The Treaty With China, its Provisions Explained

Produced by John Greenman, Martin Zehr, and David Widger

THE TREATY WITH CHINA

ITS PROVISIONS EXPLAINED

New York Tribune, Tuesday, August 28, 1868

Every one has read the treaty which has just been concluded between the United States and China. Everyone has read it, but in it there are expressions which not every one understands. There are clauses which seem vague, other clauses which seem almost unnecessary, and still others which bear the flavor of “surplusage,” to speak in legal phrase. The most careful reading of the document will leave these impressions--that is, unless one comprehends the past and present condition of foreign intercourse with China--in which case it will be seen at once that there is no word in the treaty without a meaning, and no clause in it but was dictated by a present need or a wise policy looking to the future. It will interest many of your readers to know why this, that, and the other provision was incorporated in the treaty; it will interest others to know in what manner and to what extent the treaty will affect our existing relations with China. Apart from its grave importance, the subject is really as entertaining as any I know of and--asking pardon for the presumption--I desire to write a few paragraphs upon it. We made a treaty with China in 1858; Mr. Burlingame's new treaty is an addition to that one, and an amplification of its powers. The first article of this new treaty reads as follows:

ARTICLE I. His Majesty, the Emperor of China, being of the opinion that in making concessions to the citizens or subjects of foreign Powers of the privilege of residing on certain tracts of land, or resorting to certain waters of that Empire for the purposes of trade, he has by no means relinquished his right of eminent domain or dominion over the said land and waters, hereby agrees that no such concession or grant shall be construed to give to any Power or party which may be at war with or hostile to the United States the right to attack the citizens of the United States or their property within the said lands or waters; and the United States, for themselves, hereby agree to abstain from offensively attacking the citizens or subjects of any Power or party or their property with which they may be at war on any such tract of land or waters of the said Empire; but nothing in this article shall be construed to prevent the United States from resisting an attack by any hostile Power or party upon their citizens or their property. It is further agreed that if any right or interest in any tract of land in China has been or shall hereafter be granted by the Government of China to the United States or their citizens for purposes of trade or commerce, that grant shall in no event be construed to divest the Chinese authorities of their right of jurisdiction over persons and property within said tract of land, except so far as that right may have been expressly relinquished by treaty.

In or near one or two of the cities of China the Emperor has set apart certain tracts of land for occupation by foreigners. The foreigners residing upon these tracts create courts of justice, organize police forces, and govern themselves by laws of their own framing. They levy and collect taxes, they pave their streets, they light them with gas. These communities, through liberality of China, are so independent and so unshackled that they have all the seeming of colonies--insomuch that the jurisdiction of China over them was in time lost sight of and disregarded--at least, questioned. The English communities came to be looked upon as a part of England, and the American colonies as part of America; and so, after the Trent affair, it was seriously held by many that the Confederate ships of war would be as justifiable in making attacks upon the American communities in China as they would be in attacking New York or Boston. This doctrine was really held, notwithstanding the supremacy of China over these tracts of land was recognized at regular intervals in the most substantial way, viz., by way of payment to the Government of a stipulated rental. Again, these foreign communities took it upon themselves to levy taxes upon Chinamen residing upon their so-called “concessions,” and enforce their collection. Perhaps those Chinamen were as well governed as they have been anywhere in China, perhaps it was entirely just that they should pay for good government--but the principle was wrong; it was an encroachment upon the rights of the crown, and caused the Government uneasiness; the boundary thus passed there was no telling how far the encroachment might be pushed. The municipal council which taxed these Chinamen was composed altogether of foreigners, so there was taxation without representation--a policy which we fought seven years to overthrow. The French have persistently claimed the right to exercise untrammeled jurisdiction over both natives and foreigners residing within their “concessions,” but the present Minister, Monsieur Moustier, has yielded this position in favor of the anti-concession doctrine, and thus have ignored the “eminent dominion” of the Chinese Government. Under Article 1 of the new treaty, the question of whether an enemy of America can attack an American colony in China is answered in the negative. Under it the right of the Chinese Government to regulate the governing, taxing, and trying of its subjects resident within American “concessions” is recognized--in a word, its supreme control over its own people is recognized. Also (in the final sentence) its control over scattering foreigners (of nationalities not in treaty relations with China) not enrolled the regular concessions is “granted.” During a war between Russia and Denmark, a Prussian man-of-war captured two Danish vessels lying at harbor in a Chinese harbor or roadstead, and carried them off. Article 1 of this treaty pledges that like offenses shall not be committed in Chinese waters by American cruisers, and looks to Chinese protection of American ships against such outrages.

