CONGRESS, UNITED STATES. 



210 



engcrs may take her departure, shall grant tho certifi- 

 cate provided for in section iilfi 1 -' of the Revised Statutes 

 t'.r more than [Urn] Jiftten Chinese passengers on any 

 one vessel. 



SEC. [71 . Thut this act shall take effect from and 

 after the first day of [September] July, eighteen hun- 

 dred and soventy-[oightj nine. 



Mr. Willis of Kentucky, from tho Committee 

 on Education and Labor, submitted the follow- 

 ing report : 



The Committee on Education and Labor, having 

 hul under consideration sundry bills in regard to Chi- 

 nese immigration, IK-,' leave to submit the following 

 report : 



Briefly stated, this bill provides that no master of a 

 vessel shall take on board at any point in China, or 

 i-l-i uln'iv, more than fifteen Chinese passengers with 

 inti-ut to bring them, or shall bring them, within the 

 United States. The violation of this provision is made 

 a misdemeanor, punishable by a fine of $100 for each 

 pusst-ngcr and imprisonment for six months. The 

 master is required, under like penalties, to report on 

 his arrival a sworn list of all Chinese passengers. Tho 

 penalty is made a lien upon the vessel. The bill be- 

 comes operative on tho 1st day of July, 1879. 



Waiving for the present any consideration of the 

 merits of the bill, the first question is whether such 

 legislation is within the power of Congress? Can 

 Congress repeal a treaty ? 



The existing treaty with China gives its subjects an 

 unlimited riglit of immigration to the United States. 

 The second clause of Article VI. of the Constitution 

 provides that " this Constitution, and the laws of tho 

 United States which shall be made in pursuance there- 

 of, and all treaties made under the authority of the 

 United States, shall be the supreme law of tlie land." 

 It is contended that any law restricting Chinese immi- 

 gration would contravene this provision of the Consti- 

 tution, and would therefore be null and void. Such a 

 construction can not be sustained either upon principle 

 or authority. The objects for which the Constitution 

 was formed are higher than any power granted under 

 it. The general welfare, justice, domestic tranquillity, 

 and the blessings of liberty are of supreme importance, 

 and can not be taken from the people by any treaty 

 however solemnly ratified. The treaty-making power 

 is limited by these objects. Moreover, both in nature 

 and by international law, the first duty is self-preser- 

 vation. If, therefore, it be true that the presence of 

 the Chinese endangers the peace or prosperity of our 

 people, no mere technical consideration should inter- 

 vene to prevent an increase of the evil. 



The clause of the Constitution above quoted does 

 not, however, admit of the construction contended for. 

 It elevates treaties from the status of mere compacts 

 to the dignity of laws, but docs not clothe them with 

 any additional superiority. Laws made in pursuance 

 of the Constitution are equally as binding and authori- 

 tative as treaties, and, if last enacted, control any con- 

 travening treaty. This conclusion is enforced by nu- 

 merous decisions, both of the executive and judicial 

 departments of tho Government. In 1851, in the case 

 of the Florida claims, an apparent conflict between a 

 treaty and a subsequent act of Congress was decided 

 by Attorney-General Crittcnden in these words : " An 

 act of Congress is as much a supreme law of tho hind 

 as a treaty. They are placed on the same footing, and 

 no preference or superiority is given to the one or tho 

 other. The last expression of the law-giving power 

 must prevail, and .j" -t for the same reason and on the 

 same principle that a subsequent act must prevail and 

 have ctl'ect, though inconsistent with a prior act; so 

 must an act of Congress have effect, though inconsist- 

 ent with a prior treaty." (" Opinions Attorney-Gen- 

 eral," volume v., page 345.) To the same effect is the 

 decision of Attorney-General Akcnnan in the case of 

 tho Choctaw Indians : " There is nothing in the Con- 

 stitution which assigns different ranks to treaties and 

 to statutes ; both the one and the other, when not in- 



consixtcnt with tho Constitution. Kccni to stand upon 

 the same level and to bo of equal validity ; and u in 

 tho case of all laws emanating from an c-iual author- 

 ity, the earlier in date yields to the later." (" Opin- 

 ion Attorney-General." volume xiii., page 357.) 



