which are prior in date. There have been successive modifications, extensions, or substitutions as to special subjects, but always in express revival and renewal of pre-existing treaties; and. unless abrogated in express terms or repealed impliedly by the adoption of new and inconsistent features, they all remain in force. Upon those premises, and passing all the personal and residential stipulations in review, we find restrictions expressly recognized throughout all the treaties which prove the inability to provide reciprocity, by reasons of the totally variant basis on which the administrative functions and powers of the two countries are conducted.' § 519. China closed to residence.-Mr. Bayard called attention to the fact that until 1868 no right of immigration of Chinese subjects to the United States was ever formally extended and said: "None was, perhaps, needed, for, under our free, popular Government, and in the absence of any restrictive legislation, our territory was and is equally open to all aliens. It was altogether different in China. That country was closed to alien residence. as by a wall. A specific right had to be conventionally created. before this exclusion could be modified. To certain classes of citizens of the United States the treaty of 1844 granted carefully restricted rights to visit and sojourn in China, but in every one of the articles which treats of transient or permanent right of residence appears the qualification that it is for the purposes of trade." 49 49 Continuing, he said: "Article I applies to our citizens 'resorting to China for the purposes of commerce.' Article III permits Americans to frequent certain specified ports, 'and to reside with their families and trade there.' Article IV related to 'citizens of the United States doing business at the said' ports. Article V refers to 'citizens of the United States lawfully engaged in commerce.' The important Article XIX, in regard to protection, speaks of 'citizens of the United States in China peaceably attending to their affairs,' and by 'their affairs' we may regard the 'lawful' commerce elsewhere spoken of in the treaty as having been uppermost in the minds of the negotiators. Not merely was the purpose of their sojourn restricted, but citizens of the United States could not, under Article XVII, lawfully transgress certain residential limits. Even within those limits they were not free to select the sites for their 'houses and places business, and also hospitals, churches and cemeteries.' The 'merchants' of the United States were not to unreasonably insist on particular spots for those objects. Their residence was expressly conditioned on its of § 520. No reciprocity intended.—Mr. Bayard stated that in all the years in which diplomatic relations had existed with China there was no reciprocity of treatment of the citizens of one country within the jurisdiction of the other, and he observed there could not be, because the government of China had so restricted the privileges which it conceded as to make reciprocity impossible on being acceptable to the native inhabitants. The treaty says, and I am sure you will recognize the force of this provision: 'The local authorities of the two Governments shall select in concert the sites for the foregoing object, having due regard for the feelings of the people in the location thereof.' "And of that found at the close of the same Article XVII: 'And in order to the preservation of the public peace, the local officers of the Government at each of the five ports shall, in concert with the consuls, define the limits beyond which it shall not be lawful for citizens of the United States to go.' "The impracticability of maintaining efficient police protection in many portions of every widely extended domain was recognized by the Chinese Government when they expressly guarded against liability in the closing paragraph of Article XXIV of the treaty of 1844, as follows: 'But if, by reason of the extent of territory and numerous population of China, it should in any case happen that the robbers cannot be apprehended or the property only in part recovered, then the law will take its course in regard to the local authorities, but the Chinese Government will not make indemnity for the goods lust.' "Article XII of the treaty of 1858 is a substantial reaffirmation of these conditions. And it is to be noted that this treaty of 1858, while re 1 enacting many of the provisions of that of 1841, and passing over others, in no place intimates any enlargement of the residential class of unofficial American citizens to include others than merchants and their families within the narrow limits aforesaid. Ten years later we find the Burlingame treaty opening with 'the significant declaration that the object of preceding treaties has been to give aliens certain restricted privileges of resort and residence in particular localities for purposes of trade.' Article V appears to extend the purposes of residence and resort by including 'curiosity' as a motive; but even this extension is incidental to the enunciation of a principle, so that laws may be passed, not to guarantee 'free migration and emigration' without limit, but to prohibit involuntary emigration-in other words, to suppress the labor and coolie traffic. "Article VII permits Americans to establish schools in China, and by implication includes American teachers in the classes admitted to restricted residence. In this, as in the other treaties, there is nothing to offset the idea of continued restriction, for Article VI, which gives to citizens of the United States visiting or residing in China, 'the same privileges, immunities or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation,' neither creates nor extends any right the part of the United States, unless it should take the form of retaliation, which he said, under our system of laws, was impracticable. The treaty of 1880, he declared, was absolutely unilateral, and conveyed no hint of reciprocity. He called attention to the second article of this treaty, which gave to Chinese teachers, students, merchants and those actuated by motives of curiosity, and to the Chinese laborers, who, at that date, were in the United States, the right to 'go and come of their own free will and accord," and in addition entitled them to the same treatment as the citizens or subjects of the most favored nation, and said: "I refrain from asking you to point out to me any responsive position in any of our treaties with China which guarantees to American teachers, students, merchants, curiosity seekers. and laborers the right to 'go and come of their own free will and accord' throughout the length and breadth of China, 'without regard to the feelings of the people' in the localities whither they may resort. 