THE UNIVERSITY OF ILLINOIS LIBRARY 325 . \ But f Return this book on or before the Latest Date stamped below. A charge is made on all overdue books. TT , T T ., U. of I. Library JflN 20 194(1 m 2 7 1940 Mtif 1 1 ib4i| DEC -l „r, - 1 mod XZ •*•?' 19S' J DEC "2 195 MRY u JAN 2& # DEC 3 0 1983 17625-S A TREATISE ON THE LAWS GOVERNING THE Exclusion and Expulsion of Aliens IN THE UNITED STATES BY CLEMENT L. BOUVE Of the District of Columbia Bar Member of the American Society of International Lavr Washington, D. C. JOHN BYRNE & CO. 1912 Copyright, 1912 By CLEMENT L. BOUVfe 3 ^ 5 . | but TO MY FATHER 310531 Digitized by the Internet Archive in 2017 with funding from University of Illinois Urbana-Champaign Alternates https://archive.org/details/treatiseonlawsgoOObouv PREFACE The purpose of this book is to present the general result of the decisions of the Federal Courts which have been rendered in cases involving the right of foreigners to enter or remain in the United States under the provisions of the statutes passed dealing with their exclusion and expulsion from this country during the past thirty years. The author has attempted to show that, in the United States, the right of foreigners to enter or remain cannot be ade- quately considered as a purely administrative question, or one the solution of which lies in the application of the accepted precepts of international law governing the subject; that the acts of Congress the purpose of which was to regulate the admission and residence of aliens in the United States, together with the judicial decisions by which they have been enforced, form a distinct and im- portant branch of our municipal law. That this is so ap- pears not only from the abundant list of cases adjudicated since the early days of Congressional legislation on immi- gration, but from a casual glance at the decisions which are being handed down to-day in the Circuit and District Courts. Although the work is primarily designed for the use of those engaged in practice before the courts, or in De- partmental practice, whether at ports of entry or before the Bureau of Immigration at Washington, it is thought that it may contain matter of value to those whose office demands from time to time the consideration of questions concerning the exclusion and expulsion of aliens from the broad standpoint of the law of nations. The compilation of foreign laws contained in the ap- pendix was to a large extent made simple by the assistance provided by M. Martini’s excellent work, L’Expulsion des Etrangers, in which many of these laws, particularly those vi Preface. of the European countries, were carefully compiled, and appear here translated from the French. For the presence in the appendix of the laws or sum- maries of laws, consisting mainly of those of Great Britain and her Colonies, the author acknowledges his grateful indebtedness to Mr. Daniel J. Keefe, Commissioner Gen- eral of Immigration, the officers of his Law Division, and particularly to Mr. W. W. Husband, formerly with the Immigration Commission, and now Chief of the Contract Labor Division of the Department of Commerce and Labor. And it is with a sense of deep gratitude that he acknowl- edges the encouragement and painstaking assistance of Mr. A. Warner Parker, law officer of the Bureau of Im- migration, during the greater period of the preparation of this work, to whose suggestions, criticisms, and careful revision of many portions thereof whatever merit it may be found to contain will be in large part due. Washington, Sept. 12, 1912. TABLE OF CONTENTS. Page. Table of cases cited ix CHAPTER I. Power and Methods of Exclusion and Expulsion 1 CHAPTER II. The Existing Immigration Law 149 CHAPTER HI. Status 321 CHAPTER IV. Judicial Review of Administrative Decisions 477 chapter v. Evidence 547 CHAPTER VI. Deportation Procedure 614 APPENDIX. A. Some foreign laws regarding the expulsion and ex- clusion of aliens — Argentine Republic 685 Australia 687 Barbadoes 693 Belgium 693 Bermuda 694 Brazil 695 Canada — Chinese Immigration Act 697 Immigration Act (6 Edward VII) 710 Cape Colony 729 Chile 730 Cuba 731 France 731 Great Britain 733 Jamaica 745 Luxemburg 747 vii Table of Contents. viii Page. Mexico 751 Natal 760 The Netherlands 762 New Zealand 766 Roumania 767 Russia 769 Southern Rhodesia 773 Switzerland 773 Transvaal 779 Trinidad, West Indies 792 Uruguay 794 Venezuela 795 B. Laws relating to the Admission of Chinese into the United States 797 Act of May 6th, 1882 as amended by Act of July 5th, 1884 797 Act of Sept. 13th, 1888 802 Act of May 5th, 1892 806 Act of Nov. 3rd, 1893 810 Joint resolution of July 7th, 1898 811 Act of April 30th, 1900 812 Act of June 6th, 1900 812 Act of Mar. 3rd, 1901 813 Act of April 29th 1902, as amended by Act of April 27th, 1904 813 Act of Feb. 20th, 1907, Section 25 815 Executive order of the Governor of the Philip- pines 816 C. Regulations governing the Admission of Chinese into the United States 818 D. White Slave Traffic Act (June 25th, 1910), 846 E. Philippine Islands 851 Act No. 317 of the Philippine Commission 851 Act No. 702 of the Philippine Commission 851 Index 857 TABLE OF CASES. SUPREME COURT OE THE UNITED STATES. Ah How v. United States, Feb., 1904, 193 U. S. 65, 48 Law Ed. 619. 33, 39, 98, 101, 565, 571, 603, 617, 630, 636, 663, 667 Chae Chan Ping v. United States, May, 1889, 130 U. S. 581, 32 Law Ed. 1068 4, 9, 16, 22, 29, 47, 50, 54, 86, 92, 327 Chew Heong v. United States, Dec., 1884, 112 U. S. 536, 28 Law Ed. 770 27, 44, 85, 88, 93, 354, 493, 531, 577, 582 Chin Bak Kan v. United States, June, 1902, 186 U. S. 193, 46 Law Ed. 1121. . .93, 337, 568, 569, 617, 628, 630, 631, 632, 634, 637, 650, 652 Chin Yow v. United States, Jan., 1908, 208 U. S. 8, 52 Law Ed. 369. . 140, 463, 497, 500, 514, 516, 523, 527, 541, 544, 545, 556, 623 Church of Holy Trinity v. United States, Feb., 1892, 143 U. S. 457, 36 Law Ed. 226 66, 67, 72, 447 Chy Lung v. Freeman, Mar., 1876, 92 U. S. 275, 23 Law Ed. 550. ... 59 Cie. Francaise A Yapeur v. State Board of Health, June, 1902, 186 U. S. 380, 46 Law Ed. 1209 78 Ekiu v. United States, Dec., 1891, 142 U. S. 651, 35 Law Ed. 1146. . .16, 18, 74, 76, 136, 250, 297, 336, 337, 480, 481, 485, 493, 531, 618, 647 Fok Young Yo v. United States, May, 1902, 185 U. S. 296, 46 Law Ed. 917. .15, 19, 37, 93, 137, 160, 280, 281, 337, 502, 525, 537, 655, 660 Fong Yue Ting v. United States, May, 1893, 149 U. S. 698, 37 Law Ed. 905.... 4, 7, 8, 9, 16, 48, 51, 53, 54, 94, 95, 131, 134, 137, 212, 377, 384, 525, 564, 565, 567, 568, 573, 580, 585, 616, 617 Gonzales v. Williams, Jan., 904, 192 U. S. 1, 48 Law Ed. 317. . . .128, 148, 338, 376, 384, 475, 496, 506, 512, 527, 534, 536, 542, 544, 545, 546, 623 Hackfeld, H., & Co., v. United States, April, 1905, 197 U. S. 442, 49 Law Ed. 826 76, 82, 251, 257 Head Money Cases, Dec., 1884, 112 U. S. 580, 28 Law Ed. 798. 16, 45, 64, 153, 298 Henderson v. City, Mar., 1876, 92 U. S. 259, 23 Law Ed. 543 58 Hepner v. United States, April, 1909, 213 U. S. 103, 53 Law Ed. 720. 217, 219, 220, 221, 665 Keller v. United States, April, 1909, 213 U. S. 138, 53 Law Ed. 737. 206, 207 Lau Ow Bew, Petitioner, Nov., 1891, 141 U. S. 583, 35 Law Ed. 868. 493, 648, 649 Lau Ow Bew v. United States, Mar., 1892, 144 U. S. 47, 36 Law Ed. 340 10, 14, 87, 328, 355, 360, 371, 430, 487, 494, 531, 588, 649 Lee Gon Yung v. United States, May, 1902, 185 U. S. 306, 46 Law Ed. 921 19, 281, 525, 537 Lee Lung v. Patterson, May, 1902, 186 U. S. 168, 46 Law Ed. 1108. 34, 357, 491, 536, 590, 591 Lees v. United States, Dec., 1893, 150 U. S. 476, 37 Law Ed. 1150. 16, 68, 69, 217, 219, 220 IX X Table of Cases. Lem Moon Sing v. United States, May, 1895, 158 U. S. 539, 39 Law Ed. 1082 48, 98, 137, 146, 212, 357, 431, 491, 493, 496, 502 Li Sing v. United States, Mar., 1901, 180 U. S. 486, 45 Law Ed. 634. 93, 94, 97, 480, 482, 490, 502, 511, 564, 565, 573, 616 Lim Hop Fong v. United States, April, 1908, 209 U. S. 453, 52 Law Ed. 888 36, 521, 580, 581, 635, 637, 638, 640, 642 New York v. Milne, Jan. Term, 1837, 36 U. S. 102 (11 Pet.), 9 Law Ed. 648 58 Norris v. City of Boston, Jan. Term, 1849, 48 U. S. 283, 12 Law Ed. 702 59 Oceanic Steamship Navigation Co. v. Stranahan, June, 1909, 214 U. S. 320, 53 Law Ed. 1013 129, 132, 142, 231, 233 Pearson v. Williams, May, 1906, 202 U. S. 281, 50 Law Ed. 1029. 75, 84, 268, 286, 293, 463, 482, 511, 536 People of New York v. Compagnie, Feb., 1883, 107 U. S. 59, 27 Law Ed. 383 57, 60 Quock Ting v. United States, May, 1891, 140 U. S. 417, 35 Law Ed. 501 573 Smith v. Turner, Jan, Term, 1849, 48 U. S. 283, 12 Law Ed. 702. .. . 59 Suey et al. v. Backus, June, 1912 385 Tang Tun v. Edsell, Mar., 1912, 223 U. S. 673, 56 Law Ed. . . . .516, 518 Taylor v. United States, Nov., 1907, 207 U. S. 120, 52 Law Ed. 130. 79, 82, 108, 148, 164, 166, 172, 193, 195, 254, 376, 427, 428, 429, 435, 472, 475, 507, 512, 534, 565 Tom Hong v. United States, Mar., 1904, 193 U. S. 517, 48 Law Ed. 772 .33, 97, 98, 101, 575, 608, 612, 652 United States, re, May, 1904, 194 U. S. 194, 48 Law Ed. 931 641, 644 United States v. Bitty, Feb., 1908, 208 U. S. 393, 52 Law Ed. 543 . . 184, 205 United States v. Gue Lim, Feb., 1900, 176 U. S. 459, 44 Law Ed. 544. 29, 34, 332, 346, 347, 366, 369, 578, 589, 591, 592 United States v. Jung Ah Lung, Feb., 1888, 124 U. S. 621, 31 Law Ed. 591 28, 29, 88, 354, 480, 484, 486, 493, 531, 577, 582, 622 United States v. Ju Toy, May, 1905, 198 U. S. 253, 49 Law Ed. 1040. 18, 99, 250, 299, 336, 338, 412, 491, 499, 513, 528, 535, 541, 543, 544, 545, 546, 623, 678 United States v. Laws, May, 1896, 163 U. S. 256, 41 Law Ed. 151. . . .67, 71 United States v. Lee Yen Tai, April, 1902, 185 U. S. 213, 46 Law Ed. 878 32, 49, 51, 98, 101, 634 United States v. Sing Tuck, April, 1904, 194 U. S. 161, 48 Law Ed. 917 99, 101, 291, 412, 491, 498, 516, 535, 537, 556, 597, 618, 678 United States v. Stevenson et al., Nov., 1909, 215 U. S. 190, 54 Law Ed. 153 219 United States v. Stevenson et al., Nov., 1909, 215 U. S. 200, 54 Law Ed. 157 22, 314 United States v. Nord Deutscher Lloyd, Jan., 1912, 223 U. S. 512, 56 Law Ed. 228,232,257 , 668 United States ex rel. Turner v. Williams, May, 1904, 194 U. S. 279, 48 Law Ed. 979 9, 16, 18, 55, 58, 79, 139, 172, 180, 312, 338 United States v. Wong Kim Ark, Mar., 1898, 169 U. S. 649, 42 Law Ed. 890 125, 378, 384, 413, 496, 501, 567 Table of Cases. xi United States v. Wong You et al., Jan., 1912, 223 U. S. 67, 56 Law Ed. 278,308, 551,619,672 Wan Shing v. United States, May, 1891, 140 U. S. 424, 35 Law Ed. 503 92, 356, 361, 493, 531, 578, 579, 634 Wong Wing v. United States, May, 1896, 163 U. S. 230, 41 Law Ed. 140 95, 132, 212, 338, 616 Yamataya v. Fisher, April, 1903, 189 U. S. 86, 47 Law Ed. 721. 16, 41, 74, 138, 174, 299, 337, 338, 491, 495, 502, 511, 513, 514, 525, 527, 530, 537, 540 Yick Wo v. Hopkins, May, 1886, 118 U. S. 356, 30 Law Ed. 220 131 Zartarian v. Billings, Jan., 1907, 204 U. S. 170, 51 Law Ed. 428. 238, 250, 310, 336, 381, 421 UNITED STATES CIRCUIT AND DISTRICT COURTS AND CIRCUIT COURTS OF APPEAL. Ah Kee, in re (Case of the Unused Tag), C. C. D. Cal., Sept., 1884, 21 Fed. 701 107, 662 Ah Kee, in re, D. C. S. D. N. Y., Nov., 1884, 22 Fed. 519 474, 483, 660 Ah Lung, in re, C. C. D. Cal., Sept., 1883, 18 Fed. 28 28, 29, 105 Ah Moy (Case of the Chinese Wife), C. C. D. Cal., Sept., 1884, 21 Fed. 785 346, 351, 367, 589, 607 Ah Moy, in re (Case of Chinese Wife), C. C. D. Cal., Sept., 1884, 21 Fed. 808 662 Ah Ping, in re, C. C. D. Cal., Mar., 1885, 23 Fed. 329 355, 360, 371 Ah Quan, in re, C. C. D. Cal., Aug., 1884, 21 Fed. 182 355, 582, 589 Ah Sing, in re (Case of Chinese Cabin Waiter), C. C. D. Cal., Aug., 1882, 13 Fed. 286 86, 105, 361, 362, 474, 609 Ah Tai, in re, D. C. D. Mass., Nov., 1903, 125 Fed. 795 98, 666 Ah Tie et al., in re (Case of Chinese Laborers on Shipboard), C. C. D. Cal., Aug., 1882, 13 Fed. 291 362 Ah Yow, in re, D. C. D. Wash., N. D., Jan., 1894, 59 Fed. 561. .605, 606, 652 Ah Yuk, in re, D. C. D. Minn., Jan., 1893, 53 Fed. 781 634 Aliano, in re, C. C. S. D. N. Y., Sept., 1890, 43 Fed. 517 71, 178 Ark Foo et al. v. United States, C. C. A. 2nd Ct., Feb., 1904, 128 Fed. 697 598 Avakian, ex parte, D. C. D. Mass., Nov., 1910, 188 Fed. 688. . . .281, 411, 622 Bak Kun v. United States, C. C. A. 6th Ct., Mar. 1912, 195 Fed. 53 . . 650 Botis v. Davies, D. C. N. D. 111. E. D., Nov., 1909, 173 Fed. 996. .. . 80, 188, 271, 273, 297, 461, 463, 512, 539 Bracmadfar, in re, C. C. S. D. N. Y., Feb., 1889, 37 Fed. 774 488 Bucciarello et al., in re, C. C. S. D. N. Y., Feb., 1891, 45 Fed. 463. . . 63 Buehsbaum, in re, D. C. E. D. Penn., Dec., 1905, 141 Fed. 221. 338, 437, 504, 546 Can Pon et al., in re, C. C. A. 9th Ct., Feb., 1909, 168 Fed. 479. 517, 617, 646 Chain Chio Fong v. United States, C. C. A. 9th Ct., Oct., 1904, 133 Fed. 154 362, 585 Chan Tse Cheung v. United States, D. C. W. D. Texas, El Paso D., July, 1911, 189 Fed. 412 358 xii Table of Cases. Cheung Him Nin v. United States, C. C. A. 9th Ct., Oct., 1904, 133 Fed. 391 360, 585 Cheung Pang v. United States, C. C. A. 9th Ct., 1904, 133 Fed. 392. 344, 579, 611 Chew Hing v. United States, C. C. A. 9th Ct., 1904, 133 Fed. 227 571 Chin A On et al., in re, D. C. D. Cal., Nov., 1883, 18 Fed. 506. 88, 354, 486, 577, 582 Chin Ark Wing, in re, D. C. D. Mass., May, 1902, 115 Fed. 412. . . .360, 652 Chin Hen Lock, ex parte, D. C. Vt., Nov., 1909, 174 Feb. 282 514 Chin Kee v. United States, D. C. W. D. Tex., May, 1912, 196 Fed. 74. 209 Chin Ken et al. v. United States, C. C. A. 2nd Ct. Nov., 1911, 191 Fed. 817 651, 652 Chin King, ex parte, C. C. D. Oregon, June, 1888, 35 Fed. 354,. . . .413, 486 Chin Yuen Sing, in re, C. C. S. D. N. Y., Nov., 1894, 65 Fed. 571. .483, 502 Chin Yuen Sing, in re, C. C. S. D. N. Y., Dee., 1894, 65 Fed. 788. .. . 663 Chin Wah, in re, D. C. D. Oregon, Oct., 1910, 182 Fed. 256 19, 338, 662, 665, 666 Chin Wah v. Colwell, C. C. A. 9th Ct., May, 1911, 187 Fed. 592 666 Chomel v. United States, Brion v. United States, C. C. A. 7th Ct., Apr., 1911, 192 Fed. 117 184 Chow Chok v. United States, C. C. A. 2nd Ct., June, 1908, 163 Fed. 1021 308 Chow Chok, ea parte, C. C. N. D. N. Y., May, 1908, 161 Fed. 627. . . 158, 280, 308, 537, 619, 672 Chow Loy, in re, C. C. D. Maine, Sept., 1901, 110 Fed. 952 641 Chow Goo Pooi, in re, C. C. D. Cal., Jan., 1884, 25 Fed. 77,. . . .52, 616, 662 Chow Loy v. United States, C. C. A. 1st Ct., Nov., 1901, 112 Fed. 354 639, 641, 642, 643 Chu King Foon v. United States, C. C. A. 2nd Ct., Nov., 1911, 191 Fed. 822 651 Chung Toy Ho, in re, C. C. Dis. Oregon, May, 1890, 42 Fed. 398 . . 29, 346, 589 Chu Pay, in re, D. C. N. D. Ohio, E. D., June, 1897, 81 Fed. 826. . . . 612 Crawford, ex parte, D. C. S. D. N. Y., Oct., 1908, 165 Fed. 830. 297, 469, 504 Cummings, in re, C. C. S. D. N. Y., Aug., 1887, 32 Fed. 75. .67, 483, 484, 524 Cunard Steamship Company v. Stranahan, C. C. S. D. N. Y., Nov., 1904, 134 Fed. 318 233, 236, 474 Davies v. Manolis, C. C. A. 7th Ct., 1910, 179 Fed. 818 80, 186, 270, 273, 461, 512, 539, 546 Day, in re, C. C. S. D. N. Y., May, 1886, 27 Fed. 678 63, 175, 483 De Briuler v. Gallo, C. C. A. 9th Ct., Feb., 1911, 184 Fed. 566 535 Dietze, in re, D. C. S. D. N. Y., Oct., 1889, 40 Fed. 324 483, 488 Di Simone, in re, D. C. E. D. La., Mar., 1901, 108 Fed. 942 382, 503, 512, 517, 530, 603 Durand, ex parte, D. C. D. Oregon, Mar., 1908, 160 Fed. 558, 80, 184, 297, 455, 456 Edsell v. Mark, C. C. A. 9th Ct., May, 1910, 179 Fed. 292 514, 537, 601 Ellis, in re, C. C. S. D. N. Y., June, 1903, 124 Fed. 657 72,80, 188 Eng Choy v. United States, C. C. A. 8th Ct., Jan., 1910, 175 Fed. 566. 650 Feinknopf, in re, D. C. E. D. N. Y., Sept., 1891, 47 Fed. 447 74,489 Table of Cases. xiii Fong Gum Tong v. United States, C. C. A. 7th Ct., Oct. 1911, 192 Fed. 320 Fong Mey Yuk v. United States, C. C. A. 9th Ct., Feb., 1902, 113 Fed. 898 73, 565, 628, 631, 632, Fong Yim et al., ex parte, D. C. S. D. N. Y., Jan. 1905, 134 Fed. 938. Frick v. Lewis, C. C. A. 6th Ct., Feb., 1912, 195 Fed. 693 180, 209, 270, 308, 453, 464, 512, 670, Frolic, The, D. C. D. R. I., Dec., 1906, 148 Fed. 921, Frolic, The, D. C. D. R. I., Nov., 1906, 148 Fed. 918 Gayde, in re, C. C. S. D. N. Y., Dec., 1901, 113 Fed. 588 336, Gee Cue Beng v. United States, C. C. A. 5th Ct., Feb., 1911, 184 Fed. 383 569, 598, Gee Fook Sing v. United States, C. C. A 9th Ct., Jan., 1892, 49 Fed. 146 360, 413, 486, 497, Gee Hop, in re, D. C. N. D. Cal., Dec., 1895, 71 Fed. 274 384, 568, George, ex parte, D. C. N. D. Ala., July, 1910, 180 Fed. 785 Gerard v. United States, C. C. A. 9th Ct., Mar., 1908, 159 Fed. 421. . Giovanna et al., in re, D. C. S. D. N. Y., Mar., 1899, 93 Fed. 659, 413, 502, Gong Nom Wood v. United States, C. C. A. 2nd Ct., Nov., 1911, 191 Fed. 830 618, 650, Gouyet, ex parte, D. C. Montana, June, 1909, 175 Fed. 230 Guayde, in re, C. C. S. D. N. Y., Dec., 1901, 112 Fed. 415 185, 205, Gut Lun, in re, D. C. N. D. Col., Nov., 1897, 83 Fed. 141 630, Hackfeld & Company v. United States, C. C. A. 9th Ct., Oct., 1905, 141 Fed. 9 253, Hamaguchi, ex parte, C. C. D. Oregon, April, 1908, 161 Fed. 185. . . . 282, 307, 540, 626, Haw Moy v. North, C. C. A. 9th Ct., Nov., 1910, 183 Fed. 89 Hirsch Berjanski, in re, D. C. E. D. N. Y., Sept., 1891, 47 Fed. 445. . Hoffman, in re, C. C. A. 2nd Ct., May, 1910, 179 Fed. 839 185, 274, 451, 469, Ho King, in re, D. C. D. Oregon, Jan., 1883, 14 Fed. 724 88, 355, 582, 606, Ho Ngen Jung v. United States, D. C. W. D. Texas, El Paso D., April 1907, 153 Fed. 232, Hong You et al. v. United States, C. C. A. 2nd Ct., June, 1908, 164 Fed. 330 Hong Wing v. United States, C. C. A. 6th Ct., Jan., 1906, 142 Fed. 128 93, 101, Hopkins v. Fachant, C. C. A. 9th Ct., May, 1904, 130 Fed. 839 .... 185, 386, 411, 508, Howard, in re, C. C. S. D. N. Y., Oct., 1894, 63 Fed. 263 188, International Mercantile Marine Co. v. United States, C. C. A. 2nd Ct. Jan., 1912, 192 Fed. 887 Jack Sen et al., in re, C. C. N. D. Cal., Oct., 1888, 36 Fed. 441 Jam, in re, D. C. S. D. N. Y., May, 1900, 101 Fed. 989 474, 610, Jem Yuen, in re, D. C. D. Mass., July, 1910, 188 Fed. 350 516, 518, 618, 662, 663, 651 637 502 677 110 110 491 644 572 601 179 107 531 651 68 214 637 645 669 540 74 504 609 571 650 102 513 487 463 361 660 665 xiv Table of Cases. Jew Sing v. United States, D. C. D. Texas, El Paso Div., Nov., 1899, 97 Fed. 582 345, Jew Wong Loy, in re, D. C. N. D. Cal., Dec., 1898, 91 Fed. 240. ... 95, Jong Jim Hong, ex parte, C. C. N. D. N. Y., Dec., 1907, 157 Fed. 447 514, 535, Kaprielian, ex parte, D. C. D. Mass., Nov., 1910, 188 Fed. 694 386, 404, 509, 520, Kleibs, in re, C. C. S. D. N. Y., Mar., 1904, 128 Fed. 656 379, Koerner, ex parte, C. C. E. D. Wash., Dec., 1909, 176 Fed. 478 178, 458, Kornmehl, in re, C. C. S. D. N. Y., May, 1898, 87 Fed. 314 240, 283, 511, Kum Sue v. United States, C. C. A. 2nd Ct, May, 1910, 179 Fed. 370 569, Lai Moy v. United States, C. C. A. 9th Ct., Feb., 1895, 66 Fed. 955. . . 97, 357, 606, Lair, ex parte, D. C. D. Kan., 1st Div., March, 1910, 177 Fed. 789. . Lam Jung Sing, in re, D. C. W. D. N. Y., Feb., 1907, 150 Fed. 608. . 569, 631, Lang et al. v. United States, C. C. A. 7th Ct., Oct., 1904, 133 Fed. 201 84, Lavin v. Lefevre et al., C. C. A. 9th Ct., Nov., 1903, 125 Fed. 693 . . . 465, 473, 512, Law Chin Woon v. United States, C. C. A. 9th Ct., June, 1906, 147 Fed. 227 Lea, in re, D. C. D. Oregon, Nov., 1903, 126 Fed. 234 79, 177, 461, 512, 539, Lee Ah Yin v. United States, C. C. A. 9th Ct., May, 1902, 116 Fed. 614 368, 571, 605, Lee Gon Yung, in re, C. C. N. D. Cal., Nov., 1901, 111 Fed. 998. . .537, Lee Ho How, in re, D. C. N. D. Cal., April, 1900, 101 Fed. 115. . . . 346, 521, 580, 634, Lee Joe Yen v. United States, C. C. A. 9th Ct., Oct., 1906, 148 Fed. 682 Lee Kan v. United States, C. C. A. 9th Ct., May, 1894, 62 Fed. 914. . .97, Lee Kow, ex parte, C. C. N. D. N. Y., May, 1908, 161 Fed. 592,. . . .514, Lee Lung, in re, D. C. D. Oregon, May, 1900, 102 Fed. 132 Lee Sher Wing, in re, D. C. N. D. Cal., Oct., 1908, 164 Fed. 506,. . .275, Lee Sing Far v. United States, C. C. A. 9th Ct., May, 1899, 94 Fed. 836 413, 571, Lee Won Jeong v. United States, C. C. A. 9th Ct., May, 1906, 145 Fed. 512 Lee Yee Sing, in re, D. C. D. Wash., Feb., 1898, 85 Fed. 635 369, 535, 589, Lee Yue v. United States, C. C. A. 9th Ct., Oct., 1904, 133 Fed. 45. . Lee Yuen Sue v. United States, C. C. A. 9th Ct., 1906, 146 Fed. 670. . 602, 619, Leo Horn Bow, in re, D. C. D. Wash., N. D., Aug., 1891, 47 Fed. 302. . Leong Yick Dew, in re, C. C. D. Cal., Feb., 1884, 19 Fed. 490. .88, 354, 580 572 559 622 483 504 573 651 613 210 640 297 671 619 597 607 660 641 598 612 523 536 619 573 636 610 573 639 608 582 Table of Cases. xv Leo Lung On v. United States, C. C. A. 8th Ct., Feb., 1908, 159 Fed. 125 645 Leong Jun v. United States, C. C. A. 2nd Ct., June, 1909, 171 Fed. 413 482, 508, 635 Leong Youk Tong, in re, C. C. D. Oregon, Dec., 1898, 90 Fed. 648. . 491, 502, 617 Leung, in re, C. C. A. 2nd Ct., April, 1898, 86 Fed. 303 606 Lew Jim v. United States, C. C. A. 9th Ct., Feb., 1895, 66 Fed. 953. . 97, 357, 605, 613 Lew Moy v. United States, C. C. A. 9th Ct., Oct., 1908, 164 Fed. 322 . . 645 Lew Quen Wo v. United States, C. C. A. 9th Ct., Feb., 1911, 184 Fed. 685 286, 463, 521, 579, 580, 601, 607 Lewis v. Frick, C. C. E. D. Mich., S. D., April, 1911, 189 Fed. 146. . 180, 209, 270, 452, 458, 464, 512, 676 Li Dick, ex parte, C. C. N. D. N. Y., Mar., 1910, 176 Fed. 998. .. . 275, 307, 551, 619 Li Dick, ex parte, D. C. N. D. N. Y., Dec., 1909, 174 Fed. 674 15, 275, 619, 673 Lifieri et ah, in re, D. C. S. D. N. Y., July, 1892, 52 Fed. 293. . . .67, 71, 74 Li Foon, in re, C. C. S. D. N. Y., Feb., 1897, 80 Fed. 881 482, 511, 589 Lim Sam v. United States, D. C. W. D. Texas, El Paso Div., July, 1911, 189 Fed. 534 569, 570, 598 Lintner, in re, D. C. S. D. Cal., Aug., 1893, 57 Fed. 587 630, 632 Long Lock, ex parte, D. C. N. D. N. Y., Oct. 1909, 173 Fed. 208. . . . 508, 514, 523, 536, 603 Look Tin Sin, in re, C. C. D. Cal., Sept., 1884, 21 Fed. 905 87,413 Looe Shee v. North, C. C. A. 9th Ct., May, 1909, 170 Fed. 566 184, 185, 213, 274, 297, 368, 383, 384, 455, 456, 551, 592, 619, 622 Louie You, in re, D. C. Oregon, Sept., 1899, 97 Fed. 580 360,572 Loung June, ex parte, D. C. N. D. N. Y., Mar., 1908, 160 Fed. 251. . 346, 482, 601, 635, 636 Low Foon Yin v. United States, C. C. A. 9th Ct., May, 1906, 145 Fed. 791 94, 565, 573, 597, 616, 619 Low Yam Chow, in re (Case of the Chinese Merchant), C. C. Dis. Cal., Sept., 1882, 13 Fed. 605 87, 355, 582 Lui Lum y. United States, C. C. A. 3rd Ct., Jan., 1909, 166 Fed. 106. 673 Lum Lin Ying, in re, D. C. D. Oregon, Feb., 1894, 59 Fed. 682 .... 368, 487, 589, 601 Lum Poy, in re, C. C. D. Montana, Mar., 1904, 128 Fed. 974 666 Lung Foot, ex parte, D. C. N. D. N. Y., Nov., 1909, 174 Fed. 70. . 511, 514, 603, 635 Lung Wing Wun, ex parte, D. C. W. D. Wash, N. D., May, 1908, 161 Fed. 211 18, 338, 502, 508, 535, 581, 599, 602, 631, 636 Maiola, in re, C. C. S. D. N. Y., Feb., 1895, 67 Fed. 114 70, 429, 503 Mar Bing Guey v. United States, D. C. W. D. Texas, Nov., 1899, 97 Fed. 576 286, 344, 463, 511, 578, 579, 606, 613 Mar Poy v. United States, D. C. W. D. Texas, El Paso Div., July, 1911, 189 Fed. 288 570, 650 Mar Sing v. United States, C. C. A. 9th Ct., May, 1905, 137 Fed. 875. 605, 613, 650 xvi Table of Cases. Martorelli, in re, C. C. S. D. N. Y., Oct., 1894, 63 Fed. 437. .67, 70, 429, 503 Matsumura v. Higgins, C. C. A. 9th Ct., May, 1911, 187 Fed. 601. . 273, 463, 464 Michele, ex parte, D. C. E. D. Wash., S. D., April, 1911, 188 Fed. 449. 269 Minnesota, St. Paul Ry. Co. v. Milner, C. C. W. D. Mich., N. D., July, 1893, 57 Fed. 276 61,256 Moffitt v. United States, C. C. A. 9th Ct., Feb., 1904, 128 Fed. 375. . . 429 Moller v. United States, C. C. A. 5th Ct., June, 1893, 57 Fed. 490. .. 189, 223, 665 Moncan, in re, C. C. D. Oregon, Oct., 1882, 14 Fed. 44 110, 361, 362, 474, 609 Monaco, in re, C. C. S. D. N. Y., 1898, 86 Fed. 117 516 Moses, in re, C. C. S. D. N. Y., Dec., 1897, 83 Fed. 995 212, 379, 381, 382, 491, 502 Moy Quong Shing, et ah, in re, D. C. D. Vt., Oct., 1903, 125 Fed. 641. 281, 511, 535 Moy Suey v. United States, C. C. A. 7th Ct., Aug., 1906, 147 Fed. 697 539, 549, 569, 584, 596 Murnane et ah, in re, C. C. S. D. N. Y., April, 1889, 39 Fed. 99 63 Neuwirth, in re, C. C. S. D. N. Y., April, 1903, 123 Fed. 347 237 Ng Quong Ming, ex parte, D. C. S. D. N. Y., 1905, 135 Fed. 378. . . 28, 93, 281, 357 Nicola, in re, C. C. A. 2nd Ct., Jan., 1911, 184 Fed. 322 386, 408, 509 Niven v. United States, C. C. A. 9th Ct., May, 1909, 169 Fed. 782. .230, 254 Ny Look, in re, C. C. S. D. N. Y., May, 1893, 56 Fed. 81 95, 634 Ong Lung, in re, C. C. S. D. N. Y., Oct., 1903, 125 Fed. 813 662 Ong Lung, in re, C. C. S. D. N. Y., Oct., 1903, 125 Fed. 814 33,90 Ota, in re, D. C. N. D. Cal., Sept., 1899, 96 Fed. 487 70, 430, 503, 531 Ow Guen, ex parte, D. C. D. Vt., June, 1906, 143 Fed. 926 352, 517 Ow Yang Dean v. United States, C. C. A. 9th Ct., May, 1906, 145 Fed. 801 613 Palagano, in re, C. C. S. D. N. Y., April, 1889, 38 Fed. 580 19, 63, 484 Pang Sho Yin v. United States, C. C. A. 6th Ct., June, 1907, 154 Fed. 660 570 Panzara et ah, in re, D. C. E. D. N. Y., June, 1892, 51 Fed. 275. . . . 70, 429, 430, 487, 503 Pearson v. Williams, C. C. A. 2nd Ct., Feb., 1905, 136 Fed. 734. .. 273, 463, 511, 540 Petterson, ex parte, D. C. D. Minn., 4th Div., Nov., 1908, 166 Fed. 536 185, 469, 471, 504, 519, 558 Pouliot et ah, ex parte, D. C. E. D. Wash., April, 1912, 196 Fed. 437 270, 453 Prentis v. Cosmas, C. C. A. 7th Ct., Jan., 1912, 196 Fed. 372 171 Prentis v. Di Giacomo, C. C. A. 7th Ct., July, 1911, 192 Fed. 467 540 Prentis v. Stathakos, C. C. A. 7th Ct., July, 1911, 192 Fed. 469. . . .460, 540 Quong Sue v. United States, C. C. A. 9th Ct., May, 1902, 116 Fed. 316 573, 642 Redfern v. Halpert, C. C. A. 5th Ct., Mar., 1911, 186 Fed. 150 72, 185, 272, 464, 468, 504, 539 Regan v. United States, C. C. A. 2nd Ct., Nov., 1910, 183 Fed. 293. . . 221 Table of Cases. xvii Rodgers v. United States ex rel. Buchsbaum, C. C. A. 3rd Ct., Feb., 1907, 152 Fed. 346 79, 328, 338, 437, 443, 448, 504, Rodgers v. United States ex rel. Cachigan, C. C. A. 3rd Ct., Nov., 1907, 157 Fed. 381 237, Rosenberg v. Union Iron Works, D. C. N. D. Cal., June, 1901, 109 Fed. 844 69, Russomanno, in re, C. C. S. D. N. Y., Jan., 1904, 128 Fed. 528 Rustigian, in re, C. C. D. R. I., Dec., 1908, 165 Fed. 980. .386, 387, 404, Saraceno, ex parte, C. C. S. D. N. Y., Nov., 1910, 182 Fed. 955 179, 180, 288, 458, 519, Shong Toon, in re, D. C. D. Cal., Aug., 1884, 21 Fed. 386 Sibray v. United States ex rel. Kupples, Feb., 1911, C. C. A. 3rd Ct., 185 Fed. 401 Sims et al. v. United States, C. C. A. 9th Ct., Feb., 1903, 121 Fed. 515 Sing, ex parte, C. C. N. D. N. Y., July, 1897, 82 Fed. 22 Sing Lee, in re, D. C. W. D. Mich., Feb., 1893, 54 Fed. 334 94, Siniscalchi v. Thomas, C. C. A. 6th Ct., Feb., 1912, 195 Fed. 701. . . Sire v. Berkshire et al., D. C. W. D. Texas, Austin D., Mar., 1911, 185 Fed. 967 454, 455, 540, 616, 624, Stancampiano, ex parte, C. C. S. D. N. Y., April, 1908, 161 Fed. 164. . 286, 482, 491, 502, Stratton v. Oceanic Steamship Company, C. C. A. 9th Ct., Oct., 1905, 140 Fed. 829 160, Tang Tun, in re, D. C. W. D. Wash. N. D., May, 1908, 161 Fed. 618. . Tang Tun et ux., C. C. A. 9th Ct., Feb., 1909, 168 Fed. 488 Taylor v. United States, C. C. A. 2nd Ct., Jan., 1907, 152 Fed. 1. . . . 79, 437, 472, Tom Hon, in re, D. C. N. D. Cal., Sept., 1906, 149 Fed. 842 345, 521, 580, Tom Wah v. United States, D. C. N. D. N. Y., March, 1908, 160 Fed. 207 Tom Wah v. United States, C. C. A. 2nd Ct., June, 1908, 163 Fed. 1008 616, Tong Ah Chee, in re, D. C. D. Cal., Nov., 1883, 23 Fed. 441 Toy Tong v. United States, C. C. A. 3rd Ct., June, 1906, 146 Fed. 343 283, 618, 629, 631, 639, Tung Yeong, in re, D. C. D. Cal., Feb., 1884, 19 Fed. 184 88, 361, Tsoi Sim v. United States, C. C. A. 9th Ct., May, 1902, 116 Fed. 920. . 72, 367, Tsoi Yii v. United States, C. C. A. 9th Ct., April, 1904, 129 Fed. 585. Tsu Tse Mee, in re, D. C. N. D. Cal., May, 1897, 81 Fed. 562 616, United States v. Ah Chong, C. C. A. 9th Ct., May, 1904, 130 Fed. 885 343, United States v. Ah Fawn, D. C. S. D. Cal., Sept., 1893, 57 Fed. 591 . . United States v. Ah Fook, C. C. A. 9th Ct., Nov., 1910, 183 Fed. 33 . . 474, 610, United States v. Ah Poing, D. C. D. Oregon, Sept., 1895, 69 Fed. 972. United States v. Ah Sou, C. C. A. 9th Ct., May, 1905, 138 Fed. 775. . 359, 368, i 516 512 218 271 509 , 539 355 625 109 597 ,565 464 625 512 281 516 535 504 581 631 619 358 640 486 384 644 636 600 605 661 364 607 xviii Table of Cases. United States v. Ah Toy, D. C. D. Wash., N. D., Aug., 1891, 47 Fed. 305. United States v. Arteago et al., C. C. A. 5th Ct. May, 1897, 68 Fed. 883 538 United States v. Atlantic Transport Co., C. A. A. 2nd Ct., May, 1911, 188 Fed. 42 165, 473 United States v. Aultman, D. C. N. D. Ohio, E. D., Feb., 1905, 143 Fed. 922 79,437,449,504 United States v. Baltic Mills Co., C. C. A, 2nd Ct., May, 1903, 124 Fed. 38 190, 223, 225 United States v. Banister, C. C. D. Vt., Oct., 1895, 70 Fed. 44 69,220 United States v. Bitty, C. C. S. D. N. Y., Sept., 1907, 155 Fed. 938 183, 205 United States v. Borneman, D. C. D. N. J., Mar., 1890, 41 Fed. 751. . 222 United States v. Bromiley, D. C. E. D. Penn., Nov., 1893, 58 Fed. 554. 68 United States v. Burke, C. C. S. D. Ala., Dec., 1899, 99 Fed. 895 70, 72, 99, 188, 229, 429, 472, 474, 530 United States v. Capella, D. C. N. D. Cal., Mar., 1909, 169 Fed. 890 210, 230 United States v. Chew Cheong, D. C. N. D. Cal., April, 1894, 61 Fed. 200 15, 96 United States v. Chin Chong Pong, D. C. S. D. N. Y v Nov., 1911, 192 Fed. 722 651 United States v. Chin Fee, D. C. D. Vt., May, 1899, 94 Fed. 828 .... 99, 360, 539 United States v. Chin Ken, D. C. N. D. N. Y., Nov., 1910, 183 Fed. 332 573, 597 United States v. Chin Len, C. C. A. 2nd Ct., April, 1911, 187 Fed. 544 522 United States v. Chin Quong Look, D. C. D. Wash. N. D., Aug., 1892, 52 Fed. 203 355 United States v. Chin Sing, D. C. D. Oregon, April, 1907, 153 Fed. 590 348, 585, 600 United States v. Chin Tong, C. C. A. 5th Ct., Dec., 1911, 192 Fed. 485 633 United States v. Chong Sam, D. C. E. D., Mich., Nov., 1891, 47 Fed. 878 93, 601, 680 United States v. Chu Chee, D. C. D. Oregon, May, 1898, 87 Fed. 312. . 592 United States v. Chu Chee, C. C. A. 9th Ct., Mar., 1899, 93 Fed. 797. . 86, 89, 92, 93, 330, 577, 578, 592, 602, 608 United States v. Chu Hung, D. C. D. S. C., April, 1910, 179 Fed. 564. . 569 United States v. Chu King Foon, D. C. N. D. N. Y., July, 1910, 179 Fed. 995 650, 652 United States v. Chum Shang Yuen, D. C. S. D. Cal., Sept., 1893, 57 Fed. 588 630, 632 United States v. Chung Ki Foon, D. C. N. D. Cal., Oct., 1897, 83 Fed. 143 364, 606 United States v. Chun Hoy, C. C. A. 9th Ct., Oct., 1901, 111 Fed. 899. 573 United States v. Chung Shee, C. C. A. 9th Ct., Oct., 1896, 76 Fed. 951 508 United States v. Chung Fung Sun, D. C. N. D. N. Y., Oct., 1894, 63 Fed. 261 651 United States v. Cohen, C. C. A., 2nd Ct., June, 1910, 179 Fed. 834. . 400 Table of Cases. XIX United States v. Craig, C. C. E. D. Mich., Oct., 1886, 28 Fed. 795 68, 69, 222 United States v. Crouch, C. C. E. D. N. Y., April, 1911, 185 Fed. 907 85, 370, 474, 610 United States v. Don On, C. C. N. D. N. Y., Nov., 1891, 49 Fed. 569. . 359, 361, 652 United States v. Douglas, C. C. D. Mass., Aug., 1883, 17 Fed. 634. . .105, 610 United States v. Durie, D. C. E. D. Penn., May, 1909, 170 Fed. 624. . 106 United States v. Edgar, C. C. A. 8th Ct., Oct., 1891, 48 Fed. 91. . . .189, 222 United States ex rel. Boulbol v. Fielding, D. C. E. D. N. Y., Dec., 1909, 175 Fed. 290 246 United States v. Foh Chung, D. C. S. D. Ga., N. E. D., Aug., 1904, 132 Fed. 109 666 United States v. Foo Duck, C. C. A. 9th Ct., Sept., 1909, 172 Fed. 856 346, 369, 370 United States v. Foo Duck, D. C. D. Montana, July, 1908, 164 Fed. 440 370 United States v. Foong King, D. C. S. D. Ga., N. E. D., June, 1904, 132 Fed. 107 344, 610 United States v. Four Hundred and Twenty Dollars, D. C. S. D. Ala., June, 1908, 162 Fed. 803 249 United States v. Gay, C. C. A. 7th Ct., June, 1899, 95 Fed. 226 68, 187 United States v. Gay, C. C. D. Ind., April, 1897, 80 Fed. 254 76, 223 United States v. Gee Lee, C. C. A. 9th Ct., April, 1892, 50 Fed. 271. United States v. Gin Fung, C. C. A. 9th Ct., Feb., 1900, 100 Fed. 389. United States v. Giuliani, D. C. D. Del., May, 1906, 147 Fed. 594. . . . 213 United States v. Graham, C. C. E. D. N. Y., Nov., 1908, 164 Fed. 654 106, 474 United States v. Great Falls & C. Rwy. Co., C. C. D. Montana, Nov., 1892, 53 Fed. 77 222 United States v. Gue Lim, D. C. D. Wash., N. D., Oct., 1897, 83 Fed. 136 589 United States v. Hamburg American Line, C. C. A. 2nd Ct., Jan., 1908, 159 Fed. 104 264 United States v. Hemet, D. C. D. Oregon, Sept., 1907, 156 Fed. 285. . 257, 282, 561 United States v. Hills, D. C. W. D. N. Y., July, 1903, 124 Fed. 831. . 636 United States v. Horn Hing, D. C. N. D. N. Y., Jan., 1892, 48 Fed. United States v. Hook, D. C. D. Md., Nov., 1908, 166 Fed. 1007 272, 464, 466, 469, 504 United States v. Hoy Way, D. C. E. D. Penn., Sept., 1907, 156 Fed. 247 565, 569 United States v. Hung Chang, C. C. A. 6th Ct., Dec., 1904, 134 Fed. 19 597, 598, 616, 635, 644, 645 United States v. Hung Chang, C. C. A. 6th Ct., May, 1904, 130 Fed. 439 641, 644 XX Table of Cases. United States ex rel. Perelman v. Int. Mercantile Marine Co., C. C. A. 3rd Ct., Mar., 1912, 194 Fed. 408 536 United States v. International Mercantile Marine Co., C. C. S. D. N. Y., May, 1911, 186 Fed. 669 272, 463 United States v. International Mercantile Marine Co., C. C. A. 2nd Ct., June, 1909, 171 Fed. 841 166 United States v. Jamieson, C. C. S. D. N. Y., Feb., 1911, 185 Fed. 165 106, 474, 609, 610 United States v. Jhu Why, D. C. N. D Ga., Jan., 1910, 175 Fed. 630 570, 651 United States v. Jim, D. C. D. Wash, N. D., Aug., 1891, 47 Fed. 431. . 93, 639, 680 United States v. Joe Dick, D. C. E. D. Pa., Feb. 1905, 134 Fed. 988, 369 United States v. Johnson, C. C. S. D. N. Y., 1881, 7 Fed. 453 205, 206 United States v. Jue Wy, D. C. D. Vt., April, 1900, 103 Fed. 795, . . 599 United States v. Jung Jow Tow, D. C. D. Oregon, July, 1901, 110 Fed. 154, 581 United States v. Kol Lee, D. C. S. D. Ga., N. E. D., June, 1904, 132 Fed. 136, 609 United States v. Krsteff, D. C. S. D. 111., Jan., 1911, 185 Fed. 201, 206, 208 United States v. Lair, C. C. A. 8th Ct., Mar., 1912, 195 Fed. 47. . . . '. 206, 210, 652 United States v. Lao Sun Ho, D. C. N. D. Cal., Feb., 1898, 85 Fed. 422 463, 600 United States v. Lavoie, D. C. W. D. Wash. W. D., Nov., 1910, 182 Fed. 943, 210, 211 United States v. Lee Hoy, D. C. D. Wash. N. D., Dec. 1891, 48 Fed. 825, 93, 355, 588 United States v. Lee Huen and 14 other cases, D. C. N. D. N. Y., Oct., 1902, 118 Fed. 442, 565, 572, 573, 596, 597, 635 United States v. Lee Kee et al., C. C. A. 9th Ct., May, 1902, 116 Fed. 612, 680, 681 United States v. Lee Lip et ah, D. C. N. D. N. Y., Mar., 1900, 100 Fed. 842, 632, 634 United States v. Lee Seick, C. C. A. 9th Ct., Feb., 1900, 100 Fed. 398, 569, 584, 645 United States v. Lee Wing and 7 other cases, D. C. D. Oregon, Mar., 1905, 136 Fed. 701, 570, 575, 584, 598 United States v. Lee Yung, D. C. S. D. Cal., Oct., 1894, 63 Fed. 520, 359 United States v. Leo Won Tong, D. C. E. D. Mo. E. D., Sept., 1904, 132 Fed. 190, 360, 585 United States v. Leu Jim, D. C. S. D. N. Y., Nov., 1911, 192 Fed. 580 651 United States v. Leung Sam and two other cases, D. C. W. D. N. Y., Mar., 1902, 114 Fed. 702 548, 571, 573, 651 United States v. Leung Shue et ah, D. C. N. D. N. Y., Dec., 1903, 126 Fed. 423, 597, 631 Table of Cases. xxi United States v. Lim Gew, D. C. N. D. Cal., Dec., 1910, 192 Fed. 644 361, 511 United States v. Lipkis, D. C. S. D. N. Y., June, 1893, 56 Fed. 427, . . 653 United States v. Long Hop, D. C. S. D. Ala., Feb., 1892, 55 Fed. 58. 93, 489, 602, 631, 633 United States v. Loo Way, D. C. S. D. Cal., May, 1895, 68 Fed. 475. • 97, 357 United States v. Louie Juen, D. C. D. Montana, Mar., 1904, 128 Fed. 522 360, 574, 585 United States v. Louie Lee, D. C. W. Tenn., W. D., Feb., 1911, 184 Fed. 651 569, 598, 603, 642, 643 United States v. Loy Too, D. C. N. D. N. Y., Sept., 1906, 147 Fed. 750 641, 642, 643 United States v. Luey Guey Auck, D. C. D. Vt., Mar., 1902, 114 Fed. 252 629 United States v. Lung Hong, D. C. N. D. Ohio W. D., May, 1900, 105 Fed. 188 , 573, 611 United States ex rel. Reinmann v. Martin, D. C. W. D. N. Y., Feb., 1912, 193 Fed. 795 183, 287, 308, 520 United States v. Mar Ying Yuen, D. C. W. D. Texas, El Paso Div., May, 1903, 123 Fed. 159 72, 638 United States v. McCallum et ah, C. C. D. Mass., Jan., 1891, 44 Fed. 745 68, 193 United States v. M ’Elroy, C. C. D. N. J., May, 1902, 115 Fed. 252, . . 217 United States v. Mock Chew, C. C. A. 9th Ct., Jan., 1893, 54 Fed. 490. ,....579, 602 United States v. May Gim and five other cases, D. C. D. R. I. April, 1902, 115 Fed. 652 359 United States v. Moy Yee Tai, C. C. A. 2nd Ct., May, 1901, 109 Fed. 1 640 United States v. Moy You et al., D. C. N. D. N. Y., Dec., 1903, 126 Fed. 226 597, 631 United States v. Nakashima, C. C. A. 9th Ct., Feb., 1908, 160 Fed. 842 72, 79, 238, 338, 429, 449, 463, 504, 516, 517, 537, 546 United States v. Ng Park Tan, D. C. N. D. Cal., April, 1898, 86 Fed. 605 362, 579 United States v. Ngum Lun May, D. C. D. Oregon, April, 1907, 153 Fed. 209 616 United States v. 2STg Young, D. C. 1ST. D. N. Y., Dec., 1903, 126 Fed, 425 641, 653 United States v. Nord-Deutscher Lloyd, C. C. S. D. N. Y., April, 1911, 186 Fed. 391 228, 257 United States v. North German Lloyd and other case, C. C. S. D. N. Y., Feb., 1911, 185 Fed. 158 211, 264 United States v. Pagliano, C. C. S. D. N. Y., Jan., 1893, 53 Fed. 1001. 205, 206 United States v. Pavy, D. C. E. D. N. Y., Jan., 1912, 193 Fed. 1006. . ’ 251, 252, 257 United States v. Pin Kwan, C. C. A. 2nd Ct., Feb., 1900, 100 Fed. 609. 344, 578, 579, 612 xxii Table of Cases. United States ex rel. Bryon v. Prentis, D. C. N. D. 111., June, 1910, 182 Fed. 894 211, 455 United States ex rel. Calamia v. Redfern, C. C. E. D. La., May, 1910, 180 Fed. 506 178, 268, 272, 273, 463, 464, 601 United States ex rel. Pazos v. Redfern, C. C. E. D. La., June, 1910, 180 Fed. 500 189, 286, 293, 518, 555 United States ex rel. Ruiz v. Redfern, C. C. E. D. La., April, 1911, 186 Fed. 603 676 United States ex rel. Barlin v. Rodgers, C. C. A. 3rd Ct., Dec., 1911, 191 Fed. 790 442, 622 United States ex rel. Devine v. Rodgers, D. C. E. D. Pa., June, 1901, 109 Fed. 886 182, 383, 509 United States ex rel. di Rienzo v. Rodgers, D. C. E. D. Pa., Oct., 1910, 182 Fed. 274 238, 382, 421 United States ex rel. di Rienzo v. Rodgers, C. C. A. 3rd Ct., April, 1911, 185 Fed. 334 377, 382, 622 United States ex rel. Fischer v. Rodgers, D. C. E. D. Pa., April, 1906, 144 Fed. 711 382, 517 United States ex rel. Goldstein v. Rogers, C. C. E. D. Pa., Jan., 1895, 65 Fed. 787 536 United States v. Rout, D. C. E. D. Pa., May, 1909, 170 Fed. 201, 106 United States v. Sandrey, C. C. E. D. La., Dec., 1891, 48 Fed. 550 . . 70, 193, 236, 472 United States v. Seabury, D. C. N. D. Cal., Dec., 1904, 133 Fed. 983. 253, 336 United States v. Seid Bow, D. C. D. Vt., June, 1905, 139 Fed. 56 360 United States ex rel. Huber v. Sibray, C. C. W. D. Pa., April, 1910, 178 Fed. 144 179, 268, 625 United States ex rel. Huber v. Sibray, C. C. W. D. Pa., April, 1910, 178 Fed. 150 207, 269, 413, 625 United States v. Sing Lee, D. C. D. Oregon, Jan., 1896, 71 Fed. 680. 360 United States v. Sing Lee, D. C. W. D. N. Y., Oct., 1903, 125 Fed. 627 565, 573, 601, 680 United States v. Sprung, C. C. A. 4th Ct., Feb., 1910, 187 Fed. 903. 274, 383, 386, 409, 464, 469, 509, 520, 540 United States v. Spruth, D. C. E. D. Penn., Jan., 1896, 71 Fed. 678. . 251 United States v. Sun, D. C. D. Vt., Nov., 1896, 76 Fed. 450 609 United States v. Thompson, C. C. S. D. N. Y., Nov., 1889, 41 Fed. 28. 189, 193 United States v. Too Toy, D. C. S. D. N. Y., Mar., 1911, 185 Fed. 838. 569 United States v. Trumbull, D. C. D. Wash. N. D., June, 1891, 46 Fed. 755 108, 109 United States v. Tuck Lee, D. C. N. D. N. Y., Mar., 1903, 120 Fed. 989 358, 363, 580 United States v. Tye, D. C. D. Oregon, Oct., 1895, 70 Fed. 318. 96, 223 United States v. Villet, C. C. S. D. N. Y., Oct., 1909, 173 Fed. 500. 185, 470, 504 United States v. Walker, C. C. E. D. N. Y., June, 1907, 156 Fed. 987. 106 United States ex rel. Funaro v. Watchorn, C. C. S. D. N. Y., Aug., Table of Oases. xxiii 1908, 164 Fed. 152 178, 459, 491, 502, 504 United States ex rel. Mango v. Weis, D. C. D. Md., Sept., 1910, 181 Fed. 860 211, 455, 467 United States v. Williams, D. C. N. D. Cal., Dec., 1897, 83 Fed. 997. 94, 599, 630 United States ex rel. Abdoo v. Williams, C. C. S. D. N. Y., Sept., 1904, 132 Fed. 895 382 United States ex rel. d ’Amato v. Williams, D. C. S. D. N. Y., July, 1909, 193 Fed. 228 515 United States ex rel. Bosny v. Williams, D. C. S. D. N. Y., Feb., 1911, 185 Fed. 598 540, 625 United States ex rel. Buccino v. Williams, C. C. S. D. N. Y., Oct., 1911, 190 Fed. 897 40, 523, 557, 617 United States ex rel. Canfora v. Williams, D. C. S. D. N. Y., Feb., 1911, 186 Fed. 354 622 United States ex rel. Chanin v. Williams, C. C. A. 2nd Ct., Mar., 1910, 177 Fed. 689 80, 295, 536, 653 United States ex rel. Dickman v. Williams, D. C. S. D. N. Y., Nov., 1910, 183 Fed. 904 211 United States ex rel. Elliopulous v. Williams, C. C. A. 2nd Ct., Dec., 1911, 192 Fed. 536 178, 461 United States ex rel. Falco v. Williams, C. C. S. D. N. Y., Nov., 1911, 191 Fed. 1001 617 United States ex rel. Freeman v. Williams, D. C. S. D. N. Y., Jan., 1910, 175 Fed. 274 72, 175, 263, 268, 269, 519 United States ex rel. Glavas v. Williams, G. C. S. D. N. Y., Feb., 1911, 190 Fed. 686 178, 524, 527 United States ex rel. Klein et ux. v. Williams, C. C. S. D. N. Y., Aug., 1911, 189 Fed. 915 519 United States ex rel. Nicola v. Williams, D. C. S. D. N. Y., Oct., 1909, 173 Fed. 626 407 United States ex rel. Ueberall v. Williams, D. C. S. D. N. Y., April, 1911, 187 Fed. 470 451, 470, 504, 676 United States v. “ George E. Wilton/ ’ D. C. N. D. Wash., 1890, 43 Fed. 606 109 United States v. Wong Ah Gah, D. C. D. Vt., May, 1899, 94 Fed. 831. 612 United States v. Wong Ah Hung, D. C. N. D. Cal., Aug., 1894, 62 Fed. 1005 , 364 United States v. Wong Chow, C. C. A. 5th Ct., April, 1901, 108 Fed. 376 491, 502 United States v. Wong Chung, D. C. N. D. N. Y., Feb., 1899, 92 Fed. 141 510, 519, 634 United States v. Wong Dep Ken, D. C. S. D. Cal., June, 1893, 57 Fed. 203 336 United States v. Wong Dep Ken, D. C. S. D. Cal., July, 1893, 57 Fed. 206 95, 616, 639 United States v. Wong Du Bow, D. C. D. Montana, Nov., 1904, 133 Fed. 326 571 United States v. Wong Hong, D. C. S. D. Cal., Dec., 1895, 71 Fed. 283 361 XXIV Table of Cases. United States v. Wong Kee, D. C. S. D. N. Y., Nov., 1911, 192 Fed. 583 660 United States v. Wong Lung, D. C. D. Vt., May, 1900, 103 Fed. 794. 360, 569, 585, 600 United States v. Wong Ock Hong, D. C. D. Oregon, 1910, 179 Fed. 1004 570, 640, 642 United States v. Wong Quong Wong, D. C. D. Vt., June, 1899, 94 Fed. 832 '. 19 United States v. Wong Soo Bow, D. C. D. Vt., Dec., 1901, 112 Fed. 416 502 United States v. Wood, D. C. D. N. J., Oct., 1907, 159 Fed. 187. . . . 106 United States v. Wood, D. C. D. N. J., Mar., 1909, 168 Fed. 438. 72, 106, 109, 514 United States v. Yamasaka, C. C. A. 9th Ct., Feb., 1900, 100 Fed. 404 74, 539 United States v. Yee Gee You, O. C. A. 4th Ct., Mar., 1907, 152 Fed. 157 573, 585, 651 United States v. Yee Kee Guey, United States v. Yee Yet, D. C. D. N. J., Nov., 1911, 192 Fed. 577 666 United States v. Yee Oung Yuen, C. C. A. 8th Ct., 1911, 191 Fed. 28. 370, 589, 600 United States v. Yee Yen Tai et al., C. C. A. 2nd Ct., May, 1901, 108 Fed. 950 643 United States v. Yong Yew, D. C. E. D. Mo. E. D., Nov., 1897, 83 Fed. 832 28, 94, 97, 579 United States v. Yung Chu Keng, D. C. D. Montana, Sept., 1905, 140 Fed. 748 346, 635, 651 United States v. Yuen Pak Sune, D. C. N. D. N. Y., Nov., 1910, 183 Fed. 260.... 308, 674 United States v. Yuen Yee Sum, D. C. D. Oregon, April, 1907, 153 Fed. 494 638,641 Vito Rullo, in re, C. C. S. D. N. Y., May, 1890, 43 Fed. 62 481, 483 Warren v. United States, C. C. A. 1st Ct., Nov., 1893, 58 Fed. 559. . 251 Watchorn, ex parte, C. C. S. D. N. Y., April, 1908, 160 Fed. 1014. 178 Waterhouse & Co. v. United States, C. C. A. 9th Ct., 1908, 159 Fed. 876 234, 236, 513, 538, 539 Way Tai, in re, C. C. D. Oregon, Aug., 1899, 96 Fed. 484 250, 336, 491, 502, 518, 617 Williams v. United States ex rel. Bougadis, C. C. A. 2nd Ct., Mar., 1911, 186 Fed. 479 308, 463 Wing You, ex parte, C. C. A. 9th Ct., Sept., 1911, 190 Fed. 294. . . . 620 Woey Ho v. United States, C. C. A. 9th Ct., May, 1901, 109 Fed. 888. 386, 573, 651 Worn Ah Gar v. United States, D. C. D. Vt., May, 1899, 94 Fed. 831. . 97 Wong Chun v. United States, C. C. A. 9th Ct., May, 1909, 170 Fed. 182 270, 651 Wong Fock, in re, D. C. N. D. Cal., May, 1897, 81 Fed. 558 ,.632, 636 Wong Fong v. United States, C. C. A. 9th Ct., Oct., 1896, 77 Fed. 168 97, 612 Table of Cases. xxv Wong Heung v. Ellicott, C. C. A. 9th Ct., May, 1910, 179 Fed. 110. 185, 368, 383, 384, 650 Wong Kim Ark, in re, D. C. N. D. Cal., Jan., 1896, 71 Fed. 382 413 Wong Sang, ex parte, D. C. D. Mass., Nov., 1905, 143 Fed. 147. 535, 537 Wong Sang v. United States, C. C. A. 1st Ct., Jan., 1906, 144 Fed. 968. 338, 537 Wong Sang v. United States, C. C. A. 1st Ct., Mar., 1906, 144 Fed. 968 18, 535, 641 Wong You et al., ex parte, D. C. N. D. N. Y., 1910, 176 Fed. 933. . . . 103, 551, 619, 672, 673, 680 Wong You et al. v. United States, C. C. A. 2nd Ct., June, 1910, 181 Fed. 313 103, 551, 673 Woo Jew Dip v. United States, C. C. A. 5th Ct., Dec., 1911, 192 Fed. 471 * 651 Wo Tai Lai, in re, D. C. N. D. Cal., Aug., 1888, 46 Fed. 668 578, 589 Wy Shing and 1 other case, in re, C. C. N. D. Cal., Nov., 1888, 36 Fed. 553 413 Yee Ging v. United States, D. C. W. S. Texas, El Paso Div., Aug., 1911, 190 Fed. 270 569 Yee King v. United States, C. C. A. 2nd Ct., May, 1910, 179 Fed. 368 569, 650 Yee Lung, in re, D. C. N. D. Cal., May, 1894, 61 Fed. 641 97, 357, 575, 613 Yee N'Goy v. United States, C. C. A. 9th Ct., May, 1902, 116 Fed. 333 548, 571, 631, 632 Yee Yee Chung v. United States, D. C. W. D. Texas, June, 1899, 95 Fed. 432 681 Yee Yet v. United States, C. C. A. 2nd Ct., Jan., 1910, 175 Fed. 565. 650 Yee Yuen v. United States, C. C. A. 9th Ct., Oct., 1904, 133 Fed. 222 573 Yew Bing Hi, in re, D. C. D. Mass., Jan., 1904, 128 Fed. 319 94, 97, 357, 360, 585 Yuen Pak Sune v. United States, C. C. A. 2nd Ct., Nov., 1911, 191 Fed. 825 651 Yung Ling Hee, in re, D. C. D. Oregon, Oct., 1888, 36 Fed. 437 413, 486 INSULAR DECISIONS. I. UNITED STATES DISTRICT COURT, HAWAII. Ah Sing, in re, 1 U. S. D. C. Hawaii 15 474 Berger v. Bishop, 1 U. S. D. C. Hawaii 405 227 Chop Tin, in re, 2 U. S. D. C. Hawaii 153 512, 516 Koon Ko and Koon Heen, in re, 3 U. S. D. C. Hawaii 623 126, 498 Leong Sai, in re, 1 U. S. D. C. Hawaii 234 602 Pang Kun, in re, 2 U. S. D. C. Hawaii 192 512 xxvi Table of Cases. Sue Yen Hoon, 3 U. S. D. C. Hawaii 606 522, 535 Umeno, in re, 3 U. S. D. C. Hawaii 481 177, 540 United States v. Cam You, 1 U. S. D. C. Hawaii 113 360, 367, 368 United States v. Ching King Hee, 3 U. S. D. C. Hawaii 556 616 United States v. Ching Tai Sai and Ching Tai Sun, 1 U. S. D. C. Hawaii 118 126 United States v. Cut Yong, 1 U. S. D. C. Hawaii 104 360, 571, 607 United States v. Meyama, 1 U. S. D. C. Hawaii 399 208 United States v. Wong Kock Yii, 3 U. S. D. C. Hawaii 67 108 United States v. Yamamoto, 3 U. S. D. C. Hawaii 224 287 Wong Lin, in re, 1 U. S. D. C. Hawaii 44 571 Yim Quok Leong, 1 U. S. D. C. Hawaii 166 536 II. SUPREME COURT, PHILIPPINE ISLANDS. Allen, in re, 2 Phil. Rep. 630 113, 114 Fornow v. Hoffmeister, 6 Phil. Rep. 33 189 Go To Sun v. McCoy, 16 Phil. Rep. 497 535 Jao Igco v. Shuster, 10 Phil. Rep. 448 498 Juan Co. y. Rafferty, 14 Phil. Rep. 235 508 Ko Poco v. McCoy, 10 Phil. Rep. 442 451 Lo Po y. McCoy, 8 Phil. Rep. 343 450 Lorenzo v. McCoy, 15 Phil. Rep. 559 360, 535 Lun Jao Lu v. McCoy, 10 Phil. Rep. 641 498 Ngo Ti v. Shuster, 7 Phil. Rep. 355 116, 535 Oehlers v. Hartwig, 5 Phil. Rep. 487 217 Rafferty v. Judge of 1st Instance, 7 Phil. Rep. 164 508 Teerthdass v. Pohoomul Bros., 15 Phil. Rep. 705 187 United States v. Almond, 6 Phil. Rep. 306 257 United States v. Ballentine, 5 Phil. Rep. 312 122 United States v. Chan Sam, 17 Phil. Rep. 448 121, 352 United States v. Go Siaco, 12 Phil. Rep. 490 666 United States v. Lim Co., 12 Phil. Rep. 703 121 United States v. Sy Quiat, 12 Phil. Rep. 676 122 United States v. Tan Sam Pao, 15 Phil. Rep. 592 612 PORTO RICO FEDERAL REPORTS. United States v. Michelana, 1 P. R. Fed. Rep. 209 224 The Exclusion and Expulsion of Aliens in the United States CHAPTER I. POWER AND METHODS OF EXCLUSION AND EXPULSION. I. I. General Right of Governments to Exclude or Expel. II. Limitations Imposed by International Law on the Exercise of the Right. III. The Exercise of the Power in the United States. A. In General. B. Regulation of Immigration by Treaty. 1. The Treaties with China. (A.) The Treaty of November 17, 1880. (B.) The Treaty of December 8, 1894. 2. The Most Favored Nation Clause as Affecting the Opera- tion of the Exclusion and Immigration Laws. (A.) The Treaties with China. (B.) The Treaty with Denmark of May 6, 1826. (C.) The Treaty with Italy of April 29, 1871. (D.) The Treaty with Japan of March 21, 1895. C. Effect on Existing Treaties or Laws of Subsequent Laws or Treaties. D. Regulation of Immigration by Legislative Enactment. 1. The Immigration Acts. (A.) The Alien Act of 1798. (B.) The Coolie Trade Acts of 1862 and 1869. (C.) The Act of May 31, 1870. (D.) State Laws Concerning Immigration. (1.) New York. (2.) Massachusetts. (3.) California. (E.) The Act of March 3, 1875. (F.) The Act of August 3, 1882. 2 The Exclusion and Expulsion of Aliens. (G.) The Act of February 26, 1885, as Amended by the Act of February 23, 1887. (H.) The Act of March 3, 1891. (I.) The Act of March 3, 1893. ( J.) The Act of March 3, 1903. 2. The Chinese Exclusion Acts. (A.) The Acts of May 6, 1882, and of July 5, 1884. (B.) The Act of September 13, 1888. (C.) The Act of October 1, 1888. (D.) The Act of May 5, 1892. (E.) The Act of November 3, 1893. (F.) The Act of August 18, 1894. (G.) The Act of March 3, 1901. (H.) The Act of April 29, 1902. (I.) The Act of February 14, 1903. (J.) The Act of April 27, 1904. (K.) The Application of the Immigration Acts to Chinese. (L.) Crimes and Penalties Under the Chinese Ex- clusion Acts. 3. The Operation of the Immigration and Chinese Exclusion Laws in the Insular Possessions. (A.) The Philippine Islands. (1.) In General. (2.) Legislation regulating the admission of Im- migrants. (3.) Legislation Regulating the Admission or Resi- dence of Chinese. (a.) Act No. 317 of the Philippine Commis- sion. (b.) Act No. 702 of the Philippine Commis- sion. (B.) The Hawaiian Islands. (C.) Porto Rico. 4. Constitutional Power of Congress to Exclude or Expel. (A.) In General. (B.) Power of Congress to Vest Final Determination of Right of Aliens to Enter or Remain in Execu- tive Officers. (1.) Of the Right to Enter or Remain for Resi- dential Purposes. (2.) Of the Right to Regulate the Admission of Aliens for the Purpose of Transit. (C.) Necessity for a Fair Hearing. (D.) Classes Generally Exempted from the Exercise of the Power. Power and Methods. 3 I. General Right of Governments to Exclude or Expel. It is a generally accepted principle of international law that any state, being an independent member of the family of nations, may, in the exercise of its inherent powers of sovereignty, prohibit the entrance of foreigners into its territory, or prescribe the conditions under which they shall be allowed to enter, and that this may be done either with regard to foreigners as a whole, or only as to certain classes of aliens. Since under international law no for- eigner can claim, as of right, to enter the jurisdiction of a sovereign state other than his own, it necessarily follows that the right to exclude all foreigners is recognized under the law of nations. At the same time it is obvious that under conditions as they exist to-day, no civilized nation would enter upon the indiscriminate exercise of either the right of exclusion or expulsion. “For a state to exclude all foreigners,” says Mr. Hall, 1 “would be to withdraw from the brotherhood of civilized peoples; to exclude any without reasonable or at least plausible cause, is regarded as so vexatious and oppressive that a government is thought to have the right of inter- fering in favor of its subjects in cases where sufficient cause does not, in its judgment, exist.” But the fact that the exercise of the right to exclude by one nation may appear unwarranted from the standpoint of the state whose citizens have been subjected to such treatment, and may, with the full sanction of international law lead to diplomatic intervention, reprisals, or even war, is no argument against the existence of the general right to do so. The Supreme Court of the United States has held that jurisdiction over its own territory to the extent of enabling it to exclude or expel aliens therefrom is the right of every independent nation, and constitutes a part of its independence ; that if it could not exercise this power it would be to that extent subject to the control of another Hnternational Law, 4th Ed., p. 223. 4 The Exclusion and Expulsion of Aliens. nation; that to preserve its independence and to provide security against foreign aggression and encroachment is the highest duty of a state, and to attain these ends all other considerations are to be subordinated, irrespective of whether or not aggression or encroachment are the re- sult of national acts on the part of unfriendly states, or arise merely from the influx of undesirable aliens into the country . 2 In other words, inasmuch as the right of self- preservation exists unlimited and unabridged in every independent state, the right to take any steps which, in the opinion of the state itself, are necessary to guarantee its absolute protection, must be equally unlimited; and the state itself must, perforce, be the only judge as to the existence of the contingency on which its action is based, the nature of the action to be taken, and the persons or classes of persons who shall be subjected to its effects. That the absolute right to exclude or expel in the public in- terest of the state exists in every independent nation is admitted on all hands by publicists and recognized au- thorities on international law . 3 “It is at all events certain/’ says Pradier-Fodere , 4 “that the power which every state has to expel strangers from its territory is one of the complementary elements of the protection to society which is the end and purpose of the right to inflict punishment. This power to compel a stranger to leave the country by causing him, if need be, to be conducted to the frontier, is the immediate result 2Chae Chan Ping v. United States, 130 U. S. 531, 32 Law Ed. 1068; Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. 31 Yattel Law of Nations, chap. 19, par. 230, 231; 2 Ortolan, Diplomatie de la Mer (4th Ed.), chap. 14, p. 297; 1 Phillimore, International Law (3d Ed.), chap 10, par. 220; Bar, International Law (Gillespie’s Ed., 1883, 708, Note 711; Fiore, Nouv. dr. int. publ. (2d Ed.) (Antoine’s trans- lation into the French), t. 1, n. 699, t. 3, n. 1297, p. 93; Calvo, Le dr. int. (5th Ed.) (French), Yol. 2, par. 700; Bonfils, Manuel du Droit Int. Pub., par. 442; Darut, De 1 ’Expulsion des Etrangers: Aix, 1902; Moore Int. Law Dig., Vol. IY, par. 550, p. 68; Martini, l’Expulsion des Etrangers, p. 14. 4Yol. Ill, Traite de Droit International Public, par. 1857. Power and Methods. 5 of sovereignty. It is vain to deny the existence of this right by alleging that human liberty is the most sacred of all natural rights, and that its complete development is not limited by the boundaries of the country of which one is a citizen; that it is contrary to the principles of law and to the true interests of the people to abridge complete freedom in the maintenance of permanent relations between the nationals of the various states; that expulsion is a penalty, and that an individual who has not been found guilty cannot be punished; that the state which believes that it has cause to complain of a stranger’s acts will deal more equitably in bringing him before a judicial tribunal in order to determine whether he is innocent or guilty. This argument may always be successfully met by show- ing that the right of dwelling unrestricted in any place may be subjected to limitations in the general interest of the political community, as may all rights ; and that, with regard to persons who fall short of living up to those obligations which arise from the enjoyment by them of the hospitality of the particular nation and turn out to be objects of anxiety or permanent sources of danger or scandal to the state which receives them, there is no obligation on the part of the state to exercise generosity up to the point of imposing upon its authorities the obliga- tion of keeping them under surveillance for the purpose of thwarting their criminal machinations ” The exercise of the right of expulsion is generally dis- cussed by the European authorities in connection with the performance of some act or acts on the part of the alien constituting in itself an immediate cause or justification for the measure adopted . 5 But since the mere presence 5 Acts of an anarchistic or socialistic tendency. Expulsion of Prince Kro- potkin, Switzerland, 1881. Condonation of assassination. Expulsion of Laurent Tilhade, Belgium, 1901. Organization of labor unions, case of Ben Tillet, Belgium, 1896. Espionage, Hoffman case, Switzerland, 1893; Richthofen case, Switzerland, 1902. Intrigues against the State, The Span- ish Ambassador, Great Britain, 1584; the French Minister, Great Britain, 1654; the Swedish Minister, Great Britain, 1717; the British Ambassador, 6 The Exclusion and Expulsion of Aliens. of aliens, apart from particular acts done or threatened to be done by them such as tend to injure or destroy the peace of the state, may constitute a menace to its security, that presence may of itself justify their expulsion. In this country the exercise of the right of expulsion for the commission of a particular act or acts had, up to the passage of the act of March 3d, 1903, rarely, if ever, been exercised. 6 Under the Exclusion and Immigration acts proceedings for the exclusion or expulsion of aliens have invariably been held by the courts to be proceedings not criminal in nature, and deportation not to be punishment for crime. “Deportation,” says Mb. Justice Gray, speak- speaking for the court in the case of Fong Yue Ting, supra, “is the removal of an alien out of the country, simply because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated, either under the laws of the country out of which he is sent, or those of the country to which he is taken.” 7 Expulsion constitutes neither banishment nor extradi- Spain, 1848; the Spanish Ambassador, France, 1718. Intrigues against third 'powers. The case of General Boulanger, Belgium, 1889; the case of the Count of Cambord, Belgium, 1872; the case of ex-President Castro, France (Martinique), 1909. Resisting the Law, Montagnini’s case, France, 1906; case of the Apostolic Nuncio, Argentine, 1884. Anti-militarism. Case of Hugo Nanni, France; and case of Father Forbes, France, 1892. Trea- sonable utterances. Case of the six Italians, Switzerland, 1901. Insult to the National Flag. Ghio’s case, France. See Martini l’Expulsion des Etrangers, Chapter on Causes of Expulsion, pages 54 to 80. eSection 3 of the present Immigration Law, as amended by section 2 of the Act of March 26th, 1910, provides for the expulsion of aliens found to be inmates of or connected with houses of prostitution or engaging in similar practices after entering the United States; before its amendment the period in which the alien could be deported was three years after entry, the act “ being an inmate of a house of prostitution or practicing prostitu- tion’ ’ and the only class of aliens subject to the measure “women or girls. ’ ’ 7The Act of March 26th, 1910, provides that any alien who shall have been debarred or deported under its second section and who attempts to return to or enter this country shall be deemed guilty of a misdemeanor and shall be imprisoned for not more than two years. Power and Methods. 7 tion . 8 The distinction between expulsion on the one hand and banishment and extradition on the other is clearly pointed out by a European writer : 9 “Those who have been banished are, like those who are expelled, forced to leave the country; but, whereas those who are subjected to banishment are compelled to de- part only when lawfully convicted of a crime which entails banishment as its penalty, those who are expelled are subject to deportation on being served with an official order to that effect The Government, on the one hand, issues the order of expul- sion (deportation) in due course and at its discretion without any preliminary understanding with the state of which the party expelled is a national; and on the other hand the grounds of expulsion need not be set out in the order, for, on principle, the Government is the sole judge as to the necessity to deport. This absence of prior entente with the state to which the deportee belongs re- sults in expulsion being a unilateral act, differing essen- tially thereby from extradition, with which expulsion is at times confused. Extradition presupposes a prior un- derstanding between states, as a matter of course ; it con- stitutes a bilateral act in the form of a convention agreed upon between two states. When a state extradites a per- son, or in other words delivers up an individual accused of crime, or who has actually been found guilty of an offense committed outside of its jurisdiction and against the laws of the state which is seeking to have him extradited, and which has the right to determine and to punish his guilt, this is done by force of prior treaties or by virtue of a special agreement between states. When, on the other hand, a state expels, it is not because it is under any obligation to do so based on a contract with another state ” If a sovereign State has right to expel foreigners sFong Yue Ting v. United States, 149 U. S. 698, 37 Law. Ed. 905. 9 Alexis Martini, 1 ’Expulsion des Etrangers, pp. 5 and 6. 8 The Exclusion and Expulsion of Aliens. from its dominions it has, a fortiori } the right to prohibit their entrance into its jurisdiction. “The right of a nation,” says Mr. Justice Gray, 10 “to expel or deport foreigners who have not been naturalized or taken any steps towards becoming citizens of the country rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country;” and again, in the same opinion: “The power to exclude aliens and the power to expel them rest upon one founda- tion, and are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power.” While the general expulsion of all foreigners belonging to a given nation has been on more than one occasion jus- tified as a war measure — but even then with hesitation 11 — nevertheless, the power of a nation to exercise the right ioFong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. n 11 Wholesale expulsion in war time is an act of defence, a perfectly legiti- mate measure the legality of which cannot be contested Each state may proceed to the wholesale expulsion of the citizens of the other bel- ligerent although they may have taken up their abode within its territory in perfect good faith ” (Bonfils et Fauchille, Man. de dr. int. publ., 5th Ed., n. 1055). It is, however, well understood that expulsion en masse will only be resorted to in case of imminent danger. A declaration of war does not ipso facto involve the collective expulsion of the subjects of the enemy residing in the state. Although it may be one of the natural results of war it is not a necessary result; moreover, when a state resorts to this measure it must proceed with humanity and give the persons sub- jected thereto a reasonable time in which to leave the country. (Martini 1 'Expulsion des Etrangers, p. 88, citing Fiore, Nouv. dr. int. publ., 2d Ed., n. 12, and Heffter, par. 121, p. 267; likewise Bonfils et Fauchille, ubi supra.) The states which have exercised this right in war time are France (1870), Turkey, (1897), and the Transvaal (1899-1902). Among those which have refrained from exercising it are, Russia (1854; 1904, except regarding Jap- anese “in the territories forming a part of the Lieutenancy of the Extreme Orient”) ; Japan (1894 and 1904-5). Although writers on international law find no difficulty in asserting the existence of the right — and if it exists in peace it certainly must exist in times of war — its result is almost invariably to subject the state exercising it to severe criticism. Hence the appearance of so many “defences” submitted by publicists after the event. See M. Despagnet's article in the Rev. gen. de dr. int. publ., 1900, p. 698; and Martini's comments on the Russian- Japanese war, 1 'Expulsion des Etrangers. Power and Methods. 9 in time of peace as well as war cannot be denied; but whether justifiable or not would depend on the particular exigency. “If,” said the Supreme Court , 12 “the Govern- ment of the United States through its legislative depart- ment considers the presence of foreigners of a different race in this country who are not assimilated with us, to be dangerous to its peace and security, their exclusion is not to be stopped, because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the ne- cessity of the proceeding only more obvious and pressing. The same necessity in a less pressing degree may arise when war does not exist, and the same authority which adjudges the necessity in one case may determine it in the other.” And the right to exclude or expel all aliens, absolutely or upon certain conditions, in war or in peace, as an inherent and inalienable right of every sovereign nation, essential to its safety, independence and welfare, has received the unqualified sanction of the Supreme Court of the United States in later decisions . 13 II. Limitations Imposed by International Law on the Exercise of the Right. Granting that the right to exclude or expel all foreign- ers, or any class of foreigners, absolutely or upon certain conditions in war or in peace is, inherently, an inalien- able right of every sovereign nation, essential to its safety, its independence and its welfare , 14 and that the control of such persons and the right to expel them are too clearly within the essential attributes of sovereignty to be seri- ously contested , 15 the further question presents itself as to whether, under the law which concedes the existence of i 2 Chae Chan Ping v. United States, 130 U. S. 531, 32 Law Ed. 1068. isFong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905; United States ex rel. Turner v. Williams, 194 U. S. 279, 48 Law Ed. 979. 14 Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. iBWharton Int. Law Dig., par. 206. 10 The Exclusion and Expulsion of Aliens. the power, there are imposed any limitations as to the methods of its exercise ; the term “limitations” being used in the sense of restrictions upon the exercise thereof adopted as a matter of international custom based upon the recognized expediency existing between all civilized nations, and supported by the weight of authority. It must be remembered that in international law no foreigner can claim the right of entry or admission to a state. But if the state throws open its ports to the en- trance of foreigners, welcomes the immigration of. persons of an alien race into its jurisdiction, or in any other way invites strangers to enter its territory, there results, under international law, a duty, self-imposed upon the state, to protect and to vest with rights, in many respects the same as enjoyed by the citizens and subjects of the state , 16 all aliens who may enter in reliance on the invi- tation extended. But in entering under these circum- stances, it is with the implied condition that the rights which the state of domicile is under the obligation to protect are subject to limitation or restriction not only by the existing municipal law of the country but by whatever future enactments the legislative department may provide. At the same time, as stated by Sir Robert Phillimore, “no country has a right to set, as it were, a snare for foreigners; therefore, conditions hostile to their interests or different from gen- eral usage must be specifically defined.” 17 Vattel has ex- pressed the same idea in stating the principle that “the sovereign must not permit access into his territory for the purpose of luring foreigners into a trap.” Hence the principle that the right of expulsion, if exercised at all against aliens who have come to a country having good reason to believe that, as to them, the ordinary procedure in any given case, sanctioned by the civilized countries of the world, would be observed, must not be arbitrarily leLau Ow Bew v. United States, 144 U. S. 47, 36 Law Ed. 340. i7lnt. Law, Vol. 2, chap 2. Power and Methods. 11 exercised . 18 This principle is generally accepted not only by European and Pan-American publicists and by the courts of this country, but by successive secretaries of state in passing upon the question as to whether or not the ex- pulsion of American citizens from foreign states was ac- complished in contravention of this rule. “This government / 1 says Mr. Gresham, Secretary of State, to Mr. Smyth, Minister to Hayti , 19 “does not pro- pose to controvert the principle of international law which authorizes every individual State to expel objectionable foreigners or class of foreigners from its territory. The right of expulsion or exclusion of foreigners is one which the United States, as well as many other countries has, upon occasion, exercised when deemed necessary in the interest of the government or its citizens. But this right, although based upon recognized principles of interna- tional law, has limitations which the same principles impose. ‘Every state is authorized, for reasons of public order, to expel foreigners who are temporarily residing in its territory. But when a government expels a foreigner without cause and in an injurious manner, the state of which this foreigner is a citizen has a right to prefer a claim for this violation of international law, and to de- mand satisfaction if there is occasion for it . 1 ( Calvo, Diet. Inter. Law, “Expulsion. 11 ) There is certainly noth- ing in the law or practice of this country which can be cited as a precedent for the arbitrary expulsion of for- eigners without hearing and without cause. The best rule would seem to be that no nation can single out for the ex- pulsion from its territory any individual citizen of a friendly nation without special and sufficient grounds isPradier Fodere, Traite de droit international public, par. 1857 ; Rolin- Jaequemyns Revue du Droit Int., Yol. 20, p. 489 ; Tehernoff, Protection des Naturaux Residant a l’Etranger, p. 444 et seq; Calvo Dictionnaire du Droit Int. (Title Expulsion); Yon Bar, Journal Droit Int. Prive, Yol. 13, p. 6; Heffter, Yoelkerrecht, Sec. 62; Bluntschli, Droit Int. Codifie, Arts. 383-400. i»Foreign Relations, 1895, Vol. II, p. 801, cited in Moore Int. Law Dig, Yol. IV, p. 83. 