The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1879-02-20
The Chinese Treaty.

pracei thefeiu is luii ol uliucuity IA every
aspect. The purpose of the measure is to
rid the nation. by law of Congress, of cer-
tain stipulations in its treaty of 1868 with
China. Such an attempt by the law-mak-
ing power must always be surrounded with
embarrassment. Primarily it is the bust
ness of the President to initiate, as it is
to carry on, negotiations with for
eign Powers. If treaties, however, are
not by their terms limited in duration,
and are therefore permanent, as IS ours
with China, and one party desires to put
an end to the obligation by withdrawal
therefrom against the will Of the other, it
is manifestly proper that such withdrawal
be made in tho most solemn manner. So
far as China is concerned it would be
enough if the President of the United States
alone denounced the treaty. China would
thereupon be entitled to declare war, or
take any other step to vindicate her honor
as if the United States had acted through
the law-making power and the executive
power combined. careful and cautious
President would. even in case where the
treaty gave to him power to terminate
the obligation, prefer in critical case to
be sustained by Congress in order that the
other contracting party might be assured
that the United States approved OF the
act of their Executive. The constitution
does not expressly declare that the law
making power can compel the President to
annul treaty, but the Supreme Court has
clearly intimated that the Legislative
branch of the government has that faculty.
Certainly the law-making department can
not compel the President to prepare or
negotiate a treaty for submission to the
Senate. He is in that matter Independent
Of the legislative and judicial branches
of the government. If Congress passed q
bill which the President approved, in
structing him to negotiate, he would, of
course, obey what he had approved, but il
Congress passed the command over his veto,
what then? In that case the Presi-
dent could, no doubt, fall back safely
Oh his constitutional prerogative. If
President Hayes approves q bill re-
curing him to denounce the Chinese
treaty then his approval would be evidence
that he thinks the treaty should be de-
nounced. But what if he vetoes the
Chinese bill and Congress enacts it into a
law over the veto? The Supreme Court has
intimated that the treaty would thereby, in
it's opinion, be ruptured, and the Pacific
States would then be lett free to legislate
for their protection as if no treaty had been
made.
During the recent debate in the Senate
there were unsatisfactory illusions to the
right which the law-making power has to
refuse to legislate TO carry out treaties made
by the President and the Senate. Such
questions generally come out of duties on
imports, and in treaties touching duties it
is now understood by all foreign nations that
the treaties are really conditional on such
legislation. A case, alluded to in the de-
bate, grew out Of our treaty with Russia, and
subsequent law of Congress levying duty
on hemp, in palpable violation of that
treaty The importers protested on the
ground that the tariff violated the treaty,
but the courts said they must execute the
law of Congress which levied the rate COM
planned OF, and the importers must apply
for redress to the Executive or to Congress-
The question as presented was one
purely Of internal administration. If
foreign government were aggrieved it must
raise diplomatic question, in the form of
damages. And yet, under our system, it
cannot be doubted that the relation or
order Of the three is INSTRUMENTATION,
treaty, and, finally, enactments by the law
making power. The last must yield to the
first two, and the second can yield only to
the first. But all this is quite independent
of the power of the law-making power to
put an end to any and every treaty. 1t is
not a question of morals at all, in q consti-
tutional sense but question Of power as
between the Executive alone or Congress
and the President combined, or two-thirds
of Congress alone when the President re-
sists. The other party to the treaty may
treat the withdrawal as an act Of war.
In respect to the particular case of the
Chinese, both political parties indicated
their dislike to the treaty in the platform
of each. The democratic platform was the
more decided of the two, but both were
hostile to the Chinese The naturalization
laws forbid Chinaman to be naturalized.
The Senate in an unmistakable way indi-
Gated last year to the President its aversion
to the stipulations of the treaty now
complained of, and that the Senate
hoped for q successful negotiation
thereon with China. And il is misfortune
that no one in the House or Senate was able
or willing to inform either body what Mr..
Evo rts hos dona mr. what ia tho diplomatic
condition Of the controversy. If Mr.. Evarts
has attempted modification Of the treaty
and there was fair prospect thereof, hint
to that effect should, probably would, have
defeated the bill, provided the President
desired, in diplomatic sense, that the bill
10 dofoatcd IL naax be TINT Mr. EvarIc ,uas