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Secretary of State declaring that "the policy inaugurated by Mr. Bur. lingame and Mr. Seward at Washington
was essentially an American policy in its inception and is so regarded in the Chinese mind." (U. S. Foreign Relations, 1870, p. 332.) A third time the Government of the Uuited States sept its ambassadors to Peking to negotiate new treaty compacts in 1880, and the spirit in which they were received and their requests attended to are stated in my note of Jan. uary 26 and need not here be repeated. When, it is remembered, therefore, that the treaty relations between the two nations were established at the express solicitation of your Government, and that its every request for further stipulations or modifications has been met in the highest spirit of complaisance, I think you must sympathize with my astonishment that the body, which itself initiated this policy and which represents the intelligence and justice of the great American people, should trample these treaties under foot and grossly offend the nation which bas always held these compacts in such sacred esteem. In order to satisfy you that I have not misstated the conduct of China in the history of these negotiations, I beg to close this point with an extract from the declarations of one of your worthy predecessors. When the act of 1888 was before the Senate Mr. Evarts uttered this language:
There has not been an approach that this Government has made to China in our domestic interests, in the questions of our polity, the questions of our naturalization, and the questions of immigrations, that the great nation confronting us has not met us in the most conciliatory and most yielding attitude. (Congressional Record, vol. 19, p. 8453.)
2. The action of Congress in violating treaty stipulations is not justified by its conduct towards other nations, nor by any action of the Chinese Government.
I learn from the message of President Hayes of March 1, 1879, vetoing the act of the Forty-tifth Congress, and also from reading the decision of the Supreme Court, that only once before in the history of this country bas Congress, by its own act, forced its Government to abandon its treaty obligations. Although this nation has entered into a multitude of treaties with all the nations of the earth, President Hayes says there is only one other instance where Congress has ventured upon the course pursued towards China, and that was in 1798, respeeting the treaties with France. He further stated that the action of Congress in that instance “strongly illustrates the character and degree of justification which was then thought suitable to such a proceeding.” The reasons for the act of 1798 are set forth in the preamble to that law. The first was that “the treaties concluded between the United States and France have been repeatedly violated on the part of the French Government.” Can any such charge be brought against China? Has not my Government sacredly kept its plighted faith respecting all the stipulations of its treaties with the United States? The second reason given was that “tbe just claims of the United States for reparation of the injuries so committed have been refused.”_Has not China met and satisfied every just claim ever made by the United States! Is not this so strictly true that only recently your Government, by generous justice, was impelled to return a large sum which China had paid on behalf of claims overestimated ? The third reason given by Congress for refusing to maintain the French treaties was that the attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with in. dignity.” So far from such a state of affairs ever having existed between China and the United States, has not the very reverse of it marked their relations?
If, then, in this single instance existing in the history of the country, no parallel or excuse can be found for the action of Congress, wbere can we look for its justification ? President Arthur, in his message to Congress of April 4, 1882, declared that “a pation is justified in repudiating its treaty obligations only when they are in conflict with great paramount interests. Even then all possible reasonable means for modifying or changing these obligations by mutual agreement should be exhausted before resorting to the supreme right of refusal to comply with them.” Did such a state of facts exist as would justify Congress in applying the principle stated by President Arthur to China? It will be shown later in this note that my Government had already sig. nified its willingness to meet the wishes of the United States, and that it only remained to arrange some matters of detail in order to carry out the desired treaty modifications. Certainly you will agree with me that the time had not been reached when Congress should exercise “the supreme right” recognized by President Arthur as possible.
The Supreme Court, while it prudently abstained from deciding whether the reasons which attended Congress " were good or bad,” did state some circumstances which, in its judgment, would justify the Government in disregarding its treaty stipulations, as follows:
Neglect or violation of stipulations on the part of the other contracting party may require corresponding action on our part. When a reciprocal engageinent is not carried out by one of the contracting parties, the other may also decline to keep the corresponding engagement.
I am at a loss to understand why such reasons as the foregoing are cited by the court, unless it be to show incidentally that Congress was not justified in its action; for the history of the treaty relations of the two Governments, as given by the court itself, makes it clear that neither of the two causes just cited existed respecting China.
3. The action of Congress is virtually a denunciation of all existing treaties, and an invitation to China to terminate all diplomatic and commercial relations.