12 The Exclusion and Expulsion of Aliens. therefor. And even when such grounds exist the exclusion should be effected with as little injury to the individual and his property interests as may be compatible with the safety and interests of the country which expels him. That universal sense of right and justice which suggests that no man should be condemned without a hearing would seem to require that the person singled out for ex- pulsion should, as a general rule, first be notified of the charges against him and given an opportunity to refute them. To again quote Pradier-Fodere : ‘Expulsion is legiti- mate only so far as it is demonstrated with evidence that the presence of those whom it affects imperils the peace within or without the security of the governors or of the governed; that, in a word, it compromises one of the in- terests which the state guards. It is necessary that the danger be certain, that the menace be effective; the ad- ministration should not recur to this harsh measure except so far as the condition of the individuals who are the object of it inspires real and well-founded disquietude either in the inhabitants of the country or in the govern- ment itself, or perhaps even in a friendly government. The universal conscience protests against the arbitrary use of the right of expulsion.’ ” 20 In answering the question, “In what manner and within what limits may governments exercise the right of expul- sion of foreigners?” Rolin-Jaequemyns has said: 21 “Every state may limit the admission and the residence of foreign- ers upon its territory by such conditions as it deems nec- essary. But (he adds) there is another consideration which tends not to annul, but to restrain this exercise of territorial sovereignty. The individual expelled has the 2oMr. Sherman, Secretary of State, to Mr. Powell, min. to Hayti, No. 94, Jan. 8th, 1898, MS. Inst. Hayti, III, 622, cited in Moore Int. Law Dig., Vol. IV, p. 91. 2 iRevue de Droit 1 International, Vol. XX, p. 498 et seq., cited in Foreign Relations of the United States, Part II, 1895, p. 776. Power and Methods. 13 double quality of being a man and a citizen of another state. As a human being he has the right to be exempt from needless harsh treatment, and from unjust detriment to his interests; in his quality of citizen of another state he has the right to invoke the protection of his country against unduly rigorous treatment and against spoliation of his property. The act of expulsion ought to conform to its direct, essential object, which is to relieve the soil of an obnoxious guest. The right of national sovereignty does not require or permit more. Generally an official order to leave the country within a specified time is suf- ficient. If not, force may be employed But forcible eviction should never assume a gratuitously vexatious character.” This view was relied on by Mr. Olney in a communica- tion sent by him as Secretary of State to Mr. Young, the United States minister to Guatemala in connection with the claim of J. H. Hollander, who had been expelled from Guatemala by an executive decree under circumstances of singular and unnecessary harshness. The Guatemalan Government had expressed the view that it “was not under obligation to allow him (Mr. Young) more or less time to get out of the country, nor to accommodate him in any way. All the practices of international jurisprudence fall down before a law clear that comes immediately from the sovereignty of a nation.” 22 To this Secretary Olney re- plied; “The logical result of that proposition is, that whatever a state by legal formula wills to do, it may do; and that international law obligations are annulled, not infringed, by legalized administrative action in contra- vention of those obligations I construe the language used to mean that, as a rule of international law the right to expel is absolute and inherent in the sovereignty of a state, and that no other state can question the exercise of this right nor the manner of exercising it The 22 Foreign Relations of the United States, ante ; Venezuelan Arbitrations of 1903 — Ralston’s Report, p. 700. 14 The Exclusion and Expulsion of Aliens. modern theory and practice of Christian nations is be- lieved to be founded on the principle that the expulsion of a foreigner is justifiable only when his presence is detri- mental to the welfare of the state, and that when expul- sion is resorted to as an extreme police measure it is to be accomplished with due regard to the convenience and the personal and property interests of the person expelled.” The conclusion to be drawn from the authorities above referred to is that while a sovereign state has an absolute right to exclude or expel any or all foreigners from its jurisdiction either in time of peace or war, a nation which exercises either right in an arbitrary or unjust manner may render itself thereby liable to a demand for satisfac- tion on the part of the state whose national has been thus expelled or excluded. III. The Exercise of the Power in the United States. A. In General. It has been previously pointed out 23 that international law confers no right upon the citizen or subject of one nation to enter the territory of a foreign sovereign; but that, the permission being once granted, his situation within such foreign jurisdiction as a domiciled alien, or even as a transient, vests in him, generally speaking, and for the time being, the same civil rights which the na- tionals of the country of domicile possess. “By general international law,” said Chief Justice Fuller, 24 “for- eigners 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.” At the same time the alien is presumed to enter with the knowledge that pre- cisely because of the fact of his alienage he may be sub- 23 Ante , p. 10. 24Lau Ow Bew v. United States, 144 U. S. 47, 2J6 Law Ed. 340. Power and Methods. 15 jected to municipal laws and regulations peculiarly ap- plicable to him and all others of the class of which he is a member, which may result in imposing upon him bur- dens to which the native residents of the country are not subjected. In fact the only limitation upon municipal legislation affecting aliens may be said to consist in that it must not be arbitrary or purely capricious in nature, or directed towards him or those in a similar situation merely because they happen to belong to a particular nation. But this principle does not operate to exempt aliens from the effect of municipal regulations made applicable to them as members of a particular class, even though the members of that class happen to belong to one particular nation, provided that the methods adopted by the administration are put in force with the honest object of safeguarding the interests of the nation and of its citizens. In the United States the power to prohibit the entrance of foreigners into its dominions, or to admit them only in such cases and upon such conditions as Congress may see fit to prescribe, even though they seek admission for the purpose of transit only, 25 is vested in the National Govern- ment to which the Constitution has committed the en- tire control of international relations in peace as well as in war. And, as Congress may admit some and exclude others, so may it expel aliens of a certain class and allow others to remain. Thus, the Act of November 3, 1893, 26 which provided for the extension in favor of Chinese per- sons generally — but not in favor of Chinese felons — of the period in which Chinese residing in the United States might register was unhesitatingly held constitutional; 27 and it is needless to add that the power to regulate the con- ditions on which aliens may enter or remain includes the power to designate the ports of entry 28 and to prescribe 25Fok Young Yo v. United States, 185 U. S. 296, 46 Law Ed. 917. 2628 Stat. at L. 7. 2 7United States v. Chew Cheong, 61 Fed. 200. 28 Ex parte Li Dick, 174 Fed. 674. 16 The Exclusion and Expulsion of Aliens. the conditions under which deportation is to be effected. 29 In the United States this power is vested in the political department of the Government and may be exercised either through treaties made by the President or through statutes enacted by Congress. 30 “The sound construction of the Constitution,” said Mr. Justice Gray, 31 “must allow to the National Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.” The source of the power of Congress to make provisions concerning the admission or exclusion of aliens is twofold : first, as the mouthpiece of the United States in its capacity as a sovereign state among the family of nations ; second, the power to regulate foreign commerce conferred upon it by section 8 of Article I of the Constitution of the United States. 32 Said the Supreme Court : 83 “Whether rested on the ac- cepted principles of international law that every sovereign nation has the power as inherent in sovereignty essential to self-preservation to forbid the entrance of foreigners within its domain, or to admit them only in such cases and on such conditions as it may see fit to prescribe, or on the power to regulate commerce with foreign nations which includes the entrance of ships, the importation of goods, and the bringing of persons into the United States, the act before us is not open to constitutional objection” — 2 9Yamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721; Lees v. United States, 150 U. S. 476, 37 Law Ed. 1150; Ekiu v. United States, 142 U. S. 651, 35 Law Ed. 1146; Chae Chan Ping v. United States, 130 U. S. 581, 32 Law Ed. 1068. 30Ekiu v. United States, supra. siFong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905, quot- ing Chief Justice Marshall in McCullough v. Maryland. 32Head Money Cases, 112 U. S. 580, 28 Law Ed. 798; Ekiu v. United States, 142 U. S. 651, 35 Law Ed. 1156. 33United States ex rel. Turner v. Williams, 194 U. S. 279, 48 Law Ed. 979. Powee and Methods. 17 and held that the Act of 1903, 84 which prohibited the en- trance into the United States of alien anarchists, and pro- vided that the question of whether the person seeking ad- mission into the country was in fact both an alien and an anarchist might be finally determined by executive officers, was constitutional. While the principle is maintained that any alien per- mitted to enter a foreign country may claim as of right the privileges conferred by the municipal laws thereof — in other words the constitutional provisions and statutory enactments in force therein — this principle applies to its full extent only in cases where the alien has actually law- fully entered and settled in the country for the purpose of establishing his domicile therein, provided furthermore that he does not belong to or become a member of a class subject to the operation of deportation proceedings either through his own act or by any act of the national legisla- ture. It follows that when an alien member of a class ad- mission to which is prohibited by the laws of the state, is prevented from effecting an entrance within its borders, the principle does not apply. No rights conferred either by the constitution or by the municipal law of the country of projected domicile, which can be claimed only on the theory of temporary allegiance in return for temporary protection, can be invoked where, by the very fact of re- fusing to admit him, the state denies him that protection and refuses the proffered offer of allegiance. At the same time it must be admitted that, being within the jurisdic- tion of the rejecting state, the alien is for the time being at least, and in partial measure, subject to the provisions of the laws of the state both for the purpose of protection, and for the purpose at least of criminal liability. But it is equally true, and it seems equally clear, that a foreigner so situated cannot generally invoke rights conferred either by the Constitution or by the municipal laws of the state 3432 Stat. at L., Pt. I, p. 1213. 18 The Exclusion and Expulsion of Aliens. which were conferred with the obvious purpose of apply- ing to persons normally within the sphere of operation of such Constitution or laws. Granting the existence of such laws governing the subject of aliens and covering the situation most frequently presented — that of an alien re- fused admission and awaiting deportation in accordance with those laws — since the latter in turn depend for their validity if enacted under a constitutional form of govern- ment, on the provisions of the paramount law, it is ap- parent that in so far as the constitutional prohibition may apply to his case, the alien is entitled to their protection. But it is equally true that the mere fact of being within the territorial limits of the United States, and for certain purposes within the jurisdiction of its courts, confers upon the alien no right to invoke each and every guarantee of the Federal Constitution, in support of an alleged right to enter . 35 “He does not become,” said the court in the case of Turner v. Williams , 36 “one of those people to whom these things are secured by the Constitution by an ab tempt to enter forbidden by law. To appeal to the Constitu- tion is to concede that this is a land governed by that su- preme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise.” Aliens in this situa- tion are considered, so far as their right to invoke the constitutional guarantees is concerned, to be in the same position, although physically within the boundaries of the United States, as if they had been stopped at the limits of the jurisdiction of this country and kept there while their right to enter is in process of determination ; 37 and the act itself provides that the mere fact of their detention for 35 Ex parte Lung Wing Wun, 161 Fed. 211; Wong Song v. United States, 144 Fed. 968. 36194 U. S. 279, 48 Law Ed. 979. 37United States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040; Ekiu v. United States, 142 U. S. 651, 35 Law Ed. 1146. Power and Methods. 19 the purpose of investigation and examination shall not be deemed to constitute a landing, 38 thus following the gen- eral trend of judicial decision. 39 It has been held that a Chinese alien seeking admission to this coun- try may invoke the constitutional guarantees against un- reasonable and unlawful searches and seizures when his personal letters and papers have been seized unlawfully by custom officials at the port of entry, in order to prevent the contents of such letters and papers being used against him. 40 This, however, has been denied in a recent Federal case; 41 and the Supreme Court of the United States has held in a case in which it was alleged by a Chinese person seeking to enter the United States that on his arrival his baggage and private papers were opened and his person searched by customs inspectors, that if the petitioner had just cause of complaint of the conduct of the collector’s subordinates the remedy was not to be found in his dis- charge on habeas corpus.* 2 The principle above set forth applies with equal force to the case of aliens who are expelled within the statutory period fixed by the Immigration Act, on the ground of being unlawfully in the United States. The Act of March 26, 1910, 43 provides that certain persons leading immoral lives, or maintaining connections with persons so ad- dicted of so questionable a character as to make their presence undesirable in the United States, may be de- ported at any time after entry, even though they may have been duly admitted in the first instance. But in the vast majority of cases the ground of deportation is that the alien has entered the United States in violation of law. It seems plain that persons found to have obtained admis- ssSection 16, Act of Feb. 20, 1907. 39 In re Palagano, 38 Fed. 580. ^United States v. Wong Quong Wong, 94 Fed. 832. In re Chin Wah, 182 Fed. 256. 42 Fok Young Yo v. United States, 185 U. S. 296, 46 Law Ed. 917 j Lee Gon Yung v. United States, 185 U. S. 306, 46 Law Ed. 921. 4336 Stat. at L. 263. 20 The Exclusion and Expulsion of Aliens. sion into the United States by setting at naught all the regulations of the municipal law adopted with regard to them can scarcely hope to invoke successfully the inter- national law principle before stated, to the effect that, having become residents of the United States, their civil rights are to be measured by those of the rest of the com- munity. That principle is based on the assumption that the sovereign has actually voluntarily extended his pro- tection to the alien who avails himself of the offer; and that by having done so the state is bound to concede to the foreigner civil rights and privileges enjoyed by its own nationals. But the state cannot be said voluntarily to extend its protection to persons who seek it in violation of the expressed law of the state ; and it is apparent that no state is under the obligation to accept the allegiance of a person or class of persons barred from its domains. It follows that the mere fact of unlawful residence cannot support the right to invoke the laws or Constitution of the state in proceedings which of themselves constitute the outward manifestation of the state’s refusal to continue to accept that temporary allegiance which residence within the dominions of the sovereign, unlawful though it may be, necessarily implies. As far as invoking those rights in such proceedings is concerned, the alien is merely in the position of an undesir- able stranger in the process of being excluded from the enjoyment of those privileges of protection which the na- tion has the power to bestow. “The power to exclude or expel aliens,” says the Supreme Court, “being a power affecting international relations, is vested in the political departments of the Government and is to be regulated by treaties or by acts of Congress, and to be executed by the executive authority according to the regulations so estab- lished except so far as the judiciary has been authorized by treaty or by statute or is required by the paramount law Power and Methods. 21 of the Constitution, to intervene. 44 The extent to which either high contracting party to a treaty dealing with the subject of immigration or the exclusion or expulsion of aliens may regulate the admission of nationals of the other into its territory necessarily depends on the stipula- tions mutually agreed upon. The only limitation upon the method prescribed by the municipal law — in the United States Acts of Congress or Presidential proclamations promulgated under the au- thority of Congress — is that they must not violate the fundamental principles of the Federal Constitution. And it may be stated that while prior treaty provisions on the subject are in no way binding on subsequent legislation by Congress in the sense that the national legislature cannot in the exercise of its sovereign powers enact laws different in purpose and effect from pre-existing treaty stipulations, these stipulations will be regarded by the courts as bind- ing upon the nation unless the provisions of the law are such as to show clearly and unequivocally the purpose to supersede and abrogate the articles of the treaty. B. Regulation of Immigration by Treaty. 1 . The Treaties with China . (A.) The Treaty of November 17, 1880. The first attempt made by the United States to regulate by national agreement the immigration into this country of subjects of a friendly power took the form of the Immi- gration Treaty between the United States and China, con- cluded on November 17, 1880, and proclaimed October 5, 1881. Nowhere is there to be found, perhaps, a more con- cise and at the same time more comprehensive statement of the treaties into which the two countries had entered up 44 Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905; Fok Young Yo v. United States, 185 U. S. 296, 46 Law Ed. 917. 22 The Exclusion and Expulsion of Aliens. to that time, than in the decision rendered by Mr. Justice Field, in the case of Chae Chan Ping v. The United States. 45 “The first treaty between the United States and the Empire of China,” says the court, “was concluded on the 3d of July, 1844, and ratified in December of the follow- ing year. (8 Stat. at L. 592.) Previous to that time there had been an extensive commerce between the two nations, that to China being confined to a single port. It was not, however, attended by any serious disturbances between our people there and the Chinese. In August, 1842, as the result of a war between England and China, a treaty was concluded stipulating for peace and friendship between them, and, among other things, that British subjects, with their families and their establishments, should be allowed to reside for the purpose of carrying on mercantile pur- suits at the five principal ports of the Empire. ( Hertslet’s Commercial Treaties, Yol. 6, 221.) Actuated by a desire to establish by treaties friendly relations between the United States and the Chinese Empire, and to secure to our people the same commercial privileges which had been thus conceded to British subjects, Congress placed at the disposal of the President the means to enable him to es- tablish future commercial relations between the two coun- tries ‘on terms of national equal reciprocity.’ (Act of March, 1843, Chap. 90, 5 Stat. at L. 624. ) A mission was accordingly sent to China, at the head of which was placed Mr. Caleb Cushing, a gentleman of large experience in public affairs. He found the Chinese government ready to concede by treaty to the United States all that had been reluctantly yielded to England through compulsion. As the result of his negotiations the treaty of 1844 was con- cluded. It stipulated among other things, that there should be a ‘perfect, permanent, and universal peace, and a sincere and cordial amity’ between the two nations ; that the five principal ports of the Empire should be opened to the citizens of the United States, who should be permitted to reside with their families and trade there, and to pro- ceed with their vessels and merchandise to and from any foreign port and either of said five ports ; and while peace- ably attending to their affairs should receive the protec- 45130 U. S. 581, 32 Law Ed. 1068. Power and Methods. 23 tion of the Chinese authorities. (Senate Doc. No. 138, 28 Cong. 2d Sess.) The treaty between England and China did not have the effect of securing permanent peace and friendship between those countries In 1856 the two countries were at open war As the rights of citizens of the United States might be seriously affected by the results of exist- ing hostilities and commercial intercourse between the United States and China be disturbed, it was deemed ad- visable to send to China a minister plenipotentiary to rep- resent our government and to watch our interests there. Accordingly Mr. William B. Keed, of Philadelphia was ap- pointed such minister, and instructed, whilst abstaining from any direct interference, to aid by peaceful co-opera- tion the objects the allied forces (Great Britain and France) were seeking to accomplish. (Senate Doc. 47, 35th Cong., 1st Sess.) Through him a new treaty was ne- gotiated for the Chinese government. It was concluded in June, 1858, and ratified in August of the following year. (12 Stat. at L. 1023.) It reiterated the pledges of peace and friendship between the two nations, renewed the prom- ise of protection to all citizens of the United States in China peaceably attending to their own affairs, and stipu- lated for security for Christians in the profession of their religion. Neither the treaty of 1844 nor that of 1858 touched upon the migration and emigration of the citizens and subjects of the two nations respectively from one coun- try to the other. But in 1868 a great change in the rela- tions of the two nations was made in that respect. In that year a mission from China, composed of distinguished functionaries of that Empire, came to the United States with the professed object of establishing closer relations between the two countries and their people. At its head was placed Mr. Anson Burlingame, an eminent citizen of the United States, who had at one time represented this country as Commissioner to China. He resigned his office under our Government to accept the position tendered to him by the Chinese government On its arrival in Washington, additional articles to the treaty of 1858 were agreed upon, which gave expression to the general desire that the two nations and their peoples should be drawn closer together. The new articles, eight in number, were agreed to on the 28th of July, 1868, and ratifications of 24 The Exclusion and Expulsion of Aliens. them were exchanged at Pekin in November of the fol- lowing year. (16 Stat. at L. 739.) Of these articles, the fifth, sixth and seventh, are as follows : ‘Article 5. The United States and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from the one coun- try to the other for the purpose of curiosity, or trade, or as permanent residents. The high contracting parties, there- fore, join in reprobating any other than an entirely volun- tary emigration for these purposes. They consequently agree to pass laws making it a penal offence for a citizen of the United States, or Chinese subjects to take Chinese subjects either to the United States or to any other foreign country, or for a Chinese subject or citizen of the United States to take citizens of the United States to China or to any other foreign country without their free and volun- tary consent, respectively. ‘Article 6. Citizens of the United States visiting or re- siding in China shall enjoy the same privileges, immunities or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation ; and reciprocally, Chinese subjects visiting or residing in the United States shall enjoy the same privi- leges, immunities, and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation. But nothing herein contained shall be held to confer naturalization upon citi- zens of the United States in China, nor upon the subjects of China in the United States. ‘Article 7. Citizens of the United States shall enjoy all the privileges of the public educational institutions, under the control of the government of China ; and, reciprocally, Chinese subjects shall enjoy all the privileges of the public educational institutions under the control of the Govern- ment of the United States, which are enjoyed in the re- spective countries by the citizens or subjects of the most favored nation. The citizens of the United States may freely establish and maintain schools within the Empire of China at those places where foreigners are by treaty permitted to reside; and reciprocally, Chinese subjects Power and Methods. 25 may enjoy the same privileges and immunities in the United States.’ The previous treaties of 1844 and 1858 were con- fined principally to mutual declarations of peace and friendship, and to stipulations for commercial intercourse at certain ports in China and for protection to our citi- zens whilst peaceably attending to their affairs. It was not until the additional articles of 1868 were adopted that any public declaration was made by the two nations that there were advantages in the free migration or emigration of their citizens and subjects respectively from one country to the other; and stipulations given that each should enjoy in the country of the other, with respect to travel or residence, the ‘privileges, immunities, and exemptions’ enjoyed by citizens and subjects of the most favored na- tion ” After pointing out that the discovery of gold in Cali- fornia in 1849 was followed by a large immigration thither from all parts of the world, and particularly China, which gave rise to a competition between Chinese immigrants of the laboring class and our people, which soon assumed proportions dangerous to the public peace, and after re- ferring to the petition for protective legislation presented by the people of California which took the form of a me- morial submitted to Congress in February, 1879, the Court proceeds : “So urgent and constant were the prayers for relief against existing and anticipated evils, both from the public authorities of the Pacific coast and from private indi- viduals, that Congress was compelled to act on the subject. Many persons, however, both in and out of Congress were of opinion that so long as the treaty remained unmodified, legislation restricting immigration would be a breach of faith with China. A statute was accordingly passed ap- propriating money to send commissioners to China to act with our minister there in negotiating and concluding by treaty a settlement of such matters of interest between the two Governments as might be confided to them. (21 Stat. at L. 133, chap. 88. ) Such commissioners were appointed and as the result of their negotiations, the Supplementary 26 The Exclusion and Expulsion of Aliens. Treaty of November 17th, 1880, was concluded and ratified in May of the following year. (22 Stat. at L. 826.)” This treaty contains four articles, which read as fol- lows: Article I. Whenever in the opinion of the Government of the United States, the coming of Chinese laborers to the United States, or their residence therein, affects or threat- ens to affect the interests of that country, or to endanger the good order of the said country or of any locality within the territory thereof, the Government of China agrees that the Government of the United States may regulate, limit, or suspend such coming or residence, but may not abso- lutely prohibit it. The limitation or suspension shall be reasonable and shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitations. Legislation taken in regard to Chinese laborers will be of such a character only as is necessary to enforce the regulation, limitation or suspen- sion of immigration, and immigrants shall not be subject to personal maltreatment or abuse. Article II. Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who are now in the United States shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities and exemptions which are accorded to the citizens and sub- jects of the most favored nation. Article III. If Chinese laborers, or Chinese of any other class, now either permanently or temporarily residing in the territory of the United States, 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 pro- tection and to secure to them the same rights, privileges, immunities and exemptions as may be enjoyed by the citi- zens or subjects of the most favored nation and to which they are entitled by treaty. Power and Methods. 27 Article IV. The high contracting powers having agreed upon the foregoing articles, whenever the Government of the United States shall adopt legislative measures in accordance therewith, such measures will be communicated to the Government of China. If the measures as enacted are found to work hardship upon the subjects of China, the Chinese minister at Washington may bring the latter to the notice of the Secretary of State of the United States who will consider the subject with him; and the Chinese Foreign Office may also bring the matter to the notice of the United States minister at Peking and consider the subject with him to the end that mutual and unqualified benefit may result In commenting on the purpose and effect of the treaty of Nov. 17, 1880, the Supreme Court in an early case 46 ex- pressed itself as follows : “By the treaty of 1868 subjects of China were entitled without restriction to come to this country for purposes of curiosity or trade or as perma- nent residents. But in deference to the opinion of our Government that the presence of Chinese laborers might be injurious to the public interests, or might endanger good order in our land, China agreed in the treaty of 1880, to such modifications of previous treaties as would enable the United States to regulate, limit or suspend their com- ing or residence without absolutely prohibiting it; such limitation or suspenson to be reasonable in its character. As to certain classes of Chinese it was distinctly provided that they should be permitted to go and come of their own free will, and be accorded all the rights, privileges, im- munities and exemptions that are granted to citizens and subjects of the most favored nation. Those classes were : (1st) Chinese subjects whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants. (2d) Chinese laborers who were in this country at the date of the treaty. Upon the exercise, by these particular classes, «Chew Heong v. United States, 112 U. S. 536, 28 Law Ed. 770. 28 The Exclusion and Expulsion of Aliens. of the rights of free ingress and egress, no limitation in respect of time was imposed by the treaty ; in other words, the enjoyment of the right to go and come was not made to depend upon how often they went out of the country nor how long they remained away before returning.” The government contended in this case that a Chinese laborer domiciled in the United States but temporarily absent when the treaty went into effect could claim no right to re-enter thereunder in the absence of the certificate on which the right of members of the laboring class to enter was made to depend by the Act of 1882 ; and it was implied in argument that in the judgment of Congress the treaty did not secure to any Chinese laborer the right of going and coming of his own free will, except to those in this country at the date of the treaty who remained here con- tinuously until the Act of 1882, enacted for the avowed purpose of faithfully executing the treaty, 47 was passed. The court said : “But the treaty is not subject to any such interpretation. To give it that interpretation would be, in effect, to interpolate in its second article, after the words ‘Chinese laborers who are now in the United States’ the words ‘and who shall continue to reside therein.’ The plaintiff in error left this country after the ratification of the treaty, having the right, secured by its articles, to re- turn, of his own free will, without being subjected to burdens or regulations that materially interfere with its enjoyment.” 48 It was judicially recognized at an early date that the treaty does not purport to give the United States the right to prohibit absolutely the coming of Chinese laborers but merely to restrict their immigration, and authorize legis- lation by Congress to this effect, 49 and the power to exclude expressed therein was held to apply not only to Chinese 47 Ibid, p. 549. 48And see ex parte Ng Quong Ming, 135 Fed. 378; Jung Ah Lung v. United States, 124 U. S. 621, 31 Law Ed. 591. 49ln re Ah Lung, 18 Fed. 28; United States v. Yong Yeu, 83 Fed. 832. Power and Methods. 29 laborers coming from China but from all other parts of the world . 50 It is unnecessary to add in this connection that while the United States could not claim under the treaty absolutely to prohibit the immigration of Chinese, neither the power to restrict nor to prohibit the entrance of aliens into this country finds its source in treaty obli- gations. It always exists as an inherent trait of national sovereignty, not to be abandoned or surrendered by the nation . 51 By agreeing to the conditions of the first article of the treaty, the treaty making power went no further than to pledge this country to exercise its already existing right to exclude Chinese laborers only to the extent of temporarily restricting their coming. In an early Federal case it was decided that since Article II provides that servants of the members of the exempt classes might accompany them it necessarily follows that the same right is thereby accorded their wives and minor children 52 and the Supreme Court has held 53 that “it is not possible to presume that the treaty, in omitting to name the wives of those who by the second article were en- titled to admission meant that they should be excluded. If not, then they were entitled to admission because they were such wives, although not in terms mentioned in the treaty.” The fact that Article IV of the treaty provides that in case of hardship upon subjects of China in the United States the Chinese minister in Washington shall bring the matter to the attention of the Secretary of State of the United States does not limit the claimant to a diplomatic remedy; the courts are always at his disposal . 54 50 In re Ah Lung, 18 Fed. 28. 5iChae Chan Ping v. United States, 130 U. S. 581, 32 Law Ed. 1068. 52 I?i re Chung Toy Ho, 42 Fed. 398. 53United States v. Gue Lim, 176 U. S. 549, 44 Law Ed. 544. ^United States v. Jung Ah Lung, 124 U. S. 621, 31 Law Ed. 591. 30 The Exclusion and Expulsion of Aliens. (B.) The Treaty of December 8, 1894. On March 12, 1888, a new treaty between the United States of America and the Emperor of China was signed by the high contracting parties, but in the end rejected by the Chinese Government. But on December 8, 1894, the Convention Kegulating Chinese Immigration concluded on the 17th of March preceding was duly proclaimed. By the terms of this treaty, the coming of Chinese laborers to the United States was absolutely prohibited under the con- ditions therein specified. This treaty terminated Dec. 7th, 1904, on notice being given by the Chinese Govern- ment. The first five articles of the treaty read as follows : Article I. The High Contracting Parties agree that for a period of ten years, beginning with the date of the exchange of the ratifications of this Convention, the coming, except under the conditions hereinafter specified, of Chinese la- borers to the United States shall be absolutely prohibited. Article II. The preceding article shall not apply to the return to the United States of any registered Chinese laborer who has a lawful wife, child or parent in the United States, or property therein of the value of one thousand dollars, or debts of like amount due him and pending settlement. Nevertheless every such Chinese laborer shall, before leav- ing the United States, deposit, as a condition of his return, with the collector of customs of the district from which he departs, a full description in writing of his family, or property, or debts, as aforesaid, and shall be furnished by said collector with such certificate of his right to return under this treaty as the laws of the United States may now or hereafter prescribe and not inconsistent with the pro- visions of this treaty, and should the written description aforesaid be proved to be false, the right of return there- under, or of continued residence after return, shall in each case be forfeited. And such right of return to the United States shall be exercised within one year from the date of leaving the United States ; but such right of return to the United States may be extended for an additional period, Power and Methods. 31 not to exceed one year, in cases where by reason of sick- ness or other cause of disability beyond his control, such Chinese laborer shall be rendered unable sooner to return — which facts shall be fully reported to the Chinese consul at the port of departure, and by him certified, to the satis- faction of the collector of the port at which such Chinese subject shall land in the United States. And no such Chinese laborer shall be permitted to enter the United States by land or sea without producing to the proper officer of the customs the return certificate herein re- quired. Article III. The provisions of the Convention shall not affect the right at present enjoyed of Chinese subjects, being officials, teachers, students, merchants or travelers for curiosity or pleasure, but not laborers, of coming to the United States and residing therein. To entitle such Chinese subjects as are above described to admission into the United States, they may produce a certificate from their government or the government where they last resided vised by the diplo- matic or consular representative of the United States in the country or port whence they depart. It is also agreed that Chinese laborers shall continue to enjoy the privilege of transit across the territory of the United States in the course of their journey to or from other countries, subject to such regulations by the Gov- ernment of the United States, as may be necessary to pre- vent said privilege of transit from being abused. Article IV. In pursuance of Article III of the Immigration Treaty between the United States and China, signed at Peking on the 17th day of November, 1880 (the 15th day of the tenth month of Kwanghsu, sixth year, ) it is hereby under- stood and agreed that Chinese laborers or Chinese of any other class, either permanently or temporarily residing in the United States, shall have for the protection of their persons and property all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens. And the Government of the United States reaffirms its obliga- 32 The Exclusion and Expulsion of Aliens. tion, as stated in said Article III, to exert all its power to secure protection to the persons and property of all Chinese subjects in the United States. Article V. The Government of the United States, having by an Act of the Congress, approved May 5, 1892, as amended by an Act approved November 3, 1893, required all Chinese la- borers lawfully within the limits of the United States be- for the passage of the first-named act to be registered as in said acts provided, with a view of affording them better protection, the Chinese Government will not object to the enforcement of such acts, and reciprocally the Government of the United States recognizes the right of the Govern- ment of China to enact and enforce similar laws or regula- tions for the registration, free of charge, of all laborers, skilled or unskilled (not merchants as defined by said Acts of Congress), citizens of the United States in China, whether residing within or without the treaty ports. And the Government of the United States agrees that within twelve months from the date of the exchange of the ratifications of this Convention, and annually thereafter, it will furnish to the Government of China registers or re- ports showing the full name, age, occupation, and number or place of residence of all other citizens of the United States, including missionaries, residing both within and without the treaty ports of China, not including, however, diplomatic and other officers of the United States residing or traveling in China upon official business, together with their body and household servants.” It was generally contended in the case of United States v. Lee Yen Tai 55 that the treaty covered the whole subject of Chinese immigration and by implication was intended to be a substitute for the prior laws and treaties on the subject which it repealed by implication; and specially that there was no authority under it for deporting the appellee under the warrant of a United States commis- sioner who had ordered him deported after finding that he was unlawfully in this country in accordance with the provisions of the Act of 1892. But the court held that the 55185 U. S. 213, 46 Law Ed. 878. Power and Methods. 33 act in question was in perfect harmony with the treaty and could be enforced without affecting or impairing any right secured thereby. Again it was contended in the cases of Ah How v. United States 56 and Tom Hong y. United States 57 that the treaty, when considered in connection with the Act of April 29, 1902, 58 continuing all laws in force “so far as the same are not inconsistent with the treaty obligations” enlarged the rights of Chinese to remain in the United States by doing away with their obligation to prove their right to remain according to sections 3 and 6 of the Act of 1892. But the court said, in the Ah How case, that Article IY of the treaty “could not have been supposed to promise that special measures theretofore taken should not be construed in force for the purpose of ascertaining the very question whether the laborers were lawfully residing in the United States or not But it is enough to say that Article V expressly refers to the Act of 1892 as amended by the Act of 1893, and states that the Chinese Government will not object to the enforcement of those acts.” In the Tom Hong case, the court refers to this question as having been “disposed of” in the case just cited. It has been held that where Article II provides for the granting of return certificates to Chinese laborers visiting China, who have property in this country of the value of one thousand dollars, what is required is that he shall be worth the property in question at the time of his return to the United States — not merely at the time of his departure for China. 59 Article III provides that members of the exempt classes “may” produce a certificate from their government or the government where they last resided properly vised to en- * title them to admission into the United States. In the 56 Ah How y. United States, 193 U. S. 65, 48 Law Ed. 619. 57 Tom Hong v. United States, 193 U. S. 517, 48 Law Ed. 772. ssChap. 641, 32 Stat. at L. 176. 59 In re Ong Lung, 125 Fed. 814. 34 The Exclusion and Expulsion of Aliens. case of United States v. Gue Lim, 60 the Government con- tended that the purport of the Article was that all Chinese of the exempt classes were under the obligation of pro- ducing the certificates, and, therefore, that the wife and minor children of a Chinese merchant domiciled here, who had been admitted in 1897 without producing the certifi- cate in question were unlawfully in the United States. The court decided that the treaty of 1894 did not alter the result flowing from the treaty of 1880 and the Act of 1884. That treaty made no provisions for the presentation of certificates by members of the exempt classes, but the Act of 1882 amended by that of 1884 provided not only that such certificate should be presented but that it should constitute the only evidence of the applicant’s right to enter. “Although,” said the court, “the third article of the treaty of 1894 does speak of certificates for Chinese subjects therein described, who already enjoy the right to enter the country, the question recurs whether the certifi- cate of the husband who himself enjoys the right is not enough for the wife, the fact being proved or admitted that she is such wife. Possibly the result of the Treaty of 1894 may be held to be, instead of simply prohibiting the en- trance of Chinese laborers, to restrict the right of entry to those classes who are specially named in the third article of the treaty. But the question would still remain whether the wives of the members of the classes privileged to enter were not entitled themselves to enter by reason of the right of the husband and without the certificate mentioned in the Act of 1884.” This question the court decided in the af- firmative both as to the wives and minor children of mem- bers of the exempt classes; and the third article of the treaty was held not to create new obligations regarding the presentation of the certificate. In Lee Lung v. Patterson, 61 the Supreme Court again had occasion to interpret Article III under a state of facts eoUnited States v. Gue Lim, 176 U. S. 459, 44 Law Ed. 544. eiLee Lung v. Patterson, 186 U. S. 168, 46 Law Ed. 1108. Power and Methods. 35 analogous to that presented in the Gue Lim case. Here a Chinese woman alleging herself to be the wife of a Chinese merchant domiciled in the United States sought in company with the alleged husband and an alleged minor child, admission into this country. The mother and daugh- ter each presented the “section six” certificate required by the Act of 1884. They were refused admission by the col- lector of customs on the ground that the certificate was ir- regular, that the wife was a plural wife, and that the re- lationship of the alleged daughter was not duly estab- lished. The decision was sustained by the Secretary of the Treasury, the petition in habeas corpus filed in the United States District Court for the District of Oregon was de- nied, and the parties appealed to the Supreme Court of the United States. They contended that Article III pre- scribed the only evidence which a member of the exempt class of Chinese must produce, and abrogates the Act of 1882 and those amendatory thereof, as well of the treaty of 1880. The court, on the grounds stated in the Lee Yen Tai decision, 62 held that such an interpretation of Article III was incorrect, and that the certificate which members of the exempt classes might produce was subject to contro- version by the Government. It may not be out of place to refer in this connection to the different state of facts presented by the Gue Lim and Lee Lung cases. In the Gue Lim case, the petitioner was not refused a landing by the executive officers ; in the Lee Lung case, she was. Gue Lim was arrested on the charge of being a Chinese laborer without the registration certificate required by the Act of 1892; Lee Lung for at- tempting to enter this country on an irregular certificate. Gue Lim was admitted to be the lawful wife of her alleged husband ; this was denied as to Lee Lung. The question of Gue Lim’s right to remain as presented to the Supreme Court was purely one of law ; that of Lee Lung to enter — apart from the question raised as to the effect of Article HI of the Treaty of 1894 on prior laws and treaties — a 36 The Exclusion and Expulsion of Aliens. simple finding of fact. Insofar as the facts as found by the collector and affirmed by the Secretary of the Treas- ury affected the question of the jurisdiction of administra- tive officers the Court held in the Lee Lung case that the latter’s jurisdiction was not lost “by not giving sufficient weight to evidence or by rejecting proper evidence or by admitting that which is improper.” The absence of a fair hearing does not appear to have been urged, although it was alleged that the collector had “ignored” the certifi- cates. But the term “ignore” was apparently used in the sense that the collector had refused to concede them para- mount evidentiary effect over all the other evidence pre- sented; and this the court held, he was not obliged under Article III of the Treaty of 1894 to do. Nor is the decision in the later case of Lim Hop Fong 63 in conflict with the result reached in the foregoing opinion. There the facts showed that the plaintiff in error had been granted a certificate by the proper authority at Macao, whence he came, in which he was described as a student. He was arrested on the charge of being a Chinese laborer unlawfully in the United States, and ordered deported as such after a hearing before the United States commis- sioner. After finding that he had presented as evidence of his exempt status the certificate prescribed by Article III of the treaty, the court said: “When this young man entered a port of the United States in July, 1899, he pre- sented such a certificate duly issued and vised by the con- sular representative of the United States. Upon applica- tion for admission this certificate is prima facie evidence of the facts set forth therein. 64 This certificate is the method which the two countries contracted in the treaty should establish a right of admission of students and others of the exempted classes into the United States, and 62 Ante, p. 31. 63Lim Hop Fong v. United States, 209 U. S. 453, 52 Law Ed. 888. 6422 Stat. at L. 58, sec. 6, chap. 126 ; U. S. Comp. Stat. 1901, p. 1307 ; 33 Stat. at L. 428, chap. 1630. Power and Methods. 37 certainly it ought to be entitled to some weight in deter- mining the rights of the one thus admitted. While this cer- tificate may be overcome by proper evidence, and may not have the effect of a judicial determination, yet, being made in conformity to the treaty, and upon it the Chinaman having been duly admitted to a residence in this country, he cannot be deported, as in this case, because of wrong- fully entering the United States upon a fraudulent certifi- cate, unless there is some competent evidence to overcome the legal effect of the certificate. In this record we can find no competent testimony which would overcome such legal effect of the certificate, and the plaintiff in error was therefore wrongfully ordered to be deported.” Article III has been further interpreted by the Supreme Court with special regard to its effect on the right of ad- ministrative offiicers to determine whether or not Chinese laborers applying for admission for purposes of transit shall be allowed to enter. In the case of Fok Young Yo v. United States, 65 the court said: “The first article of the Treaty of December 8, 1894, provides that The coming, except under conditions hereinafter specified, of Chinese laborers to the United States shall be absolutely pro- hibited.’ The second paragraph of Article III reads: ‘It is also agreed that Chinese laborers shall continue to enjoy the privileges of transit across the territory of the United States in the course of their journey to or from other countries, subject to such regulations by the Government of the United States as may be necessary to prevent said privileges from being abused.’ We regard this as explic- itly recognizing existing regulations, and as assenting to their continuance and to such modification of them as might be found necessary to prevent abuse. It dealt with the subject specifically and was operative without an Act of Congress to carry it into effect. The Treaty of 1880, 66 in declaring in respect of the coming of Chinese laborers 65Fok Young Yo v. United States, 185 U. S. 296, 46 Law Ed. 917. 6622 Stat. at L. 826. 38 The Exclusion and Expulsion of Aliens. into this country that the Government of the United States might ‘regulate, limit or suspend such coming or residence’ did not refer to the privilege of transit, and, as it was not self-executing, the Act of May 6, 1882, was passed to carry the stipulation into effect. But the provision of this treaty applicable here, in recognizing the privilege of transit and providing that it should continue, proceeded on the ground of its existence and continuance under governmental regu- lations, and no act of Congress was required So, in the case before us, the treaty manifestly operated to commit the subject of transit to executive regulation and determination; and by the then, as well as the present, regulations, the final decision as to permitting transit was devolved on the collector of customs, and no appeal to the Secretary was provided for. It appears from the official documents referred to on the argument that the Treasury Department has ‘held that neither the treaty nor the laws, relating to the exclusion of Chinese, either expressly or by implication, give to Chinese persons refused the privi- lege of transit the right of appeal;’ but possession of the power to grant an appeal, or to supervise the action of the collector in some other appropriate way, in circumstances demanding intervention, has not been disavowed.” 2. The Most Favored Nation Clause as Affecting the Operation of the Exclusion and Immigration Laws. (A.) The Treaties with China. Attention may be called to arguments which have been presented on behalf of aliens seeking to enter or remain in this country to the effect that the existence of the most favored nation clause which appears in the fourth article of the Treaty with China in 1894, relieves Chinese persons from the operation of certain provisions of the Chinese Exclusion Act. It is stipulated in that article that “Chinese laborers or Chinese of any other class either per- Power and Methods. 39 manently or temporarily residing in the United States shall have for the protection of their persons or property all rights that are given by the laws of the United States to citizens of the most favored nation excepting the right to become naturalized citizens.” The first article of the Japanese Treaty of 1894 provides that “in whatever relates to the rights of residence and travel the citizen or subject of each contracting party shall enjoy in the territories of the other the same privileges, liberties and rights as citi- zens or subjects of the most favored nation” and the clause appears in still other articles of the treaty. The Treaty of Friendship, Commerce and Navigation between the United States and Paraguay of 1859 contains provi- sions by which in the matter of protection of person, and property, the citizens of either country shall enjoy in the territory of the other the rights of native citizens. In the Ah How case, 67 attention was called to the Japanese and Paraguayan treaties whereby the United States guarantees to citizens of those countries the rights and privileges of native citizens in access to the courts and in the defence of their rights ; and it was contended that the treaty with China of 1894 in connection with the Act of April 29, 1902, which continued the laws relating to Chinese immigration then in force so far as they were not inconsistent with treaty obligations, could not be so construed as to leave the burden of proof on Chinese persons to establish their right to remain in this country. In answer to this conten- tion the court said that section 3 of the Act of May 6, 1892, under which appellants were ordered deported by a United States commissioner, had been upheld “by this court, since the treaty and after the passage of the act,” and proceeded to point out that, in any event the Chinese government bound itself by the terms of the treaty not to object to the enforcement of the act in question. 67 Ah How v. United States, 193 U. S. 65, 48 Law Ed. 619. 40 The Exclusion and Expulsion of Aliens. (B.) The Treaty with Denmark of May 6, 1826. The United States Court of Claims had the same general question before it in the case of Thingvalla v. United States, 68 where the owners of a Danish ship claimed that head money exacted on account of immigrants was ille- gally exacted, and should be refunded. But the court held that the exaction fell within the Act of August 3, 1882, 69 and refused to be convinced by the argument that the “na- tive citizen or subject clause” of the treaty between the United States and Denmark of 1826 affected the case. (C.) The Treaty with Italy of April 29, 1871. The treaty of commerce and navigation with Italy rati- fied April 29, 1871, 70 provides in its twenty- third article that “the citizens of either party shall have free access to the courts of justice, in order to maintain and defend their own rights, without any other conditions, restric- tions, or taxes than such as are imposed upon the natives ; they shall, therefore, be free to employ, in defense of their rights, such advocates, solicitors, notaries, agents and factors as they may judge proper, in all their trials at law, and such citizens or agents shall have free oppor- tunity to be present at the decisions and sentences of the tribunals, in all cases which may concern them; and like- wise at the taking of all examinations and evidences which may be exhibited in the said trials.” In the case of United States ex rel. Buccino et al. v. Williams, 71 it was con- tended that the board of special inquiry in examining into the qualifications of an alien seeking admission to this country without giving him an opportunity to defend by counsel deprived him of rights secured by the treaty. But the court said, “These boards of inspectors are not ‘courts 6824 Ct. Cl. 255. 69C. 370, 22 Stat. 214. T 017 Stat. at L. 856. 71190 Fed. 897. ■* Power and Methods. 41 of justice/ nor are the examinations by them of incoming aliens touching their qualifications ‘trials at law.’ There is nothing in the treaty which secures to Italian aliens seek- ing to enter this country any rights superior to those possessed by aliens of other races.” (D.) The Treaty with Japan of March 21, 1895. By the Act of August 18, 1894, it was provided that wherever an alien was excluded from admission into the United States under any law or treaty then existing or thereafter to be made, the excluding decision of the appro- priate executive officer was to be final unless reversed on appeal to the Secretary of the Treasury. Thereafter came the treaty between this country and Japan concluded No- vember 23, 1894, and proclaimed March 21st, 1895, which was to go into operation on July 17, 1899. It was pro- vided by the first article that “the citizens or subjects of each of the two high contracting parties shall have full liberty to enter, travel, or reside in any part of the terri- tories of the other contracting party, and shall enjoy full and perfect protection for their persons and property. They shall have free access to the courts of justice in pur- suit and defence of their rights; they shall be at liberty equal with native citizens or subjects to choose and employ lawyers, advocates and representatives to pursue and de- fend their rights before such courts, and in all other mat- ters connected with the administration of justice they shall enjoy all the rights and privileges enjoyed by native citi- zens or subjects; 72 and by the second article, “it is, how- ever, understood that the stipulation contained in this and the preceding article do not in any way affect the laws, ordinances and regulations with regard to trade, the im- migration of laborers, police and public security which are in force or which may hereafter be enacted in either of the two countries.” In the case of Yamataya v. Fisher, 73 7229 Stat. at L. 849. 73189 U. S. 86, 47 Law Ed. 721. 42 The Exclusion and Expulsion of Aliens. a subject of Japan, after having effected an entrance into this country, was arrested on a warrant of the Secretary of the Treasury issued under the authority of the Act of October 19, 1888, 74 and ordered deported on the ground that she was a public charge who had been permitted to land contrary to the provisions of the Act of March 3, 1891. 75 It was contended that the appellant was vested with the right to enter irrespective of the prohibitions of existing immigration acts by virtue of the Treaty of 1895 with Japan, but the court said : “From the above acts of Congress it appears that among the aliens forbidden to enter the United States are those of whatever country who are ‘paupers, or persons likely to become a public charge.’ We are of opinion that aliens of that class have not been given by the treaty with Japan full liberty to enter or reside in the United States ; for that instrument expressly excepts from its operation any ordinance or regulation relating to ‘police or public security.’ A statute excluding paupers or persons likely to become a public charge is manifestly one of police and public security. Aside from that specific exception we should not be inclined to hold that the pro- vision in the treaty with Japan that the citizens or subjects of each of the two countries should have ‘full liberty to enter, travel or reside in any part of the territories of the other contracting party’ has any reference to that class, in either country, who, from their habits or condition, are ordinarily or properly the object of police regulations de- signed to protect the general public against contact with dangerous or improper persons.” C. Effect on Existing Treaties or Laws of Subsequent Laws or Treaties. Bonfils says: “A state has the right to expel from its territory aliens individually or collectively unless treaty 7425 Stat. at L. 565. 7626 Stat. at L. 1084. Power and Methods. 43 provisions stand in the way ” 76 This amounts to an assertion of the general proposition that nations dealing with each other in good faith will live up to the terms of agreements made between them when such agreements deal in whole or in part with the admission or exclusion of nationals of the other contracting state. But since the exclusion or expulsion of foreigners, either individually or collectively, may be adopted by a state as the proper means of self preservation and in the public interest of the com- munity, it is apparent that no state can maintain its sov- ereignty and at the same time barter away by treaty or otherwise any power on the exercise of which its preserva- tion and national integrity may, by any possibility de- pend. It has long since been held that treaties are subject to abrogation by subsequent acts of Congress, and, as ex- pressions of the will of the people of the United States, are no more binding than Congressional acts. Where the terms of an act of Congress passed subsequent to the treaty are so clearly in contravention and derogation of the stipu- lations of the former as to leave no room for interpretation, and where the only point at issue is whether or not Con- gress has the power to abrogate by legislative action agree- ments with sister states, the courts have expressed no doubt of its ability to do so. “A treaty,” says Chief Justice Marshall, 77 “is in its nature a contract between two nations, not a legislative act. It does not generally affect, of itself, the object to be accomplished, especially so far as its operation is infra- territorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to the acts of the legislature, whenever it ope- 76Manuel du Droit Int. Pub. Par. 442, cited in Moore Int. Law Dig., Yol. IY, p. 68. ^Foster and Elam v. Neilson, 2 Peters 254, 314, 7 Law Ed. 415, 435. 44 The Exclusion and Expulsion of Aliens. rates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract — when either of the parties engages to perform a particular act — the treaty addresses itself to the political, not the ju- dicial, department; and the legislature must execute the contract before it can become a rule for the court.” In the case of the Cherokee Tobacco v. United States 7 * it was contended that the one hundredeth and seventh sec- tion of the Act of July 20, 1868, imposing taxes on distilled spirits, tobacco, and other commodities could not apply to the Cherokee nation, because to do so would be to violate the tenth article of the existing treaty with that nation. After citing the second section of the fourth article of the Constitution which declares that the Constitution, the laws of the United States and all treaties made under its au- thority, shall be the supreme law of the land, the court proceeds : "It need hardly be said that a treaty cannot vio- late the Constitution or be held valid if it be in violation of that instrument. This results from the nature and funda- mental principles of our government. The effect of treaties and acts of Congress when in conflict is not settled by the Constitution, but the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress and an act of Congress may supersede a prior treaty.” 79 This question first came up for the Supreme Court’s consideration in its application to the immigration statutes in the case of Chew Heong v. United States ; 80 but in a sense indirectly, since the court there held that the Act of May 6, 1882, 81 as amended by that of July 5, 1884, 82 could not, upon analysis of its terms, and particularly in view of the fact that its avowed purpose was to carry out objects of 7811 Wallace 616, 20 Law Ed. 227. 79 Citing Foster v. Neilson, 2 Pet. 314; Taylor v. Morton, 2 Curt. 454; The Clinton Bridge, 1 Wool. 155. 80112 U. S. 536, 28 Law Ed. 77. 8i22 Stat. at L. 58. 8223 Stat. at L. 115. Power and Methods. 45 the treaty with China of 1880, be interpreted as intending to “disregard the plighted faith of the Government” not to interfere with the rights of Chinese laborers domiciled in this country at the time the treaty went into effect. There the court adverted to the maxim of law that “treaties of every kind are to receive a liberal interpretation according to the intention of the contracting parties, and are to be kept in a most scrupulous good faith and remarked that “aside from the duty imposed by the Constitution to re- spect treaty stipulations when they become the subject of judicial proceedings, the court cannot be unmindful of the fact that the honor of the Government and people of the United States is involved in every inquiry whether rights secured by such stipulations shall be recognized and pro- tected.” In the case of Edye v. Robinson, 83 decided on the same day, it was contended that the Immigration Act of 1882, 84 imposing a head tax on foreigners coming to this country, was in violation of numerous treaties entered into by the Government with friendly nations. While the court was not satisfied that any of these treaties were violated by the act of Congress in question it took occasion to express the opinion that in so far as its provisions might be found to be in conflict with the stipulations of foreign treaties they must prevail in all the judicial courts of the United States. Said Mr. Justice Miller: “A treaty, then, is a law of the land as an act of Congress is, whenever its pro- visions prescribe a rule by which the rights of a private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute. But even in this aspect of the case there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, 83 0ne of the Head Money cases, 112 U. S. 580, 28 Law Ed. 798. 8422 Stat. at L. 214. 46 The Exclusion and Expulsion of Aliens. which may be repealed or modified by an act of a later date. Nor is there anything in its essential character or in the branches of the Government by which the treaties are made which gives it this superior sanctity. A treaty is made by the President and the Senate. Statutes are made by the President, the Senate and the House of Representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the parties participate In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal.” 85 • A striking example of the. abrogation of treaty rights by subsequent congressional legislation is afforded by the passage of the Act of October 1, 1888. 86 By the treaty of 1880 with China, Chinese laborers who had been living in the United States prior to the date of the ratification of the treaty, or who had arrived there within ninety days thereafter, were expressly given the right to come and go at their pleasure. The Act of 1882 as amended by that of 1884, 87 provided for the issuance of a return certificate to any Chinese laborer residing in the United States which, on presentation at the time of his arrival from a temporary absence in China or elsewhere, authorized him to re-enter the country. The Act of October 1, 1888, provided in effect that no Chinese laborer, whether or not he had left the United States prior to the passage of that act or had ob- tained and had in his possession the return certificate pro- vided by the preceding acts should be allowed to enter the ssAnd see 158 U. S. 584, 130 U. S. 581, 142 Fed. 128. 8625 Stat at L. 504. 8722 Stat. at L. 58, 23 Stat. at L. 115. Power and Methods. 47 United States. “The validity of this act,” says Mr. Justice Field, 88 “as already mentioned is assailed as being in effect an expulsion from the country of Chinese laborers in viola- tion of existing treaties between the United States and the government of China, and of rights vested in them under the laws of Congress. The objection that the act is in conflict with the treaties was earnestly pressed in the court below, and the answer to it constitutes the principal part of its opinion. (36 Fed. Rep. 431.) Here the objection made is that the Act of 1888 impairs a right vested under the treaty of 1880 as a law of the United States, and the statutes of 1882 and of 1884 passed in execution of it. It must be conceded that the Act of 1888 is in contravention of express stipulations of the Treaty of 1868 and of the Supplemental Treaty of 1880, but it is not on that account invalid or to be restricted in its enforcement. The treaties were of no greater 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 one over the other. A treaty, it is true, is in its nature a contract between nations and is often merely promissory in its character, requiring legisla- tion to carry its stipulations into effect. Such legislation will be open to future appeal 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 It will not be presumed that the legislative department of the government will lightly pass the laws which are in conflict with the treaties of the country ; but that circum- stances may arise which would not only justify the Gov- ernment in disregarding their stipulations, but demand in 88 Chae Chan Ping v. United States, 130 U. S. 581, 32 Law Ed. 1068. 