He meant to vote against the pa.s.sage of the bill over the veto. But when he heard my vote for it, he saw that I was bringing down on my head a storm of popular indignation, and made up his mind that he would not throw the weight of his example on the side against me. So, contrary to his opinion of the merits of the bill, he came to my side, and voted with me.

I suppose a good many moralists will think that it is a very wicked thing indeed for a man to vote against his convictions on a grave public question, from a motive like this, of personal friendship. But I think on the whole I like better the people, who will love Mr. Dawes for such an act, than those who will condemn him. I would not, probably, put what I am about to say in an address to a Sunday-school, or into a sermon to the inmates of a jail or house of correction. I cannot, perhaps, defend it by reason. But somehow or other, I am strongly tempted to say there are occasions in life where the meanest thing a man can do is to do perfectly right. But I do not say it. It would be better to say that there are occasions when the instinct is a better guide than the reason. At any rate, I do not believe the recording angel made any trouble for Mr. Dawes for that vote.

CHAPTER IX CHINESE TREATY AND LEGISLATION

Much of what I have said in the preceding chapter is, in substance, applicable to my vote on another matter in which I had been compelled to take an att.i.tude in opposition to a large majority of my own party and to the temporary judgment of my countrymen: that is the proposed legislation in violation of the Treaty with China; the subsequent Treaty modifying that negotiated in 1868 by Mr. Seward on our part, and Mr. Burlingame for China; and the laws which have been enacted since, upon the subject of Chinese immigration. I had the high honor of being hung in effigy in Nevada by reason of the report that I had opposed, in secret Session of the Senate, the Treaty of 1880.

My honored colleague, Mr. Dawes, and I were entirely agreed in the matter. Mr. Dawes complained good-naturedly to Senator Jones, of Nevada, that he had been neglected when the Nevada people had singled me out for that sole honor, to which Mr.

Jones, with equal good-nature, replied that if Mr. Dawes desired, he would have measures taken to correct the error, which had inadvertently been made.

In 1868 the late Anson Burlingame, an old friend of mine and a man highly esteemed in Ma.s.sachusetts, who had been sent to China as the American Minister in Mr. Lincoln's time, was appointed by the Chinese Government its Amba.s.sador, or Envoy, to negotiate treaties with the United States and several European powers. He made a journey through this country and Europe, travelling with Oriental magnificence, in a state which he was well calculated to maintain and adorn. It was just after we had put down the Rebellion, abolished slavery, and made of every slave a freeman and every freeman a citizen.

The hearts of the people were full of the great doctrines of liberty which Jefferson and the Fathers of our country had learned from Milton and the statesmen of the English Commonwealth.

The Chinese Treaty was concluded on the 28th of July, 1868, between Mr. Seward and Mr. Burlingame and his a.s.sociate Plenipotentiaries Chih-Kang and Sun Chia-Ku. It contained the following clause:

"The United States of American and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of free migration and emigration of their citizens and subjects respectively from one country to the other for purposes of curiosity, of trade, or as permanent residents."

Article VII. of the same Treaty stipulated that citizens of each power should enjoy all the privileges of the public educational inst.i.tutions under the control of the government of the other, enjoyed by the citizens or the subjects of the most favored nation, and that the citizens of each might, themselves, establish schools in the others' country. Congress pa.s.sed an Act, July 27, 1868, to a like effect, to which the following is the preamble to the first section:

"Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness; and whereas in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore," etc.

Thereafter, in the first term of the Administration of President Hayes, in the December Session of 1878, a bill was introduced which, almost defiantly, as it seemed to me, violated the faith of the country pledged by the Burlingame Treaty. There had been no attempt to induce China to modify that Treaty.

I resisted its pa.s.sage as well as I could. But my objection had little effect in the excited condition of public sentiment.

The people of the Pacific coast were, not unnaturally, excited and alarmed by the importation into their princ.i.p.al cities of Chinese laborers, fearing, I think without much reason, that American laboring men could not maintain themselves in the compet.i.tion with this thrifty and industrious race who lived on food that no American could tolerate, and who had no families to support, and who crowded together, like sardines in a box, in close and unhealthy sleeping apartments.

I supposed that the labor of this inferior cla.s.s would raise the condition of better and more intelligent laborers. That, however, was a fairly disputable question. But I could not consent to striking at men, as I have just said, because of their occupation. This bill was vetoed by President Hayes, who put his objections solely upon the ground that the bill was in violation of the terms of the existing Treaty. The House, by a vote of 138 yeas to 116 nays, refused to pa.s.s the bill over the veto.

