Imágenes de páginas
PDF
EPUB

Dissenting Opinion: Field, J.

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 no 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." 5 Opinions Atty's Gen. 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. 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,

[ocr errors]

Dissenting Opinion: Field, J.

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." Head Money Cases, post 580. See also the case of The Cherokee Tobacco, 11 Wall. 616, and the case of Ah Lung, the Chinese Laborer from Hong-Kong, 9 Sawyer.

[ocr errors]

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, wherever out-door 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

[ocr errors]

Dissenting Opinion: Field, J.

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 subjects, 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 citizens 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. and VI., 16 Stat. 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

Dissenting Opinion: Field, J.

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.

But this is not all. The treaty is fair on its face. It stipulates for like privileges, immunities and exemptions on both sides, to our people going to China and to its people coming here. But the stipulations to our people are utterly illusive and deceptive. No American citizen can enjoy in China, except at certain designated ports, any valuable privileges, immunities or exemptions. He can trade at those ports, but nowhere else. He cannot go into the interior of the country and buy or sell there or engage in manufactures of any kind. A residence there would be unsafe, and the crowded millions of her people render it impossible for him to engage in business of any kind among them. The stipulations of the treaty, so far as the residence of the citizens or subjects of one country in the other and the trade which would follow such residence are concerned, are therefore one-sided. Reciprocity in benefits between the two countries in that respect has never existed. There is not and never has been any "mutual advantage" in the migration or emigration of the citizens or subjects, respectively, 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 reside in a few cities only, and they may engage in no enterprise outside of the ordinary interchange of commodities, and their transportation

Dissenting Opinion: Field, J.

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 offence 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. 340.

In view of these facts-that the Chinese cannot assimilate with our people, but continue a distinct race amongst us, with institutions, customs and laws entirely variant from ours; that the larger portion of persons termed Chinese laborers were imported under the labor-contract system; that no law to prevent their importation under this system had ever been passed by China; that competition with them tended to degrade labor, and thus to drive our laborers from large fields of industry; that the treaty was one-sided in the benefits it conferred as to residence and trade by the citizens or subjects of one country in the other, the condition of the people of China rendering any reciprocity in such benefits impossible-it is not surprising that there went up from the whole Pacific Coast an earnest appeal

« AnteriorContinuar »