No. 246.
Mr. Chang Yen
Moon to Mr. Bayard.
Washington, D. C., August 16, 1887. (Received August 17.)
Sir: I have the honor to acknowledge the receipt of the draught of a convention which accompanied your note of April 11 last. In the interview I had the pleasure of having with you on the 13th of April last, I pointed out to you some words in the draught which I considered as not well defined, and I also invited your attention to some articles in the memorandum which I had sent you that you did not agree to, as well as something you subsequently declined to carry out, though you had led me to expect it.
You kindly assured me that the matters would receive your proper consideration and mutual discussion.
This gives evidence of the candid spirit which has always controlled your conduct in your relations with this legation, and of your desire to maintain the cordial friendship existing between the two Governments, for which I express my deep sense of gratitude. The following words of Article II of your draught, “as the laws of the United States may now or hereafter prescribe,” and of Article III, “subject to such regulation by the Government of the United States as may be necessary,” etc., should require some slight modification.
It would seem desirable to so restrict such “laws” and “regulations” as to require them to be consistent with the letter and spirit of existing treaty stipulations, and of such a nature as not to be unduly harsh or vexatious to the Chinese subjects. I beg to inform you that there are two essential articles which ought to be inserted in the present draught. The first of these is about the protection which should be secured to the Chinese laborers now in the United States. The Imperial Government, in order to prevent its subjects from suffering all descriptions of hardship and misery, is quite willing to suspend, by some measures, the immigration of that class of His Majesty’s subjects whose free entrance is stipulated by the treaty of 1868, but in doing so it feels that injustice and equity the same convention which provides for this suspension should contain an article providing specifically for the protection of the life and property of those now lawfully in the United States.
A careful examination has been made of the memorandum accompanying your note, which gives the reason why such an article was omitted from the draught of the convention prepared by you, and that examination makes me fear my memorandum left with you on March 18 last has [Page 376] not been correctly understood. In the latter memorandum I made some suggestions in regard to the form in which I should be glad to see protection extended to the Chinese in the United States, but I at the same time expressed my doubts as to whether they would be found to conform to the usual practice in the United States, and I appeal to the great wisdom of your excellency to suggest a form of stipulation which would reconcile the plain treaty guaranties with your governmental system and practice, so as to prevent future controversies.
I have been much grieved to learn that my memorandum has been understood to be a call on the United States to “revolutionize its institutions.” I did make certain suggestions as to methods to be adopted for the enforcement of treaty guaranties, because similar methods had been called for by American ministers and consuls in China; but what I was desirous of obtaining was the substance and certainty of protection, and the form or methods of protection I was quite willing to leave to you to draught.
It is hardly deemed necessary to go over in detail the citations made in your memorandum of the treaty of 1844. It would be easy to show that the action of the Chinese Government taken at the request of American ministers and consuls has been much beyond the treaty stipulations. Article 19 of the treaty of 1844 and its re enactment in 158 merely place Americans “on a common footing * * * with subjects of China,” and none of the treaties pledge the authorities to measures of reparation beyond the punishment of the violators of the law. But the American representatives have demanded and received much greater reparation, as was specifically shown in the legation note of November 30, 1885. It is to be borne in mind that the treaty of 1844 was entered upon under peculiar circumstances, which no longer exist. Although China has maintained a stable government of law and order for ages, its system was not then well known by practical intercourse to the United States, and it was willing to offer special guaranties, which were incorporated in that treaty. If reciprocal stipulations were not required of the United States, it was because China had confidence in the good faith of its friend, and believed that its system of government and laws was sufficient to secure protection to the Chinese who should come into its territory. The years which have elapsed have shown the practical workings of the treaty guaranties and international obligations in the two countries.
In China, so far as is known, not a single American has lost his life by mob violence; while in every case where injury has been done to the property and rights of American citizens by conspiracy and mobs, punishment has been promptly inflicted upon the guilty, and full pecuniary indemnity has been made by the authorities. This has been so conspicuous that an American official of high rank and large experience, whose business it was by appointment of his own Government to investigate the subject, and whose testimony was quoted in inclosure No. 4 to legation note of November 30, 1885, states that Chinese subjects in their own ports have suffered much more injury from Americans in China than has been inflicted by the latter on the former, and that Chinese officials have been faithful and punctual in carrying out treaty obligations against their own countrymen. On the other hand, the correspondence of this legation shows that in the past three years more than thirty Chinese have been murdered through mobs in the United States, and that so far as known not a single punishment has been inflicted on the murderers; tens of thousands of peaceable and law-observing Chinese have been forcibly and in great fright driven [Page 377] out of their abodes and compelled to abandon their employment in the State of California and in the Western Territories, and the authorities have administered no punishment on the wicked men who have done these unlawful deeds; and losses to the extent of hundreds of thousands of dollars have been suffered by the Chinese in these same localities at various times through the acts of bands of lawless people, and in only one case, and that through the kind intervention of the President and your excellency, has reparation thus far been made, and in no instance have the local authorities shown any disposition to make indemnity.
