Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 5, 1892
Mr. Denby to Mr. Foster.
Peking, August 17, 1892. (Received September 28.)
Sir: I have the honor to inclose a translation of a communication that I recently received from the foreign office on the subject of Chinese exclusion legislation of the United States, together with a copy of my answer thereto.
[Page 127]Under Article iv of the treaty of 1880 (Treaties 1776–1887, p. 183) it is competent for the foreign office to take up this discussion with the minister of the United States at Peking.
It will be seen that the yamên severely criticises the legislation in question and requests that the President take steps to secure its repeal. A sufficient abstract of this communication will be found in my answer thereto.
On account of an intimation in the Department’s dispatch, No. 553, of September 21, 1800, I have hitherto forbore to enter into any argument with the foreign office on this subject. In the present conjuncture of affairs I concluded that a temperate presentation to the yamên of the scope, effect, and legality of the Chinese exclusion legislation, and a reasonable argument, tending to show that, by the treaty of 1880, China had given her consent to the enactment thereof, would produce a good effect. Such discussion, in my opinion, will tend to remove from the minds of the members of the yamên misconceptions as to the character of this legislation, and, if retaliatory measures were being considered—of which I have no information—it might cause a halt in the adoption thereof.
The reading of my answer to the grave charges made by the yamên will show that I have confined myself chiefly to making a legal argument.
Owing to the intimation already mentioned, contained in the Department’s dispatch cited, I did not feel authorized to enter upon a discussion of the broad grounds upon which such legislation might be defended, nor did I feel authorized to enter into an effort to show that such legislation did not contravene Article II of the treaty whereby certain rights and immunities were guarantied to Chinese laborers who were in the United States at the date of the treaty.
As I have never received any instructions from the Department on this subject, it did not appear to me that it would be prudent to discuss the general relations of the two countries, or to suggest remedies that might remove the unfortunate friction now existing. Your own wisdom and experience will suggest a general treatment of the questions involved, should such a policy be desired by you.
I have, etc.,
The tsung-li yamên to Mr. Denby.
Peking, August 5, 1892.
Upon the 4th of July last the prince and ministers had the honor to receive a communication from the minister of the United States wherein he stated that he had received a copy of the new exclusion act against Chinese laborers, and inclosing in English—
- First. A circular of the Secretary of the Treasury, informing collectors of customs of the passage and approval of the above-mentioned act.
- Second. A copy of the above-mentioned act, approved May 5, 1892.
- Third. A copy of the act of Congress approved May 6, 1882.
- Fourth. A copy of the act of Congress approved July 5, 1884.
- Fifth. A copy of the act of Congress approved October 1, 1888.
The minister of the United States stated that these acts covered all the legislation of Congress on Chinese exclusion.
The prince and ministers would observe that it appears that the exclusion of Chinese [Page 128] laborers for a limited period bad its origin in tbe 6th year of Kuang Hsü, tenth moon, 15th day, November 17, 1880, by a supplementary treaty concluded between China and the United States.
Afterwards, in 1882, the first exclusion act was adopted, which was very severe in its terms. In 1884 this act was revised and amended and it may be said that nothing was left to make it as strong as possible, still it was not clearly expressed as an abrogation of the treaty.
The law of October 1, 1888, was a complete discarding of the friendly relations that have existed between China and the United States for several tens of years.
The yamen and the Chinese minister to the United States have repeatedly addressed communications discussing the question upon the basis of the treaties, but the minister of the United States and the honorable Secretary of State has never sent anything of a decisive nature in reply.
The new act approved May 5 contains nine articles and continues in force, for a period of ten years, the law of 1884 on expiring of same (?). The prince and ministers, having duly perused the said act, feel it incumbent to explain to the minister of the United States their views regarding same:
Article ii of the new act reads as follows:
“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.”
The yamên does not know whether the term Chinese citizen or subject refers entirely to the laboring classes resident in the United States, or includes the exempt classes, as teachers, students, merchants, or those traveling from curiosity. By the second article of the supplemental treaty between the United States and China “Chinese subjects, whether proceeding to the United States as teachers, students, 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 citizens and subjects of the most favored nation.”
Section 3 of the act of 1884 is clear and explicit. It reads as follows: “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.” There is still further no necessity of discussing the question of Chinese merchants and others who are exempt and not included in the exclusion act.
By the act of May 5, 1892, the language used is Chinese citizen or subject, and no distinction of class is made. Again it is stated “under any of said laws to be not lawfully entitled to be or remain in the United States.” Does the expression “under any of said laws” refer to the treaties or laws concluded by the two countries?
Again, by the third section of the new act, it reads:
“That any Chinese person, or persons of Chinese descent, arrested under the provision 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.”
The yamên would observe that it was originally under the provisions of the Burlingame treaty of 1868 that Chinese laborers migrated to the United States. If affirmative proof is asked for this treaty should be taken, as it is certainly real affirmative proof.
