the 'bluffs, owned in part by United States citizens. In reply to the 'American owners' protest against this action, which you submitted to that government, the minister of foreign affairs has written you that under the constitution of Nicaragua and international law 'no foreigner can solicit the intervention of his government in defense of his rights or pretensions until after he has exhausted all remedies which the laws of the country in which he lives allow him, and his complaints have been disregarded with notorious injustice.' "What remedies the laws of the country give for such cases are rot stated. You appear to think that the courts of Nicaragua should be appealed to for redress before this government can interfere diplomatically. Your suggestion is, as a general proposition, sound, assuming of course that the courts have jurisdiction. But the treaty between the two countries entitles American citizens whose property has been taken by Nicaragua for public purposes, without full and just compensation paid in advance, to invoke in the first instance the diplomatic intervention of the United States in their behalf. "The very act of the government of Nicaragua in taking the property without full and just compensation paid in advance was a violation of the treaty (sec. 3, Art. IX., treaty of 1867). No action of its courts (assuming them to have jurisdiction of such suits) can change the character of the act, or make it any the less a plain violation of the treaty. "Should the courts decide in favor of the aggrieved parties and award them compensation, and that compensation be actually paid, the treaty would still remain violated, because the compensation was not paid in advance of the taking of the property. To claim that redress must be sought through the courts is to claim that payment of compensation may be postponed till the property has actually been taken, in face of the treaty which says that payment must be made in advance. One party to a treaty can not thus practically change its terms and evade its requirements. "The American citizens suffering by this arbitrary appropriation of their property are entitled to the aid of their government in securing from Nicaragua adequate indemnity for any losses they may have sustained." Mr. Gresham, Sec. of State, to Mr. Baker, min. to Nicaragua, Nov. 15, 1894, For. Rel. 1894, App. I. 353. In June, 1900, Mr. Merry, United States minister to Nicaragua, was instructed to remonstrate against the action of the Nicaraguan authorities at Bluefields, in requiring citizens of the United States embarking at that port for ports in the United States to obtain "permits" or "passports," on which a stamp tax was exacted, as being an onerous and unnecessary restriction of the privilege granted by Article IX., paragraph 4, of the treaty between the two countries of June 21, 1867, which provides that "the citizens of the two high contracting parties shall have the unlimited right to go to any part of the territories of the other, and in all cases enjoy the same security as the natives of the country where they reside, with the condition that they duly observe the laws and ordinances." The Nicaraguan government justified the requirement on the ground that the country had been under martial law for several years; but the government of the United States did not consider this "a satisfactory excuse " for imposing an "illegal tax upon American citizens." The Nicaraguan government, however, afterwards took the ground that, by the treaty, citizens of the United States and of Nicaragua were to receive equal treatment as respected the conditions of egress from the country, and also adverted to the fact that the United States required an internal-revenue stamp to be put on all ocean passenger tickets sold in that country. The United States, while pointing out that the guarantee to the citizens of each country of an "unlimited right to go to any part of the territories" of the other, was not restricted by the additional guarantee of such security as was accorded to the natives of the country where they resided, replied that, if the “passport" "had merely a fiscal character, or was intended only as a means of identification, the United States would offer no objection to it; but that if, on the contrary, the Nicaraguan government meant that under the treaty it might "arbitrarily prevent the free movements of American citizens coming to or going from its territories, such citizens having committed no crime or misdemeanor, by refusing to issue the so-called passport or permit,'" the American minister was instructed to continue to remonstrate against it as a practice in plain violation of the treaty of 1867. Mr. Hay, Sec. of State, to Mr. Merry, min. to Nicaragua, June 22, Nov. 3, and Dec. 19, 1900, MS. Inst. Central America, XXII. 15, 55, 80. For remonstrance of the United States against the reappointment of Col. Francisco Torres as governor of Bluefields with extraordinary powers, in 1896, and again in 1899, see For. Rel. 1899, 561. As to the Moravian missions in the Mosquito Reservation, see For. Rel. 1894, 479. 5. SALVADOR. § 795. May 30, 1892, the Salvadorean Government gave notice of the denunciation of the treaty of Dec. 6, 1870, saying that it would, in accordance with its terms, be in force till May 30, 1893. For. Rel. 1892, 43, 45. The erection of a monument in the foreigners' cemetery at Valparaiso, Courtesies shown to the U. S. S. Newark by the Chilean Government, IX. CHINA. 1. TREATY OF 1844. $ 797. By the treaty of peace between Great Britain and China, signed at Nanking August 29, 1842, the ports of Canton, Amoy, Foochow, Ningpo, and Shanghai were opened to British subjects and their commerce. Of these five ports one only-Canton-had previously been open to foreign trade. By the same treaty, the island of Hongkong was ceded to Great Britain. A supplementary treaty of commerce and navigation was concluded between Great Britain and China Oct. 8, 1843." By the act of March 3, 1843, the sum of $40,000 was placed at the disposal of the President to enable him to establish the future commercial relations between the United States and China on terms of "national equal reciprocity." President Van Buren's message of Feb. 21, 1840, introducing an elaborate See also President Tyler's message of Dec. 30, 1842, in relation to China and the May 8, 1843, Mr. Caleb Cushing was appointed minister plenipotentiary and commissioner to China. "You will state, in the fullest manner, the acknowledgement of this government that the commercial regulations of the Empire, having become fairly and fully known, ought to be respected by all ships and all persons visiting its ports; and if citizens of the United States, a Br. & For. State Papers, vol. 30, p. 398; vol. 31, p. 132. 