"1. As to naturalization, the only treaty provision in the matter is the last clause of article 6 of the Burlingame treaty, signed July 28, 1868, a copy of which, with the passage referred to marked, is herewith transmitted. The pertinent statutory provision is found in section 14 of the existing Chinese immigration act of May 6, 1882, as follows: "Sec. 14. That hereafter no State court or court of the United States shall admit Chinese to citizenship; and all laws in conflict with this act are hereby repealed.'

"2. As to return, the same act of May 6, 1882, and the later act of July 5, 1884, amendatory thereof, prescribe the conditions under which Chinese may leave the United States and return hither. Copies of these two acts are also transmitted.

"Your third question reads as follows:

"Can a father, a respectable resident of this city [New Orleans], of Chinese birth, have his young son brought to him from China?'

"This would appear to depend on whether the father belongs to the class exempted by the treaty. If the father be a laborer, it would probably be held that his privilege of residence and power to go and come is personal only to himself, and cannot extend to members of his household. But this Department cannot decide such questions. The execu tion of the provisions of the acts of Congress mentioned is intrusted to the Secretary of the Treasury, to whom the inquiry may be addressed to enable an opinion to be given on them of the particular case, and not as a hypothetical inquiry."

Mr. Bayard, Sec. of State, to Miss Saunders, Mar. 23, 1886. MSS. Dom. Let.
As to naturalization, see infra, §§ 171, ff.

"The prohibition of Article II of the treaty of 1880 not only covers the importation, transportation, purchase, or sale of opium by American citizens in China, but extends also to vessels owned by such citizens, whether employed by themselves or by others in the opium trade. Logically, a building owned by an American citizen and used by another person for the storage of opium, would come within the extended prohibition. But there may be room to question whether, as the treaty stands, the prohibition as to an American owned vessel employed by 'other persons' in the opium trade is not strictly limited to cases where such other persons' are agents or factors of the American owner, or where the owner is privy to the unlawful use to which his property is to be put. The intent, however, is clear that no American citizen in China shall engage in or knowingly aid others to carry on the opium traffic.

"The provision of the treaty is not self-executing. The enforcement of the prohibition, as to American citizens in China, is expressly dependent upon 'appropriate legislation' on the part of the United States. It is only such legislation that consuls of the United States in China can enforce judicially. In the absence of such legislation, it is, to say

the least, doubtful whether a consul could lawfully interfere to prevent an American citizen from doing an act not in itself contrary to international law or the domestic law of China.

"If, however, the contemplated employment of the American owned premises by a British subject be opposed by China, and the lease sought to be prevented by the authorities of the latter, the consul would be justified in withholding his approval from the sub-lease.

"Or, to state the case briefly in another form :

"While the Department regards it as perhaps somewhat doubtful whether the treaty of 1880 precludes such a sub-lease as the one proposed, and finds itself rather unwilling to differ from your conclusions on this point, since, being on the spot, you can best judge of the true condition of affairs, yet there certainly appears little room to doubt that if the treaty as to opium is dependent on appropriate legislation,' it cannot become effective in the absence of such legislative action; and no legislation has yet been adopted to execute the opium clause of the treaty of 1880, so far as this Government is concerned."

เ

Mr. Bayard, Sec. of State, to Mr. Denby, May 14, 1886. MSS. Inst., China.

See further as to treaty with China, supra, § 67; as to consular courts in China, supra, § 125.

Papers showing the importance of a commercial treaty with China, and a naval force to be there placed, will be found in House Doc. 40, 26th Cong., 1st sess. An elaborate report made by the Secretary of State on February 25, 1840, on United States trade with China, will be found in House Ex. Doc. 119. 26th Cong., 1st sess. For claims against China see House Ex. Doc. 12, 40th Cong., 3d sess. The report of a special committee (Mr. Sargent, chairman), February 27, 1877, on Chinese immigration, is given in Senate Report 689, 44th Cong., 2d sess.

For construction of treaties of 1844, 1858, 1868, and 1880, in reference to the rights of Chinese in the United States, see Mr. Bayard's note to Cheng Tsao Ju, February 15, 1886, House Ex. Doc. 102, 49th Cong., 1st sess., supra, § 67.

