and also that on numerous occasions State statutes, as well as provisions of State constitutions, were held null and void

lawful for any Chinese person, whether a subject of China or of any other power, to enter the United States, except as hereinafter provided." The two acts above referred to of 1882 and 1884, were by the 15th section of this act repealed, such repeal to take effect upon the exchange of ratification of the pending treaty referred to.

Section 2 of this act prevented "Chinese officials, teachers, students merchants, or travelers for pleasure or curiosity" to enter the United States except upon compliance with certain conditions and prescribed rules and regulations, specifically set forth in the statute.

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It was provided by section 13, That any Chinese person, or person of Chinese descent, found unlawfully in the United States, or its Territories, may be arrested upon a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States, by any justice, judge, or commissioner of any United States Court, returnable before any United States Court, and when convicted, upon a hearing, and found and adjudged to be one not lawfully entitled to be or remain in the United States such person shall be removed from the United States to the country whence he came." Then follow certain rules as to procedure, right of appeal, payment of expenses, and exemptions, diplomatic and consular affairs.

III. Chapter 1064 of the laws of the First Session of the Fifty-first Congress to supplement the act of May 6, 1882, approved October 1, 1888, 25 U.S. Stat. at L. p. 504.

By this act it was made "unlawful for any Chinese laborer who shall at any time heretofore have been, or who may now or hereafter be a resident within the United States, and who shall have departed therefrom, and shall not have returned before the passage of this act, to return to, or to remain in, the United States."

IV. Chapter 60 of the laws of the First Session of the Fifty-second Congress; an act to prohibit the coming of Chinese persons into the United States, approved May 5, 1892, 27 U. S. Stat. at L. p. 25.

By this all laws in force prohibiting and regulating Chinese immigration were continued for ten years from the passage of the act.

According to the annotation of the statute on p. 25, this referred to the acts of May 6, 1882, July 5, 1884 and October 1, 1888. It does not appear that the Act of September 13, 1888, had gone into effect at that time.

This act made all the provisions as to immigration more stringent and provided for deportation as in the act of September 13, 1888. It placed the burden of proof therein in all cases upon the Chinese person seeking admittance or right to remain in this country, and also required all Chinamen in this country to register under certain conditions and penalties in case of noncompliance.

Chapter 14 of the laws of the First Session of the Fifty-third Congress, amending the act of May 5, 1892, approved November 3, 1893, 28 U. S. Stat. at L. p. 7.

because they attempted to contravene treaty rights which had been guaranteed by the United States. We find, how

By this act the act of 1892 was amended, further provisions were made as to obtaining certificates of registry and for deporting Chinese persons illegally in the United States; the terms "laborers" and merchants" were defined.

The two last mentioned acts were those referred to in the treaty of 1894, Art. V. (See p. 89, ante.)

The foregoing are the principal statutes which were enacted by Congress in regard to Chinese immigration. There were other statutes and provisions in the revenue, immigration and appropriation laws regarding this subject but the decisions of the Courts were based almost altogether upon the statutes quoted.

8 CHINESE EXCLUSION CASES.

It can readily be seen that the statutes in some points differed from, or conflicted with, the treaty stipulations, and questions at once arose as to how far Chinese subjects were protected by the treaty stipulations, and as to the nature of their rights thereunder.

A few of the cases will be referred to at length; reference will be made to others. In all cases involving the construction of statutes, and treaties involving questions under the Chinese Exclusion Acts or statutes similar thereto, conflicting with treaty stipulations, the cases as well as the digests should be carefully examined and the different circumstances attendant upon each case carefully scrutinized.

The earliest decisions were made in the courts of the States of the Pacific slope. Mr. Justice FIELD of the Supreme Court sitting as Circuit Judge, and Judges HOFFMAN, SAWYER and DEADY of the United States Circuit and District Courts were at once called upon to decide, first, whether the exclusion law was constitutional on general principles; second, whether it was constitutional in view of the treaty stipulations, and third, how it should be construed and carried out as to the particular case before the court.

