decided by Mr. Justice Swayne in 1879,' it more often happens that the statute abrogates, and supersedes, the treaty, § 378. 1 The Cherokee Tobacco, U. S. Sup. Ct. 1870, 11 Wallace, 616, SWAYNE, J. Indians and freedmen residing in the Cherokee Nation were not subjected to the payment of taxes on any of their products sent to market, by the Cherokee treaty of 1866. The Internal Revenue Act of 1868 levied a tax upon spirits, liquors, tobacco, etc., "produced anywhere within the exterior boundaries of the United States." results from the nature and fundamental principles of our government. The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty. In the cases referred to these principles were applied to treaties with foreign nations. Treaties with Indian nations within the jurisdiction of the United States, whatever con The Indians claimed that notwithstanding this act they were ex-siderations of humanity and good empt under the prior treaty, but the court held that the terms of the act included the Indian Reservations and that notwithstanding the treaty, the act would apply under the rule that an act of Congress supersedes a prior treaty. On pp. 620-622 the court says: "But conceding these views to be correct, it is insisted that the section cannot apply to the Cherokee nation because it is in conflict with the treaty. Undoubtedly one or the other must yield. The repugnancy is clear and they cannot stand together. "The second section of the fourth article of the Constitution of the United States declares that this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties which shall be made under the authority of the United States, shall be the supreme law of the land.' faith may be involved and require their faithful observance, cannot be more obligatory. They have no higher sanctity; and no greater inviolability or immunity from legislative invasion can be claimed for them. The consequences in all such cases give rise to questions which must be met by the political department of the government. They are beyond the sphere of judicial cognizance. In the case under consideration the act of Congress must prevail as if the treaty were not an element to be considered. If a wrong has been done the power of redress is with Congress, not with the judiciary, and that body, upon being applied to, it is to be presumed, will promptly give the proper relief. "Does the section thus construed deserve the severe strictures which have been applied to it? As before remarked, it extends the revenue laws over the Indian "It need hardly be said that a territories only as to liquors and treaty cannot change the Constitu- tobacco. In all other respects the tion or be held valid if it be in vio- Indians in those territories are exlation of that instrument. This empt. As regards those articles than that the treaty abrogates, and supersedes, the statute; not because a statute is a higher order of law than a treaty but because the statute goes into effect without further congressional action, while the treaty may, and, in many instances, does, require such assistance. 3 This same principle applies in the tariff cases, and also in the Chinese exclusion cases, in fact there are many cases in which treaties have been superseded by conflicting statutes and in which the Supreme Court has decided that the later statute prevails as to the administration of law, and all questions of whether or not the faith of the nation is involved are referred to Congress, and to the Executive, as political matters and without the domain of the judiciary. Head Money Cases, U. S. Sup. Ct. 1884, 112 U. S. 580, p. 597, MILLER, J. only the same duties are exacted Chew Heong vs. United States, as from our own citizens. The bur- U. S. Sup. Ct. 1884, 112 U. S. 536, den must rest somewhere. Reve- p. 565, HARLAN, J. nue is indispensable to meet the public necessities. Is it unreasonable that this small portion of it shall rest upon these Indians? The frauds that might otherwise be perpetrated there by others, under the guise of Indian names and simulated Indian ownership, is also a consideration not to be overlooked. Ward vs. Race Horse, U. S. Sup. Ct. 1896, 163 U. S. 504, p. 511, WHITE, J. Draper vs. United States, U. S. Sup. Ct. 1896, 164 U. S. 240, p. 243, WHITE, J. Thomas vs. Gay, U. S. Sup. Ct. 1898, 169 U. S. 264, p. 271, SHIRAS, J. And see also "We are glad to know that there is no ground for any imputation upon the integrity or good faith of the claimants who prosecuted this writ of error. In a case not free from doubt and difficulty they post. Fong Yue Ting vs. United States, U. S. Sup. Ct. 1893, 149 U. S. 698, GRAY, J. See extract on p. 103, acted under a misapprehension of Chinese Exclusion Cases, U. S. their legal rights." Messrs. Jus-Sup. Ct. 1889, 130 U. S. 581, p. 600. tices BRADLEY and DAVIS dis- See extract on p. 95, post. sented. 2 See § 371 pp. 68, et seq., ante. 8 See §§ 379-81, pp. 87, et seq. post. 4 Besides the tariff cases referred to, see cases in which the Cherokee Tobacco has been cited, as follows: United States V. Mc Bratney, U. S. Sup. Ct. 1881, 104 U. S. 621, p. 623, GRAY, J. La Abra Silver Mining Co. vs. United States, U. S. Sup. Ct. 1899, 175 U. S. 423, p. 460, HARLAN, J. United States vs. Mrs. Gue Lim, U. S. Sup. Ct. 1900, 176 U. S. 459, p. 464, PECKHAM, J. Whitney v. Robertson, U. S. Sup Ct. 1888, 124 U. S. 190, p. 194, FIELD, J. $379. Statutes which violate treaties; difference between State and United States statutes in this respect; the Chinese exclusion laws.-No subject has created more controversy in regard to the relative effect of treaties and statutes than the Chinese Exclusion Acts, in regard to the immigration of certain classes of Chinese into the United States; this was the natural result in view of the manner in which those statutes conflicted with the provisions of the treaties between this country and China. It is impossible to summarize the treaties, statutes and decisions in a note to a section of this volume. To give the history of the statutes and the litigation which resulted therefrom and to summarize the decisions and the points decided would take a volume of several hundred pages; all that will be attempted, therefore, in the notes to this section will be to refer to the treaties,1 $379. NOTES BY THE AUTHOR ON CHINESE EXCLUSION CASES. 1 TREATIES WITH CHINA. Since diplomatic relations were established with China eight treaties have been entered into with that nation as follows: 1. Treaty of Peace, Amity and Commerce, concluded July 3, 1844; ratified December 31, 1845; proclaimed April 18, 1846. United States Treaties and Conventions, edition of 1889, p. 145. That of Nov. 8, 1858 was negotiated as a substitute for this treaty. United States Treaties in Force, edition of 1899, p. 105. 