suppose that Congress intended by its legislation to disregard any treaty stipulations." He adverted to the language of the circuit court that the act of Congress, construed according to the natural meaning of its terms, violates the treaty and the national faith, and that the majority of the court adopting a similar construction of the treaty had narrowed the meaning of the act so as measurably to frustrate its intended operation, and thus proceeded: "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 If that legislation imposed duties to be discharged in the future, it may be repealed or modified at the pleasure of Congress.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 alto gether. The immigration 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. 56 He said that if the construction which he gave worked a hardship to any persons, it was for Congress, and not for the court, to afford the remedy. "This court has no dispensing power over the provisions of an act of Congress. It is itself only the servant of the bound to obey it, not to evade or make it." law; Mr. Justice Bradley concurred with Mr. Justice Field in dissenting from the judgment, and remarked: "It may be that this view of the law makes it conflict with the treaty, though Justice Field has shown strong reasons to the contrary, but whether it does so or not, I think it is the true construction; and the rule is now settled that Congress may, by law, overrule a treaty stipulation, although, of course, it should not be done without strong reasons for it; and an act of Congress should not be construed as having that effect unless such be its plain meaning." 57 If it is alleged that a conflict exists between a treaty requiring ratification and a legislative act of amendment, the courts, in their construction, will endeavor to give effect to both, but if they cannot be reconciled, will give effect preferably to the legislative enactment.58 50 Chew Heong v. United States, supra. 57 Chew Heong v. United States, supra. As said by Chief Justice Marshall: “It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." Cohens v. Virginia (1821), 19 U. S. (6 Wheat.) 264, 399, 5 L. ed. 257, 290. The above language was quoted with approval in United States v. Wong Kim Ark, 169 U. S. 679, 18 Sup. Ct. Rep. 456, 42 L. ed. 901. 58 Wadsworth v. Boysen, 148 Fed. 771. § 184. Same rule as to repeal of statutes by implication.-As a treaty and an act of Congress are entitled to equal consideration, and neither is in itself paramount to the other, the rule for their construction, when in conflict, or for determining whether one is repealed by the other by implication, is the same as if the treaty and act of Congress were both statutes. It will not be necessary to enter into detail as to the rule of construction recognized when it is claimed that a statute is repealed by implication, but it will be sufficient to quote Mr. Justice Story, who, in speaking of a repeal of a statute by implication, in delivering the opinion of the court, said: "That it has not been expressly or by direct terms repealed is admitted; and the question resolves itself into the narrow inquiry whether it has been repealed by necessary implication. We say by necessary implication, for it is not sufficient to establish that subsequent laws cover some, or even all, of the cases provided for by it, for they may be merely affirmative or cumulative or auxiliary. But there must be a positive repugnancy between the provisions of the new laws and those of the old, and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy.' ?? 59 "It must appear that the later provision is certainly and clearly in hostility to the former. If by any reasonable construction, the two statutes can stand together, they must so stand. If harmony is impossible, and only in that event, the former law is repealed in part, or wholly, as the case may be." 60 § 185. Self-executing treaties.-A treaty which requires no further legislation to make it effective becomes, after its ratification, the law of the land, and will be enforced by the courts as a law of Congress.61 But where the treaty is not complete in Wood v. United States, 16 Pet. 362, 10 L. ed. 993. "State v. Stoll, 17 Wall. 425, 21 L. ed. 654. See, also, Ex parte Yerger, 8 Wall. 105, 19 L. ed. 339; Ex parte Crow Dog, 109 U. S. 570, 3 Sup. Ct. Rep. 396, 27 L. ed. 1035; Arthur v. Horner, 96 U. S. 140, 24 L. ed. 812; Harford v. United States, 8 Cranch, 109, 3 L. ed. 504. 61 United States v. Forty-three Gallons of Whisky, 93 U. S. 188, 23 L. United ed. 846; Chew Heong v. States, 112 U. S. 536, 5 Sup. Ct. Rep. 255, 28 L. ed. 770; In re Metzger, 17 Fed. Cas. No. 9511; In re Ah Lung, 18 Fed. 28, 9 Saw. 306. 