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concerned, as they were wholly within the domain of Congress, which must assume all responsibility therefor.

United States of which he could not be deprived by a subsequent act of Congress.

“The history of Chinese immigration into the United States stated, together with a review of the treaties and legislation affecting it.”

30. THE NON-DESIRABLE ALIEN EXCLUSION CASE. Ekiu, Nishimura vs. United States, 142 U. S. 651, U. S. Sup. Ct. 1891, GRAY, J.

This case does not involve treaty stipulations but simply the right under international law, municipal law and constitutional law of the United States to establish rules for immigration.

The act of March 3, 1891, 26 U. S. Stat. at L. p. 1084, which excludes certain classes of undesirable, diseased, criminal and pauper immigrants regardless of nationality from admission to the United States was sustained.

In speaking of the right of the United States to regulate immigration the court says (pages 659-660):

" It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Vattel, lib. 2, $$ 94, 100; 1 Phillimore (3d ed.) c. 10, $ 220. In the United States this power is vested in the national gov. ernment, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the government, and may be exercised either through treaties made by the President and Senate, or through statutes enacted by Congress, upon whom the Constitution has conferred power to regulate commerce with foreign nations, including the entrance of ships, the importation of goods and the bringing of persons into the ports of the United States; to establish a uniform rule of naturalization; to declare war, and to provide and maintain armies and navies; and to make all laws which may be necessary and proper for carrying into effect these powers and all other powers vested by the Constitution in the government of the United States or in any department or officer thereof. Constitution, art. 1, sec. 8; Head Money Cases, 112 U. S.580; Chae Chan Ping vs. United States, 130 U. S. 581, 604-609.

“The supervision of the admission of aliens into the United States may be entrusted by Congress either to the Department of State, having the general management of foreign relations, or to the Department of the Treasury, charged with the enforcement of the laws regulating foreign commerce; and Congress has often passed acts forbidding the immigration of particular classes of foreigners, and has committed the execution of these acts to the Secretary of the Treasury, to collectors of customs and to inspectors acting under their authority. See, for instance, acts of March 3, 1875, c. 141, 18 Stat. 477; August 3, 1882, c. 376;

A partial list of Chinese Exclusion cases, deciding numerous minor or collateral questions arising from the conflict of

22 Stat. 214; February 23, 1887, c. 220, 24 Stat. 414; October 19, 1888, c. 1210; 25 Stat. 566; as well as the various acts for the exclusion of the Chinese.

“An alien immigrant, prevented from landing by an such officer claiming authority to do so under an act of Congress, and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful. Chew Heong vs. United States, 112 U. S. 536; United States vs. Jung Ah Lung, 124 U. S. 621; Wan Shing vs. United States, 140 U.S. 424; Lau Ow Bew, Petitioner, 141 U. S. 583. And Congress may, if it sees fit, as in the statutes in question in United States vs. Jung Ah Lung, just cited, authorize the courts to investigate and ascertain the facts on which the right to land depends. But, on the other hand, the final determination of those facts may be entrusted by Congress to executive officers; and in such case, as in all others, in which a statute gives a discretionary power to an officer, to be exercised by him upon his own opinion of certain facts, he is made the sole and exclusive judge of the existence of those facts, and no other tribunal, unless expressly authorized by law to do so, is at liberty to re-examine or controvert the sufficiency of the evidence on which he acted. Martin vs. Mott, 12 Wheat. 19, 31; Philadelphia & Trenton Railroad vs. Stimpson, 14 Pet. 448, 458; Benson vs. McMahon, 127 U. S. 457; In re Oteiza, 136 U. S. 330. It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law. Murray vs. Hoboken Co., 18 How. 272; Hilton vs. Merritt, 110 U. S. 97."

3d. THE CHINESE MERCHANT'S CASE. In re Lau ow Bew, 1891, 141 U. S. 583, FULLER, Ch. J.

This case which was fully decided under the title of Lau Ow Bew vs. United States, 144 U. S. 47, (see p. 100, post) first came before the Supreme Court on an application for a writ of certiorari. The points involved were to some extent referred to in the opinion on granting the application.