But in 1880 a Treaty was negotiated, and approved by the Senate and ratified July 19, 1881, which relieved the United States from the provisions of the Burlingame Treaty, and permitted the exclusion of Chinese laborers. I made a very earnest speech, during a debate on this Treaty in Executive Session of the Senate, in opposition to it. The Senate did me the honor, on the motion of Mr. Dawes, of a vote authorizing my speech to be published, notwithstanding the rule of secrecy.

But one Senator from the Pacific coast complained, I think with some reason, that I was permitted to publish my argument on one side when he not only was not permitted to publish his on the other, but his const.i.tuents had no means of knowing that he had defended his views or made proper answer to mine.

So I thought it hardly fair to make by speech public, and it was not done.

Later, in the spring of 1882, a bill was pa.s.sed to carry into effect the Treaty of 1880. That I resisted as best I could. In opposition to this bill I made an earnest speech showing it to be in conflict with the doctrines on which our fathers founded the Republic; with the principles of the Const.i.tutions of nearly all the States, including that of California, and with the declarations of leading statesmen down to the year 1868. I showed also that the Chinese race had shown examples of the highest qualities of manhood, of intelligence, probity and industry. I protested against a compact between the two greatest nations of the Pacific, just as we were about to a.s.sert our great influence there, which should place in the public law of the world, and in the jurisprudence of America, the principle that it is fitting that there should be hereafter a distinction in the treatment of men by governments and in the recognition of their right to the pursuit of happiness by a peaceful change of their homes, based, not on conduct, not on character, but upon race and occupation; by a.s.serting that you might justly deny to the Chinese what you might not justly deny to the Irish, that you might justly deny to the laborer what you might not deny to the idler. I pointed out that this declaration was extorted from unwilling China by the demand of America; and that laborers were henceforth to be cla.s.sed, in the enumeration of American public law, with paupers, lazzaroni, harlots, and persons afflicted with pestilential diseases. I ended what I had to say as follows:

"Humanity, capable of infinite depths of degradation, is also capable of infinite heights of excellence. The Chinese, like all other races, has given us its examples of both. To rescue humanity from this degradation is, we are taught to believe, the great object of G.o.d's moral government on earth.

It is not by injustice, exclusion, caste, but by reverence for the individual soul that we can aid in this consummation.

It is not by Chinese policies that China is to be civilized.

I believe that the immortal truths of the Declaration of Independence came from the same source with the Golden Rule and the Sermon on the Mount. We can trust Him who promulgated these laws to keep the country safe that obeys them. The laws of the universe have their own sanction. They will not fail. The power that causes the compa.s.s to point to the north, that dismisses the star on its pathway through the skies, promising that in a thousand years it shall return again true to its hour and keeps His word, will vindicate His own moral law.

As surely as the path on which our fathers entered a hundred years ago led to safety, to strength, to glory, so surely will the path on which we now propose to enter bring us to shame, to weakness, and to peril."

The Statute then enacted, expired by its own limitations twenty years afterward. Meantime the prejudice against Chinese labor had modified somewhat. The public had become somewhat more considerate of their rights and, at any rate, there was a desire to maintain some show of decency in legislating the matter. So a more moderate Statute was enacted in 1902. I was the only person who voted against it in either House.

It was, of course, clear that resistance was useless. It was not worth while, it seemed to me, to undertake to express my objections at length. I contented myself with the following brief remonstrance:

"Mr. President, I think this bill and this debate indicate a great progress in sentiment. The sentiment of the country has pa.s.sed, certainly so far as it is represented by a majority of the Senate, the stage, if it ever was in it, of a reckless seeking to accomplish the result of Chinese exclusion without regard to const.i.tutional restraints, treaty obligations, or moral duties. There was in some quarters, as it seemed to me, in olden times, a disregard of all these restraints, certainly in the press, certainly in the harangues which were made to excited crowds in various parts of the country. Among others I can remember a visit of the apostle of Chinese exclusion to Boston Common which indicated that spirit.

"Now, that has gone largely, and the Senate has discussed this question with a temperate desire on the part of all cla.s.ses and all Senators, whatever ways of thinking they have, to do what seemed to them for the benefit of labor, the quality of the citizenship of this country, in a moderate and const.i.tutional fashion.

"But I cannot agree with the principle on which this legislation or any legislation on the subject which we have had in the country since 1870 rests. I feel bound to enter a protest.

