417
much they may seem to conflict with the stipulations
mutual advantage of the free migration
treaty has been violated by our
of
their
citizens
and
to the other
for
the
the treaty. Whether a
Government in its legislative departments, so as to be the
complaint by the foreign Government
proper occasion of complaint by the
so not a judicial question. To the Courts it is simply
the case
of conflicting laws, the last modifying or
superseding the former.
The
The Restriction
question
then is, what is the true construction
of the Restriction Act? whom does it embrace? Some
the
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 1868 commonly known as the Burlingame Treaty, the contracting parties declare
that they recognize the inherent and inalienable right of
man to change his home and allegiance; and also the
right
to
change
and
emigration
for purposes of curiosity or
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 favoured
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 be enjoyed by the citizens or subjects
of the most favoured nation." Before these articles were
adopted a great number of Chinese had
emigrated
to this State and after their adoption the immigration
largely increased.
was
degrading
mutual