Benj. P. Avery to To His Excellency Benjamin P. Avery , United States, March 31, 1875

No. 151. Mr. Avery to Mr. Fish.

Sir: During the year 1872, the Chinese government, moved by various representations of the maltreatment of its people in Cuba, stopped the further emigration of Chinese to that island, whereupon Señor Otin, the Spanish chargé d’affaires, complained of a violation of Article X of the Spanish treaty concluded in 1864, which provides for emigration.

On the advice of Mr. Williams, then the acting chargé d’affaires for the United States, and of Mr. Wade, the English minister, and with the consent of Mr. Otin, the Chinese government agreed to send a commission to Cuba to inquire into the condition of the Chinese now there, both parties agreeing that the report of the commission should be submitted to the representatives of Great Britain, Russia, the United States, France, and Germany, who were to decide as arbitrators on the evidence presented, whether China was justified in suspending emigration; and if not, whether she was liable for indemnity therefor.

In November, 1873, the Tsung li Yamen appointed, as chief commissioner to proceed to Cuba as above, a native of rank named Chin Lan Pin, two European officers in the customs service, and Mr. A. Macpherson and Mr. A. Huber, being associated with him, together with several Chinese clerks and attendants. This commission reached Cuba in March, 1874, and returned to Peking in January, 1875.

On the 5th of February last, the Tsung-li Yamen sent in to all the foreign legations here a lengthy communication, detailing the evidence on which the stoppage of emigration to Cuba was based, summarizing the testimony of the commissioners, and submitting their report, which briefly recounted their proceedings and conclusions. (Inclosures 1 and 2)

Some days afterward, the Tsung li Yamen gave to the legations copies in Chinese of the voluminous mass of testimony collected in Cuba, arranged under 51 headings, and giving the depositions of near 1,200 coolies, added to which are 1,665 separate names, appended to 85 petitions. Subsequently, on being informed of the impracticability of translating this mass of matter, single copies of the English and French texts, prepared by Messrs. Macpherson and Huber, were furnished.

On the 1st of March, Prince Kung addressed me a communication expressing his thanks, and those of the minister of the Tsung li Yamen, for the friendly aid extended to the commission by the several consuls of the United States in Cuba, and asking me to inform you of the same, on behalf of the Yamen. (Inclosure 3.)

Remembering that I was expected to act as one of the arbitrators in the issue between China and Spain, I simply acknowledged receipt of the various communications and documents received, expressing no opinion thereon; and the same course was pursued by my colleagues of Great Britain, Russia, France and Germany. It will not be improper here, however, to briefly state the case of China as it is presented by the papers from the Yamen and the commissioners.

The treaty of 1864 provides for free emigration only, and the complete protection of the emigrant, with leave to return to China at the expiration of his service. In violation of this treaty, Chinese have been kidnaped by force or inveigled by falsehood. They have been confined and treated like prisoners in the barracoons at Macao, denied access to friends, intimidated or deceived into signing unjust contracts, shipped like slaves, and cruelly treated on the voyage. Eight or nine out of every ten have been conveyed to Cuba against their will. Among the kidnaped were some persons of literary and official rank, who are now held to unwilling labor. Many jumped overboard on the voyage, wild at the fraud practiced upon them, or crazed with the suffering they endured from over crowding, filth, and insufficient food. From the same causes many died in the ship’s hold, and were thrown overboard. Altogether, it is stated that one in ten died on the passage. Arrived in Cuba, their services were sold at a great profit on the cost of transportation. Witnesses state that “each Chinese decoyed or kidnaped was disposed of for a sum varying from $400 to $1,000.” The rate of wages at which they are contracted is, relatively to the higher prices of everything in Cuba, less than they would receive in China, and insufficient for their wants, leaving them little or nothing at the end of a term of labor. Then they are kept at work much beyond the ten hours daily provided in the regulations, are denied holidays, are beaten, and mutilated, and insufficiently fed, and from these causes die in large numbers. When their contracts expire, instead of being allowed their freedom, if they refuse to recontract themselves they are treated as vagrants and put upon the public works like convicts, until they re-engage themselves, or are sold into service. At the end of their second contract they are again subjected to the same mistreatment. Murders and suicide, sickness and death follow, such a wretched existence in many cases; and out of more than 140,000 who have gone to Cuba since 1847, when the traffic began, only 60,000 remain alive. Thirty thousand have died since the treaty was made in 1864. Of the 142,422 Chinese in all who have gone to Cuba, 99,149 went from Macao alone, and 35,694 of this number, after the date of the convention by which Macao was excluded from the localities at which the engaging of coolies was permitted, only 1,200 laborers was shipped from Chinese ports subsequent to the treaty made with Spain; for at those ports the imperial customs authorities and foreign consuls were an effective check on the trade of crimps and kidnapers. The commissioners say that nearly all the coolies they met in Cuba bore evidence of ill-treatment and had tales of suffering to tell. They would gladly return home, but the withholding of certificates of completion at the end of terms of labor, the detention in depots, the forced re-engagement for long terms, the treatment of them when disengaged as vagabonds, the extortions practiced upon them, the high rates at which passports are charged, make escape from the island extremely difficult.

