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

error.

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

on appeals from those Courts. the points decided which was

A summary of the cases and

made by the late George S.

Boutwell has been quoted as a note to this section."

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.

§ 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 Ow 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

MEN.

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 reexamine 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