utes cannot be taken to require him to be turned back without more. The decision of the Department is final, but that is on the presupposition that the decision was after a hearing in good faith, however summary in form. As between the substantive right of citizens to enter, and of persons alleging themselves to be citizens to have a chance to prove their allegation on the one side and the conclusiveness of the commissioner's fiat on the other, when one or the other must give way, the latter must yield. In such a case something must be done, and it naturally falls to the courts." He closed by saying: "But unless and until it is proved to the satisfaction of the judge that a hearing properly so-called was denied, the merits of the case are not open, and we may add, the denial of a hearing cannot be established that the hearing was wrong." It is to be observed that in the case just cited the decision was based upon the allegations contained in the petition, which, if true, showed that a hearing was arbitrarily denied, but the decision in no manner alters the rule that the decision is conclusive when a hearing of some kind in good faith in reality has taken place. 91 "Chin Yow v. United States (decided January 6, 1908), 28 Sup. Ct. Rep. 201. § 203. § 204. Power of court to appoint attorney for absent heirs displaced by treaty. § 215. § 216. Right of nonresident aliens to damages for death of relative. § 220. Rights of aliens to inherit affected by treaty-Comments. 234. Other decisions of supreme court of United States. 235. Same subject. § 236. Same subject-Treaties of 1783 and 1794. Expression of executive department of government. Dissent from these views. § 237. § 238. § 194. Comments.-The Constitution places treaties and acts of Congress on the same plane. Both are the supreme law of the land, and one may abrogate or modify the other. The most solemn treaty may be violated by an act of Congress, and although it may be freely conceded that the national faith has been. broken, this question is one that concerns the political department of the government, and not the judicial. It is the duty of the courts to declare and enforce the law, and they must enforce acts of Congress even if they conflict with treaties. But in the case of constitutions and statutes of states, no such questions arise. The treaty, whenever it conflicts with a provision of the Constitution or statute of a state or of its common law, will Treaties-15 supersede it. Both cannot stand when in conflict, and the treaty must be held to be the supreme law. We shall now consider some of the cases in which this conflict has arisen. § 195. Fourteenth amendment applies to aliens.-The fourteenth amendment to the Constitution of the United States is not confined to the protection of citizens. The language used in the amendment is comprehensive and universal in its application to all persons within the territorial jurisdiction of the United States, irrespective of any differences that may exist with respect to race, color, or nationality. By the third article of the treaty between the United States and China, it was provided that "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 powers to devise measures 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."2 Referring to this provision, and speaking of an ordinance making arbitrary and unjust discriminations founded on race between persons otherwise in similar circumstances, Mr. Justice Matthews, in delivering the opinion of the court, said: "When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, 2 22 Stats. at Large, 827. 1 Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064, 30 L. ed. 220. no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth 'may be a government of laws and not of men.' For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." 3 § 196. Procedure in criminal cases.-Aliens who are within the territory of the United States are entitled to the full protection guaranteed by the fifth and sixth amendments relative to procedure in criminal cases. This proposition was very fully discussed in the cases in which the laws providing for the exclusion of Chinese came before the courts. The acts of Congress providing for the exclusion of Chinese laborers from the United States were held to be a constitutional exercise of legislative power, and that so far as they were in conflict with treaties with China, they operated to that extent as an abrogation of the municipal law of the United States. So it was held that the Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064, 30 L. ed. 220. A statute was passed in Pennsylvania which imposed a tax on employers of foreign-born unnaturalized male persons of a tax of three cents a day for each day that such persons might be employed, and authorized the deduction of that sum from the wages of such persons. This statute was held to be in violation of the fourteenth amendment, in that it deprived such employees of the equal protection of the laws. Fraser v. McConway & Forley Co., 82 Fed. 257. Said the court: "Evidently the act is intended to hinder the employment of foreignborn unnaturalized male persons over 21 years of age. The act is hostile to and discriminates against such persons. It interposes to the pursuit by them of their lawful avocations obstacles to which others, under like circumstances, are not subjected." An unequal tax upon laundries not run by steam cannot be upheld. In re Yot Sang, 75 Fed. 984. Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U. S. 581, 9 Sup. Ct. Rep. 623, 32 L. ed. 1069. |