Altogether, the evidence goes to show a system of fraud, perfidy, and cruelty unsurpassed in the annals of negro slavery. It is quite likely that some of the depositions may be dishonest or exaggerated; that the very worst features of the coolie traffic are put most prominent, and that some things charged as wrongs may be justified or satisfactorily explained; but, after making these charitable allowances, there is a large residuum of simple truth, going to show such injustice and inhumanity as makes one shudder.

When the representatives of the five powers came to study the case as presented in the documents submitted to them, and reflected how closely the Spanish charge was likely to contest every point in the indictment against the colonists, it was evident that arbitration would be long and laborious. At a preliminary conference, it was determined to await a formal request from both parties to proceed with the case, to demand copies of all correspondence between them, and to exact from the Tsung li Yamen, who seemed to have very one-sided notions of arbitration, a distinct promise to abide by the decision which might be reached. Mr. Otin protested against the distribution to other legations than those concerned in the arbitration of the com mission-reports, holding that they were privileged papers, intended only for the use of the arbitrators. His protest, which was made before the testimony had been copied and circulated, the yamen disregarded; whereupon Mr. Otin renewed it to the five representatives in the terms of his communication inclosed, which the five representatives sent in to the yamen with their indorsements. (Inclosure 4.) The yamen thereupon agreed to make no further distribution of documents outside of the council of arbitration. Before this promise had been made, Mr. Otin, vexed at what he considered a breach of fairness, had resolved to suspend relations with the yamen, but was dissuaded from such a step by his colleagues.

Meanwhile, the propriety of finding a shorter and easier mode of settlement of the difficulty between China and Spain was taken into consideration. Such a settlement was desirable for the sake of stopping as soon as possible the abuses complained of in Cuba, and because arbitration, while it would involve protracted labor, might not have as decisive and satisfactory a conclusion. Moreover, there were likely to be changes in the personnel of the arbitrators. The German chargé, Barron Holleben, was about to be transferred to Japan, and Mr. Wade, the English minister, was on the eve of making a visit to Europe. Mr. Otin, on his part, was expecting the arrival of a newly-appointed minister, Mr. Farraldo, from Spain, and was naturally anxious to have the credit of settling a long-standing trouble secured to himself before his departure. As dean of the diplomatic body, Mr. Wade had sounded the yamen on a proposal to refer the question to the head of some foreign government; but this they declined to do. Finally, it was proposed that the five representatives should act simply as mediators, and with this purpose they procured from Mr. Otin a project for a convention, looking to redress and reform on the subject of emigration. This project, though far from meeting the views of the five representatives, they concluded to submit to the Tsung li Yamen as a basis of negotiation.

At a joint conference of the ministers of the yamen, the representatives of Great Britain, Russia, the United States, France, and Germany, and the Spanish chargé d’affaires, held on the 2d of March, Mr. Mayers, of the British legation, acting as interpreter, the Tsung li Yamen consented to accept our mediation, but insisted, as a preliminary condition, upon the return to China, at the cost of the Spanish government, of the Chinese of literary and official rank, twelve or more in number, alleged to have been kidnaped to Cuba. To this demand Mr. Otin finally assented, only stipulating for an investigation by the Chinese authorities into the facts of each case on the arrival of the men in the empire. His project was then given to the ministers of the yamen, who promised their answer at a conference appointed for the 4th of March.

The project provided for the appointment of a Chinese consul-general at Havana; for free emigration only from all Chinese ports open to foreign trade; for the making of labor-contracts only on arrival at Havana, and then before the Chinese consul; for a deposit of homeward passage-money with the consul; for shorter terms of service at higher wages; for residence of Chinese on the island after their term of labor without re-engagement, upon the guarantee of some respondent; for efficacious measures of protection by the Spanish government; for the preparation of new regulations, to be approved in Peking.

This project had, doubtless, a good intention and some good features, but was vague in most that related to the protection of the Chinese. At the conference held on the 4th of March the Tsung li Yamen expressed their sense of this defect, and submitted a brief paper, (inclosure 5,) in which they asked, “What action is to be taken with regard to those who have been ill-treated and have died, and those who have been ill-treated and whose contracts have expired, as, also, those whose contracts have not expired?”

Being pressed for a definite statement of what they wanted, and asked whether they clearly understood that instant settlement by mediation, and not a tardy one by arbitration was intended, they finally, after much repetition and circumlocution, asked for an answer to the question, “If China was exculpated, by the evidence, from a wrong to Spain by stopping emigration, “stating that they understood and accepted the offer of mediation, but thought that they were entitled to an answer on that point from the five representatives. As the question put was the very issue to be decided by the ministers judicially, should mediation fail, and their functions as arbitrators be resumed, it was obvious a direct answer could not be given without such a prejudgment of the case as would make arbitration by the same parties impossible. We responded to that effect, but stated that we were prepared to admit the existence of certain abuses which it was desirable to rectify, and that, in our judgment, Mr. Otin’s project, though imperfect in its present shape, could be made to furnish the needed remedy, particularly by the appointment of a consul. They said they were ready and determined to appoint a consul, but could not see how that met the wrongs already endured. They wanted redress for the past. It was explained to them that a consul would hear all complaints of past and present ill-usage. If any Chinese were unlawfully held to labor, or unjustly treated, they could appeal to him, and on his application the Spanish tribunals would be bound under the new convention to afford redress.

