SEC. 5. It is hereby made the duty of the chief of police and of every member of the police department of said city and county of San Francisco to strictly enforce the provisions of this order. And the clerk 18 hereby directed to advertise this order as required by law. In board of supervisors, San Francisco, February 17, 1890. Passed for printing by the following vote: Ayes-Supervisors Bingham, Wright, Boyd, Pescia, Bush, Ellert, Wheelan, Becker, Pilster, Kingswell, Barry, Noble. JNO. A. RUSSELL, Mr. Blaine to Mr. Pung. Clerk. DEPARTMENT OF STATE, SIR: I have the honor to acknowledge the receipt of your note of the 24th (23d) instant, in which you bring to the notice of the Department the text of an order said to have been passed by the board of supervisors of the city and county of San Francisco in March last, designating the location and the district in which Chinese shall reside and carry on business within the corporate limits. You invoke the intervention of the Government of the United States against the execution of this ordinance, referring, in this relation, to the treaty between China and the United States of 1880, the third article of which is 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. I have referred a copy of your note to the Attorney-General for his consideration. Meanwhile, I may ask your attention to the sixth article of the Constitution of the United States, which places treaties on the same juridical basis as laws and makes them the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. By the second section of the third article the judicial power of the United States is made to extend to all cases arising under the treaties. Under these provisions, and the statutes of the United States passed to give them effect, it is believed that the Chinese who are said to have been arrested under the order in question may, in an application to the courts for release from imprisonment or detention, speedily obtain a decision as to their rights and the legality of the order. If the Department be correct in this belief, there does not appear to be any occasion to invoke the stipulation of the third article of the immigration treaty of 1880, by which the Government of the United States undertakes to "exert all its power to devise measures" for the protec tion of the Chinese and to secure them in their rights, since such measures are already in existence and clearly available. Accept, etc., JAMES G. BLAINE. Mr. Pung to Mr. Blaine. CHINESE LEGATION, Washington, June 7, 1890. (Received June 7.) SIR: I have been honored by the receipt of your note of the 27th ultimo, in which, in answer to the request contained in my note of the 24th ultimo for the interposition of the Government of the United States against the execution of the ordinance of the city of San Francisco respecting Chinese, you are kind enough to point out to me the articles of your Federal Constitution under which you say the Chinese subjects are secured in their treaty rights, and as a consequence of which you think there is no occasion to invoke the interposition of your Government. I feel it my duty to tender you my thanks for bringing to my attention these provisions of the Constitution of your country. In view of what seems to many foreigners the complex system of your Government, it must be held as a great kindness to have the force and effect of your Constitution in its relation to treaty rights and privileges explained in so authoritative a manner; and I am glad to be thus confirmed in the conviction I already entertained that under the Constitution and laws of your enlightened country its courts were open to the subjects of all friendly nations for protection against wrong or injury to their persons or property. You will, however, excuse me for stating that it was not from ignorance of the articles cited of your Constitution that I made the request contained in my note of the 24th ultimo, but because my Government entertained 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. I do not think it necessary to relate the history of the negotiations resulting in the treaty of 1880, which has already been the subject of notes of this legation. It is sufficient to recall the fact that it was entered into at the express request of the United States, and that China consented to surrender certain treaty rights as to immigration upon the express condition and assurance of the American commissioners that the Chinese subjects in the United States should receive special protection, and that assurance was embodied in article 3. My Government can not understand the meaning of that article if its insertion did not imply that it was to throw around the Chinese subjects in the United States some protection which they did not then have. If, 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 6 of the treaty of 1868. There would seem to be no meaning in or occasion for simply reinserting that clause. The history of the negotiation, the concurrent assurances of the American commissioners, and the language of the treaty itself certainly justified the Imperial Government in entertaining the belief that under the stipulation of article 3 some positive, affirmative, active, interposition of the executive department of the United States would be exercised when it received notice that Chinese subjects in its territory were receiving ill treatment at the hands of the local authorities. It would hardly have been considered by the Imperial Government as a sufficient inducement to enter into the new treaty to be assured that, when the authorities of the great and powerful city of San Francisco should seize upon the Chinese subjects in that city and drag them from their longestablished homes and business, the Federal Government would do nothing more than point them to the courts, where they could have the poor privilege of carrying on a long and expensive litigation against a powerful corporation in a cummunity where they were treated as a despised and outcast race. I also find an additional reason to support the construction placed upon article 3 by my Government in the fact that the language employed therein is exceptional and peculiar. I have made careful exami nation of the volume containing the "Treaties and Conventions concluded between the United States and other Powers," published in 1889, and I have not been able to find any such or equivalent language used in any of the treaties with other nations. In addition to the foregoing reasons for presenting the request contained in my note of the 24th ultimo, I was led to do so because such has been the uniform practice of the American minister at Peking, acting under the instructions of your Department, in all similar cases in China. Whenever American residents in that country are threatened with ill treatment at the hands of the local authorities, or of combinations of evil-disposed persons, the American minister is prompt to demand the active interposition of the Imperial Government; and in no instance has my Government returned the answer that the American residents must alone, and unsupported by the Imperial power and influence, carry on their contest with the local authorities; but, on the contrary, in every instance of threatened ill treatment or of wrongdoers, the Imperial Government has been prompt to interpose its authority to secure to American citizens their treaty rights. It is earnestly to be hoped, therefore, that when the Attorney-General, to whom, you inform me, you have kindly submitted my note, shall learn of the great wrong that is being inflicted upon my poor countrymen at San Francisco, he will find some prompt and effective way whereby "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" which other foreign residents enjoy without molestation. It is hardly necessary for me to state to you that the Government of China can have no official relations with the authorities of the city of San Francisco, and that whatever loss is sustained by the Chinese residents of that city by reason of the enforcement of the ordinance cited must be regarded as occasioned by the failure of the Government of the United States to secure to those Chinese subjects their treaty rights, and that the Imperial Government must look to that Government for proper indemnification therefor. It is confidently expected, however, that the Government of the United States will exert its power so as to avoid all cause of complaint or indemnification. I repeat, etc., PUNG KWANG YU. Mr. Blaine to Mr. Pung. DEPARTMENT OF STATE, 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 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 as 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 other wise, 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 gov ernment 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 adFR 90-15 |