The question before the court on the application is stated in the syllabus as follows: Only questions of gravity and importance should be certified


this court by the Circuit Court of Appeals, under the provisions of the act of March 3, 1891, c. 517, sec. 6.

" Whether the Chinese restriction acts in the light of the treaties between the United States and China, apply to a Chinese merchant, domiciled in the United States, who temporarily leaves the country for

statutes and treaties, will be found in the notes to this and the following sections; they are mostly decisions of the District

purposes of business or pleasure, animo revertendi, is such a question of gravity and importance.

Wan Shing vs. United States, 140 U. S. 424, explained.”

In discussing the question of whether or not the point should be certified, the opinion says (pp. 587–589) :

“ It is evident that it is solely questions of gravity and importance that the Circuit Courts of Appeals should certify to us for instruction; and that it is only when such questions are involved that the power of this court to require a case in which the judgment and decree of the Court of Appeals is made final, to the certified, can be properly invoked. The inquiry upon this application, therefore, is whether the matter is of sufficient importance in itself, and sufficiently open to controversy, to make it the duty of this court to issue the writ applied for in order that the case may be reviewed, and determined as if brought here on appeal or writ of error.

“Assuming, for the purposes of the present motion, that the Court of Appeals had jurisdiction, it will be perceived from what has been stated that the disposition of the case involves the application of the Chinese restriction acts to Chinese merchants domiciled in the United States who temporarily leave the country for purposes of business or pleasure, animo revertendi, in the light of the treaties between the government of the United States and that of China.

“By the treaty between the United States and China of 1868, all Chinese subjects were guaranteed the right, without conditions or restrictions, to come, remain in, and leave the United States, and to enjoy all the privileges, immunities and exemptions enjoyed by the citizens of the most favored nation. 16 Stat. 740, art. VI. The treaty of November 17, 1880, put no limitation upon this right, so far as Chinese other than laborers were concerned. 22 Stat. 826. To what extent was any limitation intended by the acts of 1882 and 1884, drawn into consideration here, bearing in mind the general rule that repeals by implication are not favored ? The sixth section of the act of 1882, as amended by the act of 1884, 22 Stat. 58, 23 Stat. 115, provided that “every Chinese person, other than a laborer, who may be entitled by said treaty or this act to come within the United States, and who shall be about to come to the United States, shall obtain the permission of and be identified as so entitled,' and in the mode stated, and the certificate therein provided for is made the sole evidence, as to those to whom the section is applicable, to establish a right of entry into the United States. Manifestly, the question whether this section should be construed, taken with the treaties, to apply to Chinese merchants already domiciled in the United States, and to whom no intention of voluntarily surrendering that domicil can be imputed, is one of great gravity and importance.

“ The status of domicil in respect of natives of one country domiciled in another is a matter of international concern, and the acts of Congress are to be considered, in'view of general and settled principles upon that L. of C.


and Circuit Courts of the United States for the Circuits including the States on the Pacific Slope, and of the Supreme Court

subject, in arriving at a conclusion as to the operation upon the treaties with China, designed by Congress in those enactments. Was it intended that commercial domicil should be forfeited by temporary absence at the domicil of origin, and to subject resident merchants to loss of rights guaranteed by treaty if they failed to produce from the domicil of origin that evidence which residence in the domicil of choice may have rendered it difficult, if not impossible, to obtain ? We refrain from particular examination of the point involved, and refer to it only so far as necessary to indicate its importance.

“In the case of Wan Shing vs. United States, 140 U. S. 424, Wan Shing came to this country at the age of sixteen, remained two years, and then returned to China, where he passed seven years. Upon his own evidence he appeared to be not a merchant, but a laborer, and not to have gained a commercial domicil in this country; but if he had, his departure at the age of eighteen, and his absence for seven years, without any apparent intention of returning, brought him, in our judgment, within•the category of those required to produce the certificate of identification of the government of his origin or of which he was the subject. Upon that state of facts, the precise inquiry arising on this petition did not present itself for definitive disposition, and we do not feel justified under the circumstances in declining to afford the opportunity for its full discussion, as now specifically pressed upon our attention.

