and regulation of Chinese immigration. Many of them are referred to in the notes to this, and the preceding sections;

Section 2319 of U. S. Rev. Stat. confines the right to purchase mines on United States lands to United States citizens and those who have declared their intention to become such, Chinamen not being allowed to be naturalized in the United States. Held, that they have no right to locate and purchase mines and the defendants were enjoined from locating mining claims. The court, however, on page 36 raised some question as to whether or not the statute was not a violation of treaty.

5 MR. BOUTWELL'S VIEWS AND SUMMARY.

"By the second and third articles of a treaty between the United States and the Emperor of China, concluded November 17, 1880, it was agreed in substance that the Chinese subjects of certain specified classes who were then in the United States, should be allowed to go and come of their own free will and accord, and be accorded all the rights, privileges, immunities and exemptions which are accorded to citizens and subjects of the most favored nation.'

"Sec. 404. There was also a further stipulation that if laborers of any other class than those enumerated, then residing in the territory of the United States, should meet with ill treatment at the hands of any other persons, the government of the United States will exert all its power to devise measures for their protection, and to secure to them the same rights, privileges, immunities and exemptions as may be enjoyed by the citizens and subjects of the most favored nation, to which they are entitled by treaty.'

"Sec. 405. The Court held that these stipulations did not act of their own vigor, as parts of the treaty, and that in their nature they could not be observed and enforced by the Court unless Congress provided by law for their execution.

"Sec. 406. Attention was called to three sections of the Revised Statutes (5336, 5508 and 5519). The Court found that those sections did not relate to aliens, and that of course they were inapplicable to Sing Lee and others, his associates, who were Chinese aliens. The word 'citizen' as used in the statutes cited, was limited to citizens of the United States, and of the respective States as defined and guaranteed by the fourteenth amendment of the Constitution of the United States.

"Sec. 407. The Court recognized the authority of Congress to pass laws by which alien Chinese of the class referred to in the treaty would have been protected against interference, but as Congress had neglected to act in the premises, the Court was unable to furnish the protection contemplated by the treaty.

"Sec. 408. Other questions were raised in the case known as 'The Chinese Exclusion Case' (130 U. S. 581). Subsequent to the decision in the case of Baldwin against Franks, Congress passed an act by which Chinese laborers were excluded from the United States. It was contended at the bar that inasmuch as the act of exclusion was contrary to

in some cases extracts have been given from the decisions; the investigation of any new case, however, which may arise

the terms of the treaty, the law was therefore unconstitutional. The Court held, however, that the laws of the United States, and treaties were alike the supreme law of the land, but that in all cases the last expression of the sovereign will must control. Mr. Justice Field, in the opinion which he gave, cited the act of Congress of July 7, 1798, by which the stipulations of.the treaties theretofore concluded with France were abrogated.

"Sec. 409. From these two cases, these propositions of Constitutional law may be deduced:

"1. Where the provisions of a treaty secure specific rights to individuals, those rights can be enforced by the Courts without the aid of the Legislative branch of the government.

"2. Where a treaty contains a declaration that immunities and privileges shall be secured to aliens, the means of securing such privileges and immunities must be provided by the Legislative branch of the government, or otherwise the Courts are powerless to act in the premises.

"3. That the power of the Legislative Department to exclude aliens, for example, from the United States is an incident of sovereignty which cannot be surrendered by the treaty-making power.

"4. That the Legislative Department of the government may annul a treaty by a legislative act.

"Sec. 410. Several cases of importance have been considered and adjudged by the Supreme Court which had their origin in the legislation of Congress designed first, to limit the migration of Chinese into the United States, and then, secondly, to secure the deportation of those persons of Chinese origin and birth who might not comply with the requirements of a statute enacted in 1892, and entitled, 'An act to prohibit the coming of Chinese into the United States.' 27 Stat. at L. 25. "The important cases are these, viz.: "Chy Lung vs. Freeman, 92 U. S. 275.

"Chew Heong vs. The United States, 112 U. S. 536.

"Yick Wo vs. Hopkins, 118 U. S. 356.

"United States vs. Jung Ah Lung, 124 U. S. 621.

"Chae Chan Ping vs. The United States, 130 U. S. 581. "Nishimura Ekiu vs. The United States, 142 U. S. 651. "Fong Yue Ting vs. The United States, 149 U. S. 698.

"The views of the court are so fully set forth in the opinion rendered in the case last named that a critical examination of the preceding cases is unnecessary.

"In the case of Chy Lung, the court held that a law of California which exacted a bond or commutation in money as a condition precedent to the landing of classes of persons enumerated, among which was a class termed 'lewd and debauched women,' was in derogation of the power of Congress to regulate commerce with foreign nations.

"The case of Yick Wo is treated under the fourteenth amendment. "Sec. 411. The main point considered in the case of Chae Chan Ping

under the existing treaties and statutes or those that may be hereafter concluded and enacted necessarily involves an

was the power of Congress to abrogate a treaty. The existence of the power was recognized and affirmed.

"In the case of Nishimura, the Court, held that the statute of March 3, 1891, which forbade the landing of certain classes of immigrant passengers, was constitutional and valid.

"The opinion in the case of Fong Yue Ting, from the pen of Mr. Justice Gray, is a review of the preceding cases in which the powers of Congress have been considered by the Supreme Court.