At last, on strong representations being made to them of the cruelty of delay, and on being told that a mere opinion from the five representatives afforded no remedy, and that after some months of arbitration a convention would still have to be agreed upon between the principals, they expressed their wish for the five representatives to consult with Mr. Otin as to how the coolies now in Cuba could have their wrongs redressed. It was decided that the mediators should take away both papers, draw up a protocol themselves, and if it met Mr. O tin’s approval, submit it to the Yamen at another interview. We thought it necessary to inform Mr. Otin that the new mode of settlement, if successful, precluded and set aside, in our opinion, any demand for indemnity on the part of Spain. He was instructed to insist upon indemnity, but his authority to close up the whole matter seeming to be quite full, and the early re-opening of emigration being the grand object on the part of the colonists, he finally agreed to abandon the claim for indemnity and advise his government itself to pay to the planters whatever actual losses they had sustained.

On the 5th of March the five representatives met by themselves to consider Mr. Otin’s project as recast and enlarged by Mr. Wade, according to mutual suggestions. With some further modifications it was approved. On being presented to Mr. Otin, he declined positively to accept a clause providing for the return to China by the Spanish government of all Chinese whose terms of labor have expired. This clause was modified to provide only for the repatriation of those incapacitated from labor, in addition to the people of rank heretofore mentioned. As to others, they were to be permitted tore-engage themselves under the new rules for a length of time only sufficient to earn their passage-money, and were then to be given passports.

On the 8th of March the protocol for a convention was sent to the Tsungli-Yamen, as it reads in the inclosure, (inclosure 6,) with a request that they would appoint a conference for discussion and explanation. On the 11th of March the last conference with them was held. We then expressed our conviction that, while the convention did not concede all that was desired, it nevertheless offered great advantages to China, and ought to be accepted. It put an end to a long-standing quarrel which, left open, might yet have serious consequences. It abandoned all claim to indemnity. It abandoned the Spanish treaty-right to make labor-contracts in China, leaving the laborer free to engage himself before his consul at Havana, and for a limited period. It closed the barracoons and put an end to kidnaping. It afforded full protection for the future. It opened the Spanish tribunals to the complaints of the coolies in the presence of their consuls. It enabled the Chinese government to dictate the regulation of details as to terms of service, rate of wages, and repatriation. It returned a considerable number directly, at the expense of the Spanish government, and opened a way for the return of all others. Besides all this, Mr. Otin engaged to move his government to direct its attention to the laws affecting the treatment of coolies, and the five representatives promised to invoke the good offices of their respective governments in the same direction.

The ministers of the Yamen admitted that the convention contained some good features, and thanked the mediators for their exertions and good will; but they could not be brought to accept it. They demanded first of all, as a proof of the good faith of Spain, the repatriation of all the thousands who have served out one contract; and as for the future, they alleged the sufficiency of the regulations of 1866. These regulations were made in a convention with France and England, which those countries never ratified, and which, therefore, has no treaty validity, although the regulations were voluntarily adopted and ostensibly acted on by Spain. The Yamen also submitted lengthy memoranda (inclosure 7) on Mr. Otin’s convention. They insisted that Chinese whose contracts, whether for five years’ service, or less, have expired, shall be given certificates of complete service, funds for return, and permits for departure. They demanded the repatriation of all Chinese who were under age when they were deported, and of all aged persons—say above fifty or sixty—whether their contracts have expired or not. They proposed, besides, many things in detail of an impracticable character, or which should be matters of regulation after the negotiation of a convention. Moreover, they seemed to hold the mediators responsible for the procurement from Spain of all they demanded. In their memoranda they assumed that we had admitted the truth of all that is set forth in the report of the Cuban commission, which assumption we were obliged to deny emphatically, repeating what we really had admitted, that there are some abuses which it is desirable to redress.

The conference broke up without any result, except a determination on the part of the mediators to address to the Yamen a final note, stating what we thought to be practicable in their demand, recommending them to accept the convention, and declining further efforts at mediation unless they should do so.

With the most earnest disposition to achieve a settlement that shall provide for humane treatment of the poor coolies, prevent any but voluntary emigration on fair terms in the future, and do justice to China without offending the amour propre of Spain, the five representatives have found their task so far very trying and difficult. The Chinese feel so strong in their case that they evidently expect arbitration would result in a verdict more satisfactory to their pride than a friendly settlement on a basis of mutual concession. It is useless to reason with them further. They are far more likely to come to terms if we present to them squarely the alternative of indefinite prolongation of a quarrel already of three years’ standing, which may possibly be made more un-pleasant for them by the course that the new Spanish minister may pursue.

