scribed a certificate for those "being in the United States" who desired to depart by land, so the 4th section prescribed a certificate for those being in the United States who desired to depart by water. In each case, the provision is for those who are rightfully here, and, there-Words in a statute ought not to have a retrofore, have an opportunity to demand and receive the required certificate, and not for those who are protected by the Treaty, but who, being absent from the country, when the law was enacted making provision for a collector's certificate, could not demand and receive it. Neither section purports to defeat previously existing rights by imposing conditions upon their enjoyment which cannot be satisfied. previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the Legislature. In U. S. v. Heth, 3 Cranch, 413, this court said, that spective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied;" and such is the settled doctrine of this court. Murray v. Gibson, 15 How., 423; McEwen v. Den, 24 How., 243, 244 [65 U. S., XVI., 672]; Harvey v. Tyler, 2 Wall., 347 [69 U. S., XVII., 875]; Sohn v. Waterson, 17 Id., 599 [84 It is also said, in support of the judgment, U. S., XXI., 738]; Twenty Per Cent Cases, 20 that the 6th section is significant, in that it pre- Id., 187 [87 U. S., XXII., 341]. So far from scribes the mode for the coming to this country the court being compelled, by the language of of Chinese persons, "other than a laborer who the Act of Congress, to give it a retrospective may be entitled by said Treaty and this Act to operation, the plain, natural and obvious meancome within the United States," but fails to pro- ing of the words, interpreted with reference to vide the means for the return and identification the general scope and the declared purpose of of Chinese laborers who were entitled by the the statute, utterly forbids the conclusion that Treaty to return, but who were out of the coun- there was any intention to impair or destroy try when the Act of Congress was passed. But rights previously granted. The Chinese laborer this argument, like the one just alluded to, only who, under the Act of 1882, was entitled to return proves that Congress, while making provision and re-enter the United States upon producing for the coming of persons who were entitled to the certificate therein prescribed, and the Chicome, other than laborers, omitted to make spe- nese laborer who, after the Act of 1884 was cial provision in reference to the latter, and con- passed, could re-enter the country only upon sequently, left them to stand upon their rights producing the certificate required by the latter as secured by the Treaty and if their right to Act, is described as one " to whom the same is enter the United States was questioned, to prove issued." It would be a perversion of the lanin some way, consistent with the general princi-guage used to hold that such regulations apply ples of law, that they belonged to the class entitled to go and come. Some reliance was also placed upon the implication arising from that clause of the 12th section which declares that "No Chinese person shall be permitted to enter the United States by land, without producing to the proper officer of customs the certificate in this Act required of Chinese persons seeking to land from a vessel." We do not perceive that any argument based upon these words meets the view that the Act of Congress, in respect of Chinese laborers entitled to go and come, is inapplicable to those who were here at the date of the Treaty, but, by reason of absence when the Act of Congress took effect, could not obtain the required certificate. If, however, the 12th section should be held to forbid the entrance of Chinese persons of every class into this country, by land, except upon the certificate required by the 4th section, it would not follow that a Chinese laborer entitled by the Treaty to go and come at pleasure, and who was out of the country when the Act of Congress was passed, could not re-enter by vessel, upon satisfactory evidence of his being here at the date of the Treaty. The entire argument in support of the judgment below proceeds upon the erroneous assumption that Congress intended to exclude all Chinese laborers of every class who were not in the United States at the time of the passage of the Act of 1882, including those who, like the plaintiff in error, were here when the last Treaty was concluded, but were absent at the date of the passage of that Act. We have stated the main reasons which, in our opinion, forbid that interpretation of the Act of Congress. To these may be added the further one, that the courts uniformly refuse to give to statutes a retrospective operation, whereby rights | to Chinese laborers who had left the country with the privilege, secured by treaty, of returning, but who, by reason of their absence when those legislative enactments took effect, could not obtain the required certificates. Statutory provisions which declare that a certificate shall be evidence, or the only evidence, of the right of the person "to whom it is issued " to re-enter the United States, cannot, upon any sound rule of interpretation, be