“While, therefore, this branch of our jurisdiction should be exercised sparingly and with great caution, we are of opinion that the grounds of this application are sufficient to call for our interposition.

“Let the writ of certiorari issue as prayed.”

Lau Ow Bew vs. United States, 144 U. S. 47, U. S. Sup. Ct. 1892, FULLER, Ch. J.

This was a Chinese exclusion case in which after the court had granted a writ of certiorari to issue as reported in In re Lau Ow Bew, 141 U. S. 583, it decided upon the merits as stated in the syllabus as follows:

“By section 6 of the act of March 3, 1891, establishing Circuit Courts of Appeals, 26 Stat. 828, c. 517, the appellate jurisdiction not vested in this court was vested in the court created by that act, and the entire jurisdiction was distributed.

“ The words 'unless otherwise provided by law' in the clause in that section which provides that the Circuit Courts shall exercise appellate jurisdiction .in all cases other than those provided for in the preceding section of this act, unless otherwise provided for by law' were inserted in order to guard against implied repeals, and are not to be construed as referring to prior laws only.

“It is competent for this court by certiorari to direct any case to be certified by the Circuit Court of Appeals, whether its advice is requested or not, except those which may be brought here by appeal or writ of


“Section 6 of the Chinese Restriction Act of May 6, 1882, 22 Stat. 58,

on appeals from those Courts. A summary of the cases and the points decided which was made by the late George S. Boutwell has been quoted as a note to this section.5

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c. 126, as amended by the act of July 5, 1884, 23 Stat. 115, c. 220, does not apply to Chinese merchants, already domiciled in the United States, who, having left the country for temporary purposes, animo revertendi, seek to re-enter it on their return to their business and their homes."

The first part of the opinion is devoted to the question of jurisdiction. The balance of the opinion (pp. 58 to 64), is a résumé of Chinese exclusion cases and interpretation of the various acts of congress and their construction. In discussing the statutes as to the exclusion of Chinese, the Court says (pp. 61-64):

“By general international law, foreigners who have become domiciled in a country other than their own, acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the citizens of that country, and no restriction upon the footing upon which such persons stand by reason of their domicil of choice, or commercial domicil, is to be presumed; while by our treaty with China, Chinese merchants domiciled in the United States, have, and are entitled to exercise, the right of free egress and ingress, and all other rights, privileges and immunities enjoyed in this country by the citizens or subjects of the most favored nation.'

“There can be no doubt, as was said by Mr. Justice HARLAN, speaking for the court in Chew Heong vs. United States, 112 U. S. 536, 549, that, (since the purpose avowed in the act was to faithfully execute the treaty, any interpretation of its provisions would be rejected which imputed to Congress an intention to disregard the plighted faith of the Government, and, consequently, the court ought, if possible, to adopt that construction which recognized and saved rights secured by the treaty.'

“ Tested by this rule it is impossible to hold that this section was intended to prohibit or prevent Chinese merchants, having a commercial domicile here, from leaving the country for temporary purposes and then returning to and re-entering it, and yet such would be its effect, if construed as contended for on behalf of appellee.

“In the case of Ah Ping, 23 Fed. Rep. 329, 330, it was held that the section did not apply to Chinese subjects, residents of the United States, departing for temporary purposes of business or pleasure; and the late Judge SAWYER delivering the opinion of the court said: “As to those domiciled in foreign countries, there is no ready means in this country for their identification. In the countries whence they propose to come, the means of ascertaining the facts are at hand; hence the provision. As to those resident or domiciled in this country, we have ourselves the best means of identification; while as to many of them, even in their native country, and much less when they are temporarily in other foreign countries, there is no practicable means of either identifi

For note 4 see pp. 114, et seq.
For note 5 see pp. 120, et seq.

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