The form of a note to them in accordance with the views above set forth was drawn up and presented to his colleagues by Mr. Wade on the 23d instant. But at the same time he announced his withdrawal from mediation, pending the non-settlement of a grave issue with the Yamen on his own account, arising from the perfidious attack on an English exploring party in Yunnan and the murder of one of its leaders under circumstances of great barbarity, which will be detailed in another dispatch. Considering Mr. Wade’s relations to the diplomatic body as its doyen, and wishing to support him in his demand for satisfactory reparation as a matter of humanity and common interest, it was decided by his four associates in the cooly business, including the newly-arrived German minister, Mr. Yon Brandt, that they would also decline to proceed for the present. Their note to this effect is sent herewith, (inclosure 8.)

At a personal interview, held with the Yamen on the 24th instant, they referred to our note, and hoped our good offices were not to be quite withheld. Expressing their inability to understand why a difference with Mr. Wade should prevent the remaining four ministers from proceeding with the cooly affair, I told them that the sooner they could settle with Mr. Wade the sooner we might hope to reach a happy conclusion of our mediation, assuring them of the common disposition to make it a just one. As they seemed to desire it, I explained familiarly the good features of the convention, and expressed my conviction that it was hopeless to expect the concession of wholesale repatriation, declaring at the same time that I would not counsel the acceptance of the convention if I did not think it promised as large a measure of redress, protection, and prevention as could be obtained.

I am afraid there is more of pride than humanity in their present attitude, but am still not without hope that they may ultimately listen to reason, and do what they can,, if they cannot do what they would. Mr. Otin has probably conceded all that he feels any confidence his government will be willing to ratify. He has certainly conceded much more than will be satisfactory to the Cuban planters and the emigration-agents who have heretofore profited by injustice and cruelty.

Under his convention emigration would indeed be free. As Macao is closed to the cooly traffic, Chinese laborers could be procured only from Chinese ports, where, as I have said, the imperial customs-officers and foreign consuls—certainly those of the United States—would be alert to prevent an illicit traffic.

I have, &c.,

Joint report of the Commissioners Chan Lan-pin, A. Macpherson, and A. Huber, addressed to the foreign office, sent with the preceding.

On the 18th of November, 1873, we received the following order: “It having been decided, to make careful inquiry into the condition of the Chinese laborers now in Cuba, with a view to some action in reference to them, the foreign office has appointed Chan Lan-pin, a titular prefect, now in charge of the pupils sent abroad for education, to be the commission for this inquiry, and have selected A. Macpherson, customs commission at Han-kow, with A. Huber, holding the same post at Tien-tsin, to join him, as soon as is convenient, and together proceed to Havana.” The above was reported to the throne on the 21st of September, and the rescript was received: “Let it be as decided. From the Emperor.” “The chief commissioner will await the arrival of his colleagues in the United States, and they will then all proceed to the Spanish possessions, there to carefully inquire into the condition [of the coolies]. After this has been done, they will make a report upon the subject, and furnish all the evidence obtained, in order that the government may decide what course then to adopt.”

This order was acknowledged on the 20th of November, with the details and directions to be followed, as is already on record.

Mr. Huber reached the United States on the 12th of February, 1874, and on the 19th of that month he started for Cuba with the commissioner Chan, arriving at Havana on the 17th of March, where they met Mr. Macpherson. On the 19th they paid a visit to the governor-general of Cuba and the prefect and municipality of Havana; and after that, successively called on the consuls of Great Britain, France, Russia, United States, Germany, Sweden, Denmark, Holland, Austria, Italy, and Belgium. On the next day we examined the slave-mart of Ibanez & Co., and on the 21st we visited the cooly-depots belonging to the city; and, afterward, between the 22d and 28th days of March, revisited them all.

On the 30th and two following days we examined the city prisons; and the sugar-plantations of Las Canas on the 3d and 4th of April. On the 8th of April we went to Matanzas, successively visiting the prisons and cooly-depots in the town, together with the plantations of San Cazetano, Concepcion, and Armonia, and their cooly-houses.

On the 14th we went to Cardenas and examined its prisons and cooly-depots; and on the following days visited the sugar-plantations of Cesperanza, Recreo, and San Antonio. From thence, on the 16th, we proceeded to Cimmarones, a town on the seaside, and on the Colon, looking into their prisons and cooly-depots, and visiting the sugar-plantations of Espãna and Flor de Cuba, and their cooly-houses.

On the 21st, on going to the town of Sagua, we saw the prison and depots, and then went to the plantations of Santa Anna, Santa Isabella, and Capitolio, looking through each of them. Three days after, we reached Cienfuegos, looked over its prison and depot, and went through the sugar-plantations of Juanita and Candelaria.

