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$ 380. Wide Scope of decisions in Chinese Exclusion Cases.---It is difficult to make any complete summary of the cation, or for procuring the certificate prescribed. The United States Statutes do not now, nor have they ever, required or provided for the issue of any certificate in this country to resident Chinese, other than laborers, either to China or other foreign countries. There are many Chinese merchants in California who have been domiciled in the State from 20 to 35 years. Our own means of identification of such persons are greatly superior to those of any other country, even that of their nativity. To require such parties, every time they go to another country, to perform the required acts abroad, would be utterly impracticable, and practically tantamount, to an absolute refusal to permit their return.'
"The question has been ruled in the same way by the Treasury Department on many occasions; by Secretary Folger, March 14, 1884, Syn. T. D. 1884, 128; by Secretary Gresham, September 25, 1884, id. 400; by Secretary McCulloch, January 14, 1885, id. 1885, 26; by Assistant Seccretary French, December 2, 1884; by Assistant Secretary Maynard, November 7, 1888, and by Acting Secretary Batcheller, in the instructions of July 3, 1890, already given.
“No other rule in this respect was laid down by Congress in the act of September 13, 1888, 25 Stat. 476, c. 1015, nor in that of October 1, 1888, 25 Stat. 504, c. 1064, when the absolute exclusion of Chinese laborers was prescribed. Chinese Exclusion Case, 130 U. S. 581.
“We are of opinion that it was not intended that commercial domicile should be forfeited by temporary absence at the domicile of origin, nor that resident merchants should be subjected 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; and as we said in considering the application of this petitioner for the writ of certiorari, 141 U. S. 583, 588, we do not think that the decision of this court in Wan Shing vs. United States, 140 U. S. 424, ruled anything to the contrary of the conclusions herein expressed. As there pointed out, Wan Shing was not a merchant, but a laborer; he had acquired no commercial domicil in this country; and whatever domicil he had acquired, if any, he had forfeited by departure and absence for seven years with no apparent intention of returning. All the circumstances rendered it possible for him to procure and produce the specified certificate and required him to do so. We have no doubt of the correctness of the judgment then rendered and the reasons given in its support.
"As Lau (w Bew is, in our opinion, unlawfully restrained of his liberty, we reverse the judgment of the Circuit Court of Appeals for the Ninth Circuit, and, as required by $ 10 of the act of March 3, 1891, remand the cause to the Circuit Court of the United States for the Northern District of California, with directions to reverse its judgment and discharge the petitioner.”
In the case of Wan Shing vs. United States, 1891, 140 U. S. 424, p. 428, FIELD, J., referred to in Lau Ow Bew.
Chinese Exclusion cases in a volume of this nature, owing to the wide scope of the decisions. In nearly every case many
Mr. Justice Field after briefly referring to the provisions of the statutes as to the necessity of Chinamen having certificates in order to enter the United States, said: “The result of the legislation respecting the Chinese would seem to be this, that no laborers of that race shall hereafter be permitted to enter the United States, or even to return after having departed from the country, though they may have previously resided therein, and have left with a view of returning; and that all other persons of that race except those connected with the diplomatic service must produce a certificate from the authorities of the Chinese government, or of such other foreign government as they may at the time be subjects of, showing that they are not laborers, and have the permission of that government to enter the United States, which certificate is to be viséed by a representative of the government of the United States."
3e. THE SECOND CHINESE EXCLUSION CASE; DEPORTATION OF CHINA
Fong Yue Ting vs. United States, 149 U. S. 698, U. S. Supreme Ct. 1893, GRAY, J. Wang Quan vs. United States and Lee Joe vs. United States were argued and decided at the same time.
These are known as the Second Chinese Exclusion Cases, the first having been decided in 1889, and reported in 130 U. S. 581.
In this case the whole question of exclusion of aliens and treaty relations with China were under consideration. The Chinese exclusion act of 1892 is printed in the margin. The points decided are stated in the syllabus as follows:
“The right to exclude or expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign and independent nation.
“In the United States, the power to exclude or expel aliens is vested in the political departments of the national government, and is to be regulated by treaty or by act of congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department is authorized by treaty or by statute, or is required by the constitution, to intervene.
“The power of congress to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to remain in the country has been made by Congress to depend.
“Congress has the right to provide a system of registration and identification of any class of aliens within the country, and to take all proper means to carry out that system.
“The provisions of an act of Congress, passed in the exercise of its constitutional authority, must, if clear and explicit, be upheld by the courts, even in contravention of stipulations in an earlier treaty.
points of law were involved other than the relative effect of treaty stipulations and congressional statutes—the nature of
“Section 6 of the act of May 5, 1892, c. 60, requiring all Chinese laborers within the United States at the time of its passage, and who are entitled to remain in the United States,' to apply within a year to a collector of the internal revenue for a certificate of residence; and providing that any one who does not do so, or is afterwards found in the United States without such a certificate, shall be deemed and adjudged to be unlawfully in the United States, and may be arrested by any officer of the customs, or collector of internal revenue, or marshal, or deputy of either, and taken before a United States judge, who shall order him to be deported from the United States to his own country, unless he shall clearly establish to the satisfaction of the judge that by reason of accident, sickness, or other unavoidable cause, he was unable to procure his certificate, and ‘by at least one credible white witness' that he was a resident of the United States at the time of the passage of the act, is constitutional and valid."