I believe that everything in the way of Chinese exclusion can be accomplished by reasonable, practical and wise measures which will not involve the principle of striking at labor, and will not involve the principle of striking at any cla.s.s of human beings merely because of race, without regard to the personal and individual worth of the man struck at. I hold that every human soul has its rights, dependent upon its individual personal worth and not dependent upon color or race, and that all races, all colors, all nationalities contain persons ent.i.tled to be recognized everywhere they go on the face of the earth as the equals of every other man."

I do not think any man ever hated more than I have hated the affectation or the reality of singularity. I know very well that the American people mean to do right, and I believe with all my heart that the men and the party with whom I have acted for fifty years mean to do right. I believe the judgment of both far better than my own. But every man's conscience is given to him as the lamp for his path. He cannot walk by another light.

It is also true that the great political principles which have been in issue for the last thirty years, have been, in general, those that have been debated for centuries, and which cannot be settled by a single vote, in a legislative body, by the result of a single election, or even by the opinion of a single generation. In nearly every one of what I am sorry to say are the numerous instances where I have been compelled to act upon my judgment against that of my own party, and even against that of the majority of my own countrymen, the people have subsequently come around to my way of thinking, and in all of them, I believe, I have had on my side the opinion of the great men of the great generations of the past. Certainly the Chinese Exclusion Bill and the Chinese Treaty; the Spanish Treaty and the War against the Philippine people could not have lived an hour before the indignation of the American people at any time from the beginning down to the time when, in 1876, they celebrated the centennial of their Independence.

CHAPTER X THE WASHINGTON TREATY AND THE GENEVA AWARD

The Treaty of Washington, creditable to all who engaged in it, not to be judged by its details, but by its great effect in securing peace to the world, saved Great Britain from a war with us, in which it is not unlikely that the nations of Europe who hated her would have come to take part on our side. But it saved us from the greater danger of having the war spirit renewed and intensified by this gigantic struggle, from an international hatred which would not have cooled again for a century; or, if we did not declare war, from taking the ign.o.ble att.i.tude of a great and free people lying in wait for an opportunity to revenge itself.

It was the purpose of that Treaty to remove every cause of quarrel. One constant cause of quarrel, for many years, had been the exercise of our right to fish on the sh.o.r.es of Newfoundland. In the Treaty it was agreed that the United States should have, in addition to her existing rights for ten years, and for such further times as the parties should agree, the right to take fish on the sea coast of the British Provinces north of us, with permission to land for the purpose of drying nets and curing fish, and that we were to pay for the privilege a sum to be fixed by arbitrators. Two of these arbitrators were to be appointed by the United States and Great Britain; the other, who would serve as umpire, to be agreed upon by the two powers, or, if not agreed upon within a certain time, then to be appointed by the Emperor of Austria.

Great Britain insisted upon having the Belgian Minister to the United States for the third arbitrator, and refused to name or suggest or agree to any other person. So the time expired. Thereupon the Belgian Minister, Mr. Delfosse, was selected by the Emperor of Austria. Mr. Delfosse's own fortune in public life depended upon his Sovereign's favor. We had already notified Great Britain that, if the Belgian Minister were selected, he would probably deem himself disqualified by reason of the peculiar connection of his Government with that of Great Britain. When the Treaty was negotiated, Earl de Grey, Chairman of the Commissioners, said, speaking of the Government to whom the matter might be referred: "I do not name Belgium, because Great Britain has treaty arrangements with that Government which might be supposed to incapacitate it." Belgium, as was notorious, was dependent upon Great Britain to maintain its political existence against the ambitions of France and Germany. Mr. Delfosse's sovereign was the son of the brother of Queen Victoria's mother and Prince Albert's father, and was, himself, brother of Carlotta, wife of Maximilian, whom we had lately compelled France to abandon to his fate.

The referee awarded that we should make a payment to Great Britain for this fishery privilege of five million five hundred thousand dollars. We never valued them at all. We abandoned them at the end of ten years. It would have been much better to leave the matter to Great Britain herself. If she had been put upon honor she would not have made such an award.

No English Judge who valued his reputation would have suggested such a thing, as it seemed to us.

I would rather the United States should occupy the position of paying that award, after calling the attention of England to its injustice and wrong, than to occupy the position of England when she pocketed the money. A war with England would have been a grievous thing to her workingmen who stood by us in our hour of peril, and to all that cla.s.s of Englishmen whom we loved, and who loved us. Such a war would have been a war between the only two great English-speaking nations of the world, and the two nations whose policy, under methods largely similar, though somewhat different, were determined by the public opinion of their people.