held to apply to one to whom it could not have been issued. A Chinese laborer, to whom a certificate was issued under the original Act, is entitled to re-enter only upon producing that certificate; one to whom a certificate was issued under the Act of 1884, is entitled to re-enter only upon producing such certificate; while the plaintiff in error, having left before any certificate was permitted to be issued, cannot be required to produce one before re-entering, because, having resided here on the 17th day of November, 1880, he was clearly entitled, under the express words of the Treaty, to go from and return to the United States of his own free will-a privilege that would be destroyed, if its enjoyment depended upon a condition impossible to be performed. The recognition of that privilege is entirely consistent with existing legislation; for, by construing the original and amendatory Acts, so far as they require the production of a collector's certificate by Chinese laborers who were in the United States on the 17th of November, 1880, as applicable only to those of that class who were here at the dates when those Acts, respectively, took effect, no previously acquired rights are violated, and full effect is given to the expressed intention of Congress to faithfully meet our treaty obligations. Thus the legislation of Congress and the stipulations of the Treaty may stand together. In accordance with these views, it is adjudged | who afterwards continued their residence here. that the plaintiff in error is entitled to enter and remain in the United States. The first of the certified questions is, therefore, answered in the negative, and the second and third in the affirmative. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. Mr. Justice Field, dissenting: If, however, the Act of Congress be in conflict with the Treaty upon the immigration of Chinese laborers, it must control as being the last expression of the sovereign will of the country. And while I agree with all that is said in the opinion of the court, as to the sanctity of the public faith, I must be permitted to suggest that, 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 this court or any other court to call in question the validity or wisdom of its action and impute unworthy motives to it. It should be presumed that good and sufficient reasons controlled and justified its conduct. 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 I am unable to agree with my associates in their construction of the Act of May 6, 1882 [22 Stat. at L., 58], as amended by the Act of July 5, 1884 [23 Stat. at L., 115], restricting the immigration into this country of Chinese laborers. That construction appears to me to be in conflict with the language of the Act, and to require the elimination of entire clauses and the interpolation of new ones. It renders nugatory whole provisions which were inserted with sed-measures as it may deem advisable for its interulous care. The change thus produced in the operation of the Act is justified on the theory that to give it any other construction would bring it into conflict with the Treaty; and that we are not at liberty to suppose that Congress intended by its legislation to disregard any treaty stipulations. ests. But whether it has just cause of complaint, or whether, in view of its action, adverse legislation on our part be or be not justified, is not a matter for judicial cognizance or consideration. A treaty is, in its nature, a contract between two or more Nations and is so considered by writers on public law; and by the Constitution it is placed on the same footing and made of like obligation as a law of the United States. Both are declared in that instrument to be the supreme law of the land, and no paramount authority is given to either over the other. The Circuit Judge, in his opinion, assumes that the Treaty of 1880 [22 Stat. at L., 826], allows Chinese laborers then in the United States freedom to depart and return without reference to their subsequent residence in the country; and that this freedom is assured to them whether they afterwards abandon or continue their Some treaties operate in whole or in part by residence. Proceeding on this assumption, as their own force, and some require legislation to though it were impregnable, the assertion is carry their stipulations into effect. If that legmade, with great positiveness and frequent rep-islation impose duties to be discharged in the etition, that the Act of Congress, construed ac- future, it may be repealed or modified at the cording to the natural meaning of its terms, pleasure of Congress. If the Treaty relates to violates that Treaty and our plighted faith; and a subject within the powers of Congress and opthe enormity of such legislation is dwelt upon erates by its own force, it can only be regarded with much warmth of expression. The major- by the courts as equivalent to a legislative Act. ity of this court, adopting a similar construc- Congress may, as with an ordinary statute, tion of the Treaty, narrow the meaning of the modify its provisions, or supersede them altoAct so as measurably to frustrate its intended gether. The immigration