Sections ii and iii of the supplemental treaty of 1880 may also be cited as including affirmative proof.
The United States Government at present disregards the treaties, and is moving with force to arrest Chinese subjects. Such action the prince and ministers consider as appearing to be greatly at variance with the Constitution of the United States.
Section iv refers to imprisonment at hard labor. The prince and ministers would inquire whether the laboring classes of other countries, who go to the United States, are treated in such a harsh and tyrannical manner. Can it be said that they enjoyed the same rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation?
Section v reads: “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 [Page 129] has been denied, no bail shall be allowed, and such application shall be heard and determined promptly without unnecessary delay.”
It appears that there is a rule or law in the United States which admits of the citizens and subjects of foreign powers, resident in the United States, when an action at law has been instituted against them before the courts to apply and obtain bail pending the trial of the case.
If the granting of bail is to be denied Chinamen awaiting trial, then where will their dwelling places be? Besides it is certainly the case that judges or justices cannot take up (every) case on their arrival in court. In a word the true and honest procedure would be to still conform to the rule to grant bail pending trial.
Section vi of the new law reads as follows:
“And 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 collectors of internal revenue of their respective districts, within one year after the passage 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 thereof, 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 United States 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 such 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 such 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.”
The yamen would observe that Chinese laborers, resident in the United States, are scattered about in cities and towns where China is not represented by consular officers. Among this class of laborers there are some who do not speak or read English, and if they must procure certificates within the limited period of one year, and, on a failure to do so they will be arrested and brought before the courts for punishment, it goes without saying that they will become involved into a great deal of trouble, and it is to be feared the local authorities will be excessively annoyed and bothered and in comparison with the articles of the supplemental treaty of 1880 (the new act) contains much more matter.
As to sections 7, 8, and 9 of the new act, these refer to the rules and regulations the Secretary of the Treasury of the United States shall make, and on examination with the rules issued by the Secretary of the Treasury, dated December 6, 1884, it appears are greatly at variance therewith.
In the matter of the above new act, which contains nine sections, the yamên have examined the treaties as well as the cases that have transpired, and the prince and ministers would request the United States minister to memorialize the President of the United States to instruct Congress to reconsider the recent exclusion act, so that it may be in due observance of international law, and thus show a feeling of regard for the relations of the two countries.
It appears that after the act of July, 1884, was passed by Congress the President of the United States at that time sent to Congress, on the 1st of December of that year, a message wherein he called the attention to the supplemental treaty between the United States and China, and stated that in the action taken with regard to the exclusion of Chinese for a certain period the original intent and purpose of the treaty should be considered, and that it seemed necessary to again deliberate upon the question in a satisfactory and proper way, the previous bill being a violation of treaty, the terms of which should be carefully amended.
The President of the United States has authority, when Congress decides and enacts a law in violation of treaty rights, to (return the same) and request a reconsideration of it. The act of May 5, 1892, containing nine sections, is in many respects a violation of the treaties and is merely a continuation of the old exclusion acts of 1884 and 1882, and the evil reached the members of the Chinese diplomatic service, for in 1886 the Chinese minister accredited to the United States was not allowed to land in San Francisco until he had showed his credentials, which was demanded by the (commissioner) collector of customs.
[Page 130]These acts have injured the reputation of the Government of the United States, as well as the friendly relations that have existed between the two countries, and the yamen expresses the hope that the Government of the United States will, in an equitable and satisfactory manner, rectify the discrepancy shown against China in the unfair treatment manifested toward the Chinese subjects.
The prince and ministers beg that the minister of the United States will peruse this communication and favor them with a reply.
A necessary communication addressed to his excellency Charles Denby.
Mr. Denby to the tsung-li yamên.
Peking, August 11, 1892.
Your Highness and Your Excellencies: I have the honor to acknowledge the receipt of your communication of the 5th instant, relative to the Chinese exclusion acts of the United States. You therein desire me to bring your criticisms and objections to the attention of the President of the United States, in order that a remedy may be provided for the unjust manner, as you allege, in which Chinese subjects have been treated.
I will, with great pleasure, send to the Department of State a translation of your communication. After having received instructions I will communicate with your highness and your excellencies further.
I beg to remark, however, that article 1 of the treaty of 1880 contains the express consent of China that the coming of Chinese laborers to the United States “or their residence therein,” whenever, in the opinion of the Government of the United States, such coming or residence “affects or threatens to affect the interests” of the United States, or to endanger the good order thereof, or any part thereof, may—both coming and residence—be regulated and suspended.
