D
From The
New York
Extract
Herald
of September 26
C. O.
1800%
RECP REGE 23 OCT 83),
1883.
423
Hong
Out.
Hong Kong Chinese Shat
The Pacific slope journals, which were panic stricken by the recent decision of Judges Lowell and Nelson, in Boston, holding that the Chinese of Hong Kong, being British subjects, were not excluded from this country by the anti-Chinese act of Congress," are doubtless lauding Justice Field and Judge Sawyer as unstintedly as they denounced the "Yankee judges" for deciding that the Hong Kong Chinese cannot come in. Until the question shall be finally settled by the United States Supreme Court Judge Lowell's opinion will stand as the law in Massachusetts, while Justice Field's will rule on the Pacific coast, the landing place of the mass of Mongolians. Consequently, the practical effect of the latter will be to fill up "the large hole" which, in the picturesque language of one of the San Francisco newspapers, "the Boston decision punched in the Exclusion act."
The ground on which Judges Lowell and Nelson based their opinion was that the anti-Chinese law was intended, as its title declared, to execute certain treaty stipulations relating to Chinese." As the treaties with China relate only to Chinese subjects, and have no reference to persons of the Chinese race who are not subjects of China, the provisions of the Exclusion act, the Court held, must have an equally restricted application, and hence not to apply to Chinese in Hong Kong who are subjects of Great Britain.
Justice Field cites the fact that the act prohibits the coming of "Chinese laborers" in the broadest and most unlimited terms. There is no limitation as to the country whence they come. It was the purpose of Congress, he reasoned, to exclude Chinese laborers coming from any part of the world. The legislation was aimed, not merely at nationality—that is, the subjects of China—but against the entire Chinese race. In Congress, he argued, who voted for Mongolian exclusion never intended, while shutting out Chinese from China, to leave the gates open to the extensive Chinese population of the British possessions of Hong Kong, Singapore, Australia, &c.
That such was the intention of Congress can hardly be denied, and the terms of the Exclusion act seem to be broad enough to meet that end. Justice Field's view of the act, if not so liberal as that of Judge Lowell, appears, therefore, to be more strictly in accordance with the purpose of Congress, and hence a sounder judicial interpretation of the law.
But it may raise another question. Hong Kong is a British possession. Chinese born in Hong Kong are British subjects if their parents were British subjects. By treaty with Great Britain the United States is "free" to all subjects of that nation. This treaty stipulation is now abrogated in part by the decision of Justice Field. That, however, was a question with which Justice Field had nothing to do, since Congress has the unquestioned power to pass a law in conflict with any existing treaty, and it is simply the business of the Court to construe the law without any reference to its effect on a treaty. But the violation by Congress of a treaty with a friendly foreign Power is always open to diplomatic complaint by that Power.