U.S. Supreme Court The Chinese Exclusion Case, 130
U.S. 581 (1889) The Chinese Exclusion
Case No. 1448 Argued March 28-29,
1889 Decided May 13, 1889 130
U.S. 581 APPEAL FROM THE CIRCUIT COURT OF
THE UNITED STATES FOR THE NORTHERN DISTRICT OF
CALIFORNIA Syllabus In their relations with foreign governments and their subjects
or citizens, the United States are a nation, invested with the
powers which belong to independent nations.

															So far as a treaty made by the United States with any foreign
power can become the subject of judicial cognizance in the courts
of this country, it is subject to such acts as Congress may pass
for its enforcement, modification, or appeal. The Head Money
Cases, 112 U. S. 580 , and Whitney v. Robertson, 124 U. S. 190 ,
followed.

															The abrogation of a treaty, like the repeal of a law, operates
only on future transactions, leaving unaffected those executed
under it previous to the abrogation.

															The rights and interests created by a treaty, which have become
so vested that its expiration or abrogation will not destroy or
impair them, are such as are connected with and lie in property,
capable of sale and transfer or other disposition, and not such as
are personal and untransferable in their character.

															The power of the legislative department of the government to
exclude aliens from the United States is an incident of sovereignty
which cannot be surrendered by the treaty making power.

															The Act of October 1, 1888, 25 Stat. 504, c. 1064, excluding
Chinese laborers from the United States, was a constitutional
exercise of legislative power, and, so far as it conflicted with
existing treaties between the United States and China, it operated
to that extent to abrogate them as part of the municipal law of the
United States.

															A certificate issued to a Chinese laborer under the fourth and
fifth sections of the Act of May 6, 1882, 22 Stat. 58, c. 126, as
amended July 5, 1884, 23 Stat. 115, c. 220, conferred upon him no
right to return to the United States of which he could not be
deprived by a subsequent act of Congress.

															The history of Chinese immigration into the United States
stated, together with a review of the treaties and legislation
affecting it.

															The Court stated the case as follows in its opinion:

															This case comes before us on appeal from an order of the Circuit
Court of the United States for the Northern District of California
refusing to release the appellant, on a writ of habeas corpus, from
his alleged unlawful detention by Capt. Walker, Page 130 U. S. 582 master of the steamship Belgic, lying within the harbor
of San Francisco. The appellant is a subject of the Emperor of
China, and a laborer by occupation. He resided at San Francisco,
California, following his occupation, from sometime in 1875 until
June 2, 1887, when he left for China on the steamship Gaelic, having in his possession a certificate in terms
entitling him to return to the United States, bearing date on that
day, duly issued to him by the collector of customs of the port of
San Francisco, pursuant to the provisions of § 4 of the Restriction
Act of May 6, 1882, as amended by the Act of July 5, 1884, 22 Stat.
59, c. 126; 23 Stat. 115, c. 220.

															On the 7th of September, 1888, the appellant, on his return to
California, sailed from Hong Kong in the steamship Belgic, which arrived within the port of San Francisco on the 8th of
October following. On his arrival, he presented to the proper
custom house officers his certificate and demanded permission to
land. The collector of the port refused the permit solely on the
ground that under the Act of Congress approved October 1, 1888,
supplementary to the Restriction Acts of 1882 and 1884, the
certificate had been annulled and his right to land abrogated, and
he had been thereby forbidden again to enter the United States. 25
Stat. 504, c. 1064. The captain of the steamship therefore detained
the appellant on board the steamer. Thereupon a petition on his
behalf was presented to the Circuit Court of the United States for
the Northern District of California, alleging that he was
unlawfully restrained of his liberty and praying that a writ of
habeas corpus might be issued directed to the master of the
steamship commanding him to have the body of the appellant, with
the cause of his detention, before the court at a time and place
designated, to do and receive what might there be considered in the
premises. A writ was accordingly issued, and in obedience to it the
body of the appellant was produced before the court. Upon the
hearing which followed, the court, after finding the facts
substantially as stated, held as conclusions of law that the
appellant was not entitled to enter the United States and was not
unlawfully restrained of his liberty, and ordered that he be
remanded to the custody of the master of the steamship from Page 130 U. S. 583 which he had been taken under the writ. From this order an
appeal was taken to this Court. Page 130 U. S. 589 MR. JUSTICE FIELD delivered the opinion of the Court.

															The appeal involves a consideration of the validity of the Act
of Congress of October 1, 1888, prohibiting Chinese laborers from
entering the United States who had departed before its passage,
having a certificate issued under the act of 1882 as amended by the
act of 1884, granting them permission to return. The validity of
the act is assailed as being in effect an expulsion from the
country of Chinese laborers, in violation of existing treaties
between the United States and the government of China, and of
rights vested in them under the laws of Congress.

