National Republican., 1883-10-10
THE CHINESE QUESTION.
Important Decision by Mr. Justice Field in the
Circuit Court of California.
A Ruling that May Provoke the Wrath of
the Brltish Lion.


great importance rendered by a justice of tho
Uuitcd States supreme court, sitting as pre-
siding circuit judge at San Francisco. 1t
will bc observed By tho concluding language
that it takes different ground from that taken
by the United States circuit court of Massa-
chusottS, tho latter holding that Chinese la
borors can lawfully immigratu here from tho
british colony of Hong Kong, while Judge
Field decides that no Chinese of the prohib-
tied class can come from any nation whatso.
ever. Of course tho supreme court will be
called unon to decide botweon these conflict
lug vicws. Follow ing is the decision of JUS
tice Field:
In the matter OF All Lung, on habeas corpus
Before Field, circuit justice, and Sawyer,
circuit judge.
The petitioner sets forth that he is unlaw-
fully restrained of his liberty, and detained
on board tho steamship Oceanic, by its cap
tain in the harbor OF San Francisco; that the
alleged ground of his detention is that he
comes within the act of congress Of May q,
1882, "to execute certain treaty speculations
relating to Chinese" (22 stats, 5s.)
The petitioner is o Chinese by race, Ian
gusgo and color, and has all the peculiaritics
of the subjects of China. He is also a laborer
but was born on the island of Hong Kong after
it was ceded to Great Britain. lie claims,
therefore, to be Il British subject, and as such
exempt from the act of Congress. But for this
fact OF birth in the British dominions it is con-
ceded that he would be within the provisions
OF the act Does this fact take him out of
them? The answer to this question depends
upon the meaning of the act, and not upon the
fact that the petitioner owes allegiance TO an
other sovereign than that of China I'm
doubtedly the courts will always construe
legislation in harmony with treaty stipula-
tions, where its sole purpose is to carry these
stipulations into effect 1t will not be pre-
sumed in the absence of clear language to
that purport that congress intended to dsre-
gard the requirements of treaty with n
foreign government, or to abrogate any OF its
clauses. At the same time an act OF congress
must be construed according to its manifest
intent, and SO far as the courts are concerned
must be enforced A treaty is in its nature
contract between two nations, and by writers
on public law is generally so treated and not
as having of itself the force of legislative
act The constitution of the United States,
however, places both treaties and laws made
in pursuance thereof in the same category,
and declares them to be the supreme law OF
the land. II has not given to either para
mount authority over the other. so FAR
as a treaty operates by its own force
without legislation it is to be regarded by
the courts as equivalent to leg sla-
tive act, but nothing further. If the subject
to which it relates also falls within those
upon which congress can act, its legisla-
tion may modify the provisions of the treaty
or supercede them entirely. The immigra-
tion of foreigners to the United States, and
the conditions upon which they shall be per-
mitted to remain, are matters which may be
subjects Of treaty stipulation, and also of con-
gressionsl action. No treaty can deprive con-
gress of its power in that respect. AS said by
Mr.. Justice Curtis in the case of Taylor VS..
Morton "Inasmuch as treaties must continue
to operate as part of our municipal law, and
be obeyed by the people, applied by the judi
ciary and executed by the president, while
they continue unrepealed and inasmuch as
the power of repeating these municipal laws
must reside somewhere, and nobody other
than congress possesses 1T, then legislative
power is applicable to such cases whenever
they relate to subjects which the constitution
has placed under that legislative power" (2
Curtis. Cir. Ct Rep, 45S.)
An act of congress, then, upon subject
within its legislative power is as binding upon
tho courts as a treaty on the same subject.
Both arc binding except as the latter one con-
tlcts or interieres with the former. If the
nation with whom we have made the treaty
objects to the action of the legislative depart
ment, it may present its complaint to the
executive department, and take such othsr
measures rs it may deem that justice to its
own citizens or subjects requires. The courts
cannot heed such complaint or refuse to give
effect to the laws of congress, however much
they may seem to conflict with the stipula-
tions of the treaty. Whether treaty has
been violated by our government in its legis-
lative department 80 as to be the proper occa-.
sion of complaint by the foreign government
is not a judicial question. To the courts it is
simply the case of conflicting laws, tho last
modifying or superseding the earlier.
The question then is, what is the true con-
struction of the restriction act? Whom does
it embrace? Some assistance in arriving at
correct conclusion will be had by reference to
tho treaties with China, and the circumstances
leading to the passage of the act.
In the fifth article of the treaty of July, 1865,
commonly known as tho Burlingame treaty,
tho contracting parties declare that they re-
cogniZe the inherent and inalicnable 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 re-
spectively from one country to tho other for
the purpose of curiosity, of trade, or as per-
manont residents" In its sixth article they
declare that 'citiZens of the United States
visiting or residing in China shall enjoy the
same privileges, immunities, or exemptions i'll
respect to travel or residence as may there be
enjoyed by the citizens OF subjects of the most
favored nation, and reciprocally, Chinese sub
.jecs visiting or residing III the United States
shall cujoy tho same privileges, lmmunities,
and exemptions in respect to travel or resi-
dcnce rs may be enjoyed by citizens or sub
jects of the most favored nation"
Before these articles were adopted great
number of Chinese had emigratod to this
state, and after their adoption the immigra-
tion was largely increased. But notwith-
standing the favorable provisions of the treaty,
it was found impossible for them TO assimilate
with our people. Their physical character
istics and habits kept them as distinct and
separate as though still living in China They
engaged in all the industries and pursuits Of
the state; they calnc in competition with
white laborcrS N every direction, and their
frugal habits the absence of families, their
singular ability to live in narrow quarters
without apparent injury to health, their con-
tentment with the simplest iare gave them
in this competition great advantages
over our laborers and mechanics. They
could live with apparent comfort on
men. Our people are not content, and never
should be- with the means of bare sub
s!B.ence; they must have something beyond
this for the comforts of home and the sup
port of a family and tho education Of chill
dren. Competition with Chinese labor under
tho conditions mentioned was necessarily
irritating and eSasperating and oiton led to
serious collisions between persons of tho two
races. 1t was seen that without some restric-
ton upon tho immigration of Chinese, white
labcrers and mechanics would be driven from
the state. They looked, therefore, with great
Gpprehensions toward the crowded millions
OF China and of tho adjacent islands in the
Pacific, and felt that there was more than
possibility of such multitudos coming as to