On the 28th we came to the town of Guanazas, examined its prison and depot, and two days after returned to Havana, through the seaside town of San Antonio. On the 2d of May we went over to Guana Bacao to examine the sugar-plantations of Santa Catalina and Reglas.

At all the towns here mentioned, except at the inns and along the roads, when we met any Chinese whom we could ask, we were obliged to make arrangements with the local magistrates as to the time for visiting the depots and prisons; and they also always stated the hour beforehand when we could go through a sugar-plantation to make inquiries. As to the coolies whom we, the three commissioners, personally examined, their testimony was that fully eight of every ten were taken away from China by force or fraud. They estimated that out of every ten coolies who went aboard ships, one, at the least, died by cruel beatings or committed suicide; when the coolies reach Havana they are sold as slaves, in a few cases to live in families or shops, and there fare badly enough; but by far the greatest number are sold to work on the sugar-plantations, where their treatment is cruel beyond endurance. In those plantations the work is excessive, the food is very insufficient, the hours of labor are far too many, and the punishments inflicted, and the harsh usage the coolies there receive, beating and whipping them, locking them up or fastening them in stocks, altogether make their lives miserable.

Every year numbers of them are beaten or wounded so that they die; others hang themselves or cut their throats, drown themselves, take poison, or jump into the sugar-boilers. The evidences of the bad treatment they have received are still to be seen in the cases of maimed and lamed persons, or those whose eyes are out, teeth gone, or ears cut off, and others whose heads are broken, skin torn or flesh cut, and the number of these persons is not small, as everybody can see for themselves.

Still again, when the term of contract has expired, the employers will not give the coolies their papers showing that they have fulfilled it, but compel them to enter into a new contract, perhaps for eight, perhaps for a period of ten, years or more. If they do so, then their sufferings and ill-usage go on as before; but if they refuse they are immediately sent to the government depot and made to work on the roads without any pay, being treated in all respects like condemned criminals. This is all done that they may be obliged to enter into a new contract with their employers before they leave the depot. When this contract time is up they are again sent to the depot, and it may be after that a third time; so that not only has the cooly no prospect .of ever returning home, but more than this, he can never seek work for himself.

Those who have arrived since April, 1861, have none of them had passports or papers given to them showing that they had fulfilled their contracts, and such persons can be arrested by anybody; but even those whose contracts have expired, and who have papers, are always liable to be stopped by the police, in the houses or by the way, and examined, their papers forcibly taken away and destroyed, and they sent to the depot, there to enter upon another course of ill-usage, without hope of its ending.

It is our opinion that, from the 17th of March to the 8th of May, while we were in Cuba, most of the coolies whom we saw had been badly treated, arid those we asked about had usually their tale of sorrow to relate. The number whom we, the members of the commission, saw and heard, and whose depositions we took down, is altogether 1,176; added to which there are 1,035 separate names appended to eighty-five petitions. These have all been translated into Chinese and English, and arranged for reference; they are now all handed up for the examination [of the foreign office]. Besides these documents, we have arranged the answers to the series of fifty-one inquiries given to us as a guide in 1873, giving the evidence obtained under each head as the response to it. A report from the British consul-general, and one from the Cuban cooly-office, containing the number of laborers arriving each year, are attached, together with the rules of the cooly-office, the directions given to masters of vessels by Cuban merchants, eight different forms of contracts, old and new, and the record given us of persons passing through this office. Each paper has been translated, and is appended to this report, which is now presented in its complete form.

The result of the inquiries made by the commission as to the carrying away of Chinese laborers by force to the island of Cuba, and the circumstances under which they are there most cruelly treated as slaves, are now all fully given in this report, of which we humbly request that a careful examination be given.

FORM OF CONVENTION, BY MR. OTIN.

Preamble.

The governments of His Majesty the King of Spain and His Majesty the Emperor of China, being desirous of fixing in a permanent manner the intent of Article X of the treaty of Tien-tsin (1864) concluded between the two nations, and avoid all future controversy regarding the emigration of Chinese laborers to the island of Cuba, have now, through the mediation of their respective representatives, agreed to put in order, and trust and hold as good and valid, the following articles of the present convention:

