Chapter V: Front Matter (5)

The second clause, however, in its reprobation of "any other than an entirely voluntary emigration" by both the high contracting parties, and in the reciprocal obligations whereby we secured the solemn and unqualified engagement on the part of the Government of China "to pass laws making it a penal offense for a citizen of the United States or Chinese subjects to take Chinese subjects either to the United States or to any other foreign country without their free and voluntary consent," constitutes the great force and value of this article. Its importance both in principle and in its practical service toward our protection against servile importation in the guise of immigration can not be overestimated. It commits the Chinese Government to active and efficient measures to suppress this iniquitous system, where those measures are most necessary and can be most effectual. It gives to this Government the footing of a treaty right to such measures and the means and opportunity of insisting upon their adoption and of complaint and resentment at their neglect. The fifth article, therefore, if it fall short of what the pressure of the later experience of our Pacific States may urge upon the attention of this Government as essential to the public welfare, seems to be in the right direction and to contain important advantages which once relinquished can not be easily recovered.

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.

Instances have sometimes occurred where the ordinary legislation of Congress has, by its conflict with some treaty obligation of the Government toward a foreign power, taken effect as an _infraction_ of the treaty, and been judicially declared to be operative to that result; but neither such legislation nor such judicial sanction of the same has been regarded as an _abrogation_, even for the moment, of the treaty. On the contrary, the treaty in such case still subsists between the governments, and the casual infraction is repaired by appropriate satisfaction in maintenance of the treaty.

The bill before me does not enjoin upon the President the abrogation of the entire Burlingame treaty, much less of the principal treaty of which it is made the supplement. As the power of modifying an existing treaty, whether by adding or striking out provisions, is a part of the treaty-making power under the Constitution, its exercise is not competent for Congress, nor would the assent of China to this partial abrogation of the treaty make the action of Congress in thus procuring an amendment of a treaty a competent exercise of authority under the Constitution. The importance, however, of this special consideration seems superseded by the principle that a denunciation of a part of a treaty not made by the terms of the treaty itself separable from the rest is a denunciation of the whole treaty. As the other high contracting party has entered into no treaty obligations except such as include the part denounced, the denunciation by one party of the part necessarily liberates the other party from the whole treaty.

I am convinced that, whatever urgency might in any quarter or by any interest be supposed to require an instant suppression of further immigration from China, no reasons can require the immediate withdrawal of our treaty protection of the Chinese already in this country, and no circumstances can tolerate an exposure of our citizens in China, merchants or missionaries, to the consequences of so sudden an abrogation of their treaty protection. Fortunately, however, the actual recession in the flow of the emigration from China to the Pacific Coast, shown by trustworthy statistics, relieves us from any apprehension that the treatment of the subject in the proper course of diplomatic negotiations will introduce any new features of discontent or disturbance among the communities directly affected. Were such delay fraught with more inconveniences than have ever been suggested by the interests most earnest in promoting this legislation, I can not but regard the summary disturbance of our existing treaties with China as greatly more inconvenient to much wider and more permanent interests of the country.

I have no occasion to insist upon the more general considerations of interest and duty which sacredly guard the faith of the nation, in whatever form of obligation it may have been given. These sentiments animate the deliberations of Congress and pervade the minds of our whole people. Our history gives little occasion for any reproach in this regard; and in asking the renewed attention of Congress to this bill I am persuaded that their action will maintain the public duty and the public honor.

R.B. HAYES.

PROCLAMATION.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.

A PROCLAMATION.

Whereas the final adjournment of the Forty-fifth Congress without making the usual and necessary appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1880, and without making the usual and necessary appropriations for the support of the Army for the same fiscal year, presents an extraordinary occasion requiring the President to exercise the power vested in him by the Constitution to convene the Houses of Congress in anticipation of the day fixed by law for their next meeting:

Now, therefore, I, Rutherford B. Hayes, President of the United States, do, by virtue of the power to this end in me vested by the Constitution, convene both Houses of Congress to assemble at their respective chambers at 12 o'clock noon on Tuesday, the 18th day of March instant, then and there to consider and determine such measures as in their wisdom their duty and the welfare of the people may seem to demand.

[SEAL.]

In witness whereof I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the city of Washington, this 4th day of March, A.D. 1879, and of the Independence of the United States of America the one hundred and third.

R.B. HAYES.

By the President:
WM. M. EVARTS,
_Secretary of State_.

SPECIAL SESSION MESSAGE.

WASHINGTON, _March 19, 1879_.

