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for any Chinese laborer residing within the United States and who shall have departed therefrom, to return to or remain in this country, and declared void all certificates of identity which may have been issued under the laws of 1882, and prohibited Chinese laborers from re-entering the United States by virtue thereof.

Notwithstanding the activity of the public authorities in enforcing the Exclusion Act of 1888, it was constantly evaded, and great numbers clandestinely found their way into the country. Their resemblance to each other rendered it difficult, and often impossible, to prevent this evasion of the law.

It was in view of these conditions that Congress, in 1892, passed another act, which continued in force the then existing laws prohibiting the immigration of Chinese laborers, for a further period of ten years, and which added a new provision requiring all Chinese laborers who, at the time of its passage, are entitled to remain in the United States, to apply within a year to a collector of internal revenue for a certificate of residence; and providing that anyone who fails to do so, or is afterwards found in the United States without such a certificate, shall be deemed to be unlawfully there and may be deported to his own country.

The constitutionality of these several acts of Congress came before the Supreme Court for its decision in two series of cases, the first series, known as the Chinese Exclusion Cases, reported in 130 U. S., 581, which arose under the act of 1888 amending the earlier acts, which forbade the return to this country of Chinese lawfully residing here, but who had temporarily departed, even though on their return they produced the certificates which under the statute as originally passed entitled them to re-enter, and declared such certificates void; and the

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second series, which arose under the acts of 1892, requiring every Chinese laborer lawfully within the country to procure a certificate to that effect, declaring the certificate to be the only evidence of his right to be in the country, and authorizing his deportation for failure to produce such a certificate, known as the Chinese Deportation Cases, reported in 149 U. S., 698. The validity of both statutes was sustained.

It was conceded that both the Exclusion Act of 1888 and the Deportation Act of 1892 were in contravention of the express stipulations of the Burlingame treaty and the supplementary treaty of 1880, but the court affirmed the doctrine squarely, that treaties are of no greater force as the supreme law of the land than are acts of Congress.

A treaty, it was said, is, in its nature, a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulation into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force, and relates to a subject within the powers of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. Congress may, as with an ordinary statute, modify its provisions, or supersede them altogether. In either case, the last expression of the sovereign will must control.

While it is always a matter of the utmost gravity and delicacy to refuse to execute a treaty, the power to do so is a prerogative of which no nation can be deprived without deeply affecting its independence; but whether a treaty with a foreign sovereign has been violated by him, whether the consideration of a particular stipulation of a treaty has been voluntarily withdrawn by one party so as to no longer be obligatory upon the other, and whether the

views and acts of a foreign sovereign, manifested through its representative, 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, are not judicial questions; the power to determine them has not been confided to the judiciary, which has no suitable means to execute it, but to the executive and legislative departments of the government; it belongs to diplomacy and legislation, and not to the administration of existing laws.

In the view of the Court, 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 the courts to call in question the validity or wisdom of its action. 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, even to a declaration of war.

But the power of Congress over a subject within its jurisdiction can neither be taken away nor impaired by any treaty. 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, the legislative power is applicable to such laws whenever they relate to subjects which the Constitution has placed under that power.

That the power to abrogate treaties belongs to the political departments of the government, rather than to the judicial, has never been questioned. The controversy has been as to whether the power to limit or abro

gate a treaty was confined to the President, acting with the consent of the Senate, who alone could negotiate treaties, or whether co-ordinate power over existing treaties was vested in Congress. And the Supreme Court distinctly held, in those cases, that Congress did have such power; at least to the extent of limiting or abrogating the provisions of a treaty, in so far as such provisions might operate as a law within its jurisdiction. Treaties, in their nature and effect, have a two-fold aspect. A treaty may be simply a compact between two or more States in their sovereign or corporate capacities; of this class are treaties of alliance; or it may operate mainly upon the rights of individuals within the respective jurisdictions of the contracting powers, in which case it is like a statute, and capable of enforcement by the courts in the same way. Most treaties are of this kind. Of course, behind every treaty is a guaranty of the State that its provisions shall be scrupulously enforced within its own jurisdiction for the benefit and protection of the citizens of the other State.

Now, in so far as a treaty between the United States and a foreign nation can have effect as a law within this country, it is subject to be modified or amended by an act of Congress. So much was necessarily involved in, and decided by the Supreme Court, in the Chinese Exclusion cases. What power Congress has, if any, over a treaty, regarded merely as a compact between this nation and another, was not involved in those cases, and, so far as I am aware, has never been the subject of judicial consideration. Indeed, such a question would involve matters so purely political in their nature, belonging so exclusively to the political departments of the government, that the courts might well decline to consider it for want of jurisdiction.

While the doctrine has become firmly established that Congress may override, in whole or in part, the provisions of an existing treaty, so far as it has force or validity as the supreme law of the land, the converse, to wit, that the treaty-making power of the government may, through treaty arrangements with a foreign nation, supersede laws enacted by Congress, while it has occasionally been asserted in theory, has never, I believe, been followed in practice. It is true that the Constitution declares treaties and acts of Congress to be the supreme law of the land, and that the Supreme Court, in a number of cases, has given utterance to expressions such as the following: "With respect to matters proper for Congressional legislation, treaties and acts of Congress stand upon an equal footing as parts of the supreme law of the land, and a later inconsistent provision of either repeals the earlier in the other." Chief Justice Marshall, in Foster v. Neilson, in 2 Pet., 314, uses this language concerning the treaty of 1829 between the United States and Spain, which affected the title to the lands in the Louisiana territory: "It (treaty) does not say that those grants are hereby confirmed. Had such been its language it would have acted directly on the subject, and would have repealed those acts of Congress which were repugnant to it." Similar language is found in the opinion of the Court in Whitney v. Robertson (124 U. S., 193). But all such statements, wherever they occur, so far as they bear upon the effect of a treaty upon an earlier act of Congress, are entirely obiter. The point was not involved in any of the cases, and, so far as I am aware, has never been before the courts. I believe it is also true that the treatymaking power, in entering into treaties with other nations, has always been scrupulous to respect existing laws, and

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