48 The Exclusion and Expulsion of Aliens. the interests of the country that it should do so there can be no question.” And in a later case the Supreme Court said that it is impossible to hold that under any treaties or acts of Congress a Chinese laborer acquired any right to remain in the United States except by sufferance of Congress subject to its power to expel him or order him deported whenever in its judgment that removal is neces- sary for the public welfare. 88a In the case of Lem Moon Sing v. United States, 89 a Chinese person claiming to be a merchant left the United States prior to the passage of the Act of August 18, 1894, which provided that the de- cision of any administrative officer excluding any alien seeking to enter the United States under any law or treaty would be final as to the right of the alien to enter. This act was passed in the absence of the applicant and on his return he was denied admission by the executive officers. It was contended on his behalf that he had ac- quired a commercial domicile in the United States prior to the passage of the act in question, and that the acqui- sition of this domicile lawfully acquired and lawfully maintained carried with it the vested right to return for the purpose of maintaining the same. The court held that by the provsions of the Act of 1894, Congress had taken away from the courts the power to inquire under the cir- cumstances into the question as to whether or not the ap- plicant was entitled under any law or treaty to enter the United States ; and in passing on the question of Congress’ right to enact laws in abrogation of prior treaties, said: “If the Act of 1894 thus construed takes away from the alien any right given by previous laws or treaties to re- enter the country the authority of Congress to do even that cannot be questioned.” “That it was competent,” says the Supreme Court in the 88aFong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 698. 89158 U. S. 534, 39 Law Ed. 1082. Power and Methods. 49 case of United States v. Lee Yen Tai , 90 “for the two coun- tries by treaty to have superseded a prior act of Congress on the same subject is not to be doubted ; for otherwise the declaration in the Constitution that a treaty concluded in the mode prescribed by that instrument shall be the su- preme law of the land, would not have due effect. As Con- gress may by statute abrogate so far at least as this coun- try is concerned, a treaty previously made by the United States with another nation, so the United States may by treaty supersede a prior act of Congress on the same sub- ject Nevertheless, the purpose by statute to abro- gate the treaty, or any designated part of a treaty, or of the purpose by treaty to supersede the whole or a part of an act of Congress, must not be lightly assumed, but must appear clearly and distinctly from the words used in the statute or in the treaty.” 91 Since treaties that are self-executing, or treaties sup- plemented by acts of Congress constitute, together with the Constitution and acts of Congress the supreme law of the land, they are, while in force, and to the extent of their provisions, the authoritative expression of the nation as to the rights and obligations conferred upon aliens there- under ; and to that extent may be invoked by aliens within their provisions. But the rights granted by such inter- national agreements cannot be deemed to become so com- pletely vested in the recipients thereof under the terms of the treaty, as to prohibit their revocation when the needs of the nation require such action, and, as has been seen, this may be done by subsequent treaties or by a subsequent act of Congress. However, moral justification for such 90185 U. S. 213, 46 Law Ed. 878. oiCiting Foster v. Neilson, 2 Pet. 253, 314, 7 Law Ed. 415, 435; the Cherokee Tobacco, 11 Wall. 616, 20 Law Ed. 227, 229; Head Money Cases, 112 U. S. 580, 599, 28 Law Ed. 798, 804; Whitney v. Robertson, 124 U. S. 190, 194, 31 Law Ed. 386, 388; Taylor v. Morton, 2 Curt. C. C. 454, 459, Fed. Case No. 13799; Clinton Bridge Case, Woolw. 155; Fed. Cases No. 2, 900; Ropes v. Clinch, 8 Blatch, 304; Fed. Case No. 12041; 2 Story Const. Sec. 1838. 50 The Exclusion and Expulsion of Aliens. action would seem to be found — in the absence of a breach of faith by the other contracting party — only when exist- ing conditions agreed to in the treaty come to constitute a menace or a burden to the state, the full effect of which was not appreciated at the time of entering into the con- tract. “Unexpected events may call for a change in the policy of the country. Neglect or violation of stipulations on the part of the other contracting party may require corresponding action on our part. When a reciprocal en- gagement is not carried out by one of the contracting par- ties the other may also decline to keep the corresponding engagement.” 92 As in the case of statutes the repeal of treaties by im- plication is not viewed with favor by the courts. Said Mr. Justice Harlan: “In the case of statutes alleged to be inconsistent with each other in whole or in part, the rule is well established that effect must be given to both, if by any reasonable interpretation that can be done ; that ‘there must be a positive repugnancy between the pro- visions of the new law and those of the old; and even then the old law is repealed by implication only pro tanto to the extent of the repugnancy;’ and that ‘if harmony is impossible, and only in that event, the former law is re- pealed in part or wholly as the case may be 9 The same rules have been applied where the claim was that an act of Congress had abrogated some of the provisions of a prior treaty between the United States and China (Chew Heong v. United States, 112 U. S. 550). In that case it was held that the treaty could stand with the subsequent statutes, and that consequently, it was enforced. Like principles must control when the question of whether an act of Congress has been superseded in whole or in part by a subsequent treaty. A statute enacted by Congress expresses the will of the people of the United States in the most solemn form. If not repugnant to the Constitu- 92Chae Chan Ping v. United States, 130 U. S. 581, 32 Law Ed. 1068, 1074. Power and Methods. 51 tion it is made by that law a part of the supreme law of the land and should never be held to be displaced by a treaty, subsequently concluded unless it is impossible for both to stand together and be enforced.” 93 D. Regulation of Immigration by Legislative Enact- ment. 1. The Immigration Acts. (A.) The Alien Act of 1798. 94 The first act passed by the Congress of the United States authorizing the deportation of undesirable aliens from this country was approved June 25, 1798. “That act,” says Mr. Justice Field, 95 “vested in the President power to order all such aliens as he should adjudge dangerous to the peace and safety of the United States, or should have reasonable grounds to suspect were concerned in any treasonable or secret machinations against the government to depart out of the territory of the United States within such time as should be expressed in his order. And in case any alien when thus ordered to depart should be found at large within the United States after the term lim- ited in the order, not having obtained a license from the President to reside therein, or having obtained such license should not have conformed thereto, he should on convic- tion thereon be imprisoned for a term not exceeding three years, and should never afterwards be admitted to become a citizen of the United States; with a proviso that if the alien thus ordered to depart should prove to the satisfac- 93United States v. Lee Yen Tai, 185 U. S. 213, 46 Law Ed. 878, citing Wood v. United States, 16 Pet. 342, 10 Law Ed. 987; United States v. Tynan, 11 Wall. 88, 20 Law Ed. 153 ; South Carolina v. Stoll, 17 Wall. 425, 21 Law Ed. 650; Frost v. Wenie, 157 U. S. 46, 39 Law Ed. 614; and see case of the Chinese merchant, 13 Fed. 605; in re Ah Lung, 18 Fed. 28. Stat. at L. 577. 95Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905; Dis- senting Opinion. 52 The Exclusion and Expulsion of Aliens. tion of the President , 06 by evidence to be taken before such person or persons as he should direct, that no injury or danger to the United States would arise from suffering him to reside therein, the President might grant a license to him to remain within the United States for such time as he should judge proper and at such place as he should designate. The act also provided that the President might require such alien to enter into a bond to the United States in such penal sum as he might direct, with one or more sureties to the satisfaction of the person authorized by the President to take the same, continued for his good behavior during his residence in the United States, and not to violate his license, which the President might revoke whenever he should think proper. The act also provided that it should be lawful for the President, whenever he deemed it necessary for the public safety, to order to be removed out of the territory of the United States any alien in prison in pursuance of the act, and to cause to be ar- rested and sent out of the United States such aliens as may have been ordered to depart, and had not obtained a license, in all cases where, in the opinion of the President, the public safety required a speedy removal.” The voluntary return of an alien thus removed or sent ^Section 12 of the Act of May 5, 1882, provided that any Chinese person found unlawfully in the United States should be removed therefrom to the country whence he came, by direction of the President after being found not lawfully entitled to remain after a hearing by a justice, judge or com- missioner. After being so found he was to be detained a reasonable time so that the President might have an opportunity to perform the duty im- posed on him by the act. The order of the President might be general or special, retrospective or prospective. But the authority of the President was limited to ordering the removal; he had no power to revise the judg- ment of deportation. It was held that he might by a general order directed to the marshal or perhaps the collector direct that all persons thus found to be unlawfully here shall be removed, and instruct the officer to take the necessary steps incident to such removal. In re Chow Goo Pooi, 25 Fed. 77. The amending Act of July 5, 1884, merely provides that any Chinese person found unlawfully within the United States shall be caused to be removed therefrom at the cost of the United States after being adjudged to be un- lawfully in the country. Power and Methods. 53 out of the country was penalized by imprisonment of such duration as the President might deem required by the interests of the public safety, provided such return had been without permission granted by the President. Sec- tion 5 of the act provided that every alien thus removed might take with him such part of his goods and chattels and other property as he might find convenient, and that all property left by him in the United States should re- main subject to his order and disposal. This provision is of peculiar interest because it is the only one of its kind in the long list of exclusion and immigration acts the first of which was to be enacted by Congress eighty-four years later. Jefferson, Madison and other jurists and statesmen of recognized ability denounced the act, not only as being unconstitutional, but as opposed to recognized precepts of international law adopted and cherished by civilized na- tions. It was characterized as a war measure by John Adams, at that time President of the United States, who opposed the bill and against whom the responsibility for its passage was charged; 97 and the general assembly of Virginia “declared that it exercised a power nowhere delegated to the Federal Government.” 98 “The duration of the act,” continues Mr. Justice Field, “was limited to two years, and it has ever since been the subject of uni- versal condemnation.” 99 He cites Elliott’s Debates, to the effect that the distinction between alien enemies and alien friends is a clear and conclusive answer to the con- tention, that by the law of nations, aliens may be removed at discretion for offences against that law, that Congress is authorized to define and punish such offences, and that to be dangerous to the peace of society is, in aliens, one of those offenses; and that alien friends, except in the 97 Vol. 9 of his works, p. 291; Fong Yue Ting v. United States, 149 U. S. 698, 747, 37 Law Ed. 905. ®sFong Yue Ting, Ibid, p. 748; Elliott’s Debates, 528. "Fong Yue Ting, Ibid, p. 750. 54 The Exclusion and Expulsion of Aliens. single case of public ministers, are under the municipal law, and must be tried and punished according to that law only. However meritorious or well chosen these arguments may have been in their application to the Alien Act of 1798, they have not stood the test of judicial analysis brought to bear in the consideration of the validity and effect of the Chinese exclusion and immigration acts. The validity of the distinction between alien friends and alien enemies, with regard to whether or not they are subject to expulsion or exclusion by the state in which they have acquired a domicile was denied in the very case under dis- cussion. 100 The court, speaking through Mr. Justice Gray, asserted the inherent and inalienable right of every sovereign and independent nation to exclude or expel all aliens, or any class of aliens, absolutely, or upon certain conditions, in war or in peace, and described this right as one essential to the safety, independence, and welfare of the country exercising it. To the suggestion that nowhere were such powers delegated to Congress by the states it may be replied that the states, by the very act of uniting and thus creating a national community and adding a new member to the family of nations, brought into being a political entity the attributes of which were henceforth to be determined, in an international sense at least, in accordance with the principles of the law of nations. For the rest, the question of whether the Alien Act was consti- tutional or the reverse is of little profit in connection with the present subject. “It is enough to say,” remarks the Court in the Chinese Exclusion Case, 1 that it is entirely different from the act before us (the Exclusion Act of 1882), and the validity of its provisions was never brought to the test of judicial decision in the courts of the United States.” And in a much later case it was said: “Refer- ence was made by counsel to the Alien Law of June 25, looUong Yue Ting, Ibid, p. 711. iChae Chan Ping v. United States, 130 U. S. 610, 32 Law Ed. 1077. Power and Methods. 55 1789, but we do not tbink that the controversy over that law (and the sedition law) and the opinions expressed at the time against its authority have any bearing upon this case, which involves an act 2 couched in entirely different terms, and embracing an entirely different purpose.” 3 (B.) The Coolie Trade Acts of 1862 and 1869. 4 On February 19, 1862, Congress passed an act, entitled “An act to prohibit the coolie trade by American citizens in American vessels.” This act prohibited the procuring from any port or place in the United States, or from any other port or place, the inhabitants or subjects of China known as “coolies” to be transported to any foreign port, or to be disposed of, or sold, or transferred for any term of years, or to be held to service or labor. But it was provided that nothing in the act was to be taken to apply to any free and voluntary emigration on the part of Chinese persons, and a consular certificate was required as evidence to show that the emigration was the voluntary act of the individual who had left China. The Act of February 9, 1869, extended the prior act so as to include and embrace the inhabitants and subjects of Japan, or of any other Oriental country, known as coolies, in the same manner and to the same extent as such act and its provisions ap- plied to the inhabitants and subjects of China. (C.) Act of May 31, 1870. 5 Section 16 of this act, entitled “An act to enforce the right of citizens of the United States to vote in the states of this Union, and for other purposes,” provided that “No tax or charge shall be imposed or enforced by any state upon any person immigrating thereto from a foreign coun- 2 Imnrigration Act of March 3, 1903. 3Turner v. Williams, 194 U. S. 279, 49 Law Ed. 979. 412 Stat. at L. 340; 15 Stat. at L. 269. 5 16 Stat. at L. 144. 56 The Exclusion and Expulsion of Aliens. try which is not equally imposed and enforced upon every person immigrating to such state from any other foreign country, and any law of any state in conflict with this provision is hereby declared null and void.” Thus the general purpose of this act and of those regu- lating the coolie trade was, as their provisions clearly show, to encourage, rather than to discourage, the immi- gration of aliens to this country. (D.) State Laws Concerning Immigration. Section 9 of Article I of the Constitution of the United States provides that “The migration or importation of such persons as any of the states now existing shall think proper to admit shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importations, not exceeding ten dollars for each person.” While the effect of this section is to show that the migration or im- portation of persons into this country was one the control of which, after the date set, lay with Congress, and it is equally apparent that, at least during that period, the admissibility of the persons immigrating or imported to the United States was primarily one to be determined by the states to the ports of which they were brought. There is considerable significance in the fact that the sec- tion does not employ the word “aliens” or “foreigners” in referring to the subjects of the section, and there is little reason to believe that “aliens” as the term is used to-day in the exclusion and immigration acts were intended to be included in its provisions. “There has never been any doubt,” says the Supreme Court, “that this clause had ex- clusive reference to persons of the African race. The words ‘migration’ and ‘important’ refer to the different conditions of this race as regards freedom and slavery. When the free black man came, he migrated; when the Power and Methods. 57 slave came he was imported.” 6 This statement was made in answer to the contention that the right of the states to pass inspection laws included the right to impose a tax on immigrants seeking admission to the various states, on the ground that they were subjects of import under the Constitution, and consequently subject to the operation of the state inspection laws. At an early period a number of the states, among them New York, Massachusetts, Pennsylvania, California and Louisiana, passed acts which, under the guise of inspection laws, or as frank and undisguised prohibitive legislation forbade, interfered with, or regulated the admission of aliens into their re- spective territories. The validity of these acts was gen- erally denied either by the state courts themselves or by the Federal courts which had occasion to pass on the question. 7 (1.) New York. An act passed by the New York legislature on February 11, 1824, provided that the master of every vessel arriving in New York from any foreign port, or from any state of the United States other than New York, should within twenty-four hours after arrival, make a report in writing, containing the names, ages and last legal settlement of every person on board the vessel commanded by him dur- ing the voyage; and that if any of the passengers should have gone on board any other vessel or should during the voyage have been landed with a view to proceed to New York the report should contain a statement to that effect. It was argued that this provision was a regulation of com- merce, and violative of the commerce clause of the Con- stitution. But it was held by a divided court that it was < ^People v. Compagnie Gen. Trans., 17 Otto (107 U. S.) 59, 27 Law Ed. 383. 7 N. T. y. Cornrns. of Emigration, 59 Hun. 624, 13 N. Y. Sup. 751; Am. S. S. Co. v. Bd. of Health, 26 Int. Rev. Rec. 69 ; In re Ah Fong, Fed. Case No. 102; 3 Sawy. 144, 16 Fed. 344, 8 Sawy. 640; Lin Sing v. Washburn, 20 Cal. 534; Ex parte Lippman, 35 Pac. 557; The Cynosure, Fed. Case No. 3529; the Wm. Janis, Fed. Case No. 17697. 58 The Exclusion and Expulsion of Aliens. not a regulation of commerce, but of a police matter, that persons were not the subject of commerce, and that it con- stituted merely municipal legislation, which it was not only the right but the duty of the state to enforce . 8 In view of the decisions in later cases involving the subject of the exclusive power of Congress over all questions con- nected with the admission of aliens, this case cannot now be regarded as authoritative. The statement that persons are not the subject of commerce certainly does not repre- sent the judicial view current at the present time; for the power of Congress to regulate commerce with foreign nations was said by the late Chief Justice Fuller in the case of Turner v. Williams , 9 to include the entrance of ships, the importation of goods and the bringing of persons into the United States.” And it may be stated in this connection that both Chief Justice Marshall and Mr. Story were of the opinion that the provision of the New York act in question was no more or less than a regu- lation of commerce by a state and was prohibited by the Federal Constitution . 10 In that case this same New York statute and a Louisiana act, containing analogous pro- visions required that the master or owner of the vessel bringing aliens to the state should give a bond for every passenger landed in the penal sum of three hundred dol- lars conditioned to indemnify the Commissioner of Immi- gration and every county, city and town in the state against any expense for the relief or support of the per- son named in the bond for four years thereafter. The court held that to require the payment of a tax on behalf of a passenger is a tax on the passengers if collected from them, or a tax on the vessel or the owners thereof for the exercise of the right of landing in the city. The statute was held void insofar as it imposed the tax and it was held that “Nothing was gained in the argument by calling it 8N. Y. v. Milne, 36 U. S. 102, 11 Pet. 102, 9 Law Ed. 648. 9194 U. S. 279, 48 Law Ed. 979. i°Henderson v. The Mayor, 2 Otto, 92 U. S. 259, 23 Law Ed. 543. Power and Methods. 59 the police power” as “whenever the statute of a state in- vades the domain of legislation which belongs exclusively to the United States, it is void, no matter under what class of powers it may fall or how closely allied to powers conceded to belong to the states.” ( 2. ) Massachusetts. By its Act of April 20, 1837, the Massachusetts legis- lature provided that no alien passengers should be landed until the sum of two dollars should have been paid to the boarding officer for each one so landing, and aliens likely to become paupers were prohibited from landing alto- gether unless bond were given to secure the city, or the state, against expenditures for their support. This act, like the New York statute in the case of Henderson v. The Mayor, supra , was held by the Supreme Court of the United States to be unconstitutional and void. 11 (3.) California. Later the constitutionality of a California statute was attacked on the same ground. This statute did not re- quire a bond for every alien passenger or commutation in money, as did the statutes of New York and Massachu- setts; but only for certain enumerated classes amongst which were “lewd and debauched women ;” but it required an examination of passengers coming to a port in the state from any foreign port or place, and provided for a charge of seventy-five cents for every examination. The effect was, says the court in Chy Lung v. Freeman, 12 to make it possible for the Commissioner of Immigration ar- bitrarily to designate certain persons as belonging to the objectionable classes, to require the master of the vessel to fill up and sign a bond for five hundred dollars for each uSmith v. Turner, Norris v. Boston, 7 Howard, 48 U. S. 283, 12 Law Ed. 702. 1292 U. S. 275, 23 Law Ed. 550. 60 The Exclusion and Expulsion of Aliens. member so designated, and to furnish two sureties from the residents of the state in each case; to pay besides five dollars in each and every case for the preparation of the bond and for swearing the sureties; and an extra charge of seventy-five cents for the examination of each member of the class thus designated by the Commissioner and for all others on board the vessel. The court held that the manifest purpose of the act was “not to obtain indemnity, but money It is idle to pursue the criticism. In any view which we can take of this statute it is in conflict with the Constitution of the United States and therefore void.” In spite of these decisions the New York legislature passed, on May 31, 1881, an act providing for the imposi- tion of a tax of one dollar for each and every passenger who should come by vessel from a foreign port to the port of New York. It was claimed that this was an inspection law but the Supreme Court did not agree with this view. “ A state cannot,” said the court, “make a law designed to raise money to support paupers, to detect or prevent crime, to guard against disease, and to care for the sick an in- spection law within the constitutional meaning of that word by calling it so in the title.” This case was decided October 9, 1882, after the passage of the immigration act of August 3 of that year, and the court pointed out, aside from the innate want of power in states constitutionally to pass such a statute, the additional fact that the Act of Congress of 1882 “covers the same ground as the New York statute, and they cannot co-exist.” 13 It has been held, however, that the detention and the dis- infection of immigrants by order of a state board of health, with the purpose of preventing the spread of infectious ispeople v. Compagnie Generate Transatlantique, 17 Otto, 107 U. S. 59, 27 Law Ed. 383. Powee and Methods. 61 diseases, is not a regulation of foreign commerce by a state within the meaning of the constitutional prohibition. 14 (E.) The Act of March 3, 1875. 15 This act is entitled “An act supplementary to the acts in relation to immigration,” and refers in its first section to title XXIX of the Revised Code, entitled “Immigra- tion.” Attention has been called to the fact 16 that the purport of the acts of Congress passed up to this time was to encourage the voluntary immigration of aliens to this country, including members of the Mongolian races. True, the Act of February 19, 1862, provided for the issuance of certificates to aliens immigrating from China to this coun- try, and by the Act of February 9, 1869, this provision was made applicable to the subjects of Japan and any other oriental countries; but the object of this provision seems to have been the protection of the voluntary immi- grant, and hence, perhaps an inducement to take advant- age of the right to immigrate so plainly alleged in the statute; and the certificates issued thereunder served a very different purpose from the certificate of identity, pos- session of which was, seven years later, first made obliga- tory on Chinese persons seeking admission into the United States under the Chinese exclusion acts. But the Act of 1875 provided that the certificates therein prescribed should not be issued to aliens who had entered into agree- ments for a term of service within the United States for lewd and immoral purposes. The importation of foreign women into the United States for the purposes of pros- titution is by such act prohibited and made a felony. And, whereas engaging in the Coolie trade, irrespective of the ports to which the laborers were taken by those par- ticipating in the venture, was prohibited to citizens of the ^Minneapolis, St. Paul & S. Ste. Marie Bailway Company v. Milner, 57 Fed. 276. 1518 Stat. at L. 477. i *Ante, p. 56. ' : 62 The Exclusion and Expulsion of Aliens. United States and foreigners residing therein by the earlier act, the Act of 1875 prohibits the making of a contract by any person “to supply to another the labor of any coolie or other person brought into the United States.” Section 5 made it unlawful for alien persons “under- going a sentence for conviction in their own country of felonious crimes other than political, or growing out of the result of such political offenses, or whose sentence has been remitted on condition of their emigration,” and women “imported for the purpose of prostitution” to “im- migrate into the United States.” An alien found by the collector of the port at which the vessel carrying him ar- rived to be a member of the classes whose entry was pro- hibited by the act was forbidden to leave the vessel with- out the collector’s permission, nor was he allowed to land except in obedience to a judicial process issued pursuant to law. And it is interesting, in the light of the provisions of subsequent immigration acts and of interpretations thereof by the courts, to note that the Act of 1875 provides that should any alien dissatisfied with the excluding de- cision of the collector, “apply for release or other remedy to any proper court or judge” for the purpose of testing the correctness of the inspector’s decision, it should be the duty of the collector at the port to detain the vessel until a judicial hearing and determination of the matter was had. (F.) The Act of August 3, 1882. 17 This act provided in its first section that “there shall be levied, collected and paid a duty of fifty cents for each and every passenger not a citizen of the United States who shall come by steam or sail vessel from a foreign port to any port of the United States,” Congress thereby exercis- ing for the first time in the history of our immigration leg- islation the power which, as prior decisions herein cited show, the states attempted in vain to exert. The Secre- 1722 Stat. at L. 214. Power and Methods. 63 tary of the Treasury was charged with the duty of execut- ing the provisions of the act and was given authority under it to enter into contracts with such state commission, board or officer as might be designated by the governor of any state for that purpose to take charge of the local affairs of immigration in the ports of said states. The state commission, board, or officer so designated, was to examine into the condition of passengers arriving at the ports of the states by water, and was authorized to go on board of and through any vessel or ship for that purpose. If on examination the proper officers found among the passengers a convict, lunatic, idiot, or person unable to take care of himself or herself without becoming a public charge they were to report this fact to the collector of the port, and, under the law, such person could not land; hereby a co-operation between the state and Federal au- thorities which, however, was soon to disappear with the provisions of subsequent acts. The powers exercised by the state and Federal authorities could not be mutually delegated 18 and the board was confined in rendering its excluding decisions to classes enumerated as being subject to exclusion under the Federal statute; and having ren- dered its decision touching the status of an alien seeking admission the decision was not subject to reversal by the collector of customs, 19 notwithstanding that under the law the commissioners were to report their findings to him. 20 The act provided for the return of all foreign convicts except those convicted of political offenses, and added to the list of persons excludable under the Act of 1875, luna- tics, idiots and persons unable to take care of themselves without becoming public charges. 18 In re Murnane et al., 39 Fed. 99. 19 In re Palagano, 38 Fed. 580. 20 In re Day, 27 Fed. 678; and see In re Bucciarello et al., 45 Feb. 463, holding that the determination of the alien’s admissibility lay, under the Act of February 23, 1887, with the superintendent of immigration at the port of New York and not with the collector of customs. 64 The Exclusion and Expulsion of Aliens. The constitutionality of the act was made the subject of an attack based on two main grounds; first, that the tax or duty of fifty cents was not levied to provide for the common defense or welfare of the United States and was not uniform throughout the United States; and, second, that the act violated the provisions of numerous treaties entered into between the United States and various friendly nations. 21 The first objection was disposed of by the Su- preme Court with the statement that “the tax in this case, which, as far as it can be called a tax, is an excise duty on the business of bringing passengers from foreign countries into this by ocean navigation, is uniform and operates pre- cisely alike in every port of the United States where such passengers can be landed ;” and held furthermore that the power exercised in this instance was not the taxing power but “a mere incident of the regulation of commerce.” As to the second, it was held that “so far as the provisions of the act may be found to be in conflict with any treaty with a foreign nation they must prevail in all the judicial courts of this country.” The superiority of existing treaties over subsequent acts of Congress was thus de- nied. 22 ( G. ) The Act of February 26, 1885, 23 as Amended by the Act of February 23, 1887. 24 This statute was entitled “An act to prohibit the im- portation and immigration of foreigners and aliens under contract or agreement to perform labor in the United States, its territories, and the District of Columbia.” Before adopting its present prohibitive policy toward the importation of alien laborers, under contract, the Fed- eral government for a brief period pursued an exactly opposite course. In his message to Congress, December 8, 1864, President Lincoln strongly recommended that a sys- 2iHead Money Cases, 112 U. S. 580, 28 Law Ed. 798. 22See ante p. 45. 2323 Stat. at L. 332. 2424 Stat. at L. 414. Power and Methods. 65 tem for the encouragement of immigration be established. He stated that there was a great deficiency of laborers in every field of industry and that “tens of thousands of per- sons destitute of remunerative occupations, are thronging our foreign consulates and offering to emigrate to the United States if essential, but very cheap, assistance can be afforded.” The President’s recommendation was con- sidered by a select committee of the House of Representa- tives, which brought in a favorable bill and recommended its passage on the ground that the vast number of labor- ing men who had left their peaceful pursuits for the pur- suits of war had created a shortage in the labor supply which was being seriously felt in every section of the United States. The committee concluded that this de- mand for labor could be supplied only by immigration. To remedy the situation, Congress enacted the law of July 4, 1864. 25 This law provided that contracts made in foreign countries whereby emigrants to the United States pledged their wages for a term not exceeding one year to repay the expense of emigration should be valid, and should not in any way be considered as creating a condi* tion of slavery or servitude. The law created the office of Commissioner of Immigration, to be under the Secre- tary of State, and provided for an office in New York City charged with arranging for the transportation of immi- grants to their destination in the United States and pro- tecting them from imposition and fraud. In 1866, the House of Representatives passed a bill to extend the scope of the law of 1864 by creating at various Atlantic ports immigration officers similar to that in op- eration at New York. The Senate, however, did not agree to this proposed amendment, and in the discussion con- cerning it the law itself was declared impolitic, if not un- constitutional, and at one time it was in danger of repeal. 2513 Stat. at L. 385. 66 The Exclusion and Expulsion of Aliens. The law of 1864 was repealed in 1868, and, although sev- eral times proposed in bills introduced in Congress, the Federal Government never again attempted the artificial promotion of immigration. In fact the operation of the law of 1864 and the agitation growing therefrom undoubt- edly were among the factors that eventually led to the passage of the alien contract labor law of 1885. It was the first to have for its main object the exclusion of foreign laborers from the United States and that this was its chief purpose, and that its provisions, broad though they were, did not apply to foreigners coming to the United States under contract who were not of the laboring classes, was held by the Supreme Court in the case of Church of the Holy Trinity v. United States. 26 Commenting on the title of the act, the court says : “Ob- viously the thought expressed in this reaches only to the work of the manual laborer as distinguished from that of the professional man We find, therefore, that the title of the act, the evil which was intended to be remedied, the circumstances surrounding the appeal to Congress and the reports of the committee of the House all concur in affirming that the intent of Congress was simply to stay the influx of this cheap unskilled labor and held that it could not be deemed to apply to ministers of the gospel. The act prohibited all persons, including companies, partnerships, and corporations, from in any way assisting or encouraging the importation or migration of aliens into the United States under contract or agreement made pre- vious to their importation or migration to perform labor or service of any kind in this country, 27 and provided that any such contract thereafter made should be null and void. 28 Violations of section 1 were made punishable with a fine of one thousand dollars for each offense, 29 and the 26143 U. S. 457, 36 Law Ed. 266. 27Section 1. 28Seetion 2. 29 Section 3. Power and Methods. 67 master of any vessel knowingly bringing such a contract laborer into the United States was on conviction thereof to be held guilty of a misdemeanor and subject to fine or imprisonment. 30 Section 5 provides that the following aliens shall not be deemed to be contract laborers : skilled foreign workmen engaged to perform labor in the United States in or upon any new industry not at that time established in the United States, provided that skilled labor could not be otherwise obtained for that purpose, professional actors, artists, lecturers, or singers, and per- sons employed strictly as personal or domestic servants. The act was amended by the Act of February 23, 1887, 31 and by the Deficiency Appropriation Act of October 19, 1888, 32 the first of which provided for the return of all persons included in the prohibitions of the Act of 1885, and the second of which provided further that such aliens might be returned within one year after landing. 33 The effect of these three acts, as their titles show, “was primarily to prevent the importation and immigra- tion of foreign labor, and it is against this class that their provisions were plainly directed. 34 They applied generally to the manual laborer, as distinguished from the profes- sional man, such as experts in chemistry, 35 and ministers of the gospel. 36 An under coachman was held to be in- cluded in the exempt class designated as personal and do- mestic servants; 37 but a person entering under a contract to labor as a farm servant was held not to come within the exception. 38 The purpose of this act being to put a soSection 4. 3i24 Stat. at L. 414. 3225 Stat. at L. 565. 33ln re Lifieri, 52 Fed. 293. 34ln re Cummings, 32 Fed. 75. 35United States v. Laws, 163 U. S. 256, 41 Law. Ed. 151. 36 Church of the Holy Trinity v. United States, 143 U. S. 457, 36 Law Ed. 226. 37ln re Martorelli, 63 Fed. 437. 38ln re Cummings, 32 Fed. 75. 68 The Exclusion and Expulsion of Aliens. stop to the entry of cheap and unskilled foreign labor, it was held not to apply to expert drapers and window dressers; 39 but this decision was criticised in an opinion of the Attorney General 40 which held that alien lacemakers should be refused a landing in the United States when coming here for the purpose of employment under con- tract. As to the application of the appropriate sections of the act to persons entering the United States under con- tract to engage in a new industry, it was held that the manufacture of lace curtains, not begun before the tariff law of 1890, and not firmly established at the time the parties entered under contract is a new industry, 41 as is the manufacture of French silk stockings, differing in appear- ance, quality and manufacture from anything theretofore made. 42 The Act of 1885 was held constitutional under the right of Congress to regulate commerce with foreign nations; 43 and it necessarily follows that, granting the power to dis- criminate as to which classes of aliens shall be admitted and which excluded, Congress has the power to punish persons who assist in the introduction of members of the excluded classes. 44 Said the Supreme Court, in the case of Lees v. United States : 45 “Given in Congress the abso- lute power to exclude aliens, it may exclude some and admit others, and the reasons for its discrimination are not open to challenge in the courts. Given the power to exclude, it has a right to make the exclusion effective by punishing those who assist in introducing or attempting to introduce aliens in violation of its prohibition. The importation of alien laborers who are under previous con- tracts to perform labor in the United States is an act de- sflUnited States v. Gay, 95 Fed. 226. <023 Op. Atty. Gen. 381, Jan. 28, 1901. 4iUnited States v. Bromiley, 58 Fed. 554. 42United States v. McCallum, 44 Fed. 745. 43United States v. Craig, 28 Fed. 795. 44Ex parte Gouyet, 175 Fed. 230. 45150 United States 476, 37 Law Ed. 1150. Power and Methods. 69 nounced, and the penalty is visited, not upon the alien laborer — although by the amendment of February 23, 1887, he is to be returned to the country from whence he came — but upon the party assisting in the importation. If Congress has power to exclude such laborers, as by the cases cited it unquestionably has, it has the power to punish any one who assists in their introduction.” To give a right of action for importing aliens contrary to the provisions of the act it was necessary that the im- migrant, previous to becoming a resident of the United States, must have entered into a contract to perform labor or service in this country ; that he must actually have mb grated to or entered the United States in pursuance of such contract, and that the defendant must have prepaid his transportation, or otherwise assisted, encouraged or solicited his immigration, knowing that he had entered into the illegal contract; 46 and any district in which the defendant might be found might be made the situs of the civil action brought again him for such violation. It was held that actions for the recovery of penalties incurred under the act were to be brought in the District court, although the act provided that the penalties were to be recovered as “debts of like amount are now recovered in the Circuit Courts of the United States.” 47 “When,” says the Supreme Court, 48 “it is remembered that a penalty may be recovered by indictment or information in a crim- inal action, or by a civil action in the form of an action of debt, and also that the Circuit Courts of the United States are, as contradistinguished from the District Courts, the Federal Courts of original jurisdiction, the significance of this clause is clear. It in effect provides that although the recovery of a penalty is a proceeding criminal in its ^United States v. Craig, 28 Fed. 795. ^Rosenberg v. Union Iron Works, 109 Fed. 844; and might be properly- begun by capias in accordance with the state law. United States v. Ban- ister, 70 Fed. 44. 48 Lees y. United States, 150 U. S. 476, 37 Law Ed. 1150. 70 The Exclusion and Expulsion of Aliens. nature, yet in this class of cases it may be enforced in the same manner that debts are recovered in the ordinary civil courts.” ( H. ) The Act of March 3, 1891. 49 This act was entitled “An act in amendment to the various acts relative to immigration and the importation of aliens under contract or agreement to perform labor,” and was not, as its title shows, limited in its operation to the exclusion of foreign contract labor, as was the Act of 1885, but constituted legislation having for its object the exclusion not only of a particular class of foreigners, but of all classes whose presence in this country was thought by Congress to be obnoxious or injurious to mem- bers of those communities which the objectionable aliens sought to invade, and in which they intended to take up their residence. 50 This act was generally held to be operative as to immi- grants only ; that is, to aliens who, forsaking their former domicile, come to the United States for the purpose of making it their home ; and not to apply to aliens actually domiciled in the United States, and who, after a trip be- yond the territorial limits thereof return to resume a domi- cile already acquired. 51 Classes Excluded. In addition to those classes already excluded by former acts this act denied admission to paupers, or persons likely to become a public charge, persons suffering from a loathsome or dangerous contagious disease, persons who had been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude, polygamists, and also any person whose ticket or passage was paid for with 4926 Stat. at L. 1084. soUnited States v. Sandrey, 48 Fed. 550. siUnited States v. Burke, 99 Fed. 895; In re Ota, 96 Fed. 487; In re Maiola, 67 Fed. 114; In re Martorelli, 63 Fed. 437; In re Panzara, 51 Fed. 275. Power and Methods. 71 the money of another or who was assisted by others to come, unless it was affirmatively and satisfactorily shown on special inquiry that such person did not belong to one of the foregoing classes or to the class of contract la- borers excluded by the Act of 1885. The section enumerat- ing the excluded classes was held to have no application to contract laborers as a class but only to assisted immi- grants and to the classes previously named, and that the assisted immigrant was not within the prohibition of the section if it appeared that he did not belong to the “fore- going classes” or to the class of contract laborers. 52 The provision touching the exclusion of convicts op- erated in favor of foreigners sentenced abroad for the com- mission of crimes against foreign jurisdictions, as com- pared with the provisions of the earlier acts on the subject, whereby the mere fact of previous conviction — provided that it had not been for a political crime — was sufficient to exclude. 63 Here the test of moral turpitude was introduced for the first time, and is still maintained under the existing immigration laws. Contract Labor Provisions. In its fifth section this act added to the list of persons designated by the Act of 1885 as those to whom the pro- visions touching the importation of foreign labor should not apply, ministers of any denomination, persons belong- ing to any recognized profession, and professors for col- leges or seminaries. In the case of United States v. Laws, 54 the Supreme Court, in deciding that a chemist must be held to be exempt from this provision, said, “If by the terms of the original act the provisions thereof applied only to unskilled laborers whose presence simply tended to degrade American labor, the meaning of the act as amended by the Act of 1891 becomes, if possible, still 52 In re Lifieri, 52 Fed. 293. 53 In re Aliano, 43 Fed. 517. «163 U. S. 256, 41 Law. Ed. 151. 72 The Exclusion and Expulsion of Aliens. plainer. Now, by its very terms it is not intended to apply to any person belonging to any recognized profession. We think a chemist would be included in that class. Al- though the study of chemistry is the study of a science, yet a chemist who occupies himself in the practical use of his knowledge of chemistry as his services may be demanded may certainly at this time be fairly regarded as in the prac- tice of a profession.” Yet in the face of this decision, and in spite of the ex- pressions of the Supreme Court regarding the proper ap- plication of the rules of statutory interpretation to the Act of 1885, 55 the Circuit Court of Appeals of the Second Circuit had no hesitation in holding that an alien shown to be a chartered accountant, seeking admission to the United States for the purpose of rendering services as such at a fixed salary to a corporation domiciled in this country came within the prohibition of the act. This person was, on a ruling to this effect, detained for deportation by the Secretary of the Treasury. He appealed to the courts for the issuance of a writ of habeas corpus , which was refused, whereupon he appealed to the Supreme Court of the United States. While the case was on the day calendar his counsel agreed to move for a dismissal of the appeal on receiving an assurance from the Department of Justice that the petitioner would be admitted. The order of ad- mission was made by the Secretary of Commerce and Labor and the appeal dismissed. 56 The act of coming to the United States in response to promises of employment through advertisements printed 65Church of the Holy Trinity v. United States, 143 U. S. 457, 36 Law Ed. 227 ; as to the interpretation of the immigration laws generally, see Red- fern v. Halpert, 186 Fed. 150; United States v. Williams, 175 Fed. 274; United States v. Wood, 168 Fed. 438; United States v. Naskashima. 160 Fed. 842; In re Ellis, 124 Fed. 637; United States v. Mar Ying Yuen, 123 Fed. 159; Tsoi Sim v. United States, 116 Fed. 920; United States v. Burke, 99 Fed. 895. 56ln re Ellis, 124 Fed. 637, 196 U. S. 643; Moore Int. Law Dig., Yol. 4, p. 108. Power and Methods. 73 and published in a foreign country, was treated in section three as equivalent to coming to this country under a con- tract to perform labor here; and the effect of the section was to dispense with the necessity of proving that there had been a contract with the alien previous to importation on the part of the persons for whom the labor was to be performed other than the promise of employment. The solicitation of any immigrant to migrate to the United States by steamship or transportation companies was for- bidden under the penalty of a fine, 57 and the bringing into or landing in the United States of any alien not lawfully entitled to enter, or aiding in the same by vessel or other- wise was made a misdemeanor and punishable with fine or imprisonment. 58 The power of the Secretary of the Treas- ury to enter into contracts with state commissions, boards, or officers, was withdrawn by this act, 59 which created the office of Superintendent of Immigration, 60 now the Com- missioner General of Immigration who, it has been held, under the Act of June 6, 1900, 61 in connection with the Act of May 5, 1892, 62 acquired jurisdiction over Chinese laborers in the United States without certificates of resi- dence. 63 Finality of Administrative Decisions. The decisions made by inspection officers and their as- sistants touching the right of any alien to land, were, when adverse to such right, made final in the absence of appeal taken to the Superintendent of Immigration, whose action was to be subject to review by the Secretary of the Treas- ury; 64 but the immigrant was accorded the privilege of a 57 Section 4. 58 Section 6. 5920 Op. Atty. Gen. 69, 1891. 60 Section 7. 6i31 Stat. at L. 611. 6227 Stat. at L. 25. 63Fong Mey Yuk v. United States, 113 Fed. 898. 64Seetion 8. 74 The Exclusion and Expulsion of Aliens. special inquiry as to his right to land after his case had been first passed on by the inspection officer. 65 These pro- visions have been held to apply to proceedings taken before the immigrants were allowed to land, and not to proceed- ings for the recapture of such as had been passed and landed ; 66 but there is little doubt that this view, expressed at a comparatively early date in the history of immigra- tion legislation, does not voice the attitude of the courts to-day. 67 The Return of Aliens Unlawfully Here. The return of aliens unlawfully within the United States might be ordered within one year after landing, as well as that of aliens becoming public charges within that period after arrival from causes existing prior to such landing. 68 Provision for return within this period had already been made in the Act of October 19, 1888, 69 and this section has been held to create no new authority to return, but simply to provide additional means of meeting the expenses of ar- rest and removal. 70 In interpreting the purpose and effect of this act and of the preceding Act of 1888 providing for the return of aliens found within a year after entering to be unlawfully in the country, the Supreme Court has said : 71 “Taking all its enactments together it is clear that Congress did not intend that the mere admission of an alien or his mere entering the country should place him at all times thereafter entirely beyond the control or au- thority of the executive officers of the Government The immigrant must be taken to have entered subject to 65ln re Feinknopf, 47 Fed. 477; In re Hirsch Berjanski, 47 Fed. 445. 66ln re Lifieri, 52 Fed. 293. 67Yamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721; Ekiu v. United States, 140 U. S. 651, 35 Law Ed. 1146; United States v. Yamasaka, 100 Fed. 404. esSeetion 1. 6921 Stat. at L. 565. 70ln re Lifieri, 52 Fed. 293. 7iYamataya t. Fisher, 189 U. S. 86, 47 Law Ed. 721. Power and Methods. 75 the condition that he might be sent out of the country by order of the proper executive officer, if, within a year, he was found to have been wrongfully admitted into or to have illegally entered the United States.” Again, in a later case, 72 the Supreme Court in referring to the policy of the original Act of October 19, 1888, speaks of it — and also referring to the present act under discussion — as a policy “which obviously was to give a chance for fuller investigation than is possible at the moment of landing, when any inquiry necessarily must be of a very summary sort;” and, in construing section 21 of the Act of March 8, 1903, 73 which perpetuated this provision, added, “This policy is emphasized and re-enforced by changing the period of probation from one year to three, while in other respects paragraph 21 follows almost literally the words of the earlier act.” Prohibition Against Unlawful Landing of Aliens. Prior to the passage of this act the obligation of ship- masters not to land or bring aliens belonging to the ex- cluded classes into the country consisted in the positive prohibition against the landing of such persons on pain of fine or imprisonment or both. 74 This prohibition was made by section 6 of the act under discussion to apply not only to shipmasters, but to “all persons,” and to prohibit the landing of all aliens not entitled to enter the United States. The penalty was made doubly severe. 75 By sec- tion 8 it was provided in addition that officers and agents of vessels bringing aliens to the United States should “adopt due precautions to prevent the landing of any alien immigrant at any place or time other than that desig- nated by the inspection officers;” and that any such per- son “who shall either knowingly or negligently land or 72Pearson v. Williams, 202 U. S. 281, 50 Law Ed. 1029. 7332 Stat. at L., pt. 1, p. 1213. 7 ^ Act of February 26, 1885, sec. 4; 23 Stat. at L. 332. 75Section 6. 76 The Exclusion and Expulsion of Aliens. permit to land any alien immigrant at any time or place other than that designated by the inspection officers shall be deemed guilty of a misdemeanor” and be punishable by fine or imprisonment. The statute did not, however, contemplate a responsibility on the part of the master or agent so extreme as to make him an absolute insurer against the landing of aliens without his fault; and to hold him liable under the penal clause of the act it was necessary to show that the escape of aliens was due to the master’s wilful lack of precaution or positive negligence. 76 That provisions of this nature being penal in character should be strictly construed was held as axiomatic. 77 Judicial and Administrative Jurisdiction Not Concurrent. Section 13 provided that the Circuit and District Court of the United States were thereby invested with full and concurrent jurisdiction of all cases civil and criminal arising under the provisions of the act. It was contended in the case of Ekiu v. The United States, 78 that by this pro- vision the courts, as well as the executive officers to whom jurisdiction over cases involving the exclusion or expul- sion of aliens had hitherto been confided had jurisdiction over such cases ; but the court held that this section “evi- dently refers to causes of judicial cognizance already pro- vided for, whether civil actions in the nature of debt for penalties under sections 3 and 4 or indictments for misde- meanors under sections 6, 8 and 10. Its intention was to vest concurrent jurisdiction of such causes in the circuit and district courts; and it is impossible to construe it as giving the courts jurisdiction to determine matters which the act has expressly committed to the final determination of executive officers.” 76Hackfeld & Co. v. United States, 197 U. S. 442, 49 Law Ed. 826. 77United States v. Gay, 80 Fed. 254. 78142 U. S. 651, 35 Law Ed. 1146. Power and Methods. 77 (I.) The Act of March 3, 1893. 79 Immigrant Lists . This law was enacted to facilitate the enforcement of the immigration and contract labor laws. It provided for the furnishing of lists of alien immigrants by the masters of incoming vessels ; for the verification of such lists by the master before the consular representative of the United States at the foreign port of departure, and by a competent surgeon prior to the departure of the vessel, and penalized the failure to deliver such lists to the immigrant inspector at the port of arrival. 80 Boards of Inquiry and Right of Administrative Appeal. Section 5 of the act provided that aliens not found by the immigrant inspector to be clearly and beyond a doubt en- titled to land should be detained for special inquiry by a board composed of not less than four officials acting as inspectors ; and that none should be admitted except on the favorable decision of at least three of the members of the board, but that any decision to admit should be appealable by any dissenting inspector to the Superintendent of Im- migration, whose decisions should be subject to review by the Secretary of the Treasury. Immigration Laws No Abrogation of State Quarantine Systems. The contention has been made that this act was in con- flict with the Act of Congress of 1893 which granted addi- tional powers to the Marine Hospital Service, and in con- flict as well with rules and regulations issued by the de- partment for the enforcement of the immigration laws. 7927 Stat. at L. 651. 80 But the failure to include in such list the name of a domiciled alien who nas taken passage for the round trip in a capacity other than that of sea- man does not subject the master to a fine. 23 Op. Atty. Gen. 278, 1900. 78 The Exclusion and Expulsion of Aliens. But the Supreme Court said : 81 “The immigration acts to which the proposition relates are those of March 3, 1875, of August 3, 1882, of June 21, 1884, of February 26, 1885, cf February 23, 1887, and of March 3, 1891, and the regu- lations to enforce the same. Without undertaking to analyze the provisions of these acts, it suffices to say that after scrutinizing them we think they do not purport to abrogate the quarantine laws of the several states, and that the safeguards which they create and the regulations which they impose on the introduction of immigrants was ancillary, and subject to such quarantine laws. So far as the Act of 1893 is concerned, it is manifest that it did not contemplate the overthrow of the existing state quar- antine systems and the abrogation of the powers on the subject of health and quarantine exercised by the states from the beginning, because the enactment of state laws on these subjects would in particular instances, affect inter- state and foreign commerce Nor do we find anything in the rules and regulations adopted by the Secretary of the Treasury in execution of the power conferred upon him by the act in question giving support to the contention based upon them.” (J.) The Act of March 3, 1903. 82 Head Tax. This statute, entitled “An act to regulate the immigra- tion of aliens into the United States,” provided in its first section for the levy of a head tax of $2.00 for each pas- senger not a citizen of the United States, Dominion of Canada, Republic of Cuba, or the Republic of Mexico, coming by water or land into the United States, said tax to be a lien upon the vessel bringing such aliens to the United States and a debt in favor of the Government against the siCompagnie Francaise de Navigation a Vapeur v. State Board of Health, 186 U. S. 380, 46 Law Ed. 1209. Power and Methods. 79 owner of the vessel, payment thereof to be enforced by any legal or equitable remedy ; but the head tax was not to be levied on aliens in transit through this country, nor upon aliens who, having once been admitted thereto after pay- ment of the tax should later go in transit through one part of the United States to another through foreign contigu- ous territory. Aliens Excluded. To the list of persons excluded under earlier acts were added epileptics and persons who have been insane within five years previous to their application or have had two or more attacks of insanity at any time previously; pro- fessional beggars; anarchists; prostitutes, for the first time in the history of immigration legislation, and persons who procure or attempt to bring in prostitutes or women for the purpose of prostitution; those who have been within one year from the date of the application for admis- sion to the United States deported as being under offers to perform labor or service of some kind; and any person whose ticket or passage was paid for with the money of another or who was assisted by others to come unless it was affirmatively shown that such person did not belong to one of the foregoing classes. The power of Congress to exclude anarchists was at- tacked on constitutional grounds but without avail . 83 It was held not to apply to aliens who entered prior to its passage 84 nor to bona -fide alien seamen , 85 nor to aliens domiciled in the United States . 86 Prostitutes, and Their Importation. Theretofore the only provisions prohibiting the entrance 88 United States ex rel. Turner v. Williams, 194 U. S. 279, 48 Law. Ed. 979. 84 In re Lea, 126 Fed. 234. ssTaylor v. United States, 207 U. S. 120, 52 Law Ed. 130. 86 United States v. Nakashima, 160 Fed. 843; Rogers v. United States, 152 Fed. 346; United States v. Aultman, 143 Fed. 922; but see Taylor v. United States, 152 Fed. 1. 80 The Exclusion and Expulsion of Aliens. of immoral women was contained in the Act of 1875, 87 which excluded only those alien women who had been im- ported for purposes of prostitution, and did not prohibit the entrance of prostitutes coming to this country of their own accord. The importation of women for that purpose was designated in that act as a felony punishable with heavy fine and imprisonment. The Act of 1903, 88 similarly classified and punished the attempt to import as well as actual importation, and re-enacted the prohibition of the law of 1875 against holding or attempting to hold women for such purposes in pursuance of such illegal importation. In so far as the Act of 1903 placed no limitation of the period after arrival within which a person holding an alien woman for prostitution in pursuance of illegal importa- tion might be criminally prosecuted, section 3 of the Act of February 20, 1907, which limited the period within which a prosecution might be initiated to three years, re- pealed the corresponding section of the Act of 1903, to that extent ; 89 but in so far as it excluded alien prostitutes it was kept in force by the later act . 90 Contract Labor. While aliens coming to the United States for the pur- pose of performing labor here under contract were not excluded by the terms of this act , 91 it was none the less made unlawful for any person to prepay the transporta- tion or to assist in the importation or migration of such alien to perform labor, skilled or unskilled, in the United States, pursuant to offers of employment made previous to the importation , 92 and such offense was penalized as in 8718 Stat. at L., pt. 3, p. 477. 8832 Stat., pt. 1, p. 1213. 89United States ex rel. Chanin v. Williams, 177 Fed. 789. 90Ex parte Durand, 160 Fed. 558. siBotis v. Davies, 173 Fed. 996; Davies v. Manolis, 179 Fed. 818; 26 Op. Atty. Gen., p. 199, 1907 ; but see In re Ellis, 124 Fed. 637. ^Section 4. Power and Methods. 81 the preceding act, 93 and transportation companies were forbidden to encourage the migration of aliens irrespective of the purpose of such migration except by ordinary com- mercial letters, circulars, etc. 94 Unlawful Landing of Aliens. Section 6 of the Act of March 3, 1891, had prohibited and penalized bringing or landing or aiding in bringing or landing in the United States any alien not lawfully entitled to enter; whereas section 8 of the Act of 1903, not only penalized the bringing or landing, but the at- tempt to commit these acts as well, in case such aliens had not been duly admitted by an immigrant inspector, or were not lawfully entitled to enter the United States. Bringing Diseased Aliens to the United States. The additional prohibition against bringing aliens af- flicted with a loathsome or dangerous contagious disease first appears in the Act of 1903, section 9 of which imposed a fine of one hundred dollars upon any transportation company bringing such aliens to this country if it should appear that the alien so brought was afflicted with the disease in question at the time of foreign embarkation and that the existence thereof might have been detected by a competent medical examination at that time. Obligation of the Transporter to Prevent Unlawful Land- ing. Section 8 of the Act of 1891 had imposed on the officers and agents of vessels bringing immigrants to the United States, the duty of adopting “due precautions to prevent the landing of any alien immigrant at any place or time other than that designated by the inspection officers,” and penalized as a misdemeanor knowingly or negligently land- ing or permitting to land any such alien immigrant except at such time and place. Section 18 of the Act of 1903 pro- jections 5 and 6. 94 Section 7. 82 The Exclusion and Expulsion of Aliens. vided that such precautions should be adopted with regard to “any alien” and penalized the “landing or permitting to land” of any alien except at the time and place designated. The effect of the change of the term “alien immigrants” as used in the Act of 1891 to “aliens” in the Act of 1903 is elsewhere discussed. 95 The omission in the Act of 1903 of the words “knowingly and negligently,” used in the Act of 1891 immediately preceding the words “land or permit to land,” was doubtless due to a desire on the part of Con- gress to impose upon ship owners and other persons the obligation to observe the strictest caution to prevent the escape of aliens under their charge. The section was held not to apply to sailors allowed to land in the ordinary course of shore leave, who were carried to an American port with the bona, fide intent to take them out again when the ship went on, where there was no ground for supposing that they were making the voyage as a pretext to get into the United States. 96 Obligation of Transporter to Detain Aliens for Deporta- tion. Section 10 of the Act of 1891 is virtually re-enacted by section 19 of the Act of 1903, providing that refusal by ship owners to receive excluded aliens back on board and neglect to detain them thereon, or refusal or neglect to re- turn them to the foreign port whence they came, shall con- stitute a misdemeanor. In the corresponding section of the Act of February 20, 1907, the word “fail” is substituted for “neglect.” The reason for the change may be found in the language of the Supreme Court in the case of Hackfelt v United States, 97 where the court had occasion to construe section 10 of the Act of 1891. It was there held that the lan- guage of that section “does not make the ship owner an in- surer, at all hazards, of the safe return of the immigrant, but Post p. 434 et seq. 96Taylor v. United States, 207 U. S. 120, 52 Law Ed. 130. »7197 U. S. 442, 49 Law Ed. 826. Power and Methods. 83 does require every precaution to detain him and prevent his escape.” “We think,” says the court, “this statute was intended to secure not the delivery of the immigrant at all hazards, but to require good faith and full diligence to carry him back to the port from whence he came It is urged by the Government that in view of the re-enactment of section 10 as section 19 of the Act of 1903 it is to receive a construction in harmony with the judicial interpretation given to the act before the revision. While recognizing the rule that doubtful terms which have acquired through judicial interpretation a well understood legislative mean- ing are presumed to be used by the legislature in the sense determined by authoritative decisions — The Abbotsford (The Abbotsford v. Johnson), 98 U. S. 440, 25 Law Ed. 168 — we do not think the rule applies to this case. So far as we know, there has been but one decision, in the Warren case, 7 C. C. A. 368, 5 U. S. App. 656, 58 Fed. 559, which was doubted in the Spruth case, 71 Fed. 678.” The court then cites an opinion of the Attorney General 98 holding that the master was not made liable at all hazards by the terms of section 10, and adds that “in this state of judicial and official opinion we do not think this act can be said to have received such judicial interpretation as should control its legislative meaning.” Probationary Period . Sections 20 and 21 of the Act of 1903 increased the period within which persons found to be public charges due to causes existing prior to the time of landing might be expelled to two years, and the period of expulsion of aliens found by the Secretary of the Treasury to be unlawful in the United States to three. Boards of Special Inquiry — Effect of Their Decisions. This act continues the boards of special inquiry estab- lished by the Act of 1893, but reduced the membership 9823 Op. Atty. Gen. 271, October, 1900. 84 The Exclusion and Expulsion of Aliens. thereof to three inspectors ; and provided that the decisions of such boards were to be final as to the right of aliens to land in all cases where the applicants were found to be suffering from mental or physical disabilities of a particu- larly severe or permanent nature and that in other cases the decisions of the boards were to be final except that an appeal therefrom was allowed to the Secretary of Com- merce and Labor through the Commissioner General of Im- migration. 