*595

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mon defense and general welfare of the United States, and that it is not uniForm throughout the United States. The uniformity here prescribed has reference to the various localities in which the tax is intended to operate. "It shall be uniform throughout the United States." Is the tax on tobacco void because in many of the states no tobacco is raised or manufactured? Is the tax on distilled spirits void because a few states pay three-fourths of the revenue arising from it? The tax is uniform when it operates with the same force and effect in every place where the subject of it is found. The tax in this case, which, as far as it can be called a tax, is an excise duty on the business of bringing passengers from foreign countries into this by ocean navigation, is uniform and operates precisely alike in every port of the United States where such passengers can be landed. It is said that the statute violates the rule of uniformity and the provision of the constitution that "no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another," because it does not apply to passengers arriving in this country by railroad or other inland mode of conveyance. But the law applies to all ports alike, and evidently gives no preference to one over another, but is uniform in its operation in all ports of the United States. It may be added that the evil to be remedied by this legislation has no existence on our inland borders, and immigration in that quarter needed no such regulation. Perfect uniformity and perfect equality of taxation, in all the aspects in which the human mind can view it, is a baseless dream, as this court has said more than once. State Railroad Tax Cases, 92 U. S. 612. Here there is substantial uniformity within the meaning and purpose of the constitution. If it were necessary to prove that the imposition of this contribution on owners of ships is made for the general welfare of the United States, it would not be difficult to show that it is so, and particularly that it is among the means which congress may deem necessary and proper for that purpose, and beyond this we are not permitted to inquire. But the true answer to all these objections is that the power exercised in this instance is not the taxing power. The burden imposed on the ship-owner by this statute is the mere incident of the regulation of commerce-of that branch of foreign commerce which is involved in immigration. The title of the act, "An act to regulate immigration," is well chosen. It describes, as well as any short sentence can describe it, the real purpose and effect of the statute. Its provisions, from beginning to end, relate to the subject of immigration, and they are aptly designed to mitigate the evils inherent in the business of bringing foreigners to this country, as those evils affect both the immigrant and the people among whom he is suddenly brought and left to his own resources.

It is true, not much is said about protecting the ship-owner. But he is the man who reaps the profit from the transaction, who has the means to protect himself, and knows well how to do it, and whose obligations in the premises need the aid of the statute for their enforcement. The sum demanded of him is not, therefore, strictly speaking, a tax or duty within the meaning of the constitution. The money thus raised, though paid into the treasury, is appropriated in advance to the uses of the statute, and does not go to the general support of the government. It constitutes a fund raised from those who are engaged in the transportation of these passengers, and who make profit out of it, for the temporary care of the passengers whom they bring among us, and for the protection of the citizens among whom they are landed. If this is an expedient regulation of commerce by congress, and the end to be attained is one falling within that power, the act is not void because, within a loose and more extended sense than was used in the constitution, it is called a tax. In the case of Veazie Bank v. Fenno, 8 Wall. 549, the enormous tax of 8 per cent. per annum on the circulation of state banks, which was designed, and did have the effect, to drive all such circulation out of existence, was upheld because it was a means properly adopted by congress to protect

the currency which it had created; namely, the legal-tender notes and the notes of the national banks. It was not subject, therefore, to the rules which would invalidate an ordinary tax pure and simple. So, also, in the case of Packet Co. v. Keokuk, 95 U. S. 80, the city of Keokuk having by ordinance imposed a wharfage fee or tax, for the use of a wharf owned by the city, the amount of which was regulated by the tonnage of the vessel, this was held not to be a tonnage tax within the meaning of the constitutional provision that "no state shall, without the consent of congress, lay any duty of tonnage.' The reason of this is that, though it was a burden or tax in some sense, and measured by the tonnage of the vessel, it was but a charge for services rendered, or for conveniences furnished by the city, and was not a tonnage tax within the meaning of the constitution. This principle was reaffirmed in the case of Same Plaintiff v. City of St. Louis, 100 U. S. 423.