of foreigners to this operation. Whereas, if the Treaty as to such country, and the conditions upon which they laborers be construed, as I think it should be, shall be permitted to come or remain, are propto apply to those then here who afterwards con- er subjects both of legislation and of treaty stiptinue their residence in the country and who ulation. The power of Congress, however, over may, during such residence, desire to be tempo- the subject can neither be taken away nor imrarily absent, there is no conflict between it and paired by any treaty. the Act of Congress. Both are then in perfect harmony, the imputation of bad faith is without a plausible pretext, and the citations in the opinion of the Circuit Judge and of this court, as to the necessity of so construing Acts so as not to lead to injustice, oppression or absurd consequences, have no application. The petitioner, a native of China and a laborer, though here when the Treaty of 1880 was concluded, left the country in June, 1881, and was in the Hawaiian Islands over three years before he desired to return. Chinese laborers do not travel for pleasure, and during that time he had acquired a residence in those islands as fully as he ever had in the United States. But, according to the opinion of the court, this fact is of no significance. He could reside there twenty years and then return, notwithstanding the Act of Congress. I cannot construe the Treaty as conferring any such unrestricted right or as applying to any other laborers than those As said by Mr. Justice Curtis, in Taylor v. Morton: "To refuse to execute a treaty, for reasons which approve themselves to the conscientious judgment of a Nation, is a matter of the utmost gravity and delicacy; but the power to do so is a prerogative, of which no Nation can be deprived without deeply affecting its independence. That the People of the United States have deprived their Government of this power in any case, I do not believe. That it must reside somewhere and be applicable to all cases, I am convinced. I feel no doubt that it belongs to Congress. That, 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, then legislative power is applicable to such laws when ever they relate to subjects which the Constitution has placed under that legislative power. 2 Curt., 459. And the learned Justice holds, that whether a treaty with a foreign Sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty has been voluntarily withdrawn by one party so that it is no longer obligatory on the other; whether the views and acts of a foreign Sovereign 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, is not a judicial question, that the power to determine these matters has not been confided to the judiciary, which has no suitable means to exercise it, but to the Executive and Legislative Departments of our Government; that they belong to diplomacy and legislation and not to the administration of the laws. And he concludes, as a necessary consequence of these views, that if the power to determine those matters is vested in Congress, it is wholly immaterial to inquire whether, by the Act assailed, it has departed from the Treaty or not, or whether such departure were accidental or designed; and if the latter, whether the reasons therefor were good or bad. As said by Attorney-General Crittenden, in his opinion furnished to the head of the Treasury Department respecting claims under the Treaty with Spain ceding Florida, with which an Act of Congress was supposed to conflict, the "Constitution does not say that Congress shall pass Lo law inconsistent with a treaty, and it would have been a strange anomaly if it had imposed any such prohibition. There may be cases of treaties so injurious, or which may become so by change of circumstances, that it may be the right and duty of the Government to renounce or disregard them. Every government must judge and determine for itself the proper occasion for the exercise of such a power; and such a power, I suppose, is impliedly reserved by every party to a treaty, and I hope and believe belongs inalienably to the Government of the United States. It is true that such a power may be abused, so may the treaty-making power and all other powers. But for our security against such abuse, we may and must rely on the integrity, wisdom and good faith of our Government." V. Ops. AttysGen., 345. This power was exercised by Congress in 1798, when it declared that the United States were of right freed and exonerated from the stipulations of the Treaties and Consular Convention previously concluded with France, and that they should not thereafter be regarded as obligatory on the Government or citizens of the United States. 