A large part of the opinion of Mr. Justice GRAY, is devoted to the exposition of the sovereignty and nationality of the United States and the assertion that the “right to exclude or expel aliens, or any class of aliens, absolutely or upon certain conditions in war or in peace' is an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence and its welfare."
The opinion then states that this reduces the controversy before the court to the single question of whether the power inherent in the Government in this respect has been properly exercised and expressed in the Chinese exclusion cases according to the Constitution. The Court sustained the laws. The opinion is lengthy and only a few extracts can be given from pp. 713 et seq. Mr. Justice GRAY says:
“The power to exclude or expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene.
“In Nishimura Ekiu's case, it was adjudged that, although Congress might, if it saw fit, authorize the courts to investigate and ascertain the facts upon which the alien's right to land was made by statutes to depend, yet Congress might intrust the final determination of those facts to an executive officer, and that, if it did so, his order was due process of law, and no other tribunal, unless expressly authorized by law to do so, was at liberty to reëxamine the evidence on which he acted, or to controvert its sufficiency. 142 U. S. 660.
“The power to exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power. “The power of Congress, therefore, to expel, like the power to ex
the government of the United States, the extent of the power of the Federal Government to regulate commerce and immi
clude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by Congress to depend.
“Congress having the right, as it may see fit, to expel aliens of a particular class, or to permit them to remain, has undoubtedly the right to provide a system of registration and identification of the members of that class within the country, and to take all proper means to carry out the system which it provides.
" It is no new thing for the law-making power, acting either through treaties made by the President and Senate, or by the more common method of acts of Congress, to submit the decision of questions, not necessarily of judicial cognizance, either to the final determination of executive officers, or to the decision of such officers in the first instance, with such opportunity for judicial review of their action as Congress may see fit to authorize or permit.
“ For instance, the surrender, pursuant to treaty stipulations, of persons residing or found in this country, and charged with crime in another, may be made by the executive authority of the President alone, when no provision has been made by treaty or by statute for examination of the case by a judge or magistrate. Such was the case of Jonathan Robbins, under article 27 of the Treaty with Great Britain of 1794, in which the President's power in this regard was demonstrated in the masterly and conclusive arguments of John Marshall in the House of Representatives. 8 Stat. 129; Wharton's State Trials, 392; Bee, 286; 5 Wheat. appx. 3. But provision may be made, as it has been by later acts of Congress, for a preliminary examination before a judge or commissioner, and in such case the sufficiency of the evidence on which he acts cannot be reviewed by any other tribunal, except as permitted by statute. Act of August 12, 1848, c. 167, 9 Stat. 302, Rev. Stat. $$ 52705274; Ex parte Metzgar, 5 How. 176; Benson vs. McMahon, 127 U. S. 457; In re Oteiza, 136 U. S. 330."
The opinion then discusses at length the Chinese treaties of 1868 and 1880 and the various decisions in regard to these treaties; and as to the effect of statutes and treaties, the court says (pp. 720-721):
“In our jurisprudence, it is well settled that the provisions of an act of Congress, passed in the exercise of its constitutional authority, on this, as on any other subject, if clear and explicit, must be upheld by the courts, even in contravention of express stipulations in an earlier treaty. As was said by this court in Chae Chan Ping's case, following previous decisions: · The treaties were of no greater legal obligation than the act of Congress. By the constitution, laws made in pursuance thereof and treaties made under the authority of the United States are both declared to be the supreme law of the land, and no paramount authority is given to one or the other. A treaty, it is true, is in its nature a contract between nations, and is often merely promissory in its character,
gration, the interpretation of statutes, the rights of aliens regardless of treaty stipulations, the nature of citizenship of
requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force, and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sovereign will must control.' 'So far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal.' 130 U. S. 600. See also Foster vs. Neilson, 2 Pet. 253, 314; Edye vs. Robertson, 112 U. S. 580, 597-599; Whitney vs. Robertson, 124 U. S. 190."
"Yet the court unanimously held that the statute of 1888 was constitutional, and that the collector in refusing his permission to land was unlawful; and, after the passages already quoted, said: “The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of these sovereign powers delegated by the Constitution, the right to its exercise at any time when in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the object of barter or contract. Whatever license, therefore, Chinese laborers may have obtained, previous to the act of October 1, 1888, to return to the United States, after their departure, is held at the will of the government, revocable at any time, at its pleasure.' “The rights and interests created by a treaty, which have become so vested that its expiration or abrogation will not destroy or impair them, are such as are connected with and lie in property, capable of sale and transfer or other disposition, not such as are personal and untransferable in their character.' *But far different is this case, where a continued suspension of the exercise of a government power is insisted upon as a right, because, by the favor and consent of the government, it has not heretofore been exerted with respect to the appellant or to the class to which he belongs. Between property rights not affected by the termination or abrogation of a treaty and expectations of benefits from the continuance of existing legislation, there is as wide a difference as between realization and hopes.' 130 U. S. 609, 610."
And the opinion concludes on p. 732, with the following decision:
“Upon careful consideration of the subject, the only conclusion which appears to us to be consistent with the principles of international law, with the constitution and laws of the United States, and with the previous decisions of this court, is that in each of these cases the judgment