63 itself, but requires further legislation to make it effective, it cannot, of course, be enforced by the courts until such legislation is had.62 A familiar instance is where an appropriation of money is necessary to carry a treaty into effect. Until such appropriation is made, the treaty is not perfect, as under the Constitution money cannot be appropriated by the treaty-making power. Where, by the treaty with Spain, the island of Porto Rico was ceded to the United States, although it had not been formally embraced by Congress within the customs union of the states, it ceased to remain foreign territory within the meaning of the tariff act providing for the imposition of duties upon articles imported from foreign countries.64 § 186. Chinese exclusion cases.-As showing that an act of Congress in contravention of the terms of a treaty must be upheld when the language of the act is clear and explicit, reference may be made to the legislation providing for the exclusion of Chinese from the United States. It is the inherent and inalienable right of every sovereign and independent nation to exclude or expel aliens or any class of aliens. This right may be exercised in war or in peace, and either absolutely or upon specified conditions. This power under the Constitution of the United States is vested in the political department of the government, and may be exercised either by a treaty or by an act of Congress, and is to be carried into effect by the executive authority according to the regulation established, except so far as intervention by the judicial department is authorized by treaty or by statute, or is required by the Constitution. Congress may exercise its power to expel or exclude aliens entirely through executive officers or may call in the assistance of the judiciary to ascertain any contested facts, on the existence of which the right of an alien to remain is, by the act of Congress, dependent.65 62 Foster v. Neilson, 2 Pet. 253, 7 L. ed. 415; Whitney v. Robertson, 124 U. S. 190, 8 Sup. Ct. Rep. 457, 31 L. ed. 387. 63 Turner v. American Baptist Missionary Union, 5 McLean (U. S.), 347, Fed. Cas. No. 14,251. De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. Rep. 743, 45 L. ed. 1041. 65 Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct. Rep. 1016, 37 L. ed. 905; United States v. Ngum Lun May, 153 Fed. 209. See as to other cases, Chae Chan Pang v. United States, 130 U. S. 581, 9 Sup. Ct. 217 CHINESE CHILDREN BORN IN THE UNITED STATES. [§§ 187, 188 § 187. Chinese children born in the United States.-The acts excluding Chinese from the United States do not apply to a person born within the United States of Chinese parents, who reside therein and who are not engaged in any diplomatic or official capacity under the Emperor of China. Such a person is a citizen of the United States.66 Under the common law a child born within the jurisdiction of the United States is born a subject or citizen thereof, without consideration of the political status of its parents.67 Except for punishment of crime, no citizen can be excluded from the United States.68 An act of Congress that would attempt to inflict on a citizen of the United States the punishment of banishment or exile, on account of his race or color, or for any cause, would be a bill of attainder within the prohibition of the federal Constitution, and invalid.69 § 188. Application of fourteenth amendment. By the fourteenth amendment to the Constitution of the United States, the laws providing for the exclusion of Chinese laborers have no application to a person born in the United States and subject to its jurisdiction, notwithstanding that his parents, who were Chinese, Rep. 623, 32 L. ed. 1068; In re Lau It was said in the Japanese immigrant case, Yamataya v. Fisher, 189 U. S. 86, 23 Sup. Ct. Rep. 611, 47 L. ed. 721: "That Congress may exclude aliens of a particular race from the United States, prescribe the terms and conditions upon which certain classes of aliens may come to this country, establish regulations for sending out of the country such aliens as come here in violation of law, and commit the enforcement of such provisions, conditions and regulations exclusively to executive officers, without judicial intervention, are principles firmly established by the decisions of this court." In re Yung Sing Hee, 36 Fed. 437, 13 Saw. 482; In re Look Tin Sing, 21 Fed. 905, 10 Saw. 353; In re Wy Shing, 36 Fed. 553, 13 Saw. 530; Ex parte Chin King, 35 Fed. 354, 13 Saw. 333. McKay v. Campbell, 2 Saw. 118, Fed. Cas. No. 8840; In re Look Tin Sing, 21 Fed. 905, 10 Saw. 353; Lynch v. Clarke, 1 Sand. Ch. 583. es In re Wy Shing, 36 Fed. 553, 13 Saw. 530. "In re Yung Sing Hee, 36 Fed. 437, 13 Saw. 482. |