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gether, and that only where the two are absolutely irreconcilable will the court presume that Congress intended to vio

formly refuse to give to statutes a retrospective operation whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room for doubt that such was the intention of the legislature."

In re Thomas Baldwin, U. S. Cir. Ct. Cal. 1886, 11 Sawyer, 533, SAWYER and SABIN, JJ. (Affirmed sub nomine Baldwin vs. Franks, U. S. Sup. Ct. 1887, 120 U. S. 678, WAITE, Ch. J.)

The two Judges at the Circuit Court differing, the matter was certified to the Supreme Court and decided in favor of petitioner; it was a habeas proceeding and the question was whether or not Congress had provided for the punishment of persons depriving Chinese subjects of immunities and rights guaranteed to them by the treaty of 1880. Sections 5519, 5508 and 5336 U. S. Rev. Stat. in regard to conspiracies within states were involved. It was held that section 5519 is unconstitutional as a provision for the punishment of a conspiracy within a State to deprive an alien of rights guaranteed to him thereunder by treaty, but as to conspiring was not decided.

In re Chung Toy Ho, U. S. Dist. Ct. Ore. 1890, 14 Sawyer, 531, DEADY, J. It was held in this case that Chinese wives and children of Chinamen here could not be excluded under the exclusion acts:

"It ought not to be lightly or without cogent reason concluded, that Congress, in the passage of the act of 1884, professedly 'to execute' the treaty of 1880, really intended to limit or restrain its operation in this respect. The treaty (art. 2) declares that a Chinese merchant may bring his 'body and household servants' with him into the country, and they 'shall be accorded all the rights, privileges, immunities and exemptions which are accorded to the citizens and subjects of the most favored nations.' "It is impossible to believe that parties to this treaty, which permits the servants of a merchant to enter the country with him, ever contemplated the exclusion of his wife and children. And the reason why they are not expressly mentioned as entitled to such admission is found in the fact that the domicil of the wife and children is that of the husband and father; and that the concessions to the merchant of the right to enter the United States and dwell therein at pleasure, fairly construed, does include his wife and minor children; particularly when it is remembered that such concession is accompanied with a declaration to the effect that in such entry and sojourn in the country, he shall be entitled to all the rights and privileges of a subject of Great Britain or a citizen of France."

"My conclusion is, that under the treaty and statute taken together, a Chinese merchant, who is entitled to come into and dwell in the United States, is thereby entitled to bring with him and have with him, his wife and children. The company of the one and the care and custody of the other are his by natural right, and he ought not to be deprived of either, unless the intention of Congress to do so is clear and unmistakable."

late treaty stipulations with foreign powers. There are more than a hundred cases involving the construction of stipula

The Chinese women detained were discharged and permitted to enter the port.

In re Panzara, U. S. D. C. E. D. N. Y. 1892, 51 Fed. Rep. 275, BENEDICT, J. This is not a Chinese case but related to an Italian excluded under the alien immigration law. On proof that he had resided here held that an alien domiciled within the United States although not naturalized was not an “alien immigrant” within the meaning of the statute and the petitioner was allowed to enter.

Lem Hing Dun vs. United States, U. S. Cir. Ct. App. 9 Cir. 1892, 7 U. S. App. 31, HANDFORD, J. (See also Gee Fook Sing v. United States, 7 U. S. App. 27.) On appeal from Chinese Exclusion cases the Circuit Court of Appeals will not reverse upon questions of fact alone.

United States vs. Ah Fawn, U. S. Dist. Ct. Cal. 1893, 57 Fed. Rep. 591, Ross, J. Held that the words of exclusion in the treaty of 1880 and statutes (Gray Law, 1880) were sufficient to exclude "highbinders" and gamblers.

United States vs. Yong Yew, U. S. Dist. Ct. Missouri, 1897, 83 Fed. Rep. 832, ADAMS, J. This was a proceeding by the government to obtain an order for the deportation of Yong Yew on the grounds that he was unlawfully in the country under the various exclusion acts.

He claimed that he was not included in the term Chinese laborer. The court referred at length to the various laws in regard to exclusion and deportation of Chinese from the United States and of the provisions of the treaties of 1881 and 1894, and also the proclamations putting it into effect.

