Cases, 20 Wall. 187. So far from the court being compelled, by the language of the act of congress, to give it a retrospective operation, the plain, natural, and obvious meaning of the words-interpreted with reference to the general scope and the declared purpose of the statute-utterly forbids the conclusion that there was any intention to impair or destroy rights previously granted. The Chinese laborer who, under the act of 1882, was entitled to return and re-enter the United States upon producing the certificate therein prescribed, and the Chinese laborer who, after the act of 1884 was passed, could re-enter the country only upon producing the certificate required by the latter act, is described as one "to whom the same is issued."

It would be a perversion of the language used to hold that such regulations. apply to Chinese laborers who had left the country with the privilege, secured by treaty,' of returning, but who, by reason of their absence when those legislative enactments took effect, could not obtain the required certificates. Statutory provisions which declare that a certificate shall be evidence, or the only evidence, of the right of the person "to whom it is issued" to re-enter the United States, cannot, upon any sound rule of interpretation, be held to apply to one to whom it could not have been issued. A Chinese laborer, to whom a certificate was issued under the original act, is entitled to re-enter only upon producing that certificate; one, to whom a certificate was issued under the act of 1881, is entitled to re-enter only upon producing such certificate; while the plaintiff in error, having left before any certificate was permitted to be issued, cannot be required to produce one before re-entering, because, having resided here on the seventeenth day of November, 1880, he was clearly entitled, under the express words of the treaty, to go from and return to the United States of his own free will,-a privilege that would be destroyed if its enjoyment depended upon a condition impossible to be performed. The recognition of that privilege is entirely consistent with existing legislation; for, by construing the original and amendatory acts, so far as they require the production of a collector's certificate by Chinese laborers who were in the United States on the seventeenth of November, 1880, as applicable only to those of that class who were here at the dates when those acts, respectively, took effect, no previously acquired rights are violated, and full effect is given to the expressed intention of congress to faithfully meet our treaty obligations. Thus, the legislation of congress and the stipulations of the treaty may stand together.

560

In accordance with these views, it is adjudged that the plaintiff in error is entitled to enter and remain in the United States. The first of the certified questions is, therefore, answered in the negative, and the second and third in the affirmative. The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

199.

FIELD, J., dissenting. I am unable to agree with my associates in their construction of the act of May 6, 1882, as amended by the act of July 5, 1884,* restricting the immigration into this country of Chinese laborers. That construction appears to me to be in conflict with the language of the act, and to require the elimination of entire clauses and the interpolation of new ones. It renders nugatory whole provisions which were inserted with sedulous care. The change thus produced in the operation of the act is justified on the theory that to give it any other construction would bring it into conflict with the treaty; and that we are not at liberty to suppose that congress intended by its legislation to disregard any treaty stipulations. The circuit judge, in his opinion, assumes that the treaty of 1880 allows Chinese laborers, then in the United States, freedom to depart and return without reference to their subsequent residence in the country; and that this freedom is assured to them whether they afterwards abandon or continue their residence. Proceeding on this assumption, as though it were impregnable, the assertion is made, with

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great positiveness and frequent repetition, that the act of congress, construed according to the natural meaning of its terms, violates that treaty and our plighted faith; and the enormity of such legislation is dwelt upon with much warmth of expression. The majority of this court, adopting a similar construction of the treaty, narrow the meaning of the act so as measurably to frustrate its intended operation. Whereas, if the treaty as to such laborers be construed, as I think it should be, to apply to those then here who afterwards continue their residence in the country, and who may, during such residence, desire to be temporarily absent, there is no conflict between it and the act of congress. Both are then in perfect harmony, the imputation of bad faith is without a plausible pretext, and the citations in the opinion of the circuit judge, and of this court, as to the necessity of so construing acts as not to lead to injustice, oppression, or absurd consequences, have no application.

The petitioner, a native of China, and a laborer, though here when the treaty of 1880 was concluded, left the country in June, 1881, and was in the Hawaiian islands over three years before he desired to return. Chinese laborers do not travel for*pleasure, and during that time he had acquired a residence in those islands as fully as he ever had in the United States. But, according to the opinion of the court, this fact is of no significance. He could reside there 20 years and then return, notwithstanding the act of congress. I cannot construe the treaty as conferring any such unrestricted right, or as applying to any other laborers than those who afterwards continued their residence here. If, however, the act of congress be in conflict with the treaty upon the immigration of Chinese laborers, it must control as being the last expression of the sovereign will of the country. And while I agree with all that is said in the opinion of the court as to the sanctity of the public faith, I must be permitted to suggest that if the legislative department sees fit, for any reason, to refuse, upon a subject within its control, compliance with the stipulations of a treaty, or to abrogate them entirely, it is not for this court or any other court to call in question the validity or wisdom of its action, and impute unworthy motives to it. It should be presumed that good and sufficient reasons controlled and justified its conduct. If the nation with which the treaty is made objects to the legislation it may complain to the executive head of our government, and take such measures as it may deem advisable for its interests. But whether it has just cause of complaint, or whether, in view of its action, adverse legislation on our part be or be not justified, is not a matter for judicial cognizance or consideration. A treaty is, in its nature, a contract between two or more nations, and is so considered by writers on public law; and by the constitution it is placed on the same footing and made of like obligation as a law of the United States. Both are declared in that instrument to be the supreme law of the land, and no paramount authority is given to either over the other.