1 Stat. at L., 578. But, what is more important than these citations as to the weight to be given to an Act of Congress when in conflict with a preceding treaty, this court has this day rendered an authoritative decision on the subject. In several cases, brought to recover from the Collector of the Port of New York moneys received by him as duties on passengers landing there from foreign ports, not being citizens of the United States, at the rate of fifty cents for each of them, under the Act of Congress of August 3, 1882, to regulate immigration, it was objected that the Act violated provisions contained in treaties of our Government with foreign Nations; but the court replied that, "So far as the provisions in that Act may be found in conflict with any treaty, they must prevail in all the judicial courts of this country." And, after a careful consideration of the subject, the court reached this conclusion, and held 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." Edye v. Robertson and Steamship Co. v. Same [post, 798]; see also, the case of The Cherokee Tobacco, 11 Wall., 616 [78 U. S., XX., 227]; and the case of Ah Lung, 9 Sawy. While, therefore, the courts will always endeavor to bring legislation into harmony with treaty stipulations and not presume that it was intended by the legislative department to disregard them, yet an Act of Congress must be construed according to its manifest intent, and neither limited nor enlarged by ingenious reasoning or fanciful notions of a purpose not declared on its face. Before proceeding to examine in detail the Act of Congress in question, a few words may be said as to the causes which led to its enactment. Upon the acquisition of California and the discovery of gold, people from all parts of the world came to the country in great numbers, and among them Chinese laborers. They found ready employment; they were industrious and docile, and generally peaceable. They proved to be valuable domestic servants and were useful in constructing roads, draining marshes, cultivating fields and, generally, wher ever outdoor labor was required. For some time they excited little opposition, except when seeking to work in the mines. But as their numbers increased they began to engage in various trades and mechanical pursuits, and soon came into competition, not only with white laborers in the field, but with white artisans and mechanics. They interfered in many ways with the industries and business of the State. Very few of them had families, not one in five hundred, and they had a wonderful capacity to live in narrow quarters without injury to their health, and were generally content with small gains and the simplest fare. They were perfectly satisfied with what would hardly furnish a scanty subsistence to our laborers and artisans. Successful competition with them was, therefore, impossible, for our laborers are not content and never should be, with a bare livelihood for their work. They demand something more, which will give them the comforts of a home and enable them to support and educate their children. But this is not possible of attainment if they are obliged to compete with Chinese laborers and artisans under the conditions mentioned; and it so proved in California. Irritation and discontent naturally followed, and frequent conflicts between them and our people disturbed the peace of the community in many portions of the State. By the Treaty concluded in July, 1868, generally known as the Burlingame Treaty, the contracting parties declare that they "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 sub jects, respectively, from the one country to the other, for purposes of curiosity, of trade, or as permanent residents." And, also, that "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 citi zens and 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 there be enjoyed by the citizens or subjects of the most favored Nation." Arts. V., VI., 16 Stat. at L., 740. But, notwithstanding these favorable provisions, opening the whole of our country to them and extending to them the privileges, immunities and exemptions of citizens or subjects of the most favored Nation, they have remained among us a separate people, retaining their original peculiarities of dress, manners, habits and modes of living, which are as marked as their complexion and language. They live by themselves; they constitute a distinct organization with the laws and customs which they brought from China. Our institutions have made no impression on them during the more than thirty years they have been in the country. They have their own tribunals to which they voluntarily submit, and seek to live in a manner similar to that of China. They do not and will not assimilate with our people; and their dying wish is that their bodies may be taken to China for burial. side in a few cities only and they may engage in no enterprise outside of the ordinary interchange of commodities and their transportation between defined points. Opportunities exist to develop mines, to establish furnaces and factories, to construct roads, canals, railroads and telegraphs, to operate these and steam and other vessels on many routes now not open to them; but from all these and many other important branches of enterprise we are effectually and perhaps hopelessly shut out.” And this is not all. By the Treaty of 1868 the contracting parties declare their reprobation of any other than "an entirely voluntary emigration," and they agree to pass laws making it a penal offense for a citizen of the United States or Chinese subjects to take Chinese subjects to the United States without their free and voluntary