															It will serve to present with greater clearness the nature and
force of the objections to the act if a brief statement be made of
the general character of the treaties between the two countries and
of the legislation of Congress to carry them into execution. Page 130 U. S. 590 The first treaty between the United States and the Empire of
China was concluded on the 3d of July, 1844, and ratified in
December of the following year. 8 Stat. 592. Previous to that time,
there had been an extensive commerce between the two nations, that
to China being confined to a single port. It was not, however,
attended by any serious disturbances between our people there and
the Chinese. In August, 1842, as the result of a war between
England and China, a treaty was concluded stipulating for peace and
friendship between them, and, among other things, that British
subjects, with their families and establishments, should be allowed
to reside for the purpose of carrying on mercantile pursuits at the
five principal ports of the empire. 6 Hertslet's Commercial
Treaties 221; 3 Nouveau Recueil General de Traites (1842) 484.
Actuated by a desire to establish by treaty friendly relations
between the United States and the Chinese empire and to secure to
our people the same commercial privileges which had been thus
conceded to British subjects, Congress placed at the disposal of
the President the means to enable him to establish future
commercial relations between the two countries "on terms of
national equal reciprocity." Act March, 1843, c. 90, 5 Stat. 624. A
mission was accordingly sent by him to China at the head of which
was placed Mr. Caleb Cushing, a gentleman of large experience in
public affairs. He found the Chinese government ready to concede by
treaty to the United States all that had been reluctantly yielded
to England through compulsion. As the result of his negotiations,
the treaty of 1844 was concluded. It stipulated, among other
things, that there should be a "perfect, permanent, and universal
peace, and a sincere and cordial amity" between the two nations;
that the five principal ports of the empire should be opened to the
citizens of the United States, who should be permitted to reside
with their families and trade there, and to proceed with their
vessels and merchandise to and from any foreign port and either of
said five ports, and while peaceably attending to their affairs
should receive the protection of the Chinese authorities. Senate
Document No. 138, 28th Cong. 2d Sess. Page 130 U. S. 591 The treaty between England and China did not have the effect of
securing permanent peace and friendship between those countries.
British subjects in China were often subjected not only to the
violence of mobs, but to insults and outrages from local
authorities of the country, which led to retaliatory measures for
the punishment of the aggressors. To such an extent were these
measures carried and such resistance offered to them that in 1856,
the two countries were in open war. England then determined with
the cooperation of France, between which countries there seemed to
be perfect accord, to secure from the government of China, among
other things, a recognition of the right of other powers to be
represented there by accredited ministers, an extension of
commercial intercourse with that country, and stipulations for
religious freedom to all foreigners there and for the suppression
of piracy. England requested of the President the concurrence and
active cooperation of the United States similar to that which
France had accorded, and to authorize our naval and political
authorities to act in concert with the allied forces. As this
proposition involved a participation in existing hostilities, the
request could not be acceded to, and the Secretary of State, in his
communication to the English government, explained that the
warmaking power of the United States was not vested in the
President, but in Congress, and that he had no authority therefore
to order aggressive hostilities to be undertaken. But as the rights
of citizens of the United States might be seriously affected by the
results of existing hostilities, and commercial intercourse between
the United States and China be disturbed, it was deemed advisable
to send to China a minister plenipotentiary to represent our
government and watch our interests there. Accordingly, Mr. William
B. Reed, of Philadelphia, was appointed such minister, and
instructed, while abstaining from any direct interference, to aid
by peaceful cooperation the objects the allied forces were seeking
to accomplish. Senate Document No. 47, 35th Cong. 1st Sess. Through
him a new treaty was negotiated with the Chinese government. It was
concluded in June, 1858, and ratified in August of the following
year. Page 130 U. S. 592 12 Stat. 1023. It reiterated the pledges of peace and friendship
between the two nations, renewed the promise of protection to all
citizens of the United States in China peaceably attending to their
affairs, and stipulated for security to Christians in the
profession of their religion.

															Neither the treaty of 1844 nor that of 1858 touched upon the
migration and emigration of the citizens and subjects of the two
nations, respectively, from one country to the other. But in 1868,
a great change in the relations of the two nations was made in that
respect. In that year, a mission from China, composed of
distinguished functionaries of that empire, came to the United
States with the professed object of establishing closer relations
between the two countries and their peoples. At its head was placed
Mr. Anson Burlingame, an eminent citizen of the United States who
had at one time represented this country as commissioner to China.
He resigned his office under our government to accept the position
tendered to him by the Chinese government. The mission was hailed
in the United States as the harbinger of a new era in the history
of China -- as the opening up to free intercourse with other
nations and peoples a country that for ages had been isolated and
closed against foreigners, who were allowed to have intercourse and
to trade with the Chinese only at a few designated places, and the
belief was general, and confidently expressed, that great benefits
would follow to the world generally, and especially to the United
States. On its arrival in Washington, additional articles to the
treaty of 1858 were agreed upon which gave expression to the
general desire that the two nations and their peoples should be
drawn closer together. The new articles, eight in number, were
agreed to on the 28th of July, 1868, and ratifications of them were
exchanged at Pekin in November of the following year. 16 Stat. 739.
Of these articles, the fifth, sixth, and seventh are as
follows:

															"ARTICLE V. The United States of America and the emperor of
China cordially recognize the inherent and inalienable 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
respectively from the one country Page 130 U. S. 593 to the other for purposes of curiosity, of trade, or as
permanent residents. The high contracting parties therefore join in
reprobating any other than an entirely voluntary emigration for
these purposes. They consequently agree to pass laws making it a
penal offense for a citizen of the United States or Chinese
subjects to take Chinese subjects either to the United States or to
any other foreign country, or for a Chinese subject or citizen of
the United States to take citizens of the United States to China or
to any other foreign country without their free and voluntary
consent, respectively."

															"ARTICLE VI. Citizens of the United States visiting or residing
in China shall enjoy the same privileges, immunities, or 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 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. 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."