750 of alien sojourn, but rather confirms the announced determination of China to reserve all such rights not expressly granted. "To sum up, as the treaties stand, American citizens not of diplomatic or consular office may resort to China for trade, for curiosity, or as teachers, and then only to certain carefully limited localities, 'having due regard to the feelings of the people in the location thereof.' If the citizens or subjects of any other power should be granted other or greater privileges, then the citizens of the United States will have equal treatment. "On the other hand, Chinese subjects were at all times free between 1844 and 1868 to come to the United States and travel or sojourn therein, pursuing whatever lawful occupation they might see fit to engage in, without the need of treaty guaranty. The sixth article of the Burlingame treaty created no privilege in their behalf; it simply recorded an existing fact; for the Chinese were then as free to visit and sojourn in the United States as any other aliens were, and no law of regulation or inhibition was upon our statute-books."' 50 He then continued: "Passing from the question of reciprocity, whether in its sentimental or contractual aspects, to the question of the actual guaranty stipulated by the United States to Chinese of all classes, including laborers within their jurisdiction, and of the responsibilities of this Government in the matter, we find that in the treaty of 1868, by its sixth article, the United States for the first time established, as a treaty right, the theretofore consuetudinary privilege of emigration of Chinese to this country. That article says: 'Chinese subjects, visiting or residing in the United States, shall enjoy the same privileges, immunities and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation.' § 521. System of American government known to China.-The system of American government prevailing in the United States written in its Constitution was known, said Mr. Bayard, to China, at the time the treaties were entered into. Under this government, several departments have been created, whose functions are distinct. The judicial branch must settle the question of liability for reparation or indemnity for losses to individuals in "This is renewed, with definition and limitation of the particular classes of Chinese, to which it is applicable, in the second article of the treaty of 1880. What is the substantial and full intent and meaning of these provisions as laid down in 1868, and again with special definition in 1880? What 'most favored nation' is to be taken as a test and for the purpose of comparing the rights of its citizens or subjects in the United States with those of China? To constitute a special favor between nations it must exist in virtue of treaty or law, and be extended in terms to a particular nation as a nation. Applying this test, the citizens or subjects of no nation (unless it be those of China) have any special favor in the way of personal treatment shown them in the United States. All are treated alike, the subjects of the most powerful nations equally with others. An Englishman, a Frenchman, a German, a Russian, is neither more or less favored than one of any other nationality. "Tried by this test, will it be denied that the public and local laws throughout the United States make no distinction or discrimination unfavorable to any man by reason of bis Chinese nationality, except only those Federal laws regulating, limiting and suspending Chinese immigration which have been enacted in conformity with the express provisions of the treaty of 1880? "What are the duties of the Government of the United States under that treaty towards Chinese subjects within their jurisdiction? "The Chinese subjects now in the United States are certainly accorded all the rights, privileges, immunities and exemptions which pertain to the citizens and subjects of the most favored nation, as is provided in the second article of the treaty. They are suffered to travel at will all over the United States, to engage in any lawful occupation, and to reside in any quarter which they may select, and there is no avenue to public justice or protection for their lives, their commercial contracts, or their property in any of its forms which is not equally open to them as to the citizens of our own country. "The same laws are administered by the same tribunals to Chinese subjects as to American citizens, save in one respect, wherein the Chinese alien is the more favored, since he has the right of option in selecting either a State or a Federal tribunal for the trial of his rights, which, in many cases, is denied for residential causes to our own citizens; and he may even at will remove his cause from a state to a Federal court. "Thus, I find in the public press the announcement that Wing Hing, on behalf of himself and others, Chinese subjects, has lately brought suit in the United States circuit court to recover $132,000 from the city of all cases where the act complained of has been committed under official authority. He stated that "The doctrine of the nonliability of the United States for the acts of individuals committed in violation of its laws is clear as to acts of its own citizens, and a fortiori in respect of aliens who abuse the privilege accorded them of residence in our midst by breaking the public peace and infringing upon the right of others, and it has been correctly and authoritatively laid down by my predecessors in office," and to that doctrine, he stated, "The course of this government furnishes no exception." Referring to the New Orleans riot of 1850, he said that nothing could be clearer than the enunciation of the doctrine of the nonliability of the government. "While denouncing such outrages as disgraceful and in criminal violation of law and order, it was emphatically denied that the acts in question created any obligation on the part of the United States, arising out of the good faith of nations toward each other, for the losses thus occasioned by and to individuals. "' 51 subjects by all the powers in treaty relations with China are, in principle and from the reason of the thing, incompetent to adjudicate questions touching the liability of China to aliens. In default of Chinese tribunals admittedly competent to take ecgnizance of the causes of foreigners, what alternative remains besides denial of justice or resort to diplomatic settlement?'' 51 Further discussing the subject he proceeded: "Neither is there a parity between the Spanish incident of 1850 and the recent riot and massacre of the Chinese at Rock Springs. The essential feature of the first is wholly wanting in the second. The emblem of Spanish nationality had suffered an affront in a city of the United States. The special immunity attaching to the Spanish consular representative had been impaired and he subjected to personal indignity. The incident occurred at a time when the Spanish Government had just shown its regard for and goodwill toward |