100 In passing upon the finality of the board’s decision in connection with the right of the Secretary of Commerce and Labor to return aliens found by him to be unlawfully within the United States within three years after they had been admitted by the board, the Supreme Court said, “The board is an instrument of the executive power, not a court. It is made up of the immi- grant officials in the service, subordinates of the Commis- sioner of Immigration, whose duties are declared to be ad- ministrative by section 23. Decisions of a similar type have long been recognized as decisions of the executive de- partment, and cannot constitute res judicata in a technical sense There is a plain and sufficient meaning for the words, making their decision final, and that is, that it shall be final where it is most likely to be questioned, — in the courts.” Retroactive Effect of This Act. Section 28, providing that nothing contained in the act should affect any prosecution or other proceeding begun under any existing act was held not to be limited in its application to prosecutions or proceedings which had be- gun before the passage of the act, but to apply likewise to those thereafter begun under the old law based on acts committed before its repeal or amendment. 1 Further provisions of this act are considered in connec- »»Pearson v. Williams, 202 U. S. 281, 50 Law Ed. 1029. looSection 25. iLang v. United States, 133 Fed. 201. Power and Methods. 85 tion with the discussion of the existing immigration law, the Act of February 20, 1907, as amended by the Act of March 26, 1910. 2 2. The Chinese Exclusion Acts. (A.) The Acts of May 6, 1882, and July 5, 1884. The first of the Chinese exclusion acts, the purpose of which has been held to be to exclude Chinese generally as contrasted with that of the immigration acts to admit them generally, 3 was passed on May 6, 1882. The title was “An act to execute certain treaty stipulations relating to Chinese.” The stipulations referred to were those con- tained in Articles I, II and III of the treaty with China of November 17, 1880. 4 providing for the suspension of the immigration of Chinese laborers into the United States. Consequently the Supreme Court of the United States held that “since the purpose avowed in the act was to faithfully execute the treaty any interpretation of its provisions would be rejected which imputes to Congress an intention to disregard the plighted faith of the Government, and con- sequently the court ought, if possible, to adopt that con- struction which recognized and saved rights secured by the treaty.” 5 Coming of Chinese Laborers Suspended. The act provided that the coming of Chinese laborers to the United States be suspended between the period running from the expiration of ninety days after the passage of the act (Aug. 5, 1882), and the expiration of ten years next succeeding the date of the passage thereof (May 6, 1892). It provided for the issuance of certificates for the purpose of the identification of laborers, these certificates to be *Post p, 149. 3 United States v. Crouch, 185 Fed. 907. *Ante p. 26. sChew Heong v. United States, 112 U. S. 536, 28 Law Ed. 770. 86 The Exclusion and Expulsion of Aliens. given by the collector of customs to such as were in this country on November 17, 1880, or who should come here prior to August 5th, 1882. 6 It further provided for the identification by the Chinese government of persons other than laborers. 7 Its primary object was to put a temporary stop to the immigration of Chinese laborers, and at the same time to provide that such as were in the United States prior to November 17, 1880, might be allowed to leave and return at their pleasure. 8 ‘•The enforcement of the act with respect to laborers who were in the United States on November 17, 1880, was attended with great embarrassment from the suspicious nature in many instances of the testimony offered to estab- lish the residence of the parties, arising from the loose notions entertained by the witnesses of the obligation of an oath. This fact led to the desire for further legislation restricting the evidence receivable, and the amendatory Act of July 5, 1884, was accordingly passed To ob- viate the difficulties attending its enforcement the amenda- tory act declared that the certificate that the laborer must obtain ‘shall be the only evidence permissible to establish his right to re-entry’ into the United States.” 9 Certificates of Identification and Return. As above stated, certificates were required under the Act of 1882, as amended, from two distinct classes of Chinese, those who were laborers, and Chinese other than laborers. They were drawn up and framed to meet the distinct requirements of either class, and are in no way to be confused with one another. The certificate required from the Chinese government consists of no more or less than an averment by that government of the fact that the person to whom it was issued did not belong to the labor- 6See Appendix. 7See United States v. Chu Chee, 93 Fed. 797. ©See In re Ah Sing, 13 Fed. 286. ©Chae Chan Ping v. United States, 130 U. S. 531, 32 Law Ed. 1068. Power and Methods. 87 in g class ; whereas the return certificate issued by the col- lector of customs to the outgoing laborer was issued in the first instance to distinguish him as such, and for the pur- pose of properly identifying him as one who had been in the United States on the 17th day of November, 1880, or w T ho had come into the United States before the expiration of ninety days after the passage of the act. 10 But since the purpose of the act was only to restrict the coming of Chinese laborers, skilled or unskilled, and was not to interfere with the commercial relations between China and this country, 11 it seems that the provisions mak- ing the production of the certificate by persons alleging themselves to be merchants must not be considered as an indication that Congress did not look with favor on the coming of Chinese of the exempt classes. In the case of Lau Ow Bew v. The United States, 12 Mr. Justice Fuller quoted with approval the following language used by Mr. J ustice Field in an earlier case : 13 “The certificate men- tioned in this section (section 6) is evidently designed to facilitate proof by Chinese other than laborers coming from China and desiring to enter the United States that they are not within the laboring class. It is not required as a means of restricting their coming. To hold that such was its object would be to impute to Congress a purpose to disregard the stipulation of the second article of the new treaty, that they should be ‘allowed to go and come of their own free will and accord.’ ” 14 As before observed, this measure, which went no further than to require that the certificate of both classes be ob- tained and presented, was not effective, and to make it so the amendatory Act of 1884, in its sixth section contains i°Section 4, Act of 1882. Needless to state no certificate is required by Chinese persons of American birth seeking admission into the United States. Re Look Tin Sing, 21 Fed. 905. uCase of the Chinese Merchant, 13 Fed. 605. 12144 U. S. 47, 36 Law Ed. 340. i3Re Yow Lam Chow, 13 Fed. 605. i4 And see to the same effect 62 Fed. 914. 88 The Exclusion and Expulsion of Aliens. the provision that the certificate “shall be the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States.” In spite of this additional provision, however, and the various other amendments involving changes of more or less importance the desired result was not reached. For the Supreme Court held that the act would be inconsistent with the treaty of November 17, 1880, if construed to re- quire a certificate from Chinese laborers who were in the United States on that date and who had departed before May 6, 1882, and remained away until after July 5, 1884. 15 The same result was reached in the case of the United States v. Jung Ah Lung, 16 where the facts were analogous. There the Supreme Court, in addition to saying that the provisions of the Act of 1884, as far as they related to the contents of the certificate to be presented to the Collector of Customs by the returning Chinese laborer arriving by vessel, are not retrospective, points out that section 4 of the Act of 1882 did not provide that the certificate was the only evidence permissible to establish the right of re- turn; 17 consequently that other evidence of a laborer’s right to return was admissible, thereby sustaining an earlier decision, 18 particularly when as, in the Jung^Ah Lung case, there was absolute proof to show that the cer- tificate had been issued under the Act of 1882 to the re- turning laborer and had been lost in good faith. 10 The effect of these decisions was “that the return certifi- cate for Chinese laborers was the only evidence permissible on the part of the person producing it, but for those who could not produce such evidence by reason of departure from the country before the Act of 1882 went into effect” i^Chew Heong v. United States, supra. 16124 U. S. 629, 31 Law Ed. 591. nSee also 18 Fed. 506. i»In re Ho King, 14 Fed. 724. i»Note In re Tung Yeong, 19 Fed. 184; In re Leong Yick Dew, 19 Fed. 490; In re Chin Ah On, 18 Fed. 506; and note Fed. Stat. Annot., Vol. 1, p. 774. Power and Methods. 89 (or who could not produce the certificate having left be- fore the Act of 1884 went into effect) “other testimony was admissible The failure of the Act of 1884 to cure the defects of the Act of 1882 resulted in both the legislative and executive departments taking up the subject with the view of providing an effective measure of exclusion against the continual influx of Chinese immigrants. The new treaty was negotiated by the State Department and Con- gress immediately passed the Act of September 13, 1888, to carry the treaty into effect. The treaty was, however, finally rejected by the Chinese Government, and as a conse- quence that portion of the Act dependent upon the ratifica- tion of the treaty failed to become a law. 20 (B.) The Act of September 13, 1888. This act provided that from and after the date of the exchange of ratifications of the pending treaty between the United States of America and the Emperor of China, signed on March 12th, 1888, it should be unlawful for any Chinese person, whether a subject of China, or any other power, to enter the United States except as provided in the act. 21 The act was to apply to “all persons of the Chinese race, whether subjects of China or other foreign power excepting Chinese diplomatic or consular officers and their attendants; and the words “Chinese laborers” whenever used in this act, were to be construed as both skilled and unskilled laborers, and Chinese employed in mining. 22 The Chinese laborer was not to be permitted to return to the United States unless he had a lawful wife, child or parent in the United States, or property therein of the value of one thousand dollars, or debts of like amount due him and pending settlement. 23 It was further provided 20 United States v. Chu Chee, 93 Fed. 797. ^Section 1. 22 Section 3. 23 Sections 5 and 6. i 90 The Exclusion and Expulsion of Aliens. that a Chinese laborer, desirous of leaving the United States with the intention of returning should be granted a certificate of return by the collector at the port of de- parture, as furnishing satisfactory proof of his identity, with the right to return limited to one year extendible on proof of existence of causes beyond the control of the person claiming the right which prevented his return within the time specified; and that no Chinese laborer would be permitted to re-enter the United States without presenting the return certificate, and that such return could be lawfully effected only at the port of departure. The provision involving the right of Chinese laborers to re- turn was embodied in substance in Article II of the treaty with China of December 8, 1894. It has been held that in order to retain the right to return under the certificate, where that right depended on the possession by the appli- cant of property or credit to the amount of a thousand dol- lars proof must be made of the existence of such property or credit in the United States at the time of the laborer’s return. 24 Chinese persons other than laborers were prohibited from entering the United States except at designated ports excepting Chinese diplomatic or consular officers or their attendants. 25 Landing of Chinese Persons Prohibited. The landing or permitting to land of Chinese persons in contravention of the provisions of the act, as well as the attempt to do so, was made a misdemeanor and penal- ized with a fine or imprisonment in connection therewith in the discretion of the court; 26 but this provision was made inapplicable to the case of shipmasters whose vessels should come within the jurisdiction of the United States in distress or under stress of weather, or touching at any 24 In re Ong Lung, 125 Fed. 814. 25Section 7. 26gection 9. Power and Methods. 91 port of the United States on a voyage to any foreign port or place, and even then no Chinese persons should be per- mitted to land except in case of necessity, and should de- part with the vessel. 27 The Falsification of Certificates. The false substitution or alteration of any name on any certificate required by the act was made a misdemeanor punishable by fine and imprisonment. 28 Removal of Chinese Unlawfully Here. Section 13 provided that “any Chinese persons or per- sons of Chinese descent found unlawfully in the United States or its territory may be arrested upon a warrant is- sued upon a complaint under oath filed by any party on be- half of the United States or any justice, judge or commis- sioner of any United States court, returnable before any justice, judge or commissioner of any United States court, and, when convicted upon a hearing and found and ad- judged to be one not lawfully entitled to be or remain in the United States, such person shall be removed from the United States to the country whence he came ” Section 15 repealed the Acts of 1882 and 1884, such repeal to take effect upon the ratification of the pending treaty, as provided in section 1 of the act. (C.) Act of October 1, 1888. 29 Upon the rejection of the proposed treaty by the Chinese government “Congress very promptly passed an act to sup- plement the Act of 1882. It was approved October 1, 1888 (25 Stat. 504, c. 1064), and provided that it should be un- lawful for any Chinese laborer who had at any time before been or who was then or might thereafter be a resident of 27 Section. 10. zsSection 11. 2925 Stat. at L. 504. 92 The Exclusion and Expulsion of Aliens. the United States and who had departed or should there- after depart therefrom, and had not returned before the passage of the act, to return to or remain in the United States, and that no certificate of identity provided for in the fourth or fifth sections of the Act of 1882 should thereafter be issued, that every certificate theretofore is- sued in pursuance of said sections was declared void and of no effect, and that Chinese claiming admission by virtue thereof should not be permitted to enter the United States. This act closed the door effectually against Chinese la- borers coming into the United States upon any claim of prior residence, whether supported by return certificates or proof of residence in the United States between Novem- ber 17 th, 1880, and August 5th, 1882.” 30 The Act Held Constitutional. The constitutionality of the Act of October 1, 1888, was attacked vigorously, but to no avail. “The validity of this act,” says the Supreme Court in the case of Chae Chan Ping 31 “is assailed as being in effect an expulsion from the country of Chinese laborers in violation of exist- ing treaties between the United States and the Govern- ment of China, and of the rights vested in them under the laws of Congress It must be conceded that the Act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplemental treaty of 1880, but it is not on that account invalid or to be restricted in its enforcement. The treaties were of no greater legal obliga- tion than the acts of Congress.” And the Supreme Court again held in a later case 32 that “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 3°United States v. Chu Chee, 93 Fed. 797. 31130 U. S. 581, 32 Law Ed. 1068. si Wan Shing v. United States, 140 U. S. 424, 35 Law Ed. 503. The “ legislation M referred to in the quotation includes the Act of October 1, 1888. Power and Methods. 93 departed from the country, though they may have previ- ously resided therein, and have left with a view of return- ing ” The effect of these decisions was to determine that the privilege of Chinese laborers to come to and remain in the United States was a subject within legislative control, to be regularly suspended, or entirely abrogated, as Congress should declare, and that the law of the Chew Heong case 33 was no longer authority in construing the exclusion hcts. 34 Up to the passage of the Act of October 1, 1888, all the parts of the Act of September 13, 1888, which existed inde- pendently of the ratification of the treaty with China of March 12, 1888, remained in force. 85 Sections 1 and 2 have been held never to have been operative 30 as have sections 2 to 4. 37 Sections 5 to 14 have been held to be binding and in full force, 38 although the Supreme Court has held that it is doubtful if section 8 ever went into effect, 39 and that section 12 was not to be regarded as binding on the courts. 40 Section 13 has been uniformly held to express the existing law. 41 The Act of October 1st, however, re- voked all privileges conferred on Chinese laborers by sec- tions 5, 6 and 7 of the Act of September 13, 1888. 42 (D.) The Act of May 5, 1892. 43 Generally speaking, the Acts of 1888 were limited in their operation to Chinese persons unlawfully coming into 33Chew Heong v. United States, 112 U. S. 536, 28 Law Ed. 770. 34United States v. Chu Chee, supra. 35United States v. Lee Hoy, 48 Fed. 825; United States v. Chong Sam, 47 Fed. 878; United States v. Jim, 47 Fed. 431. 36 Ex parte Ng Quong Ming, 135 Fed. 378. 37United States v. Long Hop, 55 Fed. 58. ssHong Wing v. United States, 142 Fed. 128. 3»Fok Young Yo v. United States, 185 U. S. 296, 46 Law Ed. 917. 40 Li Sing v. United States, 180 U. S. 486, 45 Law Ed. 634. 41 Chin Bak Kan v. United States, 186 U. S. 193, 46 Law Ed. 1121; United States v. Jim, 47 Fed. 431. 42 Ex parte Ng Quong Ming, supra. *327 Stat. at L. 25. 94 The Exclusion and Expulsion of Aliens. the United States. 44 The Act of May 5, 1892, however, as amended by the Act of November 3, 1893, 45 was primarily directed at Chinese persons unlawfully in the United States. It extended by ten years the time within which Chinese laborers should be barred from admission to this country, and provided for the deportation of any person of Chinese nationality not lawfully entitled to remain in the United States. 46 Laying aside section 5 it deals with two classes of Chinese persons, first those not entitled to be or remain in the United States, and, second, those entitled to remain therein. “These words of description neither confirm nor take away any right, but simply designate the Chinese persons who were authorized or permitted to re- main in the United States under the laws and treaties ex- isting at the time of the passage of this act.” 47 Certificates of Registration, or Residence. Sections 1, 2, 3 and 6, construed together, give the United States Commissioner jurisdiction for deportation purposes over Chinese laborers without the certificates of residence required by the act. The obligation imposed by section 3 on Chinese persons to prove affirmatively their right to remain in the United States has been held con- sistent with the principle that every legislature has the right to prescribe the evidence which is to be received as well as the effect thereof in the courts, 48 and to be included in the power to prescribe the conditions under which aliens may enter or remain in the United States. 49 Moreover, this section has been held to give rise to the presumption of law that Chinese persons and persons of Chinese descent 44 In re Yew Bing Hi, 128 Fed. 319. 45 Post p. 96. 46United States v. Yong Yew, 83 Fed. 832. 47Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. 48Li Sing v. United States, 180 U. S. 486, 45 Law Ed. 634; Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905; Low Foon Yin v. United States, 145 Fed. 741; In re Sing Lee, 54 Fed. 334. 49United States v. Williams, 83 Fed. 997. Power and Methods. 95 who have failed to carry out its requirements are not enti- tled to remain in the country. 50 But section 4, which pro- vided for imprisonment at hard labor for any Chinese persons adjudged to be unlawfully in the United States has been universally condemned, 51 and authoritatively pro- nounced unconstitutional by the Supreme Court of the United States. 52 The manifest objects of sections 6 and 7 were to provide a system of regulation and identification of Chinese la- borers, to require them to obtain certificates of residence, and, if they did not do so within a year, to have them re- moved from the country. 53 But the provision in section 6 to the effect that a Chinese laborer who failed to procure a certificate within a year should be deemed unlawfully within the United States was held to mean not that this fact should be held to be conclusively established against him, but only that the want of a certificate should be prima facie evidence that he was not entitled to remain in the country ; that he should be so far presumed not to be enti- tled to remain in the United States that the proper officer or officers might arrest him and take him before a judge for a judicial hearing, to determine the only facts which, under the Act could have a material bearing on the ques- tion as to whether he should go or remain. 54 In the ab- sence of the certificate it has been held that proof of resi- dence in the United States at the time of the passage of the act was insufficient to prove the right of the prisoner to remain; that to be sufficient, such proof must be coupled with a good and sufficient reason why the certificate was not procured; 55 and the provision in section 6 that on a satisfactory showing the alien should be granted a certifi- 50 In re Jew Wong Loy, 91 Fed. 240. ^United States v. Wong Dep Ken, 57 Fed. 206. 52Wong Wing v. United States, 163 U. S. 230, 41 Law Ed. 140. 53Fong Yue Ting v. United States, supra. s*Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. 65 In re Ny Look, 56 Fed. 81. 96 The Exclusion and Expulsion of Aliens. cate on payment of costs was held to refer to the costs of the certificate only, and not to the costs of the proceed- ings. 56 "It is a well known fact,” said the court in the case of United States v. Chew Cheong, 57 “that but few of the Chinese in the United States made application for the cer- tificate of residence provided for in the Act of May 6, 1892. It was claimed as an excuse for this disregard of the law that they were advised by counsel that the law was not constitutional. It was, however, sustained in the case of Fong Yue Ting against the United States. Thereafter Congress passed the amendatory Act of November 3, 1893.” (E.) The Act of November 3, 1893. 58 This act granted an extension of six months’ time after its passage in which Chinese laborers within the limits of the United States and who were entitled to remain therein before the passage of the Act of May 6, 1892, might register as provided in the preceding act; 59 but this privilege was not accorded to Chinese heretofore convicted of felonies under Federal or state laws. 60 Chinese “Merchants” and “Laborers” In its second section the act defines “laborers” and “merchants,” and prescribes the evidence by which persons calling themselves merchants and who seek admission to the United States claiming their right to enter on a prior commercial domicile acquired in this country may come in. “For the first time in the history of legislation having for its purpose the exclusion of certain Chinese from the country or their deportation when here in violation of the statutes of the United States, and the admission of certain 56United States v. T ye, 70 Fed. 318. 6761 Fed. 200. 6828 Stat. at L. 7. eeSection 1. eo Ibid. Power and Methods. 97 others to the country, or giving the right to remain, Con- gress defined those theretofore designated generally as merchants or laborers 61 but the definitions given under the term “laborer” do not imply that that term is restricted to the classes specifically named. The privileges of real merchants were not disturbed but were left as granted by the treaty of 1880, the purpose of section 2 being only to prevent false ones from claiming these privi- leges. Consequently the appropriate provisions of section 2 mean only that the interest of the merchant must be real, and appear in the partnership articles in his own name and not that his name must appear in the firm name or designation. 62 In so far as the section pro- vides for the proof of mercantile status for the period of one year prior to the departure of returning merchants, ( a provision unqualifiedly held constitutional,) 63 it has been more strictly construed, as the courts have uniformly held that it applies to Chinese persons who left the United States prior to the passage of the act as well as to those leaving thereafter. 64 So far as the registration provisions of the act are concerned they have been construed to affect only those Chinamen in the United States at the time of the passage of the act who were then subject to registra- tion. Those not required to register were not affected 65 nor did the extension of registration, as before pointed out 66 apply to Chinese persons theretofore convicted of a felony. Although section 2 provides that pending the exe- cution of an order of deportation the Chinese person shall eiTom Hong v. United States, 193 U. S. 517, 48 Law Ed. 772; and see United States v. Yong Yeu, 83 Fed. 832. 62 Tom Hong v. United States, supra ; Lee Kan v. United States, 62 Fed. 914; see also Worn Ah Gar v. United States, 94 Fed! 831; Wong Fong v. United States, 77 Fed. 168. 63Li Sing y. United States, 180 U. S. 485, 45 Law Ed. 634. 64 United States v. Loo Way, 68 Fed. 475; Lai Moy v. United States, 66 Fed. 955; Lew Jin v. United States, 66 Fed. 953; In re Yee Lung, also In re Yue Soon, 61 Fed. 641. 65Jn re Yew Bing Hi, 128 Fed. 319. 66 Ante, p. 96. 98 The Exclusion and Expulsion of Aliens. remain in the custody of the United States marshal and shall not be admitted to bail, the section has been held to allow the granting of bail in deportation proceedings at any stage not final. 67 It has been decided that the Act of May 6, 1882, as amended by that of November 3, 1893, was not repealed in any of its parts by the Act of April 29, 1902. 68 (F.) The Act of August 18, 1894. 69 Final Determination of Right of Aliens to Enter Vested in Administrative Officers. This act provided for the enforcement of the Chinese exclusion Act of May 5, 1892, the sum of $50,000.00, and further that “In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appro- priate immigration or customs officers, if adverse to the admission of such alien, shall be final unless reversed on appeal to the Secretary of the Treasury.” This act was held constitutional by the Supreme Court of the United States 70 on the ground that not only was it within the power of Congress to designate the conditions under which aliens might enter or remain in the country, but it was equally within its power to vest the final deter- mination of such rights in executive officers, to the com- plete exclusion of the courts. In this case the right to enter was claimed on the ground of commercial domicile by the applicant, a Chinese merchant who stated that he left the United States in 1894. In later cases where the right to enter was based on the ground that the applicant 67 in re Ah Tai, 125 Fed. 795; and see Chapter on Deportation Procedure, posi, p. 653. esAh How v. United States, 193 U. S. 65, 48 Law Ed. 619; United States v. Lee Yen Tai, 185 U. S. 213, 46 Law Ed. 878; Tom Heong v. United States, 193 U. S. 517, 48 Law Ed. 772. e»28 Stat. at L. 390. 7oLem Moon Sing v. United States, 158 U. S. 538, 39 Law Ed. 1082. Power and Methods. 99 was a citizen of the United States this act has been held to apply notwithstanding the claim of citizenship. 71 The act gave no additional power to departmental officers but simply made their findings final as to the right of Chinese persons not laborers to come into the United States ; it did not affect them in their relation with such persons not laborers already in the United States. 72 It has been held not to apply to alien seamen. 74 ( G. ) The Act of March 3, 1901 75 was entitled “An act supplementary to an act, entitled ‘An act to prohibit the coming of Chinese persons into the United States/ approved May 5, 1892, and fixing the com- pensation of commissioners in such cases.’ 7 By this act the district attorney of the district in which any Chinese person was arrested for unlawful presence in or entrance into this country, was authorized to designate the United State Commissioner within the district and before whom the Chinese person should be taken for hearing. 76 The fee of the United States Commissioner for hearing a case arising under the Chinese exclusion laws was set at $5.00. 77 And it was provided that no warrant of arrest should be issued by United States Commissioners except upon the sworn complaint of the United States District Attorney and other officials duly enumerated unless the issuance of the warrant should first be approved or requested in writ- ing by the United States District Attorney of the district in which issued. 78 TiUnited States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040; United States v. Sing Tuck, 194 U. S. 161, 48 Law Ed. 917. 72 United States v. Chin Fee, 94 Fed. 828. 74 United States v. Burke, 99 Fed. 895. 7 ®31 Stat. at L. 1093. 76 Section 1. 77 Section 2. 78 Section 3. 100 The Exclusion and Expulsion of Aliens. ( H. ) The Act of April 29, 1902, 79 as Amended and Re-en- acted by Section 5 of the Deficiency Act of April 27, 1904. Chinese Exclusion Laws Made Applicable to Insular Ter- ritory. This act, as amended, re-enacted without limitation all the laws in force on the date of its passage regarding the admission of Chinese persons into the United States spe- cially including in such re-enactment sections 5, 6, 7, 8, 9, 10 and 11, 13 and 14 of the Act of September 13, 1888, and extended and continued the same in so far as they were not inconsistent with treaty obligations. The act was made applicable to the island territory under the juris- diction of the United States. 80 It further provided that the Secretary of Commerce and Labor was authorized to make such regulations on the subject of Chinese exclusion not in- consistent with the laws of the land as he might deem necessary and proper to execute the provisions of the act and the acts continued and extended thereby 81 and of the treaty of December 8, 1894. 82 Further provision was made for the registration through certificates of residence in the insular territory wherein they might reside of Chinese laborers in any of the insular territory of the United States with the exception of Hawaii; and authorized the Philippine Commission to make all the necessary regula- tions for the enforcement of this provision in the Philip- pine Islands. 83 7932 Stat. at L., part 1, p. 176; 33 Stat. at L. 394-428. 8 °Section 1. 81 By the Act of Feb. 14, 1903 (32 Stat. at L. 825) the Commissioner General of Immigration, the Bureau of Immigration, and the Immigration Service were transferred from the Treasury Department to the Department of Commerce and Labor, and by the Act of June 6, 1900 (31 Stat. at L. 588-611) the Commissioner General of Immigration was assigned the ad- ministration of the Chinese exclusion laws under the direction of the Secre- tary of Commerce and Labor. 82 Ante, p. 30. ssSection 4. Power and Methods. 101 This act was passed in view of the expiration on May 5, 1902, of the Act of May 5, 1902, and for the purpose of continuing the exclusion laws in force during the existence of the treaty with China of December 8, 1894. 84 It con- tinued the exclusion laws then in force only so far as the same were not inconsistent with treaty obligations, to wit, those of the treaty of December 8, 1894, which provide for the exclusion of Chinese laborers from the United States only until December 8, 1904. 85 That treaty was denounced by China and expired under such denunciation in December of that year. The Act of 1902 did not repeal the Acts of 1892 and 1893 in any way. 86 (I.) The Act of February 14, 1903. 87 Transfer of Administration of Chinese Exclusion Laws from the Treasury Department to the Department of Com - merce and Labor. This act, entitled “An act to establish the Depart- ment of Commerce and Labor,” transferred all matters re- lating to the regulation of the admission of Chinese from the jurisdiction of the Secretary of the Treasury to the Department of Commerce and Labor. 88 ( J. ) The Act of April 27, 1904. 89 Section 5 of this act amends section 1 of the Act of April 29, 1902, 90 re-enacting extending and continuing the exist- ing exclusion laws then in force and was passed in view 8*Hong Wing v. United States, 142 Fed. 128. 86 Tom Heong v. United States, 193 U. S. 517, 48 Law Ed. 772; Ah How v. United States, 193 U. S. 65, 48 Law Ed. 619; United States v. Lee Yen Tai, 185 U. S. 213, 46 Law Ed. 878. 8732 Stat. at L. 825. 88 And see United States v. Sing Tuck, 194 U. S. 161, 48 Law Ed. 917. 89 33 Stat. at L. 428. e °Stat. at L. part 1, p. 176; ante, p. 100. 102 The Exclusion and Expulsion of Aliens. of the coming expiration on December 8, 1904, of the treaty with China of December 8, 1894, and, it has been said, for the purpose of continuing in force the existing exclusion laws after such expiration regardless of treaty obligations, 91 and in so doing kept in force sections 5 to 14 inclusive of the Act of September 13, 1888, with the exception of section 12. ( K. ) Application of the Immigration Acts to Chinese. Section 36 of the immigration Act of March 3, 1903, 92 provided that all acts and parts of acts inconsistent with the act itself were thereby repealed and that the act should not be construed to repeal, alter or amend existing laws relating to the immigration or exclusion of Chinese per- sons or persons of Chinese descent. Section 43 of the pres- ent immigration law 93 provides that “this act shall not be construed to repeal, alter or ame'nd existing law relating to the immigration or exclusion of Chinese persons or persons of Chinese descent ” There can be no doubt that this act applies to Chinese although by its terms it specially provides that all special legislation in regard to them in the form of the Chinese exclusion acts shall not be affected by it; and this appears all the more clear in view of the proviso of the 21st section of the immigra- tion act to the effect that in case the Secretary of Com- merce and Labor shall be satisfied that an alien has been found in the United States in violation of this act, or is subject to deportation under the provisions of this act or of any law of the United States he shall cause such alien to be deported. The courts have differed as to the extent to which the immigration acts apply to members of the Chinese race. On the one hand it has been held that the exclusion acts are to be read in pari materia there- siHong Wing v. United States, 142 Fed. 128. 92 32 Stat. at L. part 1, p. 1213. »3 Act of Feb. 20, 1907, 34 Stat. at L., part 1, p. 898. Power and Methods. 103 with in their application to Chinese aliens seeking en- trance to this country. 94 But when this case was brought to the Circuit Court of Appeals it was held that the special provisions of the Act of February 20th, 1907, relating to deportation do not apply to Chinese laborers because they are already excluded by the exclusion acts which provide specially for their deportation. 95 This would seem to be on the principle that the Act of February 20th, being a general statute, silently excludes from its operation the cases provided for in the special statutes applicable to Chinese which preceded it, and that consequently it applies only to such Chinese as are not subject to the operation of the particular Chinese enactment. If an alien is dis- qualified under the Chinese exclusion acts it is because he is a Chinese person who has not shown that he is entitled to enter as provided by the treaties of this country with China or by the acts of Congress applicable to his case; not because he is an alien immigrant. It is plain that if in addition to his disqualifications as a member of the Chinese race he has others which prohibit his entrance as an alien immigrant he is a proper subject of exclusion under the immigration laws as well as those regulating the admission of Mongolians. But the case has arisen where the identical disability which disqualified him as a China- man under the Chinese exclusion acts, disqualifies him as an alien under the immigration acts. In the case of Wong You v. United States 96 the question before the court was whether he should be deported under the Chinese exclusion acts or the immigration act, and the court held on the principle of statutory construction above cited that in such a case deportation under the Chinese exclusion act was the correct procedure. The question involved in such cases is not whether the Government has the right to de- port but whether the person held for deportation 94 Ex parte Wong You, 176 Fed. 933. ssWong You v. United States, 181 Fed. 313. 96 Hid. 104 The Exclusion and Expulsion of Aliens. has the right to demand that the deportation pro- ceedings be those designated under the exclusion acts and not under the immigration act. That is, whether he shall be brought before a United States Commissioner or before the Secretary of Commerce and Labor or his deputy. If before the former, he has as a matter of right his appeal from the excluding decision of the commissioner to the Federal judge of the district; if before the latter, no such right is given by statute. In other words, the practical question in such a case with both the person proceeded against and the department is whether the former is entitled to a judicial or administra- tive determination of his right to remain in the United States. As stated on a later page, 97 there seems to be no reason why Congress may not, in the exercise of its sovereign right to exclude or expel, provide at its option, one or more methods best adapted to bring about the de- sired result; and if this is so the reason for applying the rule of statutory construction adopted by the court in the case last mentioned does not clearly appear. 98 (L.) Crimes and Penalties Under the Chinese Exclusion Acts. Unlawfully Bringing Chinese Persons into the United States. The Chinese Exclusion Act of 1882, as amended by that of 1884, penalized the master of a vessel who should knowingly bring in or attempt to land or permit to be landed, any Chinese laborer, with a fine of $500 and im- prisonment not exceeding one year as an additional pen- alty which might or might not be imposed; 99 and further 97 Post, p. 277. »8The case of Wong You v. United States was reversed by the Supreme Court of the United States. See Chapter on Deportation Procedure, post , p. 673. »9Section 2. Power and Methods. 105 provided in its eleventh section that any person who should knowingly bring in or cause to be brought into the United States by land, or who should aid or abet the same, or aid or abet the landing in the United States from any vessel of any Chinese person not lawfully entitled to enter the United States should be deemed guilty of a misdemeanor and be fined in a sum not exceeding $1,000 and be impris- oned for a term not exceeding one year. The Act of May 6, 1882, was held not to apply to the act of bringing back to the United States a Chinese mem- ber of the crew who had shipped with the master from San Francisco for the return voyage; 100 nor for bringing in a Chinese subject from Hong Kong. 1 The Act of October 1, 1888, enacted to supplement the Act of 1882, as amended by the Act of 1884, provided in its third section that the liabilities, penalties, and forfeitures imposed by sections 2, 10, 11 and 12 of that act were thereby extended and made applicable to the provisions of this Act of October 1, 1888. Section 9 of the Act of Sep- tember 13, 1888, 2 has been held to have been constantly in force since the passage of the act, and, among other sec- tions, was specifically re-enacted by the Act of April 29, 1902. Section 9 of the Act of September 13, 1888, provided “that the master of any vessel who shall knowingly bring within the United States on such vessel and land, or at- tempt to land, or permit to be landed any Chinese laborer or other Chinese person, in contravention of the provisions of this act, shall be deemed guilty of a misdemeanor and, on conviction thereof, shall be punished with a fine of not less than five hundred dollars nor more than one thousand 1°0 In re Ah Sing, 13 Fed. 286. HJnited States v. Douglas, 17 Fed. 364, no longer authoritative, in view of section 3 of the Act of September 13, 1888, reading 1 1 The provisions of this act shall apply to all persons of the Chinese race, whether subjects of China or any other foreign power .’ ’ See In re Ah Sing, 18 Fed. 28. z Supra. 106 The Exclusion and Expulsion of Aliens. dollars, in the discretion of the court, for every Chinese laborer or other person so brought, and may also be im- prisoned for a term of not less than one year, nor more than five years, in the discretion of the court.” 3 “ Knowingly Bring ” The word “knowingly” has been held to apply not only to the words immediately succeeding, “being within the United States,” but to the landing or attempted landing, or the permitting to be landed of any Chinese person. 4 And, as Chinese seamen are not excluded by the terms of the act, the master cannot be indicted under this section for bringing Chinese employed on his vessel to the ports of the United States; 5 this irrespective of whether the port at which such a seaman is allowed to land is a terminus or not, as those the landing of which was made penal by the statute are Chinamen excluded absolutely or conditionally under the acts. 6 The Indictment . An indictment under this section which fails to allege that the landing was “knowingly” permitted is insufficient 7 and the indictment, in order to stand, must negative the ex- ceptions of the section; 8 but an indictment is sufficient which alleges that a Chinese person was allowed to land from a vessel, and that such landing was not by reason “of any necessity,” as that allegation sufficiently negatives the exceptions of the section. 9 However, if the indictment fails to state that the “bringing” a Chinese seaman to the 3Thereby repealing the corresponding section of the Act of May 6, 1882, as amended by that of July 5, 1884. United States v. Durie, 170 Fed. 624. ^United States v. Walker, 156 Fed. 987 ; United States v. Rout, 170 Fed. 201 . sUnited States v. Jamieson, 185 Fed. 165. 0 lb id. 7 Supra, note 1. sUnited States v. Wood, 159 Fed. 187; United States v. Wood, 168 Fed. 438. ^United States v. Graham, 164 Fed. 654. Power and Methods. 107 United States was done with the intent of leaving him in this country, it is faulty and will be quashed, 10 for the obvious reason that a Chinese seaman brought to the United States merely in his capacity as such and with no intention on his part or that of the master of a cessation of his duties is not within the classes absolutely or condi- tionally excluded by the act. Evidence of landing or attempted landing is sufficiently shown where it appears that the master brought his vessel to a mooring point, and there received the Chinese inspector on board without revealing the presence on the vessel of eight Chi- nese whose concealment in the hold was detected by the in- spector. 11 Aiding or Abetting the Landing of Chinese Persons. Section 11 of the Act of May 5, 1882, as amended by the Act of 1884, reads as follows: “That any person (thereby including of course, the master of a vessel) who shall knowingly bring into or cause to be brought into the United States by land, or who shall aid or abet the same, or aid or abet the landing in the United States from any vessel, of any Chinese person not lawfully entitled to enter the United States, shall be deemed guilty of a misde- meanor, and shall on conviction thereof, be fined in a sum not exceeding one thousand dollars, and imprisoned for a term not exceeding one year.” It has been said — by way of dictum — that when, pending ? hearing on habeas corpus, the vessel on which petitioner has arrived has left port, and the master refuses to re- ceive him on his return, such refusal constitutes an aiding and abetting or permitting the land of such alien, and that the master and ship incur the penalties prescribed by the act. 12 The act which in common with the aiding or abet- 10 United States v. Jamieson, 185 Fed. 165. nGerard v. United States, 159 Fed. 421. 12 Case of the Unused Tag, 21 Fed. 701. 108 The Exclusion and Expulsion of Aliens. ting thereof is prohibited by this section is the “bringing into or causing to be brought into the United States by land” or the “landing in the United States from any vessel,” of a Chinese person. There was no question here of bringing in by land, as the alien landed upon the vessel which brought him. The Supreme Court has defined the words “to land” as meaning to go ashore. “The words must be taken in their literal sense. ‘Landing from such vessel’ takes place and is complete the moment the vessel is left and the shore is reached.” 13 In the case under dis- cussion it was stated that the failure to take back on board would be aiding or abetting a landing, although in point of fact the vessel had left the United States and returned before the refusal to receive on board took place. There would seem to be considerable doubt as to the correctness of this view, both on account of the obvious difference exist- ing between the act of landing an alien and taking him back on board, as well as on account of the fact that the act held to constitute the aiding or abetting, to wit, the refusal to receive on board, was separated by months in point of time from the original landing of the alien from the vessel. This provision, like other penal provisions should be strictly construed; and the extremely broad in- terpretation on which the view was based would certainly seem to be open to criticism. Such appears to be the view taken in a later decision 14 holding that the aiding and abetting of the landing of Chinese persons is criminal only in those cases in which the bringing of such persons is ac- complished in the same vessel and on the voyage culminat- ing at the time of the landing . 15 i3Taylor v. United States, 207 U. S. 120, 52 Law Ed. 130. ^United States v. Trumbull, 46 Fed. 755. !5lt has been held that the Act of April 29, 1902, by re-enacting existing Chinese exclusion laws, and making them applicable to the Island territory under the jurisdiction of the United States, makes the aiding and abetting of the landing on the mainland territory of the United States of a Chinese person not legally entitled to enter therein from such island territory, a mis- demeanor. U. S. v. Wong Kock Yii, 3 U. S. D. Ct. Hawaii 87. Power and Methods. 109 The Indictment. An indictment for landing or abetting a landing in the United States from any vessel of any Chinese person not lawfully entitled to land is fatally defective where it fails to allege that such person was brought into the country in the vessel named or that he was ever unlawfully brought into the United States. 16 While indictments under the penal provisions of these acts must comply with the strict requirements of ordinary criminal procedure, it has been held that objections thereto on the ground of repugnance cannot be reversed on appeal when not raised in the lower court; 17 and generally speaking an indictment will be sus- tained if there is any act under which it can be enforced even though that act be not specifically mentioned there- in. 18 Forfeiture of Vessel for Violation of the Statute. Section 10 provided for the forfeiture of the vessel whose master should knowingly violate any of the provisions of the act, but a vessel stolen from its owner and used while out of his control, without his knowledge or consent in bringing in Chinese laborers in violation of law, does not for that cause become liable to forfeiture. To work such forfeiture a master must knowingly violate the statute. 19 Section 9 of the Act of September 13, 1888, punished with a fine of not less than five hundred dollars and imprison- ment of not less than one or more than five years the master of a vessel knowingly bringing within the United States on such vessel, and landing or attempting to land or permitting to be landed any Chinese laborer or other Chinese person in contravention of the provisions of the act; and it was held that where there was an agreement by the owner to sell a schooner by payment on install- ieUnited States v. Trumbull, 46 Fed. 755. 17 Sims v. United States, 121 Fed. 515. isUnited States v. Wood, 168 Fed. 438. i 9 United States v. “George E. Wilton,” 43 Fed. 606. 110 The Exclusion and Expulsion of Aliens. ments, the title to remain in the owner until full payment of the purchase price, and the purchaser was put in posses- sion and appointed master, this was held sufficient to au- thorize the appointment of a new master by the purchaser, and to render the vessel subject to condemnation and sale for the importation by the new master of Chinese contrary to the act. 20 But section 10 thereof excepted from the terms of section 9 any master whose vessel should come within the jurisdiction of the United States in distress or under stress of weather or touching at any port of the United States on its voyage to any foreign port or place; but Chinese persons or laborers on such vessels were not permitted to land except in case of necessity and must depart with the vessel on leaving port. The word vessel includes tackle, furniture, apparel and appurtenances, and among the latter the ship’s instruments, compasses, chro- nometers, etc. 21 It was held in an early Federal case that a ship touches at a port of the United States within the meaning of the act when she calls there for orders or for a cargo destined to a foreign port. 22 Counterfeiting Certificates Under the Chinese Exclusion Acts. Section 7 of the Act of 1882 provides that any person who shall knowingly and falsely alter or substitute any name for the name written in such certificate or forge any such certificate, or knowingly utter any forged or fraudu- lent certificate, or falsely personate any person named in any such certificate, shall be deemed guilty of a misde- meanor ; and upon conviction thereof shall be fined in the sum not exceeding one thousand dollars, and imprisoned in a penitentiary for a term of not more than five years. Section 11 of the Act of September 13, 1888, character- ized as a misdemeanor and penalized with fine and irnpris- zoThe Frolic, 148 Fed. 918. 21 The Frolic, 148 Fed. 921. 25 >/n re Moncan, 14 Fed. 44. Power and Methods. Ill onment the act of knowingly and falsely altering or substi- tuting and name for the name written in any certificate required by the act, or forging such certificate, or know- ingly uttering any forged or fraudulent certificate, or for a person other than the one to whom the certificate was issued falsely to present the same. Unlike the Act of 1882, which penalizes the alteration or falsification of the “sec- tion six” certificate only, section 11 includes within its scope “any certificate herein required” thereby including the return certificate provided by section 7 thereof. Section 8 of the Act of May 5, 1892, penalized the coun- terfeiting of the certificates of registration in almost the same terms used in section 11 of the Act of 1888; except that, whereas under the prior act fine and imprisonment constituted the penalty, under the later statute either fine or imprisonment may be imposed. Failure to Deliver Lists of Chinese Passengers. Section 8 of the Act of May 5, 1882, provides that the captain of a vessel coming to a United States port and bringing Chinese passengers, shall deliver a list of such passengers, duly sworn to by him to the Collector of Cus- toms of the district in which the vessel arrives, and that any refusal or wilful neglect of such master so to do will render him subject to the penalties and forfeitures pro- vided for refusal or neglect to report and deliver a manifest of the cargo. 3. The Operation of the Immigration and Chinese Ex- clusion Laws in the Insular Possessions. (A.) The Philippine Islands. (1.) In General. The Act of April 29, 1902, 23 which provided in its second section for the application of the Chinese exclusion laws to the Island territory under the jurisdiction of the United 2332 Stats., part 1, p. 176. Ante, p. 100. 112 The Exclusion and Expulsion of Aliens. States, and in its fourth section for the registration of Chinese laborers in the Philippine Islands, and author- ized the Philippine Commission to make all regulations and provisions for carrying out the purpose of the act was followed by Act No. 702 of the Philippines Commis- sion, 24 which was enacted for the special purpose of carry- ing into effect and enforcing the provisions of section 4. On April 14, 1899, the War Department issued Circular No. 13, signed by the acting Secretary of War, in which it was stated that: “The laws and regulations governing immigration to the United States are hereby declared to be in effect in the territory under government of the military forces of the United States, but collectors of customs are directed to enforce said laws and regulations until the establishment of immigration stations in the said territory ” On June 6, 1899, the acting Secretary of War issued an order in which he stated that in accord- ance with the provisions of Circular No. 13 he proclaimed, published and applied to the Philippine Islands immigra- tion regulations for the information and guidance of all concerned. 25 These regulations briefly required enforce- ment of all the acts of Congress relating to immigration published prior to June 6, 1899, and the collectors of cus- toms of the islands were charged with the execution of the immigration and labor laws. Article III of these regula- tions provides that collectors of customs shall employ all customs, immigration and other officers assigned to them for duty in the enforcement of the immigration acts; and all such officers are hereby designated and hereby author- ized to act as immigration officers. Pursuant to the re- quirements of these regulations the collector of customs for the Philippine Archipelago issued his Circular No. 4 on December 31, 1902, by which he notified all customs col- 24 V 0 I. 2, Pub. Laws enacted by the Philippines Commission, p. 363; Com- pilation of the Acts of the Philippine Commission, secs. 3858-68, incl., p. 1138. Power and Methods. 113 lectors that those regulations were to be enforced as well as the acts of Congress relating to immigration. So that at the time Congress passed the immigration Act of March 3, 1903, the Acts of March 3, 1875, 26 August 3, 1882, 27 Feb- ruary 26, 1885, 28 and the Chinese exclusion Act of June 6, 1900, 29 were enforced in the Philippines by the collectors of customs, their inspectors and immigration officers, with the right of appeal to the insular collector under the super- vision and direction of the Secretary of War and the mem- bers of the Philippine Commission. The Chinese exclusion acts were also administered and enforced by the collectors of customs of the Islands and their immigration officers and continue to be so enforced by them, although by the Act of June 6, 1900, the Commis- sioner General of Immigration was charged with the en- forcement of that law and although by the provisions of the Act of Congress of April 29, 1902, 30 the Chinese exclu- sion laws were made applicable to the Philippine Islands. In the Customs Administrative Act passed by the Philip- pine Commission February 6, 1902, 31 it is made the duty of the customs service to execute the laws relating to immigration, and by section nineteen thereof it is made the duty of the insular collector to make and promulgate gen- eral rules and regulations not inconsistent with the law and subject to the approval of the Secretary of Finance and Justice, directing the manner of executing the cus- toms laws and laws relating to commerce and immigra- tion. 32 In summing up the effect of the organic act of the Phil- 26 18 Stat. at L., part 3, p. 477. 2722 Stat. at L., p. 214. 2823 Stat. at L., p. 332. 2931 Stat. at L., p. 610. 8032 Stat. at L., p. 428. 31 Public Laws of the Philippine Commission, Vol. 1, p. 788, No. 355. 32The above is taken almost literally from the case, entitled In re Allen, 2 Philippine Supreme Court Reports, p. 630. 114 The Exclusion and Expulsion of Aliens. ippine Islands 33 with particular reference to sections 2, 3, 86 and 87 thereof, 34 and also the Spooner amendment of March 2, 1901, the Supreme Court of the Philippine Islands says: 35 “It thus appears that Congress specially authorized the President to control the commercial inter- course with the Islands by such rules as he might deem most conducive to the public interests ; that that body rati- fied his action in creating the Commission, authorizing it to exercise powers of government to the extent and in the manner and form and subject to the control set forth in his instructions, 36 which instructions made all their acts subject to the approval of the Secretary of War; that Con- gress ratified the acts of the Commission in organizing all of its departments of government including the immi- gration bureau It is difficult if not impossible to consider the foregoing action taken by the President and the Secretary of War, to read the acts of Congress and the acts of the Philippine Commission referred to above as well as the orders, rules, regulations and circulars re- lating to immigration without reaching the conclusion that the whole administration of affairs in these islands vested in the Executive, had been exercised down to March 3, 1903, by the President personally or through the War Department and the Secretary of War, or the Commission. Congress was, of course, aware of this exercise of power and authority when the immigration laws were revised on 33Act of Congress, July 1, 1902, 32 Stat. at L. 691; Compilation Acts of the Philippine Commission, p. 22. 34Ratifying the acts of the President taken by virtue of the authority vested in him as Commander-in-Chief of the Army and Navy as set forth in his order of July 12, 1898, providing for a tariff of duties and taxes to be levied and collected at the ports of the Philippines; providing that the President shall until otherwise provided by Congress continue to regulate and control commercial intercourse in the Islands by rules and regulations conducive to the public interest and general welfare; reserving the power and authority in Congress to annul laws passed by the Philippine govern- ment ; and continuing the Bureau of Insular Affairs. *zln re Allen, Ibid. sePresident J s Instructions, April 7, 1900. Power and Methods. 115 that date, and was aware that these immigration laws had been executed in the Islands under the authority and su- pervision of the Secretary of War and the Philippine Com mission, and that immigration inspectors had been ap- pointed pursuant to his authority In promulgating this act of Congress in these islands Governor Taft stated that it had been decided by the legal adviser of the Sec- retary of War that while this law in its restriction upon the admission of aliens into the United States applies to the Philippines, the provisions therein made for the en- forcement of the law by the Secretary of the Treasury, De- partment of the United States, and the Commissioner Gen- eral of Immigration do not apply here, and that the new immigration law should be enforced in the same manner in these islands as the previous law on the same subject was enforced — that is through the collector of customs and his subordinate officers. The Secretary of the Treasury must have also given a similar construction to this law, otherwise he would have without doubt have appointed immigration inspectors and established immigration stations in the islands long ago — in fact as far back as April 29, 1902, when the Chinese ex- clusion act was made applicable to the Philippines, he being then charged with its enforcement. It follows that these two departments of the government, the two departments concerned in the enforcement of the immigration and exclusion laws, have held that the duty of administering these laws in the Philippines was to be continued in the customs department of the islands, and by its immigration inspectors It follows that until such time as the Secretary of the Treasury appoints others to execute the immigration laws the administration re- mains in the hands of those appointed by the Presi- dent through the Secretary of War, and that, therefore, the Collector of Customs for the Archipelago has authority to enforce that law.” 116 The Exclusion and Expulsion of Aliens. In referring to this decision in a later case 37 where the contention made by the appellee was that the customs officers in Manila had no power to enforce the immigration laws and that their execution was by law entrusted to the Secretary of Commerce and Labor the Supreme Court of the Philippines said : “This same contention was made In re Allen and was decided adversely to the claim of the ap- pellee in that case. Since that decision Congress has passed the Act of February 6, 1905, 38 section 6 of which is as follows: ‘That the immigration laws of the United States in force in the Philippine Islands shall be admin- istered by the officers of the general government thereof designated by appropriate legislation of said government. (2. ) Legislation Regulating the Admission of Immigrants. The Act of Congress of February 20, 1907, 39 — the pres- ent immigration law — which in its thirty-third section in- cludes within its jurisdiction the Philippine Islands, is necessarily the only law in force regulating the admission and expulsion of aliens other than Chinese. 40 (3.) Legislation Regulating the Admission or Residence of Chinese. (a.) Act No. 317 of the Philippine Commission. 41 This act provides in its first section that no Chinaman who left the Philippine Island before August 13, 1898, and who had remained outside the Islands up to the date of the passage of the act and who would be excluded but for the orders heretofore issued by the military governor ex- tending the time within which Chinese might be permitted 37Ngo Ti v. Shuster, 7 Philippine Reports, 351. 3833 Stat. at L., pt. 1, p. 692. 3934 Stat. at L. pt. 1, p. 898. ■*oThe Philippine Decisions rendered on cases arising under this law are here cited in connection with the appropriate sections of the Immigration Act, post, p. 149. ^Public Laws enacted by the Philippine Commission, Vol. 1, p. 729. Power and Methods. 117 to return should be permitted to enter the Islands; and, in its second section, that Chinese who had left the Islands since August 13, 1898, or who might leave in the future should be permitted to land only upon the production of a certificate of the collector of customs of the port of the Philippine Islands whence they departed, issued at the time of their departure. The period in which they might return was limited to one and one-half years and no ex- tension of the period was to be granted for illness or any other cause by any authority. (b.) Act No. 702 of the Philippine Commission. 42 This act was passed for the purpose of carrying into effect the provisions of section four of the Act of Congress of April 29, 1902. It authorizes and directs the collector of customs for the Philippine Archipelago to make the reg- istration of all Chinese laborers as prescribed by the Act of April 29, 1902, 44 and empowers him to make such rules and regulations as may be necessary for the efficient exe- cution of the act and to prescribe the form of certificates of registration required thereby. 45 It prescribes the form of each certificate of registration and the payment of a fee of fifty cents to the collector of customs on receipt of the same by the applicant. 46 Any Chinese laborer within the limits of the Philippine Islands who neglects, fails or refuses to obtain the certificate of registration within the space of one year from the passage of the act and who is thereafter found to be without the certificate is made by the act subject to arrest and to be brought before any judge of a court of first instance in the Islands ; and it is made the duty of such judge to order the deportation of the prisoner either to China or the country whence he came “unless he shall affirmatively establish clearly and to the 42 Pnblic Laws enacted by the Philippine Commission, Yol. 2, p. 363. 44 Section 1. 4B Section 2. 4 ®Section 3. 118 The Exclusion and Expulsion of Aliens. satisfaction of such judge by at least one credible witness other than Chinese, that although lawfully in Philippine Islands at and ever since the passage of this act he has been made unable by reason of accident, sickness or other un- avoidable cause to procure the certificate within the time prescribed by law, in which case the court shall order and adjudge that he procure the proper certificate within a reasonable time. Provision is, however, made that although any Chinese laborer who has for any reason failed to se- cure the certificate required by law within two years after the passage of the act shall be subject to deportation, if it appears that a certificate has in fact been procured in due time, but has been lost, a reasonable time will be allowed for procuring a duplicate. The right to obtain a duplicate certificate under the conditions cited is specially granted by the act; but no Chinese person theretofore convicted in any court of the states or territories of the United States or the Philippine Islands of a felony is permitted to register without special authority from the civil governor, now the Governor General . 47 Section five provides that every “Chinese person” having a right to be and remain in the Philippine Islands shall obtain the certificate specified in section three; and that every “Chinese person” found without such certificate within the Philippine Islands after the expiration of the registration period shall be presumed in the absence of sat- isfactory proof to the contrary to be a Chinese laborer and shall be subject to deportation. Section seven provides that every “Chinese person” who may be entitled to come into the Philippines may upon request be given a certificate containing data to be prescribed by the Insular Collector of Customs. These provisions seem not altogether unworthy of com- ment. As before stated, this act was passed by the Philip- pine Commission in the exercise of the powers specially 47 Section 4. Power and Methods. 119 conferred upon it by section four of the Act of Congress of April 29, 1902, as its title indicates. That section desig- nates one class of Chinese — the laboring class — on the members of which it imposes the obligation of obtaining a certificate of registration in the Philippine Islands; and the authority conferred upon the Commission would seem to be limited to providing methods whereby the registra- tion of the members of the particular class should be brought about ; and this view would seem to be supported by the fact that the Act of May 5, 1892, the provisions of which were kept in force by the first section of the Act of April 29, 1902, has invariably been construed by the courts to impose upon Chinese laborers alone the obligation of ob- taining certificates of registration. 48 The Philippine Com- mission was not authorized by Congress to create or enact a law calling for the registration of Chinese in the Philip- pine Islands but simply to “make all regulations and pro- visions necessary for the enforcement” of section four of the Act of 1902. This being so, it is difficult to account for the use of the words “Chinese person” in section five of the Philippine act, except on the assumption that the phrase was used in particular connection with the provision of that section to the effect that in the absence of the pos- session of a certificate after the expiration of the time required by statute in which it might be obtained, such Chinese as could not present a certificate were to presumed to be laborers — in other words that the scrivener was un- willing to allude to a Chinese person as a laborer until the happening of the condition from which the law in- ferred that he must necessarily be one. 49 Again, if all 48 See post, pp. 585, 586. 49 In providing that a Chinese person found without such certificate he shall he deemed a laborer, it may be questioned whether or not the Philip- pine Commission was strictly within the authority with which it was vested by Congress to administer existing Chinese exclusion laws. Nowhere does the Act of 1892, as amended by that of 1893, provide that failure to possess a certificate on the part of a Chinese person shall give rise to the presumption that he is a laborer. Those laws provided no more than that a Chinese 120 The Exclusion and Expulsion of Aliens. Chinese persons, including those of the exempt classes, were required by law to obtain certificates of residence under the Philippine statute, the absence of a certificate in the hands of a person of Chinese nationality after the ex- piration of the statutory period could not in logic and reason give rise to the presumption that he was necessarily a member of only one of the various classes who was under the obligation of obtaining such certificate; at best it could only give rise to the presumption that not having obtained it he was unlawfully in the country. The pro- vision of the section creating the presumption would seem to indicate that the members of the Commission were well aware that, at the time of the drafting of the act, two things would be necessary to justify deportation of a Chinese person under this section : first, the absence of the certificate, after the expiration of the statutory period; second, that that person belonged to the laboring class. A different view, however, seems to have been enter- tained by the Collector of Customs. In a circular ad- dressed to collectors of customs and provincial treasurers of the islands, he says : 50 “Your attention is called to the fact that while by sections one and four of Act No. 702 of the Philippine Commission, only Chinese ‘laborers’ are positively compelled to register, by section five of the same act ‘every Chinese person’ is required to obtain a certificate of registration prescribed by said Act No. 702 as evidence of his or her right to remain in these Islands, and the failure to obtain such certificate subjects ‘any Chinese person’ to being presumed to be a laborer and to deporta- tion. As this requirement clearly makes it necessary for all classes of Chinese persons who desire to remain in these Islands to obtain a certificate of residence, it is proper that, etc.” laborer without a certificate shall be deemed to be unlawfully in the United States, unless he can show in the mode prescribed by statute, that for some good reason he failed to get one. eoChinese and immigration circulars No. 110, June 27, 1903. Power and Methods. 