2. Treaty of Amity, Peace and Commerce, concluded June 18, 1858; ratifications exchanged August 15, 1859; proclaimed January 26, 1860. United States Treaties and Conventions, edition of 1889, p. 159. 3. Convention for the Regulation of Trade, concluded November 8, 1858; ratifications exchanged August 15, 1859. United States Treaties and Conventions, edition of 1889, p. 169. United States Treaties in Force, edition of 1899, p. 105. 4. There was also a Convention concluded November 8, 1858, for the Adjustment and Payment of Claims. United States Treaties and Conventions, edition of 1889, p. 178. United States Treaties in Force, edition of 1899, p. 115. 5. Treaty of Trade, Consuls and Emigration, concluded July 28, 1868; ratifications exchanged November 23, 1869; proclaimed February 5, 1870. United States Treaties and Conventions, edition of 1889, p. 179. United States Treaties in Force, edition of 1899, p. 115. While the treaties before this are still in force, according to compilation of treaties in force of 1899, and contain various clauses in regard to favored nations and intercourse, the stipulations relied upon in the statutes and principal decisions, which are collated according to date and the principal points involved, as appears Chinese cases were contained in this treaty of 1868. Art. V, VI and VII of this treaty are as follows: "ARTICLE V. The United States of America 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 the free migration and emigration of their citizens and subjects respectively from the one country to the other for purposes of curiosity, of trade or as permanent residents. The high contracting parties therefore join in reprobating any other than an entirely voluntary emigration for these purposes. They consequently agree to pass laws making it a penal offence 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, or for a Chinese subject or citizen of the United States to take citizens of the United States to China or to any other foreign country without their free and voluntary consent, respectively. "ARTICLE VI. Citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation; and, reciprocally, Chinese subjects visiting or residing in the United States shall enjoy the same privileges, immunities and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation. But nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States. "ARTICLE VII. Citizens of the United States shall enjoy all the privileges of the public educational institutions under the control of the Government of China; and, reciprocally, Chinese subjects shall enjoy all the privileges of the public educational institutions under the control of the Government of the United States, which are enjoyed in the respective countries by the citizens or subjects of the most favored nation. The citizens of the United States may freely establish and maintain schools within the Empire of China at those places where foreigners are by treaty permitted to reside; and, reciprocally, Chinese subjects may enjoy the same privileges and immunities in the United States." 6. Immigration Treaty, concluded November 17, 1880; ratifications exchanged July 19, 1881; U. S. Treaties and Conventions, edition of 1889, page 182; U. S. Treaties in Force, edition of 1899, page 118. Articles I to IV of this treaty are as follows: ARTICLE I. Whenever in the opinion of the Government of the United States, the coming of Chinese laborers to the United States, or their residence therein, affects or threatens to affect the interests of that country, or to endanger the good order of the said country or of any locality 2 For note 2 see pp. 91, et seq. The anti-Chinese by the subdivisions 3a-3k of the notes. State legislation was discussed in the preceding chapter, in within the territory thereof, the Government of China agrees that the Government of the United States may regulate, limit, or suspend such coming or residence, but may not absolutely prohibit it. The limitation or suspension shall be reasonable and shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitations. Legislation taken in regard to Chinese laborers will be of such a character only as is necessary to enforce the regulation, limitation or suspension of immigration, and immigrants shall not be subject to personal maltreatment or abuse. “ARTICLE II. Chinese subjects, whether proceeding to the United States as teachers, students, merchants or from curiosity, together with their body and household servants, and Chinese laborers who are now in the United States shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities and exemptions which are accorded to the citizens and subjects of the most favored nation. "ARTICLE III. If Chinese laborers, or Chinese of any other class, now either permanently or temporarily residing in the territory of the United States, meet with ill-treatment at the hands of any other persons, the Government of the United States will exert all its power to devise measnres for their protection and to secure to them the same rights, privileges, immunities and exemptions as may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty. "ARTICLE IV. The high contracting Powers having agreed upon the foregoing articles, whenever the Government of the United States shall adopt legislative measures in accordance therewith, such measures will be communicated to the Government of China. If the measures as enacted are found to work hardship upon the subjects of China, the Chinese Minister at Washington may bring the matter to the notice of the Secretary of State of the United States, who will consider the subject with him; and the Chinese Foreign Office may also bring the matter to the notice of the United States Minister at Peking and consider the subject with him, to the end that mutual and unqualified benefit may result." 7. Treaty as to Commercial Intercourse and Judicial Procedure, concluded November 17, 1880; ratifications exchanged July 19, 1881; proclaimed October 5, 1881. U. S. Treaties and Conventions, edition of 1889, page 184. U. S. Treaties in Force, edition of 1899, page 120. 8. Convention for the Regulation of Chinese Immigration, concluded March 17, 1894; ratifications exchanged December 7, 1894. U. S. Statutes at Large, Volume 28, page 1210. U. S. Treaties in Force, edition of 1899, page 122. By Article I of this treaty it was agreed that for a period of ten years from December 7, 1894, the coming "except under the conditions hereinafter specified, of Chinese laborers to the United States, shall be absolutely prohibited." |