ART. 2. The United States of America and His Majesty the Emperor of China, believing that the safety and prosperity of commerce will thereby best be promoted, agree that any privilege or immunity in respect to trade or navigation within the Chinese dominions which may not have been stipulated for by treaty, shall be subject to the discretion of the Chinese Government, and may be regulated by it accordingly, but not in a manner or spirit incompatible with the treaty stipulations of the parties.

At a first glance, this clause would seem unnecessary--unnecessary because the granting of any privilege not stipulated in a treaty with China, must of course be a matter entirely subject to the pleasure of the Chinese Government. Yet the clause has its significance. There is in China a class of foreigners who demand privileges, concessions and immunities, instead of asking for them--a class who look upon the Chinese as degraded barbarians, and not entitled to charity--as helpless, and therefore to be trodden underfoot--a tyrannical class who say openly that the Chinese should be forced to do thus and so; that foreigners know what is best for them, better than they do themselves, and therefore it would be but a Christian kindness to take them by the throat and compel them to see their real interests as the enlightened foreigners see them. These people harass and distress the Government by constantly dictating to it and meddling with its affairs. They beget and keep alive a “distrust” of foreigners among the Chinese people. It will surprise many among us to know that the Chinese are eminently hospitable, by nature, toward strangers. It will surprise many whose notion of Chinamen is that they are a race who formerly manifested their interest in shipwrecked strangers by exhibiting them in iron cages in public, in a half-starved condition, as rare and curious monsters, to know that a few hundred years ago they welcomed adventurous Jesuit priests, who struggled to their shores, with great cordiality, and gave to them the fullest liberty in the dissemination of their doctrines. I have seen at St. Peter's, in Rome, a picture of certain restive Chinamen barbecuing some 80 Romish priests. This was an uncalled for stretch of hospitality--if it be proposed to call it hospitality at all. But the caging and barbecuing of strangers were disagreeable attentions which were secured to those strangers by their predecessors. As I have said, the Chinese were exceedingly hospitable and kind toward the first foreigners who came among them, 200 or 300 years ago. They listened to their preachings, they joined their Church. They saw the doctrines of Christianity spreading far and wide over the land, yet nobody murmured against these things. The Jesuit priests were elevated to high offices in the Government. China's confidence in the foreigners was not betrayed. In time, had the Jesuits been let alone, they would have completely Christianized China, no doubt; that is, they would have made of the Chinese, Christians according to their moral, physical, and intellectual strength, and then given Nature a few generations in which to shed the Pagan skin, and sap the Pagan blood, and so perfect the work. For, be it known, one Jesuit missionary is equal to an army of any other denomination where there is actual work to be done, and solid, unsentimental wisdom to be exercised. However, to pursue my narrative, some priests of the Dominican order arrived, and very shortly began to make trouble. They began to cramp the privileges of converts; they flouted the system of persuasion of the Jesuits, and adopted that of driving; they meddled in politics, they became arrogant and dictatorial, they fomented discords everywhere--in a word, they utterly destroyed Chinese confidence in foreigners, and raised up Chinese hatred and distrust against them. For these things they were driven out of the country. When strangers came, after that, the Chinese, with that calm wisdom which comes only through bitter experience, caged them, or hanged them. I spoke, a while ago, of a domineering, hectoring class of foreigners in China who are always interfering with the Government's business, and thus keeping alive the distrust and dislike engendered by their kindred spirits, the Dominicans, an age ago. They clog progress. Article 2 of the treaty is intended to discountenance all officious intermeddling with the Government's business by Americans, and so move a step toward the restoration of that Chinese confidence in strangers which was annihilated so long ago.