121 The Philippines Supreme Court does not seem to have shared the view taken by the collector. In the case of the United States v. Sy Quiat, 51 it was held that a Chinese person who was arrested in the Philippine Islands without the certificate was free to prove if he could, his mercan- tile status during the registration period; and this de- cision was followed in a later case. 52 Again, in the case of the United States v. Chan Sam, 53 the following facts appeared : the appellant was charged with being a laborer, found after the expiration of the statutory period to be un- provided with a certificate of registration as prescribed by Act 702. It was shown that he entered the Philippine Islands in 1902 or 1903 without the consent of the immi- gration officers and while a member of the laboring class, that he continued a member of such class until January, 1907, having without cause failed to procure or to attempt to procure the certificate and that he stayed in the Philip- pine Islands until arrested in September, 1909. It was admitted that prior to that time he had become a merchant. The court held that the residence of an unregistered Chinese laborer in the Philippine Islands after the date prescribed by law for the issuance of registration certifi- cates has elapsed, is unlawful, and subjects him to deporta- tion, and that his liability to deportation continues as the result of his unlawful residence even though he may there- after cease to be a laborer in fact. Thus it is recognized in these cases that certificates of registration are not re- quired of members of the exempt classes. Section six is in effect a re-enactment of section eleven of the Act of September 13, 1888, 54 which penalizes the falsification of or forging, or uttering any false, certificate of registration. The Supreme Court of the Philippines has held that the act of obtaining a “section six” certificate, BiVol. 12, Philippine Reports, p. 676. 52 United States v. Lim Co, 12 Philippine Reports 703. 5317 Philippine Reports, p. 448. 5425 Stat. at L. 476; ante , p. 89. 122 The Exclusion and Expulsion of Aliens. issued in China, stating that the person named therein who was in fact a Chinese laborer was a merchant, and of presenting it to the authorities, when the person pre- senting it knew that the Chinaman presenting it was not a merchant, constitutes the uttering of a fraudulent certifi- cate in violation of section eleven of the Act of Congress of September 13, 1888, now embodied as section six in Act No. 702 of the Philippine Commission. 55 Section 12 re-enacts section two of the Act of Congress of November 3, 1893, 56 insofar as it defines the terms “laborer” and “merchants;” but, in stating the significance of the term “merchant” “as employed in this act,” those who drew it up apparently lost sight of the fact that except when used in connection with the definition of its meaning, the term merchant does not appear at all in the Philippine legislation on the subject. It has been held that the burden of proof is on a Chinese person to prove his mercantile status and to produce the partnership books as evidence of the fact that the alleged business is conducted in his and his partner’s name, and that failure to produce such books gives rise to the presumption or justifiable inference that his name does not appear therein as a member of the firm ; and that where a business in a store is conducted in the name of the appellant’s partner, and not in his own name, and the license which the law requires to be taken out in connection with the conduct of the alleged business is also in the alleged partner’s name, such business is not con- ducted in the appellant’s name, and the proofs offered are insufficient to show his status as a merchant under this section. 57 And a Chinese person who owns and conducts a pansiteria, or “chow house” worth only $250.00 where raw food is cooked and served on the premises is not a merchant. 58 55United States v. Ballantine, Yol. 5, p. 312, Philippine Reports. 5628 Stat. at L. 7, ante, p. 96. 57United States v. Sy Quiat, 12 Philippine Reports 676. ssUnited States v. Lim Co, 12 Philippine Reports 703. Power and Methods. 123 Section 15 provides that in view of the impossibility of completing the registration of Chinese provided by Act 702 within one year from the passage of the Act of Congress of April 29, 1902, the time for such registration was ex- tended for a period of six months to date from April 29, 1903. 69 (B.) The Hawaiian Islands. The cession of the Hawaiian Islands to the United States was accepted by the resolution approved by the President, July 7, 1898. 60 That resolution provided that there should be no further immigration of Chinese into the Hawaiian Islands, except upon such conditions as were at the time of its approval or might thereafter be allowed by the laws of the United States ; and that no Chinese by reason of any- thing contained therein should be allowed to enter the United States from the Hawaiian Islands. The Act of Congress of April 30, 1900, 61 entitled “An act to provide a Government for the Territory of Hawaii,” provides in its fourth section that all persons who were citizens of the republic of Hawaii on August 12, 1898, were thereby declared to be citizens of the United States and citizens of the territory of Hawaii. Section 101 provides that “Chinese in the Hawaiian Islands when this act takes effect may within one year thereafter obtain certificates of residence’’ as provided by the Act of May 5, 1892, as amended by the Act of No- vember 3, 1893, “and until the expiration of said year shall not be deemed to be unlawfully in the United States if found therein without such certificate : Provided , however, That no Chinese laborer whether he shall hold such certifi- soOther Philippine decisions are cited in connection with the appropriate sections of the Chinese exclusion acts, and the existing immigration law, post. 6030 Stat. at L. 751. 6i31 Stat. at L. 141-161. 124 The Exclusion and Expulsion of Aliens. cate or not, shall be allowed to enter any state, territory or district of the United States from the Hawaiian Islands.” 62 In 1901 the opinion of the Attorney General of the United States 63 was requested upon the following ques- tions : 1. Whether a person born in the Hawaiian Islands in 1885 of Chinese parents who were laborers, and taken to China with his mother in 1890, is entitled to re-enter the territory of Hawaii where his father still resides? 2. Whether the wife and children of a Chinese person who was naturalized in 1887 in Hawaii and still resides there are entitled to enter that territory “by virtue of the citizenship” of the husband and father? In his opinion the Attorney General calls attention to the fact that the power of collective naturalization has been frequently exercised by the President and the Senate ; and that the provision of section 4 of the organic act of Hawaii declaring that all persons who were citizens of the Republic of Hawaii on August 12, 1898, are declared to be citizens of the United States, is an example of such legislation, and that since the constitution of the Republic of Hawaii (sec- tion 1, Article 17 ) provided that all persons born or natu- ralized in the Hawaiian Islands and subject to the jurisdic- tion of the republic are citizens thereof, such persons, being citizens of the United States are not subject to the opera- tion of the immigration acts. He says, “In my opinion con- siderations drawn from the general Chinese exclusion policy of the United States leading to the proposition that this grant of privilege (of citizenship) is difficult to con- ceive or impossible to suppose, may not justly be invoked 62A Chinese laborer who left the Hawaiian Islands after annexation in Oc- tober, 1899, and returned in July, 1901, having failed to obtain a certificate of residence under this section held not entitled to come into the territory for the purpose of registering and not being in the Hawaiian Islands when the act took effect did not come within the statutory provision. United States v. Yong Ho, 1 U. S. D. Ct. Hawaii 1. 6323 Op. Atty. Gen. 345, Jan. 16, 1901. Power and Methods. 125 to support a persuasion that Congress did not intend ‘to admit to the full rights of citizenship a class of Chinese persons in a distant land, who if they had been domiciled in our midst could under no circumstances ever have be- come citizens of the United States. Nevertheless, this is precisely what Congress did. And it must be observed on the suggestion just quoted that while such Chinese per- sons being born in China would not have been entitled to naturalization in this country, on the other hand, if born in the United States under a parental status, as defined in the Wong Kim Ark case, 64 they would have been citizens of the United States by J)irth through the force of that de- cision.” And in a subsequent opinion 66 the Attorney Gen- eral again held that “any Chinese person who was in fact a citizen of the Kepublic of Hawaii under its constitution and laws on August 12, 1898, and who has not since that date voluntarily abandoned his citizenship or legally been deprived thereof, is a citizen of the United States.” This view has apparently received the sanction of the Department of State. In a communication forwarded by the United States Consul General at Shanghai to the Amer- ican Minister at Pekin it appeared that a resident of Can- ton, China, applied at the consulate at that city for regis- tration as an American citizen ; that he had been a resident of the Hawaiian Islands for seventeen years before Hawaii was annexed to the United States, and that his papers showed that he was a naturalized Hawaiian subject; but he left Hawaii in 1897 for Canton, where immediately after his arrival he engaged in business as a merchant. The Consul General was informed by Mr. Conger, the American Minister, that by virtue of section 4 of the Act of April 30, 1900, the subject of the correspondence was a citizen of the United States unless he had renounced his citizenship ; and while reminding the Consul General that an American citizen might acquire a civil or commercial domicile in a ^United States v. Wong Kim Ark, 169 U. S. 649, 42 Law Ed. 890. 6523 Op. Atty. Gen. 352, 1901. 126 The Exclusion and Expulsion of Aliens. foreign country without expatriation the registration of the applicant should be granted only after a careful cor- roboration of facts tending to show that he had not re- nounced his citizenship. This instruction was approved by Mr. Hay, Secretary of State. 66 The United States District Court for the Territory of Hawaii is in accord with the views above expressed, hold- ing that the fact that a person was born in Hawaii when it was known as the Kingdom of Hawaii did not change the result; 67 but the same court has held that section 4 does not vest with American citizenship non-resident minor children of a naturalized Hawaiian citizen. 68 (C.) Porto Rico. By Article II of the treaty of Paris, 69 proclaimed April 11, 1899, Spain ceded to the United States the Island of Porto Rico and other islands then under the Spanish sov- ereignty in the West Indies. It was agreed in Article IX that Spanish subjects, natives of the peninsula, residing in the territory over which Spain relinquished her sover- eignty, might remain in or remove therefrom ; and in case they remained in the territory they might preserve their allegiance to the Spanish crown by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration, they were to be held as having renounced it and as having adopted the nationality of that territory. The civil rights and political status of the native inhabitants of the terri- 66Foreign Relations of the United States, 130-132, 1901. 67United States v. Ching Tai Sai; United States Ching Tai Sun, Yol. 1, United States District Court of Hawaii 118. 68 in re Koon Ko and Koon Keen, Yol. 3, United States District Court of Hawaii 623. Other Hawaiian cases are cited in connection with the appro- priate section of the Chinese exclusion acts, and the existing immigration law. 6930 Stat. at L. 1754. Power and Methods. 127 tories thereby ceded to the United States was to be deter- mined by Congress. By the cession of Porto Rico the allegiance of the in- habitants thereof — with the exception of those who might avail themselves of the opportunity afforded to retain their Spanish allegiance — became due to the United States, which was in possession, and had assumed the government of the country. Thus, the nationality of the island became American instead of Spanish. On April 12, 1900, Congress passed an act creating a civil government for Porto Rico. Courts were provided for and among other things Porto Rico was made a judi- cial district. The court was to be designated the District Court of the United States for Porto Rico. Section 7 of the act provided that all inhabitants continuing to reside therein who were Spanish subjects on the 11th day of April, 1899, and then resided in Porto Rico, and their children born subsequent thereto were to be deemed and to be held to be citizens of Porto Rico, and as such entitled to the protection of the United States, except such as should have elected to preserve their allegiance to the crown of Spain on or before the 11th day of April, 1900, in accordance with the provisions of the treaty of peace between the United States and Spain entered into on the 11th day of April, 1899; and they, together with such citizens of the United States as should reside in Porto Rico should constitute a body politic under the name of the People of Porto Rico. The Act of April 29, 1902, which made the Chinese exclusion laws applicable to the island territory under the jurisdiction of the United States, prohibited the immigra- tion of Chinese laborers to Porto Rico as well as that of Chinese of the exempt classes except as prescribed by the Chinese exclusion acts, and further forbade the immigra- tion of Chinese not citizens of the United States from Porto Rico to the mainland territory of the United States. The present immigration law in its thirty-third section 128 The Exclusion and Expulsion of Aliens. provides for the enforcement of its provision, as did its predecessor, the Act of March 3, 1903, in all waters, terri- tory and other place subject to the jurisdiction of the United States except the Isthmian Canal Zone. The im- migration law is, then, in force in Porto Rico just as it is in the Philippines and Hawaii. But although the Act of April 12, 1900, in designating the political status of such of the residents of the Island of Porto Rico who did not elect to retain their Spanish allegiance, did not confer on them United States citizenship, they are not, nevertheless, to be considered as aliens for the purposes of the immigra- tion law. 70 4. Constitutional Power of Congress to Exclude or Expel. (A.) In General. As Congress is visited with exclusive power to regulate the conditions under which aliens may enter or remain in the United States, its enactments restrict the applica- tion, to the extent of their provisions, of the general in- ternational principle that all aliens admitted into a coun- try enjoy the same civil rights and are on the same footing as the citizens thereof; provided, however, that such pro- visions are not violative of such guarantees contained in the Federal Constitution as are applicable to aliens sub- ject either to exclusion or expulsion. The exclusion or expulsion of aliens having been made the subject of regu- lation by the municipal laws of the country, the interna- tional principle is to that extent superseded, and their validity can only be brought into question on the ground that they violate basic principles of the fundamental law. In the great case of United States v. Wong Kim Ark 71 the question presented was whether or not the Chinese ex- clusion acts could operate to exclude from entry the son 7oGonzales v. Williams, 192 U. S. 1, 48 Law Ed. 317 ; and see 24 Op. Atty. Gen. 40, 1902. The Porto Eiean decisions are cited in connection with the appropriate section of the immigration act. 71169 U. S. 649, 42 Law Ed. 890. Power and Methods. 129 born to Chinese parents during their residence in this country. The court held that as to him the provisions of the act were wholly without effect, and in the course of its opinion, after discussing the clause of the fourteenth amendment of the Constitution providing that 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, expressed itself as follows : “The acts of Congress known as the Chinese ex- clusion acts, the earliest of which was passed some four- teen years after the adoption of the constitutional amend- ment, cannot control its meaning or impair its effect, but must be construed and executed in subordination to its provisions.” And later, “Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act or omission of Congress, as to the providing for the naturalization of parents or children of a particular race, can affect citizenship ac- quired as a birthright, by virtue of the Constitution itself, without any aid of legislation. The fourteenth amend- ment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no au- thority upon Congress to restrict the effect of birth, de- clared by the Constitution to constitute a sufficient and complete right to citizenship.” But while Congress has not the power to pass laws at- tributing to the concurrence of certain conditions a politi- cal effect opposed to that which the Constitution has de- clared shall result therefrom, as in the case of persons born in the United States, and subject to the jurisdiction thereof, the only measure of the rights to be enjoyed by aliens subject to that jurisdiction consists — for the pur- poses of the subject under discussion — in Congressional enactments which do not violate the Federal Constitution. 72214 U. S. 320, 53 Law Ed. 1013. 130 The Exclusion and Expulsion of Aliens. “As the authority of Congress,” says the court in the Oceanic Navigation case , 72 “over the right to bring aliens into the United States embraces every conceivable aspect of that subject, it must follow that, if Congress has deemed it necessary to impose particular restrictions on the com- ing in of aliens and to sanction such provisions by penal- ties enforceable by administrative authority, it follows that the constitutional right of Congress to enact such legislation is the sole measure by which its validity has to be determined by the courts.” Right of Aliens to Invoke Constitutional Guarantees . Since Congress is vested under the Constitution with the power to legislate with regard to the subject of the exclu- sion or admission of aliens, the only question which can be raised by the foreigner held for deportation is whether the act under authority of which his deportation is to be ac- complished violates any of the provisions of the Constitu- tion applicable to his case. In order to prove his right under the laws of the United States he must show one or both of two things : first, that in being forced to submit to the methods authorized by the act itself he is deprived of rights to which, in his capacity as an alien about to be ex- pelled or excluded from this country, he is entitled under the constitution ; second, that the methods employed by the executive officer are not authorized by the provisions of the act. Keference to the remedies available to the alien in his capacity as the subject of deportation proceedings is made advisedly, since his situation as such is essentially differ- ent, from the point of view of remedy, from that of the foreigner residing in this country who seeks to enforce rights the protection of which is guaranteed by recourse to judicial or other proceedings. Aliens as well as citizens residing in the United States are entitled to all the safe- Power and Methods. 131 guards of the Constitution with regard to their rights of person and property, and are subject to every criminal and civil responsibility as long as they are within this country and subject to its jurisdiction . 73 Merely because a person within the jurisdiction of the United States is an alien, and, therefore, one of a class the members of which, under both international law and the Constitution, the state may expel at its pleasure, affords no justification for legislation which would result in depriving him of life, lib- erty or property without due process of law, or in denying him the right of a jury trial under conditions which the constitutional provision was intended to cover; nor, on that account, would there be any justification in disre- garding in the particular case that principle of right and justice, universally accepted in this country, which throws the burden of proof in criminal cases on the state. The reasons why these provisions do not apply in the case of aliens denied the right to enter into or remain in the United States have already been stated; and it seems plain, particularly in view of the fact that the ground for deporting aliens who have already obtained admission is that they have been found to be unlawfully in this country against the specific prohibitions of its laws, that neither the constitutional guarantee against the in- fliction of unusual punishments, nor that which grants the right to a trial by jury was intended by the framers of the Constitution to apply to proceedings which are not insti- tuted for the punishment of crime, and which do not even constitute a “cause” within the meaning of the revised statutes of the United States. Unlawful Entry or Presence of Alien Not Punishable Ad- ministratively as a Crime . While it is doubtless within the power of Congress to ? 3Yick Wo v. Hopkins, 118 U. S. 356, 30 Law Ed. 220; Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. 132 The Exclusion and Expulsion of Aliens. provide that the act of entering or remaining in this coun- try in violation of the laws on exclusion or expulsion shall constitute a crime or misdemeanor, any attempt on the part of Congress to impose upon an alien a penalty constituting an infamous punishment as the result of findings reached in purely administrative proceedings would be in contra- vention of that provision of Article V of the Constitution which alleges that no person shall be held to answer for a capital or otherwise infamous crime unless on a present- ment or an indictment of the grand jury, and that no per- son shall be compelled in any criminal case to be a witness against himself. The Act of May 5, 1892, provided that Chinese persons and persons of Chinese descent “convicted and adjudged to be not lawfully in the United States” should be imprisoned at hard labor for a period not exceeding one year, and thereafter removed from the United States. In passing upon the constitutionality of this provision the Supreme Court held, in the case of Wong Wing v. United States, 74 that it was within the power of Congress to deport aliens and commit the enforcement of the law to executive of- ficers. “But when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment and 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 ac- cused.” Imposition of Administrative Fine Not a Punishment for Crime . This decision was relied on by the plaintiff in error in the case of Oceanic Steam Navigation Company v. Strana- han, 76 where it was contended that section nine of the Act of March 3, 1903, authorizing the imposition of a money penalty by executive officers on steamship companies bring- 74163 U. S. 230, 41 Law Ed. 140. 75214 U. S. 320, 53 Law Ed. 1013. Power and Methods. 133 in g diseased aliens to ports of the United States was un- constitutional because it defined a criminal offense and authorized a purely administrative official to determine whether the crime had been committed, and if so, to inflict punishment. But in answer to this contention it was pointed out by the court that the principles announced in the Wong Wing case — that the trial and punishment for an infamous offense was not an administrative function — was “wholly inappropriate to this case since on the face of the section which authorized the Secretary of Commerce and Labor to impose the exaction which is complained of, it is apparent that it does not purport to define and punish an infamous crime, or, indeed, any criminal offense whatso- ever.” It was further objected, however, that granting the power of Congress to impose penalties for the violation of a statutory duty and to provide for their enforcement by civil process it did not follow that the collection of a money penalty could be committed to administrative offi- cers without having recourse to the courts. “But,” said the court, “the proposition magnifies the judicial to the detriment of all other departments of the Government, disregarding many previous adjudications of this court, and ignores practices often manifested and hitherto deemed to be free from any possible constitutional question.” Unlawful Return of Deported Alien Made a Criminal Of- fense by the Act of March 26, 1910. By section 3 of the present act, as amended by the Act of March 26, 1910, it is provided that “any alien who shall after he has been debarred or deported in pursuance of the provisions of this section attempt thereafter to return to or enter the United States shall be deemed guilty of a misde- meanor and shall be imprisoned for not more than two years.” The result of this legislation is to create a new crime for which the accused must be indicted and tried in regular criminal proceedings, as is done in all other 134 The Exclusion and Expulsion of Aliens. criminal cases, whether or not based on the violations of the immigration laws. Deportation Not a Punishment for Crime. The alien seeking admission into the United States and who is denied the right to enter on account of being afflicted with disabilities, the existence of which imposes on the appropriate officers the duty to exclude him under the im- migration laws; the alien who, after having obtained in some way admission to the United States is, during the statutory period within which he may be deported accord- ing to the provisions of the immigration act, arrested and ordered to be deported; and the alien of the Chinese la- boring class specifically excluded by the Chinese exclusion laws, whether denied admission upon entering or being found to be unlawfully therein and ordered deported, all occupy in law a position sui generis, in that their depor- tation is not inflicted as a punishment for crime committed by them or indeed for any offense or misdemeanor of any kind. The order of deportation “is but a method of enforc- ing the return to his own country of an alien who has not complied with the conditions upon the performance of which the Government of the Nation, acting within its con- stitutional authority and through the proper departments, has determined that his continuing to reside here shall de- pend.” 76 Inapplicability of Constitutional Guarantees to the Sub- jects of Deportation Proceedings. In the case just cited, the Supreme Court affirmed the constitutionality of the Chinese exclusion Act of May 6, 1892, and under it directed the deportation of a Chinese laborer who was arrested without process, was heard be- fore a United States judge without a jury on the question of his right to remain in the United States, and, on failure to prove that right in the manner prescribed by statute, TfiFong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. Power and Methods. 135 was ordered deported by the district judge. The effect of this decision was to settle conclusively that the constitu- tional guarantee of the right to a jury trial did not apply to a judicial hearing to determine the right of an alien to remain in the United States, that deportation under such conditions was not a punishment, and that, therefore, the constitutional provision against cruel and unusual pun- ishments did not apply ; and finally, that the principle that the burden of proof lies with the state in criminal cases does not apply to deportation proceedings, as they do not constitute a trial and do not contain room for a finding involving a criminal charge. If these guarantees cannot be invoked by aliens resident in the United States arrested in deportation proceedings it follows, a fortiori , that the alien stopped at the border and detained in his attempt to enter this country has still less reason to attempt to rely upon them. In the case of Turner v. Williams, in which an alien attempting to enter che United States was detained and held for deportation under the Act of March 3, 1903, 77 it was held that the con- stitutional privilege guaranteeing the freedom of speech, worship or petition had no application to those who, far from being recognized residents of the United States, with a claim on the protection of this country, and owing in re- turn therefor a temporary allegiance, were stopped at it« borders for the reason that they belonged to a class to whom this country by specific legislation refused to extend its protection, and whose allegiance it did not choose to ac- cept. (B.) Power of Congress to Vest Final Determination of Right of Aliens to Enter or Remain in Executive Of- ficers. (1.) Of the Right to Enter or Remain for Residential Purposes. TiAnte, p. 78. 136 The Exclusion and Expulsion of Aliens. The power of Congress not only to exclude or expel aliens from the country or to permit them to enter only on the conditions which it prescribes, but to vest the final determination in executive officers of the right of any alien to enter, has been asserted and sustained for the past twenty years by the highest tribunal of the land. The existence of this power was at first vigorously at- tacked; it was contended that to detain an alien under these conditions and to hold him for deportation was to deprive him of his liberty without due process of law. But this view has not been accepted by the courts. “Congress may,” said Mr. Justice Gray, speaking for the Supreme Court in the case of Ekiu v. United States , 78 “ au- thorize 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 a 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 ex- pressly authorized by law to do so, is at liberty to re- examine or controvert the sufficiency of the evidence on which he acted It is not within the province of the judiciary to order that foreigners who have never been naturalized nor acquired any domicile 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 Con- gress, are due process of law.” The facts presented in the above case involved the deten- tion for deportation of an alien stopped at the border on a finding by the immigration inspector that she was likely 78142 U. S. 651, 35 Law Ed. 1146. Power and Methods. 137 to become a public charge, and was as such not entitled to enter under the Act of March 3, 1891. The case of Fong Yue Ting v. United States, 79 decided in 1893, two years later, involved the right of the government to deport Chinese laborers already in this country who had failed to procure the registration certificate prescribed by the Act of May 5, 1892. There the court reaffirmed the power of Congress to expel or exclude from the country aliens or any specified class of aliens, and held that the power might be exercised entirely through executive officers. 80 Finally, in the case of Lem Moon Sing v. United States, 81 the court held that the authority of Congress to pass the Act of 1894, which made the decision of executive officers denying a Chinese person admission irrespective of whether or not he might be entitled to enter under existing treaties with China, conclusive and binding on the courts, could not be denied. V (2). Of the Right to Regulate the Admission of Aliens for Purposes of Transit. The power of Congress to determine the conditions under which aliens may enter the country or to confer upon execu- tive officers the power to provide regulations governing their admission or exclusion for the purpose of carrying into effect the provisions of the acts relative thereto is not restricted to cases where admission is sought for the purpose of establishing domicile. It is the fact of physical entrance by the alien within the jurisdiction, irrespective cf whether that purpose is for domicile or transit which is within the power of Congress to grant, deny or regulate. “The doctrine is firmly established,” says the court in the case of Fok Young Yo v. United States, 82 “that the power to exclude or expel aliens is vested in the political depart- 79149 U. S. 698, 37 Law Ed. 905. 80 pp. 713 and 714, ibid. 8H58 U. S. 538, 39 Law Ed. 1082. 82185 U. S. 296, 46 Law Ed. 917. 138 The Exclusion and Expulsion of Aliens. inents of the Government to be regulated by treaty or by act of Congress and to be executed by the executive author- ity according to such regulations, except so far as the ju- dicial department is authorized by treaty or by statute or is required by the Constitution to intervene. As a general proposition this must be true of the privilege of tran- sit In short, the privilege of transit, although it is one that should not be withheld without good c&use, is nevertheless conceded only on such terms as the particular government prescribes in view of the well-being of its own people Congressional action has placed the final de- termination of the right of admission in executive officers without judicial intervention, and this has been for many years the recognized and declared policy of the country. The regulations to prevent the abuse of the privilege of transit have been and are enacted to effectuate the same policy, and recourse to the courts by habeas corpus to de- termine the existence of such abuse appear^ to us equally inadmissible.” (C.) Necessity for a Fair Hearing. ** But, although Congress has the power to entrust the con- sideration of all questions respecting the admission and exclusion of aliens to administrative officers and to make their word final with regard to all questions of fact on which the right to enter is based, there are limits within which those officers must remain in order to make exclu- sion of aliens by them a legal act sanctioned not only by the modern practice of civilized nations but by the funda- mental principles on which the national Constitution is based. Under our system of government and jurispru- dence there is no room for arbitrary action. In the Japan- ese Immigrant case , 83 the court expressed itself as follows : “This court has never held, nor must we now be understood as holding that administrative officers when executing the provisions of the statute involving the liberty of persons, 83189 U. S. 86, 47 Law Ed. 721. Power and Methods. 139 may disregard the fundamental principles that inhere in due process of law as understood at the time of the adop- tion of the Constitution. One of these principles is that no person shall be deprived of his liberty without oppor- tunity at some time to be heard before such officers in re- spect to the matters upon which that liberty depends — not necessarily an opportunity upon a regular set occasion and according to the forms of judicial procedure, but one that will secure the prompt and vigorous action contem- plated by Congress and at the same time be appropriate to the nature of the case upon which such officers are required to act. Therefore it is not competent for the Secretary of the Treasury or any executive officer, at any time within the year limited by the statute arbitrarily to cause an alien who has entered the country and who has become subject in all respects to its jurisdiction and a part of its population although alleged to be illegally here, to be taken into cus- tody and deported without giving him an opportunity to be heard upon the questions involving his right to be and re- main in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized.” The principles above set forth were applied in the cases cited to the situation where the question raised was that of the right of the alien to remain in the country. They are equally applicable to aliens, who, not having been admitted to the United States are detained for deportation by execu- tive officers. It is true that in the case cited the court, in another portion of the decision, uses language which seems to indicate some doubt as to whether or not an alien who has never entered the United States has the right to invoke the guarantee of due process of law contained in the fifth amendment to the Constitution. It is also true that in such a case, the position of the alien for certain purposes is as if he had never entered the country ; and it was stated in the case of Turner v. Williams , 84 that an alien stopped at 84194 U. S. 279, 48 Law Ed. 979. 140 The Exclusion and Expulsion of Aliens. the border and detained there by immigration officers does not become thereby one of the persons to whom certain constitutional guarantees apply. But it is to be noted that this language was used with specific reference to the ca- pacity of the alien so situated to invoke certain specific guarantees in his behalf, namely, that of the freedom of speech, worship and petition. In the case of Chin Yow v. United States , 85 the facts presented were those of a Chinese person who, on seeking to enter the United States, was refused admission by executive officer's, and was further prevented by them, as stated in the petition filed by him, requesting the issuance of a writ of habeas corpus, from obtaining and presenting evidence whereby his right to enter might have been shown. The Supreme Court held that the writ, which was denied by the district court, should have been granted on the facts alleged in the peti- tion. It was set out therein that the petitioner had been denied the opportunity of presenting his proof; in other words, that he had been denied a fair hearing. This was not denied by the government. The result of this decision would seem to be that the language used by the Supreme Court in the Japanese Immigrant case, (Yamataya v. Fisher ), 86 is applicable to all aliens, irrespective of whether the administrative proceedings raise the question of their right to enter or to remain in this country. The Act of Congress under which the executive officers proceeded was constitutional, and the mode of procedure prescribed un- questionably constituted due process of law; but the arbi- trary refusal on the part of the officers to permit the peti- tioner to present what proofs he had, or which might be within his reach, followed by his detention for deportation, was such as was never contemplated by Congress, and plainly beyond the limits of departmental authority. It follows that if the employment of arbitrary methods is in itself sufficient to constitute a denial of due process any 85208 U. S. 8, 52 Law Ed. 369. 86 Ante , p. 138. Power and Methods. 141 act of Congress which should prescribe methods in them- selves arbitrary would come equally within the constitu- tional prohibition. In view of the foregoing decisions it may be said to be conclusively settled that the only ground on which an alien seeking admission into the United States under any law or treaty is entitled to have his right to do so adjudicated by the courts is (1) that the act of Congress under which he is excluded does not provide that he be given a fair hearing, or (2) that during the proceedings against him taken under the act he has been denied an opportunity to be heard; and that this is equally true with regard to foreigners who have already entered the country and whose right to remain is denied by executive officers. In either case the alien is at liberty to invoke the protection of the Federal Constitution against such an apparent dis- regard of the fundamental principles that inhere in due process of law. Statutory Limitation of Evidence Available at Administra- tive Hearing Does Not Constitute the Denial of a Hearing as to the Right Claimed. It seems, however, that the claim that there has been no fair hearing cannot be successfully rested on a showing that the evidence taken by executive officers was on certain points only, where the law itself limits the amount or kind of evidence that may be presented, or when the existence of a certain state of facts is made by statute to constitute of itself sufficient evidence to place responsibility for a viola- tion of the immigration acts. The right of Congress to pre- scribe what evidence shall be admitted, or what shall be required in deportation proceedings from an alien seeking either to enter or remain in the United States, is not open to controversy. As instances of such legislation we have the provisions in the Act of 1882, as amended by that of 1884, and those of the Act of 1888 providing that the “sec- tion 6” certificates issued to merchants, and the return 142 The Exclusion and Expulsion of Aliens. certificates issued to Chinese shall constitute the sole evi- dence on which the former may enter or the latter return to the United States; and besides these the provisions of the Acts of 1892 and 1893 whereby Congress provided that the absence of the certificate of residence throws upon Chinese laborers in the United States the burden of proving that their presence in this country is legal, and of proving it by at least one credible witness other than Chinese; or again, the special facts to be established in order to enable Chinese persons claiming a prior mercantile domicile in the United States to re-enter the country, as provided by the Act of November 3, 1893. The Act of March 3, 1903, as well as the present act in force provides for the infliction of a penalty in the form of a fine upon transportation companies bringing diseased aliens to ports in the United States, if it shall appear to the satisfaction of the Secretary of Commerce and Labor that any alien thus brought was afflicted with such disease at the time of foreign embarkation, and that the existence thereof might have been detected by means of a competent medical examination at the time. In the case of the Oceanic Steam Navigation Company v. Stranahan, 88 it was contended that this provision, in connection with the regu- lations made for its enforcement by the Secretary of Com- merce and Labor, the result of which was in effect to make the finding of the particular medical officer at the port of arrival final as to the question whether the disease existed, and could have been detected at the foreign port of em- barkation, was to deprive the steamship company of the amount of that fine without a hearing. The court, speaking through Mr. Justice White, remarks that by this section 89 “the statute unambiguously excludes the conception that the steamship company was entitled to be heard in the sense of raising an issue and tendering evidence concern- ing the condition of the alien immigrant upon arrival at 88214 U. S. 320, 53 Law Ed. 1013. 89Section 9, Act of February 20, 1907. Power and Methods. 14 a the port of disembarkation, as the plain purpose of the statute was to exclusively commit that subject to the med- ical officers for which the statute provided.” The right to a hearing can mean no more and no less than the right to be heard on such matters as the law provides shall be presented to administrative officers. If the right to be heard can be said to be denied merely because the right to produce evidence concerning certain points is de- nied, then every Chinese person who has attempted to enter the United States without the certificate provided by law, and has been returned on that ground, has been denied a hearing. Such an interpretation of the term “hearing” denies the right of Congress to prescribe and limit the evi- dence which shall be received by judicial or executive offi- cers, which is manifestly absurd. It seems, moreover, apparent that the decision rendered by the medical officer, involving as it necessarily does a thorough examination of the diseased alien, constitutes the most complete kind of a hearing permitted by law, in that it involves a full con- sideration by such officer of the only evidence on which he is required by law to pass in order to reach his final determination. But in the absence of such examination by the medical officer, the absence of a fair hearing could be successfully urged. In sustaining section 9 the court stated further that, as Congress has the undoubted power to forbid altogether the introduction of diseased aliens and to impose a penalty on the vessel actually bringing them in, “it must then fol- low that the provision contained in the statute is, of course, valid, since it only subjects the vessel to the exac- tion when it appears that the alien immigrant af- flicted is in such a state of the disease that it must have ...... been susceptible of discovery at the port of embarkation.” While the result of the case was to hold that Congress was acting wholly within its powers in making the result 144 The Exclusion and Expulsion of Aliens. of the medical examination conclusive for the purpose of imposing the penalty in question, the court was careful to add that, in reaching this conclusion, it had not consid- sidered the questions which would arise for decision if the case presented an attempt to endow administrative officers with the power to enforce a lawful exaction by methods which were not within the competency of the administra- tive duties, because they required the exercise of judicial authority. (D.) Classes Generally Exempted from the Exercise of the Power. The principle has been more than once affirmed in the course of this chapter 90 that when a state invites the citi- zens or subjects of other powers to enter its dominions, such invitation contains an implied guarantee to equal protection with regard to civil rights, as distinguished from rights purely political, with those extended to its own citizens residing within its territory; but that this prin- ciple is recognized only in connection with the additional proviso that, the state having the right to limit or restrict the conditions under which aliens may enter or reside therein, the alien availing himself of the opportunity thus offered cannot complain if he is subjected to the operation of such provisions, even though their effect is to deprive him or limit him with respect to certain civil rights enjoyed by the rest of the community. The only limitation fixed by international law, is, as has already been pointed out, that the municipal regulations shall not be of such a na- ture as to violate the recognized principals governing the conduct of civilized nations. We have seen that Congress in the exercise of its sovereign right to legislate concern- ing aliens, has imposed strict conditions upon the right of certain classes of aliens to enter and remain in the United States, and has excluded other aliens altogether; and that MAnte, pp. 10, 14. Power and Methods. 145 the result of the decisions of the Supreme Court of the United States and of the lower Federal courts is to the effect that owing to the peculiar position occupied by aliens in the course of their subjection to deportation pro- ceedings brought against them either for the purpose of exclusion or expulsion, the courts will intervene on their behalf only when the provisions of the acts of Congress sought to be executed against Ihem violate some funda- mental principle of the Constitution of the United States, or when the acts of executive officers, committed under color of the exclusion or immigration laws, deprive them of some fundamental right to which, through the mere fact of their being within the territorial limits of the United States, they are held to be entitled. It has been pointed out that in the discussion of this question whatever rights aliens can claim depend abso- lutely upon the provisions of the acts of Congress passed with regard to them, and the validity of such acts depends in turn on whether or not they are in accord with such pro- visions of the Constitution as apply to aliens subjected to deportation proceedings. But the question has occasion- ally arisen as to whether or not the immigration and ex- clusion acts apply to certain persons or classes of persons seeking to enter the United States or to remain therein; and this question once presented, is one which goes squarely to the jurisdiction of the executive officer to de- port; with the important limitation however, that before the question of jurisdiction can arise those officers must have passed definitely, not on the legal effect of the status of the alien presenting himself for admission but on the facts on which their finding is based and which, taken alto- gether, may be said to constitute the alien’s status under the law. Of course, should it develop that the person seek- ing admission is found by the administrative officers to be a citizen of the United States or to be for some other reason without the operation of the act in question, it may be said that, in their capacity as officers to examine and investi- 146 The Exclusion and Expulsion of Aliens. gate the right of aliens to enter the United States they never had any jurisdiction whatever over the applicant. At the same time it must be admitted that some authority must exist somewhere for the purpose of determining whether or not a person presenting himself for admission is subject to deportation; and the position of executive officers in such cases would seem to be analogous to that of a judge of limited jurisdiction, who, when a person is brought before him charged with an offense, has authority over the person of the accused for the purpose of deter- mining whether or not the offense alleged in the charges made against him comes within his jurisdiction. The Act of August 18, 1894, 91 provided that any alien excluded from admission into the United States by the proper executive officer under any law or treaty of the United States should not be allowed to appeal to the courts from that decision. In the case of Lem Moon Sing, 92 de- cided after the passage of that act, the Supreme Court held that although a Chinese alien might have the right to enter the United States under either the Chinese exclusion acts or the treaty of the United States with China, the exclud- ing decision of the appropriate executive officer was final and binding on the court, and refused the applicant’s peti- tion for the issuance of a writ of habeas corpus in his be- half. Granting that the petitioner was, as alleged in the petition, a Chinese merchant, and as such entitled to enter the United States, under both the treaty with China and the Chinese exclusion acts, and granting further that in the exercise of this right secured by treaty and by acts of Congress he had been permitted to enter the United States and acquired a commercial domicile here — granting- all this, the fact remains that in his absence Congress passed an act which specifically included those of his class within its provisions; in other words, this country exer- cised its right of enacting municipal legislation governing 9i28 Stat. at L. ante , p. 390. 92158 U. S. 534, 39 Law Ed. 1082. Power and Methods. 147 the admission or exclusion of aliens. Under these condi- tions the petitioner could not be heard to allege that he had a right to return in violation of such legislation. This case has been repeatedly cited as an authority for holding that the immigration Acts of 1903 and 1907 in- cluded within the scope of their operation not only alien immigrants coming to the United States for the first time, but those who have lawfully acquired a domicile in this country, left it temporarily animo revertendi and again returned to their domicile in the United States. There is considerable conflict of judicial opinion upon this point. 93 No Chinese person can enter the United States except by virtue of the treaties with China and of the provisions of the Chinese exclusion acts. There was in that case and there could be, no question but that those acts and treaties applied to the petitioner. On the other hand there is very grave doubt as to whether or not the present immi- gration act includes in its provisions foreigners who have acquired, maintained and continue to maintain a lawful domicile in this country. It is sufficient to say that if the present act is applicable to all aliens irrespective of whether or not they have established and maintained a lawful domicile here, the decision in the Lem Moon Sing case is in point; but if, on the other hand, such aliens do not come within the operation of the immigration acts, the case has no application. It is true that it is authoritative on the point that the mere fact of the establishment by an alien of a lawful domicile in this country gives him no more right to remain here in fhe face of an act of Congress directly or by necessary implication revoking the rights thus enjoyed than if he had never acquired them; but it does not go to the extent of holding that these rights may be lost in the absence of municipal legislation which works their revocation. The finality of the excluding decision of the executive ssSee post, pp. 435 et seq. 148 The Exclusion and Expulsion of Aliens. officers is wholly dependent upon whether the alien thus excluded is seeking admission into the United States under any law or treaty ; and in the case of Chinese persons at least, this question is decided by the mere finding of fact on the part of the officer that the applicant is in fact of Chinese nationality, simply because no Chinese person can enter as such except under such law or treaty . 94 The question of whether a person is an alien is generally one of fact for the executive department; but the question of whether or not a person is an alien within the meaning of the immigration acts is a question of law , 95 as is the ques- tion whether all aliens come within the operation of the immigration acts . 96 But since an examination of the question as to what aliens or classes of aliens come within the provisions of the immigration acts involves a consideration of their status under those laws rather than that of the power of Congress to provide for their exclusion or expulsion, the subject is left to a subsequent chapter . 97 04 Where, however, a Chinese person is excluded, not because he is seeking to enter under any law or treaty applicable to Chinese, but merely because, as an alien, he is held to be excludable under the immigration acts, the ques- tion of domicile may well be material. Of course if the department should find, as a matter of fact that he is not settled here his claim to enter as a domiciled alien must fall. Such was the administrative finding in the Lem Moon Sing case. But if he is found to be domiciled here and is excluded on the ground that the immigration acts apply to all aliens irrespective of whether or not they have acquired a domicile here the departmental action, based as it would then be on a construction of law, might, it seems, be open to judicial review. 9*>Gonzales v. Williams, 192 U. S. 1, 48 Law Ed. 317. 96Taylor v. United States, 207 U. S. 120, 52 Law Ed. 130. 97Chapter on “ Status,” post, p. 321. The Existing Immigration Law. 149 CHAPTER II. THE EXISTING IMMIGRATION LAW. The Act of February 20, 1907 , 1 as Amended by the Act of March 26, 1910. 2 The Act of February 20 is entitled “An act to regulate the immigration of aliens into the United States/’ and it may safely be said that its primary purpose is to prevent the unrestricted immigration of any and all aliens into the country. Yet it does not follow that its provisions apply only to such persons as leave their native country for the United States for the purpose of making the latter their home. This is made evident by various provisions where the ground of exclusion is so obviously based on the per- sonal characteristics, or moral, physical or mental defects of the individual seeking admission into this country that there is left no room for argument or doubt as to the reason of his exclusion ; and by the further fact that other provisions are operative on members of certain classes who have already entered and have lawfully established their residence here, and who, therefore, cannot be prop- erly classified as immigrants when returning to the United States to resume that residence. On the other hand, it must be borne in mind that every alien who comes to this country is not an immigrant, and that in this connection the title of the Act must be held to be of some significance — although not of such weight as to give it precedence over specific provisions of the act, or over its general intent and meaning construed in the light of its provisions as a whole. It follows that disabilities which would operate to exclude foreign immigrants, or aliens coming to the United States for the first time, would not seem to be applicable to aliens domiciled in this coun- try who return from a trip abroad, provided that the latter i34 Stat. at L. 898. 236 Stat. at L. 263. 150 The Exclusion and Expulsion of Aliens. are not specifically prohibited from continuing to reside here, and hence from returning after departure. The right of resident aliens to return to this country after a tem- porary absence will be considered at length in a subse- quent chapter . 3 It may be stated as a general proposition that in so far as the provisions of the act apply to aliens not excluded, but who on the contrary have been allowed to enter the United States, these provisions must be held to apply to all such aliens, whether immigrants or otherwise, except such as are excepted from their operation either by the express provisions of the act itself, or by implication consonant with the accepted maxims of statutory construction. The aliens subject to the operation of the act may be generally classified as follows : Those who are excluded absolutely, because of some physical, mental, or moral disability, which, under the act, precludes their lawful entry into the United States, irrespective of whether their intended stay in this country is temporary or permanent ; Those suffering from some physical disability who may nevertheless be admitted conditionally in the discretion of the Secretary of Commerce and Labor on giving bond ; Those who, after having been permitted to enter, shall within three years after the date of such entry become public charges from causes which existed prior to such landing, those who shall within that period have been found by the Secretary of Commerce and Labor to be un- lawfully here, or those, who, being within the United States, may at any time after entry and for certain speci- fied causes be deemed to be unlawfully in the United States ; Aliens coming to the United States other than those designated in the three preceding classes. Accredited officials of foreign governments, their suites, 3 Post , p. 427, Chapter on “Status . ” The Existing Immigration Law. 151 families and guests are not subject to the provisions of the act. 4 Section 1. That there shall be levied, collected, and paid a tax of four dollars for every alien entering in the United States. The said tax shall be paid to the collector of cus- toms of the port or customs district to which said alien shall come, or, if there be no collector at such port or dis- trict, then to the collector nearest thereto, by the master, agent, owner or consignee of the vessel, transportation line, or other conveyance or vehicle bringing such alien to the United States. The money thus collected, together *with all fines and rentals collected under the laws regulating the immigration of aliens into the United States, shall be paid into the Treasury of the United States, and shall constitute a permanent appropriation to be called the “immigrant fund,” to be used under the direction of the Secretary of Commerce and Labor to defray the expense of regulating the immigration of aliens into the United States under said laws, including the contract labor laws, the cost of reports of decisions of the Federal courts, and digest thereof, for the use of the Commissioner General of Immigration, and the salaries and expenses of all officers, clerks and employees appointed to enforce said laws. The tax imposed by this section shall be a lien upon the vessel, or other vehicle of carriage or transportation bringing such aliens to the United States, and shall be a debt in favor of the United States against the owner or owners of such vessel, or other vehicle, and the payment of such tax may be enforced by any legal or equitable remedy. That the said tax shall not be levied upon aliens who shall enter the United States after an uninterrupted residence of at least one year, immediately preceding such entrance, in the Dominion of Canada, Newfoundland, the Republic of Cuba, or the Republic of Mexico, nor upon otherwise admissible residents of any possession of the United States, nor upon aliens in transit through the United States, nor upon aliens who have been lawfully admitted ^Considerable light regarding the meaning and intent of this and previous acts may be obtained from the reports of the Senate and House committees on the measures proposed and adopted. 152 The Exclusion and Expulsion of Aliens. to the United States and who later shall go in transit from one part of the United States to another through foreign contiguous territory: Provided, That the Commissioner General of Immigration, under the direction or with the approval of the Secretary of Commerce and Labor, by agreement with transportation lines, as provided in section thirty-two of this act, may arrange in some other manner for the payment of the tax imposed by this section upon any or all aliens seeking admission from foreign contigu- ous territory: Provided further, That if in any fiscal year the amount of money collected under the provisions of this section shall exceed two million five hundred thou- sand dollars, the excess above that amount shall not be added to the “immigrant fund:” Provided further, That the provisions of this section shall not apply to aliens ar- riving in Guam, Porto Rico, or Hawaii; but if any such alien, not having become a citizen of the United States, shall later arrive at any port or place of the United States on the North American Continent the provisions of this section shall apply : Provided further, That whenever the President shall be satisfied, that passports issued by any foreign government to its citizens to go to any country other than the United States or to any insular possession of the United States or to the Canal Zone are being used for the purpose of enabling the holders to come to the continental territory of the United States to the detriment of labor conditions therein, the President may refuse to permit such citizens of the country issuing such passports to enter the continental territory of the United States from such other country or from such insular possessions or from the Canal Zone. The Head Tax. Levy and Collection of Head Tax. Section 1 of the act provides that there shall be levied, collected and paid a tax of four dollars for every alien entering the United States. By the same section the Com- missioner General of Immigration is authorized, under the direction or with the approval of the Secretary of Com- merce and Labor, to arrange for the payment of the tax imposed upon any or all aliens seeking admission from The Existing Immigration Law. 153 foreign contiguous territory, by agreement with trans- portation lines, as provided in section 32 of the act. Sec- tion 32 sets out that the Commissioner General shall pre- scribe rules for the entry and inspection of aliens along the borders of Canada and Mexico so as not to unnecessarily delay, impede, or annoy passengers in ordinary travel be- tween the United States and said countries, and shall have power to enter into contracts with transportation lines for this purpose. Acting in the exercise of these powers the Commissioner General of Immigration has entered into an agreement with the various steamship and railroad companies in the Dominion of Canada, embodied in Rule 12 5 of the Immigration rules. In subdivision 3 of said rule, it is provided that the masters, owners, or agents of vessels bringing aliens to Canadian ports bound for the United States shall pay to the United States Commissioner of Immigration for Canada the sum of four dollars for each and every alien brought to a Canadian port bound for the United States, provided that no head tax shall be levied against or collected from Canadian steamship lines on aliens brought to Canada bound for the United States who are shown to belong to any one of the excluded classes and returned to the country whence they came. Under Rule 13 6 provision is made for the collection of the head tax on the Mexican border. The right to demand payment of a head tax on account of aliens was upheld and unqualifiedly affirmed in the group of cases headed by that of Edye v. Robinson, 7 known as the Head Money Cases, where the collection thereof was assailed on constitutional grounds. The tax prescribed by section 1 of the Act of August 3, 1882, at the rate of fifty cents for each alien passenger, and later raised to one dollar by the Sundry Civil Appropriation Act of August sThis rule is quoted in full in connection with the discussion of section 32 of this act, post, p. 300. 6 See Post , p. 305. U12 U. S. 580, 28 Law. Ed. 798. 154 The Exclusion and Expulsion of Aliens. 18, 1894, was upheld on the ground that “in the exercise of its power to regulate immigration and in the very act of exercising that power it was competent for Congress to impose this contribution on the ship owners engaged in the business;” and to the objection that the effect of the tax compelled the ultimate payment of the sum de- manded for each passenger by that passenger himself, the court said “it is enough to say that Congress having the power to pass a law regulating immigration as a part of the commerce of this country with foreign nations, we see nothing in the statute by which it has here exercised that power forbidden by any other part of the Constitu- tion.” The amount of the head tax imposed by the Act of Au- gust 18, 1894, was doubled by the Act of March 3, 1903, and this was in turn doubled, so that, as will be seen by reference to section 1 of the present act, the amount of the head tax is four dollars. To Whom Paid. Section 1 of the act provides that the tax shall be paid to the collector of customs of the port or customs district to which the alien shall come, or, in the absence of such col- lector at the port or district, then to the collector nearest thereto. Under the Canadian agreement 8 payment of the head tax is required to be made to the United States Com- missioner of Immigration for Canada. By Whom Paid. The tax must be paid by the master, agent, owner or con- signee of the vessel, transportation line or other convey- ance or vehicle bringing the alien to the United States. Under the Canadian Agreement, it must be paid by the master, owner, or agent of vessels bringing aliens to Ca- nadian ports bound for the United States. 9 At the Mex- sRule 12. »Rule 12, subdivision 3. The Existing Immigration Law. 155 lean border the amount of the head tax must be paid by the transportation or bridge company bringing the alien to the border ports; 10 in the case of taxable aliens who cross the border by other than regular (bridges or rail) transportation, the payment must be paid by the alien himself if he is found eligible to enter. Disposition of Sums Collected by Way of Head Tax. The act provides that the money thus collected, to- gether with all fines and rentals collected under the laws regulating the immigration of aliens, shall be paid into the Treasury of the United States and constitute a permanent appropriation to be called the immigration fund. This provision has, however, been repealed by the Act of March 4, 1909, 11 which provides that on July 1, 1909, all the head tax fines and rentals collected under this act shall be cov- ered into the treasury to the credit of miscellaneous re- ceipts. The Tax a Lien. The head tax imposed by the Act of August 3, 1882, was held by the Attorney General to constitute a lien upon the vessel as well as a debt against the owner thereof. 12 The present act provides that the tax shall be a lien upon the vessel or other vehicle of carriage or transportation bring- ing aliens into the United States, and shall also constitute a debt in favor of the Untied States against the owner or owners of such vessel or other vehicle, and that the pay- ment of the tax may be enforced by any legal or equitable remedy. Persons on Whose Account the Tax May be Levied. These persons are stated at the outset of section 1 of the act to be every alien entering the United States. This sweeping classification is, however, greatly modified by loRule 13, subdivision 2. ii35 Stats. 981. 1219 Op. Atty. Gen. 660. 156 The Exclusion and Expulsion of Aliens. the exceptions later stated in the section, the first of which applies to aliens who shall enter the United States after an uninterrupted residence of at least one year in Canada, Newfoundland, Cuba, or Mexico. The Department of Commerce and Labor has construed the words “uninter- rupted residence of at least one year immediately preced- ing such entrance” to mean a bona fide residence and legal domicile and not necessarily actual physical residence. Kule l 13 provides that, among others, the following aliens shall be exempt from the payment of the head tax : Aliens entering the United States from Canada, New- foundland, Cuba, or Mexico, whose legal domicile or bona fide residence was in one of these countries for at least one year immediately preceding such entry. This exemp- tion shall not be lost merely by reason of temporary ab- sences of short duration therefrom, nor merely because in- stead of entering the United States from Canada, New- foundland, Cuba, or Mexico, the aliens come by way of some other foreign country in which they had sojourned temporarily. Aliens re-entering the United States from Canada, New- foundland, Cuba, or Mexico, who are citizens thereof but who have acquired a legal domicile or bona fide residence in the United States, and who are returning from a visit from one of the said countries, notwithstanding the period of a full year has not intervened between the date of their departure and the date of their return to the United States. This provision indicates that in the opinion of the De- partment aliens lawfully residing in the United States other than citizens of the four countries must, on return- ing to their home from a visit abroad, be subjected to the payment of the tax. This view would seem to be based on the construction of the Attorney General of the Act of August 3, 1882, to the effect that the fifty cents duty pro- vided by that act was collectible on account of all itinerant is Subdivision 3. 1418 Op. Atty. Gen. 185, 196, 1885. The Existing Immigration Law. 157 persons, not citizens of the United States, coming to the ports of this country from foreign ports, and was demand- able as often as such persons should enter. 14 The question as to whether or not aliens resident in the United States are, under the present act, liable to the pay- ment of a head tax on returning home from a visit abroad has as yet never arisen for judicial determination, although on the question as to whether such aliens are generally sub- ject to the provision of this or previous acts there has been and still is, a decided conflict of judicial opinion. This subject is considered in a later chapter. 