Some treaties operate in whole or in part by their own force, and some require legislation to carry their stipulations into effect. If that legislation impose duties to be discharged in the future, it may be repealed or modified at the pleasure of congress. If the treaty relates to a subject within the powers of congress, and operates by its own force, it can only be regarded by the courts as equivalent to a legislative act. Congress may, as with an ordinary statute, modify its provisions, or supersede them altogether. The immigra tion of foreigners to this country, and the conditions upon which they shall be permitted to come or remain, are proper subjects both of legislation and of treaty stipulation. The power of congress, however, over the subject can neither be taken away nor impaired by any treaty.

As said by Mr. Justice CURTIS, in Taylor v. Morton: "To refuse to execute a treaty, for reasons which approve themselves to the conscientious judgment of the nation, is a matter of the utmost gravity and delicacy; but the

power to do so is prerogative, of which no nation can be deprived without deeply affecting its independence. That the people of the United States have deprived their government of this power in any case, I do not believe. That it must reside somewhere, and be applicable to all cases, I am convinced. 1 feel no doubt that it belongs to congress. That, inasmuch as treaties must continue to operate as part of our municipal law, and be obeyed by the people, applied by the judiciary and executed by the president, while they continue unrepealed; and inasmuch as the power of repealing these municipal laws must reside somewhere, and no body other than congress possesses it,-ther legislative power is applicable to such laws whenever they relate to subjects which the constitution has placed under that legislative power." 2 Curt. 459. And the learned justice holds that whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of foreign sovereign have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise,-is not a judicial question; that the power to determine these matters has not been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments of our government; that they belong to diplomacy and legislation, and not to the administration of the laws. And he con-* cludes, as a necessary consequence of these views, that if the power to determine those matters is vested in congress, it is wholly immateria to inquire whether, by the act assailed, it has departed from the treaty or not, or whether such departure was accidental or designed, and if the latter, whether the reasons therefor were good or bad.

As said by Attorney General Crittenden, in his opinion furnished to the head of the treasury department respecting claims under the treaty with Spain ceding Florida, with which an act of congress was supposed to conflict, the "constitution does not say that congress shall pass no law inconsistent with a treaty, and it would have been a strange anomaly if it had imposed any such prohibition. There may be cases of treaties so injurious, or which may become so by change of circumstances, that it may be the right and duty of the goverment to renounce or disregard them. Every government must judge and determine for itself the proper occasion for the exercise of such a power; and such a power, I suppose, is impliedly reserved by every party to a treaty, and I hope and believe belongs inalienably to the government of the United States. It is true that such a power may be abused; so may the treatymaking power and all other powers. But for our security against such abuse, we may and must rely on the integrity, wisdom, and good faith of our gov. ernment." 5 Op. Attys. Gen. 345. This power was exercised by congress in 1798, when it declared that the United States were of right freed and exonerated from the stipulations of the treaties and consular convention previously concluded with France, and that they should not thereafter be regarded as obligatory on the government or citizens of the United States. 1 St. at Large, 578. But, what is more important than these citations as to the weight to be given to an act of congress when in conflict with a preceding treaty, this court has this day rendered an authoritative decision on the subject. In several cases, brought to recover from the collector of the port of New York moneys received by him as duties on passengers landing there from foreign ports, not being citizens of the United States, at the rate of 50 cents for each of them, under the act of congress of August 3, 1882, to regulate immigration, it was objected that the act violated provisions contained in treaties of our government with foreign nations, but the court replied that, “so far as the provisions in that act may be found in conflict with any treaty, they must prevail in all the judicial courts of this country." And,

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after a careful consideration of the subject, the court reached this conclusion, and held 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." Edye v. Robertson and Cunard Steam-ship Co. v. Same Party, ante, 247. See, also, the case of The Cherokee Tobacco, 11 Wall. 616, and the Case of Ah Lung, the Chinese laborer from Hong Kong, 9 Sawy.

-; S. C. 18 Fed. Rep. 28. While, therefore, the courts will always endeavor to bring legislation into harmony with treaty stipulations, and not presume that it was intended by the legislative department to disregard them, yet an act of congress must be construed according to its manifest intent, and neither limited nor enlarged by ingenious reasoning or fanciful notions of a purpose not declared on its face.