															"ARTICLE VII. Citizens of the United States shall enjoy all the
privileges of the public educational institutions under the control
of the government of China, and, reciprocally, Chinese subjects
shall enjoy all the privileges of the public educational
institutions under the control of the government of the United
States, which are enjoyed in the respective countries by the
citizens or subjects of the most favored nation. The citizens of
the United States may freely establish and maintain schools within
the empire of China at those places where foreigners are by treaty
permitted to reside; and, reciprocally, Chinese subjects may enjoy
the same privileges and immunities in the United States."

															But notwithstanding these strong expressions of friendship and
goodwill, and the desire they evince for free intercourse, events
were transpiring on the Pacific coast which soon dissipated the
anticipations indulged as to the benefits to follow the immigration
of Chinese to this country. The previous Page 130 U. S. 594 treaties of 1844 and 1858 were confined principally to mutual
declarations of peace and friendship and to stipulations for
commercial intercourse at certain ports in China and for protection
to our citizens while peaceably attending to their affairs. It was
not until the additional articles of 1868 were adopted that any
public declaration was made by the two nations that there were
advantages in the free migration and emigration of their citizens
and subjects, respectively, from one country to the other, and
stipulations given that each should enjoy in the country of the
other, with respect to travel or residence, the "privileges,
immunities, and exemptions" enjoyed by citizens or subjects of the
most favored nation. Whatever modifications have since been made to
these general provisions have been caused by a well founded
apprehension -- from the experience of years -- that a limitation
to the immigration of certain classes from China was essential to
the peace of the community on the Pacific coast, and possibly to
the preservation of our civilization there. A few words on this
point may not be deemed inappropriate here, they being confined to
matters of public notoriety which have frequently been brought to
the attention of Congress. Report of Committee of H.R. No. 872,
46th Cong. 2d Sess.

															The discovery of gold in California in 1848, as is well known,
was followed by a large immigration thither from all parts of the
world, attracted not only by the hope of gain from the mines, but
from the great prices paid for all kinds of labor. The news of the
discovery penetrated China, and laborers came from there in great
numbers, a few with their own means, but by far the greater number
under contract with employers for whose benefit they worked. These
laborers readily secured employment, and, as domestic servants, and
in various kinds of outdoor work, proved to be exceedingly useful.
For some years little opposition was made to them except when they
sought to work in the mines, but, as their numbers increased, they
began to engage in various mechanical pursuits and trades, and thus
came in competition with our artisans and mechanics, as well as our
laborers in the field. The competition steadily increased as the
laborers came in Page 130 U. S. 595 crowds on each steamer that arrived from China, or Hong Kong, an
adjacent English port. They were generally industrious and frugal.
Not being accompanied by families except in rare instances, their
expenses were small and they were content with the simplest fare,
such as would not suffice for our laborers and artisans. The
competition between them and our people was for this reason
altogether in their favor, and the consequent irritation,
proportionately deep and bitter, was followed, in many cases, by
open conflicts, to the great disturbance of the public peace.

															The differences of race added greatly to the difficulties of the
situation. Notwithstanding the favorable provisions of the new
articles of the treaty of 1868, by which all the privileges,
immunities, and exemptions were extended to subjects of China in
the United States which were accorded to citizens or subjects of
the most favored nation, they remained strangers in the land,
residing apart by themselves and adhering to the customs and usages
of their own country. It seemed impossible for them to assimilate
with our people or to make any change in their habits or modes of
living. As they grew in numbers each year, the people of the coast
saw, or believed they saw, in the facility of immigration and in
the crowded millions of China, where population presses upon the
means of subsistence, great danger that at no distant day that
portion of our country would be overrun by them unless prompt
action was taken to restrict their immigration. The people there
accordingly petitioned earnestly for protective legislation.

															In December, 1878, the convention which framed the present
Constitution of California, being in session, took this subject up
and memorialized Congress upon it, setting forth in substance that
the presence of Chinese laborers had a baneful effect upon the
material interests of the state, and upon public morals; that their
immigration was in numbers approaching the character of an Oriental
invasion, and was a menace to our civilization; that the discontent
from this cause was not confined to any political party, or to any
class or nationality, but was well nigh universal; that they
retained the habits and customs of their own country, and in fact
constituted a Page 130 U. S. 596 Chinese settlement within the state, without any interest in our
country or its institutions, and praying Congress to take measures
to prevent their further immigration. This memorial was presented
to Congress in February, 1879. So urgent and constant were the
prayers for relief against existing and anticipated evils, both
from the public authorities of the Pacific coast and from private
individuals that Congress was impelled to act on the subject. Many
persons, however, both in and out of Congress, were of opinion that
so long as the treaty remained unmodified, legislation restricting
immigration would be a breach of faith with China. A statute was
accordingly passed appropriating money to send commissioners to
China to act with our minister there in negotiating and concluding
by treaty a settlement of such matters of interest between the two
governments as might be confided to them. 21 Stat. 133, c. 88. Such
commissioners were appointed, and as the result of their
negotiations the supplementary treaty of November 17, 1880, was
concluded and ratified in May of the following year. 22 Stat. 826.
It declares in its first article that

															"Whenever, in the opinion of the government of the United
States, the coming of Chinese laborers to the United States or
their residence therein affects or threatens to affect the
interests of that country or to endanger the good order of the said
country or of any locality within the territory thereof, the
government of China agrees that the government of the United States
may regulate, limit, or suspend such coming or residence, but may
not absolutely prohibit it. The limitation or suspension shall be
reasonable, and shall apply only to Chinese who may go to the
United States as laborers, other classes not being included in the
limitations. Legislation taken in regard to Chinese laborers will
be of such a character only as is necessary to enforce the
regulation, limitation, or suspension of immigration, and
immigrants shall not be subject to personal maltreatment or
abuse."

