ted to remain, are matters which may be subjects of treaty stipulation, and also of Congressional action. No treaty can deprive Congress of its power in that respect. As said by Mr. Justice Curtis in the case of Taylor v. Morton: "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 nobody other than Congress possesses it, then legislative power is applicable to such cases whenever they relate to subjects which the Constitution has placed under that legislative power." (2 Curtis, Cir. Ct. Rep., 458.)

An Act of Congress, then, upon a subject within its legislative power is as binding upon the Courts as a treaty on the same subject. Both are binding except as the latter one conflicts or interferes with the former. If the nation with whom we have made the treaty objects to the action of the Legislative Department, it may present its 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 the laws of Congress, however much they may seem to conflict with the stipulations of the treaty. Whether a treaty has been violated by our Government in its Legislative Department 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.

The question then is, What is the true construction of the Restriction 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 5th 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 mutual advantage of the free migration and emigration of their citizens and subjects respectively from one country to the other, for the purposes of curiosity, of trade, or as permanent residents." In its 6th 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 recip

rocally, 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 favored nation."

Before these Articles were adopted, a great number of Chinese had emigrated to this State; and after their adoption, the immigration was 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 distinct and separate as though still living in China. They engaged in all the industries and pursuits of the State; they came in competition with white laborers in every direction; and their frugal habits, the absence of families, their singular ability to live in narrow quarters without apparent injury to health, their contentment with the simplest fare, gave them in this competition great advantages over our laborers and mechanics. They could live with apparent comfort on what would prove almost starvation to white men. Our people

are not content, and never should be, with the means of bare subsistence; they must have something beyond this for the comforts of a home, the support of a family and the education of children. Competition with Chinese labor under the conditions mentioned was necessarily irritating and exasperating, and often led to serious collisions between persons of the two races. It was seen that without some restriction upon the immigration of Chinese, white laborers and mechanics would be driven from the State. They looked, therefore, with great apprehensions toward the crowded millions of China and of the adjacent islands in the Pacific, and felt that there was more than a possibility of such multitudes coming as to make a residence here unendurable. It was perceived by thoughtful men, looking to the possibilities of the future, that the immigration of the Chinese must be stopped if we would preserve this land for our people and their posterity, and protect the laborer from a competition degrading in its character, and ruinous to his hopes of material and social advancement. There went up, therefore, most urgent appeals from the Pacific Coast to the Government of the United States, to take such measures as would stop the further coming of Chinese laborers. The effect of these appeals was the sending of Commissioners to China to negotiate for a modification of the treaty of 1868. The supplementary treaty of 1880 was the result. This treaty authorized legislation restricting the immigration of Chinese laborers to the United States whenever our Govern

ment should be of opinion that the coming of such laborers would affect or threaten to affect the interests of the country or endanger its good order, but expressly stipulating that its provisions should not apply to other classes coming to the United States.

The Act of May 6, 1882, followed this new treaty, and in speaking of it in the case of the Chinese merchant, which was before us last year, we said—referring to merchants as as a class-that it was framed in supposed conformity with the provisions of the treaty, and that in the inhibitions which it imposes upon the immigration of Chinese, there was no purpose expressed in terms to go beyond the limitations of the treaty. Undoubtedly, so far as the subjects of China are concerned, no purpose is shown by the Act to go beyond those limitations, and that is all that was intended by language which has been supposed to have a broader meaning.

It was felt necessary to obtain a modification of the treaty with China before legislating with reference to the immigration of Chinese. The Government of China, without such modification, would have had just ground of complaint. It was never supposed that any of the European Governments having within their possessions in the East Chinese subjects would make any complaint to their exclusion from our country. It was well known that the English colonies in Australia had either entirely excluded or had placed under very narrow restrictions the immigration of Chinese into them, without any objection from the mother country. The complaints there from the conflict of white with Chinese labor had been as great and as strongly expressed as any which ever arose in this State. Legislation by Congress excluding or restricting the immigration would never have been so long delayed except from a desire not to offend the Chinese Government. It was not deemed necessary to negotiate with other Governments with respect to Chinese within their borders. So when the Act of Congress was passed, it had a double purpose. It was to carry out, as its title indicates, certain treaty stipulations with China, and also to exclude Chinese laborers coming from any part of the world. Its framers knew, as we all knew, that the Island of Hongkong would pour Chinese laborers into our country every year in unnumbered thousands, unless they also were covered by the Restriction Act. So the Act declares in its first section that from and after the expiration of ninety days from its passage, and until the expiration of ten years, the coming of Chinese laborers to the United States, without any limitation of the country from which they might come, is