The act of 1848 (9 Stat., 276, act 1860, substituted Rev. Stat., § 4083), to carry into effect certain provisions of the treaties between the United States and China, not having designated any particular place for the confinement of prisoners arrested for crime, the same is left for regula tion under section 5, or in the absence of regulation, to the discretion. of the acting officer.

5 Op., 67, Toucey, 1849. See supra, § 125.

By the treaty with China of 1844, Articles XXI and XXV, all citizens of the United States in China enjoy complete rights of extraterritoriality, and are amenable to no authority but that of the United States.

7 Op., 495, Cushing, 1855.

The judicial authority of the United States commissioner to China is restricted to the five ports mentioned in the treaty with that nation of 1858.

9 Op., 294, Black, 1859.

Questions concerning intervention in China are discussed supra, § 67.

"On the 3d of March, 1843, an act was approved placing forty thousand dollars at the disposal of the President of the United States to enable him to establish the future commercial relations between the United States and the Chinese Empire on terms of national equal reci procity,' and on the 8th of the following May, Caleb Cushing was commissioned as envoy extraordinary, minister plenipotentiary, and commissioner to China.

"He says of his mission there: I entered China with the formed general conviction that the United States ought not to concede to any foreign state under any circumstances jurisdiction over the life and liberty of a citizen of the United States, unless that foreign state be of our own family of nations-in a word, a Christian state. China I found that Great Britain had stipulated for the absolute exemption of her subjects from the jurisdiction of the Empire.

In

I deemed it, therefore, my duty to assert a similar exemption on behalf of citizens of the United States.' A treaty on this basis was concluded on the 3d day of July, 1844, and was communicated to the Senate by the President on the 22d of January, 1845; and on the 28th of January the injunction of secrecy was removed from the correspondence submitted with the treaty.

"On the exchange of the ratifications of this treaty, it became necessary that laws should be enacted conferring judicial powers on ministers and consuls, in order that citizens of the United States in China might enjoy the protection and rights conferred by the treaty. Congress proceeded in this matter with such good judgment that all conflicting views were harmonized in committee, and the act was passed without discussion, and was approved on the 11th of August, 1848.

"Under this act it was originally held that vice-consuls could not be empowered to exercise judicial functions; but this decision was reversed by Attorney-General Cushing.

"The act of 1848 empowered the commissioner, with the advice of the several consuls, to make regulations for carrying the provisions of the treaty into effect.

"In November, 1854, Robert McLane, as commissioner, made several 'regulations,' which were duly transmitted to Congress by the President on the 15th of July, 1856.

"On the 12th of December, 1856, regulations made by Peter Parker, a successor of McLane, were also transmitted to Congress.

"William B. Reed was appointed commissioner on the 18th of April, 1857. His instructions, which were communicated to the Senate by the President on the 20th of April, 1858, directed him, by peaceful cooperation, to aid in the accomplishment of the objects which the allies were seeking to accomplish by treaty stipulations.'

"On the 10th of December, 1857, the President transmitted to Congress further regulations made by Parker on the 4th of March, 1857, for such revision as Congress might deem expedient. The Senate committee reported that these regulations needed no revision, and the Senate passed a resolution to that effect.

"On the 20th of December, 1858, the President transmitted to the Senate the correspondence of Commissioners McLane and Parker, but withheld the instructions of the Department to them. This document contains 1424 pages, and exhibits in detail the questions which had arisen with China during the period it covers.

"On the 27th of December, 1858, the President transmitted to Congress a decree, and a further regulation which had been made by Reed, who had been appointed minister plenipotentiary.

"The instructions of the Department of State to McLane and Parker, which were withheld from the public in 1858, were communicated to the Senate in 1860. With the instructions to Parker the President also transmitted to Congress a mass of correspondence (624 printed pages) relating largely to the negotiations of the treaty of Tien-tsin in 1858. In 1857, Mr. Marcy thought that the 'British Government evidently had objects beyond those contemplated by the United States, and we ought not to be drawn along with it, however anxious it may be for our co-operation.' He writes to Parker on the 27th of February, 1857: The President does not believe that our relations with China warrant the "last resort" you speak of. * # The last resort" means war.' But in the following May, Mr. Cass, the Secretary of State, directs Reed to co-operate peacefully with the allied powers for the objects named in his dispatch.