ART. 3. The Emperor of China shall have the right to appoint consuls at ports of the United States, who shall enjoy the same privileges and immunities as those which are enjoyed by public law and treaty in the United States by the Consuls of Great Britain and Russia, or either of them.

And soon--perhaps within a year or two--there will doubtless be a Chinese Envoy located permanently at Washington. The Consuls referred to above will be appointed with all convenient dispatch. They will be Americans, but will in all cases be men who are capable of feeling pity for persecuted Chinamen, and will call to a strict account all who wrong them. It affords me infinite satisfaction to call particular attention to this Consul clause, and think of the howl that will go up from the cooks, the railroad graders, and the cobble-stone artists of California, when they read it. They can never beat and bang and set the dogs on the Chinamen any more. These pastimes are lost to them forever. In San Francisco, a large part of the most interesting local news in the daily papers consists of gorgeous compliments to the “able and efficient” Officer This and That for arresting Ah Foo, or Ching Wang, or Song Hi for stealing a chicken; but when some white brute breaks an unoffending Chinaman's head with a brick, the paper does not compliment any officer for arresting the assaulter, for the simple reason that the officer does not make the arrest; the shedding of Chinese blood only makes him laugh; he considers it fun of the most entertaining description. I have seen dogs almost tear helpless Chinamen to pieces in broad daylight in San Francisco, and I have seen hod-carriers who help to make Presidents stand around and enjoy the sport. I have seen troops of boys assault a Chinaman with stones when he was walking quietly along about his business, and send him bruised and bleeding home. I have seen Chinamen abused and maltreated in all the mean, cowardly ways possible to the invention of a degraded nature, but I never saw a policeman interfere in the matter and I never saw a Chinaman righted in a court of justice for wrongs thus done him. The California laws do not allow Chinamen to testify against white men. California is one of the most liberal and progressive States in the Union, and the best and worthiest of her citizens will be glad to know that the days of persecuting Chinamen are over, in California. It will be observed by Article 3 that the Chinese consuls will be placed upon the same footing as those from Russia and Great Britain, and that no mention is made of France. The authorities got into trouble with a French consul in San Francisco, once, and, in order to pacify Napoleon, the United States enlarged the privileges of French consuls beyond those enjoyed by the consuls of all other countries.

ART. 4. The twenty-ninth article of the treaty of the 18th of June, 1858, having stipulated for the exemption of Christian citizens of the United States and Chinese converts from persecution in China on account of their faith, it is further agreed that citizens of the United States in China, of every religious persuasion, and Chinese subjects in the United States shall enjoy entire liberty of conscience, and shall be exempt from all disability or persecution on account of their religious faith or worship in either country. Cemeteries for sepulture of the dead of whatever nativity or nationality shall be held in respect and free from disturbance or profanation.