suspended, and during such suspension, it shall not be lawful for any Chinese laborer to come, or having come, after the expiration of the ninety days to remain within the United States.

The second section makes it a misdemeanor, punishable by fine or imprisonment, or both, for the master of a vessel to knowingly bring into the United States on his vessel, and land, or permit to be landed, any Chinese laborer from any foreign port or place. The language in these sections is sufficiently broad and comprehensive to embrace all Chinese laborers, without regard to the country of which they may be subjects. And the twelfth section declares that any Chinese person found unlawfully within the United States shall be removed therefrom by direction of the President to the country from whence he came-not necessarily to China.

Our attention has been called to a recent decision of Judges Lowell and Nelson of the Circuit Court of the United States for the District of Massachusetts, in which a different conclusion was reached by them. Those Judges considered that the Act of Congress was simply intended to give effect to the stipulations of the supplementary treaty. Undoubtedly, as already said, that was one of its objects; but it is very evident, both from the circumstances under which it was passed and from its language, that it had a still further object. The construction which we give renders all its provisions consistent with each other. The whole purpose of the law to exclude Chinese laborers from the State would be defeated by any other construction.

The release of the petitioner must be denied, and he must be returned to the ship from which he was taken. And it is so ordered.

Supreme Court of California.

IN BANK.

[Filed June 29, 1883.]

No. 8260.

IN THE MATTER OF THE ESTATE OF HENRY E. ROBINSON, DECEASED.

TRUSTS FOR CHARITABLE USES. By Section 1313 of the Civil Code, the city and county of San Francisco is authorized to take a bequest in trust for charitable uses.

Appeal from Superior Court, San Francisco County.

D. P. Belknap for appellant.
C. J. Swift for the executor.
W. C. Burnett for respondent.

Ross, J., delivered the opinion of the Court:

Henry E. Robinson, by his will executed in the State of New York, bequeathed "to the Mayor, Common Council and Commonalty of the city of San Francisco, Cal., the sum of forty thousand dollars ($40,000), in trust, to be by them and their successors invested to the best advantages, the interest accruing thereon to be paid out from time to time to the destitute women and children of the city of San Francisco, Cal., in such a manner as such Mayor and Common Council may deem most proper and beneficial."

Mr. Robinson having died, and administration upon his estate having been had, the Court below, in the decree of distribution, directed the executor to pay out of the estate "to the Mayor and Board of Supervisors of the city and county of San Francisco the sum of forty thousand dollars in trust, to be by them and their successors in office invested to the best advantage, the interest accruing thereon to be paid out from time to time to the destitute women and children of the city of San Francisco, Cal., in such a manner as such Mayor and Board of Supervisors may deem most proper and beneficial." The appeal is from this portion of the de

cree.

We do not understand appellants to claim that the Court below erred in substituting the legal appellation of the municipality in question for that employed by the testator, but their claim is that the bequest itself is void because prohibited by statute.

In the estate of Hinckley, 58 Cal. 457, we held that trusts for perpetual charitable uses are not in conflict with the Constitution of the State, nor are they in conflict with those provisions of the Civil Code which prohibit perpetuities, and, further, that the perpetuities prohibited by the commor law do not include trusts for charitable uses. It is here contended, however, that by Section 1275 of the Civil Code, all corporations other than those formed for scientific, literary or solely educational purposes (within which exception the municipality in question does not come), are prohibited from taking under a will, unless expressly authorized by statute to take, and that the statute nowhere authorizes this corporation to take a bequest in trust for charitable uses.