99

We are clearly of opinion that, in the exercise of its power to regulate immigration, and in the very act of exercising that power, it was competent for congress to impose this contribution on the ship-owner engaged in that business. Another objection to the validity of this act of congress is that it' violates provisions contained in numerous treaties of our government with friendly nations. And several of the articles of these treaties are annexed to the careful brief of counsel. We are not satisfied that this act of congress violates any of these treaties, on any just construction of them. Though laws similar to this have long been enforced by the state of New York in the great metropolis of foreign trade, where four-fifths of these passengers have been landed, no complaint has been made by any foreign nation to ours of the violation of treaty obligations by the enforcement of those laws. But we do not place the defense of the act of congress against this objection upon that suggestion. We are of opinion that, so far as the provisions in that act may be found to be in conflict with any treaty with a foreign nation, they must prevail in all the judicial courts of this country. We had supposed that the question here raised was set at rest in this court by the decision in the case of The Cherokee Tobacco, 11 Wall. 616. It is true, as suggested by counsel, that three judges of the court did not sit in the case, and two others dissented. But six judges took part in the decision, and the two who dissented placed that dissent upon the ground that congress did not intend that the tax on tobacco should extend to the Cherokee tribe. They referred to the existence of the treaty which would be violated if the statute was so construed as persuasive against such a construction, but they nowhere intimated that, if the statute was correctly construed by the court, it was void because it conflicted with the treaty, which they would have done if they had held that view. On the point now in controversy it was therefore the opinion of all the judges who heard the case. See U. S. v. McBratney, 104 U. S. 621–623.

The precise question involved here, namely, a supposed conflict between an act of congress imposing a customs duty, and a treaty with Russia on that subject, in force when the act was passed, came before the circuit court for the district of Massachusetts in 1855. It received the consideration of that eminent jurist, Mr. Justice CURTIS, of this court, who in a very learned opinion exhausted the sources of argument on the subject, holding that if there were such conflict the act of congress must prevail in a judicial forum. Taylor v. Morton, 2 Curt. C. C. 454. And Mr. Justice FIELD, in a very recent case in the Ninth circuit, that of In re Ah Lung, on a writ of habeas corpus, has delivered an opinion sustaining the same doctrine in reference to a statute regulating the immigration of Chinamen into this country. 18 Fed. Rep. 28. In the Clinton Bridge Case, Woolw. 156, the writer of this opinion expressed the same views as did Judge WOODRUFF, on full consideration, in Ropes v. Clinch, 8 Blatchf. 304, and Judge WALLACE, in the same circuit, in Bartram v. Robertson, 15 Fed. Rep. 212.

It is very difficult to understand how any different doctrine can be sus

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tained. A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The constitution of the United States places such provisions as these in the same category as other laws of congress by its declaration that "this constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land." A treaty, then, is a law of the land as an act of congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute. But even in this aspect of the case there is nothing in this law which makes it irrepealable or unchangeable. The constitution gives it no superiority over an act of congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity. A treaty is made by the president and the senate. Statutes are made by the president, the senate, and the house of representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be made by congress, and which, when made, usually suspends or destroys existing treaties between the nations thus at war. In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation 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 repeal.

Other objections are made to this statute. Some of these relate, not to the power of congress to pass the act, but to the expediency or justice of the measure, of which congress, and not the courts, are the sole judges-such as its unequal operation on persons not paupers or criminals, and its effect in compelling the ultimate payment of the sum demanded for each passenger by that passenger himself. Also, that the money is to be drawn from the treasury without an appropriation by congress. The act itself makes the appropriation, and even if this be not warranted by the constitution, it does not make void the demand for contribution, which may yet be appropriated by congress, if that be necessary, by another statute. It is enough to say that, congress having the power to pass a law regulating immigration as a part of the commerce of this country with foreign nations, we see nothing in the statute by which it has here exercised that power forbidden by any other part of the constitution. The judgment of the circuit court in all the cases is affirmed.

(112 U. S. 536)

CHEW HEONG v. UNITED STATES.1

(December 8, 1884.)

1. CHINESE IMMIGRATION-ACTS OF MAY 6, 1882, AND JULY 5, 1884.

The fourth section of the act of congress, approved May 6, 1882, c. 126, as amended by the act of July 5, 1884, c. 120, prescribing the certificate which shall be produced by a Chinese laborer as the "only evidence permissible to establish his right of reentry" 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.

2. STATUTES-REPEAL BY IMPLICATION.

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.

3. SAME-RETROSPECTIVE EFFECT-CONSTRUCTION.

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.

FIELD and BRADLEY, JJ., dissenting.

In Error to the Circuit Court of the United States for the District of California.

*H. S. Brown and Thos. D. Riordan, for plaintiff in error. Asst. Atty. Gen. Maury, for defendant in error.