In that respect the opinion says (pp. 835–836):

"To illustrate and emphasize the general policy of the laws of the United States, reference may be appropriately made to the recent treaty between the United States and China promulgated December 8, 1894. Article 1 provides that for a period of 10 years, beginning with the date of the exchange of the ratifications of this convention, the coming, except under the conditions hereinafter specified (which are immaterial for the purpose of this case), of Chinese laborers to the United States, shall be absolutely prohibited. Section 5 of this treaty recites the legislation of congress of the United States found in the acts of May 5, 1892, and November 3, 1893, already referred to, and contains an agreement on the part of the Chinese government to their strict enforcement.

"From the foregoing provisions of law, it is manifest that, under the sanction and with the approval of the Chinese government, the United States has devised and put into operation an internal policy to effectually prevent the immigration of Chinese laborers into this country, and to effectually prevent Chinese laborers from remaining in this country in the event they improperly or unlawfully come here.

"Concurrent history, of which the court takes judicial cognizance, teaches that the mischief sought to be remedied by this legislation was

tions in our treaties with China, and of statutes, apparently and actually in conflict therewith, in regard to the prohibition

to prevent the demoralizing effect upon American laborers of competition with Chinese laborers, and also to prevent the demoralizing effect of Oriental civilization, habits, customs, and morals upon the people of this country. In construing such legislation, it is clear that I must have constantly in mind the mischief sought to be remedied, and the object sought to be accomplished. A résumé of the legislation already detailed at some length, so far as applicable to the case under inquiry, is as follows: That for a period extending at least 10 years after the 7th day of December, 1894, the date of the exchange of ratifications of the last-mentioned treaty by the two governments of the United States and China, no Chinese laborer is permitted to come into this country, or, if perchance he may so come, to remain within the territorial limits of the United States. This prohibition is limited to laborers. A Chinese 'merchant,' if he be such within the definition of that term as found in the act of November 3, 1893, supra, is permitted to come into this country and remain here; and a certificate of identity, containing among other things, the nature, character, and estimated value of the business carried on by him, is made prima facie evidence of his right to enter the territory of the United States as a merchant. The method of enforcing this legislation is a trial before a justice, judge, or commissioner of the United States, and, upon an adjudication that any Chinese person is not lawfully entitled to be or remain in the United States, a removal of such person from the United States to the country from whence he came.

66 Respondent claims that, within the meaning of the treaties and laws aforesaid, he was a merchant in China at the time of his departure for the United States, and has produced the certificate of identity already referred to, and claims it to be his protection."

The court held that he was not a merchant but really was a laborer. And there also in this case was a question whether or not he was properly identified as being the person named in the certificate.

The court sustained the application for an order of deportation.

In re Tom Yum, U. S. Dist. Ct. Cal. 1894, 64 Fed. Rep. 485, MORROW, J. Held, that although the act of 1894 made the decision of the Emigration Commission final as to the exclusion of Chinese, that whereever a man claimed his right to enter on the ground of citizenship, he could not be deprived of the right to have his citizenship determined by the courts, and that a writ of habeas corpus was the proper remedy; no treaty rights were involved in this case, as the petitioner claimed on the ground of citizenship.

Lew Jim vs. United States, U. S. Cir. Ct. App. 9 Cir. 1895, 29 U. S. App. 513, MCKENNA, J. Held, on the facts, that a Chinaman was not a merchant within the meaning of the act of 1893.

See also as to the mining statutes and the rights of Chinese to locate claims.

Chapman vs. Toy Long, U. S. Cir. Ct. Ore. 1876, 4 Sawyer, 28, DEADY, J.

and regulation of Chinese immigration. Many of them are referred to in the notes to this, and the preceding sections;

Section 2319 of U. S. Rev. Stat. confines the right to purchase mines on United States lands to United States citizens and those who have declared their intention to become such, Chinamen not being allowed to be naturalized in the United States. Held, that they have no right to locate and purchase mines and the defendants were enjoined from locating mining claims. The court, however, on page 36 raised some question as to whether or not the statute was not a violation of treaty.

