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$ 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,
$ 379. NOTES BY THE AUTHOR ON CHINESE EXCLUSION CASES.
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.
by the subdivisions 3a-3k of the notes. The anti-Chinese 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.”
which it was shown that the Federal Courts could, and would, step in and protect aliens, who were citizens of a government in treaty relations with the United States, from the slightest
ARTICLE II excepted the return to the United States of certain registered Chinese under certain conditions and on production of a certificate the form whereof was prescribed.
ARTICLE III provided that this should not affect the present right“ of Chinese subjects, being officials, teachers, students, merchants or travelers for curiosity or pleasure, but not laborers, of coming to the United States and residing therein." (Subject however to the production of the prescribed certificate.)
ARTICLE IV provided that Chinese laborers and other classes permanently or temporarily residing in the United States should be protected as to property and person to the extent that such protection is given to citizens of the most favored nation except the right to become naturalized citizens, and in this respect ARTICLE III of the treaty of November 17, 1880, is reaffirmed.
ARTICLE V is as follows: “The government of the United States, haying by an Act of the Congress, approved May 5, 1892, as amended by an act approved November 3, 1893, required all Chinese laborers lawfully within the limits of the United States before the passage of the first named act to be registered as in said Acts provided, with a view of affording them better protection, the Chinese government will not object to the enforcement of such acts, and reciprocally the Government of the United States recognizes the right of the Government of China to enact and enforce similar laws or regulations for the registration, free of charge, of all laborers, skilled or unskilled, (not merchants as defined by said Acts of Congress), citizens of the United States in China, whether residing within or without the treaty ports.
“And the Government of the United States agrees that within twelve months from the date of the exchange of the ratifications of this Convention, and annually, thereafter, it will furnish to the Government of China registers or reports showing the full name, age, occupation and number or place of residence of all other citizens of the United States, including missionaries, residing both within and without the treaty ports of China, not including, however, diplomatic and other officers of the United States residing or travelling in China upon official business, together with their body and household servants.”
This provision is probably unique,-the author is not aware of any other treaty in which a particular statute is described and practically incorporated into a treaty thus making it both statute and contract law; very interesting questions miglit arise under this peculiar combination should Congress be forced to pass any law conflicting with, or repealing, the statutes referred to in his treaty; fortunately the occasion has not arisen.
infraction of the rights guaranteed by the treaties through interference by State laws, or even by State Constitutions;
2 CHINESE IMMIGRATION STATUTES. The statutes relating to Chinese immigration, the enforcement of which resulted in the Chinese exclusion cases, were passed at various times from 1882 to 1891. The first act known as the “Geary" Law gave rise to great discussion in Congress and in the press throughout the country. The demand for the passage of these acts came from the Par cific slope where the inundation of Chinese had proved a cause of great trouble. The attempts of the States to suppress immigration had proved ineffectual as the courts decided that under the treaty stipulations, Chinese were protected and the States had no power to disregard those provisions. (See cases cited in $$ 336, et seq. of chapter XI, pp. 24, et seq, ante.) Finally, Congress yielded to the pressure brought to bear from the western States and enacted the exclusion laws.
The principal laws are as follows:
I. Chapter 126 of the First Session of the Forty-seventh Congress; an act to execute certain treaty stipulations relating to Chinese; approved May 6, 1882; 22 U. S. Stat. at L. p. 58. The preamble and first section of this act are as follows:
“Whereas, in the opinion of the Government of the United States the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof: Therefore, Be it enacted, etc., That from and after the expiration of ninety days next after the passage of this act, and until the expiration of ten years next after the passage of this act, the coming of Chinese laborers to the United States be, and the same is hereby, suspended; and during such suspension it shall not be lawful for any Chinese laborer to come, or having so come after the expiration of said ninety days to remain within the United States."
Sections 2–15 of the statute contain various provisions for enforcing the law, exemptions, penalties for violations, and definitions of terms used.
II. Chapter 220 of the laws of the First Session of the Forty-eighth Congress; an act amending an act entitled, etc., approved May 6, 1882, approved July 5, 1884, 23 U. S. Stat. at L. p. 115.
By this act the entire act of 1882 was re-enacted, section by section, with certain modifications and amendments.
Chinese laborers who were in the United States on November 17, 1880, when the treaty of that date was concluded, were exempted from the provisions of both acts by special clauses to that effect.
Chapter 1015 of the laws of the First Session of the Fifty-first Congress; an act to prohibit the coming of Ch se laborers to the United States; approved September 13, 1888; 25 U. S. Stat. at L. p. 476. The first section of this act provided “that from and after the date of the exchange of ratifications of the pending treaty between the United States of America, and His Imperial Majesty the Emperor of China, signed on the 12th day of March Anno Domini, 1888, it shall be un