chinese in the United States. Of the remaining three propositions one relates to claims, another to extradition, and the third to the duty on rice.

It is understood that these propositions are submitted by his excellency as an outline of the provisions which his Government would desire to see embodied in a convention with the United States. The project of a convention submitted by the Secretary of State to the minister of China on the 12th of January last related solely to the restriction of Chinese immigration to the United States. The Department, however, being desirous of reaching, as far as may be practicable, a conventional solution of the question now under consideration between the two Governments, is ready to extend the scope of its former proposal. For this purpose it herewith submits a draft of a convention, consisting of a preamble and five articles.

The preamble contains the acknowledgment desired by His Excellency in the first proposition of his memorandum of the desire of China to prohibit the emigration of her subjects to the United States.

The first article proposes a prohibition, except under certain conditions afterwards specified in the draft, of Chinese laborers to the United States for a period of twenty years.

Article two provides that the preceding article shall not apply to the return to the United States of Chinese subjects who have families in the United States, or property therein of the value of $1,000, or accounts of like amount due them and pending settlement. It is, however, required that Chinese subjects desiring to return to the United States shall furnish the authorities of the country proper evidence of their title to return.

Article three provides that the Convention shall not affect the right at present enjoyed of Chinese subjects, being officials, teachers, students, merchants, travelers for curiosity or pleasure, but not laborers, of coming to the United States and residing therein. It is also provided in this article, as His Excellency desired, that Chinese laborers shall continue to enjoy the privilege of transit across the territory of the United States in the course of their journey to and from other countries.

Article four provides that the Convention shall remain in force for a period of twenty years, and thereafter for a like period, unless notice of termination shall be given by one of the contracting parties six months prior to the expiration of the first period of twenty years.

It is believed that this draft substantially covers and meets those propositions of His Excellency’s memorandum relative to the subject of emigration. In respect, however, to propositions 7, 8, 9, 10, and 11, which contain the specific suggestions of His Excellency as to the measures which he thinks it desirable for the Government of the United States to take for the protection of Chinese laborers in this country, the Department has found itself unable to meet his suggestions or to formulate any counter proposition. As has already been seen, it is proposed under the seventh head that the President shall issue a proclamation that Chinese and other aliens shall live peaceably together, and that any person who may hereafter commit acts of murder, arson, and robbery, similar to those in the past against the Chinese, shall be severely punished without the least leniency. This proposition is at variance with the constitutional principles of the American Government, and is not based on any treaty provision. The Executive Department of the Government of the United States, of which department the President is the head, may aid in the prosecution of offenses, but can neither try nor punish them. Every man charged with the commission of a crime in the United States is entitled to a trial according to the law of the land. This is a right guaranteed by the Constitution and cannot be taken away either by treaty or by an act of Congress. In infamous crimes, such as are described by His Excellency, a part of the law of the land is that no person shall be tried except on the presentment of a grand jury. Every man charged with the commission of such a crime in the United States, and so presented for trial, is entitled to be tried by a jury impartially selected, and if found guilty, sentence is imposed by the court trying the case, and not by the President, who can remit but cannot impose penalties.

Proposition 8 outlines a sort of special detective system, which would be an anomaly in our history.

Proposition 9 contains certain provisions which require more particular attention. It is asked that this Government give “instruction to the military and civil local authorities of all the States and Territories” for certain purposes; and it is further asked that “in case of any outrage such as arson or expulsion being committed against Chinese by unlawful bands in any State or Territory, * * * the local authorities on learning of the same may be permitted to summons * * * troops,” etc.; and it is said that “there are precedents for this in the treatment and protection of American merchants and missionaries in China by the Chinese Government.”

In proposition 11 it is said, in reference to the protection of the Chinese, that “it is the Government of the United States, and not the State or local government, which guaranties to exert all its powers to devise measures for the protection of Chinese subjects in the United States. * * * They (these suggestions) may not be altogether in conformity to the usual practice in the United States, but they are very much like what the United States ministers and consuls have asked my Government to do, and which it has done for Americans in China.” It is thus seen that his excellency asks the Government of the United States to direct the local authorities of the States as well as of the Territories as to the steps to be taken for the protection of the Chinese; and the justification of this request is stated to be that there are “precedents for this in the treatment and protection of American merchants and missionaries in China by the Chinese Government,” and that the ministers and consuls of the United States in China have asked that Government to do what is now asked of the United States. Why have the ministers and consuls of the United States asked such things? Merely because under the treaties the Government of China is expressly bound to grant protection in the form stated; the United States is not. In all the treaties from 1844 down to the present time the Chinese Government has undertaken to oversee and direct and guaranty the protection of American citizens in China through the local authorities in that country. Beginning with the treaty of 1844, we find in the fourth article an express stipulation by the Government of China that if the consuls of the United States at the open ports in China are “disrespectfully treated or aggrieved in any way by the local authorities, said officers on the one hand shall have the right to make representation of the same to the superior officers of the Chinese Government, who will see that full inquiry and strict justice be had in the premises.” In the eighth article of the same treaty it is provided that citizens of the United States shall be permitted to hire servants, seamen, etc., “for a reasonable compensation, to be agreed on by the parties or settled by application of the consular officers of their Government, without interference on the part of the local officers of the Chinese Government.” In the seventeenth article it is provided that, “in order to the preservation of the public peace, the local officers of each of the five ports shall, in concert with the consuls, define the limits beyond which it shall not be lawful for citizens of the United States to go.” In the ninteenth article it is stipulated by China that all citizens of the United States in China “shall receive and enjoy for themselves and everything pertaining to them the special protection of the local authorities of the Government, who shall defend them from all insult or injury of any sort on the part of the Chinese;” and it is also provided that if the dwellings or property of citizens of the United States be attacked by mobs or other lawless bands of persons, “the local authorities, 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.” Also in the twenty-fourth, twenty-sixth, twenty-seventh, twenty-ninth, and thirty-second articles of the treaty of 1844 we find express guaranties of the Chinese Government as to the conduct of the local authorities. The treaty of 1858 contains almost a complete repetition of the provisions above cited. (See articles 10, 11, 13, 18, 28.)

It is thus seen that the measures which his excellency has requested this Government to adopt are substantially those that the Chinese Government has stipulated and employed for the protection of Americans in China. The American minister and consuls, in calling upon the Chinese Government to perform those stipulations, have simply requested China to execute the treaty in conformity with her own institutions. China’s call on us is to revolutionize our institutions. This proposition it is unnecessary to discuss.

In respect to the proposition for the payment of claims, it is proper to say that, as no money can be applied to such a purpose without a specific appropriation by Congress, the Department thinks it best that each case should be submitted to Congress on I be merits for such act ion as may be proper. This course, in the case of the Rock Spring difficulty, resulted in the appropriation by Congress of a sum to indemnify Chinese subjects for losses incurred by that unfortunate occurrence.

In respect to the suggestion that this Government reduce the duty on rice to $1 a hundred pounds, it may be said that this also is a matter for Congressional action, which can not be anticipated by the executive department of the Government.

The Department is of opinion that, owing to the totally opposite systems of criminal procedure in the respective countries, an extradition convention between the United States and China is impracticable. Moreover, if the draught herewith submitted of a convention to restrict immigration of Chinese laborers to the United States should be agreed upon by the Government of China, it would be impossible for the United States to become, except to a very limited extent, an asylum for fugitive Chinese criminals.