*

"It being proposed in Congress to change or modify the act of 1848, Mr. Cass addressed a communication on the subject to the chairman of the Senate Committee of Foreign Relations. Congress passed the act June 22, 1860.

"Mr. Burlingame, in June, 1863, being the representative of the United States in China, wrote to Mr. Seward: In my dispatch No. 18, of June 2, 1862, I had the honor to write, if the treaty powers could agree among themselves to the neutrality of China, and together secure order in the treaty ports, and give their moral support to that party in China in favor of order, the interests of humanity would be subserved. Upon my arrival at Peking I at once elaborated my views, and found, upon comparing them with those held by the representatives of England and Russia, that they were in accord with theirs.'

"On the 15th of June, 1864, Burlingame instructed the cousul-general at Shanghai respecting the extent of the rights and duties of American citizens under the treaty, and the regulations made in pursuance thereof;' and he added, 'I have submitted the above letter to the British, French, and Russian ministers, and they authorize me to inform you they entirely approve its views and policy.' Burlingame described the policy he was prescribing as an effort to substitute fair diplomatic action in China for force.' When this important action was communicated to Mr. Seward, Secretary of State, he wrote, 'It is approved with much commendation.'

"On the 9th of November, 1464, Burlingame transmitted to the Department further rules and regulations for consular courts. Seward replied that the dispatch would be submitted to Congress.

"In 1866 Burlingame submitted for approval land regulations' for the regulation and the government of the European colony (the French excepted) at Shanghai. In 1868 the powers agreed upon rules for joint investigation, under the treaty, in cases of confiscation and fine by the custom-house authorities.

"In the summer of 1868 a legation from China arrived at Washington, with Burlingame (who had left the service of the United States) as its

chief. The treaty of 1868 was then concluded between them and the United States.

"There being some delay in the ratification of that treaty on the part of China, Mr. Fish instructed Mr. Bancroft, the minister of the United States at Berlin thus: 'You will undoubtedly meet Mr. Burlingame in Berlin. Impress upon him the importance to China of an early ratification of the treaties. While the President cordially gives his adhesion to the principles of the treaty of 1868, yet he earnestly hopes that the advisers of His Majesty the Emperor may soon see the way clear to counseling the granting of some concessions.'

*

"In 1870 Congress enacted that the superior judicial authority conferred by the act of 1860 on consuls-general or consuls, should be vested in the Secretary of State, and that in certain cases appeals should lie from the judgment of consular courts to the district court of the United States for the district of California.

"In an opinion dated September 19, 1855, Attorney-General Cushing reviews at length the effect of the statutes of 1848, and the extent of the judicial authority it confers upon consuls.' Attorney-General Black held that it was limited to the ports mentioned in the treaty.

"The expenses of transporting prisoners held for trial from one port in China to another are a lawful charge upon the general appropriations for defraying the judicial expenses of the Government in the absence of specific appropriations for the purpose.

"In November, 1858, Commissioner Reed, on behalf of the United States, accepted five hundred thousand taels ($735,238.97) in full satisfaction of the claims of citizens of the United States against China. In the following March Congress passed an act providing for the custody of the money, and authorizing the President to appoint commissioners to examine and audit the claims with a view to its distribution. (The manner in which this was done is set forth in detail in House Ex. Doc. 29, 3d sess. 40th Cong.) After the payment of the awards in full the remainder of the money was remitted to the Department of State. It has been the subject of several reports from the Secretary of State, and of some discussions in Congress, but there has been no legislative action respecting it."

Mr. J. C. B. Davis, Notes, &c.

"During the administration of President Tyler, Caleb Cushing, as plenipotentiary, negotiated a treaty by which political relations were for the first time established between the United States and the Emperor of China. In this treaty, the rights of extraterritoriality were stated in unmistakable terms. Citizens of the United States who may commit any crime in China shall be subject to be tried and punished only by the consul or other public functionary of the United States thereto authorized, according to the law of the United States. All questions in regard to rights, whether of property or person, arising between citizens of the United States in China, shall be subject to the jurisdiction and regulated by the authorities of their own Government.'"

Ibid.

The administration by consuls of the extraterritorial jurisdiction conferred by treaty is considered, supra, § 125.