5 MR. BOUTWELL'S VIEWS AND SUMMARY.

"By the second and third articles of a treaty between the United States and the Emperor of China, concluded November 17, 1880, it was agreed in substance that the Chinese subjects of certain specified classes who were then in the United States, should be allowed to go and come of their own free will and accord, and be accorded all the rights, privileges, immunities and exemptions which are accorded to citizens and subjects of the most favored nation.'

"Sec. 404. There was also a further stipulation that if laborers of any other class than those enumerated, then residing in the territory of the United States, should meet with ill treatment at the hands of any other persons, the government of the United States will exert all its power to devise measures for their protection, and to secure to them the same rights, privileges, immunities and exemptions as may be enjoyed by the citizens and subjects of the most favored nation, to which they are entitled by treaty.'

"Sec. 405. The Court held that these stipulations did not act of their own vigor, as parts of the treaty, and that in their nature they could not be observed and enforced by the Court unless Congress provided by law for their execution.

"Sec. 406. Attention was called to three sections of the Revised Statutes (5336, 5508 and 5519). The Court found that those sections did not relate to aliens, and that of course they were inapplicable to Sing Lee and others, his associates, who were Chinese aliens. The word 'citizen' as used in the statutes cited, was limited to citizens of the United States, and of the respective States as defined and guaranteed by the fourteenth amendment of the Constitution of the United States.

"Sec. 407. The Court recognized the authority of Congress to pass laws by which alien Chinese of the class referred to in the treaty would have been protected against interference, but as Congress had neglected to act in the premises, the Court was unable to furnish the protection contemplated by the treaty.

"Sec. 408. Other questions were raised in the case known as 'The Chinese Exclusion Case' (130 U. S. 581). Subsequent to the decision in the case of Baldwin against Franks, Congress passed an act by which Chinese laborers were excluded from the United States. It was contended at the bar that inasmuch as the act of exclusion was contrary to

in some cases extracts have been given from the decisions; the investigation of any new case, however, which may arise.

the terms of the treaty, the law was therefore unconstitutional. The Court held, however, that the laws of the United States, and treaties were alike the supreme law of the land, but that in all cases the last expression of the sovereign will must control. Mr. Justice Field, in the opinion which he gave, cited the act of Congress of July 7, 1798, by which the stipulations of.the treaties theretofore concluded with France were abrogated.

"Sec. 409. From these two cases, these propositions of Constitutional law may be deduced:

“1. Where the provisions of a treaty secure specific rights to individuals, those rights can be enforced by the Courts without the aid of the Legislative branch of the government.

"2. Where a treaty contains a declaration that immunities and privileges shall be secured to aliens, the means of securing such privileges and immunities must be provided by the Legislative branch of the government, or otherwise the Courts are powerless to act in the premises.

"3. That the power of the Legislative Department to exclude aliens, for example, from the United States is an incident of sovereignty which cannot be surrendered by the treaty-making power.

"4. That the Legislative Department of the government may annul a treaty by a legislative act.

"Sec. 410. Several cases of importance have been considered and adjudged by the Supreme Court which had their origin in the legislation of Congress designed first, to limit the migration of Chinese into the United States, and then, secondly, to secure the deportation of those persons of Chinese origin and birth who might not comply with the requirements of a statute enacted in 1892, and entitled, 'An act to prohibit the coming of Chinese into the United States.' 27 Stat. at L. 25.

"The important cases are these, viz.:

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Chy Lung vs. Freeman, 92 U. S. 275.

"Chew Heong vs. The United States, 112 U. S. 536. "Yick Wo vs. Hopkins, 118 U. S. 356.

"United States vs. Jung Ah Lung, 124 U. S. 621. "Chae Chan Ping vs. The United States, 130 U. S. 581. "Nishimura Ekiu vs. The United States, 142 U. S. 651. 66 Fong Yue Ting vs. The United States, 149 U. S. 698. "The views of the court are so fully set forth in the opinion rendered in the case last named that a critical examination of the preceding cases is unnecessary.

"In the case of Chy Lung, the court held that a law of California which exacted a bond or commutation in money as a condition precedent to the landing of classes of persons enumerated, among which was a class termed 'lewd and debauched women,' was in derogation of the power of Congress to regulate commerce with foreign nations.

"The case of Yick Wo is treated under the fourteenth amendment. "Sec. 411. The main point considered in the case of Chae Chan Ping

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