consent. In the face of this explicit provision large numbers of them, more than one half of all who have come to the United States, have been brought under what is termed the "contract system;" that is, a contract for their labor. In one sense they come freely, because they come pursuant to contract, but they are not the free immigrants whose coming the Treaty contemplates, and for whose protection the Treaty provides. They are for the time the bond thralls of the contractor; his coolie slaves. The United States had already legislated to prevent the transportation by their citizens of coolies from China to any foreign port; but no law has ever been passed by China to prevent its subjects, thus bound, from being taken to the United States. Act of February 19, 1862, 12 Stat. at L., 340. But this is not all. The Treaty is fair on its face. It stipulates for like privileges, immuni- In view of these facts: that the Chinese canties and exemptions on both sides, to our peo- not assimilate with our people, but continue a ple going to China and to its people coming distinct race amongst us, with institutions, cushere. But the stipulations to our people are ut- toms and laws entirely variant from ours; that terly illusive and deceptive. No American cit- the larger portion of persons termed Chinese laizen can enjoy in China, except at certain des- borers were imported under the labor contract ignated ports, any valuable privileges, immuni- system; that no law to prevent their importation ties or exemptions. He can trade at those ports under this system had ever been passed by but nowhere else. He cannot go into the in- China; that competition with them tended to terior of the country and buy or sell there or degrade labor and thus to drive our laborers engage in manufactures of any kind. A resi- from large fields of industry; that the Treaty dence there would be unsafe, and the crowded was one sided in the benefits it conferred as to millions of her people render it impossible for residence and trade by the citizens or subjects of him to engage in business of any kind among one country in the other, the condition of the them. The stipulations of the Treaty, so far people of China rendering any reciprocity in as the residence of the citizens or subjects of such benefits impossible, it is not surprising that one country in the other and the trade which there went up from the whole Pacific Coast an would follow such residence are concerned, are earnest appeal to Congress to restrain the further therefore one sided. Reciprocity in benefits be- immigration of Chinese. It came, not only from tween the two countries in that respect has that class who toil with their hands and thus never existed. There is not and never has been felt keenly the pressure of the competition with any "mutual advantage" in the migration or coolie labor, but from all classes. Thoughtful emigration of the citizens or subjects, respect-persons who were exempt from race prejudices ively, from one country to the other which the Treaty, in "cordially recognizing," assumes to exist. Suggestions of any such mutuality were deceptive and false from the outset. The want of it was called to the attention of our Government in 1878 by a communication to the State Department from our Minister in China. "A few words," says the Minister, "are needed to indicate the lack of reciprocity between us. I think there are no opportunities of residence or of enterprise from which the Chinese among us are debarred. They can go where they will and do what they will in all our broad domain. But it is not so here. Our countrymen may re saw, in the facilities of transportation between the two countries, the certainty, at no distant day, that, from the unnumbered millions on the opposite shores of the Pacific, vast hordes would pour in upon us, overrunning our coast and controlling its institutions. A restriction upon their further immigration was felt to be necessary, to prevent the degradation of white labor and to preserve to ourselves the inestimable benefits of our Christian civilization. It was objected, to the legislation sought, that the Treaty of 1868 stood in the way and that, whilst it remained unmodified, such legislation would be a breach of faith to China and give her States." Indeed, history furnishes many instances where one Nation has claimed a release from a Treaty because the other party has disregarded it, or the conditions which existed at its date have essentially changed, and in so claiming and acting no reproaches of bad faith were incurred or made. Undoubtedly, as said by Mr. Justice Curtis, the withdrawal of a Nation from the execution of a Treaty is a matter of great delicacy and gravity and not to be lightly done. Usually notice beforehand is given, as the course of which the other can least complain. Yet it is a matter resting entirely with the legislative and executive departments. In response to the urgent and persistent appeals of the Pacific Coast for restrictive legislation, and in deference to those who were of opinion that, without a modification of the Treaty, such legislation would be a breach of faith, commissioners were appointed to proceed