Mr. Chang Yen Hoon to Mr. Blaine.
Washington, July 8, 1889. (Received July 9.)
Sir: I desire to direct your attention to the fact that it became my serious duty, in a note under date of the 26th of January last, to ask your predecessor to take into consideration the effect of the act of October 1, 1888, of the Congress of the United States upon the treaty relations between the Governments of China and the United States. In a note dated February 2, Mr. Secretary Bayard recognized the highly important character of the matters contained in my note, and promised to make an extended reply thereto, but no such reply has, up to this date, been received by this legation. That distinguished gentleman [Page 133] honored me with two notes, those of February 2 and 28 last, but it will be seen that they were confined to an incidental, though important, point connected with the main question, to wit, whether I had any well-founded basis for the expectation I had entertained that the President would veto the act of October 1, 1888.
Since my notes of January 26 and February 25 on this subject, an important event has occurred, which seems to me to have aggravated this already embarrassing question. I refer to the action of the Supreme Court of the United States which has decided “that the act of 1888 is in contravention of the express stipulations of the treaty of 1868 and of the supplemental treaty of 1880,” but as it is the exercise of a sovereign power vested in Congress, it must be respected and obeyed as the supreme law of the land. It says that it can not inquire whether the reasons for this action are good or bad, because that court can not be a censor of the morals of other departments of government, and that the will of Congress must be obeyed, though it is in plain violation of treaties. You will pardon me, Mr. Secretary, if I express my amazement that such a doctrine should be published to the world by the august tribunal for whose members by personal acquaintance I entertain such profound respect. It forces upon me the conviction that in the three years which I have resided in this country I have not been able fully and correctly to comprehend the principles and systems of your great Government. In my country we have acted upon the conviction that where two nations deliberately and solemnly entered upon treaty stipulations they thereby formed a sacred compact from which they could not be honorably discharged except through friendly negotiations and anew agreement. I was, therefore, not prepared to learn through the medium of that great tribunal that there was a way recognized in the law and practice of this country whereby your Government could release itself from treaty obligations without consultation with or the consent of the other party to what we had been accustomed to regard as a sacred instrument.
I have no desire to lengthen this note by repeating what I have said in my communications to your predecessor on this subject, and confine myself on this point to calling your attention to them, and especially to that of the 26th of January last. But in asking your consideration anew to the question I deem it important to refer to some additional facts which I hope may strengthen the request made in the concluding paragraph of my note of January 26.
1. It is to be noted that the existing treaty relations between China and the United States were brought about at the express solicitation of the Government of the United States. This fact is clearly stated in the historical review contained in the opinion of the Supreme Court. It there appears that the first treaty (1844) between the two nations was negotiated by means of a special commissioner who was sent to China by the Government of the United States for that express purpose. And it is a noticeable fact that the initiatory movement towards this end was taken by the Congress, of the United States, the body which to-day stands before the world as the power which has forced its Government to violate its treaty obligations. (Act of March, 1843, 5 Stat., 624). Not being satisfied with that treaty and desiring more enlarged intercourse between the two nations, another plenipotentiary was sent by the Government of the United States to China and a new treaty was negotiated in 1858. Although the additional articles of 1868 to the treaty of 1858 were negotiated at Washington, they owe their origin to the American minister at Peking, and we find the American [Page 134] Secretary of State declaring that “the policy inaugurated by Mr. Burlingame 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 United States sent 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 January 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 has 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-fifth Congress, and also from reading the decision of the Supreme Court, that only once before in the history of this country has 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, respecting 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 “the 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 indignity.” 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?[Page 135]
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, where can we look for its justification? President Arthur, in his message to Congress of April 4, 1882, declared that “a nation 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 signified 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 engagement 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. That 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 on 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 once 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. (Gong. 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 existing treaties between the two nations are indissolubly bound together. He says:
Upon the settled rules of interpretation applicable to such 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 1858, 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 instance 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 re-establishment 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 pacific 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 Government 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 Governments 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 amendments.
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 Yarnên 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 [Page 137] courtesy in following the example of the Senate and proposing amendments 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 had rejected the treaty, as an evidence accepted by Congress “that China did not intend to carry out and accept in full faith and forced 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 have to direct attention, in this connection, to the fact that at the time and before the act of 1888 was passed by Congress, it was officially known at the Department of State and to Congress that China had not rejected the treaty. I deem it proper here to add that up to the present date my Government 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 affronts the foreign nation with the suggestion that we will no longer tolerate any such method of dealing with the matter between us. (Cong. Record, vol. 19, p. 8452.)
On the same date and in the same body Mr. Sherman used the following 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 American people, I would without hesitation vote 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. The Government of the United States must accept accountability for all the injuries and damages resulting from the enforcement of the act of Congress.[Page 138]
It seems from my examination of the decisions of your Supreme Court and the acknowledged authoritative writers on your law in these matters, that the Congress has the power to compel a violation of treaty stipulations, “whether the reasons therefor are good or bad,” as the Supreme Court expresses it. But it also appears clear from these same authorities that the action of Congress does not release the Government internationally from its obligations under the broken treaty. Mr. Wheaton, who 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 international machinery of its constitution. (Lawrence’s Wheaton, p. 459.)
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 unable 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. 73.)
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 have come to the United States and established very considerable property and commercial interests, to the proper enjoyment of which the right of free exit and entrance to the United 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 authorities, be held responsible 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 may be undone, this wrong and damage to thousands of my countrymen avoided, and the high affront to the Chinese Government and people removed. I can not but feel that if the late President had followed the example of his predecessors, Presidents Hayes and Arthur, when it was attempted by Congress to disregard treaty stipulations, a like happy result would have followed. 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 [Page 139] of Congress to this bill I am persuaded that their action will maintain the public duty and the public honor.” And I am satisfied that even now if his excellency the President will ask the calm judgment of Congress to this subject that high body “will maintain the public duty and the public honor.”
In my note to your predecessor of January 26 I called attention to the assurance given by the ambassadors who negotiated the treaty of 1880, respecting the Chinese laborers in the United States, which you will allow me to repeat in this connection. They said:
So far as those are concerned who, under treaty guaranty, have come to the United States, the Government recognizes but one duty, and that is to maintain them in the exercise of their treaty privileges against any opposition, whether it takes the shape of popular violence or of legislative enactment.
Has not the time now arrived when this solemn promise should be redeemed? You will remember that the ambassadors were so earnest in this assurance that they inserted in the treaty the provisions that whenever the legislative measures enacted “are found to work hardships upon the subjects of China, the Chinese minister at Washington may bring the matter to the notice of the Secretary of State of the United States, who will consider the subject with him,” and the ambassadors added the further assurance that the “Government of the United States would listen in the most just and friendly spirit to the representations of the Chinese Government through their minister in Washington.” In my note of January 26 I suggested an appeal to Congress to undo the wrong and hardships which its action inflicted upon my countrymen; but with your intimate knowledge of your system of government, and with your earnest desire to deal justly and to “maintain the puplic duty and public honor,” you may find a more efficacious and speedy method of satisfying the reasonable expectations of the Imperial Government.
I regret that the considerations which I have felt it necessary to present have made the present note so lengthy, but the questions and interests involved are so important that my sense of duty would not allow me to omit anything which might tend to an honorable and just settlement, and secure the continuance of the friendly relations which have heretofore marked the intercourse of the two Governments.
I improve, etc.,