															In its second article it declares that

															"Chinese subjects, whether proceeding to the United States as
teachers, students, merchants, or from curiosity, together with
their body and household servants, and Chinese laborers who are now
in the United States, shall Page 130 U. S. 597 be allowed to go and come of their own free will and accord, and
shall be accorded all the rights, privileges, immunities, and
exemptions which are accorded to the citizens and subjects of the
most favored nation."

															The government of China thus agreed that notwithstanding the
stipulations of former treaties, the United States might regulate,
limit, or suspend the coming of Chinese laborers, or their
residence therein, without absolutely forbidding it, whenever in
their opinion the interests of the country, or of any part of it,
might require such action. Legislation for such regulation,
limitation, or suspension was entrusted to the discretion of our
government, with the condition that it should only be such as might
be necessary for that purpose, and that the immigrants should not
be maltreated or abused. On the 6th of May, 1882, an act of
Congress was approved to carry this supplementary treaty into
effect. 22 Stat. 58, c. 126. It is entitled "An act to execute
certain treaty stipulations relating to Chinese." Its first section
declares that after 90 days from the passage of the act, and 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. The second makes it a misdemeanor,
punishable by fine, to which imprisonment may be added, for the
master of any vessel knowingly to bring within the United States
from a foreign country, and land, any such Chinese laborer. The
third provides that those two sections shall not apply to Chinese
laborers who were in the United States November 17, 1880, or who
shall come within ninety days after the passage of the act. The
fourth declares that, for the purpose of identifying the laborers
who were here on the 17th of November, 1880, or who should come
within the ninety days mentioned, and to furnish them with "the
proper evidence" of their right to go from and come to the United
States, the

															"collector of customs of the district from which any such
Chinese laborer shall depart from the United States shall, in
person or by deputy, go on board each vessel having on board any
such Chinese laborer and cleared or about to sail Page 130 U. S. 598 from his district for a foreign port, and on such vessel make a
list of all such Chinese laborers, which shall be entered in
registry books to be kept for that purpose, in which shall be
stated the name, age, occupation, last place of residence, physical
marks or peculiarities, and all facts necessary for the
identification of each of such Chinese laborers, which books shall
be safely kept in the custom house,"

															and each laborer thus departing shall be entitled to receive,
from the collector or his deputy, a certificate containing such
particulars, corresponding with the registry, as may serve to
identify him. "The certificate herein provided for," says the
section,

															"shall entitle the Chinese laborer to whom the same is issued to
return to and reenter the United States upon producing and
delivering the same to the collector of customs of the district at
which such Chinese laborer shall seek to reenter."

															The enforcement of this act with respect to laborers who were in
the United States on November 17, 1880, was attended with great
embarrassment from the suspicious nature, in many instances, of the
testimony offered to establish the residence of the parties,
arising from the loose notions entertained by the witnesses of the
obligation of an oath. This fact led to a desire for further
legislation restricting the evidence receivable, and the amendatory
Act of July 5, 1884, was accordingly passed. 23 Stat. 115, c. 220.
The committee of the House of Representatives on foreign affairs,
to whom the original bill was referred, in reporting it
recommending its passage, stated that there had been such manifold
evasions as well as attempted evasions of the act of 1882 that it
had failed to meet the demands which called it into existence.
Report in H.R. No. 614, 48th Cong. 1st Sess. To obviate the
difficulties attending its enforcement, the amendatory act of 1884
declared that the certificate which the laborer must obtain "shall
be the only evidence permissible to establish his right of reentry"
into the United States.

															This act was held by this Court not to require the certificate
from laborers who were in the United States on the 17th of
November, 1880, who had departed out of the country before May 6,
1882, and remained out until after July 5, 1884. Page 130 U. S. 599 Chew Heong v. United States, 112 U.
S. 536 . The same difficulties and embarrassments
continued with respect to the proof of their former residence.
Parties were able to pass successfully the required examination as
to their residence before November 17, 1880, who, it was generally
believed, had never visited our shores. To prevent the possibility
of the policy of excluding Chinese laborers being evaded, the Act
of October 1, 1888, the validity of which is the subject of
consideration in this case, was passed. It is entitled "An act a
supplement to an act entitled An act to execute certain treaty
stipulations relating to Chinese,' approved the 6th day of May,
eighteen hundred and eighty-two." 25 Stat. 504, c. 1064. It is as
follows: " Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled, that from
and after the passage of this act, it shall be unlawful for and
Chinese laborer who shall at any time heretofore have been, or who
may now or hereafter be, a resident within the United States, and
who shall have departed, or shall depart, therefrom, and shall not
have returned before the passage of this act, to return to or
remain the United States."

															"SEC. 2. That no certificates of identity provided for in the
fourth and fifth sections of the act to which this is a supplement
shall hereafter be issued, and every certificate heretofore issued
in pursuance thereof is hereby declared void and of no effect, and
the Chinese laborer claiming admission by virtue thereof shall not
be permitted to enter the United States."

