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."

เ

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

the United States, as well as many other points, are discussed and decided.

of the Circuit Court, dismissing the writ of habeas corpus, is right and must be affirmed." Mr. Justice BREWER dissented.

3f. OTHER POINTS INVOLved.

The decision in the case of Fong Yue Ting vs. United States (Second Chinese Exclusion Case), 149 U. S. 698, GRAY, J., just above cited from was so emphatic and far-reaching that it forever settled the question that Congress can exclude and expel aliens of any nation and that it can do so practically without regard to treaty stipulations, leaving that element for adjustment by the Executive Department of the Government.

Other questions have, however, arisen in regard to the enforcement of the exclusion statutes and the Supreme Court has been called upon to construe them in regard to many of their details.

3g. DELEGATION OF AUTHORITY BY CONGRESS.

Lem Moon Sing vs. United States, 1895, 158 U. S. 538, HARLAN, J. In this case the Supreme Court sustained the constitutionality of the act of 1894, declaring that the decision of the immigration or customs officers as to the right of Chinese to enter the United States is final unless reversed by the Secretary of the Treasury, and that the court cannot review it. The opinion says, on p. 547:

"The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications. Is a statute passed in execution of that power any less applicable to an alien, who has acquired a commercial domicil within the United States, but who, having voluntarily left the country, although for a temporary purpose, claims the right under some law or treaty to re-enter it? We think not. The words of the statute are broad, and include every case' of an alien, at least every Chinese alien, who, at the time of its passage, is out of this country, no matter for what reason, and seeks to come back. He is none the less an alien because of his having a commercial domicil in this country. While he lawfully remains here he is entitled to the benefit of the guaranties of life, liberty, and property, secured by the Constitution to all persons, of whatever race, within the jurisdiction of the United States. His personal rights when he is in this country and such of his property as is here during his absence, are as fully protected by the supreme law of the land as if he were a native or naturalized citizen of the United States. But when he has voluntarily gone from the country, and is beyond its jurisdiction, being an alien, he cannot reenter the United States in violation of the will of the government as expressed in enactments of the law-making power. He cannot, by reason of his domicil in the United States, for purposes of business, demand

§ 381. Summary of decisions in cases involving congressional legislation as to Chinese immigration. The num

that his claim to re-enter this country by virtue of some statute or treaty, shall be determined ultimately, if not in the first instance, by the courts of the United States, rather than exclusively and finally, in every instance, by executive officers charged by an act of Congress with the duty of executing the will of the political department of the government in respect of a matter wholly political in its character. He left the country subject to the exercise by Congress of every power it possessed under the Constitution."

It is well to note, however, the following qualification on p. 549:

"To avoid misapprehension, it is proper to say that the court does not now express any opinion upon the question whether, under the facts stated in the application for the writ of habeas corpus, Lem Moon Sing was entitled, of right, under some law or treaty, to re-enter the United States. We mean only to decide that the question has been constitutionally committed by Congress to named officers of the executive department of the government for final determination."

3h. RIGHT OF JURY TRIAL.

Wong Wing vs. United States, 1896, 163 U. S. 228, SHIRAS, J.

In this case the Supreme Court held that aliens within the United States were entitled to the protection of the Fifth Amendment and that Chinese could not be imprisoned under the act of May 5, 1892, by a commissioner without trial by jury. On page 237 the opinion says:

"Our views upon the question thus specifically pressed upon our attention, may be briefly expressed thus: We regard it as settled by our previous decisions that the United States can, as a matter of public policy, by Congressional enactment forbid aliens or classes of aliens from coming within their borders, and expel aliens or classes of aliens from their territory, and can, in order to make effectual such decree of exclusion or expulsion, devolve the power and duty of identifying and arresting the persons included in such decree, and causing their deportation, upon executive or subordinate officials.

"But when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor or by confiscating their property, we think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused.

"No limits can be put by the courts upon the power of Congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land and unlawfully remain therein. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation, unless provision were made that the fact of guilt should first be established by a judicial trial. It is not consistent with the theory of our government that the legislation should, after having defined an offense

erous cases cited in the notes to this and the preceding sections on this subject show that the important legal

as an infamous crime, find the fact of guilt and adjudge the punishment by one of its own agents."

31. THE CHINESE BABY CASE; CITIZENSHIP BY BIRTH.

United States vs. Wong Kim Ark, 169 U. S. 649, U. S. Sup. Ct. 1898, GRAY, J.

This case involved the citizenship of a Chinaman. It is sometimes referred to as the "Chinese Baby Case" as Wong Kim Ark claimed citizenship under the Fourteenth Amendment because he was born here, and that notwithstanding the fact of his parentage, he could not be deprived of his citizenship, even though his parents could not be naturalized. After a visit to China he was detained on his return to the United States under the exclusion statutes and had he not been a citizen he would have been excluded. The syllabus says (p. 649): “A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.'"

FULLER, Ch. J., wrote a dissenting opinion in which HARLAN, J., concurred. The two opinions (about eighty pages in all), contain an exhaustive review of the law of citizenship in the United States especially as affected by the Fourteenth Amendment. All of the cases are reviewed, both American and English.

After referring to the general principles involved, the relations of China and this country and the effect of the exclusion, and other, acts affecting Chinese are discussed; the opinion closes as follows (699, 705):

"The acts of Congress, known as the Chinese Exclusion Acts, the earliest of which was passed some fourteen years after the adoption of the Constitutional Amendment, cannot control its meaning, or impair its effect, but must be construed and executed in subordination to its provisions. And the right of the United States, as exercised by and under these acts, to exclude or to expel from the country persons of the Chinese race, born in China, and continuing to be subjects of the Emperor of China, though having acquired a commercial domicil in the United States, has been upheld by this court, for reasons applicable to all aliens alike, and inapplicable to citizens, of whatever race or color. Chae Chan Ping vs. United States, 130 U. S. 581; Nishimura Ekiu vs. United States, 142 U. S. 651; Fong Yue Ting vs. United States, 149 U. S. 698; Lem Moon Sing vs. United States, 158 U. S. 538; Wong Wing vs. United States, 163 U. S. 228.

"In Fong Yue Ting vs. United States, the right of the United States to