The second topic which interested the two Governments under the actual condition of things which prompted the Burlingame treaty was adequate protection, under the solemn and definite guaranties of a treaty, of the Chinese already in this country and those who should seek our shores. This was the object, and forms the subject of the sixth article, by whose reciprocal engagement the citizens and subjects of the two Governments, respectively, visiting or residing in the country of the other are secured the same privileges, immunities, or exemptions there enjoyed by the citizens or subjects of the most favored nations. The treaty of 1858, to which these articles are made supplemental, provides for a great amount of privilege and protection, both of person and property, to American citizens in China, but it is upon this sixth article that the main body of the treaty rights and securities of the Chinese already in this country depends. Its abrogation, were the rest of the treaty left in force, would leave them to such treatment as we should voluntarily accord them by our laws and customs. Any treaty obligation would be wanting to restrain our liberty of action toward them, or to measure or sustain the right of the Chinese Government to complaint or redress in their behalf.
The lapse of ten years since the negotiation of the Burlingame treaty has exhibited to the notice of the Chinese Government, as well as to our own people, the working of this experiment of immigration in great numbers of Chinese laborers to this country, and their maintenance here of all the traits of race, religion, manners, and customs, habitations, mode of life, segregation here, and the keeping up of the ties of their original home, which stamp them as strangers and sojourners, and not as incorporated elements of our national life and growth. This experience may naturally suggest the reconsideration of the subject as dealt with by the Burlingame treaty, and may properly become the occasion of more and circumspect recognition, in renewed negotiations, of the difficulties surrounding this political and social problem. It may well be that, to the apprehension of the Chinese Government no less than our own, the simple provisions of the Burlingame treaty may need to be replaced by more careful methods, securing the Chinese and ourselves against a larger and more rapid infusion of this foreign race than our system of industry and society can take up and assimilate with ease and safety. This ancient Government, ruling a polite and sensitive people, distinguished by a high sense of national pride, may properly desire an adjustment of their relations with us which would in all things confirm and in no degree endanger the permanent peace and amity and the growing commerce and prosperity which it has been the object and the effect of our existing treaties to cherish and perpetuate.
I regard the very grave discontents of the people of the Pacific States with the present working of the Chinese immigration, and their still graver apprehensions therefrom in the future, as deserving the most serious attention of the people of the whole country and a solicitous interest on the part of Congress and the Executive. If this were not my own judgment, the passage of this bill by both Houses of Congress would impress upon me the seriousness of the situation, when a majority of the representatives of the people of the whole country had thought fit to justify so serious a measure of relief.
The authority of Congress to terminate a treaty with a foreign power by expressing the will of the nation no longer to adhere to it is as free from controversy under our Constitution as is the further proposition that the power of making new treaties or modifying existing treaties is not lodged by the Constitution in Congress, but in the President, by and with the advice and consent of the Senate, as shown by the concurrence of two-thirds of that body. A denunciation of a treaty by any government is confessedly justifiable only upon some reason both of the highest justice and of the highest necessity. The action of Congress in the matter of the French treaties in 1798, if it be regarded as an abrogation by this nation of a subsisting treaty, strongly illustrates the character and degree of justification which was then thought suitable to such a proceeding. The preamble of the act recites that the—
Treaties concluded between the United States and France have been repeatedly violated on the part of the French Government, and the just claims of the United States for reparation of the injuries so committed have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity.
And that—
Under authority of the French Government there is yet pursued against the United States a system of predatory violence, infracting the said treaties and hostile to the rights of a free and independent nation.
The enactment, as a logical consequence of these recited facts, declares—
That the United States are of right freed and exonerated from the stipulations of the treaties and of the consular convention heretofore concluded between the United States and France, and that the same shall not henceforth be regarded as legally obligatory on the Government or citizens of the United States.
The history of the Government shows no other instance of an abrogation of a treaty by Congress.