															"SEC. 3. That all the duties prescribed, liabilities, penalties,
and forfeitures imposed, and the powers conferred, by the second,
tenth, eleventh, and twelfth sections of the act to which this is a
supplement are hereby extended, and made applicable to the
provisions of this act."

															"SEC. 4. That all such part or parts of the act to which this is
a supplement as are inconsistent herewith are hereby repealed."

															"Approved October 1, 1888."

															The validity of this act, as already mentioned, is assailed as
being in effect an expulsion from the country of Chinese Page 130 U. S. 600 laborers in violation of existing treaties between the United
States and the government of China and of rights vested in them
under the laws of Congress. The objection that the act is in
conflict with the treaties was earnestly pressed in the court
below, and the answer to it constitutes the principal part of its
opinion. 36 F. 431. Here, the objection made is that the act of
1888 impairs a right vested under the treaty of 1880, as a law of
the United States, and the statutes of 1882 and of 1884 passed in
execution of it. It must be conceded that the act of 1888 is in
contravention of express stipulations of the treaty of 1868 and of
the supplemental treaty of 1880, but it is not on that account
invalid, or to be restricted in its enforcement. The treaties were
of no greater legal obligation than the act of Congress. By the
Constitution, laws made in pursuance thereof, and treaties made
under the authority of the United States, are both declared to be
the supreme law of the land, and no paramount authority is given to
one over the other. A treaty, it is true, is in its nature a
contract between nations, and is often merely promissory in its
character, requiring legislation to carry its stipulations 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 power 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. In either case, the last
expression of the sovereign will must control.

															The effect of legislation upon conflicting treaty stipulations
was elaborately considered in The Head-Money Cases, and it
was there adjudged

															"that so far as a treaty made by the United States with any
foreign nation can become the subject of judicial cognizance in the
courts of this country, it is subject to such acts as Congress may
pass for its enforcement, modification, or repeal." 112 U. S. 112 U.S.
580, 112 U. S. 599 .
This doctrine was affirmed and followed in Whitney v.
Robertson, 124 U. S. 190 , 124 U. S. 195 .
It will not be presumed that the legislative department of the
government will lightly pass laws which are in conflict with the
treaties of the country, but that circumstances may arise which
would not only justify the government in disregarding Page 130 U. S. 601 their stipulations, but demand in the interests of the country
that it should do so, there can be no question. Unexpected events
may call for a change in the policy of the country. Neglect or
violation of stipulations on the part of the other contracting
party may require corresponding action on our part. When a
reciprocal engagement is not carried out by one of the contracting
parties, the other may also decline to keep the corresponding
engagement. In 1798, the conduct toward this country of the
government of France was of such a character that Congress declared
that the United States were freed and exonerated from the
stipulations of previous treaties with that country. Its act on the
subject was as follows:

															" An act to declare the treaties heretofore concluded
with France " " no longer obligatory on the United
States " "Whereas, the treaties concluded between the United States and
France have been repeatedly violated on the part of the French
government, and the just claims of the United States for reparation
of the injuries so committed have been refused, and their attempts
to negotiate an amicable adjustment of all complaints between the
two nations have been repelled with indignity, and whereas, under
authority of the French government, there is yet pursued against
the United States a system of predatory violence, infracting the
said treaties, and hostile to the rights of a free and independent
nation,"

															" Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled, that the
United States are of right freed and exonerated from the
stipulations of the treaties, and of the consular convention,
heretofore concluded between the United States and France, and that
the same shall not henceforth be regarded as legally obligatory on
the government or citizens of the United States."

															1 Stat. 578, c. 67.

															This act, as seen, applied in terms only to the future. Of
course, whatever of a permanent character had been executed or
vested under the treaties was not affected by it. In that respect,
the abrogation of the obligations of a treaty operates, Page 130 U. S. 602 like the repeal of a law, only upon the future, leaving
transactions executed under it to stand unaffected. The validity of
this legislative release from the stipulations of the treaties was,
of course, not a matter for judicial cognizance. The question
whether our government is justified in disregarding its engagements
with another nation is not one for the determination of the courts.
This subject was fully considered by Mr. Justice Curtis, while
sitting at the circuit, in Taylor v. Morton, 2 Curtis 454,
459, and he held that while it would always be a matter of the
utmost gravity and delicacy to refuse to execute a treaty, the
power to do so was prerogative of which no nation could be deprived
without deeply affecting its independence; but whether a treaty
with a foreign sovereign had been violated by him, whether the
consideration of a particular stipulation of a treaty had 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 his representative, had given just
occasion to the political departments of our government to withhold
tax execution of a promise contained in a treaty or to act in
direct contravention of such promise were not judicial questions;
that 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, and that
it belongs to diplomacy and legislation, and not to the
administration of existing laws. And the learned justice added, as
a necessary consequence of these conclusions, that if Congress has
this power it is wholly immaterial to inquire whether it has, by
the statute complained of, departed from the treaty or not -- or,
if it has, whether such departure was accidental or designed --
and, if the latter, whether the reasons therefor were good or bad.
These views were reasserted and fully adopted by this Court in Whitney v. Robertson, 124 U. S. 190 , 124 U. S. 195 .
And we may add to the concluding observation of the learned justice
that if the power mentioned is vested in Congress, any reflection
upon its motives or the motives of any of its members in exercising
it would be entirely uncalled for. This Court is not a censor of
the morals Page 130 U. S. 603 of other departments of the government; it is not invested with
any authority to pass judgment upon the motives of their conduct.
When once it is established that Congress possesses the power to
pass an act, our province ends with its construction and its
application to cases as they are presented for determination.
Congress has the power under the Constitution to declare war, and
in two instances where the power has been exercised -- in the war
of 1812 against Great Britain and in 1846 against Mexico -- the
propriety and wisdom and justice of its action were vehemently
assailed by some of the ablest and best men in the country, but no
one doubted the legality of the proceeding, and any imputation by
this or any other court of the United States upon the motives of
the members of Congress who in either case voted for the
declaration would have been justly the cause of animadversion. We
do not mean to intimate that the moral aspects of legislative acts
may not be proper subjects of consideration. Undoubtedly they may
be at proper times and places, before the public, in the halls of
Congress, and in all the modes by which the public mind can be
influenced. Public opinion thus enlightened, brought to bear upon
legislation, will do more than all other causes to prevent abuses;
but the province of the courts is to pass upon the validity of
laws, not to make them, and when their validity is established, to
declare their meaning and apply their provisions. All else lies
beyond their domain.