to China, and there negotiate for such modification. The supplementary Treaty of November, 1880, was the result. It declared in its first article that: just ground of complaint. I was formerly of that opinion, and so expressed myself in some judicial decisions, the want of reciprocity in the benefits stipulated not being called to my attention, or being overlooked at the time, Case of Chinese Merchant, 7 Sawy., 549; but subsequent reflection has convinced me that my views on this subject require modification. Be that as it may, many jurists of eminence have not hesitated to affirm that such legislation would not have been the subject of just reproach by any. one acquainted with the failure of reciprocal benefits to our people in the operation of the Treaty, in consideration of which alone the Treaty was adopted. The first Treaty with China, negotiated in 1844 by Mr. Cushing, and the Treaty with that country negotiated by Mr. Reed, in 1858, had not only declared that there should be peace and friendship between the two Nations and their people, but stipulated for commercial intercourse at certain designated ports in China, and for protection to citizens of the United States there, while peaceably attending to their affairs. 8 Stat. at L., 592; 12 Id., "Whenever, in the opinion of the Government 1023. It was in the Treaty of 1868, the Burlin- of the United States, the coming of Chinese lagame Treaty as it is called, that the two Nations borers to the United States or their residence recognized the mutual advantages of the free therein affects or threatens to affect the intermigration and emigration of their citizens and ests of that country or to endanger the good subjects, respectively, from the one country to order of the said country or of any locality the other, for purposes of curiosity, of trade or within the territory thereof, the Government of as permanent residents; and stipulated that each China agrees that the Government of the United should enjoy, in the country of the other, the States may regulate, limit or suspend such comprivileges, immunities and exemptions, in re-ing or residence, but may not absolutely prohibit spect to residence and trade, which might be thus enjoyed by citizens or subjects of the most favored Nation. Yet, as already stated, such freedom of trade or residence is not allowed to American citizens in China and, from her crowded population, never can be. The stipulation for reciprocal benefits, in this way, has never been performed by the Chinese Government; and has always been incapable of enforcement. The consideration, therefore, for allowing free emigration from China to this country has failed and, it may be affirmed with much justice, that by reason of this failure there would have been no breach of faith to China had the stipulation on our part been disregarded by the legislation of Congress. If the Treaty had stipulated for the like admission to each country of the goods of the other, and China excluded our goods, or her condition was such that they could not be landed, it would seem that no one could pretend that the stipulation on our part to receive her goods would continue obligatory. It cannot make any difference that the stipulations relate to emigrants instead of goods. So of any other mutual stipulations, when on one side they are not observed, or become incapable of enforcement, they cease to be binding on the other. And surely it could never have been contemplated that an unlimited immigration of Chinese, with all the privileges of subjects of the most favored Nation, should be continued without our receiving corresponding benefits for which the Treaty stipulated. The present Secretary of State, in a recent dispatch to our Minister in England respecting the Clayton-Bulwer Treaty, calls attention to a provision which he states that Great Britain has not kept, adding that, "If she has violated and continues to violate that provision, the Treaty is, of course voidable at the pleasure of the United 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 declared that: 66 '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 be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges and immunities and exemptions which are accorded to the citizens and subjects of the most favored Nation." As thus seen, by the first article, China not only agrees, notwithstanding the stipulations of former Treaties, that the Government of the United States may regulate, limit or suspend the coming of Chinese laborers whenever in its judgment the interests of our country or of any part thereof may require such action, but that the legislation for such regulation, limitation or suspension is committed to its discretion, with a proviso that the legislation shall be reasonable, and that the immigrants shall not be maltreated or abused. The reasonableness and necessity of the legislation enacted is confided to its judgment. The second article, which provides that Chinese laborers then in the United States shall be allowed freedom of ingress and egress, could have been intended to apply only to such laborers as might continue their residence in the United States; not to those who might subse |