Before proceeding to examine in detail the act of congress in question, a few words may be said as to the causes which led to its enactment. Upon the acquisition of California and the discovery of gold, people from all parts of the world came to the country in great numbers, and among them Chinese laborers. They found ready employment. They were industrious and docile, and generally peaceable. They proved to be valuable domestic servants, and were useful in constructing roads, draining marshes, cultivating fields, and, generally, wherever out-door labor was required. For some time they excited little opposition, except when seeking to work in the mines. But as their numbers increased they began to engage in various trades and mechanical pursuits, and soon came into competition, not only with white laborers in the field, but with white artisans and mechanics. They interfered in many ways with the industries and business of the state. Very few of them had families, not 1 in 500, and they had a wonderful capacity to live in narrow quarters without injury to their health, and were generally content with small gains and the simplest fare. They were perfectly satisfied with what would hardly furnish a scanty subsistence to our laborers and artisans. Successful competition with them was, therefore, impossible, for our laborers are not content, and never should be, with a bare livelihood for their work. They demand something more, which will give them the comforts of a home, and enable them to support and educate their children. But this is not possible of attainment if they are obliged to compete with Chinese laborers and artisans under the conditions mentioned; and it so proved in California. Irritation and discontent naturally followed, and frequent conflicts between them and our people disturbed the peace of the community in many portions of the state.

By the treaty concluded in July, 1868, generally known as the Burlingame treaty, the contracting parties declare that they "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." And also that "citizens of the United States, visiting or residing in China, shall enjoy the same privileges, immunities, or exemptions, in respect to travel or residence, a nay there be enjoyed by the citizens and subjects of the most favored na tion; 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." 16 St. at Large, 740, arts. 5, 6.

But, notwithstanding these favorable provisions, opening the whole of our country to them, and extending to them the privileges, immunities, and exemptions of citizens or subjects of the most favored nation, they have remained among us a separate people, retaining their original peculiarities of dress, manners, habits, and modes of living, which are as marked as their

complexion and language. They live by themselves; they constitute a distinct organization with the laws and customs which they brought from China. Our institutions have made no impression on them during the more than 30 years they have been in the country. They have their own tribunals to which they voluntarily submit, and seek to live in a manner similar to that of China. They do not and will not assimilate with our people; and their dying wish is that their bodies may be taken to China for burial. But this is not all. The treaty is fair on its face. It stipulates for like privileges, immunities, and exemptions on both sides,-to our people going to China and to their people coming here. But the stipulations to our people are utterly illusive and deceptive. No American citizen can enjoy in China, except at certain designated ports, any valuable privileges, immunities, or exemptions. He can trade at those ports, but nowhere else. He cannot go into the interior of the country and buy or sell there, or engage in manufactures of any kind. A residence there would be unsafe, and the crowded millions of her people render it impossible for him to engage in business of any kind among them. The stipulations of the treaty, so far as the residence of the citizens or subjects of one country in the other and the trade which would follow such residence are concerned, are therefore one-sided. Reciprocity in benefits between the two countries in that respect has never existed. There is not and never has been any "mutual advantage" in the migration or emigration of the citizens or subjects, respectively, from one country to the other which the treaty, in "cordially recognizing," assumes to exist. Suggestions of any such mutuality were deceptive and false from the outset. The want of it was called to the attention of our government in 1878 by a communication to the state department from our minister in China. "A few words," says the minister, "are needed to indicate the lack of reciprocity between us. think there are no opportunities of residence or of enterprise from which the Chinese among us are debarred. They can go where they will and do what they will in all our broad domain. But it is not so here. Our country. men may reside in a few cities only, and they may engage in no enterprise outside of the ordinary interchange of commodities, and their transportation 'between defined points. Opportunities exist to develop mines, to establish furnaces and factories, to construct roads, canals, railroads, and telegraphs, to operate these, and steam and other vessels, on many routes now not open to them; but from all these and many other important branches of enterprise we are effectually and perhaps hopelessly shut out." And this is not all. By the treaty of 1868 the contracting parties declare their reprobation of any other than " 'an entirely voluntary emigration," and they agree to pass laws making it a penal offense for a citizen of the United States or Chinese subjects to take Chinese subjects to the United States without their free and voluntary consent. In the face of this explicit provision large numbers of them, more than one-half of all who have come to the United States, have been brought under what is termed the contract system; that is, a contract for their labor. In one sense they come freely, because they come pursuant to contract, but they are not the free immigrants whose coming the treaty contemplates, and for whose protection the treaty provides. They are for the time the bond thralls of the contractor-his coolie slaves. The United States had already legislated to prevent the transportation by their citizens of coolies from China to any foreign port; but no law has ever been passed by China to prevent its subjects, thus bound, from being taken to the United States. Act February 19, 1862, (12 St. at Large, 340.)

I

In view of these facts-that the Chinese cannot assimilate with our people, but continue a distinct race among us, with institutions, customs, and laws entirely variant from ours; that the larger portion of persons termed Chinese laborers were imported under the labor-contract system; that no law to prevent their importation under this system had ever been passed by China; that