With a statesman so well versed in the principles of international law as you, Mr. Secretary, I do not think it necessary to argue that the abrogation by Congress, under the circumstances, of an important treaty stipulation, releases China from the observance of all its treaties with the United States. Tbat such is the accepted opinion in this country I need only cite the declaration of two of your public men. Mr Sherman, the chairman of the Committee ou Foreign Relations of your Senate, a gentleman who has a high reputation in all nations for his great wisdom and experience, in discussing the act of 1888 in the Senate, said:
The Chinese Government might at ouce with great propriety and according to the system of civilized nations, upon our refusing to observe existing treaties, declare that all the treaties are null and void. There is no question about that. (Cong. Record, vol 19, p. 8451.)
President Hayes, in his message already cited, declared that “the denunciation by one party of the part, necessarily liberates the other party from the whole treaty." The President further shows that all the exist. ing treaties between the two nations are indissolubly bound together. He says:
Upon the settled rules of interpretation applicable to snch supplemental negotiations, the text of the principal treaty (that of 1858) and these additional articles thereto (treaty of 1868) constitute one treaty, from the conclusion of the new negotiations, in all parts of equal and concurrent force and obligation between the two Governments, and to all intents and purposes as if embraced in one instrument.
When it is remembered, also, that the treaty of 1880 is, in its preamble, expressly made supplemental to those of 1858 and 1868, and that the treaty of 1844 (Wharton's Digest, Vol. II, p. 63) was superseded by that of 1838, it will be seen that the whole series of our treaties stand or fall together.
I can not say what was the intention of your Congress in passing its act of abrogation, and I can only infer its intention by studying the history of the single other instauce where it has adopted a similar course, that with France in 1798 already cited. Notwithstanding the preamble to the act of 1798 states that France had first violated the treaties and repelled with indignity the offers of the United States, it seems to be admitted by your writers of international law that France was entitled to treat the law of Congress as an act of war, and that it was in fact followed by a suspension of all intercourse, by reprisals and preparations for hostilities. Happily, however, the spirit of conciliation which controlled the Executive of your country at that time led to the reestablishment of friendly relations and new treaties.
If in that case, where France was held to be wholly the aggressor, the action of Congress had such warlike significance, what must it be in the present instance, where China has sacredly kept faith with all its obligations? You will not, I am sure, understand this question, Mr. Secretary, to imply a threat on my part. China has in its intercourse with your Government given too many proofs of its pacitic and friendly disposition to justify such an inference. But I think you will not fail to see that some positive and decided action on the part of the Executive head of this nation is called for in order to rehabilitate the treaties and to continue on the same free and friendly footing the commercial intercourse of the two peoples. And this brings me to a further consideration, to which I desire to allude in this note.
4. The action of Congress must be held to be an affront to the Gov. ernment of China.
An examination of the correspondence between this legation and the Department of State and between my Government and the American minister at Peking, will show that at the time of the passage by Congress of the act of October 1, 1888, there was pending between the two Gov. ernments a treaty which had been negotiated and was at that date being considered, with a view to compliance with the usual formalities of ratification and promulgation. The history of that negotiation may be briefly stated. A treaty respecting immigration, transit of Chinese laborers, their residence in and departure from the United States, and indemnity, modifying the treaty of 1880, was signed March 12, 1888. It was soon thereafter submitted to the Senate of the United States, and in due time was by that body ratified with two amend. ments.
The treaty as amended was forwarded to Peking and was considered by my Government also in due time, having in view the great distance and the necessary formalities usual at the Imperial capital in such cases. After consideration at Peking of the treaty as amended by the Senate, the Tsung-li Yamên submitted to Minister Denby certain proposed amendments which on its part seemed desirable to make to the treaty. These suggested amendments were also communicated to the Department of State by this legation. Pending this consideration and these amendments, and before any reply to them was given by either your Department or Minister Denby, the act of October 1, 1888, was passed by Congress and signed by the President. It can hardly be contended that my Government was exceeding diplomatic practice or
courtesy in following the example of the Senate and proposing amend. ments to the treaty. Nor do I think it an unreasonable expectation on the part of my Government to look for an answer from your Department on the amendments before it should be required to decide upon what course it would take upon the treaty as it came from the Senate. I do not overlook the fact that your predecessor, in his note to me of February 28 last, refers to a telegram from London published in the newspaper press of the United States, stating that my Government bad rejected the treaty, as an evidence accepted by Congress that Cbina did not intend to carry out and accept in full faith and force” the pending treaty. But I have yet to learn that it is the practice of Governments to act upon newspaper reports when diplomatic channels of communication are open, and I regret to bave to direct attention, in this connection, to the fact that at the time avd before the act of 1888 was passed by Congress, it was officially known at the Department of State and to Congress that China bad not rejected the treaty. I deem it proper here to add that up to the present date my Goverument has not been advised by the State Department of the views of your Government on the amendments of the treaty proposed to it, and so far as. this legation knows officially the treaty is still pending and awaiting the reply of the State Department to the amendments proposed in the legation note of September 25 last.