_Fellow-Citizens of the Senate and House of Representatives:_

The failure of the last Congress to make the requisite appropriations for legislative and judicial purposes, for the expenses of the several Executive Departments of the Government, and for the support of the Army has made it necessary to call a special session of the Forty-sixth Congress.

The estimates of the appropriations needed which were sent to Congress by the Secretary of the Treasury at the opening of the last session are renewed, and are herewith transmitted to both the Senate and the House of Representatives.

Regretting the existence of the emergency which requires a special session of Congress at a time when it is the general judgment of the country that the public welfare will be best promoted by permanency in our legislation and by peace and rest, I commend these few necessary measures to your considerate attention.

RUTHERFORD B. HAYES.

SPECIAL MESSAGES.

WASHINGTON, _March 20, 1879_.

_To the Senate of the United States_:

In compliance with the resolution of the Senate of the 3d instant, calling for the reports of Gustavus Goward on the Samoan Islands, I transmit herewith a report from the Secretary of State, with the accompanying papers.

R.B. HAYES.

EXECUTIVE MANSION, _April 18, 1879_.

_To the Senate of the United States_:

In compliance with a resolution of the Senate of the 15th instant, I transmit herewith a copy of the report of the commission appointed by the President on the 15th of March, 1872, relating to the different interoceanic canal surveys and the practicability of the construction of a ship canal across this continent.

R.B. HAYES.

EXECUTIVE MANSION, _May 15, 1879_.

_To the Senate of the United States_:

In response to a resolution of the Senate of the 7th instant, requesting information in reference to an alleged occupation of a portion of the Indian Territory by white settlers, etc., I transmit herewith a copy of my proclamation dated April 26, 1879;[25] also copies of the correspondence and papers on file and of record in the Department of the Interior and the War Department touching the subject of the resolution.

R.B. HAYES.

[Footnote 25: See pp. 547-548.]

EXECUTIVE MANSION, _May 26, 1879_.

_To the Senate of the United States_:

In response to a resolution of the Senate of the 14th instant, I transmit herewith a communication[26] from the Secretary of the Interior and accompanying papers.

R.B. HAYES.

[Footnote 26: Relating to lands in the Indian Territory acquired by the treaties of 1866.]

EXECUTIVE MANSION, _June 5, 1879_.

_To the Senate and House of Representatives_:

I transmit herewith the "proceedings and report" of the board of officers convened by Special Orders, No. 78, Headquarters of the Army, Washington, April 12, 1878, in the case of Fitz John Porter. The report of the board was made in March last, but the official record of the proceedings did not reach me until the 3d instant.

I have given to this report such examination as satisfies me that I ought to lay the proceedings and conclusions of the board before Congress. As I am without power, in the absence of legislation, to act upon the recommendations of the report further than by submitting the same to Congress, the proceedings and conclusions of the board are transmitted for the information of Congress and such action as in your wisdom shall seem expedient and just.

R.B. HAYES.

WASHINGTON, _June 13, 1879_.

_To the House of Representatives_:

I transmit herewith, in compliance with the resolution of the House of Representatives of the 29th ultimo, a report of the Secretary of State relative to the steps taken by this Government to promote the establishment of an interoceanic canal across or near the Isthmus of Darien.

R.B. HAYES.

WASHINGTON, _June 23, 1879_.

_To the Senate of the United States_:

I transmit herewith to the Senate a report from the Secretary of State, in response to a resolution of that body of the 20th instant, calling for the proceedings and accompanying papers of the International Silver Conference held in Paris in 1878.

R.B. HAYES.

EXECUTIVE MANSION, _June 30, 1879_.

_To the Senate and House of Representatives_:

The bill making provision for the payment of the fees of United States marshals and their general deputies, which I have this day returned to the House of Representatives, in which it originated, with my objections,[27] having upon its reconsideration by that body failed to become a law, I respectfully call your attention to the immediate necessity of making some adequate provision for the due and efficient execution by the marshals and deputy marshals of the United States of the constant and important duties enjoined upon them by the existing laws. All appropriations to provide for the performance of these indispensable duties expire to-day. Under the laws prohibiting public officers from involving the Government in contract liabilities beyond actual appropriations, it is apparent that the means at the disposal of the executive department for executing the laws through the regular ministerial officers will after to-day be left inadequate. The suspension of these necessary functions in the orderly administration of the first duties of government for the shortest period is inconsistent with the public interests, and at any moment may prove inconsistent with the public safety.

