The drastic provisions of the act of Congress of May last are reviewed by
the foreign office in this note to Minister Denby, and accompanied with
the request that such provisions may be explained and construed,
especially in the many particulars referred to therein.
It will be observed that Minister Denby is also requested to lay the
matters mentioned in the note before the President of the United States,
with a prayer, that his excellency will cause the late act to be
reconsidered
[Page 156]
by the Congress
of the United States, to the end that due regard may be paid to the law
of nations and to the friendly intercourse between China and the United
States.
I most respectfully ask your careful consideration of the communication
inclosed, and request that an answer may be made to all the inquiries
presented by the foreign office. And I hope I maybe pardoned for asking
for a response to my note of recent date, as well as to the former notes
of myself and my predecessor.
[Inclosure.]
Translation of reply of foreign office in Peking to Mr. Denby, the United States minister.
Sir: We have the honor to acknowledge the
receipt of your note, dated July 4, 1892, informing us of your
having received from your Government copy of anew act prohibiting
the coming of Chinese laborers into the United States, and
transmitting for our information a Chinese translation of the
circular letter issued by the Secretary of the Treasury to the
collectors of customs in the United States, accompanied bv the
original in English, which contains (1) the new act of May 5, 1892;
(2) the act of May 6, 1882; (3) the amendatory act of July 5, 1884,
and (4) theact of October 1, 1888.
Legislative measures restricting the immigration of Chinese laborers
into the United States received their first sanction from the treaty
concluded between China and the United States on the 17th of
November, 1880. Subsequently an act was passed by your Congress in
1882 restricting and limiting the immigration of Chinese laborers,
the provisions of which are very strict and oppressive. In 1884 your
legislators passed an act amendatory to the act of 1882, exercising
their power and using their discretion to the fullest extent; still
they did not go so far as to openly violate treaty stipulations. But
at last, on October 1, 1888, an act was passed regardless of the
firm and cordial friendship between the two countries which had
existed for decades of years.
We and our ministers at Washington have repeatedly sent in our
protests in accordance with the treaty stipulations, but have
received no reply from you or the State Department. Furthermore, a
new act, consisting of nine sections, was passed and approved May 5
last, continuing the provisions of the amendatory act of 1884 for a
period of ten years from its passage. This being the case, we have
no alternative but to call your attention to the following
objections: Section 2 of the new act says: “That any Chinese person
or person of Chinese descent, when convicted and adjudged under any
of said laws to be not lawfully entitled to be or remain in the
United States, shall be removed from the United States to China,
unless he or they shall make it appear to the justice, judge, or
commissioner before whom he or they are tried that he or they are
subjects or citizens of some other country, in which case he or they
shall be removed from the United States to such country: Provided, That in any case where such other
country of which such Chinese person shall claim to be a citizen or
subject shall demand any tax as a condition of the removal of such
person to that country, he or she shall be removed to China.” Does
the clause “Chinese person or person of Chinese descent” mentioned
in this section apply only to Chinese laborers residing in the
United States, or to the exempt class also, such as teachers,
students, merchants, or persons visiting the United States from
curiosity? We should be glad to have some explanation regarding
it.
Article 2 of the treaty of November 17, 1880, provides that “Chinese
subjects, whether proceeding to the United States as teachers,
students, or merchants, or from curiosity, together with their body
and household servants, and Chinese laborers who are now in the
United States, shall be allowed to go and come of their own free
will and accord, and shall be accorded all the rights, privileges,
immunities, and exemptions which are accorded to the citizens and
subjects of the most favored nation.”
Section 3 of the amendatory act of 1884 provides “that the two
foregoing sections shall not apply to Chinese laborers who were in
the United States on the 17th day of November, 1880, or who shall
have come into the same before the expiration of ninety days next
after the passage of the act to which this act is amendatory.” Thus
it is clear that the first two sections of the said act can, under
no circumstances, be applicable to Chinese merchants and others who
belong to the exempt class. Now, the
[Page 157]
new act of May 5 last refers generally to
Chinese persons without classifying them. Does the clause “to be or
remain in the United States” mean that it is a law made and agreed
to by both the nations, by which a Chinese person is to be adjudged
lawfully or unlawfully to be or remain in the United States?
Section 3 of the new act says: “That any Chinese person or person of
Chinese descent arrested under the provisions of this act or the
acts hereby extended shall be adjudged to be unlawfully within the
United States unless such person shall establish by affirmative
proof, to the satisfaction of such justice, judge, or commissioner,
his lawful right to remain in the United States.”
We hold that by the Burlingame treaty of 1868 the right of Chinese
laborers to emigrate to the United States is secured and provided
for; also by articles 2 and 3 of the treaty of 1880. What more
affirmative proof can your Government ask for? Now, this arbitrary
assumption of power by your Government is causing the arrest and
punishment of Chinese subjects without regard to the binding force
of treaty stipulations appears to be in direct conflict with the
Constitution of the United States.
