Mr. Blaine to Mr. Pung.
Washington, June 14, 1890.
Sir: I have had the honor to receive your note of the 7th instant, in which, in reply to my communication of the 27th ultimo, you recur to the subject of the recent ordinance of the city of San Francisco touching the removal of Chinese there resident to a certain quarter defined in the ordinance. In my note, which was in reply to your representations of the 24th ultimo, with which you brought the ordinance to my attention, I pointed out that the Chinese subjects who might be affected had an ample and immediate remedy in the courts; and for that reason I stated that there did not seem to be occasion, in the present instance to [Page 224] invoke the stipulation in the immigration treaty of 1880 by which the United States agreed, in respect to the Chinese in this country, to “exert all its power to devise measures for their protection and to secure to them the same rights” as other foreign residents enjoy.
In reply to my communication, you state that you were already aware of the existence of the judicial remedy to which I adverted, and that it was not from ignorance of the constitutional provisions cited by me that you preferred the request contained in your note of the 24th ultimo, but because your Government entertains the belief that the Government of the United States, in proffering and confirming article 3 of the treaty of 1880, assumed for itself a special and additional obligation towards Chinese subjects within its territory—an obligation which it had not before undertaken.
It is not my purpose to enter into a general discussion of the meaning and scope of the article in question, since, for the reasons I have heretofore stated, I do not think that it is involved in the present case; but, in order that my position may be fully understood, I deem it my duty to reply to some of your observations. It has not been my intention to deny, nor do I think that an attentive perusal of my note will disclose a denial, that by article 3 of the treaty of 1880 the Government of the United States is bound to devise such measures as may be found necessary to secure to Chinese subjects in this country “the same rights, privileges, immunities, and exemptions may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty.” Such, indeed, is the simple language of the article. But I regret to find that we are at variance in our views both as to the scope, the occasion, and the character of the duty imposed upon this Government.
The burden of your argument appears to be that by article 3 of the treaty of 1880 the United States is bound to render protection to the Chinese, whenever their rights are assailed, through the executive department of the Government. “If,” you say, “in exchange for the surrender of the right of immigration, a stipulation was to be given that the courts of the United States were to be thrown open-to Chinese subjects, that would have been held to be a superfluous guaranty, for they already possessed that right under the most-favored-nation clause of article 4 of the treaty of 1868. There would seem to be no meaning in or occasion for simply reinserting that clause.” And you follow these statements with the suggestion that executive action was mainly, if not alone, contemplated.
You will permit me to say, in all candor, that I am wholly unable to accept this conclusion, since I find nothing to sustain it. The complete provisions of the article are as follows:
If Chinese laborers, or Chinese of any other class, now either permanently or temporarily residing in the territory of the United States, meet with ill treatment at the hands of any other persons, the Government of the United States will exert all its power to devise measures for their protection and to secure to them the same rights, 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.
This language seems to me to be capable of but one construction, and that is, that, where existing measures or remedies were found to be ineffective for the purposes specified, the Government of the United States would exert its power to devise others to supply the defect. This construction appears to be reasonable and fair and to give to the article a very substantial meaning. What more could the Government of China have asked or desired? If existing remedies, whether judicial or otherwise, [Page 225] should be found to be sufficient, what motive could there be for requiring measures of a different character from those already available? Even if an existing remedy were found to be inefficient, it would not follow that the Government of the United States is bound to devise a remedy of a totally different character, such as a transference of a subject-matter from the judicial to the executive department of the Government, assuming that in a particular case it possessed the power to do so. The duty imposed by the treaty would be fully discharged in devising a measure to render the existing remedy effective.
By the Constitution of the United States, with which I am happy to observe your statement that you are not unfamiliar, the powers of government are distributed among three departments—the executive, the legislative, and the judicial. This distribution of powers is fundamental and can not be disturbed by any of those departments, neither of which is authorized to trench upon the domain of the others. It could not have been the purpose of the intelligent negotiators of the treaty of 1880 to attempt to disregard that fact, nor do I suppose that your Government contemplated such an attempt or even desired it to be made. On the contrary, it was expressly left to the Government of the United States to devise such measures as might be within its power. This view is not affected by the fact, to which you advert, that the American minister in China has from time to time invoked the direct intervention of the Imperial Government for the protection of citizens of the United States in that country. In so doing the American minister has merely followed the course marked out in the treaties in accordance with the system of government prevailing in China. To state, therefore, that a certain measure has been adopted in China is no evidence that it was supposed that the same course of action would be pursued in the United States, where the organization of government is different.
I have observed your statement that you have made careful examination of the volume of “Treaties and Conventions concluded between the United States and other Powers,” published in 1889, and that you have not been able to find any such language as that used in the treaty of 1880, or any equivalent to it, in any of the treaties with other nations. I may say that I also am unaware of the existence of a similar form of words in any of the rest of our treaties. I find, however, in article 13 of the treaty of 1846 with New Granada, which is now a subsisting convention between the United States and the Republic of Colombia, a stipulation that the contracting parties will give their “special protection” to the “persons and property of the citizens of each other, leaving open and free to them the tribunals of justice for their judicial recourse, on the same terms which are usual and customary with the natives or citizens of the country.” My object in referring to this stipulation is to call attention to the fact that the contracting parties, in engaging to give “special protection” to the persons and property of the citizens of each other, thought fit to specify, as one of the most, if not the most, valuable of rights, that the tribunals of justice should be “open and free to them” for their judicial recourse.
In my note of the 27th ultimo, I had the honor to inform you that I had submitted your complaint to the Attorney-General. I am now in receipt of his reply, which bears date of the 9th instant. He expresses the opinion that the ordinance which you submit is within the prohibition of the fourteenth amendment to the Constitution of the United States, and also in violation of the treaty stipulations of the United States with China, and that for those reasons it is void. He also advises [Page 226] that the proper mode of determining in an authoritative and effectual way that the order has no validity or force is by application to the courts of the United States in the northern district of California, where full redress can be had.
I am unable to share your apprehensions that it would be difficult to obtain redress in that way. The interests affected by the ordinance are, as you inform me by your note of the 24th ultimo, very considerable, and it is not thought that they will find any obstacle in asserting themselves before the judicial tribunals. In more than one case the courts of the United States in California have maintained the supremacy of the treaties with China against conflicting provisions, not only of the statutes, but also of the constitution of that State. As examples, I may refer to the cases of In re Ah Fong, third Sawyer’s Reports, page 144, and Parrott’s Chinese case in the sixth volume of the same series of reports, page 349.
Accept, sir, etc.,