															There being nothing in the treaties between China and the United
States to impair the validity of the act of Congress of October 1,
1888, was it on any other ground beyond the competency of Congress
to pass it? If so, it must be because it was not within the power
of Congress to prohibit Chinese laborers who had at the time
departed from the United States, or should subsequently depart,
from returning to the United States. Those laborers are not
citizens of the United States; they are aliens. That the government
of the United States, through the action of the legislative
department, can exclude aliens from its territory is a proposition
which we do not think open to controversy. Jurisdiction over its
own territory to that extent is an incident of every independent
nation. It is a part of its independence. Page 130 U. S. 604 If it could not exclude aliens, it would be to that extent
subject to the control of another power. As said by this Court in
the case of The Exchange , 7 Cranch 116, 11 U. S. 136 ,
speaking by Chief Justice Marshall:

															"The jurisdiction of the nation within its own territory is
necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. Any restriction upon it deriving
validity from an external source would imply a diminution of its
sovereignty to the extent of the restriction and an investment of
that sovereignty to the same extent in that power which could
impose such restriction. All exceptions, therefore, to the full and
complete power of a nation within its own territories must be
traced up to the consent of the nation itself. They can flow from
no other legitimate source."

															While under our Constitution and form of government the great
mass of local matters is controlled by local authorities, the
United States, in their relation to foreign countries and their
subjects or citizens, are one nation, invested with powers which
belong to independent nations, the exercise of which can be invoked
for the maintenance of its absolute independence and security
throughout its entire territory. The powers to declare war, make
treaties, suppress insurrection, repel invasion, regulate foreign
commerce, secure republican governments to the states, and admit
subjects of other nations to citizenship are all sovereign powers,
restricted in their exercise only by the Constitution itself and
considerations of public policy and justice which control, more or
less, the conduct of all civilized nations. As said by this Court
in the case of Cohens v.
Virginia , 6 Wheat. 264, 19 U. S. 413 ,
speaking by the same great Chief Justice:

															"That the United States form, for many, and for most important
purposes, a single nation, has not yet been denied. In war, we are
one people. In making peace, we are one people. In all commercial
regulations, we are one and the same people. In many other
respects, the American people are one, and the government which is
alone capable of controlling and managing their interests in all
these respects is the government of the union. It is their
government, and in that character they have no other. America has
chosen to Page 130 U. S. 605 be in many respects, and to many purposes, a nation, and for all
these purposes her government is complete; to all these objects, it
is competent. The people have declared that in the exercise of all
powers given for these objects, it is supreme. It can, then, in
effecting these objects, legitimately control all individuals or
governments within the American territory. The Constitution and
laws of a state, so far as they are repugnant to the Constitution
and laws of the United States, are absolutely void. These states
are constituent parts of the United States. They are members of one
great empire -- for some purposes sovereign, for some purposes
subordinate."

															The same view is expressed in a different form by MR. JUSTICE
BRADLEY in Knox v. Lee , 12 Wall. 457, 79 U. S. 555 ,
where he observes that

															"the United States is not only a government, but it is a
national government, and the only government in this country that
has the character of nationality. It is invested with power over
all the foreign relations of the country, war, peace, and
negotiations and intercourse with other nations, all of which are
forbidden to the state governments. It has jurisdiction over all
those general subjects of legislation and sovereignty which affect
the interests of the whole people equally and alike, and which
require uniformity of regulations and laws, such as the coinage,
weights, and measures, bankruptcies, the postal system, patent and
copyright laws, the public lands, and interstate commerce -- all
which subjects are expressly or impliedly prohibited to the state
governments. It has power to suppress insurrections as well as to
repel invasions, and to organize, arm, discipline, and call into
service the militia of the whole country. The President is charged
with the duty and invested with the power to take care that the
laws be faithfully executed. The judiciary has jurisdiction to
decide controversies between the states, and between their
respective citizens, as well as questions of national concern, and
the government is clothed with power to guaranty to every state a
republican government and to protect each of them against invasion
and domestic violence."

															The control of local matters being left to local authorities,
and national matters being entrusted to the government of the Page 130 U. S. 606 union, the problem of free institutions existing over a widely
extended country, having different climates and varied interests,
has been happily solved. For local interests, the several states of
the union exist, but for national purposes, embracing our relations
with foreign nations, we are but one people, one nation, one
power.