Section 4 of the same act provides for the punishment of Chinese
persons when convicted of being unlawfully in the United States with
imprisonment at hard labor. Let us ask whether the subjects of other
nations who are laborers in the United States receive the same
treatment. How can you reconcile your Government’s action in the
matter with that clause in the treaty which provides that to Chinese
subjects “shall be accorded the rights, privileges, immunities, and
exemptions which are accorded to the citizens and subjects of the
most favored nation.”
Section 5 of the same act has the following provision: “That after
the passage of this act, on an application to any judge or court of
the United States, in the first instance, for a writ of habeas
corpus by a Chinese person seeking to land in the United States, to
whom that privilege has been denied, no bail shall be allowed, and
such application shall be heard and determined promptly without
unnecessary delay.” According to the practice of your courts
defendants in bailable cases, though they are subjects of other
nations, are entitled to the privilege of being released on bail. If
Chinese subjects are refused bail where shall they be lodged? In
ordinary proceedings it is impossible for any judge to take up and
hear a case as soon as it is brought before him and determine it
promptly. It is therefore hoped that the privilege of being allowed
to give bail hitherto enjoyed by the Chinese subjects may be
continued.
Section 6 of the said act provides: “That it shall be the duty of all
Chinese laborers within the limits of the United States, at the time
of the passage of this act, and who are entitled to remain in the
United States, to apply to the collector of internal revenue of
their respective districts, within one year after the pjassage of
this act, for a certificate of residence, and any Chinese laborer
within the limits of the United States who shall neglect, fail, or
refuse to comply with the provisions of this act, or who, after one
year from the passage hereof, shall be found within the jurisdiction
of the United States without such certificate of residence, shall be
deemed and adjudged to be unlawfully within the United States, and
may be arrested by any customs official, collector of internal
revenue or his deputies, United States marshal or his deputies, and
taken before a United States judge, whose duty it shall be to order
that he be deported from the United States as hereinbefore provided,
unless he shall establish clearly to the satisfaction of said judge
that, by reason of accident, sickness, or other unavoidable cause,
he has been unable to procure his certificate, and to the
satisfaction of the court, and by at least one credible white
witness, that he was a resident of the United States at the time of
the passage of this act; and, if upon the hearing it shall appear
that he is so entitled to a certificate, it shall be granted upon
his paying the cost. Should it appear that said Chinaman had
procured a certificate which has been lost or destroyed, he shall be
detained and judgment suspended a reasonable time to enable him to
procure a duplicate from the officer granting it, and in such cases
the cost of said arrest and trial shall be in the discretion of the
court. And any Chinese person other than a Chinese laborer having a
right to be and remain in the United States, desiring such
certificate as evidence of such right, may apply for and receive the
same without charge.”
On inquiry we find that Chinese laborers are scattered over the
United States. They are to be found in cities where no Chinese
consulate has been established to look after their interests. Most
of them can not understand and speak the English language. If they
are compelled to apply for a certificate of residence within a year
from the passage of the act and are liable to arrest and punishment
in case of their failure to comply with the law, Chinese residents
in the United States will certainly suffer uncalled-for misery and
hardships; but the local authorities will likewise find the work of
carrying out the law quite burdensome. The above requirement is in
contravention of the spirit of the treaty of 1888.
Sections 7, 8, and 9 define the duties of the officials of the
Treasury Department, who are charged with the execution of the act,
which seem to differ greatly from the requirements of the amendatory
act of July 5, 1884.
[Page 158]
Having carefully studied the provisions of the treaties existing
between the two countries and the understanding reached in the
determinationof past cases, and compared the same with the nine
sections of the new act, we deem it our duty to request you to lay
the matter before the President of the United States for his
consideration, with a prayer that his excellency will cause the new
act to be reconsidered by the Congress of the United States to the
end that due regard may be paid to the law of nations and to the
friendly intercourse between the two countries.
Shortly after the passage of the act of July 5, 1884, the President
of the United States, in his message to Congress of December 1,
1884, observed that it was necessary for that august body to expound
the exact sense and meaning of the words employed in the treaty in
relation to the restriction of the Chinese immigration to the United
States, and that, as he considered the amendatory act passed by
Congress was in contravention of treaty stipulations, be considered
it proper to ask Congress to carefully review it and modify some of
its provisions. Thus it is evident that, if Congress passes a bill
in violation of any treaty stipulation, the President of the United
States has the power to ask that body to reconsider its action. Now,
most of the nine sections of the new act which continue in force the
laws of 1882 and 1884 are undoubtedly in conflict with treaty
stipulations and affect Chinese diplomatic officers also. It will be
remembered in the year 1886 an unpleasant incident took place, which
was occasioned by the collector of customs at San Francisco
demanding the production by the minister of his credentials upon his
arrival before he was permitted to land. Such action reflects on the
honor of your nation and is detrimental to the friendly relations
between the two countries. We sincerely hope that your Government,
guided by a sense of justice and equity, will discontinue its policy
of discrimination against China and its ill treatment of Chinese
subjects.
We await the favor of a reply.
Accept, sir, etc.,
