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ibid., 388; 1807, ch. 29, ibid., 436; and from this time forward there was an annual appropriation until the tribute was terminated."

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

For an account of negotiations with the Barbary Powers, see 3 Life of Picker-
ing, 271; 2 Lyman Diplomacy of U. S., chap. xiii.

For the details of the negotiations with Algiers in 1795-'96, see Todd's Life of
Barlow, 1886, chap. vi. As to Tripoli and Turkey, see infra, §§ 164, 165.


§ 142.

An exposition of the naturalization treaty with Bavaria is given in the letter of Mr. Fish, Sec. of State, to Mr. Weil, April 14, 1870. MSS. Dom. Let.

See infra, §§ 171, ff.

The convention between the United States and Bavaria of 1853 was not abrogated by the operation of the constitution of the German Empire of 1871.

In re Hermann Thomas, 12 Blatch., 370.

"The treaty (of 1845 with Bavaria) was submitted to the Senate, and ratified by it on the 15th March, 1845, with an amendment striking out from the third article the words 'real and.' The copy for exchange, with this amendment, was sent to Mr. Wheaton, and a copy was transmitted by him to the Bavarian minister at Berlin; and after long deliberation the amendment was accepted by the Bavarian Government."

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


§ 143.

For criticism on commercial discriminations in Brazil against the United States, see Mr. Forsyth, Sec. of State, to Mr. Hunter, Nov. 29, 1836. MSS. Inst. Brazil. Mr. Upshur, Sec. of State, to Mr. Proffit, Aug. 1, 1843; ibid. Mr. Cass to Mr. Meade, Sept. 15, 1857; ibid.

As to abrogated treaties with Brazil, see supra, 137a.

"On the 26th of March, 1840, Mr. Chaves, the Brazilian minister at Washington, wrote thus to the Secretary of State: The Imperial Government is obliged not to prolong the duration of the treaty concluded between the Empire and this Republic, of December 12, 1828; therefore, by the terms contained in article 11 of the said treaty, at the expiration of twelve mouths from this date the said treaty will be terminated, only for the articles relating to commerce and navigation.' (MSS. Records, Dept. of State.) This notice was received on the 27th of March, 1840, and was answered by Mr. Forsyth, Secretary of State, on the 20th of June, 1840, thus: Although each party has reserved to itself the right of terminating the treaty at the expiration of twelve months from the date of the notification of its intention, yet the privilege of giving such notification is so restricted that neither party can give it before the

expiration of the twelve years stipulated for the duration of the treaty; that consequently the earliest date at which the notice intended to be conveyed by Mr. Chaves' note can be given, is the 12th of December of this year, and that the earliest period at which, under any circumstances, the treaty can cease to be operative, is the 12th of December of the year 1841. The President, however, anxious at once to gratify the wishes of the Brazilian Government, and to show, by his readiness to comply with the spirit of the treaty, the sincerity of the disposition with which, in all its clauses, it has been fulfilled by the United States, is willing to overlook the departure from the strict letter of the instru ment involved in the premature notice given in Mr. Chaves' note, and to receive said notice as if given in accordance with the terms of the treaty at the expiration of the twelve years.'"

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

For the correspondence in the negotiation of the treaty, see House Ex. Doc. 32, 1st sess., 25th Cong.

(6) CHINA.
§ 144.

As to relations of the United States with China, see generally supra, § 67.

"In a recent dispatch to this Department in relation to the emigration of Chinese subjects from their own land to other countries, one of the United States consuls in China transmitted for the information of the Department what purports to be a transcript of section cely of the penal code of China, as translated by Sir George Thomas Staunton, F. R. S., an English baronet, whose translation is reputed to be the only one known. The law referred to is in relation to the vicarious punishment to be inflicted upon the relatives of a Chinaman who may renounce his country and allegiance, and it may therefore be of interest to this Government in connection with the large Chinese immigration on our Pacific coast, to be conversant with the nature of this among the other Chinese statutes touching the general subject.

"I have the honor, therefore, to inclose herewith a copy of the translated law as received from the consul, and to inquire whether the same correctly represents the law, and whether it is understood to be now in force in all or any part of the dominions of His Imperial Majesty."