China is not now asking to be released from the treaty stipulations of 1844 and 1858, but it does feel that when, the United States for a second time asks that the immigration stipulations of the treaty of 1868 be amended and restricted some degree of reciprocity in treaty guaranties as to protection should be enacted and enforced, and it appeals to the experience of Chinese laborers in the United States as its warrant for such a claim. The memorandum attached to your note states that under the treaties the Government of China is expressly bound to grant protection in the form stated; the United States is not.” No, it may be answered, not in the same form, but in equal measure. It can not be believed that you would insist that China is bound to grant a greater measure of protection to Americans in its territory than your Government is willing and able to grant to Chinese in the United States. Neither would you claim that protection to life and property is more certain and ample in China than it is or can be made in the United States. Nor would you admit that the difference in the system of government makes this protection less efficient in the United States, or that this difference would release your Government from its treaty obligations to enforce protection. All that I sought to obtain by submitting my suggestions as to methods of protection was to secure to Chinese laborers in the United States the same measure of protection as is extended to Americans in China. If this is impossible under its system, then it must be inferred that the Government of the United States is impotent to discharge its international obligations, and I am unwilling to be understood as bringing such an insinuation against this great and powerful nation. I understand that its first teacher of international law has laid down the doctrine that “the whole international code is founded on reciprocity” (Wheaton, 6th ed., p. 421). And the Supreme Court of the United States in the very month in which I left my memorandum with you declared that “if the United States can require this (protection of its coinage and currency) of another (nation), that others may require it of them, because international obligations are of necessity reciprocal in their nature. The right, if it exists at all, is given by the law of nations, and what is law for one is, under the same circumstances, law for the other” (The United States vs. Ramon Arjona, March 7, 1887).
As it is apparent the Chinese laborers in the United States have not been afforded protection, while Americans in China have been afforded ample protection, it would seem that the claim which. China now makes is reasonable, that some specific treaty stipulation be enacted and enforced to secure their protection for the future. The United States agreed in Article III of the treaty of 1880 to “exert all its powers to devise measures for their protection.” I took the liberty to refer to a recent decision of the very honorable Supreme Court which points out quite clearly what power the Government possesses in this respect and what are the defects of existing legislation $ and in another decision [Page 378] rendered on the same day it set forth the obligations of the Government. It is believed that an examination of these two decisions will sustain in substance my claim that a new treaty article as to protection ought to be added to your draft. From the decision of the Supreme Court delivered by the Chief-Justice, in the case of Baldwin vs. Franks, United States marshal, March 7, 1887, it appears that there is a law of the Congress which, among other things, provides (Sec. 5508, R. S.) a severe punishment for conspiracy to injure or intimidate citizens in the exercise of their civil rights; and (Sec. 5509) also punishes for any murder, arson, robbery, or other felony or misdemeanor committed as the result or part of said conspiracy. It decides that it is within the power of Congress to enact such legislation, but that because Chinese are not citizens the law in its present form is not applicable to offenses of the character described committed against them. Still it quotes Article III of the treaty of 1880 and makes the following declaration:
That the United States have power under the Constitution to provide for the punishment of those who are guilty of depriving Chinese subjects of any of the rights, privileges, immunities, or exemptions guarantied to them by this treaty we do not doubt.
And in construing the law just cited, it adds:
It may be that by this construction of the statute some are excluded from the protection it affords who are as much entitled to it as those who are included; but that is a defect, if it exists, which can be cured by Congress, but not by the courts.
In the case of the United States vs. Ramon Arjona, March 7, 1887, the Chief-Justice, in delivering the opinion of the court, used the following language:
The National Government is in this way made responsible to foreign nations for all violations by the United States of their international obligations, and because of this Congress is expressly authorized to define and punish offenses against the laws of nations. The law of nations requires every national government to use due diligence to prevent a wrong being done within its own dominions to another nation with which it is at peace, or to the people thereof. * * * A right secured by the law of nations to a nation, or its people, is one the United States, as the representatives of this nation, are bound to protect. Consequently, a law which is necessary and proper to afford this protection is one that Congress may enact, because it is one that is needed to carry into execution a power conferred by the Constitution on the Government of the United States exclusively. There is no authority in the United States to require the passage and enforcement of such a law by the States. Therefore, the United States must have power to pass it and enforce it themselves, or be unable to perform a duty which they may owe to another nation, and which the law of nations has imposed on them as a part of their international obligations.
In view of the foregoing it is believed that you will be willing to draft an article, to be added to the proposed convention, somewhat similar to Article XIX of the treaty of 1844, and Article III of the treaty of 1880, or a stipulation for protection to Chinese laborers secured by laws of Congress to the extent indicated by the Supreme Court as consistent with the system of government.
The second article which I regard as desirable in order to secure the approbation of my august sovereign, is one respecting the indemnities to be granted for the injuries sustained by the Chinese laborers in their persons and property through mob violence. It seems manifest that no punishment will ever be inflicted on the wicked men who did these acts, and that the local authorities will make no compensation for their losses, and the only recourse is to the Government of the United States. I can not understand why the absence of a specific appropriation by Congress should be the reason for not reaching some international method of settling the claims growing out of these unlawful occurrences, especially as I find that this has been the usual practice of the United States with [Page 379] other nations, and claims conventions with them have always preceded a specific appropriation from Congress. While I recognize the magnanimous conduct of Congress respecting the riot at Rock Springs, I recall the fact that my legation has presented a number of cases of mob violence in different localities, representing a large number of claimants, and I fear it would be placing them in an unfavorable position to submit their examination to such a body as Congress, already burdened with its legitimate duties, and before which it would not be proper for the representative of a foreign government to have a hearing.
I again commend to you the method of settlement reached by the United States and China under the claims convention of 1858, and, if that is found impracticable, I ask that the usual practice of the United States with foreign governments may be in this instance followed.
In conclusion, I venture to express my disappointment at the decision reached by you on the subject of the extradition of criminals, as from my previous interview I had been assured that an agreement on that subject would have been easily reached. I do not see why the “opposite system of criminal procedure in the respective countries” should render an extradition convention impracticable, especially since I am informed that the Government of the United States has very recently negotiated such treaties with Japan and Russia, the neighbors of China, the criminal procedure of each of which nations is understood to be very different from the system of the United States. I therefore commend to your excellency again the expediency of making a separate treaty stipulation on the subject, with a view of carrying out your promise.
Accept, sir, etc.,