I shall not venture upon any characterization of the conduct of the legislative power of this Government, under the circumstances above related, but shall leave that judgment to two of your own statesmen already named in this note. Mr. Evarts, your own predecessor, while the act of 1888 was pending in the Senate, said:
It is the first time in the diplomatic history of this country of an intervention by legislative action while there was a treaty negotiated by this Government in all its constitutional forms pending for adoption by a foreign nation, and this intervention
immediately and absolutely affrouts the foreign nation with the suggestion that we will no longer tolerate any such method of dealing with the piatter between ns. (Cong. Record, vol. 19, p. 8452.)
On the same date and in the same body Mr. Sherman used the fol. lowing language:
I submit as a national honor whether it be right or proper for us to seek to nullify a treaty that is now being considered by a friendly nation. * I frankly say that if our position was reversed and Great Britain was thus to act towards the Amer. ican people, I would without hesitation voto for a declaration of non-intercourse or war. (Cong. Record, vol. 19, p. 8450.)
In this connection I think I should direct your attention to that part of my note of February 25 last, to your predecessor, in which I state that both my Government and myself understood that if we entered upon the negotiation of a treaty covering the questions respecting Chinese laborers the President would prevent by his veto any contravening act of Congress becoming a law while the treaty was awaiting ratification; and that my reason for securing such an understanding was that if the treaty was likely to be overthrown before it went into effect by a domestic law, our negotiations would be worse than useless, even humiliating on the part of China. I can only add to that declaration that if that affront, which I sought to avoid, has been placed upon the Imperial Government it was because of the trust we reposed in the good faith and honorable friendship of the American Government.
5. Tbe Gorernment of the United States must accept accountability for all the injuries and damages resulting from the enforcement of the act of Congress.
It seems from my examination of the decisions of your Supreme Court and the acknowledged authoritative writers on your law in these matters, tbat the Congress bas the power to compel a violation of treaty stipalations, “whether the reasons therefor are good or bad," as the Supreme Court expresses it. But it also appears clear from these same authorities that i be action of Congress does not release the Government internationally from its obligations under the broken treaty. Mr. Wheaton, wlio is recognized not only in this country, but in China and throughout the world, as a high authority, says:
Neither Government has anything to do with the auxiliary legislative measures necessary, on the part of the other State, to give effect to the treaty.
The King can not compel the chambers, neither can he compel the courts; but the nation is not the less responsible for the breach of faith thus arising out of the discordant action of the ivternational machinery of its constitution. (Lawrence's Wheaton, p. 451.)
To the same effect is the opinion of the late learned Solicitor of the State Department, as follows:
Defective or erroneous municipal legislation, by which a sovereign claims to be upable to perform his international obligations, is no defense to a demand by another sovereign for redress for a violation of international duty. (Wharton's Digest, Vol. 1, p. 35.)
The same author gives a digest of various decisions of the Supreme Court on the subject, as follows:
Subsequent legislation may municipally abrogate a treaty which may nevertheless continue to bind internationally. (Vol. II, p. 733.)
By the treaty of 1868, Chinese subjects were guarantied “the same privileges, immunities, and exemptions in respect to travel or residence" in the United States “as the subjects of the most favored nation," and by the treaty of 1880 Chinese laborers now in the United States are "allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, and immunities which are accorded to the subjects of the most favored nation.” Under the operations of these treaty stipulations, during the past twenty years a large number of Chinese subjects bave come to the United States and established very considerable property and commercial interests, to the proper enjoyment of wbich the right of free exit and entrance to the Uniied States is an essential condition, and without the enjoyment of which they will necessarily suffer great hardship and pecuniary loss. The act of Congress of 1888 deprives them of this privilege, which is accorded to the subjects of all other nations. It must be conceded that if this act is to be enforced the Government of the United States should, in justice and according to the principles of international law as interpreted by its own anthorities, be held respousible to the Government of China for all the losses and damages occasioned thereby to Chinese subjects.
But I trust, Mr. Secretary, that some way will be found whereby the hasty and unprovoked action of Congress inay be undone, this wrong and damage to thousands of my countrymen avoided, and the high at front to the Chinese Government and people removed. I can not bat feel that is the late President had followed the example of his predecessors, Presidents Dayes and Arthur, when it was attempted by Congress to disregard treaty stipulations, i like happy result would have folJowed. I recall the noble language of President Hayes when he appealed to the “considerations of interest and duty which sacredly guarded the faith of the nation in whatever form of obligation it may have been given,” and stated that “ our history gives little occasion for any reproach in this regard, and in asking the renewed attention