• The Chinese government having presented a list of persons holding a certain social rank in their own country, who are now in Cuba in the capacity of laborers, the Spanish government, animated by a desire to give China a proof of its good will and friendship, engage to return these persons to their own country at its own expense, relying on the assertion which the Chinese government has made as to their social position.
• The Spanish government will receive in the courts of justice in the island of Cuba the individual complaints presented by Chinese subjects to the delegate Chan. These tribunals will examine one oy one all the complaints, and decide them according to the principles of justice found in the laws of the land. Chinese subjects can be represented before these tribunals by their consul or his delegates, who can take part in the sittings in the quality of proeuradores. Kales shall be drawn up between the Chinese consul and the local authorities, for the purpose of securing the registration at the consulate of all immigrants on their arrival in the island, and the necessary control and protection before and after their engagement.
• Every cause of complaint between Spain and China having been arranged, each of their governments declares that they renounce all pecuniary indemnity. These three articles shall have the same force and value as the preceding convention, of which they form part.
• The Chinese government will authorize free emigration to the island of Cuba from all the ports open to foreign commerce, and engages, in the most formal manner, to put no obstacle nor otherwise hinder or interfere with the free resort of emigrants to these ports. The officials in the prefectures will no more oppose the posting of handbills throughout the towns and villages in the interior, informing people of the departure of vessels for Havana. .
• The government of Peking will nominate a consul-general, (Manchu or Chinese,) who shall reside permanently at Havana. This functionary shall have the same attributes and prerogatives as are enjoyed in the island of Cuba by agents of the same class from other countries. The local government of Cuba shall give to the Chinese consul every facility for having intercourse with other Chinese subjects, and for examining and registering their contracts at his chancery.
• Chinese subjects desirous of emigrating to the island of Cuba to seek employment, shall be allowed to do so freely, without being restricted by a contract, under the direction of a ship-owner, who will transport them to Havana, where they may enter into contracts for their labor before the Chinese consul, with the employer they have chosen, and for the remuneration which shall be agreed upon in view of their fitness for the kind of labor they are wanted for, and the wages given to freemen of their race. The Spanish representative at Peking, and the Tsung-li Yamen at Peking, shall unitedly determine the form of these contracts.
• The period of this engagement shall not overpass the time necessary to re-imburse the ship-owner, or his agent, by a deduction of a half or a third of the wages of the laborer, for the expenses incurred by reason of equipment, transportation, and feeding, the total outlay for which shall be inserted in the contract of engagement. Every other advance to the laborers is interdicted, except in cases of sickness. At the expiry of the engagement, the employer shall deposit in the chancery of the Chinese consulate at Havana, the sum of one hundred Spanish dollars in gold, or its equivalent, as an assurance to the emigrant that he will be sent home. The emigrant shall re-imburse his employer for this sum by prolonging his time of service under the same conditions he contracted for at the first period of service. The conditions now stated in this article are to be expressly mentioned in the original contract.
• If the laborer tries to evade, or if, for any other cause, as death, he is unable to work out all the time of his second period, that portion of the funds set aside for his repatriation which he has thus failed to re-imburse his employer, shall be repaid to the latter, and the remainder shall be retained by the consul, and applied to objects of benevolence for the good of Chinese living in the island of Cuba. In case of death, this fraction of this fund for repatriation shall be remitted by the consul to the family of the workman, with the product left by will to his heirs. This sum of one hundred Spanish dollars, in gold, or its equivalent, shall remain on deposit at the Chinese consulate, and shall not he paid over to the workman until the moment arrives for sailing on his return home. An exception is made to this, however, in the case of such laborers as have, at the expiration of their contract, and with the consent of the local authorities, obtained from their employers some land in métayage, (allotment,) from which they shall have thenceforth the right to receive the funds for repatriation. Those Chinese who shall be found in Cuba, at any time, in a state wholly unable to labor, on account of their infirmities, shall be sent back, on their demand, at the charge of the Spanish government.
• When the contract time has been once worked out, the Chinese laborer shall go home, or shall hire himself out to anybody he chooses for himself, at such conditions of time, wages, and other points as the two parties can agree upon. He may continue to reside on the island free of all engagement, provided that he offers a surety, who will act as his bail, and is acceptable to the local authorities competent for this purpose. Those Chinese who have immigrated with their families can reside in the island without any sureties.
• Those Chinese who are found in the government depots shall be provided with contracts in accordance with the new plan to defray the expenses of repatriation contained in the preceding (VIIth) article of the convention.
• The Spanish government will accord the most efficacious protection to all Chinese subjects residing in the island of Cuba.
• The carrying of the emigrants can be done by vessels of any nation having a treaty with China, provided that their accommodations shall be found to fulfill the regulations imposed by their own government for the transport of emigrants. The Spanish representative at Peking shall draw up the particular rules to be observed by Spanish vessels which shall engage in the transport of Chinese emigrants to Havana.
• The special articles contained in the present convention shall be in full force and vigor after their ratification, which shall be done within ten months, or sooner, if possible; and none of them shall be altered or annulled without a previous examination of the reason for doing so. A previous notice of at least two years shall be given to the other party whenever such an intention exists.

Done at _______.

Comments of the Tsungli Yamen on Mr. Otin’s form of convention.