HARLAN, J. This case comes before us upon a certificate of division in opinion upon questions that require a construction of the act of congress, approved May 6, 1882, c. 126, (22 St. 58,) entitled "An act to execute certain treaty stipulations relating to Chinese, "-commonly known as the Chinese restriction act,-and of the act amendatory thereof, approved July 5, 1884, c. 220, (23 St. 115.) The facts deemed important in the consideration of these questions, and as to which there is no dispute, are these: The plaintiff in error, Chew Heong, is a subject of the emperor of China, and a Chinese laborer. He resided in this country on the seventeenth of November, 1880, on which day commissioners plenipotentiary, upon the part of the United States and China, concluded, at Peking, a treaty containing articles in modification of former treaties between the same countries. 22 St. 826. He departed from the United States for Honolulu, in the Hawaiian kingdom, on the eighteenth of June, 1881, and remained there until September 15, 1884, when he took passage on an American vessel bound for the port of San Francisco. Arriving at that port on September 22, 1884, his request to be permitted to leave the vessel was denied, and he was detained on board, under the claim that the act of congress of May 6, 1882, as amended, forbade him to land within the United States. He was thereupon brought before the circuit court of the United States, for the district of California, upon a writ of habeas corpus. The United States attorney for that district, who was permitted to intervene in behalf of the government, objected to his discharge, and asked that such orders be made as would effect his removal from the country. It was held that he was not entitled to re-enter or to remain in the United States, and must be deported to the place whence he came, to-wit, Honolulu.

*

The questions certified involved the inquiry whether section 4 of the act approved May 6, 1882, as amended by that of July 5, 1884, 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 applicable to Chinese laborers who, residing in this country on November 17, 1880, departed by sea prior to May 6, 1882, and remained out of the United States till after July 5, 1884. In behalf of the plaintiff in error it is contended that he left for Honolulu with the right secured by treaty to re-enter the United

18. C. 21 Fed. Rep. 791.

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States at his pleasure, subject only to such regulations and restrictions as did not substantially affect his enjoyment of that right; that this privilege does not depend upon his having procured, before he left the United States in 1881, a collector's certificate for which the law, at that time, made no provision; and, consequently, that his right to return, if questioned, must be determined by such evidence as is competent under the general principles of law. The contention on behalf of the government is that his admission into this country, upon evidence other than the certificate prescribed by the act of 1884, would be inconsistent with the intention of congress as manifested by the language of both the original and amendatory acts.

If, as claimed by plaintiff in error, the treaty of 1880, fairly interpreted, secured to him, at the time of his departure for Honolulu, the right to go from and return to the United States at pleasure, without being subjected to regulations or conditions affecting the substance of that right, the court should be slow to assume that congress intended to violate the stipulations of a treaty, so recently made with the government of another country. "There would no longer be any security," says Vattel, "no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises." Book 2, c. 12. And as sovereign nations, acknowledging no superior, cannot be compelled to accept any interpretation, however just and reasonable, "the faith of treaties constitutes in this respect all the security of contracting powers." Book 2, c. 17. "Treaties of every kind," says Kent, "are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and are to be kept in the most scrupulous good faith." 1 Kent, Comm. 174. A treaty that operates of itself without the aid of legislation is equivalent to an act of congress, and while in force constitutes a part of the supreme law of the land. Foster v. Neilson, 2 Pet. 314. Aside from the duty imposed by the constitution to respect treaty stipulations when they become the subject of judical proceedings, the court cannot be unmindful of the fact that the honor of the government and people of the United States is involved in every inquiry whether rights secured by such stipulations shall be recognized and protected. And it would be wanting in proper respect for the intelligence and patriotism of a co-ordinate department of the government were it to doubt, for a moment, that these considerations were present in the minds of its members when the legislation in question was enacted.

With these observations, we proceed to consider whether the right claimed by the plaintiff is secured by treaty, and, if so, whether its recognition is inconsistent with the before-mentioned acts of congress.

Before referring to the treaty of 1880, it will be well to ascertain from those previously concluded between the United States and China, what were the relations of trade and commerce existing between their respective peoples. By the treaty of peace, amity, and commerce, concluded in 1858, citizens of the United States in China peaceably attending to their affairs, were placed on a common footing of amity and good-will with subjects of the latter country, entitled to receive and enjoy for themselves, and everything pertaining to them, the protection of the local authorities of government, who were required to defend them from insult or injury of any sort. Those residing or sojourning at any of the ports open to foreign commerce were permitted to rent houses and places of business, or hire sites on which they could theinselves build houses, hospitals, churches, and cemeteries; to frequent certain designated ports and cities, and any other port or place thereafter, by treaty with other powers or with the United States, opened to commerce; to reside with their families and trade at such places, and to proceed at pleasure with their vessels and merchandise to and from said ports, or any of them; at each of said ports open to commerce, to import from abroad, and to sell, purchase. and export all merchandise of which the importation or exportation was not