															To preserve its independence, and give security against foreign
aggression and encroachment, is the highest duty of every nation,
and to attain these ends nearly all other considerations are to be
subordinated. It matters not in what form such aggression and
encroachment come, whether from the foreign nation acting in its
national character, or from vast hordes of its people crowding in
upon us. The government, possessing the powers which are to be
exercised for protection and security, is clothed with authority to
determine the occasion on which the powers shall be called forth,
and its determinations, so far as the subjects affected are
concerned, are necessarily conclusive upon all its departments and
officers. If, therefore, the government of the United States,
through its legislative department, considers the presence of
foreigners of a different race in this country, who will not
assimilate with us, to be dangerous to its peace and security,
their exclusion is not to be stayed because at the time there are
no actual hostilities with the nation of which the foreigners are
subjects. The existence of war would render the necessity of the
proceeding only more obvious and pressing. The same necessity, in a
less pressing degree, may arise when war does not exist, and the
same authority which adjudges the necessity in one case must also
determine it in the other. In both cases, its determination is
conclusive upon the judiciary. If the government of the country of
which the foreigners excluded are subjects is dissatisfied with
this action, it can make complaint to the executive head of our
government, or resort to any other measure which in its judgment
its interests or dignity may demand, and there lies its only
remedy.

															The power of the government to exclude foreigners from the
country whenever in its judgment the public interests require such
exclusion has been asserted in repeated instances, Page 130 U. S. 607 and never denied by the executive or legislative departments. In
a communication made in December, 1852, to Mr. A. Dudley Mann at
one time a special agent of the Department of State in Europe, Mr.
Everett, then Secretary of State under President Fillmore,
writes:

															"This government could never give up the right of excluding
foreigners whose presence it might deem a source of danger to the
United States. . . . Nor will this government consider such
exclusion of American citizens from Russia necessarily a matter of
diplomatic complaint to that country."

															In a dispatch to Mr. Fay, our minister to Switzerland, in March,
1856, Mr. Marcy, Secretary of State under President Pierce,
writes:

															"Every society possesses the undoubted right to determine who
shall compose its members, and it is exercised by all nations, both
in peace and war. . . . It may always be questionable whether a
resort to this power is warranted by the circumstances or what
department of the government is empowered to exert it, but there
can be no doubt that it is possessed by all nations and that each
may decide for itself when the occasion arises demanding its
exercise."

															In a communication in September, 1869, to Mr. Washburne, our
minister to France, Mr. Fish, Secretary of State under President
Grant, uses this language:

															"The control of the people within its limits, and the right to
expel from its territory persons who are dangerous to the peace of
the state, are too clearly within the essential attributes of
sovereignty to be seriously contested. Strangers visiting or
sojourning in a foreign country voluntarily submit themselves to
its laws and customs, and the municipal laws of France, authorizing
the expulsion of strangers, are not of such recent date, nor has
the exercise of the power by the government of France been so
infrequent, that sojourners within her territory can claim surprise
when the power is put in force."

															In a communication to Mr. Foster, our minister to Mexico, in
July, 1879, Mr. Evarts, Secretary of State under President Hayes,
referring to the power vested in the Constitution of Mexico to
expel objectionable foreigners, says:

															"The admission that, as that constitution now stands and is
interpreted, foreigners who render themselves harmful or
objectionable to the general government Page 130 U. S. 608 must expect to be liable to the exercise of the power adverted
to, even in time of peace, remains, and no good reason is seen for
departing from that conclusion now. But while there may be no
expedient basis on which to found objection, on principle and in
advance of a special case thereunder, to the constitutional right
thus asserted by Mexico, yet the manner of carrying out such
asserted right may be highly objectionable. You would be fully
justified in making earnest remonstrances should a citizen of the
United States be expelled from Mexican territory without just steps
to assure the grounds of such expulsion, and in bringing the fact
to the immediate knowledge of the department."

															In a communication to Mr. W. J. Stillman, under date of August
3, 1882, Mr. Frelinghuysen, Secretary of State under President
Arthur, writes: "Thus, government cannot contest the right of
foreign governments to exclude, on police or other grounds,
American citizens from their shores." Wharton's International Law
Digest § 206.

															The exclusion of paupers, criminals, and persons afflicted with
incurable diseases, for which statutes have been passed, is only an
application of the same power to particular classes of persons,
whose presence is deemed injurious or a source of danger to the
country. As applied to them, there has never been any question as
to the power to exclude them. The power is constantly exercised;
its existence is involved in the right of self-preservation. As to
paupers, it makes no difference by whose aid they are brought to
the country. As Mr. Fish, when Secretary of State, wrote in a
communication under date of December 26, 1872, to Mr. James
Moulding, of Liverpool, the government of the United States

															"is not willing and will not consent to receive the pauper class
of any community who may be sent or may be assisted in their
immigration at the expense of government or of municipal
authorities."

															As to criminals, the power of exclusion has always been
exercised, even in the absence of any statute on the subject. In a
dispatch to Mr. Cramer, our minister to Switzerland, in December,
1881, Mr. Blaine, Secretary of State under President Arthur,
writes:

															"While, under the Constitution and Page 130 U. S. 609 the laws, this country is open to the honest and the industrious
immigrant, it has no room outside of its prisons or almshouses for
depraved and incorrigible criminals or hopelessly dependent paupers
who may have become a pest or burden, or both, to their own
country."