5 Stat. 624. under these circumstances, are found violating well-known laws of trade, their government will not interfere to protect them from the consequences of their own illegal conduct. You will at the same time assert and maintain, on all occasions, the equality and independence of your own country. The Chinese are apt to speak of persons coming into the Empire from other nations as tribute bearers to the Emperor. This idea has been fostered, perhaps, by the costly parade of embassies from England. All ideas of this kind respecting your mission must, should they arise, be immediately met by a declaration, not made ostentatiously, or in a manner reproachful toward others, that you are no tribute bearer; that your government pays tribute to none and expects tribute from none; and that even as to presents, your government neither makes nor accepts presents. "You will say that the government of the United States is always controlled by a sense of religion and of honor; that nations differ in their religious opinions and observances; that you can not do anything which the religion of your own country or the sentiments of honor forbid; that you have the most profound respect for His Majesty the Emperor; that you are ready to make to him all manifestations of homage which are consistent with your own sense; and that you are sure His Majesty is too just to desire you to violate your ,duty; that you should deem yourself quite unworthy to appear before His Majesty, as peace bearer from a great and powerful nation, if you should do anything against religion or against honor, as understood by the government and people of the country you come from. Taking care thus in no way to allow the government or people of China to consider you as tribute bearer from your government, or as acknowledging its inferiority, in any respect, to that of China, or any other nation, you will bear in mind, at the same time, what is due to your own personal dignity and the character which you bear. You will represent to the Chinese authorities, nevertheless, that you are directed to pay to His Majesty the Emperor the same marks of respect and homage as are paid by your government to His Majesty the Emperor of Russia, or any other of the great powers of the world." Mr. Webster, Sec. of State, to Mr. Cushing, min. to China, May 8, 1843, 6 Webster's Works, 467, 469, where the full text of the instructions is given. Before Mr. Cushing went to China, Mr. Paul S. Forbes, United States consul at Canton, was directed to announce his mission to the authorities of the two Kwang provinces, and to advise them of his intention to proceed to Peking. The authorities replied that it would be useless for the envoy to go to Peking. February 27, 1844, Mr. CushH. Doc. 551-vol 5-27 ing, writing from the U. S. flagship Brandywine, in Macao Roads, announced to the governor-general of the two Kwang provinces, as the nearest high functionary of the Chinese government, his arrival with full powers to negotiate a treaty. Mr. Cushing added that he also had a letter from the President to His Imperial Majesty, and that he would land and remain at Macao till the Brandywine could prepare to continue her voyage to the mouth of the Peiho. On the 9th of March, 1844, Ching, acting governor, replied, seeking to dissuade Mr. Cushing from attempting to go to Peking, and arguing that a treaty between the two countries was unnecessary. A treaty had been made with England because the two nations had been at war. But for many years American merchants had been coming to Canton, and had obeyed the laws and been treated with courtesy." Cushing declined to discuss the question of going north and that of the need of a treaty with anyone but an imperial commissioner, and expressed regret that, in view of the notice given of his coming, he did not on his arrival find such a commissioner awaiting him in the frontier province, with full powers. He affirmed, however, that the purposes of the United States was altogether friendly, and said that, if the imperial government wished him to proceed to the court by some other route, instead of being conducted by the United States squadron to the mouth of the Peiho, he would accede to its wishes. Ching promised to memorialize the Emperor on the subject. He also furnished Mr. Cushing, at the latter's request, with a copy of the treaty of peace with Great Britain and of the treaty with Portugal. He stated that a copy of the treaty of commerce with Great Britain had been given to Mr. Forbes. It turned out that the copy furnished of the treaty of peace was not complete." Cushing, in one of his despatches, quotes from the speech of Queen Victoria, in communicating the treaty of peace to Parliament, these words: "Throughout the whole course of my negotiations with the government of China, I have uniformly disclaimed the wish for any exclusive advantages. It has been my desire that equal favor should be shown to the industry and commercial enterprise of all nations." Cushing said that he thought England had “from the outset adhered in good faith to this idea. The establishment at Hongkong is freely open to the ships of the United States, of Holland, and of France." In the latter part of April, Ching told Cushing that he could not be received till the imperial pleasure was known, and that it would meanwhile be “inconvenient" to hold any official intercourse with a The translation of Ching's note was certified by "Peter Parker, Joint Chinese Secretary of Legation.” In this correspondence between Cushing and Ching, some of the copies are certified by S. Wells Williams, and others by "E. C. Bridgman, Joint Chinese Secretary to the U. S. Legation to China." |