' 30 rmnmmn nmromnn.
complaint to the executive department, and take such other measures
as it may deem that justice to its own citizens or subjects requires.
The courts cannot heed such complaint, nor refuse to give effect to
a law of congressjhowever much it may seem to conflict with the
stipulations of the treaty. Whether a treaty has been violated by
our legislation, so as to be the proper occasion of complaint by the
` foreign government, is not a judicial question. To the courts it is
simply the case of conflicting laws, the last modifying or superseding
the earlier. s
The question then is, what is the true construction of the restric-
tion act? Whom does it embrace? Some assistance in arriving
at a correct conclusion will be had by reference to the treaties with
China, and the circumstances leading to the passage of the act. In
the fifth article of the treaty of July 28, 1868, commonly known as the
"Burlingame treaty," the contracting parties declare that "they rec-
ognize 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}' In its sixth article they declare 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 or subjects of the
most favored nation; and, reciprocally, Chinese subjects visiting or
residing in the United States shall enjoy the same privileges, immu-
nities, and exemptions, in respect to travel or residence, as may there
be enjoyed by the citizens or subjects of the most favored nation."
16 St. 739.
Before these articles were adopted a great number of Chinese had
emigrated to this state; and after their adoption the immigration
largely increased. But, notwithstanding the favorable provisions
of the treaty, it was found impossible for them to assimilate with our
people. Their physical characteristics and habits kept them as dis-
tinct and separate as though still living in China. They engaged in
all the industries and pursuits of the state; they came in competi-
tion with white laborers in every direction; and, as was said by us in
the Case of the Chinese Merchant, before us last year, their frugal habits,
the absence of families, their singular ability to live in narrow quar-
ters without apparent injury to health, their contentment with the
simplest fare, gave them in this competition great advantages over
our laborers and mechanics. 7 Sawy. 549.* They could live with
apparent comfort on what would prove almost starvation to white
men. Our laborers and mechanics, as we also said in that case,
are not content, and never should be, with the means of bare sub-
sistence; they must have something beyond this for the comforts of
IS. U. 13 FED. REP. 607 V