If however our closer and friendlier relations with England are to result in our adopting her social manners, her deference to rank and wealth, and of adopting her ideas of empire and the method of treating small and weak nations by great and strong ones, it would be better that we had kept aloof, and that the old jealousy and dislike engendered by two wars had continued.

A very interesting question was settled during the Administration of President Hayes as to the disposition of the $15,500,000 recovered from Great Britain by the award of the tribunal of Geneva for the violation of the obligations of neutrality during the Civil War. Great Britain, after what we had claimed what was full notice of what was going on, permitted certain war vessels to be constructed in England for the Confederate Government. She permitted those vessels to leave her ports and, by a preconcerted arrangement, to receive their armament, also procured in Great Britain. She turned a deaf, an almost contemptuous ear, to the remonstrances of Mr. Adams, our Minister. The Foreign Office, after a while, informed him that they did not wish to receive any more representations on that subject. But, as the War went on and the naval and military strength of the United States increased and became more manifest, Great Britain became more careful. At last some Rebel rams were built by the Lairds, ship-builders of Liverpool. Mr. Adams procured what he deemed sufficient evidence that they were intended for the Confederate service, and made a demand on Lord Russell, the British Foreign Minister, that they be detained. To this Lord Russell replied that he had submitted the matter to the Law officers of her Majesty's Government, and they could see no reason for interfering.

To this Mr. Adams instantly replied that he received the communication with great regret, adding, "It would be superfluous in me to point out to your Lordship that this is war." Lord Russell hastily reconsidered his opinion, and ordered the rams to be stopped.

He afterward, as appears in his biography by Spencer Walpole, admitted his error in not interfering in the case of the vessels that had gone out before. But the mischief was done. The terror of these Confederate vessels had driven our commerce from the sea, or had compelled our merchant vessels to sail under foreign flags, and had enormously increased the rate of insurance to those who kept the sea under our flag.

After the War had ended a demand for compensation was earnestly pressed upon Great Britain. A demand was made to refer the claims to arbitration, and a Treaty negotiated for that purpose by Reverdy Johnson under Andrew Johnson's Administration, was rejected by the Senate, on the ground, among other reasons, that the element of chance entered into the result.

Thereafter, in General Grant's time, a Joint High Commission to deal with this controversy was agreed upon between the two countries, which sat in Washington, in 1871. The Commissioners in behalf of the United States were Hamilton Fish, Secretary of State; Robert C. Schenck, then our Minister to England; Samuel Nelson, Judge of the Supreme Court; Ebenezer Rockwood h.o.a.r, lately Attorney-General, and George H. Williams, afterward Attorney-General. On behalf of Great Britain there were Earl de Grey and Ripon, afterward Marquis of Ripon; Sir Stafford H. Northcote, afterward Earl of Idesleigh; Edward Thornton, then the British Minister here; John A. MacDonald, Premier of Canada, and Montague Bernard, Professor of International Law at Oxford. The two countries could not, in all probability, have furnished men more competent for such a purpose. They agreed upon a treaty. The rules by which neutral governments were to be held to be bound for the purposes of the arbitration were agreed on beforehand in the Treaty itself. They agreed to observe these rules between themselves in the future, and to invite other maritime powers to accede to them. The Treaty also contained a statement that Her Britannic Majesty had "authorized her High Commissioners and Plenipotentiaries to express in a friendly spirit the regret felt by Her Majesty's Government for the escape, under whatever circ.u.mstances, of the Alabama and other vessels from British ports, and for the depredations committed by those vessels." I am not aware a like apology has ever been made by Great Britain during her history, to any other country. There was a provision also, for the reference of some other matters in dispute between the two countries. One of these related to the fisheries-- a source of irritation between this country and the British possessions north of us ever since the Revolution.

I will not undertake to tell that part of the story here.

It was agreed to submit the questions of the claims growing out of the escape of the Rebel cruisers to a tribunal which was to sit at Geneva. Of this, one member was to be appointed by each of the parties, and the others by certain designated foreign governments. Our Commissioner was Charles Francis Adams, who had borne himself so wisely and patiently during the period of the Civil War. The English Commissioner was Sir Alexander c.o.c.kburn, Lord Chief Justice of England. The United States was represented by Caleb Cushing, William M.

Evarts and Morrison R. Waite, afterward Chief Justice of the United States, as counsel.