The laws were sustained on all points.

The decision made by Justice FIELD in 1883, in In re Ah Lung, 18 Fed. Rep. 28; S. C., 9 Sawyer, 306, in the United States Circuit Court for California has been followed ever since. As the same justice afterwards wrote the opinion in the Chinese Exclusion Cases (130 U. S. 581; and see p. 95, post) an extract from his opinion will here be given: "An act of congress, then, upon a subject within its legislative power is as binding upon the courts as a treaty on the same subject. Both are binding, except as the latter one conflicts or interferes with the former. If the nation with whom we have made the treaty objects to the action of the legislative department, it may present its complaint to the executive department, and take such other measures as it may deem that justice to its own citizens or subjects requires. The courts cannot heed such complaint, nor refuse to give effect to a law of congress, however much it may seem to conflict with the stipulations of

ever, that although the statutes passed by Congress to prevent Chinese immigration were, in some respects, apparently

the treaty. Whether a treaty has been violated by our legislation, so as to be the proper occasion of complaint by the foreign government, is not a judicial question. To the courts it is simply the case of conflicting laws, the last modifying or superseding the earlier.”

At a later point reference will be made to other decisions in the United States District and Circuit Courts. The leading cases in the United States Supreme Court on the Chinese Exclusion laws are as follows:

3a. THE EARLIER SUPREME COURT CASES.

Chew Heong vs. United States, 1884, 112 U. S. 536, HARLAN, J. Although this and the case of Jung Ah Lung (next cited) were the first cases involving the validity of these statutes to reach the Supreme Court neither of them was called the First Chinese Exclusion Case, that title being applied to the later case of Chae Chan Ping, 130 U. S. 581, FIELD, J. (See p. 553, post.)

The particular point involved was whether Chinamen resident within the United States at the time of the treaty of 1880, and who had departed before the act of 1882 went into effect had the right to return. The points as decided are stated in the syllabus as follows:

"The fourth section of the act of Congress approved May 6, 1882, ch. 126, as amended by the act of July 5, 1884, ch. 120, prescribing the certificate which shall be produced by a Chinese laborer as the 'only evidence permissible to establish his right of re-entry' into the United States, is not applicable to Chinese laborers who, residing in this country at the date of the treaty of November 17, 1880, departed by sea before May 6, 1882, and remained out of the United States until after July 5, 1884.

"The rule reaffirmed that repeals of statutes by implication are not favored, and are never admitted where the former can stand with the new act.

"Courts uniformly refuse to give to statutes a retrospective operation, whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature."

In reaching this conclusion the justice writing the opinion cites at length from the treaty and from the act and takes the view that the repeals are not favored by implication and the act and treaty must be construed together if possible. (See § 387, post.)

United States v. Jung Ah Lung, 1888, 124 U. S. 621, BLATCHFORD, J. In this case a Chinaman had not been allowed to land for want of a certificate provided in the exclusion acts.

It appeared that he resided in the United States on November 17, 1880, the date of the treaty with China; that he had left the United States temporarily after procuring the proper certificate provided by the act to allow him to return, but that he had lost the same, having

in direct violation of treaty stipulations, the Courts sustained them as constitutional, simply warning Congress that recla

been robbed; that however, the books in the registration office in San Francisco proved his identity.

The court below had ordered his discharge-the United States appealed. The Supreme Court affirmed the discharge, and held that it was proper, under those circumstances, for the party to be produced on habeas, and that he was entitled to prove by proper evidence that he was authorized to land.

The government contended that the provisions of the treaty did not provide any judicial recognition of rights under a treaty, and that in the case of hardship it should be adjusted by diplomatic correspond

ence.