It is impossible for me to look without grave concern upon a state of things which will leave the public service thus unprovided for and the public interests thus unprotected, and I earnestly urge upon your attention the necessity of making immediate appropriations for the maintenance of the service of the marshals and deputy marshals for the fiscal year which commences to-morrow.

RUTHERFORD B. HAYES.

[Footnote 27: See pp. 545-547.]

WASHINGTON, _July 1, 1879_.

_To the Senate of the United States_:

In answer to a resolution of the Senate of the 28th June, 1879, requesting a copy of any correspondence which may have passed between the Department of State and the Republic of Mexico in regard to the proposed Austin-Topolovampo Railroad survey across the northern States of that country, I transmit herewith the report of the Secretary of State upon the subject.

R.B. HAYES.

VETO MESSAGES.

EXECUTIVE MANSION, _April 29, 1879_.

_To the House of Representatives_:

I have maturely considered the important questions presented by the bill entitled "An act making appropriations for the support of the Army for the fiscal year ending June 30, 1880, and for other purposes," and I now return it to the House of Representatives, in which it originated, with my objections to its approval.

The bill provides in the usual form for the appropriations required for the support of the Army during the next fiscal year. If it contained no other provisions, it would receive my prompt approval. It includes, however, further legislation, which, attached, as it is, to appropriations which are requisite for the efficient performance of some of the most necessary duties of the Government, involves questions of the gravest character. The sixth section of the bill is amendatory of the statute now in force in regard to the authority of persons in the civil, military, and naval service of the United States "at the place where any general or special election is held in any State." This statute was adopted February 25, 1865, after a protracted debate in the Senate, and almost without opposition in the House of Representatives, by the concurrent votes of both of the leading political parties of the country, and became a law by the approval of President Lincoln. It was reenacted in 1874 in the Revised Statutes of the United States, sections 2002 and 5528, which are as follows:

SEC. 2002. No military or naval officer, or other person
engaged in the civil, military, or naval service of the United
States, shall order, bring, keep, or have under his authority
or control any troops or armed men at the place where any
general or special election is held in any State, unless it be
necessary to repel the armed enemies of the United States or
to keep the peace at the polls.

SEC. 5528. Every officer of the Army or Navy, or other person
in the civil, military, or naval service of the United States,
who orders, brings, keeps, or has under his authority or
control any troops or armed men at any place where a general
or special election is held in any State, unless such force
be necessary to repel armed enemies of the United States or
to keep the peace at the polls, shall be fined not more than
$5,000 and surfer imprisonment at hard labor not less than
three months nor more than five years.

The amendment proposed to this statute in the bill before me omits from both of the foregoing sections the words "or to keep the peace at the polls," The effect of the adoption of this amendment may be considered--

First. Upon the right of the United States Government to use military force to keep the peace at the elections for Members of Congress; and

Second. Upon the right of the Government, by civil authority, to protect these elections from violence and fraud.

In addition to the sections of the statute above quoted, the following provisions of law relating to the use of the military power at the elections are now in force:

SEC. 2003. No officer of the Army or Navy of the United States
shall prescribe or fix, or attempt to prescribe or fix, by
proclamation, order, or otherwise, the qualifications of
voters in any State, or in any manner interfere with the
freedom of any election in any State, or with the exercise of
the free right of suffrage in any State.

SEC. 5529. Every officer or other person in the military or
naval service who, by force, threat, intimidation, order,
advice, or otherwise, prevents, or attempts to prevent, any
qualified voter of any State from freely exercising the right
of suffrage at any general or special election in such State
shall be fined not more than $5,000 and imprisoned at hard
labor not more than five years.

SEC. 5530. Every officer of the Army or Navy who prescribes
or fixes, or attempts to prescribe or fix, whether by
proclamation, order, or otherwise, the qualifications of
voters at any election in any State shall be punished as
provided in the preceding section.

SEC. 5531. Every officer or other person in the military or
naval service who, by force, threat, intimidation, order, or
otherwise, compels, or attempts to compel, any officer holding
an election in any State to receive a vote from a person not
legally qualified to vote, or who imposes, or attempts to
impose, any regulations for conducting any general or special
election in a State different from those prescribed by law, or
who interferes in any manner with any officer of an election
in the discharge of his duty, shall be punished as provided in
section 5529.