These decisions of tiio Executive Department, con- 

 firmed as they arc by the teachings of Madison, of 

 Hamilton, and of Jefferson, have been followed l>y the 

 judiciary. In the cac of Taylor ct. Martin, 2 Curtis, 

 C. C. Kcp.. 454, the court said: " It w impossible to 

 maintain that under our Constitution the President 

 and Senate exclusively possess the power to modify or 

 repeal a law found in a treaty. It this were true, no 

 change in a treaty could be made without the consent 

 of some foreign government. That the Constitution 

 was designed to place our country in this helpless con- 

 dition is a supposition wholly inadmissible. It is not 

 only inconsistent with the necessities of a nation, but 

 negatived by the express words of the Constitution. 

 That gives to Congress, in so many words, power to 

 declare war, an act which, ipso facto, repeals all trea- 

 ties inconsistent with a state of war. It can not, there- 

 fore, be admitted that tho only method of escape from 

 a treaty is by the consent of the other party to it or a 

 declaration of war. To refuse to execute a treaty for 

 reasons which approve themselves to the conscientious 

 iudgment of a nation is a matter of the utmost gravity ; 

 out tho power to dp so is a prerogative of which no 

 nation con be deprived without deeply affecting ita 

 independence. That the people of the United States 

 have deprived their Government of this power I do 

 not believe. That it must reside somewhere, and be 

 applicable to all cases, I am convinced, and I foci no 

 doubt that it belongs to Congress." 



Similar opinions have been delivered in the circuit 

 courts of the country. These decisions were finally 

 reaffirmed by the Supreme Court of the United States 

 in the Cherokee Tobacco Case, reported in 11 Wallace, 

 page 616. Tho court says : " The effect of treaties 

 and acts of Congress, when in couflict t is not settled 

 by the Constitution. But the question is not involved 

 in any doubt as to its proper solution. A treaty may 

 supersede a prior act or Congress (2 Peters, 314), and 

 an act of Congress may supersede a prior treaty (2 

 Curtis, 454 ; 1 Woolworth, 155). In the cases referred 

 to, these principles were applied to treaties with foreign 

 nations. Treaties with Indian nations can not be more 

 obligatory. They have no higher sanctity, and no 

 greater inviolability or immunity from legislative in- 

 vasion can be claimed for them. The act of Congress 

 must prevail, as if the treaty were not an element to 

 be considered. If a wrong nas been done, the power 

 of redress is with Congress, not with the judiciary." 



Upon principle, therefore, as well as upon the au- 

 thority of precedents, judicial and administrative, it 

 would seem clear that Congress has tho right, by ap- 

 propriate legislation, to change or to abrogate any 

 existing treaty. Indeed, Congress has in one instance 

 expressly exercised this power. The act of July 7, 

 1798, declares that the existing treaties with France 

 are no longer obligatory upon tho United States. (1 

 Statutes at Large, page 578.) 



The evils of Chinese immigration have been fully 

 recognized upon the Pacit'j slope for many years. 

 Welcomed at first as a unique addition to the society 

 and a valuable ally in the development of the material 

 resources of their new homo, the Chinese, by their 

 sordid, selfish, unmoral, and non-amalgamating nabite, 

 within a very short time reversed the judgment in 

 their favor, and came to be regarded as a standing 

 menace to the social and political institutions of the 

 country. 



The State laws which had been enacted having been 

 declared unconstitutional by the Supreme Court, and 

 every other means of relief proving ineffectual, it was 

 finally determined to appeal to Congress. Accord- 

 ingly, as early as the 22d of December, 1869, at the 

 second session of the Forty-first Congress, an effort 

 was made, but without success, to secure restrictive 

 legislation. In the Forty-seconJ Congress, and also 

 in the Forty-third Congress, numerous memorials, 