"The decisions rendered in those cases seem to be final as to the existence of the powers following, viz.:

"1. Congress has power to abrogate a treaty. The treaty-making power is vested in the President and the Senate, and with the consent of the other contracting party it is competent for the President and Senate to annul an existing treaty; but the power to abrogate a treaty is vested in Congress alone.

"2. Congress has power to exclude aliens from the territory of the United States, and the exercise of that power may be vested in executive officers. Aliens, not residents, are not persons' in the language of the Constitution, therefore the phrase 'due process of law' is not applicable to them.

"It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.'

"Sec. 412. The Statute of 1892 gave rise to a question of more importance, viz. Can the Congress of the United States declare by statute that aliens who are upon the territory in conformity to existing laws may be sent from the country as is provided in that statute? By that statute, all Chinese laborers who were in the country at the time of the passage of the act were required to obtain a certificate of that fact from the collector of internal revenue, and in default of such certificate at the end of a year from the passage of the act, the delinquent was to be taken before a judge of a United States Court, and in default of the ability to explain, as required in the Statute, his failure to procure the certificate, it is made the duty of the judge to decree the deportation of the laborer.

"On this point the Court said: The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the Judicial Department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene.'

"The power to exclude aliens and the power to expel them rest upon

examination of all of the cases cited in the notes, or which may hereafter be decided, as the decisions vary according to the peculiar circumstances involved in the cases under consideration.

§ 382. Termination of war by treaty of peace.—There are, as we have seen, many ways in which the action of both houses of Congress can nullify the treaty-making power of the Executive and two thirds of the Senate. There is one remarkable instance, however, in which the treaty-making power can override congressional action, although fortunately, the power seldom has to be exercised in this manner. War can only be declared by Congress, a majority vote of both houses being necessary for a formal declaration of war; true, hostilities commenced either by

one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power.'

"Under this power the Court said that it was competent for Congress to direct that any Chinese laborer found in the United States without a certificate of residence might be removed out of the country by executive officers without judicial trial or examination, as it might have authorized such officers to have prevented his entrance into the country. "This statement was not required by the issues raised on the statute, and upon the important question whether under that statute the removal contemplated was by due process of law, the Court said: 'When, in the form prescribed by law the executive officer, acting in behalf of the United States, brings the Chinese laborer before the judge, in order that he may be heard, and the facts upon which depends his right to remain in the country be decided, a case is duly submitted to the judicial power, for here are all the elements of a civil case,—a complainant, a defendant and a judge,-actor, reus et judex.'

"Thus, the power of Congress to provide for the exclusion of aliens from the territory of the United States, and to provide for the deportation of such as may be within the jurisdiction of the United States, is an unlimited power.

"A treaty is the supreme law of the land, which the Courts are bound to take notice of and to enforce, in any appropriate proceeding, the rights of parties growing out of the treaty. (United States v. Rauscher, 119 U. S., 407.)" Chapter XXXIV, sections 409-412, pp. 292-296, Boutwell's Constitution of the United States. § 382.

1 See §§ 364, et seq., pp. 66, et seq., ante, and §§ 384-387, pp. 129, et seq. post.

2" Congress shall have power

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

"To raise and support Armies, but no Appropriation of Money to

a foreign government or by insurgents may cause a state of war to exist which, without any legislative action will permit the Executive to call out the armed forces of the United States to protect national territory and interests. If, however, war is declared, Congress must declare it. If armies. are to be raised and paid Congress must appropriate the money for that purpose. After war has been declared peace negotiations can be instituted, and a treaty of peace concluded, by the Executive, and, when the same shall have been ratified by two thirds of the Senate, the condition of war terminates upon the exchange of the ratifications without further action by Congress. Legislation may be necessary to carry out stipulations in the treaty as to payments of money and other contractual relations assumed, but no legislation is necessary to transform the condition of war, established by the declaration of Congress, into the condition of peace established by the treaty.5

Apart from Indian treaties of peace, there have been three occasions on which wars declared by Congress have been terminated by treaties made by the Executive and ratified by two thirds of the Senate,-with England in 1814, with

that Use shall be for a longer Term | Treaties, provided two thirds of the than two Years; Senators Present concur." Idem,

"To provide and maintain a Art. II, § 2, cl. 2. Navy;

"To make Rules for the Government and Regulation of the land and naval forces;

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; " Const. U. S., Art. I, § 8, cls. 11-15.

"The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." Const. U. S., Art. II, § 2, cl. 1.

"He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make

8 Talbot vs. Janson, U. S. Sup. Ct. 1795, 3 Dallas, 133, RUTLEDGE, Ch. J. See also the Prize Cases, U. S. Sup. Ct. 1862, 2 Black, 635, GRIER, J. 4 See constitutional provisions under note 2 of this section.

5 Downes vs. Bidwell (Insular Case), U. S. Sup. Ct. 1901, 182 U. S. 244, BROWN, J.; see INSULAR CASES APPENDIX at end of volume I.

6 The actual hostilities of the war of 1812 with Great Britain were commenced prior to the declaration that a condition of war existed which was passed by Congress June 18, 1812 (2 U. S. Stat. at L. 755); the war was terminated by the Treaty of Ghent, concluded December 24, 1814, ratified by the