The old treaty protected “Christian” citizens of the United States from persecution. The new one is broader. It protects our citizens “of every religious persuasion”--Jews, Mormons, and all. It also protects Chinamen in this country in the worship of their own gods after their own fashions, and also relieves them of all “disabilities” suffered by them heretofore on account of their religion. This protection of Christians in China is hardly necessary now-a-days, for the Chinamen have about fallen back to their ancient ample spirit of toleration again as regards religion. Anybody can preach in China who chooses to do it. He will not be disturbed. The former persecution of Christians in China, which was brought about by the Dominicans, seldom extended to the maiming or killing of converts anyhow. They generally invited the convert to trample upon a cross. If he refused, he was proven a Christian, and so was shunned and disgraced. This diminished the list of Chinese Christians very much, but did not root out that religion by any means. Religious books have been written, and translations made, by Chinese Christians, and there are as many as a million converts in China at the present time. There are many families who have inherited their Christianity by direct descent through six generations. In fact, it is believed that Christianity existed in China 1,100 years ago. For many years the missionaries heard vaguely, from time to time, of a monument of the seventh century which was reported to be still standing over the grave of some forgotten Christian far out in the interior of China. Two of these missionaries, the Revs. Messrs. Lees and Williams, traveled west 1,000 miles and found it. This brings me back to the fact, before stated, that the religious toleration and protection guaranteed by Article 4, are needed more by Chinamen here than by Americans in China. Those two missionaries traveled away out into the heart of China, preaching the Gospel of Christ every day, always being listened to attentively by large assemblages, and always kindly and hospitably treated. Moreover, these missionaries sold--mind you, sold, for cash, to these assemblages--20,000 copies of religious books, thus wisely and pleasantly combining salvation with business. If a Chinese missionary were to come disseminating his eternal truths among us, we would laugh at him first and bombard him with cabbages afterward. We would do this because we are civilized and enlightened. We would make him understand that he couldn't peddle his eternal truths in this market. China is one of the few countries where perfect religious freedom prevails. It is one of the few countries where no disabilities are inflicted on a man for his religion's sake, in the matter of holding office and embezzling the public funds. A Jesuit priest was formerly the Vice-President of the Board of Public Works, an exceedingly high position, and the present Viceroy of two important provinces is a Mohammedan. There are a great many Mohammedans in China. The last clause of article 4 was not absolutely necessary, perhaps. Still, it was well enough to have it in. When the lower classes in California learn that they are forever debarred from mutilating living Chinamen, their first impulse will naturally be to “take it out” of the dead ones. But disappointment shall be their portion. A Chinaman's “tail” is protected by law in California; for if he lost his queue he would be a dishonored Chinaman forever, and would forever be an exile. He could not think of returning to his native land to offer his countrymen the absurd spectacle of a man without a tail to his head. The Chinese regard their dead with a reverence which amounts to worship. All Chinamen who die in foreign lands are shipped home to China for permanent burial. Even the contracts which consign the wretched Coolies to slavery at $5 a month salary and two suits of clothes a year stipulate that if he dies in Cuba, the Sandwich Islands, or any other foreign land, his body must be sent home. There are vast vaults in San Francisco where hundreds of dead Chinamen have been salted away by gentle hands for shipment. The heads of the great Chinese Companies keep a record of the names of their thousands of members, and every individual is strictly accounted for to the home office. Every now and then a vessel is chartered and sent to China freighted with corpses.

ART 5. The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and his allegiance, and also the mutual advantages of the free migration and immigration of their citizens and subjects respectively from the one country to the other for purposes of curiosity, trade, or as permanent residents. The high contracting parties, therefore, join in reprobating any other than an entirely voluntary immigration for these purposes. They consequently agree to pass laws making it a penal offense for a citizen of the United States or a Chinese subject to take Chinese subjects either to the United States or to any other foreign country, or for a Chinese subject or a citizen of the United States to take citizens of the United States to China or any other foreign country without their free and voluntary consent respectively.

Article 5 aims at two objects, viz.: The spreading of the naturalization doctrine (Mr. Seward could not give his assent to a treaty which did not have that in it) and the breaking up of the infamous Coolie trade. It is popularly believed that the Emperor of China sells Coolies himself, by the shipload, and even at retail, but such is not the case. He is known to be exceedingly anxious to destroy the Coolie trade. The “voluntary” emigration of Chinamen to California already amounts to a thousand a month, and this treaty will greatly increase it. It will not only increase it, but will bring over a better class of Chinamen-men of means, character, and standing in their own country. The present Chinese immigration, however, is the best class of people--in some respects, though not in all--that comes to us from foreign lands. They are the best railroad hands we have by far. They are the most faithful, the most temperate, the most peaceable, the most industrious. The Pacific Railroad Company employs them almost exclusively, and by thousands. When a chicken roost or a sluice-box is robbed in California, some Chinaman is almost sure to suffer for it--yet these dreadful people are trusted in the most reckless manner by the railroad people. The Chinese railroad hands go down in numbers to Sacramento and often spend their last cent. Then they simply go to the Superintendent, state their case, write their names on a card, together with a promise to refund out of the first wages coming to them, and with no other security than this, railroad tickets are sold to them on credit. Mr. Crocker and his subordinates have done this time and again, and have yet to lose the first cent by it. In the towns and cities the Chinamen are cooks, chambermaids, washerwomen, nurses, merchants, butchers, gardeners, interpreters in banks and business houses, etc. They are willing to do anything that will afford them a living.