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While the right of Congress to override a treaty stipulation, whenever in its judgment the public welfare demands such action, was thus claimed and asserted by that body, the question of its constitutionality was yet to be considered by the Supreme Court, and not for many years was the matter in any shape to come before that tribunal. Since the adoption of the Constitution numerous treaties have been made between the United States and the Indian tribes within its borders. Subsequent legislation has indirectly affected the provisions of some of those treaties. Whenever that has occurred, the Government has usually acted upon the theory that the act of Congress has modified the stipulations of the treaty, and should be given effect accordingly. This view has been adopted by the Federal courts in the comparatively few cases which have come before them involving the rights of the Indians under those treaties and the subsequent acts of Congress.

The question also came before the Supreme Court, in The Head Money Cases (112 U. S., 598), under an act of Congress to regulate immigration, which imposed on the owners of vessels bringing passengers from foreign countries, a duty of fifty cents for every such passenger not a citizen of this country. The actions were brought by the steamship companies against the collector of the port, to recover back the amount of the duty which had been paid by them under protest, upon the ground that the act was invalid, being in contravention of the terms of existing treaties between the United States and the countries from which the passengers had embarked. The court, however, upheld the statute, notwithstanding the Constitution declares that, "The Constitution, the acts of Congress, and treaties with foreign powers shall be the supreme law of the land." It was held that there is noth

ing in that clause of the Constitution which makes the stipulations of a treaty irrepealable or unchangeable save by the treaty-making power, and that the Constitution gives a treaty no superiority over an act of Congress in that respect, which may be repealed or modified by an act of later date, nor is there anything in its essential character, or in the branches of the Government by which a treaty is made, which gives it any superior sanctity; and the doctrine was laid down in those cases that, so far as a treaty made by the United States with a foreign nation can become the subject of judicial cognizance, it is subject to such acts as Congress may pass for its enforcement, modification or repeal.

It was not, however, until the validity of the so-called Chinese Exclusion Acts came before the courts for review, that the subject received elaborate judicial consideration, and while no new doctrine was announced by the Supreme Court, principles being affirmed which had been hinted at, or assumed to be correct in earlier decisions, still these cases may properly be regarded as a landmark in the development of constitutional law in this country. The first treaty between the United States and China was concluded in 1844, through Caleb Cushing, acting as special envoy from the United States. That treaty merely opened the five principal ports of the Empire to the citizens of this country for trade, with the privilege to those engaged in such commerce to reside there with their families. A second treaty was made in 1858. Neither the treaty of 1844 nor that of 1858 touched upon the migration or emigration of the citizens and subjects of the two nations respectively from one country to the other.

In 1868, a mission from China, at the head of which was Mr. Anson Burlingame, a former minister from the United States to that country, came to Washington for

the purpose of revising the then existing treaties between the two nations. The negotiations were successful, and resulted in practically a new treaty, which has ever since been known as the Burlingame treaty. The only provision of that treaty that now concerns us is Article VI, which provided that "Citizens of the United States visiting or residing in China 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. 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 thereby be enjoyed by the subjects of the most favored nation. But nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States."

Once again in the course of human affairs the unexpected was about to happen. That the Chinese should ever desire to come to America in any considerable numbers, either as laborers or traders, was not anticipated by anyone at the time the treaty was signed. Actuated for the time being, by a liberal foreign policy, which had been inspired by that accomplished diplomatist, Mr. Burlingame, the Chinese Government had sent out this embassy, with Mr. Burlingame at its head, to invite through treaty arrangements the introduction of Western ideas, Western enterprise and Western capital into the Flowery Kingdom, and the benefit to China which was expected to flow from these new treaties, was through the introduction of those ideas and business methods into and throughout that country, and the increased trade which would naturally be built up in consequence. On the other hand, the United States Government saw in the larger commercial

privileges in China, which the Emperor's commission so freely offered, a new field for foreign trade, which was capable of indefinite exploitation. It was to secure these ends, deemed mutually advantageous, that the treaty was made. The provisions of the treaty giving reciprocal rights to Chinese subjects in the United States, were undoubtedly inserted to give the stipulations of that compact an appearance of mutuality. But it never entered the mind of Mr. Seward, or of Mr. Burlingame, or of the eminent Chinese gentlemen who accompanied him, that the provisions of the treaty which guaranteed reciprocal rights to the Chinese in America, would ever be of the slightest practical use or benefit to the unnumbered millions inhabiting the Celestial Empire. The treaty was ratified, and what happened? Within ten years, the Mongolian invasion of our Pacific States and Territories had grown to startling proportions, and the foreign inundation. steadily increased. The entire Pacific coast was aroused. Petitions and memorials from all sorts of bodies and conventions, industrial, educational, religious and political, poured into Congress in a steady stream, beseeching it to take measures to prevent the further immigration of Chinese into this country. The leading members of Congress, however, were of the opinion, that so long as the treaty continued in force unmodified, legislation restricting immigration would be a breach of faith with China. An act was accordingly passed, providing for the appointment of commissioners to China to secure a modification

of the Burlingame treaty. Such a commission was appointed in 1880, and succeeded in obtaining from the Chinese Government an amendment to that treaty, which, in substance, authorized the United States Government to regulate, limit or suspend the immigration of Chinese laborers into this country whenever, in its opinion, such

immigration threatens the interests of the country, or the good order of any locality within the territory thereof; but the Government of the United States might not absolutely prohibit such immigration, and the limitation or suspension was to apply to Chinese laborers only, other classes not being within the limitation. It was further provided that "all Chinese subjects, including laborers, who are now in the United States, shall be allowed to go and come of their own free will, and shall be accorded all the rights and privileges which are accorded to the citizens of the most favored nation."

In 1882, Congress passed an act to carry this supplementary treaty into effect. The act provided that for the period of ten years from its date the coming of Chinese laborers to the United States is suspended, and that it shall be unlawful for any such laborer to come, or having come, to remain within the United States. It further provided that any Chinese laborer who was in this country on the 17th day of November, 1880, the date of the supplementary treaty, and who desired to leave the country temporarily, should be furnished a certificate containing such a description of himself as would serve to identify him, and that should entitle him to return and re-enter the United States upon producing and delivering the certificate to the collector of customs at the port where he desired to re-enter the country.

The provisions of this act were fairly within the terms and spirit of the supplementary treaty of 1880. That act was further amended in 1884, the amendatory act declaring that the certificate which the laborer must obtain shall be the only evidence permissible to establish his right of re-entry into the United States. Even this legislation failed to keep the Chinese out, and Congress passed an act in 1888, in effect, that thereafter it shall be unlawful

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