15 The act provides that the tax shall not be levied on admissible residents of any possession of the United States. If the term “possession” includes the continental territory of the United States — and there seems to be no good reason why it should not be so considered — the question is not de- batable. If, on the other hand, the term “possession” refers to the extra-continental territory of this country no good reason would seem to exist for supposing that by the use of the term in that restricted sense Congress meant to exclude residents of the North American Continent from exemption. It is the fact of residence in the United States jurisdiction which gives rise to the exemption in such cases; the fact of residence in Canada, Mexico, Cuba and Newfoundland which would appear to exempt residents of any one of these dominions; and it would surely be a strange construction of the statute which would impose on residents of the continental territory of this country bur- dens from which inhabitants of its dependencies, not to mention those of foreign jurisdictions, are relieved by the fact of residence alone. As shown above admissible residents of any possession of the United States are exempt under Section 1 from the payment of the tax. Yet in Rule l 16 it is provided that the exemption can be claimed only on behalf of “aliens, other- i^Post, p. 427. 1 6 Subdivision (d). 158 The Exclusion and Expulsion of Aliens, wise admissible, who are residents of any possession of the United States and who at the time of admission to such possession paid head tax.” While it is true that the de- partmental rules have the force and effect of law when not inconsistent with the acts which they are intended to enforce, or with the Constitution or existing treaties, 17 this general principle cannot be said to be applicable to a case like the present where the department attaches condi- tions to an exemption to which the act creating it attaches none. It would seem to follow, therefore, that an alien who has entered and become a resident of any of the extra- continental possessions of the United States would not be subject on a visit to the United States to the payment of the head tax here, irrespective of whether or not he has paid the head tax required by the jurisdiction in which he is domiciled. Citizens of the Philippines have been held not to be subject to the payment of the tax provided by the Act of March 3, 1903. 18 Aliens in Transit Through the United States are exempt from the payment of the tax by the terms of section 1. Rule 1 contains the following provision : “Upon the arrival of aliens at a seaport of the United States or at any designated port of entry on the Mexican border, the immigration officer therein charged shall cer- tify to the collector of customs the number of such aliens other than those described in subdivision 3 hereof, together with the name of the transportation agent or other person responsible for the payment of head tax due in respect of them, and shall specify (1) how many of the said aliens have been held for special inquiry, and (2) how many claim to enter for the purpose of transit through the United States. Thereupon the collector of customs shall forthwith collect a tax of four dollars for each alien so certified. Collections pertaining to classes of aliens (1) and (2) 17 Ex parte Chow Chok, 161 Fed. 627. 1825 Op. Atty. Gen. 131, 1904. The Existing Immigration Law. 159 above referred to shall be held in a special deposit, to be refunded as to such of the former as are deported and as to such of the latter as are promptly shown to the satisfac- tion of said immigration officer, and in any event within sixty days of the time of entry, to have left the United States within thirty days of the time of entry. Collections not so refunded shall be accounted for in the regular man- ner and covered into the treasury. Where proof of de- parture is not submitted until after sixty days of the time of entry the case shall be reported to the bureau. No application for refund of head tax erroneously collected shall be considered by the Bureau if presented after sixty days from the time of entry unless satisfactory reason for the delay is shown in writing.” At first sight this rule would appeal to contradict the provisions of the act ; but whether there is a contradiction in fact depends upon whether or not the law authorizes the collection of the amount of four dollars as the collection of the tax itself, or merely of the amount of the tax to be de- posited and subsequently refunded on a showing that the alien has left the country. Although the rules frequently make use of the terms “refund of head tax” and “payment of deposit of head tax,” they also refer to the deposit “of the amount of the head tax,” the facts to which these dif- ferent terms have reference being identical, to wit, the deposit required from an alien averring the intention to pass in transit through the United States in order to guar- antee the payment of the head tax in case the alien’s pur- pose is not to pass through and out of the country, but to make it his home. There can be no question of the right of the Department to require a deposit of the amount of the tax. Under the regulations of September 28, 1889, a bond in the penal sum of $200.00 was required for each Chinese laborer claiming to be in transit through the territory of the United States, conditioned on his transit and actual departure within a reasonable time; by the regulations of December 8, 1900, the bond was not allowed to be less than 160 The Exclusion and Expulsion of Aliens. $500.00. These regulations were unqualifiedly approved by the Supreme Court in the case of Fok Yong Yo v. United States. 19 A provision in substance the same as that contained in the rule above quoted appeared in Rule 15 of the regula- tions adopted for the purpose of carrying into effect the provisions of the Act of 1903, and it was held valid in the case of Stratton v. Oceanic Steamship Company. 20 The dissent in that case was based on the ground that the effect of the regulation was to impose the head tax from which the act exempted the alien. It is doubtful whether the question would have arisen had not the amount of the deposit been the same as that of the head tax; but in any event it can hardly be considered practical, inasmuch as it must be admitted that under the powers conferred on him the Commissioner General of Immigration, with the ap- proval of the Secretary of Commerce and Labor, may with reason insist upon a sum at least equal to the tax by way of guarantee. The question of the applicability of the head tax require- ment to aliens in transit through the United States, or such as touch at its ports while en route to another country has received the consideration of the Attorneys General of the United States on more than one occasion. The re- quirement of a “head tax deposit” (that is, a deposit equivalent in amount to that of the head tax imposed on aliens entering the country) in the case of aliens claim- ing to be in transit through the United States, has been held legal, though the opinion cited contained a caution against too strict an enforcement of the regulation. 21 An earlier opinion holds that the tax provided by the Acts of August 3, 1882, and August 18, 1894, do not apply to aliens who touch at our ports en route to some other country and whose destination is not the United States. 22 19185 U. S. 296, 46 Law Ed. 917. 20140 Fed. 829. 2i25 Op. Atty. Gen. 109, January, 1904. 2224 Op. Atty. Gen. 590, February, 1903. The Existing Immigration Law. 161 Aliens Who Bo Not Enter the United States Because Ex- cluded from admission by tlie immigration authorities are ex- empted from the payment of the tax by section 1 as of natural and necessary implication. 23 Yet, as has been shown, 24 Rule 1 provides that the tax collected on ac- count of aliens who are not permitted to land but are held for examination by a board of special inquiry shall be held as a special deposit to be refunded when the alien detained for examination has been excluded.’’ There appears to be no authority for the collection of the head tax as such prior to the admission of the alien on whose account it may later be collected ; and even granting that the “tax” mentioned in the rule is only a sum of money equivalent to the amount of the tax, and not the tax itself, the reasons for requiring the deposit of the same in the case of aliens in transit do not seem to exist where the only question is as to whether an alien shall be admitted as an alien immigrant, and who, pending such determina- tion, is detained under the personal supervision of the immigration authorities, or under the personal control of the master of the vessel bringing such alien to the United States port. When the alien is within the control of the immigration authorities pending the determination of the question of whether or not he will eventually be al- lowed to enter, it is not perceived what room there is for 2 3lt has been held to be collectible under the Act of August 3, 1882, on account of convicts or lunatics, although by the terms of the act they were not permitted to land (18 Op. Atty. Gen. 135). That act provided for the payment of a duty from each and every passenger coming by steam or rail from any foreign port to any port of the United States. If the tax was to be considered as a duty, it is hard to reconcile the payment of duty as such in the absence of entry into the United States by the person or thing on whose account the duty was exacted; especially where, as in this case, the law prohibited the admission of the person into the United States and provided for his deportation. This decision can, however, have no bear- ing on questions arising under the present act, as the tax can only be col- lected on account of aliens “entering the United States . ’ ’ 2*Ante, p. 156. 162 The Exclusion and Expulsion of Aliens. a guaranty on the part of the transportation company; and when he is within the control of the master the act penalizes carelessness on the owner’s part which results in an unlawful entry by the alien in a sum many times exceed- ing the amount of the head tax. 25 In considering whether or not the courts would uphold this provision of Rule 1 we go no further than to say that as yet deposits of this na- ture have been sustained under both the immigration and Chinese exclusion acts only on the theory that they consti- tute proper means to prevent violations of those acts ; and that while deposits may be lawfully required from aliens purporting to enter the United States merely for the pur- pose of transit on the ground given, those grounds should not be invoked to sustain such a requirement in the case of alien immigrants as a condition precedent to the de- termination of the question whether or not they shall be allowed to enter at all. It may be said, however, that this arrangement is largely one of convenience both to the im- migration authorities and to the tranportation companies, and would not seem a likely one to be submitted to judicial determination. Aliens Who Have Been Lawfully Admitted to the United States and Who Shall Later Go in Transit from One Part of the United States to Another Through Foreign Contiguous Territory are likewise exempt from the payment of the tax. The act makes the basis of exemption prior lawful admission to the United States; and to this condition the Department at- taches another, to wit, previous payment of head tax at the time of prior admission. 26 The imposing of this con- dition would, however, seem to be authorized in all cases where the payment of the head tax was at the time of entry a necessary incident of lawful admission. 25Section 19. 26Kule 1, subdivision 3; ante , p. 156. The Existing Immigration Law. 163 Aliens Arriving in Guam , Porto Rico, or Hawaii are not subject to the provisions of this section; but if any alien not having become a citizen of the United States shall later arrive at any port or place of the United States on the North American Continent the provisions of this sec- tion apply. Rule 1, subdivision 3, provides that if any such person, still being an alien, shall later reach a United States port on the North American Continent, head tax must be paid in respect of him. If this clause means that the head tax shall in such case be levied and collected merely because the alien has not become a citizen of the United States, the validity of the rule is open to grave ob- jection, as it goes beyond the meaning and words of the act which says that in the cases cited the provisions of sec- tion 1 shall apply. This would seem to mean those pro- visions taken as a whole; taken as a whole they contain certain specific exemptions; and one of these exemptions applies to alien residents of any possession of the United States. Read in the light of this provision of the act, an alien, who arrives in Guam, Porto Rico, or Hawaii, and, while he does not become a citizen of the United States, nevertheless establishes his residence in any one of those islands, becomes thereby a resident of a possession of the United States, and would seem necessarily to fall within the exemption of the act. Subdivision 1 of Rule 1 exempts from the operation of the head tax provision aliens who come to the United States from Porto Rico or Hawaii, and who reach those places prior to July, 1907, and present an appropriate certificate. The certificate referred to is that prescribed in Rule 14, which contains the following provisions : “ Aliens arriving in Porto Rico or Hawaii bound for the continent shall be inspected and given a certificate, signed by the immigration officer in charge at San Juan or Hono- lulu, showing fact and date of landing and payment of head tax. 164 The Exclusion and Expulsion of Aliens. Aliens who, having been manifested bona fide to Porto Rico or Hawaii and having resided there for a time, signify to the immigration officer in charge at San Juan or Hono- lulu an intention to go to the continent, shall be furnished such certificate, as evidence of their regular entry at an insular port. Aliens applying at continental ports and surrendering the certificate above described shall, upon identification, be admitted without further examination. Failure to present the certificate shall be deemed presumptive evidence that examination has not occurred in Porto Rico or Hawaii, and the alien shall be arrested in the manner provided by law and deported, unless he shows that his presence in the country is lawful or that the limitation of the statute has expired.” Tourists. Aliens visiting the United States as tourists on pleasure or business are exempt under subdivision 3 of Rule 1 from the payment or deposit of head tax, if the officer in charge is satisfied beyond a reasonable doubt that they come only to visit the United States for a short period. Seamen landing in pursuit of their calling are exempt under subdi- vision 3 of Rule 1 from the payment of the head tax. But, as was said in the case of Taylor v. United States, 27 it is of course possible for a foreign sailor to land unlawfully ; and when that landing is for the purpose of entering this coun- try in the capacity of an alien immigrant the foreigner so doing ipso facto ceases to be a sailor, is removed from the exemption, and becomes liable to the payment of the tax like any other immigrant. It has been held that the pay- ment of the head tax can be required on account “horse- men” or persons shipping on a vessel bound for the ports of the United States in charge of horses being transported to 27Taylor v. United States, 207 U. S. 120, 52 Law Ed. 130. The Existing Immigration Law. 165 this country when it appeared that they shipped only for the voyage over, and did not sign for the round trip, and when there was, furthermore, no evidence that they in- tended to return by the same vessel . 28 The dissent on the part of one of the members of the court was based on the ground that the mere fact that such aliens failed to sign for the return trip was of itself no indication of an intention to give up their calling and to take up their residence in the United States. It may be said in this connection, however, that such persons, although seamen as far as the application of the immigration acts is concerned, are not professional mariners; that no nautical knowledge is required on the part of those who ship merely for the purpose of tending cattle in transportation, and, finally, that while there may be persons who make a living by services regularly rendered in the course of such employment, this calling can hardly be said to constitute a recognized trade or profession in the sense of a living made at sea. It appears that there is good ground for a distinction between the class of persons thus employed and regular seamen whose only occupation is the sea; hence that while it might be going too far to assume that merely because a seaman does not sign for a return voyage from a United States port this is to be taken as in- dicating his lack of intention to reship in the ordinary course of his occupation, and, on the contrary, intends to take up his residence in this country, such an assumption may be warrantable in the case of “horsemen” whose oc- cupation is more likely than not to terminate with any par- ticular voyage. It may be added that the Supreme Court refused on application to grant a writ of certiorari re- quested in the case last cited ; and that in connection with this denial the decision of the Circuit Court of Appeals gains an added significance. It has been held that, in the absence of evidence showing that a shipowner had reason to suppose that seamen desert- 28United States v. Atlantic Transport Co., 188 Fed. 42. 166 The Exclusion and Expulsion of Aliens. in g into United States territory made the voyage to this country with the intention to desert on their arrival here, the former is not liable for the payment of the head tax imposed by the act. 29 Stowaways. Both the act and the present rules in force are silent on the application of the head tax provisions to alien stowaways. Under Rule 23 of the regulations of July 1, 1907, 80 it was provided that head tax was to be certified on their account. This obligation would seem to rest, however, on the condi- tion that when the ship arrives at the United States port the alien is still a stowaway ; for nothing in the act can be construed to make it prohibitive on the master’s part to allow such persons to sign on as members of the ship’s crew as long as such action is bona fide , and the alien in fact changes his character from that of stowaway to genuine seaman. It might be questioned, however, as to whether or not a greater amount of precaution in granting such a person shore leave while in a United States port might be demanded of the master than in the case of the members of the crew whose status as such was not so short lived. This very question arose in the Taylor case, 31 where the indictment alleged that the alien was a stowaway under order of deportation. But the court held that there was nothing in the fact that an alien had been refused leave to land and had been ordered to be deported to make it impossible as a matter of law for the British master sub- sequently to accept him as a sailor on the high seas even if bound for an American port. The authority of the Secre- tary of Commerce and Labor would not seem to extend so far under the act as to permit him lawfully to prohibit the exercise of this power on the part of a master even in an 29United States v. International Mercantile Marine Co., 171 Fed. 841. 3013th Edition. siTaylor v. United States, 207 U. S. 120, 52 Law Ed. 130. The Existing Immigration Law. 167 American port — and certainly not when in the open sea and flying the flag of his nation. Arrangement for the Collection of Head Tax Under the Canadian Agreement. Section 1 of the act authorizes the Commissioner Gen- eral of Immigration by agreement with transportation lines, as provided in section 32 of the act, to arrange for the payment of the tax imposed by this section upon any or all aliens seeking admission from foreign contiguous terri- tory ; and section 32 authorizes the Commissioner General to prescribe rules for the entry and inspection of aliens along the borders of Canada and Mexico and to enter into contracts with transportation lines for that purpose. This subject is fully covered in the discussion of section 32. 32 The Purpose and Intent of the Head Tax Provisions. Viewed in the light of the above rules, considered in connection with the act itself, the natural conclusion reached is that the purpose of Congress was to impose a head tax on a limited class of aliens. It is true that the act provides in its first section that all aliens shall be sub- ject to the tax. But a careful analysis of the persons and dasses excepted in the first section and in section 41 points to the fact that the class of aliens subject thereto is the immigrant class, or those foreigners who come to the United States for the purpose of making this country their home. Merely because the act may be said generally to apply to all aliens — immigrants and others — it does not follow that all of its provisions apply to all immigrants and others. First of all it excludes all aliens whether coming to the United States to visit, or to make it their home, who are suffering with certain mental, physical, or moral dis- abilities duly set forth in section 2. The act does not pro- 32 Post, p. 300. 168 The Exclusion and Expulsion of Aliens. vide rules for the immigration of such people; it merely provides the rules under which they are excluded, and authorizes regulations under which such exclusion can be made effective. Such aliens being eliminated from the operation of fur- ther provisions of the act, there remain subject thereto immigrants and all other aliens, who, not being excluded, are admitted. The first condition to admission being the payment of the head tax, both immigrants and non-immi- grants would, in the absence of certain exempting pro- visions, be subject thereto. At the outset, however, section 41 provides that the act shall not apply to accredited of- ficials of foreign governments, or to their suites, families, or guests. The next limitation in the application of the head tax is that it shall not be paid by bona fide residents of Canada, Newfoundland, Cuba or Mexico ; in other words, that if any alien inhabitant of the North American Conti- nent, Newfoundland, or Cuba does not come to the United States with the purpose of residing there, he is not liable to the payment of the tax. The second limitation is in favor of any alien resident of “any possession of the United States.” The provision does not designate ex-continental or insular possessions, but uses the general term “any pos- session.” As to this second exempted class, then, a definite residence already acquired is, as in the first class, appar- ently made the basis of the exemption. The third limita- tion includes “all aliens in transit through the United States.” As entrance into the United States for the pur- pose of passing through it is wholly dissociated from the fact of coming to its shores for the purpose of residing there, the fact of a residence elsewhere again seems to be the basis for the exemption. The fourth exemption in favor of aliens who, having lawfully entered the United States, shall then pass in transit from one part of the United States to another through foreign contiguous territory, applies equally to those who are and who are not exempted from the payment of the tax at the time of entry. If The Existing Immigration Law. 169 exempt at the time of entry the exemption continues; if not, payment of the head tax will not he required a second time. Rule l , 33 as stated , 34 provides that no payment or de- posit of head tax will be required from aliens visiting the United States as tourists on pleasure or business. The mere fact of an alien coming to the United States “on a visit” necessarily implies a residence elsewhere. Finally, all will agree that an accredited official of a foreign govern- ment coming to the United States necessarily retains his native domicile and allegiance, and that his residence here is purely temporary and for official purposes. In view of these provisions it may be said that the act ex- empts from payment of the head tax the two classes of aliens, i. e., those who enter the United States and who are residents of any possession thereof; and those who enter the United States and have a bona fide residence elsewhere. Eliminating these two classes — and in eliminating them we necessarily eliminate aliens entering this country for the purposes of transit — there remains but one class of aliens to be considered — that class which comes to the United States claiming no residence therein or elsewhere, and not with the purpose of visiting or passing through the country . This class must nec- essarily consist of those who come to the United States with the purpose of making it their home; in other words, the immigrant class. It is plain that the tax is not imposed as conditional to mere entry, for an alien who enters lawfully is not taxed provided he does not remain; neither is it imposed as a condition of the alien’s presence in the United States, for the law exempts the alien therefrom as long as the immigration authorities have no good reason to believe that the presence is perma- nent. It would seem to follow that the act authorizes the collection of the head tax only on account of aliens who, 83 1, subdivision 3-h. 34 Ante, p. 164. o 170 The Exclusion and Expulsion of Aliens. giving up their former residence and domicile, enter the United States for the purpose of making it their home and permanently residing therein. That part of section 1 which relates to the right of the President to exclude aliens who are found to be abusing passport privileges will be discussed in connection with section 2, 35 since it relates to an excludable class of foreign- ers. Section 2. That the following classes of aliens shall be excluded from admission into the United States : All idiots, imbeciles, feeble-minded persons, epileptics, insane per- sons, and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time previously; paupers; persons likely to become a public charge; professional beggars; persons afflicted with tuberculosis or with a loathsome or danger- ous contagious disease; persons not comprehended within any of the foregoing excluded classes who are found to be and are certified by the examining surgeon as being men- tally or physically defective, such mental or physical defect being of a nature which may affect the ability of such alien to earn a living; persons who have been convicted of or admit having committed a. felony or other crime or misde- meanor involving moral turpitude ; polygamists, or persons who admit their belief in the practice of polygamy; an- archists, or persons who believe in or advocate the over- throw by force or violence of the Government of the United States, or of all government, or of all forms of law, or the assassination of public officials; prostitutes, or women or girls coming into the United States for the purpose of pros- titution or for any other immoral purpose ; persons who are supported by or receive in whole or in part the proceeds of prostitution ; persons who procure or attempt to bring in prostitutes or women or girls for the purpose of prostitu- tion or for any other immoral purpose; persons herein- after called contract laborers who have been induced or solicited to migrate to this country by offers or promises of employment or in consequence of agreements, oral, writ- ten or printed, expressed or implied, to perform labor in #55 Post, p. 201. The Existing Immigration Law. 171 this country of any kind, skilled or unskilled; those who have been, within one year from the date of application for admission to the United States, deported as having been induced or solicited to migrate as above described; any person whose ticket or passage is paid for with the money of another, or who is assisted by others to come, unless it is affirmatively and satisfactorily shown that such person does not belong to one of the foregoing excluded classes and that said ticket or passage was not paid for by any corpora- tion, association, society, municipality, or foreign govern- ment, either directly or indirectly; all children under six- teen years of age unaccompanied by one or both of their parents, at the discretion of the Secretary of Commerce and Labor, or under such regulations as he may from time to time prescribe : Provided , That nothing in this act shall exclude, if other wise admissible, persons convicted of an of- fense purely political, not involving moral turpitude : Pro- vided further , That the provisions of this section relating to the payments for tickets or passage by any corporation, association, society, municipality, or foreign government shall not apply to the tickets or passage of aliens in imme- diate and continuous transit through the United States to foreign contiguous territory : And provided further , That skilled labor may be imported if labor of like kind unem- ployed can not be found in this country: And provided further, That the provisions of this law applicable to con- tract labor shall not be held to exclude professional actors, artists, lecturers, singers, ministers of any religious de- nomination, professor for colleges or seminaries, persons belonging to any recognized learned profession, or persons employed strictly as personal or domestic servants. A Miens Excluded from Admission into the United States. In considering what aliens are excluded from admission into the United States the term admission must be under- stood in its legal sense, i. e., as designating not mere phys- ical presence in the ports or territory of the United States, but physical presence coupled with permission of the proper authorities to enter and be at large after examination by those authorities as to the lawful right of such aliens to enter. The act itself provides that the mere fact of land- 172 The Exclusion and Expulsion of Aliens. ing for the purpose of such examination, or of detention in hospital or elsewhere pending such examination, or pending deportation or eventual entry shall not be deemed a landing in law. 36 As stated 37 the aliens excludable under section 2 of the act are (with certain exceptions to be considered later) all aliens attempting to enter the United States, and this irrespective of whether or not any such alien is seeking to enter with the intention of taking up his residence in this country. The power of Congress to admit or exclude aliens whether in the exercise of the right inherent in every sovereign state so to do, or of the right to regulate commerce with foreign nations, is not open to contro- versy ; 38 and in the exercise of that right it may regulate the admission of any and all aliens even under an act the primary purpose of which appears by its title to be directed against a special class, in the absence of other provisions of the same act which conclusively indicate that the opera- tion thereof is to be limited to the class designated in the title. The present act, however, contains no such restric- tive provisions; on the contrary, the wording of at least one of its sections has been held to be such as “to avoid the suggestion that no one was within the act who did not come here with the intent to remain.” 39 But, aside from the high authority cited, a general reading of the law points to the conclusion that Congress, in enacting these provi- sions, has exercised not only its undeniable right to protect the United States against receiving undesirable residents, but the equally incontestable right to protect this country against the mere presence or contact of any and all aliens, which, in the opinion of Congress might prove a menace to our population and institutions. Where, however, the act is invoked in support of the right to exclude under aeSection 16. 37 Ante, p. 149. 38United States ex rel. Turner v. Williams, 194 U. S. 279, 48 Law Ed. 979. ssTaylor v. United States, 207 U. S. 120, 52 Law Ed. 130. The Existing Immigration Law. 3 circumstances where to do so would mean the invasion of private rights of domicile lawfully acquired, such a claim can only be supported by direct provisions contained in the act showing that the intention of Congress was to bring about such a result. A. “All idiots, imbeciles, feeble-minded persons, epileptics, insane persons and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time within five years previ- ously.” Lunatics and idiots were excluded by the Act of August 3, 1882. Imbeciles and feeble-minded persons, as well as those who have been insane within five years previous, and epileptics are excluded under the present act for reasons which are obvious and equally sound. From the fact that a person has had two or more attacks of insanity at any time previous to his attempt to obtain admission to the United States, or from the fact of his insanity within five years prior to his coming, it may justly be presumed that such attacks are not unlikely to recur, or that an intellect which has within five years been utterly prostrated is not free from the effects of the disease. Complete recovery from such attacks is, for all practical purposes, and par- ticularly under the conditions surrounding the landing of immigrants, incapable of absolute proof; and Congress, in the exercise of its power to protect citizens and property in the United States from the acts of insane persons, is not limited to the exclusion of those whose insanity is a proven fact, but may justly exclude those from whom such acts may probably or even possibly be expected. It would, therefore, seem absolutely necessary that some reasonable and fair standard, such as that provided should be ac- cepted by which the applicant’s mental qualifications for admission can be determined by the board of special in- quiry provided in section 25, in the absence of expert tes- timony as to present mental condition or the likelihood of 174 The Exclusion and Expulsion of Aliens. recurring attacks. There would seem to be no valid reason against providing that aliens giving indications of insanity after admission should be deported on the ground of having been thus affected at the time of their admission, should the symptoms develop within so short a period after ar- rival as to give just ground for such presumption. In the absence of such a provision, however, such alien must be deemed to be lawfully in the United States. B. “Persons afflicted with tuberculosis, or with a loathsome or dangerous contagious disease; persons not compre- hended within any of the foregoing excluded classes who are found to be and who are certified by the examining sur- geon as being mentally or physically defective, such mental or physical defect being of a nature which might affect the ability of such alien to earn a living.” Persons afflicted with tuberculosis might well, it would seem, have been excluded under the Act of 1903, although the disease is not specfieally mentioned in section 2 of that . act. In fact, persons afflicted with pulmonary tuberculosis (or consumption) and tuberculosis in flagrantly con- tagious forms were excluded thereunder. The admission of any alien afflicted with tuberculosis in any form is, however, specifically prohibited under the present act. While it is true that those aliens above described as “mentally and physically defective,” may, in individual cases, be found to be “likely to become a public charge,” and excludable under the clause in this section of the act which excludes aliens merely because they are held likely to so become irrespective of any mental or physical disability, the denomination of aliens thus affected is not strictly synonymous with the term “likely to become a public charge.” The wording of the section is such that it is clear that aliens mentally or physically defective, such mental or physical defect being of a nature which may affect their ability to earn a living, constitute a sepa- rate excludable class, while aliens may be affected with The Existing Immigration Law. 175 mental or physical ailments which may not be of such a nature as to lead to their becoming an object of the public bounty. On the other hand, such a contingency may be likely to occur from causes purely temperamental, or from the mere fact of the lack of funds on the part of the applicant for admission, aside and apart from the question of either physical or mental disability. C. “Paupers; persons likely to become a public charge; professional beggars.” Professional beggars were first excluded in terms in the Act of 1903, 40 and paupers have in terms been ex- cluded since the Act of March 3, 1891. 41 Persons likely to become a public charge have been excluded ever since the passage of the Act of August 3, 1882, 42 which forbade the admission of any “person unable to take care of him- self or herself without becoming a public charge.” The excluding clause just cited was held not to refer to the passenger’s personal efforts alone, but to be aimed at those who were likely to become public charges, either because of their own inability to maintain themselves, or because of the inability or unwillingness of other persons to main- tain them. 43 Such aliens are not exempted frotn the operation of the immigration acts because of a treaty entered into between the United States and the alien’s sovereign, when such treaty excepts from its operation any ordinance or regulation relating to police and public security. 44 The term “likely to become a public charge” as used in the present act includes the likelihood of becoming a criminal as well as a pauper/ 6 40 32 Stat. at L., part 1, p. 1213. 4i26 Stat. at L. 1084. 4222 Stat. at L. 214. 43 In re Day, 27 Fed. 680. 44 Japanese Immigrant Case, 189 U. S. 86, 1903, 47 Law Ed. 721. 46United States v. Williams, 175 Fed. 274. 176 The Exclusion and Expulsion of Aliens. Admission Under Bond. The subject of the admission under bond of persons likely to become public charges will be discussed in con- nection with section 26. 47 D. “Persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involv- ing moral turpitude.” The Act of 1875 forbade admission into the United States of aliens “who are undergoing a sentence for con- viction in their own country of felonious crimes other than political or growing out of or the result of such political offenses, or whose sentence has been remitted on condition of their emigration;” the purpose of the pro- vision being apparently aimed, not at persons who had been convicted of felonies abroad, but at escaped convicts, or convicts released only on the condition that they should leave their country. The Act of 1882 prohibited the admission of “convicts,” and made provision for their return. The Act of 1891 forbade the entrance of any per- sons “who have been convicted of a felony or other in- famous crime or misdemeanor involving moral turpitude,” with the proviso that the act should not apply to persons convicted of a political offense “notwithstanding said political offense may be designated as a felony, crime, in- famous crime, or misdemeanor, involving moral turpitude by laws of the land whence he came or by the court con- victing.” In the Act of 1893, the clause immediately pre- ceding was omitted, presumably on the ground that the question of moral turpitude was vital only inasmuch as it might be deemed to affect the interests and safety of the people with whom the alien might be allowed to mingle and consort, of which interests and safety Congress might well be considered a sufficient judge, irrespective of the expressions of foreign laws or foreign tribunals Under *7 Post, p. 295. The Existing Immigration Law. 17T the present act Congress has gone a step further in mak- ing an admission of the commission of crime or misde- meanor good cause for exclusion. The admission. Since deportation proceedings are not criminal by na- ture, it would be unsafe to contend that the effectiveness of the admission as a ground of expulsion necessarily de- j>ends on its voluntary character. The question has not thus far arisen for judicial consideration. The writer takes the view that, where such an admission is relied on as a ground of expulsion or exclusion, the fact that it was actually obtained by means of deceit or threats will not, per se , establish a defense on which the alien can always rely . 48 But on the other hand when an executive officer is satisfied that the admission has been thus unfairly ob- tained he should exercise the greatest vigilance in decid- ing whether the damaging statement represents the fact. Otherwise there would be no admission, whether justly or unjustly obtained, on which to base an excluding or ex- pelling decision. What the officer is seeking is the true state of facts; and it would seem that, in the procedure governing deportation proceedings, he should not be bound by those considerations which obtain in criminal trials, and which, on grounds of public policy, have led to the adoption of the principle that it is better that the ex- istence of a suspected state of facts remain unrevealed than that it be brought to light as the result of unlawful or unfair methods. But if the alleged admission is ob- tained by threats of violence, or otherwise unfairly in the course of a hearing — as contrasted with a prior statement which is later made the basis of those proceedings — the author is of the opinion that it cannot be justly made the 48 lt has been held that admissions by aliens in proceedings for deportation on the ground of being unlawfully in the country are legal evidence in the absence of improper means employed for securing such admissions or con- fessions. In re Umeno, 3 U. S. D. Ct. Hawaii 481; and see In re Lea, 126 Fed. 234. 178 The Exclusion and Expulsion of Aliens. basis of deportation on that count. This is not because the admission could not be considered as evidence by the executive officers, but because the manner in which it has been obtained taints the bona fides of the hearing, and should result in throwing the proceedings open to judical review. 49 It has been held that the question of whether such an admission has been obtained prior to the hearing by ply- ing the prisoner with liquor or by means of threats is a pure question of fact for the executive authorities. 50 The act does not authorize the deportation of an alien on the ground of having been convicted of a felony where it appears that the foreign conviction did not occur until after his admission into the United States. 51 The Act of 1882 has been construed to bar admission into this coun- try to aliens who have been convicted in a foreign country of an assault with a deadly weapon ; 52 but by the terms of that act “any convict” was not entitled to land. Since the Act of 1891 the crime or misdemeanor must, to prove a bar to admission, involve moral turpitude. Thus, the act of stabbing a man in Italy in retaliation for an unprovoked assault was held (obiter) not to involve moral turpitude ; 53 and in a later case 54 the point came up squarely for decision as to whether or not the crime of stabbing another involves moral turpitude, and the court 49 It was held in the case of a domiciled alien who on the occasion of his return from his second visit abroad had given a false name to the inspection officer and who was later arrested on the ground of having ad- mitted the commission of a crime involving moral turpitude that the court would not interfere with the order of deportation; but the dissenting judge said that a hearing could not be fair in which it was attempted to supply the absence of an admission by proof of the wrongful act or at which it was held that giving a false name on re-entry was tantamount to entry without inspection. United States ex rel. Elliopulos v. Williams, 192 Fed. 536. soGrlavas v. Williams, 190 Fed. 686. siEx parte Koerner, 176 Fed. 478; Ex parte Watchorn, 160 Fed. 1014. 62 In re Aliano, 43 Fed. 517. 63United States ex Funaro v. Watchorn, 164 Fed. 152. 6*United States ex rel. Calamia v. Redfern 180 Fed. 506. The Existing Immigration Law. 179 held that it did not. Nor, it seems, does the act of striking another with a piece of firewood when a third party is attacking the same party with a knife , 55 nor does the act of carrying concealed weapons constitute such an of- fense . 56 But these authorities cannot, it is thought, be deemed conclusive on the point that under no circum- stances could such acts involve moral turpitude; and it seems not unreasonable to suppose that were such as- saults committed under circumstances showing treachery or deceit on the part of the defender or even, perhaps, the employment of overwhelming force while the victim was at an utter disadvantage, either by virtue of sex, old age, infancy or by being asleep, sick or helpless at the mo- ment of attack, the opposite conclusion might well be reached. It has been held that a single act of fornication in Austria by a married alien with an unmarried woman, constituting as it does neither crime nor misdemeanor under the Austrian law, and little more than a private wrong under the common law, cannot constitute grounds for deportation from the United States under this sec- tion . 57 This case was subsequently reversed by the Cir- cuit Court of Appeals . 58 It is to be observed however, that the court in the case last cited did not expressly state that the act did not involve moral turpitude; but based its de- cision on the fact that it did not constitute a crime or a misdemeanor in the jurisdiction where it was committed . 5851 It seems that in order to subject the alien to deporta- tion under this section the crime must have been com- mitted prior to admission into the United States; and 55 Ex parte George, 180 Fed. 785. 56 Ex parte Saraceno, 182 Fed. 955. 57United States ex rel. Huber v. Sibray, 178 Fed. 144. 58185 Fed. 401. ssaSee Prentis v. Cosmas, 196 Fed. 372, where the departmental decision that an act committed by an alien involved moral turpitude was apparently upheld as final by the circuit court of appeals for the 7th circuit. 180 The Exclusion and Expulsion of Aliens. where an alien lawfully domiciled in this country, leaves it for the purpose of spending a few hours in foreign con- tiguous territory and then returns, the re-entry cannot be deemed an original entry for the purpose of deportation charges based on the alleged commission by the alien of felonious acts committed by him in the United States after original entry, and before he left this country for the temporary visit to the contiguous territory whence he returned. 59 D. Anarchists. The provision as to anarchists is a re-enactment of the corresponding provision of the preceding act of March 3, 1903, held constitutional by the Supreme Court in the case of Turner v. Williams. 60 In that case it was contended that the act of 1903 was unconstitutional in that it vio- lated the first, fifth and sixth articles of the Amendments to the Constitution and of Section 1 of Article 3 thereof ; and that no power is delegated by the Constitution to the general government over alien friends with reference to their admission into the United States or otherwise, or over the beliefs of citizens, denizens, so- journers, or aliens, or over the freedom of speech or of the press. After pointing out that prior cases had disposed of the specific contentions regarding the fifth and sixtji amendments and paragraph 1 of article 3, and the denial of the delegation to the general government of the power to enact the Act of March 3, 1903, the Court said : “The argument seems to be that, conceding that Congress has the right to shut out any alien, the power, nevertheless, does not extend to some aliens, and that if the act includes all alien anarchists, it is unconstitutional because some anarchists are merely political philosophers whose teach- ings are beneficial rather than otherwise .... If the word 5»Lewis v. Frick, 189 Fed. 146. Reversed by the Circuit Court of Appeals, 195 Fed. 693; In re Saraceno, 182 Fed. 955. eoUnited States ex rel. Turner v. Williams, 194 U. S. 279, 48 Law Ed. 979. The Existing Immigration Law. 181 '-'anarchists” should be interpreted as including aliens whose anarchistic views are professed as those of political philosophers, innocent of evil intent, it would follow that Congress was of the opinion that the tendency of the gen- eral exploitation of such views is so dangerous to the pub- lic weal that aliens who hold and advocate them would be undesirable additions to our population, whether perma- nently or temporarily, whether many or few; and in the light of previous decisions the act in this aspect would not be constitutional as applicable to any alien who is opposed to all organized government.” Section 38 of the act prohibits entrance into the United States or any territory or any place subject to the juris- diction thereof to anarchists; and further provides that any person who assists or aids such aliens to enter, or who connives or conspires with any person or persons to allow, procure or permit any such persons to enter other- wise than provided by law shall be punished by fine or imprisonment or both. It is worthy of note that this sec- tion prohibits any “person” who professes this form of belief from entering the United States. Section 2 specifi- cally excludes aliens who are anarchists. If the use of the term “persons” was to include therein all persons irrespective of nationality, it necessarily includes citizens of the United States. But a great justice of the Supreme Court of the United States has held that the deportation of a citizen of the United States amounts to banishment 61 and that no citizen can be banished in the absence of a jury trial. It is thought however, that the use of the word “enter” should be given great weight in construing the section, and should be taken to mean, in connection with the title and other provisions of the act, entrance into the United States by one other than an American citizen na- tive born or naturalized. The meaning of the word “enter” as used in the act will be later considered in con- 61 Mr. Justice Brewer in his dissenting opinion in the case of United States v. Ju Toy, 198 U. S. 269, 49 Law Ed. 1046 et seq. 182 The Exclusion and Expulsion of Aliens. nection with the discussion of the rights acquired by aliens through the fact of their having obtained a domicile in this country. 62 E. “Polygamists, or persons who admit their belief in the practice of polygamy.” Section 2 of the preceding act prohibited the entrance of polygamists into the United States, whereas, by the present act mere belief in the system duly admitted con- stitutes a bar to such entrance. Polygamists were like- wise excluded by the Act of 1891, 63 and in a decision ren- dered under that law upholding the deportation of the alien niece of a naturalized alien who had lawfully mar- ried her in Russia, and who had had by her an idiot son, the Court, basing its excluding decision on Wharton 64 and Reinhold Schmid 65 cited these authorities to the following effect: “A matrimonial relation that is prohibited by our laws cannot be tolerated in our territory, though it was entered into by foreigners before they visited us. We will, therefore, tolerate no polygamists or incestuous unions of foreigners settling within our limits.” The court further cited State v. Brown 66 to the effect that it is not “material that the marriage was celebrated in a country where it was valid, for we are not bound upon principles of comity to permit persons to violate our criminal laws, adopted in the interests of decency and good morals, and based upon principles of sound public policy, because they have assumed, in another state or country, where it was lawful, the relation which led to the acts prohibited by our laws.” 67 It is to be remarked that the excluding decision of the Court in the case above quoted was based not on the 62 Post, p. 427. 63Act of March 3, 1891, 26 Stat. at L. 1084. 64 Wharton, Conflict of Laws, 2d Ed. Par. 175. 65See Ibid. 6647 Ohio State Rep. 102. 67United States v. Rodgers, 109 Fed. 886. The Existing Immigration Law. 183 ground that the coming to the United States of two aliens connected by the relationship shown was violative of any provision of the act or of any of the laws of the United States, but because it seemed to the court “impossible to recognize this marriage as valid in Pennsylvania.” Sec- tion 1994 of the Kevised Statutes of the United States provides that any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen. On the one hand it might be urged that being a citizen of the United States, such a woman would be outside the jurisdiction of the Immigration authorities; and, on the other, that it might be considered doubtful, to say the least, whether or not the boon of citizenship was intended to be bestowed by Congress on one claiming it merely on the strength of an incestuous relationship. F. “Prostitutes, or women or girls coming into the United States for the purpose of prostitution or for any other im- moral purpose; persons who are supported by, or receive in whole or in part the proceeds of prostitution ; persons who procure or attempt to bring in prostitutes, or women or girls for the purpose of prostitution, or for any other immoral purpose.” The Act of March 3, 1903 prohibited the entrance of prostitutes and persons who attempt to bring in prosti- tutes, or women for the purposes of prostitution. The present act excludes in addition to prostitutes, women or girls coming to the United States for the purpose of pros- titution, or for any other immoral purpose. Concubines were held not to be included within the last mentioned class 68 but this decision was reversed by the Supreme Court which held that the words “for any immoral pur- 68 United States v. Bitty, 155 Fed. 938 ; but where an alien woman entered this country in good faith on the representations made to her by a for- eigner residing here that he would marry her on her arrival and later cohabited with him, held, that she did not enter for an immoral purpose. United States v. Martin, 193 Fed. 795. 184 The Exclusion and Expulsion of Aliens. pose” “show beyond question that Congress had in view the protection of society against another class of alien women than those who might be brought here merely for the purposes of prostitution.” 69 The act applies to Chi- nese prostitutes, notwithstanding that Section 43 thereof provides that the act shall not be deemed to repeal the ex- isting laws relating to the exclusion of Chinese ; 70 and also to prostitutes who landed in the United States during the three year period provided by the Act of 1903 71 and prior to the adoption of this act. 72 The act not only excludes prostitutes and women or girls coming to the United States for purposes of prostitu- tion or for some other immoral purpose, but those who procure or attempt to bring such women in; and the amendatory Act of March 26, 1910, 73 further excludes the admission of persons who are supported by or who re- ceive in whole or in part the proceeds of prostitution. The terms “prostitution” and “immoral purposes” would seem, in spite of the fact that the Supreme Court in the case of United States v. Bitty 74 found it necessary to explain that an alien woman who came to this country as a concubine of a person resident here came for an immoral purpose, to be of such common understanding that no defi- nition of either term will be attempted here. It suffices to say that one coming to the United States for the purpose of prostitution must be shown to come with the intent of promiscuous carnal intercourse for a money consideration. 69United States v. Bitty, 208 U. S. 393, 52 Law Ed. 543. ™Looe Shee v. North, 170 Fed. 566. ^Section 3. 7 zEx parte Durand, 160 Fed. 558, 170 Fed. 566, supra. 7336 Stat. at L. 263. The provision that the persons of immoral character therein designated may be deported “in the manner provided” in sections 20 and 21 of the Act of February 20, 1907, refers only to the method of procedure to be adopted in the course of the steps leading immediately to deportation, and not to the three year period within which they were hitherto deportable. Chomel v. United States; Brion v. same, 192 Fed. 117. 7 *Supra. The Existing Immigration Law. 185 In the absence of such intent she does not come here for such a purpose and is not therefore to be excluded on that ground. 75 While marriage by an alien woman capable of naturali- zation under the law to an American citizen, al- though the ceremony is performed while she is held for deportation has been held to entitle her to an immediate discharge on habeas corpus, 76 a sham marriage contracted by an alien prostitute has naturally been held insufficient to prevent deportation under the Chinese exclusion acts, 77 and the same result would naturally follow in deporta- tion proceedings instituted under the immigration acts. The effect of prior domicile in the United States on the right of prostitutes to re-enter the country, has given rise to a difference of judicial opinion, the weight of authority being to the effect that prior domicile confers no such right. 78 There is but one case in which the holding is to the opposite effect. There it appeared that the alien en- tered the United States lawfully in the first instance, and lived here for fifteen years, during the latter part of which she practised prostitution, and then, after leaving tem- porarily for a visit to Panama, returned to this country in January 1910, where she was arrested under the Act of February 20th, 1907 as one entering the United States for the purposes of prostitution. The court held that her right to remain depended on the provisions of section 3 of the Act of February 20, 1907, and could only be taken away during three years after entry, and that the return did not constitute entry. 79 The question of the applica- 75 In re Guayde, 112 Fed. 415. fsHopkins v. Fachant, 130 Fed. 839. 77 Wong Heung v. Elliott, 179 Fed. 110; Looe Shee v. North, 170 Fed. 566. 78 In re Hoffman, 179 Fed. 839; United States v. Villett, 173 Fed. 500; Ex parte Petterson, 166 Fed. 536. 7 »Redfern v. Halpert, 186 Fed. 150. 186 The Exclusion and Expulsion of Aliens. tion of the immigration act to domiciled aliens returning to the United States, is considered at length in another chapter. 80 G. “Persons hereinafter called contract laborers, who have been induced or solicited to migrate to this country by offers or promises of employment or in consequence of agreements, oral, written or printed, express or implied, to perform labor in this country of any kind, skilled or unskilled * * * provided * * that skilled labor may be imported if labor of like kind unemployed cannot be found in this country; and provided further , That the provisions of this law applicable to contract labor shall not be held to exclude professional actors, artists, lec- turers, singers, ministers of any religious denomination, professors for colleges or seminaries, persons belonging to any recognized learned profession, or persons employed strictly as personal or domestic servants.” Unlike the Act of 1903, which did not exclude contract laborers 81 but prohibited the importation of aliens under contract labor, this act expressly prohibits the entrance of such laborers into the United States. Section 2 of the Act of 1903 provided “that the provisions of this law appli- cable to contract labor” did not affect the exempted per- sons classified in the exempting proviso of section 2 of the present act quoted above. The Act of 1891 excludes “the class of contract laborers excluded by the Act of February 26, 1885,” and in its fifth section amended sec- tion 5 of the last named act to read as follows : “Nor shall the provisions of this act apply to profes- sional actors, artists, lecturers, or singers, nor to persons employed strictly as personal or domestic servants, nor to ministers of any religious denomination, nor persons belonging to any recognized profession, nor professors for colleges and seminaries.” Neither the present act nor any of its predecessors has soChapter on Status, post , p. 427. siDavies v. Manolis, 179 Fed. 818. The Existing Immigration Law. 187 contained provisions purporting to define affirmatively what constitutes the term “laborer;” so that with one ex- ception the classes exempted from the operation of this act are identical with those exempted from the Act of 1885. The exception — if it is in fact such — consists in the exempting under the present act from the effects thereof members of a “recognized learned profession,” whereas the Act of 1885 uses the term “recognized profession.” Alien “laborers” are therefore, under this act what they were under the act of 1885 as amended. Migration a 'Necessary Element. Unless the alien laborer migrates to the United States to perform the labor in question he does not come within the operation of the statute ; 82 thus, the employment under contract of a Canadian residing in Canada who, in order to do his work, must cross the border daily does not violate the statute. 83 Contract Laborer, What Constitutes. Prior to the amendment of the Act of 1885 by that of 1891, the Supreme Court of the United States held that an alien minister entering the United States under con- tract with a religious society here was not a contract la- borer under the act. 84 Nor is a chemist entering to take up employment on a sugar plantation 85 nor an expert win- dow draper 86 nor skilled employees of foreign exhibitors 82 United States v. Craig, 28 Fed. 795. 83United States v. Michigan Central R. R. Co., 48 Fed. 365. 84 Church of the Holy Trinity v. United States, 143 U. S. 457, 36 Law Ed. 226. ssUnited States v. Laws, 163 U. S. 256, 41 Law Ed. 151; nor an alien induced to come to this country by promise of employment as a superintend- ent of a lumbering company conditioned on his being a competent woods- man, logger and mill man and a first-class mechanic, provided the agreement does not require him to perform manual labor, 27 Op. Atty. Gen. 383, 1909; nor where the nature of the employment is essentially that of super- intendence; Teerthdass v. Pohoomul Bros., 15 Phil. Rep. 605. seUnited States v. Gay, 95 Fed. 226. 188 The Exclusion and Expulsion of Aliens. of the World’s Columbian Exposition. 87 An under coach- man who is employed strictly as a personal or domestic servant is not a- contract laborer ; 88 nor are alien sailors who, although not within the exempted classes and under contract to do labor in the United States, do not come as immigrants for the purpose of performing that labor. 89 It has been held that an alien minor who, after writing to a distant relative in the United States to know if the latter would give him employment should he come to the United States, and who subsequently came, his passage being paid by his father abroad, and worked for a weekly sum and board with the relative aforesaid, and after- wards went into business for himself, was not a contract laborer within the terms of the present act. 90 Nor is an alien contract laborer excludable under the present act where it was shown that he entered this country before it went into effect and at a time when the Act of March 3, 1903, which, unlike its predecessor of March 3, 1891 91 did not exclude contract laborers, was in force. 92 The case in re Ellis 93 has already been referred to. 94 While the Circuit Court of Appeals held in that case that a foreign chartered accountant entering this country to do professional work here under agreement was a contract laborer within the terms of the present law that decision is, for reasons already given, open to criticism and, it is safe to say, will not serve as a precedent should a similar state of facts again be presented for judicial determina- tion. 8720 Op. Atty. Gen. 89, 1891. 88 In re Howard, 63 Fed. 263. 89United States v. Burke, 99 Fed. 895. soBoties y. Davies, 173 Fed. 996. 9i52 Fed. 873. 92Davies v. Manolis, 179 Fed. 818. 93 in re Ellis, 124 Fed. 637. Case dismissed, 200 U. S. 622. **Ante, p. 72. The Attorney General has held in a comparatively recent opinion that chartered accountants are not excludable as contract laborers; and see as to alien lithographic artists, 26 Op. Atty. Gen. 284, June, 1907. \ \ The Existing Immigration Law. 1S9 On the other hand, a foreign milliner does not come within the exempted classes, not being a professional ar- tist; 95 nor a farmer nor a farm-hand entering the United States to work on contract on the theory that he is a domestic servant, 96 nor are alien lace-makers exempt from the excluding provisions. 97 Any one who, upon a promise made to him by another to employ him on his arrival into the United States at stipulated wages in a definite occupation, the promise being made by one who advanced him money for his passage and accompanied him on his journey, came to the United States, went to work at the wages stipulated, and continued in the employment of the person who made the promise and the advance for a year, is a contract laborer within the terms of the pres- ent act. 98 The Contract. Although the alien laborers barred by the act are called “contract laborers/’ it would not seem that, in order to render them subject to exclusion or deportation under section 2, they must come actually under a prior con- tract; 99 an element in the absence of which, according to decisions under the Act of 1885, the law could not be violated. 100 Under the third section of the Act of March 3, 1891, any assurance of probable employment, definite as to the time, place, and rate of wages, constituted a promise ssUnited States v. Thompson, 41 Feu. 28. reunited States v. Parsons, 130 Fed. 681. 9723 Op. Atty. Gen. 381, 1901. 98United States v. Redfern, 180 Fed. 500. 99lt was held in the case of Fornow v. Hoffmeister, 6 Phil. Rep. 33, that a contract of labor executed by the parties in Manila in January, 1901, and by them admitted to be true, cannot be considered a violation of the Con- tract Labor Law of 1885 extended to the Philippine Islands in 1899, where the facts fail to show that the contract was made in pursuance of a prior agreement entered into by a resident of the Philippines and a person in a foreign country. looxjnited States v. Edgar, 48 Fed. 91; Moller v. United States, 57 Fed. 490. 190 The Exclusion and Expulsion of Aliens. cf employment, 1 and any alien coming in response to such promise through advertisements printed and published in any foreign country was treated by the terms of the sec- tion as coming under a contract. In the present act the word “contract” is not used except by way of designating a certain class of alien laborers; and the only definition classifying the laborers whose entrance is prohibited ex- cludes such aliens as “have been induced or solicited to “migrate to this country by offers or promises of employ- ment, or in consequence of agreements, oral, written or “printed, express or implied, to perform labor in this “country.” To constitute a contract laborer, as the term is used and defined in the present act, two facts must be shown to exist: First, that the alien has migrated to the United States, and, second, that the migration is the result of an offer or promise of employment in the United States, or of an agreement to perform labor there. There seems to be no good reason why Congress should not, if it so deemed wise, prohibit this class of aliens from coming to the United States to perform labor in response to an offer too broad or too general ordinarily to give rise to a contractual obligation on the part of the person submit- ting it, and this, it appears, is just what Congress has done. The same may be said with regard to migration “in consequence of agreements;” that is, that the agreement need not necessarily contain all the requisites of a formal contract. Section 6, to be considered in later chapter, would seem to support this view where it provides that any alien coming to this country in consequence of ad- vertisements printed in a foreign country promising em- ployment “shall be treated as coming under promise or “agreement as contemplated in section 2.” The coming United States v. Baltic Mills Co., 124 Fed. 38. The Existing Immigration Law. 191 “under contract” is no longer essential to a violation of the act. 2 H. “ * * * those who have been within one year from the date of application for admission to the United States, deported as having been induced or solicited to migrate as above described; any person whose ticket or passage is paid for with the money of another, or is assisted by others to come, unless it is affirmatively and satisfactorily shown that such person does not belong to one of the foregoing excluded classes, and that such ticket or passage was not paid for by any corporation, association, society, munici- pality, or foreign government either directly or indirectly ; * * Under the Act of 1903 all that aliens whose passage was paid for by another had to show was that they did not be- long to the excluded classes; but by the terms of the present section they must assume the additional obliga- tion of showing that their ticket or passage was not pro- vided by the various associations designated or by any foreign power. This prohibition does not, however, ex- tend to the ticket or passage of aliens in immediate or continuous transit through the United States to foreign contiguous territory. I. “* * * all children under sixteen years of age unac- companied by one or both of their parents, at the discretion of the Secretary of Commerce and Labor, or under such regulations as he may from time to time prescribe ; * *” This provision appears here for the first time in the 2 O 11 this point Attorney General Bonaparte expressed himself as follows: “The words ‘ promise of employment’ are evidently here used in a broad and somewhat loose sense, meaning, not merely an offer of employment which, by acceptance on the part of any alien coming within its terms, would create a contract enforceable against some definite person or persons, but any form of words which might be reasonably understood as holding out to a possible immigrant the prospect of assured employment, although they might not import any legal responsibility on the part of anyone.” 26 Op. Atty. Gen. 199, 205, March, 1907. I 192 The Exclusion and Expulsion of Aliens. immigration legislation of this country. The following rule has been adopted by the Department of Commerce and Labor for the purpose of its enforcement : All children under 16 unaccompanied by either parent, neither parent being in the United States, shall be held for special inquiry. The board shall exclude them as a matter of course unless it finds (1) that they are strong and healthy, (2) that while abroad they have not been the objects of public charity, (3) that they are going to close relatives who are able and willing to support and prop- erly care for them, (4) that it is the intention of such relatives to send them to school until they are 16, and (5) that they will not be put at work unsuited to their years. Where the board finds these facts to exist it shall so re- port orally or in writing to the officer in charge and defer final action until such officer has personally inspected the child. If, in his judgment, the child should be admitted, he shall so state to the board (this fact being entered of 1-ecord), which may thereupon admit. Where, in the opinion of such officer, the child is not clearly admissible, the board shall exclude and give notice of the right of appeal. If thereafter an appeal be filed, the case shall be forwarded with the recommendation either for (1) ad- mission outright, ($) admission on bond, or (5) ex- clusion. One of the purposes of this rule is to insure that the case of each child under sixteen unaccompanied shall re- ceive the attention of the officer in charge and thus bring about the application of substantially uniform standards as to the admission of those cases which do not reach the department as well as prompt admission where admission ought obviously to occur. 