Adams rarely betrayed any deep emotion on any public occasion, however momentous. But it must have been hard for him to conceal the thrill of triumph, after the ignominy to which he had submitted during that long and anxious time, when he heard the tribunal p.r.o.nounce its judgment, condemning Great Britain to pay $15,500,000 damages for the wrong-doing against which he had so earnestly and vainly protested. Perhaps the feeling of his grandfather when he signed the Treaty of Independence in 1783 might alone be compared to it. Yet his father, John Quincy Adams, had something of the same feeling when, at the close of a war which put an end forever to the impressment of American seamen, and made the sailor in his ship as safe as the farmer in his dwelling, he signed the Treaty which secured our boundary and our fisheries as they had been secured by his father.* John Quincy Adams had struck, by the direction of his father, in 1815, a seal which he gave to his son, with the injunction to give it to his, bearing the motto, "Piscemur, venemur, ut olim,"--We keep our hunting grounds and our fishing grounds as of old. I doubt if three such achievements, by three successive generations, can be found in the annals of any other family however ill.u.s.trious.

[Footnote]

* This story is told more fully at page 147. It seems appropriate in both places.

[End of Footnote]

The $15,500,000 was promptly paid. Then came the question what to do with it. There was no doubt anywhere, that the owners of vessels or cargoes that had been captured or destroyed by the cruisers for whose departure from British ports Great Britain was in fault, were ent.i.tled to be paid. That, however, would not consume the fund. The fund had been paid in gold coin by Great Britain, September 9, 1873, and had been covered into the Treasury the same day. This sum was invested in a registered bond for the amount, of the five per cent. loan of 1881, dated September 10, 1873, inscribed, "Hamilton Fish, Secretary of State, in trust. To be held subject to the future disposition of Congress, etc." This sum largely exceeded what was necessary to make good the princ.i.p.al of all losses directly resulting from the damages caused by the insurgent cruisers, above what had already been reimbursed from insurance. These claims were popularly termed the "claims for direct damages."

The question what to do with the balance was the subject of great dispute throughout the country, and of much debate in both Houses of Congress. Some persons claimed that the owners directly damaged should receive interest. That would still leave a large part of the fund undisposed of. It was insisted that the remainder belonged to the Government for the benefit of the whole people who had borne the burden and cost of the war. Others claimed that, as nothing but direct damages were lawfully a.s.sessable, the balance should be paid back to Great Britain. Still others claimed that the persons who had suffered indirectly by the loss of voyages, the increased rates of insurance, and the breaking up of business, were justly ent.i.tled to the money. Still others, perhaps the most formidable and persistent of all, claimed that the underwriters who had paid insurance on vessels or cargoes destroyed, were ent.i.tled to the money on the familiar principle that an insurer who pays a loss is subrogated to all the legal and equitable claims of the party insured.

These disputes prevented any disposition of the fund by Congress until the summer of 1874.

Judge h.o.a.r, who was then a Member of the House of Representatives, suggested that as everybody agreed that the claims for direct damage ought to be paid, that it was not fair that they should be kept waiting longer in order to settle the dispute about the rest of the fund. In accordance with his suggestion a Court was provided for by Act of Congress, whose duty it was to receive and examine all claims directly resulting from damages caused by the insurgent cruisers. They were directed, however, not to allow any claim where the party injured had received indemnity from any insurance company, except to the excess of such claim above the indemnity. They were further authorized to allow interest at the rate of four per cent.

The Court performed its duty. When its judgments had been paid there still remained a large balance. The ablest lawyers in the Senate, in general, pressed the claim of the insurance companies to the balance of the fund, including Mr. Edmunds, Judge Davis, Judge Thurman and Mr. Bayard. I took up the question with a strong leaning for the insurance companies.

I was, of course, impressed by the well-known principle of law that the underwriter who had paid for property destroyed by the cause against which he had insured, was ent.i.tled to be subst.i.tuted to all other rights or remedies which the owner may have for reimburs.e.m.e.nt of his loss. I was very much impressed also in favor of the insurance companies, who were making what they doubtless believed an honest and just claim, fortified by many of the best legal opinions in Congress and out of it, by the character of the attacks made on them, especially by General Butler. These attacks appealed to the lowest pa.s.sions and prejudices. It was said that the companies were rich; that they made their money out of the misfortunes of their countrymen; that they were trying to get up to their arm-pits in the National Treasury, and that they employed famous counsel.

If there be anything likely to induce a man with legal or judicial instincts to set his teeth against a proposition, it is that style of argument.

But I came to the conclusion, both from the history of the proceedings at Geneva, and from the nature of the submission, that the claim that had been established against Great Britain was a National claim, made by National authority for a National injury. That this was the character of the claim our counsel gave express notice to Great Britain and to the tribunal.