															Wharton's Int.Law Dig., supra. The power of exclusion of foreigners being an incident of
sovereignty belonging to the government of the United States as a
part of those sovereign powers delegated by the Constitution, the
right to its exercise at any time when, in the judgment of the
government, the interests of the country require it, cannot be
granted away or restrained on behalf of anyone.

															The powers of government are delegated in trust to the United
States, and are incapable of transfer to any other parties. They
cannot be abandoned or surrendered. Nor can their exercise be
hampered, when needed for the public good, by any considerations of
private interest. The exercise of these public trusts is not the
subject of barter or contract. Whatever license, therefore, Chinese
laborers may have obtained, previous to the Act of October 1, 1888,
to return to the United States after their departure is held at the
will of the government, revocable at any time at its pleasure.
Whether a proper consideration by our government of its previous
laws or a proper respect for the nation whose subjects are affected
by its action ought to have qualified its inhibition and made it
applicable only to persons departing from the country after the
passage of the act are not questions for judicial determination. If
there be any just ground of complaint on the part of China, it must
be made to the political department of our government, which is
alone competent to act upon the subject. The rights and interests
created by a treaty, which have become so vested that its
expiration or abrogation will not destroy or impair them, are such
as are connected with and lie in property capable of sale and
transfer, or other disposition, not such as are personal and
untransferable in their character. Thus, in The Head-Money
Cases, the Court speaks of certain rights being in some
instances conferred upon the citizens or subjects of one nation
residing in the territorial limits of the other, which are "capable
of enforcement as Page 130 U. S. 610 between private parties in the courts of the country." "An
illustration of this character," it adds,

															"is found in treaties which regulate the mutual rights of
citizens and subjects of the contracting nations in regard to
rights of property by descent or inheritance, when the individuals
concerned are aliens." 112 U. S. 112 U.S.
580, 112 U. S. 598 .
The passage cited by counsel from the language of Mr. Justice
Washington in Society for the Propagation of
the Gospel v. New Haven , 8 Wheat. 464, 21 U. S. 493 ,
also illustrates this doctrine. There, the learned Justice observes
that

															"if real estate be purchased or secured under a treaty, it would
be most mischievous to admit that the extinguishment of the treaty
extinguished the right to such estate. In truth, it no more affects
such rights than the repeal of a municipal law affects rights
acquired under it."

															Of this doctrine there can be no question in this Court; but far
different is this case, where a continued suspension of the
exercise of a governmental power is insisted upon as a right
because, by the favor and consent of the government, it has not
heretofore been exerted with respect to the appellant or to the
class to which he belongs. Between property rights not affected by
the termination or abrogation of a treaty and expectations of
benefits from the continuance of existing legislation there is as
wide a difference as between realization and hopes.

															During the argument, reference was made by counsel to the Alien
Law of June 25, 1798, and to opinions expressed at the time by men
of great ability and learning against its constitutionality. 1
Stat. 570, c. 58. We do not attach importance to those opinions in
their bearing upon this case. The act vested in the President power
to order all such aliens as he should judge dangerous to the peace
and safety of the United States, or should have reasonable grounds
to suspect were concerned in any treasonable or secret machination
against the government, to depart out of the territory of the
United States within such time as should be expressed in his order.
There were other provisions also distinguishing it from the act
under consideration. The act was passed during a period of great
political excitement, and it was attacked and defended with
great Page 130 U. S. 611 zeal and ability. It is enough, however, to say that it is
entirely different from the act before us, and the validity of its
provisions was never brought to the test of judicial decision in
the courts of the United States. Order affirmed.


U.S. Supreme Court Strawbridge v. Curtiss, 7 U.S. 3
Cranch 267 267 (1806) Strawbridge v.
Curtiss 7 U.S. (3 Cranch) 267 APPEAL FROM THE CIRCUIT COURT
OF THE DISTRICT OF
MASSACHUSETTS Syllabus If there be two or more joint plaintiffs, and two or more joint
defendants, each of the plaintiffs must be capable of suing each of
the defendants in the courts of the United States to sustain the
jurisdiction of the court.

															The Court understands the expressions in the act of Congress
giving jurisdiction to the courts of the United States "when an
alien is a party, or the suit is between a citizen of the state
where the suit is brought, and a citizen of another state" to mean
that each distinct interest should be represented by persons all of
whom are entitled to sue or may be sued in the federal courts --
that is, where the interest is joint, each of the persons concerned
in that interest must be competent to sue or liable to be sued in
those courts.

															This was an appeal from a decree of the Circuit Court for the
District of Massachusetts, which dismissed the complainants' bill
in chancery for want of jurisdiction.

															Some of the complainants were alleged to be citizens of the
State of Massachusetts. The defendants were also stated to be
citizens of the same state, excepting Curtiss, who was averred to
be a citizen of the State of Vermont, and upon whom the subpoena
was served in that state.

															MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.

															The Court has considered this case and is of opinion that the
jurisdiction cannot be supported.

															The words of the act of Congress are "where an alien is a party
or the suit is between a citizen of a state where the suit is
brought and a citizen of another state."

															The Court understands these expressions to mean that each
distinct interest should be represented by persons all of whom are
entitled to sue or may be sued in the federal courts. That is, that
where the interest is joint, each of the persons concerned in that
interest must be competent to sue or liable to be sued in those
courts.

															But the Court does not mean to give an opinion in the case where
several parties represent several distinct interests Page 7 U. S. 268 and some of those parties are and others are not competent to
sue or liable to be sued in the courts of the United States. Decree affirmed.