Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1886-09-17
THE CHINESE
AND THE
CHINA QUESTION.

CHINA QUESTION.
Origin of our Domestic Relations with
! China-Origin of the Burlingame Treaty
| The Treaty Considered Article by Ar
ticle-Void by Non performance on the
Part of China.
! At this point we are to bear in mind
another and very clear distinction
which exists between treaty consid-
cred as law, and a treaty considered
as contract. As regards the powers
Of the legislative branch of our Gov
ernment, the matter must be consid-
cred from the former aspect, for this is
enjoyed by the express language of the
Constitution. But as concerns the
equities or moral obligations of IL
treaty, as between nation and nation,
it is to he looked upon in a different
light. The provision of the Constitu-
ton defines the status Of a treaty within
our own territory; it does not estab-
lish its extra-territorial position This
last depends upon the general princi-
piles Of the law of nations, and under
this-as defined by Chief Justice
Marshall in Foster & Elam VS.. Nelson,
and by all the commentators before
and since" treaty is in its nature
contract between two nations" The
legal power to rescind a contract being
conceded, its sanctity and permanence
should depend upon its fairness. In
| other words, upon the absence of those
elements of deceit, error, or uncon-
scionable hardship which would nullify
an agreement between individuals.
For it can hardly be maintained that a
principle which would destroy con-
tract between man and man should
not be held to apply to one in which
the welfare of fifty millions of people
is involved.
Before proceeding to the broader
consideration OF this phase Of the mat
ter, it may be well to remark that our
courts have carried this idea into ef-
fective decisions, as notably shown in
the Cherokee Tobacco Case above re-
ferred to, which was in part decided
upon the fact that the treaty would
have protected illicit gain within the
Cherokee territory and interfered with
the general welfare of the community.
1t is also recognized in the broad state
ments of doctrine which have quoted
from Vattel, Wheaton and others, as
to the lack of inherent power in any
country to lawfully injure itself by the
unwise use of the treaty-making pow.
er. As I have already referred to the
injury wrought to American industries
and institutions by the inflow Of Chi
nese under the provisions of the exist
ing treaty, it is hardly necessary to
further insist that this alone should be
held a sufficient reason why the lawful
authority of Congress should be exer-
cised with a view to its prevention.
We may now pass to another pOr-
ton of the subject, that relating to the
origin and effects of the Burlingame
treaty. In doing this We necessarily
revert to our early diplomatic relations
with China, the latter designated in
the treaties as the Ta-Tsing Empire.
In 1843, at an expense of forty thou
sand dollars, Caleb Cushing was sent
as Envoy Extraordinary, etc, "to
establish the future commercial rela-
tions between the United States and
the Chinese Empire on terms of ma
tional equal reciprocity" A treaty
was concluded in the following year
and ratified by the Senate early in
1845. Within seven years from that
date, the influx of Chinese into Cali
fornia had alarmed the inhabitants
and led to protests which were disre-
garded by public opinion east of the
Rocky Mountains, and treated with
contempt by the Government. In
1850, an American Commissioner was
sent to cooperate with the ENJOYS OF
other foreign countries in the accom-
plishment of the objects sought by
the selfish and aggressive diplomacy
of Europe. This was but a continue
alton of our national subserviency to
the interests OF Great Britain, France
and other European countries who
were seeking to establish themselves
in Chinese waters for the purpose of
controlling Chinese trade. This re-
suited in q second or additional con-
vention, ostensibly for the regulation
of commerce. Although these two
treaties in many respects bore in favor
of the Chinese and against the Amer
leans, their defects were rather mega
tive than positive. There was nothing
in them that divested the United
States Of the right to control immigra-
ton to it, own territories, OF to restrict
or regulate the privileges Of an alien
people in its midst.
It was left for an American citizen
to resign the proud position of an
American plenipotentiary, and to ac-
cept in its place the paying patronage
Of the Chinese Emperor; and through
this to fasten upon his country obi
cations that in every line we're be-
trayal of her interests and thrust at
her permanent prosperity. In 1861
Anson Burlinga,ne was sent to China
a. the Envoy Of the United States.
In 1867 he left the service Of his own