Mr. Evarts, Sec. of State, to Mr. Yung Wing, Feb. 17, 1880. MSS. Notes, China;
For. Rel., 1880.

The inclosed document is as follows:

"All persons renouncing their country and allegiance, or devising the means thereof, shall be beheaded; and in the punishment of this offense no distinction shall be made between principals and accessories.

"The property of all such criminals shall be confiscated, and their wives and children distributed as slaves to the great officers of state. Those females, however, with whom a marriage had not been completed, though adjusted by contract, shall not suffer under this law; from the penalties of this law, exception shall also be made in favor of all such daughters of criminals as shall have been married into other families. The parents, grandparents, brothers, and grandchildren of such criminals, whether habitually living with them under the same roof or not, shall be perpetually banished to the distance of 2,000 li.

"All those who purposely conceal and connive at the perpetration of this crime shall be strangled.

"Those who inform against and bring to justice criminals of this description shall be rewarded with the whole of their property.

"Those who are privy to the perpetration of this crime and yet omit to give any notice or information thereof to the magistrates shall be punished with 100 blows, and banished perpetually to the distance of 3,000 li.

"If the crime is contrived, but not executed, the principal shall be strangled and all the accessories shall each of them be punished with 100 blows and perpetual banishment to the distance of 3,000 li.

"If those who are privy to such ineffective contrivance do not give due notice and information thereof to the magistrates, they shall be punished with 100 blows and banished for three years.

"All persons who refuse to surrender themselves to the magistrates when required, and seek concealment in mountains and desert places in order to evade either the performance of their duty or the punishment due to their crimes, shall be held guilty of an intent to rebel, and shall therefore suffer punishment in the manner by this law provided. If such persons have recourse to violence and defend themselves when pursued, by force of arms, they shall be held guilty of an overt act of rebellion, and punished accordingly."


"Your communication of the 17th ultimo, containing an inclosure of a translation of section cclv of the penal code of China, as translated by Sir George Thomas Staunton, and inquiring whether the same correctly represents the law, and whether it is now understood to be in force in all or any part of the dominions of His Imperial Majesty,' was duly received, and I have the honor to say in reply that section cely of the Chinese penal code referred to has no reference whatever to Chinese emigration as contemplated in and sanctioned by the Burlingame treaty. Under the general head of Renunciation of allegiance,' the specific. acts so carefully defined, with their corresponding punishments, point to the presumptive existence of a lesser or greater degree of treasonable intent against the Government, and it contemplates conspiracies and overt acts of rebellion against the Government as being the logical sequence of renunciation of allegiance,' which antecedes them both in time and existence; hence their classification under that head or section. Emigration, as sanctioned by foreign treaties, is taken out of the cate gory of treasonable acts, and is therefore beyond the scope of the section.

"In Article V of the Burlingame treaty we find this language, which is conclusive on this point: The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance.'"

Mr. Yung Wing to Mr. Evarts, Mar. 2, 1880; ibid.

"I am alike honored and gratified in being enabled to inform you that the President, by and with the advice and consent of the Senate, has appointed two of our distinguished citizens, Messrs. John F. Swift. of California, and William Henry Trescot, of South Carolina, as commissioners, to act conjointly with the envoy extraordinary and minister plenipotentiary of the United States to China, to negotiate and conclude a settlement by treaty of such matters of interest to the two Governments, now pending, as may be confided to them.

"It is expected that these commissioners, in company with the newly appointed minister to China, Mr. James B. Angell, will sail from San Francisco, en route to Peking, in the steamer of the 17th of June proximo.

"I have instructed the present minister near the Government of His Imperial Majesty to take as early au opportunity as may be practicable and proper to acquaint the Chinese Government with the high mission of these gentlemen, and to make fitting arrangements in advance of their arrival for their appropriate reception in their elevated diplomatic character as the specially commissioned plenipotentiaries of the Presi dent and Government of the United States.