3 J. “ * * that skilled labor may be imported if labor of 3Note p. 24 ; Immigration Eules. The Existing Immigration Law. 193 like kind unemployed cannot be found in this country; The provision found in the corresponding Act of 1903 was introduced originally in the Act of February 26, 1885. 4 It has been held, under the latter act, that while hat trim- ming jould not be considered a new industry, 5 the manu- facture of French silk stockings could be where it had been shown that there had been manufactured here stock- ings whereof the feet were the same as those of French silk stockings, but the legs were different and made by different machines. 6 Seamen. It was held in an early case that, generally speaking, persons whose trade was that of following the sea are not, when they arrive at a United States port, in the regular course of their employment, to be considered as immi- grants. 7 The United States Supreme Court, in deciding the case of Taylor v. United States, 8 held that the act did not intend to prohibit alien sailors from going ashore from foreign vessels touching at ports of the United States. 9 In recognition of the principle announced in the Supreme Court decision and in order that the exemption made in favor of alien seamen shall not result in the entry into the United States of aliens of the classes ex- cluded by law, the following rule has been promulgated by the Department of Commerce and Labor : 9a (a) A seaman is any person employed to serve on board a vessel, whose employment is necessary to com- 4 Sec. 5, 23 Stat. at L. 333, 26 Stat. at L. 1085, 27 Stat. at L. 570. sUnited States v. Thompson, 41 Fed. 28. eUnited States v. MeCallum, 44 Fed. 745, and see 26 Op. Atty. Gen. 284, June, 1907; see also United States v. Candelario, not yet reported, Fed. . “^United States v. Sandrey, 48 Fed. 550. sUnited States v. Taylor, 207 U. S. 120, 52 Law Ed. 130. 923 Op. Atty. Gen. 521, 1901. 9aBule 10, Immigration Rules. 194 The Exclusion and Expulsion of Aliens. merce and navigation and whose name appears on the ship’s articles. (b) A person whose employment on board a vessel is not necessary to commerce and navigation, namely, a per- son who is insane, an idiot, an imbecile, an epileptic, or a person afflicted with tuberculosis or with a loathsome or dangerous contagious disease, is not a seaman within the meaning of this rule. (c) Seamen who desert their ship shall, until the con- trary is shown, be deemed to have abandoned their calling and to be no longer seamen within the meaning of this rule. (d) Seamen whose employment terminates at a port of the United States and seamen who are discharged in a port of the United States are not to be regarded as seamen within the meaning of this rule, unless it appears to the satisfaction of the examining immigration officer that they intend to reship within a reasonable time on a vessel bound to a foreign port. The reason given in the Taylor case why an alien sailor landing in the United States and availing himself of the right of shore leave granted by the master, or in the ordi- nary course of his duties as a member of the crew, does not come within the contemplation of the act, is because “it is necessary to commerce, as all admit, that sailors should go ashore, and no one believes that the statute intended altogether to prohibit their doing so. The contrary al- ways has been understood by the earlier acts, in judicial decisions and executive practice.” The provision, in subdivision 1 of rule 10 to the effect that alien seamen afflicted with mental or physical dis- abilities which, were they not seamen, would bring them within section 2 of the act are persons whose employment on board vessels is not necessary to commerce and navi- gation, and are, accordingly, not seamen within the meaning of the rule, would not seem to be authorized by The Existing Immigration Law. 195 any interpretation of the act. The immigration acts have consistently been held by the courts not to be directed against the landing of alien seamen in the course of their duty or on shore leave. The masters of the vessels from which they land must be — in the absence of legislation by Congress to the contrary — the sole judges of whether or not their employment on board those vessels is necessary to the commerce and navigation in which such vessels participate, whether those acts in which such seamen take a part are performed on board the vessels themselves or on land at the various ports at which they enter. It is within the power of Congress to prohibit, by means of immigration or other legislation, the landing of alien sea- men in the discharge of their ordinary duties on any ground which may seem to it sufficient, whether such ground be mental, moral, or physical infirmity ; but as yet Congress has not seen fit to exercise that power. It is therefore difficult to perceive what authority is vested in the Secretary of Commerce and Labor to decide, first, that an alien seaman, because consumptive or feeble minded, is not a seaman, although a part of the crew of a vessel flying a foreign flag, or, second, to exercise or attempt to exercise with regard to such seaman a power and authority which Congress has not, as yet, seen fit to exercise. Deserting Seamen. In rendering the decision in the Taylor case 10 the court went no further than to state that the act of 1903 could not be construed to cover the ordinary case of a seamen going ashore. These words must be taken in their ordi- nary sense. The court did not say that a deserting alien seaman did not come within the operation of the act; it did not pass on that point, but contented itself with hold- ing that section 18 was not intended to punish the master of a vessel “for the ordinary case of a sailor deserting while on shore leave.” And the court was further of the lOTaylor v. United States, 207 U. S. 120, 52 Law Ed. 130. 196 The Exclusion and Expulsion of Aliens. opinion that “of course it is possible for a master un- lawfully to permit an alien to land even if the alien is a sailor.” It follows that an alien may go ashore in viola- tion of the immigration act even though a seaman, as long as such going ashore does not constitute that landing “necessary to commerce” which the act does not intend to prohibit. In order, then, to give the department jurisdiction under the act in such cases, it seems unnecessary to in- dulge in the somewhat violent presumption that an alien seaman who has deserted from his vessel is no longer a seaman; 11 for as a matter of common knowledge the mo- tive of desertion is ordinarily to leave the particular vessel on which the deserter was signed in order to ship on an- other — not to give up earning a living at the only trade the ordinary seaman knows. The Department’s jurisdiction in such case would seem to be established by the fact that the alien seaman’s landing, or at least his presence on shore in consequence of such landing, is not the result of that “going on shore” necessary to commerce not pro- hibited by this or earlier acts. Seamen engaged in coastwise trade. Rule 10 provides that alien seamen employed on vessels engaged in coastwise trade of the United States are aliens within the meaning of the immigration act and subject to Its provisions. This regulation is supported by two opinions of the solicitor of the Department of Commerce and Labor of June 14, and September 15, 1907. The latter is simply to the effect that the employment of Chinese seamen by a transportation company engaged primarily in foreign trade, but also at times and incidentally thereto in the coastwise trade, constitutes no violation of the immigration law. The conclusion reached in the uSubdi vision 1(c), Rule 10. , The Existing Immigration Law. 197 opinion of June 14 seems to be based on sound prin- ciple and a sane interpretation of the law. It is to the effect that aliens cannot be employed upon American ves- sels plying the coastwise trade without violating the act in question. It seems plain that the fact that the labor which the alien agrees and is employed to perform is to be done on board American ships and within the territorial waters of the United States in no way tends to lessen the mischief brought about by the presence in this country of foreign contract laborers which it was the very purpose of the act to avoid. But even if this cannot be conceded it must be admitted that to permit the presence of aliens engaged in vessels which necessarily spend a great part of their time at American docks would be no more or less than an invitation to undesirable foreigners of all kinds to assume temporarily the character of mariners for the sole purpose of seizing the many opportunities which would be thus afforded them for entering the country in violation of the laws enacted to exclude them. The spirit of the Taylor decision would seem to be that foreign sea- men engaged in foreign commerce should in the natural pursuit of their calling, be allowed to land only on the assumption that such landing is a necessary incident to their employment on a vessel engaged in such commerce, or to their intended embarkation on some other ship en- gaged in foreign trade; that purely by virtue of this assumption their presence in the United States jurisdic- tion was and is necessarily of the briefest. It is obvious that like considerations cannot apply to a foreign sailor engaged in the coastwise trade whose stay, by the very fact of his employment is permanent as long as that par- ticular vocation lasts. In addition to those provisions already cited on this subject, the following Departmental rules are in force : Seamen engaged in foreign trade . — Subject to the fore- going limitations and restrictions, alien seamen employed 198 The Exclusion and Expulsion of Aliens. on vessels plying between foreign ports and ports of the United States may, without regard to the provisions of the immigration law, land in the United States either on shore leave or on business of the vessel, or for any purpose incident to their calling, including for the purpose of re- shipping on another vessel bound to a foreign port as soon as practicable. Seamen found in United States otherwise engaged . — Aliens, though landing in the United States as seamen, if found thereafter engaged in any occupation not connected with the business of a vessel to which they are attached, or if found to be public charges, shall be treated as other aliens are treated and shall be liable to deportation in like manner and for like causes. Procedure and examination of seamen. — Immigration officers shall inspect those claiming to be alien seamen to such extent only as may be necessary to determine whether or not they are and intend to remain such and to prevent any violation of this rule. Those found not to be bona fide seamen (including insane, idiots, imbeciles, epi- leptics, or persons afflicted with tuberculosis or with a loathsome or dangerous contagious disease) and those who intend to abandon their calling shall be inspected and dealt with in the same manner as are other aliens. This includes the requirement that masters, etc., shall, when so ordered, prevent the landing of all alien ship’s employees designated by the immigration authorities as inadmissible under the law and the terms of this rule. Presumption against vessel. — A master, owner, or con- signee of any vessel who shall allow an alien seaman whose employment terminates at a port of the United States, to land without giving adequate previous notice to the immigration officers, or who shall pay off or discharge an alien seaman at such port or allow the removal of his personal effects from the vessel without such notice, shall The Existing Immigration Law. 199 be presumed to have negligently failed to prevent the land- ing of such alien members of the crew within the meaning of section 18. When examination of crew of vessel may be dispensed with . — The local immigration authorities may dispense with the inspection of alien seamen where the master, owner, agent, or consignee of any vessel engaged in the foreign trade of the United States shall give satisfactory assurance to the Secretary of Commerce and Labor that he will comply with the following conditions, to wit : (a) To enforce at its foreign port of departure a rigid medical examination of aliens seeking employment on such vessel which will insure the rejection of any and all applicants suffering from any mental or physical affliction which would make them inadmissible to the United States under section 2 ; (b) To notify the immigration authorities of the names of all seamen not employed or articled for the return voy- age from the United States and the names of all those to be discharged in due season to permit the inspection and examination of such aliens under the provisions of the immigration act; '(c) To enforce in the ports of the United States regu- lations on the subject of shore leave which will prevent as far as possible the permanent landing of alien members of the crew before inspection by the immigration authorities, and to furnish the immigration authorities with the names of aliens employed on their vessels of the bona tides of whose intention to follow the sea they have any reason to doubt, and to afford opportunity for the inspection of such aliens ; and, except by express permission of an immi- gration officer, to refuse shore leave and to prevent the landing of alien members of the crew who are insane, idiots, imbeciles, epileptics, or persons afflicted with tu- berculosis or with a loathsome or dangerous contagious disease ; and 200 The Exclusion and Expulsion of Aliens. (d) To notify promptly the local immigration authori- ties of the names and description of seamen who desert the vessel at any port of the United States and to furnish any other information obtainable that would aid in the apprehension of such deserters. Presumptions in favor of vessel . — Where the Secretary is satisfied that all the conditions of subdivision 7 hereof have been faithfully complied with, the master, agent, owner, or consignee of the vessel shall be deemed to have provided a competent medical examination of the vessel’s crew at the time of foreign embarkation within the mean- ing of section 9 of the immigration act, and will be deemed to have taken reasonable precautions to prevent the land- ing of alien members of the crew within the meaning of section 18 of said act. Disabled seamen . — A disabled alien seaman, who never- theless does not intend to relinquish his calling but whom the master of the vessel is obliged under the navigation laws of the country to which the vessel belongs to return to the country where he embarked, may, under such regu- lations as the officer in charge deems proper to carry out the purposes of this subdivision, pass through the United States in transit to such country by the most expeditious and direct route. Where he is suffering from a loathsome or dangerous contagious disease, or with tuberculosis, or from a mental disability, or is in such physical or mental condition as to render him a person likely to become a public charge, the master must make arrangements for his proper care while in transit and furnish a sum of money sufficient to defray the expenses thereof. These provisions are made in the interest of trade and because of the peculiar position occupied by seamen under prin- ciples of international comity; and in all cases to which they apply the immigration officials shall confer not only with the master but with the consular representative of the country to which the vessel belongs. The Existing Immigration Law. 201 Japanese and Korean Laborers. Section 1 of the act provides that whenever the Presi- dent shall be satisfied that passports issued by any foreign government to its citizens to go to any country other than the United States, or to any insular possession of the United States, or to the Canal Zone, are being used for the purpose of enabling the holders to come to the continental territory of the United States to the detriment of labor conditions therein, entrance to the United States may be refused such aliens coming from such foreign country or from the Canal Zone, or insular possessions of the United States. In the exercise of the authority conferred by this section the President issued, on March 14, 1907, an executive order, refusing Japanese and Korean labor- ers, skilled and unskilled, who have received passports to go to Mexico, Canada, or Hawaii, and come therefrom, permission to enter the continental territory of the United States. The Secretary of Commerce and Labor was fur- ther directed by the terms of the order to take such meas- ures and to make and enforce such rules and regulations as may be necessary to carry this order into effect. The President’s proclamation together with the depart- mental regulations on this subject appear in Rule 11 of the immigration rules : President’s proclamation . — The President’s proclama- tion on this subject, issued March 14, 1907, reads as fol- lows : Whereas, by the act, entitled “An act to regulate the im- migration of aliens into the United States,” approved Feb- ruary 20, 1907, whenever the President is satisfied that passports issued by any foreign government to its citizens to go to any country other than the United States or to any insular possession of the United States or to the Canal Zone, are being used for the purpose of enabling the hold- ers to come to the continental territory of the United States to the detriment of labor conditions therein, it is made the duty of the President to refuse to permit such citizens of the country issuing such passports to enter the 202 The Exclusion and Expulsion of Aliens. continental territory of tlie United States from such coun- try or from such insular possession or from the Canal Zone; And Whereas, upon sufficient evidence produced before me by the Department of Commerce and Labor, I am satis- fied that passports issued by the Government of Japan to citizens of that country or Korea and who are laborers, skilled or unskilled, to go to Mexico, to Canada, and to Hawaii, are being used for the purpose of enabling the holders thereof to come to the continental territory of the United States to the detriment of labor conditions therein ; I hereby order that such citizens of Japan or Korea, to wit: Japanese or Korean laborers, skilled and unskilled, who have received passports to go to Mexico, Canada, or Hawaii, and come therefrom, be refused permission to enter the continental territory of the United States. It is further ordered that the Secretary of Commerce and Labor be, and he hereby is, directed to take, through the Bureau of Immigration and Naturalization, such meas- ures and to make and enforce such rules and regulations as may be necessary to carry this order into effect. Effect of proclamation . — The proclamation requires that Japanese and Korean laborers, skilled or unskilled, who present at a continental port a passport entitling them only to admission to Mexico, Canada, or Hawaii, shall be rejected. It does not in any particular relieve Japanese and Korean aliens from examination under the general provisions of the law. Rejection or admission as affected by passport . — If a Japanese or Korean laborer applies for admission and pre- sents no passport, it shall be presumed ( 1 ) that he did not possess when he departed from Japan or Korea a passport entitling him to come to the United States, and (2) that he did possess at that time a passport limited to Mexico, Canada, or Hawaii. If he presents a passport entitling him to enter the United States or not limited to Mexico, Canada, or Hawaii, he shall be admitted, unless he belongs to one of the classes excluded by the general provisions of the law. If he presents a passport limited to Mexico, Can- The Existing Immigration Law. 203 ada, or Hawaii, but claims that he is not a laborer, skilled or unskilled, proof of such claim shall be required. Right of appeal, etc . — All Japanese or Korean laborers excluded under this rule shall be advised not only of their right of appeal where one lies, but also that they may com- municate by telegraph or otherwise with any diplomatic or consular officer of their government, and they shall be af- forded opportunity for doing so. Definition of term laborer . — For practical, administra- tive purposes, the term “laborer, skilled or unskilled,” within the meaning of the Executive order of March 14, 1907, shall be taken to refer primarily to persons whose work is essentially physical, or, at least, manual, as farm laborers, street laborers, factory hands, contractors’ men, stablemen, freight handlers, stevedores, miners, and the like; and to persons whose work is less physical, but still manual, and who may be highly skilled, as carpenters, stonemasons, tile setters, painters, blacksmiths, mechan- ics, tailors, printers, and the like; but shall not be taken to refer to persons whose work is neither distinctively manual nor mechanical, but rather professional, artistic, mercantile, or clerical, as pharmacists, draftsmen, pho- tographers, designers, salesmen, bookkeepers, stenograph- ers, copyists, and the like. Passports to be indorsed . — Passports presented by Jap- anese and Koreans shall be plainly indorsed, in indelible ink, by the officer admitted or rejecting the applicant, in such a maner as to show the fact and date of admission or rejection. The officer shall sign such indorsement, and the passport shall be returned to the presenter. Sec. 3. That the importation into the United States of any alien for the purpose of prostitution or for any other immoral purpose is hereby forbidden; and whoever shall, directly or indirectly, import, or attempt to import, into the United States, any alien for the purpose of prostitu- tion or for any other immoral purpose, or whoever shall hold or attempt to hold any alien for any such purpose in 204 The Exclusion and Expulsion of Aliens. pursuance of such illegal importation, or whoever shall keep, maintain, control, support, employ, or harbor in any house or other place, for the purpose of prostitution or for any other immoral purpose, in pursuance of such il- legal importation, any alien, shall, in every such case be deemed guilty of a felony, and on conviction thereof be imprisoned not more than ten years and pay a fine of not more than five thousand dollars. Jurisdiction for the trial and punishment of the felonies hereinbefore set forth shall be in any district to or into which said alien is brought in pursuance of said importation by the person or persons accused, or in any district in which a violation of any of the foregoing provisions of this section occur. Any alien who shall be found an inmate of or connected with the management of a house of prostitution or practic- ing prostitution after such alien shall have entered the United States, or who shall receive, share in, or derive benefit from any part of the earnings of any prostitute; or who is employed* by, in, or in connection with any house of prostitution or music or dance hall or other place of amusement or resort habitually frequented by prostitutes, or where prostitutes gather, or who in any way assists, protects, or promises to protect from arrest any prosti- tute, shall be deemed to be unlawfully within the United States and shall be deported in the manner provided by sections twenty and twenty-one of this act. That any alien who shall, after he has been debarred or deported in pursuance of the provisions of this section, attempt there- after to return to or to enter the United States shall be deemed guilty of a misdemeanor, and shall be imprisoned for not more than two years. Any alien who shall be con- victed under any of the provisions of this section shall, at the expiration of his sentence, be taken into custody and returned to the country whence he came, or of which he is a subject or a citizen in the manner provided in sections twenty and twenty-one of this act. In all prose- cutions under this section the testimony of a husband or wife shall be admissible and competent evidence against a wife or husband. The act of importing alien women for purposes of pros- titution was prohibited and made a felony by the Act of March 3, 1875, punishable by imprisonment not exceed- The Existing Immigration Law. 205 ing five years and a fine not exceeding five thousand dol- lars ; 12 and by the Act of March 3, 1903, by imprisonment for not less than one nor more than five years, the fine re- maining the same. The present acl increases the duration of the imprisonment to ten years or less as the court may decide. The attempt to import women for these purposes, ranking here as well as in the Act of 1903 with the feloni- ous act of completed importation, was not made an offense by the Act of 1875; thus in the case of a woman who in- duced alien girls to accompany her to the United States, causing them to believe that they were accompanying her in the character of domestics, and in which the girls, on being informed before landing of the true purpose of their importation, recoiled at the suggestion of such a course, it was held that, inasmuch as the offense of im- porting them for the purposes of prostitution was not committed, the woman was guilty of no offense under the Act of 1875. 13 The statutory provision being strictly penal in nature must be strictly construed. 14 The Indictment. It was held in an early case brought under the Act of 1875 that the indictment need not set forth the acts con- stituting the importation ; 15 and this ruling was sustained in a later case, 16 holding that an indictment charging that the defendant imported and brought into the Southern District of New York, from Naples, Italy, six women named, for the purposes of prostitution within the United States, the offense was sufficiently charged. No specifica- tion of any particular kind of prostitution is required, the word itself being sufficiently definite, nor need the in- dictment set out the exact place at which the alien is to 1218 Stat. at L. 477. 13 In re Guayde, 112 Fed. 415. 14 United States v. Bitty, 155 Fed. 938; but not as strictly as the court there construed it. See 208 U. S. 393, 52 Law Ed. 543. ^United States v. Johnson, 7 Fed. 453. 16 United States v. Pagliano, 53 Fed. 1001. 206 The Exclusion and Expulsion of Aliens. be used. 17 The holding in this case — that there need be no allegation that the importation was in pursuance of an agreement made prior to the importation 18 — would have no application to a prosecution under the present act where the fact that the holding was in pursuance of the illegal importation is the main element in the offense which gives Congress the power to penalize it; 19 therefore an indictment thereunder is not defective if it alleges that the holding or attempting to hold alien females im- ported for prostitution or an immoral purpose was in pur- suance of unlawful importation. 20 Evidence. The fact of importation of aliens for immoral pur- poses and of landing or holding them in pursu- ance thereof may, of course, be proven like any other fact in criminal prosecutions ; -thus the pos- session by a person charged with having im- ported foreign women as prostitutes, and for purposes of prostitution, of the baggage checks of the entire party of six women tends to connect the defendant with the im- portation, and in the absence of explanation would justify the conclusion that he was engaged in the importation; 21 and evidence regarding the character of the house of as- signation kept by defendant, and of acts done at such house after the woman was imported and while she lived there with the defendant, relating to the place named in the indictment as that where the purposes of prostitution was to be carried out, is admissible to show the purposes of prostitution laid in the indictment. 22 As the Acts of 1903 and 1907 make the importation and holding and har- i7United States v. Pagliano, 53 Fed. 1001. izibid. isKeller v. United States, 213 U. S. 138, 53 Law Ed. 737. zoUnited States v. Krsteff, 185 Fed. 201. As to sufficiency of allegation as to time of offense, see United States v. Lair, 195 Fed. 47. 2i53 Fed. 1001, supra. 22 United States v. Johnson, 7 Fed. 453. The Existing Immigration Law. 207 boring in pursuance thereof, not only for purposes of pros- titution but for immoral purposes, a felony, the estab- lished fact that, an alien woman lived in concubinage with the person importing her is sufficient to prove harboring her for an immoral purpose in pursuance of such importa- tion, but the fact that an alien woman came to the United States for an immoral purpose is not to be presumed from the fact that, six months after arrival here she went to live with B as his wife, the passage money having been paid by A. 24 Section 3 of the Act of February 20, 1907, Held Unconsti- tutional. In the case of Keller v. United States, 25 the Supreme Court held that the provision in this section, prior to its amendment by the Act of March 26, 1910, stating that “whoever shall keep, maintain, control, support or harbor in any house or other place, for the purpose of prostitu- tion, or for any other immoral purpose any alien woman or girl within three years after she shall have entered the United States, shall in every such case be deemed guilty of a felony and on conviction thereof be imprisoned not more than five years, and pay a fine of not more than five thousand dollars” was an unconstitutional assumption by Congress of police powers, which it had never been granted. Said the court: “While the keeping of a house of ill fame is offensive to the moral sense, yet that fact must not close the eye to the question whether the power to punish therefor is delegated to Congress or is reserved to the states. Jurisdiction over such an offense comes within the accepted definition of the police power. Speak- ing generally that power is reserved to the states, for there is in the constitution no grant thereof to Congress. “Were Congress to assume such power, then,” said the court, “we should be brought face to face with such a 24 United States esc rel. Huber v. Sibray, 178 Fed. 150. 25213 U. S. 138, 53 Law Ed. 737 ; held not to apply to the territories and particularly to the territory of Hawaii, 3 U. S. D. Ct. Hawaii 481. 208 The Exclusion and Expulsion of Aliens. change in the internal conditions of this country as was never dreamed of by the framers of the Constitution.” Nature of the Offense. The acts penalized by this section are three: first, im- porting or attempting to import alien persons for any im- moral purpose ; second, holding or attempting to hold any alien for such purpose in pursuance of the importation; third, keeping, maintaining, or harboring in any house or place any alien in pursuance of such importation. The amending section prohibits the holding or maintaining of any alien at all, whereas the section amended made such acts criminal only if committed within three years after the importation. The first act alone renders the felony complete, whereas the second and third are felonious only if done pursuant to the importation, and the attempt to commit any one of the three renders the offender equally liable. Moreover, it is immaterial whether the importa- tion be attempted or accomplished directly or indirectly; the penalty is the same. This provision has been held constitutional and within the power of Congress to enact . 26 Importation, as the term is here used, is deemed to be com- pleted at the port where the alien was landed . 27 The Importation. The act of importing or attempting to import into the United States aliens for an immoral purpose, penalized as a felony in this section, must be clearly distinguished, it has been said, from the act of procuring or attempting to bring in alien women for prostitution or any other im- moral purpose. The latter act, if proven, renders the of- fender liable to deportation, and the question of whether or not it has been committed is solely for administrative 26United States v. Krsteff, 185 Fed. 201. 27 Ibid. Importation into the Hawaiian Islands is importation into the United States, and it must be shown that at the time of the importation by the defendant it was his purpose that the alien should engage in prosti- tution in this country. United States v. Meyama, 1 U. S. D. Ct. Hawaii 399. The Existing Immigration Law. 209 determination. The existence of the former act involving as it does criminal responsibility, and punishment for the commission of a criminal offense, can only be determined by regular judicial proceedings; and if the accused alien is found guilty deportation after the expiration of the term of imprisonment will follow as a matter of course. But deportation cannot be ordered in the absence of prior conviction. “The right to prosecute criminally and the right to deport are inconsistent as concurrent rights.” They cannot both be exercised at the same time. Congress saw the necessity of making the proceedings successive; and it clearly and probably purposely made the second step depend on the result of the first step . 28 The Holding or Harboring of the alien, in order to be done in pursuance of the im- portation, must constitute the final link in a continuous chain of acts participated in directly or indirectly by the offender, connected with the act of importing. It appears that the connection between the importation and the subse- quent illegal act must be uninterrupted; thus the mere resumption of illegal intercourse with an alien woman imported by the accused after an interruption of inter- course of two years’ duration is not an act done in pur- suance of such importation . 29 The provision is obviously levelled not only against individuals who enter into illicit intercourse with aliens they have imported for that pur- pose, but as well against persons who receive and hold alien women for intercourse with others, provided they themselves have taken part in the importation. The Keller case shows conclusively that either holding cn behalf of others, or harboring for the fulfilment of one’s ssLewis v. Frick, 189 Fed. 146, reversed in 195 Fed. 693 ; and see ex parte Pouliot, 196 Fed. 437 ; but as to the effect of an acquittal on a criminal charge involving an act which would constitute ground for deportation under the Chinese Exclusion Law, see Chin Kee v. United States, 196 Fed. 74. 29United States v. Lavoie, 182 Fed. 943. 210 The Exclusion and Expulsion of Aliens. own desires if done apart from the act of importation, can- not be made the subject of Congressional legislation. Whether such holding or harboring if done with a knowl- edge of such importation constitutes an act done in pursu- ance thereof, as that term is used in the statute is still to be judicially determined. “Any Alien ” Section 3 of the Act of 1907 forbade the importation of any alien woman or girl, or the harboring or maintaining of the same for the immoral purposes set out therein. The prohibition of the amended section applies not only in terms to the importation of women or girls or harboring or maintaining them for such purposes, but to “any alien” thereby including aliens of either sex imported with that end in view. This would seem to bar the door effectively against the importation of go-betweens, procurers, or pro- curer’s assistants, and all members of the male sex whose services might be available in the business of prostitu- tion or in any other immoral connection. It might not, however, be deemed to apply to domestics in such houses, imported for service essentially domestic in nature. Jurisdiction for Trial and Punishment. It appears that “any district to or into which such alien is brought” means the district into which she is brought by the vehicle of transportation — not by the act of the party or parties subsequent to her landing; thus the crimes of holding or harboring are not punishable in the Federal District of Washington, when the alien landed at a California port, 30 or in the Federal District of Illinois when landed at New York. 31 3oUnited States v. Lavoie, 182 Fed. 943 ; see 169 Fed. 890. 3i Ex parte Lair, 177 Fed. 789, reversed in 195 Fed. 47, where it was held that a federal court sitting in another state could not assume as a matter of judicial knowledge that the offense of importing an alien woman into the United States for immoral purposes could not have been committed by the defendant at Chicago within the Northern District of Illinois as against a judgment of the court of the latter district finding that offense had Been so committed. United States v. Lair, 195 Fed. 47. The Existing Immigration Law. 211 Time Within Which Alien May be Deported . The section of the Act of 1907 of which this is the amendment provided only that alien females who were found inmates of houses of prostitution and practising prostitution within three years after they entered the United States should be deemed to be unlawfully therein and subject to deportation, and was silent as to the other classes of aliens designated in the present section, which, in removing the time limit altogether, repealed the prior section. 32 The result is that any such alien, if prosecuted and found guilty under this section, may be deported from the United States at any time after entry; and the pro- vision, although attacked as being unconstitutional, has been held valid, and wholly within the power of Congress to enact; 33 and the fact that an alien prostitute has re- sided in the United States for a longer time than the statutory period of three years provided by the Act of 1907, does not remove her beyond the scope of the amend- ment. 34 But proceedings must be commenced for acts com- mitted after March 26, 1910. 35 To What Aliens Applicable. It will be noted that the wording of this clause is ex- tremely comprehensive, designating as subjects for de- portation aliens who shall be found “inmates of or connec- tion with the management of” houses of prostitution; or aliens “employed by or in connection with” any house of prostitution or place frequented by prostitutes. This language, although sweeping, might not be deemed to ap- ply to domestics in such houses receiving pay for work of a purely domestic nature. But even if construed accord- ing to the literal wording of the section it would seem to be wholly within the powers of Congress to prescribe. 3 3United States v. Weis, 181 Fed. 860; United States v. Lavoie, 182 Fed. 943; United States v. Williams, 183 Fed. 904; United States v. North German Lloyd, (same v. International Marine Co.), 185 Fed. 158. 3*United States v. Prentis, 182 Fed. 894, 185 Fed. 967, supra. zslbid. 212 The Exclusion and Expulsion of Aliens. The right of a nation to expel or deport foreigners who have not been naturalized is as absolute and unqualified as the right to prohibit and prevent their entrance into the country . 36 Conversely, as it may exclude them alto- gether , 37 it may expel them altogether; and particularly would this principle, so rigidly applied to laborers of a nation objectionable for no reason other than that they are laborers of such nation, apply to aliens who choose as their sole means of support a life of prostitution and dis- grace tending to degrade the moral standards of the resi- dents of this country with whom they come in contact. Return of Deported Aliens Made a Misdemeanor. As it is plainly competent for Congress to declare the act of an alien in remaining unlawfully in the United States to be an offense punishable with fine or imprison- ment 38 it is equally within the power of the national legis- lature to make the return or attempt to return on the part of aliens already barred out and deported an offense pun- ishable as criminal offenses are punishable in the United States. It would seem, however, that the commission of the offense must be regularly established by a criminal trial before a judicial tribunal . 39 Testimony of Husband and Wife. Under the acknowledged power of every legislature to prescribe rules of evidence in proceedings adopted for the exercise of the sovereign right to admit or exclude aliens , 40 Congress has further provided that in all prosecu- tions under this section the testimony of a husband or wife shall be admissible and competent, as against wife cr husband. 36Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. 37Lem Moon Sing v. United States, 158 U. S. 539, 39 Law Ed. 1082. 38 Wong Wing v. United States, 163 U. S. 228, 41 Law Ed. 140. 39Wong Wing v. United States, 163 U. S. 228, 41 Law Ed. 140. 40 United States v. Fong Yue Ting, 149 U. S. 698, 37 Law Ed. 905; In re Moses, 83 Fed. 995. The Existing Immigration Law. 213 General Subject Reviewed. The provisions of this section apply to the importation of Chinese prostitutes as well as to those of every other nationality, notwithstanding that it is provided in section 43 that nothing in this act shall be deemed to repeal the laws relating to the exclusion of Chinese. 41 As is apparent from the wording of the section, it is the importation of women and girls for the purpose of prostitution or for any other immoral purpose which is prohibited. It is to be noted that, although section 2 prohibits the coming to the United States of prostitutes, section 3 does not prohibit the importation of “prostitutes,” but of “any alien for the purpose of prostitution or for any other immoral pur- pose.” Although, if it could be shown that prior to im- portation the alien so imported had at some previous time been a member of the objectionable class, this fact would be entitled to great weight in passing on the point as to whether or not she had been imported to the United States for the prohibited purposes, it would not neces- sarily render the person importing her subject to the penal provisions of the section unless it were shown beyond a reasonable doubt that he had imported her with immoral ends in view. In order to prove the offense it must be shown that the defendant knowingly and wilfully im- ported or caused the alien to be imported for the purposes prohibited by the statute; 42 and to prove the holding or attempting to hold in pursuance of such importation it must be shown that the defendant knowingly and wilfully imported or caused the alien to be imported for the pur- poses shown. To constitute the holding it is not necessary that the defendant should have held her by physical force, but that she should have been detained by him for such purposes, either by physical means directly, or indirectly applied to her by him, or by threats or commands directly 4iLooe Shee v. North, 170 Fed. 566. 42 United States v. Giuliani, 147 Fed. 594. 214 The Exclusion and Expulsion of Aliens. or indirectly made by the defendant calculated to operate to restrain her freedom of action and will. To constitute an attempt to hold the defendant should have made an effort, effectual or ineffectual, by means designed and to a greater or less extent calculated, to effect the object, to hold her for purposes of prostitution or other immoral purposes, with an intention on the part of the defendant at the time thus to hold her. 43 Where defendant persuaded two alien women to accom- pany her to the United States in the capacity of domestics, and while on shipboard told them that they were to be- come prostitutes on their arrival, which they refused to do, it was held to be no offense under the statute of March 3, 1875, which provided no penalty for an attempt to import women for purposes of prostitution. 44 The opposite result would necessarily be reached under the present law. Sec. 4. That it shall be a misdemeanor for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation or in any way to assist or encourage the importation or migration of any contract laborer or contract laborers into the United States, unless such contract laborer or contract laborers are exempted under the terms of the last two provisos con- tained in section two of this act. Sec. 5. That for every violation of any of the provisions of section four of this act the person, partnership, com- pany or corporation violating the same, by knowingly as- sisting, encouraging, or soliciting the migration or im- portation of any contract laborer into the United States shall forfeit and pay for every such offense the sum of one thousand dollars, which may be sued for and recovered by the United States, or by any person who shall first bring his action therefor in his own name and for his own benefit, including any such alien thus promised labor or service of any kind as aforesaid, as debts of like amount are now recovered in the courts of the United States ; and separate « Ibid. 4 *In re Guayde, 112 Fed. 415. The Existing Immigration Law. 215 suits may be brought for each alien thus promised labor or service of any kind as aforesaid. And it shall be the duty of the district attorney of the proper district to prose- cute every such suit when brought by the United States. Sec. 6. That it shall be unlawful and be deemed a viola- tion of section four of this act to assist or encourage the importation or migration of any alien by promise of em- ployment through advertisements printed and published in any foreign country ; and any alien coming to this coun- try in consequence of such an advertisement shall be treated as coming under promise or agreement as contem- plated in section two of this act, and the penalties imposed by section five of this act shall be applicable to such a case : Provided , That this section shall not apply to states or territories, the District of Columbia, or places subject to the jurisdiction of the United States advertising the in- ducements they offer for immigration thereto, respec- tively. 45 45ln an opinion rendered March 6, 1907, the Attorney General held that, in dealing with the payment of passage money or other specific assistance to migration of individual aliens, no exception is made in favor of states and no exception exists in favor of any person because he may act as the agent of a state (26 Op. Atty. Gen. 180-192). It was therein held that where aliens came to this country by virtue of representations made by an officer of the State of South Carolina appointed under a statute which expressly permitted him to act as agent for the citizens of that state in the procuring of desirable alien immigrants, they were excludable as contract laborers where the officer visited foreign countries largely or wholly at the expense of said citizens and by advertisement, promises of employment, and pre- payment of passage induced them to migrate to South Carolina. 26 Op. Atty. Gen. 180. In a later opinion, rendered March 20, 1907, it was held that the word “person” as used in section 4 of the act did not include a state but did include an officer of a state professing to act under its au- thority who, by prepayment of the passage of an alien, should induce the latter to migrate by any offer, solicitation, promise or agreement to per- form labor; and held further that a state might prepay the passage of an alien immigrant out of its public funds, the advertisement being lawful, and neither the state nor its officers nor anyone else having otherwise so- licited or encouraged the migration of said alien. The opinion further held that it is lawful for a state to publish these advertisements to immigration and to state as part of such advertisement the scale of wages generally pre- vailing within its territory. 26 Op. Atty. Gen. 199. In a later opinion rendered on September 30, 1907, the view was again reiterated that the act contains no exceptions in favor of a state in reference to specific promises of employment to individual immigrants and that the payment of an immi- 216 The Exclusion and Expulsion of Aliens. The power of Congress to punish any person assisting in the introduction of persons belonging to a class to which entrance into the United States is forbidden was held by the Supreme Court to be a necessary incident to the exer- grant’s passage out of the state funds does not of itself require his ex- clusion. 26 Op. Atty. Gen. 410. A territorial government, such as Hawaii, is not a person under section 4, nor is it a corporation, association, society, municipality or foreign government under section 2. 27 Op. Atty. Gen. 479, July 26, 1909. If it is admitted that a state or territory is not a person, and that the prepayment out of public funds of the passage of an alien for the purpose of bringing about his migration to this country does not render him liable to exclusion because his passage has been paid, it is somewhat difficult to perceive why or how the opposite result must follow when the passage has been paid by an individual acting for the State — particularly since the only method in which a state can act is through the intervention of a natural person. Of course, if the person who prepays the passage does not really represent the state, or if the passage is paid for with the money and for the the benefit of private citizens of a state under the cloak of legislative authority, it is plain that the alien should be excluded. In the opinion of March 20, 1907, it is said that a state may prepay the passage of an alien immigrant out of its public funds, 1 1 the advertisement being lawful. ’ ’ It is not wholly clear how any advertisement by a state may be other than lawful in view of the fact that section 6 excepts from its pro- hibition against the encouraging of the importation of immigration of any alien by a promise of employment through advertisements printed and published in any foreign country, the states or territories and the District of Columbia, which advertise the inducements they offer for immigration thereto. Section 6 provides that any person who shall enter in conse- quence of an advertisement shall be treated as coming under a promise or agreement as contemplated in section 2; and section 2 characterizes as con- tract laborers aliens who have been induced or solicited to migrate by prom- ises of employment or in consequence of agreements. Just how the act act imposes a check upon states or territories against the introduction of aliens as contract laborers does not plainly appear; and if we assume that the inducements held out in the advertisements published by states or territories in foreign countries are limited to statements of the general beneficial results to be derived from settlement in any particular state or territory, the absence of representations as to specific work for specific wages would seem to have no effect whatsoever on the mischief created as a result of migration coming from such advertisements, to wit, the presence of aliens in this country, who, not being by their coming bound to work for any specific wage may select whatever kind of labor they choose at whatever rates they may elect to accept. The Existing Immigration Law. 217 cise of the inherent power of exclusion vested in the United States. 46 The words “shall forfeit and pay for every such of- fense the sum of one thousand dollars’’ repeats the lan- guage of section 3 of the Act of February 26, 1885, but that act did not in terms designate the offense as a mis- demeanor. Nor did the Act of March 3, 1903, but merely made the acts prohibited unlawful, and provided as a pen- alty therefor that the transgressor should forfeit and pay for every such offense the sum of one thousand dollars, “which may be sued for as debts of like amount are now recovered in courts of the United States.” 47 Method of Bringing Suit. (a) Civil. It was held, that under the Act of February 26, 1885, an action of debt to recover a penalty under this statute is the proper form of action, not only by the terms of the statute but also on general principles, for, while the ac- tion, being based on a violation of the statute, sounds in tort, yet debt lies for a statutory penalty because the sum demanded is certain. 48 “It must be taken as settled law,” says the Supreme Court, in interpreting these sections in the case of Hepner v. United States, 49 “that a certain sum, or a sum which can readily be reduced to a cer- tainty, prescribed in a statute as a penalty for the viola- tion of law, may be recovered by civil action, even if it may also be recovered in a proceeding which is technically criminal. Of course, if the statute by which the penalty was imposed contemplated recovery only by a criminal proceeding, a civil remedy could not be adopted But there can be no doubt that the words of the statute 4 «U. S. v. Lees, 150 U. S. 476, 37 Law Ed. 1150. 4 ?United States v. M ’Elroy, 115 Fed. 252. 48Hepner v. United States, 213 U. S. 103, 53 Law Ed. 720. 49 The Courts of First Instance in the Philippines are held to be courts of the United States for the purposes of such suits. Oehlers v. Hartwig, 5 Phil. Rep. 487. 218 The Exclusion and Expulsion of Aliens. on which the present suit is based are broad enough to embrace, and were intended to embrace, a civil action to recover the prescribed penalty. It provides that the pen- alty of $1,000 may be ‘sued for’ and recovered by the United States or by any ‘person’ who shall first bring his ‘action’ therefor ‘in his own name and for his own benefit,’ ‘as debts of like amount are now recovered in the courts of the United States ;’ and ‘separate suits’ may be brought for each alien thus promised labor or service of any kind. The district attorney is required to prosecute every such ‘suit’ when brought by the United States. These references in the statute to the proceeding for recovering the penalty plainly indicate that a civil action is an appropriate mode of proceeding.” Who May Bring Suit. The words “in his own name and for his own benefit” re- peat the language of the Act of March 3, 1903, but were not contained in the Act of 1885. Thus, in a suit brought under that act it was held that a private person could not sue for his own benefit by his private attorney to recover the penalty imposed by this section. While the action could be brought in the name of a private person it was held to be of a nature highly penal, that prosecution by the United States District Attorney was necessary, and that the proceeds of any judgment recovered therein should be paid into the Treasury of the United States ; and finally that the Deficiencies Appropriation Act of October 19, 1888, which authorized the Secretary of the Treasury to pay informers any reasonable amount not exceeding fifty per cent, of the amount recovered in consequence of in- formation given by them, made no change in this respect. 50 Thus the law stood up to the enactment of the Act of March 3, 1903, which provided that suit might be brought “by any person who shall first bring his action therefore in his own name and for his own benefit which provision is included eoRosenberg y. Union Iron Works, 109 Fed. 844. The Existing Immigration Law. 219 in the present section. When “suit” is brought on behalf of the United States the district attorney prosecutes the case. 51 (b.) Criminal. In the case of United States v. Stevenson 52 it was con- tended that the action for a penalty was exclusive of all other means of enforcing the act, and that an indictment would not lie as for an alleged offense within the terms of the act. But it had already been decided by the Supreme Court 53 that a penalty might be recovered by indictment or information in a criminal action, as well as by a civil action in the form of an action for debt. In the Stevenson case the court pointed out that the “statute does not in terms undertake to make an action for the penalty an exclusive means of enforcing it, and only provides that it may be thus sued for and recovered. There is nothing in the terms of the act specifically undertaking to restrict the Government to this method of enforcing the law. If is not to be presumed, in the absence of language clearly indicat- ing the contrary intention, that it was the purpose of Con- gress to take from the Government the well recognized method of enforcing such a statute by indictment and crim- inal proceedings.” The court, after particularly calling attention to the fact that under the Act of March 3, 1903, the act of importing aliens, or encouraging their importa- tion was merely made “unlawful,” whereas the present act, on the contrary, make such acts misdemeanors, proceeds: “Nor can we perceive any purpose in making the change except to manifest the intention of Congress to make it clear that the acts denounced should constitute a crime which would carry with it the right of the Government to prosecute as for a crime Congress having declared the acts in question to constitute a misdemeanor, and hav- 51 Hepner v. United States, 213 U. S. 103, 53 Law Ed. 720. 52United States v. Stevenson et al., 215 U. S. 190, 54 Law Ed. 153. 53Lees v. United States, 150 U. S. 476, 37 Law Ed. 1150. 220 The Exclusion and Expulsion of Aliens. ing provided that an action for a penalty may be prose- cuted, we think there is nothing in the terms of the statute which will cut down the right of the Government to prose- cute by indictment if it shall choose to resort to that method of seeking to punish an alleged offender against the statute.” Nature of the Action. The case of Lees v.The United States 54 was, says the court in the Hepner case, 55 “a civil action to recover a penalty for importing an alien into the United States to perform labor in violation of the Act of February 26, 1885. In that case the trial court compelled one of the defendants to tes- tify for the United States and furnish evidence against themselves. This court held that that could not be done; saying that ‘this, though an action civil in form, is un- questionably criminal in its nature, and in such a case a defendant cannot be compelled to be a witness against himself’ — meaning thereby only that the action was of such a criminal nature as to prevent the use of deposi- tions.” That case does not “modify or disturb but recog- nizes the general rule that penalties may be recovered by civil actions, although such actions may be so far criminal in their nature that the defendant cannot be compelled to testify against himself in such actions in respect to any matters involving, or that may involve, his being guilty of a criminal offense.” The burden of proof in such actions is on the Govern- ment and a verdict cannot be directed for the Government when there is a reasonable doubt as to whether the defend- ant has committed the offense of assisting in the importa- 54150 U. S. 476, 37 Law Ed. 1150. 55213 U. S. 103, 53 Law Ed. 720; and it was held in the case of United States v. Banister, 70 Fed. 44, that an action by the United States to recover the statutory penalty for violating the contract labor provisions of the Act of 1885 is an action sounding in tort and hence there is no privilege of ex- emption from arrest therein. The Existing Immigration Law. 221 tion of contract laborers; 56 but a verdict may be directed for the Government where it appears by undisputed tes- timony that the defendant committed the offense. 57 Jury Trial. In the Hepner case 58 the action was one of debt brought by the Government to recover a penalty under sections 4 and 5 for having induced an alien to enter this country for the purpose of performing labor under contract. The court held that the defendant was “of course, entitled to have a jury summoned in this case, but that right was sub- ject to the condition, fundamental in the conduct of civil actions, that the court may withdraw a case from a jury and direct a verdict according to the law if the evidence is uncontradicted and raises only a question of law.” Subjection of Parties to Penalty Other Than That Pro- vided by this Act. In the case of United States v. Stevenson, 59 the defend- ants were proceeded against under an indictment which in its second count charged a conspiracy under paragraph 5440 of the Revised Statutes of the United States to com- mit the offense of assisting alien contract laborers to mi- grate to this country in violation of the immigration law. The court said “inasmuch as we have already held that Congress in making the assistance of contract laborers into the United States a misdemeanor, has made the same a crime, indictable as such, under the Immigration Act of 1907, it must necessarily follow that if two or more per- sons, as is charged in the indictment under consideration, conspire to assist such importation, they do conspire to commit an offense against the United States within the terms of paragraph 5440 of the Revised Statutes of the United States Nor does it may any difference that 56 Regan v. United States, 183 Fed. 293. 57 Ibid. 58213 U. S. 103, 53 Law Ed. 720. 59215 U. S. 200, 54 Law Ed. 157. 222 The Exclusion and Expulsion of Aliens. Congress has seen fit to affix a greater punishment to the conspiracy to commit the offense than is denounced against the offense itself ; that is a matter to be determined by the legislative body having power to regulate the mat- ter.” The Complaint. What constituted or failed to constitute good and suf- ficient complaints for violations of the preceding Acts of February 26, 1885, and March 3, 1891, are of little value as precedents owing to the changes which have been made in the law referring particularly as to what acts shall constitute the promise or agreement, which if acted upon by an alien, render the person making them subject to the penalty provided. To give a right of action under the Act of 1885 three things were held to be essential: (1) The immigrant must, previous to becoming a resident of the United States, have entered into a contract to perform or to continue to perform 60 labor or service here; (2) he must actually have migrated to the United States in pursuance of such contract; (3) the defendant must have prepaid his transportation, or assisted therein, and encouraged or solicited his migration knowing that he had entered into this illegal contract. 61 Therefore the omission to state in the complaint that the laborer had been imported, and that the defendant knew when he assisted or encouraged him to enter that he was under a contract to labor here, vitiated the complaint; 62 and where the complaint for the recovery of a penalty failed to show any agreement as to the time or amount or compensation, and showed further that one of the acts necessary to complete the illegal con- tract or agreement had to be done in the United States the complaint was held to be insufficient. 63 eoUnited States v. Great Falls & C. Ry. Co., 53 Fed. 77. eiUnited States v. Craig, 28 Fed. 795. 62United States v. Borneman, 41 Fed. 751. eaUnited States v. Edgar, 48 Fed. 91. The Existing Immigration Law. 223 By section 3 of the Act of March 3, 1891, the violation was designated to consist in “assisting or encouraging the migration or importation of any alien by promise of em- ployment through advertisements printed and published in any foreign country,” and that any alien coming to the United States in consequence of such advertisement was to be “treated as coming under a contract as contemplated by such act.” The stumbling block of a “contract previ- ously entered into” was avoided by this provision, it is true, but it seems that even under this provision any as- surance of probable employment, followed up by migration on the part of an alien, had to “be definite as to the kind, the place, and the rate of wages” in order to be a promise of employment within the meaning of the statute. A com- plaint containing these elements was sufficient to support an action for the penalty prescribed. 64 It was held gener- ally in decisions rendered under the Act of 1891 that the acts of assistance, 65 the character of the labor or service to be rendered, and the elements of the contract should be definitely set out. 67 Section If specifies the two elements which constitute the offense: (1) the prepayment of the transportion or the assistance or encouragement in any way of the importation or migra- tion of an alien; (2) the alien must be a contract laborer, i e., a person “induced or solicited to migrate to this coun- try by offers or promises of employment, or in consequence of agreements, oral, written, or printed, express or im- plied, to perform labor in this country.” 68 The first ele- ments must always be present and therefore should always be clearly set out in the complaint. The second element is divisible into two : first, that of “offers or promises of em- eUJnited States v. Baltic Mills Co., 124 Ted. 38. 65United States v. Tye, 70 Fed. 318. 67United States v. Gay, 80 Fed. 254; Moller v. United States, 57 Fed. 490. 68 Seetion 2. 224 The Exclusion and Expulsion of Aliens. ployinent,” second, “agreements.” The complaint should set out clearly the offers or promises and the fact that they were made by the defendant; as for the “agreements,” it would seem that their existence must be alleged as such; that is, as a transaction in which the defendant and the alien have both taken a part, and in consequence of which the alien has come to the United States. But section 6 provides that “any alien” whose importation or migration has been assisted or encouraged by promise of employment through advertisements printed and published in any for- eign country shall be deemed as coming by “agreement” and the penalties imposed by section 5 shall be applicable to such a case. Here it would seem that besides the allega- tions in number (1), supra , the complaint, to be sufficient need allege no more than the fact of the advertisement in the foreign country, that it was published there by the defendant and that it contained a promise of employ- ment. 69 Section 5 amplifies section 4 by stating that a violation of the same shall consist in “knowingly assisting, encouraging or so- liciting the migration or importation of any contract la- borer into the United States.” Section 6 further provides that it shall be deemed a violation of section 4 “to assist or encourage the migration or importation of any alien by promise of employment through advertisements printed and published in any foreign country;” and imposes the penalties of section 5 for such violation — but only, it ap- pears, if the alien shall migrate in consequence of such ad- vertisement. It is to be noted, however, that no one of these three sections is violated unless (1) the persons solicited come esDeclaration in an action for debt to recover a penalty for the importa- tion of alien laborers to Porto Rico in violation of the Act of March 3, 1903, must contain allegation that labor or service is not of the character ex- cepted by section 2. United States v. Michelana, 1 Porto Rico Fed. Rep. 209. The Existing Immigration Law. 225 to the United States; (2) they have been induced to mi- grate by offers or promises of employment, or in conse- quence of agreements to perform labor. A mere promise or general offer of employment would seem sufficient, pro- vided the alien come to the United States in consequence thereof. The coming in consequence of an actual agree- ment constitutes the alien a contract laborer under section 2 of the act and renders the party inducing him to come liable under sections 4 and 5. But under section 6 the fact of an advertisement containing a promise of employment that an alien comes to the United States in consequence constitutes of itself the agreement contemplated in section 2 ; thereby creating, as it were, an artificial agreement aris- ing by the co-existence of two facts : the advertisement and the action of the alien induced by the same, which would seem to render any additional proof of an actual oral or written assent by the parties unnecessary. The Act of March 3, 1891, amending the Act of February 26, 1885, prohibited the migration of any alien “by promise of employment through advertisements printed and pub- lished in any foreign country,” and any alien coming to this country in consequence of such an advertisement “shall be treated as coming under a contract as contem- plated by such act.” “This amendment,” says the courFm United States v. Baltic Mills, 70 “was intended to dispense with the necessity of proving that there had been a con- tract with the alien “made previous to the importation or migration,” or that there had been any other assistance or encouragement to his migration than a promise of employ- ment The word promise is used in the sense in which advertisements commonly promise employment to applicants. Under the former statute there could be no antecedent contract by an advertisement however explicit the terms of the promise might be, because the promise could not, until the alien entered upon its performance, 70TJnited States v. Baltic Mills Co., 124 Fed. 38. 226 The Exclusion and Expulsion of Aliens. become a contract The proviso indicates that Con- gress did not use the word promise in its strict legal meaning, but rather in the sense of an assurance or induce- ment to encourage aliens to migrate. The proviso with- draws from the operation of the section the inducements advertised by states and immigration bureaus of states offered for immigration to such states. The advertise- ments do not ordinarily contain promises of employment in the nature of specific proposals, but contain assurances of opportunity for employment and of the remuneration that may be expected We are of opinion that any assurance of probable employment definite as to the kind the place and the rate of wages is a promise of employment within the meaning of the statute ” It is to be observed that the amendment of the Act of March 3, 1891, herein referred to provides that those aliens coming to the Untied States relying on the promise of employment were to be treated as coming under a “con- tract.” This presupposes that the promise made and acted upon should be specific enough to lay the foundations at least of a contractual obligation. This may be inferred from the fact that it was held in the case just cited that the promise must be definite as to “the time, the place, and the rate of wages.” But the present act does not introduce or use the word “contract” except in designating contract laborers as a prohibited class; and in defining the characteristics by which persons belonging to that class are to be distin- guished. No reference to the term appears in section 6. Instead of providing, as did the Act of 1891, that a promise acted upon shall be deemed a promise or agreement, for all that appears in the advertisement, there need be no more than a general inducement or lure held out as a bait to foreign laborers containing no specific terms of any kind. 71 7i See Ante , p. 223 et seq . The Existing Immigration Law. 227 General Effect of Sections 5 and 6. The result of the provisions of sections 4, 5 and 6, taken together, would seem to be that an alien coming to perform labor in this country, relying on actual promise or offer, is here in violation of law, and that if he comes in reliance on promises of employment contained in an advertisement cf any kind, he is deemed to be coming by agreement, which is likewise prohibited; and that the person from whom the offer, promise, or advertisement emanates commits a misdemeanor subjecting him to prosecution either civilly or criminally. 