• Inasmuch as at the interview which took place on the 4th instant, at the French legation, between the ministers of the Yamen and the representatives of the five powers, with the chargé d’affaires of Spain, it was acknowledged by the ministers of all the powers that there is nothing but what is true in the accounts of ill-treatment of the Chinese in Cuba, elicited by the commission of inquiry, the Chinese government and the foreign ministers are consequently in accord upon this subject. All that is now needed is to arrive at an understanding with the ministers of the five powers and of Spain, on the course to be pursued for the deliverance of the 60,000 Chinese who are in a state of suffering.
• It was agreed on the 2d March, by the ministers of the five powers and of Spain, that the Chinese of official or literary rank or connections now in Cuba, who should not be in the position of contract-laborers, should be repatriated by the Spanish government, and, after investigation by the Chinese government, should be sent back to their homes.
• The ministers of the five powers, and of Spain, are requested to decide what steps are to be taken with regard to those Chinese who have died in Cuba [after] suffering under cruel usage, on the actual number of such individuals being ascertained by the Spanish government on receipt of information from the Spanish minister.
• To all Chinese who have completed the period of five years’ contract-labor, or any period less than five years, for which they may have engaged, there shall, without exception, be given certificates of the completion of their term of service, together with funds for their return-passage, and a permit for departure, allowing them to return to China. The passage-money issued to them shall be in cash, not in paper money. To any Chinese who, having completed their term of service, may be willing to remain in Cuba as laborers, the authorities shall give certificates of completion of their five years’ service, and allow them to find employment as they may see fit. They are not to be restricted to re-engagement with their late employer only. On a further engagement being entered into, the employer must assign them, for purposes of distinction, a separate lodging place, and not quarter them indiscriminately with the laborers still serving under their original contracts. Chinese, whose original contracts have expired, shall, in all cases, be authorized to make application on their own behalf to the authorities for either the certificate of completion of five years’ service, or else the permit of departure and passage-expenses, at their own option, without the necessity of providing themselves with a guarantor. As regards the laborers whose term of contract has not expired, in addition to affording them full protection and treatment, in conformity with the emigration convention of 1886, they shall be allowed each day, on the completion of their work, to go out and move about as they please without written permits.
• Passage-money, in specie, and permits of departure, shall be given to all Chinese belonging to the following categories:
  • Those who arrived in Cuba under the age of twenty without certificate of permission from their parents, or from the authorities, and whose contract-term has expired.
  • Those below the age of fifteen, who have arrived without their parents, no matter whether their contracts have expired or no.
  • Those above the age of fifty, whose contracts have expired.
  • Those above the age of sixty, whether their contracts have expired or no.
  • Chinese females employed as laborers in Cuba, not in the island as the families of male laborers, whether their contracts have expired or no.
• Persons answering to the above descriptions shall be duly forwarded back to China.
• Employers of laborers in Cuba shall not be allowed to maintain prisons or lock-ups of their own in which to confine Chinese laborers, nor to set Chinese laborers to work in fetters, or to torture and flog them; neither shall laborers, whose contracts have expired, be sent to the government depots to labor or to enter into fresh engagements. If all the above-indicated various forms of ill-usage be vigorously suppressed, and the laborers treated as they are by the other foreign governments, there is no reason whatever for assuming that a laborer will desert from the service of his employer. In the event, however, of such a case, perchance, arising, the employer shall not be at liberty to inflict punishment of his own notion. He shall send the delinquent to the Chinese consul to be tried and dealt with in conformity with the principles of justice.
• In appointing a consular representative, the Chinese government may request the consul of one of the powers with whom it has treaty relations to undertake the duty for the time being, and [the representative thus appointed] shall be empowered to use “the fullest efforts for the protection of the Chinese laborers. Guilds, constituted by the natives of Kwang-tung, Fuhkien, &c., shall be further established at Havana, and the other ports of Cuba, the managers of which the Chinese shall be allowed to elect themselves. The Chinese laborers shall be allowed free access, at all times, to these guild-houses, in order to make statements of any kind.

The Chinese government shall establish lines of steamers or sailing-vessels to ply to the ports of the island, for the carriage of letters, or for the conveyance of Chinese backward and forward in the prosecution of their business, wherever it may take them.

Finally, the point of paramount importance with China being the deliverance of Chinese laborers who are at present in a condition of suffering, and the important point with Spain being the conduct of emigration in future, all that is necessary is, that Spain should institute measures for the deliverance of the laborers who are at present in a state of suffering, and should repatriate all those who are entitled to be sent back to their own country. A guarantee for the protection of the emigrant will then have been given. It is known to all the powers that China has allowed the Spanish government to carry on emigration under the convention of 1866, while in Cuba, the regulations heretofore established are, in a number of ways, at variance with the terms of the convention. On the two following points, viz, in what manner the existing regulations are to be brought into accord, [with the convention,] and whether the employers of labor in Cuba can be depended upon to act in obedience to the arrangements that may be consented to by the Spanish minister, and not to institute enactments of their own for the oppression of the Chinese laborers, an agreement of the most formal nature must be entered into by the ministers of the five powers and of Spain.

Further comments by the Tsungli Yamen on Mr. Otin’ form of convention.

Article I. Satisfactory.