SEC. 5532. Every person convicted of any of the offenses
specified in the five preceding sections shall, in addition to
the punishments therein severally prescribed, be disqualified
from holding any office of honor, profit, or trust under
the United States; but nothing in those sections shall be
construed to prevent any officer, soldier, sailor, or marine
from exercising the right of suffrage in any election district
to which he may belong, if otherwise qualified according to
the laws of the State in which he offers to vote.

The foregoing enactments would seem to be sufficient to prevent military interference with the elections. But the last Congress, to remove all apprehension of such interference, added to this body of law section 15 of an act entitled "An act making appropriations for the support of the Army for the fiscal year ending June 30, 1879, and for other purposes," approved June 18, 1878, which is as follows:

SEC. 15. From and after the passage of this act it shall not
be lawful to employ any part of the Army of the United States,
as a _posse comitatus_ or otherwise, for the purpose of
executing the laws, except in such cases and under such
circumstances as such employment of said force may be
expressly authorized by the Constitution or by act of
Congress; and no money appropriated by this act shall be used
to pay any of the expenses incurred in the employment of any
troops in violation of this section; and any person willfully
violating the provisions of this section shall be deemed
guilty of a misdemeanor, and on conviction thereof shall be
punished by fine not exceeding $10,000 or imprisonment not
exceeding two years, or by both such fine and imprisonment.

This act passed the Senate, after full consideration, without a single vote recorded against it on its final passage, and, by a majority of more than two-thirds, it was concurred in by the House of Representatives.

The purpose of the section quoted was stated in the Senate by one of its supporters as follows:

Therefore I hope, without getting into any controversy about
the past, but acting wisely for the future, that we shall
take away the idea that the Army can be used by a general or
special deputy marshal, or any marshal, merely for election
purposes, as a posse, ordering them about the polls or
ordering them anywhere else, when there is an election going
on, to prevent disorders or to suppress disturbances that
should be suppressed by the peace officers of the State; or,
if they must bring others to their aid they should summon the
unorganized citizens, and not summon the officers and men of
the Army as _posse comitatus_ to quell disorders, and thus
get up a feeling which will be disastrous to peace among the
people of the country.

In the House of Representatives the object of the act of 1878 was stated by the gentleman who had it in charge in similar terms. He said:

But these are all minor points and insignificant questions
compared with the great principle which was incorporated by
the House in the bill in reference to the use of the Army
in time of peace. The Senate had already conceded what they
called and what we might accept as the principle, but they
had stricken out the penalty, and had stricken out the word
"_expressly_" so that the Army might be used in all cases
where _implied_ authority might be inferred. The House
committee planted themselves firmly upon the doctrine that
rather than yield this fundamental principle, for which for
three years this House had struggled, they would allow
the bill to fail, notwithstanding the reforms which we had
secured, regarding these reforms as of but little consequence
alongside the great principle that the Army of the United
States, in time of peace, should be under the control of
Congress and obedient to its laws. After a long and protracted
negotiation, the Senate committee have conceded that principle
in all its length and breadth, including the penalty, which
the Senate had stricken out. We bring you back, therefore,
a report, with the alteration of a single word, which the
lawyers assure me is proper to be made, restoring to this bill
the principle for which we have contended so long, and which
is so vital to secure the rights and liberties of the people.

* * * * *

Thus have we this day secured to the people of this country
the same great protection against a standing army which cost
a struggle of two hundred years for the Commons of England to
secure for the British people.

From this brief review of the subject it sufficiently appears that under existing laws there can be no military interference with the elections. No case of such interference has, in fact, occurred since the passage of the act last referred to. No soldier of the United States has appeared under orders at any place of election in any State. No complaint even of the presence of United States troops has been made in any quarter. It may therefore be confidently stated that there is no necessity for the enactment of section 6 of the bill before me to prevent military interference with the elections. The laws already in force are all that is required for that end.

But that part of section 6 of this bill which is significant and vitally important is the clause which, if adopted, will deprive the civil authorities of the United States of all power to keep the peace at the Congressional elections. The Congressional elections in every district, in a very important sense, are justly a matter of political interest and concern throughout the whole country. Each State, every political party, is entitled to the share of power which is conferred by the legal and constitutional suffrage. It is the right of every citizen possessing the qualifications prescribed by law to cast one unintimidated ballot and to have his ballot honestly counted. So long as the exercise of this power and the enjoyment of this right are common and equal, practically as well as formally, submission to the results of the suffrage will be accorded loyally and cheerfully, and all the departments of Government will feel the true vigor of the popular will thus expressed.

Two provisions of the Constitution authorize legislation by Congress for the regulation of the Congressional elections.