The Supreme Court held that that provision would not deprive the court of jurisdiction in the present case, and in that respect said (pp. 632, 633):

"It is also urged, that the statute confides to the collector of the port of San Francisco the authority to pass upon the question of allowing Jung Ah Lung to land in the United States, and provides no means of reviewing his action in the premises; that only executive action in enforcing the treaty and the statutes is contemplated, and that there is no case in law or equity, growing out of the facts, to be inquired into by a judicial tribunal.

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It is true that the 9th section of the act provides, that, before any Chinese passengers are landed from a vessel arriving in the United States from a foreign port, the collector of customs of the district in which the vessel arrives shall proceed to examine such passengers, comparing with the list and with the passengers the certificates issued under the act, and that no passenger shall be allowed to land in the United States from such vessel in violation of law. But we regard this as only a provision for specifying, and that no difference can be drawn from that or any other language in the acts that any judicial cognizance which would otherwise exist is intended to be interfered with.

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It is also urged that the treaty itself contemplates only executive action, for the reason that the fourth article of the treaty, 22 Stat. 827 provides that, if the legislation adopted by the United States to carry out the treaty shall be 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.' But there is nothing in this provision which excludes judicial cognizance, or which confines the remedy of a subject of China, in a given case of hardship, to diplomatic action." HARLAN, FIELD and LAMAR, JJ., dissented.

36. THE FIRST CHINESE EXCLUSION CASE.

Chae Chan Ping vs. United States, 1889, 130 U. S. 581, FIELD, J., affirming In re Chae Chan Ping, U. S. Cir. Ct. N. D. of Cal. 1888, 36 Fed. Rep. 431, SAWYER, J. In this case, which involved the acts of 1882,

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mations might be made by the Chinese government for violations of the treaty, also stating, that such results and all that might follow were matters with which the Courts were not 1884 and 1888, and is generally known as the First Chinese Exclusion Case, a Chinese laborer had procured a certificate issued under the act of 1884, and he was refused permission to land on the ground that this certificate had been annulled by the act of 1888 during his absence.

The Circuit Judge sustained the collector and remanded the prisoner and held that the act of 1888 took effect from its passage-was a valid act; was not unconstitutional as an ex post facto act or divesting of vested rights, and that treaties and acts of Congress stand upon an equal footing as parts of the supreme law of the land and a later inconsistent provision in either repeals the earlier one in the other.

The case was appealed to the Supreme Court.

When the case reached the Supreme Court the statutes were attacked on every point including the power of the United States Government to exclude aliens. In affirming the Circuit Court Justice FIELD delivered an elaborate opinion sustaining the power of the Government which has already been quoted from at an earlier point in this volume (see § 317, p. 454, Vol. I).

The points decided are stated in the syllabus as follows:

"In their relations with foreign governments and their subjects or citizens, the United States are a nation, invested with the powers which belong to independent nations.

"So far as a treaty made by the United States with any foreign power can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or appeal sic (repeal). The Head Money Cases, 112 U. S. 580, and Whitney vs. Robertson, 124 U. S. 190, followed.

"The abrogation of a treaty like the repeal of a law, operates only on future transactions, leaving unaffected those executed under it previous to the abrogation.

"The rights and interests created by a treaty, which have become so vested that its expiration or abrogation will not destroy or impair them, are such as are connected with and lie in property, capable of sale and transfer or other disposition, and not such as are personal and untransferable in their character.

"The power of the legislative department of the government to exclude aliens from the United States is an incident of sovereignty, which cannot be surrendered by the treaty making-power.

"The act of October 1, 1888, 25 Stat. 504, c. 1064, excluding Chinese laborers from the United States, was a constitutional exercise of legislative power, and, so far as it conflicted with existing treaties between the United States and China, it operated to that extent to abrogate them as part of the municipal law of the United States.

"A certificate issued to a Chinese laborer under the fourth and fifth sections of the act of May 6, 1882, 22 Stat. 58, c. 126, as amended July 5, 1884, 23 Stat. 115, c. 220, conferred upon him no right to return to the