So far as the legislation of Congress applies to Chinese laborers who have entered the United States since the act of May 6, 1882, was onacted, there can be no question that such legislation is in accordance with the provisions of the treaty. As to whether laborers who were lawfully in the United States prior to May 6, 1882, have been deprived of any right guaranteed by the second article of the treaty may not at all be a practical question. It would be necessary to ascertain how many such laborers there are, if any, where they reside, and in what manner they are, or claim to be, injured. After this lapse of time, and with the known inclination of such persons to return to China, my opinion is tliat few of this class will be found in the United States.
I propose now to show that the recent act of Congress is perfectly in accord with the Constitution of the United States. The following is a brief abstract of this law:
The first section simply continues in force existing laws for ten years.
It is to be noticed that this is not prohibition, but regulation, limiting and suspending, and therefore in accord with the treaty.
Second section. This section provides for the removal to China or, in certain contingencies, to other countries, of Chinese laborers who are found to be unlawfully in the United States. No argument is necessary to justify this section. Removal is both a mild and necessary form of punishment.
Third section. This section requires affirmative proof of the right to remain in the United States to be made by an accused person.
Usually in legal proceedings neither party is required to prove a negative. It would or might be impossible for the Government to prove the time when and the place where an alien entered its territory, but it is exceedingly easy for the accused to prove the facts as they are in his own knowledge. Generally, a person claiming that he has a license to do a given act must produce his license.
Fourth section. This section fixes a penalty of one year’s imprisonment for unlawfully entering the United States.
In my opinion, this clause is not retroactive, but applies to those persons only who have entered or shall unlawfully enter the United States after May 5, 1892.
Fifth section. This section denies the privilege of giving bail to persons who have sued out a writ of habeas corpus.
While under the Constitution (clause 2, sec. 21, 2d Ed. Rev. Stat., 1878) this writ must issue, except in certain cases there is no clause in the Constitution providing in what cases bail is admissible. The power of determining what cases shall be bailable, and what not, is left to Congress. In this case Congress has chosen to deny bail. It was influenced, no doubt, by the fact that in many cases bail bonds proved to be worthless.
[Page 131]Sixth section. This section requires all Chinese laborers to take out a certificate of residence. Easy means are provided for the issuing of such certificates. If sickness or other good cause prohibited the securing of a certificate, that fact may be proved and time given to secure one; so if a certificate has been lost.
There is no peculiar hardship in this system. It is something like the passport and travel-certificate system prevailing in China. It will prove a benefit instead of an injury to the laborer. The production of a certificate at any time will relieve him from all trouble.
Seventh, eighth, and ninth sections. These sections are not material to this discussion. They provide for rules to be made to put the act in operation, for penalties for forgery, and compensation to officials.
Your highness and your excellencies say that you do “not know whether the term Chinese citizen or subject refers entirely to the laboring classes resident in the United States, or includes the exempt classes” etc.
The act of May 5, 1892, continues in force the prior acts, of which copies were sent to you.
The act of May 6, 1882, is the first of these acts. Its language is “the coming of Chinese laborers to the United States” is suspended.
The act of 1881 amends the act of 1882, and adopts the same language.
The act of October 1, 1888, enacts that “it shall be unlawful for any Chinese laborer” to return to the United States after having departed therefrom.
All these laws, therefore, apply to Chinese laborers, and simply provide as to other classes a mode of identification.
Your highness and your excellencies further observe that it was originally under the provisions of the Burlingame treaty of 1868 that Chinese laborers migrated to the United States, and that this treaty constitutes affirmative proof, as required by the third section of the act of May 5, 1892.
The treaty has no bearing on the proof of the time when a laborer went to the United States. This date must be proved, and if a Chinese laborer was a resident of the United States prior to May 6, 1882, he will not be affected by any of this legislation, provided he takes out a certificate of residence.
Your highness and your excellencies state that the penalty of imprisonment affixed by section 4 is excessive, and that laborers of other countries are not liable to such punishment.
It was for Congress to determine what the punishment for an infraction of this law should be. It has named the lowest penalty that is usually attached to crimes. That laborers of other countries are not liable to such punishment may be true, but the United States has no treaty similar to the treaty of 1880 with any other power.
I have already discussed the effect of section 6 of the new law, which relates to the refusal of bail on application for a writ of habeas corpus. I do not know where persons who had sued out a writ of habeas corpus would stay before trial. I suppose in practice, if they could not remain aboard the ship which transported them to the United States, some other place would be provided by the authorities.
In what I have written I have treated the questions involved as questions of law. It does not come within the purview of the diplomatic officer to discuss the intrinsic merits or demerits of the laws of his country. I beg to remark, however, that if the treaty of 1888 had been approved by the Government of China the questions now mooted would not have arisen, China at that time seemed to fear that if that treaty were approved similar treaties would have to be conceded to other powers. She preferred that her people should be prevented from going to the United States by an act of Congress which she might designate as antitreaty legislation to their being excluded from other parts of the world by her own consent. The danger of this policy was pointed out by me at the time, and events have justified my remonstrance.
I avail, etc.,