"I take a singular satisfaction in expressing to you, and through you to the Government you so worthily represent, the assurances of the President's deep conviction that the sending of this high commission to China cannot fail to draw closer even than before the bonds of amity between the two Governments, by opening a favorable channel for the speedy and harmonious adjustment of the questions of moment now pending between them, and that the result of its wise and conciliatory counsels, met in a like spirit of wisdom and conciliation by the enlightened statesmen who rule the destinies of the great Empire of the East, will build up a lasting monument of the good will and kindred interests which animate the two nations.

Mr. Evarts, Sec. of State, to Mr. Yung Wing, May 25, 1880. MSS. Notes, China; ibid.

"I have the honor to acknowledge the receipt of your note of the 9th instant, whereby you informed this Department of the expected arrival at San Francisco of the Chinese steamer Wo Chung, being the first of her class to enter an American port, and, in order to prevent any misunderstanding in regard to duties or other charges, you request that the Secretary of the Treasury be notified, to the end that the customs authorities at San Francisco may extend to that vessel the privileges conceded to vessels of other nations in treaty relations with the United States. The matter was forthwith referred to the Secretary of the Treasury, from whom I now learn that under the laws of the United States and the provisions of the existing treaties with China it will be necessary to exact tonnage tax at alien rates.

"It appears that discriminating duties of tonnage and impost on foreign vessels and their cargoes are to be charged, as provided by law (§ 4219, Rev. Stat.), in all cases except where exemption is secured by treaty stipulations, or where special exemption is proclaimed by the President upon evidence of reciprocal exemption accorded to vessels of the United States, comformably to the provisions of section 4228 of the Revised Statutes, or where an exemption is created otherwise by law.

"The treaties between the United States and China do not establish reciprocal exemption from discriminating taxes. While the tonnage. tax to be collected from American vessels in the open ports is fixed by the treaty of June 18, 1858, between the two countries, it does not appear that Chinese vessels entering those ports are subject to the same

charges. Neither does it appear that Chinese vessels resorting to the ports of the United States may not trade directly with the closed ports of China whither American vessels are debarred from going.

"Under these circumstances the Secretary of the Treasury, conforming to the prescriptions of the statute as to tonnage duties, section 4219 of the Revised Statutes, has directed the collector of customs at San Francisco to exact, upon the arrival of the steamer, tonnage tax at alien rates, in addition to the ordinary tonnage tax paid annually, if the ves sel be engaged in regular voyages between the two countries. He has, however, reserved for the present, consideration and decision of the questions of duties on the cargo which the vessel may bring."

Mr Hay, Acting Sec. of State, to Mr. Yung Wing, Aug. 13, 1880. MSS. Notes,
China; ibid.

"Referring to your note of the 9th instant relative to the expected arrival of the Chinese steamer Wo Chung at the port of San Francisco, and to my reply thereto of the 13th, I have now the honor to inform you that the reserved question of the customs duties of importation chargeable upon the cargo which the vessel may bring has received careful consideration.

"Like the question of alien tonnage dues, of which my former note treated, the matter of customs duties on cargo entering the ports of the United States from foreign ports is one to be exclusively decided, in the absence of specific and reciprocal exemption by treaty, according to the domestic legislation of the country.

"The existing treaties of commerce between the United States and China do not provide for such reciprocal exemption, but stipulate solely 'that citizens of the United States shall never pay higher duties' [on merchandise entering China] than those paid by the most favored nations.' The question is, therefore, remitted to the domestic legislation of the United States. That legislation prescribes, in section 2502 of the Revised Statutes, a discriminating duty of ten per centum ad valorem in addition to the regular duties imposed by law on goods imported in vessels not of the United States; but it also provides that this discriminating duty shall not apply to merchandise imported in alien vessels, which are entitled by treaty or any act of Congress to enter the United States on the same footing as though imported in vessels of the United States.


"An act of Congress applicable to the case in point, is found embodied in section 4228 of the Revised Statutes, which empowers the President, upon satisfactory proof being given by the Government of any foreign nation that no discriminating duties of tonnage or import are there levied upon United States vessels, or upon merchandise carried thither in American bottoms, to issue a proclamation suspending and discontinuing the discriminating duties aforesaid with respect to

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