Art. II. The proposal embodied in this article, involving active judicial proceedings and decisions, owes its origin to the assurance given by his excellency Pai, [M. Pereyre,] the Spanish minister, to the effect that on evidence being obtained as to the place at which acts of cruelty have been committed, and the individuals by whom they have been perpetrated, his excellency would not fail to inflict punishment for the offense. It has to he observed, however, that in the inquiry conducted by the Commissioner Chen, the number of persons from whom statements and depositions were taken does not amount to one-tenth of the entire number of the Chinese in Cuba. The scope of the article requires adaptation and enlargement. The following modification is proposed: [After the words “the Spanish government will receive in the law courts of the island of Cuba the individual complaints presented by Chinese subjects to the Commissioner Cheñ,” the following words to be added,] “as also the circumstances set forth in the depositions taken, and furthermore [the complaints] of Chinese subjects who were not examined by the Commissioner Chen, or of any Chinese who may hereafter be in Cuba under circumstances of a similar kind to those elicited during the inquiry.”

The Chinese laborers being in urgent need of deliverance, the principle of first importance at the present moment is the establishment of measures for their succor and repatriation, and their efficacious protection. The trial in due form of law of the employers who have ill-treated the laborers, stands second in order of importance.

The ministers of the Yamen have, consequently, now draughted a scheme for the immediate protection of the Chinese emigrants, which they present in a separate paper for deliberation. (N. B.—The conditions of the Spanish laws hitherto must be ascertained.)

Art. III. Satisfactory.

Art. IV. This article deals exclusively with sanction on the part of China to emigration conducted by Spain. On this subject there are already in existence the tenth article of the Spanish treaty, and the emigration convention of 1866, which suffice as a basis for action. There is no necessity for additional articles on the subject. If it be desired to add anything further, it is proposed that what is added be placed in the shape of one or two clauses at the end, [of the agreement,] with the declaration, moreover, that when the measures stated in the preceding articles for the protection of the Chinese laborers have been bona fide given effect to, emigration may be undertaken for the supply of labor to the island of Cuba, in accordance with Article X of the Spanish treaty and the convention of 1866.

Art. V. With the exception of the paragraph to the effect that “contracts shall be given to the Chinese at present in the government depots, in order that they may provide themselves with means for the return passage under the arrangement set forth in Article VII,” the purport of this article is quite satisfactory, and it is the wish of the Chinese government to act in the manner therein set forth. But in the urgent necessity which exists for effecting the deliverance of the Chinese laborers, justice and the circumstances of the case forbid that the institution of measures for their protection should be made absolutely dependent on the appointment of a consul. The measures laid down in the separate memorandum, handed in by the ministers of the Yamen, must be put in action. After these shall have been carried into effect, the propositions of the article now in question can be proceeded with.

With reference to the Chinese at present detained in the government depots in Cuba, inasmuch as they are all men whose contracts have expired, it is manifestly right, that they should, without exception, be released and provided with means for their return to China, as it is set forth in the separate memorandum.

Art. VI. This article is not in harmony with the eighth and other articles of the convention of 1863. Having the convention of 1866 as a rule of action, it is considered that no additional arrangements need be discussed.

Art. VII. This article is not in harmony with the ninth article of the convention of 1866. The convention of 1866 being in existence, it is considered that no additional arrangements need be discussed. The concluding paragraph, however, to the effect that “Chinese who may be incapacitated from work by physical infirmity, shall be sent back to their own country by the Spanish government, on their application to this effect,” is extremely satisfactory, and should be complied with.

Art. VIII. Of this article, the first portion is satisfactory. The clause relating to a person acting as guarantor gives reason to apprehend that it may be made use of by the Cubans as a handle for obstructive and vexatious practices. For the clause in question it is proposed to substitute the following: “Chinese who may elect to remain as residents in the island of Cuba shall be entirely at liberty to do so, and shall be treated on precisely the same footing as the subjects of the five powers whose representatives join in the present negotiations. They shall not be looked upon in the light of negroes.”

Art. IX. Satisfactory.

Art. X. This article, also, is concerned with the course to be pursued after emigration has been sanctioned. In the same way as is stated in Articles IV and V of the present memorandum, consideration of the proposal should be postponed until protection to the emigrants has been actively provided.

The regulations established by the different foreign powers (for arrangements on board vessels carrying emigrants) should be sent to the Yamen for examination after the conclusion of the pending agreement.

Art. XI. For all matters relating to Chinese emigration, the convention of 1866, concluded by the Chinese government with the ministers of Great Britain and France, affords a rule. When protection for the emigrants shall have been actively provided, action can, of course, be taken in all respects conformably to the convention of 1866.

Art. XII. Inasmuch as the Chinese now in Cuba are in urgent need of deliverance, it is necessary that immediately after the conclusion of the pending agreement, the repatriation and protection of the Chinese emigrants be carried into effect as soon as possible. The provisos with reference to the protection of Chinese are, in fact, arrangements in fulfillment of treaty obligation, and as the treaty has long since been ratified, there is no need to make any further arrangements respecting the period of ratification. Air that is necessary is that the emigrants of the present be afforded protection, whereupon permission can be given to engage the emigrants of the future. How soon this is to be, and whether it is to take place or no, is solely dependent on the question whether or no Spain can afford the protection in question. It is considered that the provisions relating to a period often months [for ratification] and to future modifications, need not be included in the document.