72 Sec. 7. That no transportation company or owner or owners of vessels, or others engaged in transporting aliens into the United States, shall, directly or indirectly, either by writing, printing, or oral representation, solicit, invite, or encourage the immigration of any aliens into the United States, but this shall not be held to prevent transportation companies from issuing letters, circulars or advertise- ments, stating the sailings of their vessels and terms and facilities of transportation therein; and for a violation of this provision, any such transportation company, and any such owner or owners of vessels, and all others engaged in transporting aliens into the United States, and the agents by them employed, shall be severally subjected to the pen- alties imposed by section five of this act. It will be noted from what has been said above that sec- tion 6, although usually a “contract labor” provision is really directed also against artificial or stimulated, as distinguished from natural immigration. Section 7 has really nothing to do with contract labor — its only connec- tion with the contract labor provisions consists in its prox- imity to them and in the fact that it looks to section 5 72 The decision of the Board of Special Inquiry established under the Act of March 3, 1903, giving Koreans the right to land in Hawaii is not a bar to an action for a penalty for bringing them unlawfully into the United States, brought under the provisions of that act. Berger v. Bishop, 1 U. S. D. Ct. Hawaii 405. 228 The Exclusion and Expulsion of Aliens. 71 for the amount of tbe penalty imposed as well as the collec- tion thereof. From the very nature of the case it may rea- sonably be assumed that this provision is more honored in the breach than in the observance; yet the books contain no reported case construing or bearing upon its provisions. But little reflection is needed to see why this is so. Such violations of this section are necessarily perpetrated largely if not altogether in foreign countries; so that it would be usually impossible to secure or introduce in court proof of such violations. It is to be regretted that no op- portunity has occurred for raising some of the important and legally interesting questions that generally are mooted by this rather unique piece of legislation in which the effort is made to punish in the courts of this country cor- porations mostly of foreign origin for the commission of an offense which, while it would in its final results culminate in the United States, is planned and perpetrated by indi- viduals operating in a foreign country. The offense herein defined must in order to be consum- mated contain the element of migration by the alien as the result of the transportation companies’ publications. The mere fact of such publications being made abroad and out- side of the jurisdiction of the United States, aside from being on that account beyond the power of Congress to punish 73 cannot be deemed of itself to constitute the offense penalized by this section. Sec. 8. That any person, including the master, agent, owner, or consignee of any vessel, who shall bring into or land in the United States, by vessel or otherwise, or who shall attempt, by himself or through another, to bring into or land in the United States, by vessel or otherwise, any alien not duly admitted by an immigrant inspector or not 73 See United States v. Nord Deutseher Lloyd, 186 Fed. 391; American Banana Co. v. United Fruit Company, 213 U. S. 347, 53 Law Ed. 826; United States v. Nord Deutseher Lloyd, Supreme Court of the United States, October Term, 1911, 56 Law Ed. ; but Congress can punish the act if it creates a condition operative within this country, as the Supreme Court decision last cited shows. See post, p. 257, n. The Existing Immigration Law. 229 lawfully entitled to enter the United States shall be deemed guilty of a misdemeanor, and shall, on conviction, be punished by a fine not exceeding one thousand dollars, or by imprisonment for a term not exceeding two years, or both by such fine and imprisonment for each and every alien so landed or brought in or attempted to be landed or brought in. This section is virtually a repetition of the correspond- ing section of the Act of March 3, 1903. The word person, which is used in the corresponding section (6) of the Act of 1891, prohibiting the landing of “aliens not lawfully en- titled to enter the United States” includes transportation companies conducting the business of transportation, by either land or water, so as to make such company liable under the provisions of that section. The officers or serv- ants of the corporation who actually committed, or were responsible for the violation of the section, were held liable to both fine and imprisonment thereunder. The purpose of this section is to prevent the actual land- ing on American soil, or the actual bringing to this coun- try, of aliens whose right to land has not been passed on by the proper immigration officers, or who are not lawfully entitled to enter the country. It is, in short, a prohibition against smuggling foreigners into the United States in de- fiance of immigration regulations. It will be observed that the prohibition is against landing or bringing into (not to) this country any alien whose right to enter has not been established in the manner provided by the act. But no liability arises from the escape of alien seamen from the vessel 75 and the section of the Act of 1903 correspond- ing to the one under discussion was construed not to apply to the case of alien seamen who on account of sickness are placed in hospital by their officers on account of their physical unfitness to accompany the vessel on her return voyage. 76 ^United States v. Burke, 99 ii'ed. 895. 230 The Exclusion and Expulsion of Aliens. Sec. 9. That it shall be unlawful for any person, includ- ing any transportation company other than railway lines entering the United States from foreign contiguous terri- tory, or the owner, master, agent, or consignee of any vessel to bring to the United States any alien subject to any of the following disabilities: idiots, imbeciles, epileptics, or per- sons afflicted with tuberculosis or with a loathsome or dan- gerous contagious disease, and if it shall appear to the satisfaction of the Secretary of Commerce and Labor that any alien so brought to the United States was afflicted with any of the said diseases or disabilities at the time of foreign embarkation and that the existence of such disease or disability might have been detected by means of a com- petent medical examination at such time, such person or transportation company or the master, agent, owner, or consignee of any such vessel shall pay to the collector of customs of the customs district in which the port of ar- rival is located the sum of one hundred dollars for each and every violation of the provisions of this section; and no vessel shall be granted clearance papers pending the de- termination of the question of the liability to the payment of such fine, and in such event such fine is imposed, while it remains unpaid, nor shall such fine be remitted or re- funded: Provided , That clearance may be granted prior to the determination of such questions upon the deposit of a sum sufficient to cover such fine and costs, such sum to be named by the Secretary of Commerce and Labor. Nature of the Violation. This section differs from the preceding one in that its violation does not constitute a misdemeanor; and the col- lection of the fine imposed by the statute, if the conditions described are determined administratively to exist, is not to be enforced by a judicial proceeding involving a criminal charge, but administratively through refusal of clearance 76Niven v. United States, 169 Fed. 782. The offense is committed in the district where the alien is landed, and not in that to which he may be later brought. United States v. Capella, 169 Fed. 890. The Existing Immigration Law. 231 to the vessel. The statute is practically self-executing. The reason for this difference of method is plain. Section S defines and penalizes the offense of setting all the safe- guards created by the act at naught, and actually causing or attempting to cause aliens to set foot in the United States without having been passed upon by the Immigra- tion authorities — in other words to smuggle in or attempt to smuggle in foreigners. The prohibition in the present section is directed against merely bringing to the United States for examination by the immigration authorities aliens who at the time of embarkation at the foreign port the master knew, or had reason to know, were suffering from disabilities which would mean their exclusion and return on presenting themselves for admission to the United States. In other words, this provision is directed against the practice of shipping disqualified aliens from a foreign port on the chance that at the time of their ar- rival and examination for admission here, they will either have recovered from the prevailing defect on the way over, or, although still suffering therefrom at time of examina- tion, its existence may escape detection by the examining physician and inspection officers. Insofar as its provisions relate to contagious diseases the section is also intended to prevent the spread of contagion among other passengers on board the ship . 77 Inasmuch as it is in the power of Congress to forbid the importation of any and all aliens, it is equally within its power to protect this country against the importation of those who are diseased or incompetent; and, in order to better protect the United States and to enforce its laws, it may penalize the infringement thereof by parties the direct fruits of whose negligence is felt on their arrival at our ports, although the negligent act originated within a foreign jurisdiction over which Congress has no control. The provision that the fine shall be imposed if the Secre- 77 0ceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 53 Law Ed. 1013. 232 The Exclusion and Expulsion of Aliens. tary of Commerce and Labor is satisfied that the alien’s disability or disease could have been detected at the port of departure, cannot however, be correctly said to consti- tute an attempt to assume jurisdiction over persons for acts of negligence occurring in a foreign country. The fine is the penalty imposed by law on persons who actually bring diseased aliens to the United States, and who knew or should have known at the time of embarkation that under the laws of this country such aliens were not ad- missible. The act of negligently bringing them to a United States port is consummated in this jurisdiction, and the fact that the continuing negligence which results in the vio- lation of the law originated without the territorial limits of this country, cannot justly be construed to relieve the party responsible therefor from the necessary result of his negligence. And it may be said that although the law relieves from liability those who are shown to have taken in a foreign jurisdiction the precautions prescribed by the statute the true cause of exemption from liability consists in the fact that under those circumstances the diseased alien cannot be said to have been negligently brought to our ports. 78 The Secretary of Commerce and Labor the Sole Judge of the Prior Existence of the Disability. The fine is to be imposed “if it shall appear to the satis- faction of the Secretary of Commerce and Labor” that the alien was afflicted and that the existence of the disability might have been detected at the time of foreign embarka- tion. By Rule 28 of the department 79 it is provided that a certificate shall be prepared by the medical examiner in the case stating whether in his judgment the existence of such disability or disease might have been detected at the foreign port. And where the only point at issue before the 78See United States v. Nord Deutscher Lloyd, 223 U. S. 118, 56 Law Ed. 7»Immigration rules. The Existing Immigration Law. 233 Secretary is the medical question, the determination of the examining surgeon would seem, for all practical purposes, final. It may be said, however, that the decision of the medical officer is relevant only insofar as it goes to show that a competent physician could or could not, at the time of the alien’s embarkation, have discovered the existence of the disease. Inasmuch, however, as there is nothing in the act to indicate that there is put upon the transporter the obligation of an absolute guarantor as to the condition of the alien at the time of embarkation it would seem that questions of fact, such as the availability of a competent surgeon, or evidence of belief or of good cause to believe on the part of the master that he was employing a competent surgeon when as a matter of fact he was not, should be proper subjects for the Secretary’s consideration. The provision in the Act of March 3, 1903, that the impo^ sition of the fine shall be conditional on the result of the medical examination at the port of arrival, and not provid- ing for a hearing on the part of the owners of the vessels prior to the imposition of the fine and refusal of clearance papers until the fine is paid was held to be due process of law, and wholly within the power of Congress to enact. 80 The imposition of the fine under this provision is an exer- cise of executive power with which Congress may con- stitutionally vest the Secretary of Commerce and Labor, as the act committed is not a criminal offense, or even a misdemeanor, and the exaction of a fine does not constitute the infliction of a punishment. 81 But ship owners are not subject to the penalty for bringing diseased stowaways who came on board without the knowledge of the master 82 or for bringing in an alien seaman who deserted into United States territory and while there developed symptoms of 8°Oeeanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 53 Law Ed. 1013; and see ante, p. 132. 81 Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 53 Law Ed. 1013. 82 Cunard Steamship Company v, Stranahan, 134 Fed. 318. 234 The Exclusion and Expulsion of Aliens. insanity of which no evidence had hitherto been mani- fested. 83 Rule 28 of the Immigration Regulation above referred to reads as follows: 1. Medical certificate . — Whenever an arriving alien is found to be afflicted with any of the diseases or disabilities mentioned in section 9, and in the judgment of the medical examiner such disease or disability existed at the time of foreign embarkation and might have been detected by means of a competent medical examination at such time, he shall so certify. 2. Notice to master y etc . — Upon the receipt of such a certificate the officer in charge shall promptly serve upon the master, agent, owner or consignee of the vessel upon which said alien arrived a notice to the effect that the as- certained facts indicate that a fine should be imposed under section 9 ; that he will be allowed sixty days’ time from the date of service of the notice within which to submit evi- dence or be heard in reference to this matter ; and that in the meantime the vessel on which the alien arrived will be granted clearance papers, upon condition that he deposit with the collector of customs, prior to the time of sailing, the sum of $100 as security for the payment of such fine, should it be imposed. 3. Service of notice . — Such notice shall be prepared in triplicate. The original shall be served on the master, agent, owner or consignee of the vessel either by (1) de- livering it to him in person or (2) leaving it at his office or, whenever the immigration officer in charge finds either of these methods of service inconvenient, by (3) mailing it to him. When service is made by delivery, it shall be ad- mitted in writing upon the duplicate and triplicate and the admission witnessed by the server. If admission be re- fused, or in case of service by either of the other methods, the server shall note the method and date of service on the ,83Urank Waterhouse & Co, y. United States, 159 Fed. 876. The Existing Immigration Law. 235 duplicate and triplicate. The duplicate shall be retained by the immigration officer in charge. The triplicate shall be delivered to the collector of customs for the district wherein the port of arrival is located, who shall withhold clearance papers until the deposit is made. 4. Submission of evidence and report . — If said deposit be made, further proceedings shall be suspended during said period of sixty days or until earlier submission or evi- dence to show why said fine should not be imposed. Such evidence, if submitted, shall be forwarded to the Bureau, together with the medical certificate and the duplicate notice, and the officer in charge shall at the same time pre- sent his written views as to whether the fine should be imposed. If within sixty days no evidence has been sub- mitted, or as soon as it is known that the fine will not be contested, the officer in charge shall report the facts to the Bureau. 5. Action on decision. — Upon receipt of departmental decision the collector of customs shall be notified of its terms. If the fine is imposed, the amount deposited as security shall be accounted for by the collector. If the fine is not imposed, he shall return such amount. Refusal of Clearance Papers. The provision on this subject is somewhat different from the corresponding section in the Act of 1903, which pro- vided merely that no vessel should be cleared while any fine imposed remained unpaid. The result of the change of language would seem to be that vessels may now be re- fused clearance pending the determination of the fact whether or not a fine has been incurred, as well as after im- position of the fine and pending payment thereof. Clear- ance may, however, be granted prior to the determination of these questions on deposit of a sum sufficient to cover both the fine and “costs.” Section 9 of the Act of March 3, 1903, limited the application of the fine to cases where aliens afflicted with a loathsome or dangerous contagious 236 The Exclusion and Expulsion of Aliens. disease were brought to the United States ; but this section extends the liability to cases where idiots, imbeciles, epi- leptics, or persons affected with tuberculosis are brought to this country. Under the Act of 1903 the liability was held not to have been incurred by bringing in a diseased alien stowaway, who came aboard without the knowledge of the master at a foreign port. 84 Under earlier acts the lia- bility of the master was held to be limited to duties con- nected with the importation of alien immigrants. 85 Grant- ing that his duties under this section extend to all aliens, to hold him liable for the presence at the ports of this country of alien stowaways would be to make him an absolute insurer undqr the act; a construction which it is thought neither the language nor the intent of the provision calls for. Nor does the master’s liability extend to a case where, during the time an alien seaman was a member of a ves- sel’s crew, he deserted to United States territory, and while there, developed insanity, there having existed no evidence of insanity or of any indications from which it might have been reasonably inferred that he was of unsound mind during the time of his service as a seaman. 86 Sec. 10. That the decision of the board of special inquiry, hereinafter provided for, based upon the certificate of the examining medical officer, shall be final as to the rejection of aliens affected with tuberculosis or with a loathsome or dangerous contagious disease, or with any mental or physical disability which would bring such aliens within any of the classes excluded from admission to the United States under section two of this act. This section adds one more class to those enumerated in the corresponding section of the preceding act — aliens af- flicted with tuberculosis. The subject of the finality of the board’s decision herein provided can be best considered in connection with section 84Cunard S. S. Co. v. Stranahan, 134 Fed. 318. 85United States v. Sandrey, 48 Fed. 550. seFrank Waterhouse & Co. v. United States, 159 Fed. 876. The Existing Immigration Law. 237 25 of the act, which provides that the “Boards of special inquiry shall be appointed for the prompt determina- tion of all cases of all immigrants detained under the provisions of law Such boards shall have authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported That in every case where an alien is excluded from admission the decision of the appropriate immigration officers, if adverse , shall be final, unless reversed on appeal to the Secretary of Commerce and Labor; but nothing in this section shall be construed to admit of any appeal in the case of any alien rejected as provided for in section 10 of this act.” This last limiting clause does not appear in section 25 of the preceding act. It appears to have been inserted to prevent raising the question that the right of appeal from the board provided in this section should be read to apply to section 10. Following the provision of section 10, the board’s de- cision has been held final as to the existence of the dis- ease. 87 A later case 88 held that the word “final” in section 10 of the Act of 1903 is used in a restricted sense and does not deprive those who are parties to the cases described in that section of the privilege of appeal so unqualifiedly con- ferred by section 25 of that act. The final clause in section 25 of the present act “shows that the exclusion of aliens as provided for in section 10 from the privilege of appeal granted in all cases in section 25 was thought desirable by Congress.” 89 But the board’s decision is not final under this section when not based exclusively on the certificate of the medical officer making the examination, and where there was raised the additional question of whether the person excluded was in fact subject to exclusion under the In re Neuwirth, 123 Fed. 347. ssRodgers v. United States, 157 Fed. 381. **Tbid. ! 238 The Exclusion and Expulsion of Aliens. Act of 1903. 90 An expression ( obiter ) by the Supreme Court seems to sustain the view adopted by the court in the decision above referred to 91 that the finding of the Board of Inquiry under the Act of March 3, 1903, was appealable even where it was to the effect that the applicant had trachoma, which the petition designated as a dangerous contagious disease — the very words of section 10. 92 How- ever, the limiting clause in section 25 of the present act makes the decision of the board absolutely final in the classes of cases therein designated — provided that the ex- cluding decision is based on the medical certificate. 93 Finality of the Decision of Boards of Special Inquiry Re- jecting Aliens Mentally or Physically Disqualified. All aliens suffering from mental or physical disabilities referred to in this section are, with certain exceptions to be discussed later, excluded from the right of appeal to the Secretary of Commerce and Labor granted other aliens who are not thus afflicted, provided that the excluding decision of a board of special inquiry is based on the cer- tificate of the examining medical officer. Rule 17 follows the section in providing that when the decision of the board is based on such certificate there is no right of ap- peal. Subdivision 4 of Rule 17 94 reads as follows : No ap- peal lies where the decision of a board of special inquiry, based solely on the certificate of the examining medical officer rejects an alien because either (1) he is afflicted with tuberculosis or a loathsome or dangerous contagious dis- ease, or (2) he is an idiot or an imbecile or an epileptic or is insane or feeble-minded, or (3) he has been insane within five years previously or has had two or. more at- tacks of insanity at any time previously, or (4) he has any mental defect which may affect his ability to earn a living or render him likely to become a public charge. win re Nakashima, 160 Fed. 842. siRodgers v. United States, In re Nakashima, supra. »2Zartarian v. Billings, 204 U. S. 170, 51 Law Ed. 428. »3United States v. Rodgers, 182 Fed. 274. ^Immigration Rules, pages 33-34. The Existing Immigration Law. 239 In a note subjoined to these two subdivisions 95 it is stated “where a medical certificate shows that an alien is afflicted with the disabilities mentioned in subdivision 4, the Board is virtually compelled to base its decision upon that certificate, because whether or not an alien is so afflicted is purely a matter of medical science.” It would seem that the only question that determines the existence of the right of appeal is one of fact as to whether the certificate is the actual basis of the decision. It is true that a decision rendered by the board excluding an alien on the ground of being a consumptive, or affected with a loathsome or dangerous contagious disease, must, in the nature of things, be based on the medical certificate affirming the fact, for the reason that trustworthy evi- dence of disease reveals itself as such only to the experi- enced eye of the medical practitioner. On the other hand insanity often — though by no means always — presents itself as a fact to the layman with the same conviction as it does to the expert alienist; and occasionally absolutely conceals its existence from the one as well as from the other. The detection of epilepsy on the contrary, except in the moment of demonstration, would seem to be the work of the physician rather than of the layman. But it is safe to say that idiocy, imbecility or feeble- mindedness, in the common acceptance of those terms, reveal themselves as readily to the observation of the lay- man as to that of the physician; and it is equally safe to say that the members of a board of special inquiry, in reaching an unfavorable decision as to the admission of an idiot, an imbecile, or a person of feeble mental faculties could do so as conscientiously and readily in the absence of the medical examiner as they could determine whether or not, in a given case, a blind man stood before them. It seems doubtful whether, in such cases as these, where as an almost invariable rule the mental infirmity is only ^Immigration Laws, Rules of November 15, 1911, 1st Ed., p. 34. 240 The Exclusion and Expulsion of Aliens. too clearly apparent, an opinion could be rendered based entirely on the certificate of the medical officer. Yet, that portion of the note to subdivisions 4 and 5 above cited provides in effect that in rendering decisions in such cases — those where a medical certificate shows lhat the alien is an idiot, an imbecile, feeble-minded, or has been insane within 5 years previously, or has had two or more attacks at any time previously or has any mental defect which may affect his ability to earn a living or render him likely to become a public charge — the Board of Special Inquiry is virtually forced to base its decision on that certificate. If this provision is to be taken as a rule to which members of boards must adhere in passing on the cases of aliens so afflicted it is tantamount to a declaration that no such aliens shall in any case be allowed to appeal from the excluding decision of the boards. It is not denied that in rare and doubtful cases of this description the members of boards may be justified in throwing the responsibility of deciding on the medical examiner, thus in effect basing their decision on his certificate. But no authority, it is thought, is conferred by section 10, or by any other section of this act, whereby the Secretary of Commerce and Labor is empowered to lay down as a matter of law that the de- cisions of boards rendered in such cases are to be perforce based on the medical certificate, and that consequently persons found to be afflicted as above stated are barred from the right of appeal. The alien is entitled to the honest opinion of the inspecting officers wholly untrarn- meled by any instructions or rules not authorized by the statute. 96 The note on page 34 of the Immigration Rules already referred to continues: “The cases intended to be covered by subdivision 5” (where the excluding decision is based solely on a medical certificate showing the existence of a physical infirmity not such as to preclude the possibility »6 In re Kornmehl, 87 Fed. 314. The Existing Immigration Law. 241 of the alien’s admission on bond) “stand on a somewhat different footing. It applies only to physical disabilities other than tuberculosis and loathsome or dangerous con- tagious diseases Whether or not these will affect ability to earn a living is partly a medical and partly a practicable question. If in such instances the board cares to rely solely on the medical certificate and to exclude, the alien is thereby deprived of his right of appeal, but he may still request admission on bond. Such is the com- bined effect of sections 10 and 26, to carry out which sub- division 5 is intended. Instances of this kind, however, are likely to be rare because in case of physical defects of the character mentioned the Board is not confined to the medical certificate but may consider all . the surrounding circumstances; and where upon all the facts, including the medical certificate it decides that the alien is suffer- ing from a physical defect which will affect his ability to earn a living the right of appeal exists.” In a foot-note to the former rule 6 of the Immigration Laws and Regulations of July 1, 1907, 13th Edition, May 4, 1911, it was left to Boards of Inquiry to determine of their own judgment in connection with the medical cer- tificate whether or not the alien has been insane within five years previous to his arrival, or has had two or more attacks of insanity previously, or whether he had any mental or physical defect which may affect his ability to earn a living or render him likely to become a public charge. As appears from the quotations made above this provision is omitted in the departmental rules and regu- lations now in force — unfortunately, it is thought, since it seems not unreasonable to take the view that any case coming within the classification covered by the old rule just cited is more than likely to involve a mixed question of fact and medical science; and the most natural inter- pretation of the provisions of section 10 of the act would seem to be that it was the intent of Congress not to de- prive an alien of the right of appeal generally granted by 242 The Exclusion and Expulsion of Aliens. section 25 when the Board’s decision was based no matter in how small a degree on questions of fact. The conclusion to be drawn from an examination of the rules appears to be ( 1 ) That when the physical defect from which the alien suffers is tuberculosis or a loathsome or dangerous con- tagious disease the decision of the board must be based on the medical certificate, and that consequently the alien has no right of appeal; but where the physical defect is one which may affect the liability of the alien to earn a living the question to be determined is a practical one quite as much as a medical one and that the Board is not therefore bound to base its decision on the certificate of a medical officer. If based thereon, however, the effect is to deny the alien the right of appeal. ( 2 ) That when the mental defect from which the alien is suffering is idiocy, imbecility, epilepsy, insanity or fee- ble-mindedness, the decision of the Board must be based on the certificate of the examining medical officer, and the right of appeal is therefore denied; and that the same re- sult follows when the mental defect is not one of those mentioned, and is certified to by the examining surgeon as being such as to be likely to render the alien a public charge or affect his ability to earn a living, or where pre- vious insanity or previous attacks thereof are certified to by the examining surgeon. While the wording of section 10 might seem to imply that even in case of tuberculosis or other loathsome or other dangerous contagious diseases it would be possible for a Board to render an opinion independent of the medi- cal certificate, rule 17, insofar as it applied to such cases, appears in the matter of general practice and application, at least, to follow the law. But for the reasons already given it seems that for the Secretary of Commerce and Labor to insist — if indeed the presence of the foot-note to the present rules and regulations in force is to be con- sidered as mandatory in effect — that in the case of aliens The Existing Immigration Law. 243 classified in subdivison 4 of rule 17 of these regulations excluding opinions must as a matter of law be based on the accompanying medical certificate is to step outside the authority conferred on him for the promulgation of rules to exact due enforcement of the act. Sec. 11. That upon the certificate of a medical officer of the United States Public Health and Marine Hospital Service to the effect that a rejected alien is helpless from sickness, mental or physical disability, or infancy, if such alien is accompanied by another alien whose protection or guardianship is required by such rejected alien, such accompanying alien may also be excluded, and the master, agent, owner, or consignee of the vessel in which such alien and accompanying alien are brought shall be re- quired to return said alien and accompanying alien in the same manner as vessels are required to return other rejected aliens. Buie 5 of the Immigration Kules provides that where in the estimation of the appropriate immigration officials an alien likely to be rejected as helpless under section 11 arrives accompanied by one or more aliens whose protec- tion or guardianship he will, if rejected, require, one of such accompanying aliens (preferably a relative or natural guardian) shall be detained and the determina- tion of his case may be postponed until after that of the alien whom he accompanies Sec. 12. That upon the arrival of any alien by water at any port within the United States it shall be the duty of the master or commanding officer of the steamer, sailing or other vessel having said alien on board to deliver to the immigration officers at the port of arrival lists of mani- fests made at the time and place of embarkation of such alien on board such steamer or vessel, which shall, in answer to questions at the top of said list, state as to each alien the full name, age, and sex; whether married or single ; the calling or occupation ; whether able to read or write; the nationality; the race; the last residence; the 244 The Exclusion and Expulsion of Aliens. name and address of the nearest relative in the country from which the alien came ; the seaport for landing in the United States; the final destination, if any, beyond the port of landing; whether having a ticket through to such final destination; whether the alien has paid his own passage or whether it has been paid by any other person or by any corporation, society, municipality, or govern- ment, and if so, by whom; whether in possession of fifty dollars, and if less, how much; whether going to join a relative or friend, and if so, what relative or friend, and his or her name and complete address; whether evqr before in the United States, and if so, when and where; whether ever in prison or almshouse or an institution or hospital for the care and treatment of the insane or sup- ported by charity; whether a polygamist; whether an anarchist; whether coming by reason of any offer, solici- tation, promise, or agreement, express or implied, to per- form labor in the United States, and what is the alien’s condition of health, mental and physical, and whether de- formed or crippled, and if so, for how long and from what cause; that it shall further be the duty of the master or commanding officer of every vessel taking alien passengers out of the United States, from any port thereof, to file before departure therefrom with the collector of customs of such port a complete list of all such alien passengers taken on board. Such list shall contain the name, age, sex, nationality, residence in the United States, occupa- tion, and the time of last arrival of every such alien in the United States, and no master of any such vessel shall be granted clearance papers for his vessel until he has de- posited such list or lists with the collector of customs at the port of departure and made oath that they are full and complete as to the name and other information herein re- quired concerning each alien taken on board his vessel; and any neglect or omission to comply with the require- ments of this section shall be punishable as provided in section fifteen of this Act. That the collector of customs wfith whom any such list has been deposited in accordance with the provisions of this section, shall promptly notify the Commissioner-General of Immigration that such list has been deposited with him as provided by regulations to be issued by the Commissioner-General of Immigration with the approval of fhe Secretary of Commerce and The Existing Immigration Law. 245 Labor : Provided , That in the case of vessels making regu- lar trips to ports of the United States the Commissioner- General of Immigration, with the approval of the Secre- tary of Commerce and Labor, may, when expedient, ar- range for the delivery of such lists of outgoing aliens at a later date : Provided further , that it shall be the duty of the master or commanding officer of any vessel sailing from ports in the Philippine Islands, Guam, Porto Rico, or Hawaii to any port of the United States on the North American Continent to deliver to the immigration officers at the port of arrival lists or manifests made at the time and place of embarkation, giving the names of all aliens on board said vessel. Like the corresponding section of the preceding act this section provides for delivery by the master of the vessel to immigration officers of lists or manifests of alien passen- gers at the time and place of their embarkation on board such vessel. As to what the manifest shall contain with regard to each alien so embarking there exists but slight difference between this and the corresponding section of the previous act; the only additional requirement being that the name and address of the nearest relative in the country from which the alien came shall appear in the manifest. But it also requires the filing of a similar mani- fest or list of alien passengers taken out of the United States, the object being to collate statistics on emigration of foreigners for comparison with those regarding immi- gration. In order to collect the emigration statistics promptly and with the least possible interference with outbound vessels the department has promulgated a regu- lation 97 whereunder the required data are required to be written on a detachable coupon of the ticket sold outgoing alien passengers, such coupon being detached from the ticket as the alien goes aboard the ship and filed with the immigration officials in lieu of “list or manifest.” It has been held that for the agent of a steamship com- 97 Revised Statistical Rule 19 . 246 The Exclusion and Expulsion of Aliens. pany to ticket an alien desirous of coming to the United States at Halifax, stating that he could come to this coun- try without extra charge would constitute a violation of this section on the part of the steamship officers so doing. 98 Sec. 13. That all aliens arriving by water at the ports of the United States shall be listed in convenient groups, and no one list or manifest shall contain more than thirty names. To each alien or head of a family shall be given a ticket on which shall be written his name, a number or letter designating the list in which his name, and so forth, is contained, and his number on said list, for convenience of identification on arrival. Each list or manifest shall be verified by the signature and the oath of (or) affirma- tion of the master or commanding officer, or the first or second below him in command, taken before an immigra- tion officer at the port of arrival, to the effect that he has caused the surgeon of said vessel sailing therewith to make a physical and oral examination of each of said aliens, and that from the report of said surgeon and from his own investigation he believes that no one of said aliens is an idiot, or imbecile, or a feeble-minded person, or in- sane person, or a pauper, or is likely to become a public charge, or is afflicted with tuberculosis or with a loath- some or dangerous contagious disease, or is a person who has been convicted of, or who admits having committed a felony or other crime or misdemeanor involving moral turpitude, or is a polygamist or one admitting belief in the practice of polygamy, or an anarchist, or under promise or agreement, express or implied, to perform labor in the United States, or a prostitute, or a woman or girl coming to the United States for the purpose of prostitution, or for any other immoral purpose, and that also, according to the best of his knowledge and belief, the information in said lists or manifests concerning each of said aliens named therein is correct and true in every respect. This section is a repetition of the corresponding section of the Act of 1903 except insofar as the incorporation in section 2 of certain additional excluded classes has made 98 United States v. Fielding, 175 Fed. 290. The Existing Immigration Law. 247 necessary additions to this section regarding the scope of the oath of the ships’ officers regarding the status, physi- cal, mental, moral or otherwise of the aliens whose names are given in the manifest. Sec. 14. That the surgeon of said vessel sailing there- with shall also sign each of said lists or manifests and make oath or affirmation in like manner before an immi- gration officer at the port of arrival, stating his profes- sional experience and qualifications as a physician and surgeon, and that he has made a personal examination of each of the said aliens named therein, and that the said list or' manifest, according to the best of his knowledge and belief, is full, correct, and true in all particulars rela- tive to the mental and physical condition of said aliens. If no surgeon sails with any vessel bringing aliens the mental and physical examinations and the verifications of the lists or manifests shall be made by some competent surgeon employed by the owners of the said vessel Subdivision 5 of Rule 2 provides that, when there is not a surgeon on board, the certificate (unverified) of a repu- table surgeon located at the point of embarkation or at the last port of call in the form appearing on the reverse side of the manifest, shall be a sufficient proof of compli- ance with the requirements of section 14 that when no sur- geon sails with the vessel* bringing aliens, their mental and physical examination shall be made by some compe- tent surgeon employed by the owners of the said vessel. Sec. 15. That in the case of the failure of the master or commanding officer of any vessel to deliver to the said im- migration officers lists or manifests of all aliens on board thereof, as required in sections twelve, thirteen, and four- teen of this Act, he shall pay to the collector of customs at the port of arrival the sum of ten dollars for each alien concerning whom the above information is not contained in any list as aforesaid: Provided, That in the case of failure without good cause to deliver the list of passengers required by section twelve of this Act from the master or commanding officer of every vessel taking alien passengers 248 The Exclusion and Expulsion of Aliens. out of the United States, the penalty shall be paid to the collector of customs at the port of departure and shall be a fine of ten dollars for each alien not included in said list ; but in no case shall the aggregate fine exceed one hundred dollars. This section contains as to the master or commanding officer of incoming vessels the same provision as the cor- responding section of the preceding act regarding the im- position of a penalty of ten dollars for each alien concern- ing whom the information required in sections 12, 13, and 14 is not provided. In addition it provides a similar penalty for the violation of so much of section 12 of this act as related to vessels taking alien passengers out of the United States. The obligation of the master of a vessel bringing aliens to the United States is twofold with respect to manifests : First, to deliver manifests of all aliens ; Second, to see that they contain the information required by sections 12, 13 and 14. He is at liberty to group the names of aliens and the data regarding them but must not put more than 30 names on a single sheet. Failure to present a manifest with regard to any one of the aliens, or failure to give re- garding any one of them the information required renders him liable to a fine of ten dollars in each instance. It would seem that in the case of all outgoing passen- gers one general list is all that is required. The penal provision in section 15 does not apparently penalize the failure to deliver the list, but failure to include informa- tion therein as to each outgoing alien, inasmuch as the amount of the fine is, to a limited extent, made to depend on the number of aliens not included therein. As the amount of the penalty to be imposed is to be determined by this method, the section would not in terms appear to have provided any penalty for mere failure to deliver the list. And it seems questionable whether under this pro- viso the master or commanding officer of an outgoing ves- The Existing Immigration Law. 249 sel transporting departing aliens, who had made a com- plete list of such aliens, but had failed to deliver it to the collector of customs at the port of sailing, could be sub- jected to any penalty. Still it may be said in connection herewith that failure to deliver the list would amount to a failure to deliver the required information as to each and every alien included, although in no case could the amount of the fine exceed $100.00. It may be added in this connection that the act imposes no penalty on the master for giving incorrect manifests of the aliens on board where such manifest includes all such aliens and purports to give the required information as to (each. 99 The procedure adopted by the department for collecting fines for failure to manifest as prescribed in this section is as follows : 1. As to incoming manifests. Written notice setting forth wherein the lists or manifests are deficient shall be mailed to or served upon the master of the vessel or the agent of the transportation company concerned, and 60 days from the time of such service allowed within which to place before the immigration officer in charge evidence to show why the statutory penalty should not be collected. If no objection is made, it shall be collected forthwith by the appropriate collector of customs. If objection be made, the full record shall be forwarded to the Bureau and no further action taken until receipt of further notice from the Bureau. 2. As to outgoing manifests. Action similar to that prescribed in the preceding subdivision shall be taken where there is a failure to furnish complete manifests of emigrants ; but for such failure in the case of a departing vessel the total fines collected shall not exceed $100. Sec. 16. That upon the receipt by the immigration offi- cers at any port of arrival of the lists or manifests of in- "United States v. Four Hundred and Twenty Dollars, 162 Fed. 803. 250 The Exclusion and Expulsion of Aliens. coming aliens provided for in sections twelve, thirteen, and fourteen of this Act, it shall he the duty of said officers to go or to send competent assistants to the vessel to which said lists or manifests refer, and there inspect all such aliens, or said immigration officers may order a tem- porary removal of such aliens for examination at a desig- nated time and place, but such temporary removal shall not be considered a landing, nor shall it relieve the trans- portation lines, masters, agents, owners, or consignees of the vessel upon which said aliens are brought to any port of the United States from any of the obligations which, in case such aliens remain on board, would, under the provisions of this Act, bind the said transportation lines, masters, agents, owners, or consignees: Provided , That where a suitable building is used for the detention and examination of aliens the immigration officials shall there take charge of such aliens, and the transportation com- panies, masters, agents, owners, and the consignees of the vessels bringing such aliens shall be relieved of the re- sponsibility for their detention thereafter until the return of such aliens to their care. This section, is to all practical purposes, a re-enactment of the corresponding section of the Act of 1903. The “temporary removal of aliens for examination ” is not a landing. An alien so removed is left in the same position as re- gards his right to land as if he had never been removed from the steamship; 100 and the detention for such exami- nation by departmental officers cannot give rise to the claim that the alien so detained, although the minor child of a naturalized alien, but who has never before been in the United States, has acquired a “dwelling” in this coun- try, as the term is used in Sec. 2172 of the Revised Statutes. 1 Among the obligations imposed upon transportation lines and the officers or agents of the vessel bringing the looUnited States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040; Ekiu v. United States, 142 U. S. 651, 35 Law Ed. 1146; In re Way Tai, 96 Fed. 481. iZartarian v. Billings, 204 U. S. 170, 51 Law Ed. 428. The Existing Immigration Law. 251 alien to the United States is that of detaining him on board, prescribed by section 19 of the act. Section 19 of the Act of March 3, 1903, expressed the same obligation and penalized the “neglect to detain” aliens on board, while the words used in the present act are “fail to detain.” Section 10 of the Act of March 3, 1891, used the words “neglect to detain” in this connection. In construing that act it was held, in the case of Warren y. United States, 2 that the word “neglect” as here used must be considered the equivalent of “fail” or “omit.” This construction was justly criticised in the case of United States v. Spruth, 3 and the decision was overruled in the case of Hackfelt v. United States. 4 The court there said: “If by this re- quirement it was intended to make the shipowner or master an insurer of the absolute return of the immi- grant at all hazards, except when excused by vis major or inevitable accident, it would seem that Congress would have chosen words more indicative of such an intention, and instead of using a word of uncertain meaning would have affixed the penalty in cases where the owner or master omitted or failed to safely return the immigrant illegally brought here ...” It would seem that by substituting in this section the word “fail” for “neglect” Congress acted with direct refer- ence to this decision. Still, while it is possible that by the use of the word “fail” Congress intended to make the per- sons named insurers at all hazards of such detention and return, such a construction is for more reasons than one open to considerable doubt. In the first place, as the court says in the Hackfelt case, “it is difficult to see how a ship- owner could insure the return of such immigrants with- out such confinement or imprisonment as may result in great hardship to that class of individuals who may them- 258 Fed. 559. 371 Fed. 678. 4 197 U. S. 442, 49 Law Ed. 826 ; and see United States v. Pavy, 193 Fed. 1006. 252 The Exclusion and Expulsion of Aliens. selves have had no intention to violate any law of this country.” It is difficult to impute to Congress the inten- tion to have all immigrants kept in irons by the master of the vessel, if it appears to him necessary to do so, in order at all hazards to detain them; 5 still more difficult to im- pute the intent to penalize the master, if, having taken such extreme precaution, any or all of the prisoners were to break their chains and escape to United States terri- tory. Yet this would logically follow were the effect of the section to make the master an absolute insurer of such detention. But there is a second consideration which militates against such a view. Section 16 contains the proviso “that where a suitable building is used for the detention and examination of aliens, the immigration officials shall there take charge of such aliens, and the transportation companies, masters, owners, agents, and consignees of the vessels bringing such aliens shall be relieved of the re- sponsibility of their detention thereafter until the return of such aliens to their care.” Herein consists at least the implication that where the aliens are temporarily be- yond the control of the persons named, the latter are thus far relieved of their responsibility ; evidently on the natural assumption that, being beyond their control, no question of “failing” to detain them can arise. It would seem to follow that, in the absence of express and unmis- takable language making the persons named responsible as absolute insurers of such detention and return at all hazards, which Congress has not used, the section may be well construed to mean that when the power of detention sThe Attorney General has expressed the opinion that the master has the right to put an alien in irons in order to prevent him from unlawfully leav- ing the vessel; but that this may only be done as a last resort and where it appears that nothing else will prevent the unlawful landing of such alien. 24 Op. Atty. Gen. 531, November, 1902. The captain of a ship on which the alien has been placed for return is not liable for his escape, if at the time he was himself on shore, and others were in charge of the ship. United States v. Pavy, 193 Fed. 1006. The Existing Immigration Law. 253 is, for reasons not arising from any act or omission of the master, beyond his control, the failure to detain will not subject him to the penalties imposed by the section. The question of the master’s or owner’s liability for the escape of aliens while within the control of the immigration offi- cers has been passed on judicially both under the Immi- gration and Chinese Exclusion acts; it being held under the Act of March 3, 1891, 6 and under the Chinese Exclu- sion Act of July 5, 1884, 7 that they were not liable for such escape. Sec. 17. That the physical and mental examination of all arriving aliens shall be made by medical officers of the United States Public Health and Marine-Hospital Service, who shall have had at least two years’ experience in the practice of their profession since receiving the degree of doctor of medicine and who shall certify for the informa- tion of the immigration officers and the boards of special inquiry hereinafter provided for, any and all physical and mental defects or diseases observed by said medical offi- cers in any such alien, or, should medical officers of the United States Public Health and Marine Hospital Ser- vice be not available, civil surgeons of not less than four years’ professional experience may be employed in such emergency for such service, upon such terms as may be prescribed by the Commissioner-General of Immigration under the direction or with the approval of the Secretary of Commerce and Labor. The United States Public Health and Marine Hospital Service shall be reimbursed by the immigration service for all expenditures incurred in carrying out the medical inspection of aliens under regulations of the Secretary of Commerce and Labor. Sec. 18. That it shall be the duty of the owners, officers, or agents of any vessel of transportation line, other than those railway lines' which may enter into a contract as provided in section thirty-two of this Act, bringing an alien to the United States to prevent the landing of such alien in the United States at any time or place other than 6 Hackfeld & Co. v. United States, 141 Fed. 9. ^United States v. Seabury, 133 Fed. 983. 254 The Exclusion and Expulsion of Aliens. as designated by the immigration officers, and the negli- gent failure of any such owner, officer, or agent to comply with the foregoing requirements shall be deemed a misde- meanor and be punished by a fine in each case of not less than one hundred nor more than one thousand dollars or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment; and every such alien so landed shall be deemed to be unlawfully in the United States and shall be deported as provided in sections twenty and twenty-one of this Act. By this section the duty is imposed on the persons desig- nated therein of affirmatively preventing the landing of such aliens as they may transport to this country within the territory of the United States at any time and place other than is designated by immigration officers. This section is more stringent in its provisions than the cor- responding section of the preceding Act of 1903 which made it the duty of the officers and owners of vessels bring- ing such aliens only “to adopt due precautions” to pre- vent landing. In this act it is the “negligent failure to prevent” such landing which is prohibited and penalized, whereas the prior act does not penalize the failure to adopt due precautions, but the actual landing or permit- ting to land. One who makes it possible for an alien to land by omitting due precautions to prevent it permits him to land within the meaning of the penal clause of the Act of 1903 ; 8 but this does not apply to the ordinary case of a sailor deserting while on shore leave, 9 nor to the case of a sick alien seaman placed in a hospital through in- ability to leave for home on the vessel on which he came. 10 Sec. 19. That all aliens brought to this country in vio- lation of law shall, if practicable, be immediately sent back to the country whence they respectively came on the vessels bringing them. The cost of their maintenance sSee Taylor v. United States, 207 U. S. 120, 52 Law Ed. 130. slbid. loNiven v. United States, 169 Fed. 782. The Existing Immigration Law. 255 while on land, as well as the expense of the return of such aliens, shall be borne by the owner or owners of the ves- sels on which they respectively came; and if any master, person in charge, agent, owner, or consignee of any such vessel shall refuse to receive back on board thereof, or on board of any other vessel owned or operated by the same interests, such aliens, or shall fail to detain them thereon, or shall refuse or fail to return them to the foreign port from which they came, or to pay the cost of their mainte- nance while on land, or shall make any charge for the return of any such alien, or shall take any security from him for the payment of such charge, such master, person in charge, agent, owner, or consignee shall be deemed guilty of a misdemeanor and shall, on conviction, be pun- ished by a fine of not less than three hundred dollars for each and every such offense; and no vessel shall have clearance from any port of the United States while any such fine is unpaid; Provided , That the Commissioner- General of Immigration, with the approval of the Secre- tary of Commerce and Labor, may suspend, upon condi- tions to be prescribed by the Commissioner-General of Immigration, the deportation of any alien found to have come in violation of any provision of this act, if, in his judgment, the testimony of such alien is necessary on behalf of the United States Government in the prosecu- tion of offenders against any provision of this act: Pro- vided, That the cost of maintenance of any person so de- tained resulting from such suspension of deportation shall be paid from the “immigrant fund” but no alien cer- tified, as provided in section seventeen of this act, to be suffering from tuberculosis or from a loathsome or dan- gerous contagious disease other than one of quarantinable nature shall be permitted to land for medical treatment thereof in any hospital in the United States, unless with the express permission of the Secretary of Commerce and Labor: Provided, That upon the certificate of a medical officer of the United States Public Health and Marine Hospital Service to the effect that the health or safety of an insane alien would be unduly imperiled by immediate deportation, such alien may, at the expense of the “immi- grant fund,” be held for treatment until such time as such alien may, in the opinion of such medical officer, be safely deported. 256 The Exclusion and Expulsion of Aliens. This section deals mainly with the obligations of ship- owners arising in connection with the detention and re- turn of aliens on being again confided to their care after having been excluded by the immigration officers; and is to this extent to be distinguished from the provisions of section 8, which prohibit generally the unlawful smug- gling in of aliens, those of section 9, which prohibit the bringing to United States ports of disabled aliens, and those of section 18 which are directed against the landing of aliens without the knowledge of the masters or owners after the vessels bringing them have arrived in port, but before examination by immigration officials. “or shall fail to detain them thereon , or shall refuse or fail to return them to the foreign port from which they came ” The words "fail to detain” and "failure to return” (aliens brought to the United States) take the place of the expressions "neglect to detain” and "neglect to return” used in the preceding act. This distinction has already been pointed out and made the subject of comment in con- sidering section 16. In construing the corresponding sec- tion of the Act of March 3, 1891, — where the word "neg- lect” is used — the provision was held inapplicable where the facts showed that an alien was carried from his own home by mistake to the United States, refused admission thereto, returned to the master for detention, and left the ship without the latter’s knowledge or consent; 11 and it has been held (obiter) not to apply to a case where the aliens were returned to the care of the master, and where in spite of an agreement with him after being returned on board to ship back on the return voyage, and of having had their pay then and there increased by the captain, they got back ashore by stealth, contrary to the intention of the nMoffitt v. United States, 128 Fed. 375. The Existing Immigration Law. 257 master, evading a watch kept on board by the captain’s orders. 12 In discussing this provision in connection with section 16 attention has already been called to the fact that the Supreme Court has decided that shipowners were not under the earlier acts to be considered as absolute insurers of such return. 13 Refusal to pay maintenance of rejected aliens. Refusal to pay the cost of the maintenance of aliens brought to the United States in violation of law is made a misdemeanor, the commission of which is punished with a three hundred dollar fine, as is the making of any charge for returning such aliens or the taking of any security from them by way of payment. As used in this section the word “charge” has been held to mean some overt act com- mitted in the United States by which the charging party manifests its purpose to demand the money charged from the party charged, and does not include any subsequent relations which are the consequences of the act; and similarly “taking security” for the payment of the charge of deportation has been held not to be a continuous act following the person who took the money by way of se- curity wherever he goes. 14 These prohibitions constitute the only practical means at the command of Congress to protect aliens brought here unlawfully by transportation isUnited States v. Hemet, 156 Fed. 285. isHackfeld & Co. v. United States, 197 U. S. 442, 49 Law Ed. 826; and see United States v. Almond, 6 Phil. Rep. 306; United States v. Pavy, 193 Fed. 1006. ^United States v. Nord Deutscher Lloyd, 186 Fed. 391. Reversed in United States v. Nord Deutscher Lloyd, 223 U. S. 188, 56 Law Ed. . Mr. Justice Lamar said: “When, therefore, in Bremen the alien paid and the defendant received the 150 rubles for a return passage, they created a condition which was operative in New York This retention of the money with such intent” (its retention by the defendants in New York with intent to make charge and secure payment for the alien’s return passage- 1 ‘ was an aturmative violation of the statute. The company could not take the aliens back free of charge, as required by law, and at the same time retain the fare covering the same trip. ’ 1 258 The Exclusion and Expulsion of Aliens. companies, as well as the United States itself, from con- tributing to the expense attendant on the act of transpor- tation, the responsibility for which is justly sought to be placed upon those who, for the sake of the passage money, choose to run the risk of being detected in the attempt to introduce undesirable or disqualified aliens into this coun- try in violation of its laws. Suspension of deportation for purpose of taking testi- mony. With regard to this point Rule 25 provides that: Where the deportation of an alien is stayed so that he may testify concerning violations of the immigration law, the case must be promptly reported to the United States attorney with request that if he decides to institute proceedings he either take the deposition of the alien or secure a court order for his detention as a witness. In either event the Bureau shall be promptly informed as to any action taken hereunder. Landing for Hospital Treatment. In the former act this section prohibited the landing for medical treatment in the hospitals of the United States of any alien certified to be suffering with a loath- some or dangerous disease. By the present section this rule may be relaxed at the discretion of the Secretary of Commerce and Labor, and only by his express permission may the treatment of such persons be allowed. Rule 19 contains the following provisions on this point : Application for hospital treatment. No application for hospital treatment of aliens afflicted with tuberculosis or a loathsome or dangerous contagious disease will be con- sidered unless submitted promptly to the immigration official in charge at the port of arrival (by him to be for- warded to the Bureau), and unless in addition such ap- plication shows (1) That detention or landing for hos- The Existing Immigration Law. 259 pital treatment is necessary to meet the ends of justice and humanity; (2) that the applicant or some one on his behalf is willing and able to deposit at once a sum suffi- cient to pay for treatment for 60 days, or less if a shorter time is estimated as that within which a cure possibly may be affected, and to furnish bond in a penalty of not less than $300 providing that at least 15 days prior to the expiration of said period a further deposit will be made sufficient to coyer cost of treatment for 30 days additional and a remittance of a similar amount 15 days prior to the expiration of the period covered by this deposit, and so on until the alien is cured and permanently landed or the case otherwise disposed of, the bond also to provide that a sum sufficient to defray the cost of forwarding the alien to final destination will be furnished when and if needed, and, in the event the alien is a person who, from infancy or other cause, will require an attendant to accompany him to final destination if landed, or to the country of origin if eventually deported, that such an attendant or funds sufficient to defray cost of employing one will be furnished. The same time shall be allowed for filing ap- plications for hospital treatment as is allowed for the filing of appeals. If on arrival the condition of an alien is such that, in the estimation of the immigration official in charge, the dictates of humanity require that he shall be given imme- diate hospital treatment, such treatment shall be ac- corded. Report and certificate to accompany application . The immigration official in charge who forwards the applica- tion shall furnish a transcript of the board hearing, and a certificate of a Public Health and Marine Hospital sur- geon showing the character and extent of the alien’s af- fliction and estimating the duration of treatment required to effect a cure; and shall state whether or not the pre- liminary deposit has been made, and whether or not he thinks the bond required will be forthcoming in the event 260 The Exclusion and Expulsion of Aliens. that the application is granted; and shall express his views of the case. Action if requirements not observed. If the applica- tion is granted and there is a failure to observe the terms of the bond exacted, report thereof shall be made to the Bureau, to the end that the condition of the bond may be enforced and the alien deported. Any balance of a de- posit remaining unexpended when the alien is cured or released shall be returned to the depositor. The cost of hospital treatment may be charged against the deposit from the time the petition was filed. Admission to hospital not a “landing.” The landing or detention of an alien under this rule shall not be con- strued in any manner to alter the status of the alien with reference to his right to enter or remain in the United States, nor in any manner to affect the liability of trans- portation companies under section 9 or Rules 4 and 26. The expenses of aliens thus landed shall be borne by the alien and not by the transportation companies. 15 Landing of Insane Aliens for Hospital Treatment. The provision that in such cases the expense shall be borne by the government is reiterated in subdivision 4 of Rule 26; and subdivision 2 of Rule 19, following the act, provides that if on arrival the condition of an alien is such that in the estimation of the immigration official in charge, the dictates of humanity require that he shall be given immediate hospital treatment, such treatment shall be accorded. Detention for taking testimony. This is a re-enactment of the corresponding provision in the preceding act. Rule 25 provides that where the deportation is stayed so that he may testify concerning (violations of the immigration law, the case must be promptly reported to the United States attorney with the ^Subdivision 4, rule 26; Opinion Comptroller, January 15, 1908. The Existing Immigration Law. 261 request that if he decides to institute proceedings he either take the deposition of the alien or secure a court order for his detention as a witness. In any event the Bureau shall be promptly informed of any action taken hereunder. Subdivision 4 of Rule 26 provides that in such cases the expense of detention shall be borne by the government. Sec. 20. That any alien who shall enter the United States in violation of law, and such as become public charges from causes existing prior to landing, shall, upon the warrant of the Secretary of Commerce and Labor, be taken into custody and deported to the country whence he came at any time within three years after the date of his entry into the United States. Such deportation, includ- ing one-half of the entire cost of removal to the port of de- portation, shall be at the expense of the contractor, pro- curer, or other person by whom the alien was unlawfully induced to enter the United States or if that can not be done, then the cost of removal to the port of deportation shall be at the expense of the “immigration fund” pro- vided for in section one of this act, and the deportation from such port shall be at the expense of the owner or owners of such vessel or transportation line by which such aliens respectively came: Provided, That pending the final disposal of the case of any alien so taken into custody he may be released under a bond in the penalty of not less than five hundred dollars with security approved by the Secretary of Commerce and Labor, conditioned that such alien shall be produced when required for a hearing or hearings in regard to the charge upon which he has been taken into custody, and for deportation if he shall be found to be unlawfully within the United States. This section deals with the deportation of aliens who have entered the United States in violation of law, and those who have become public charges from causes exist- ing prior to landing. The corresponding section of the Act of 1903 provided that such persons might be deported within two years after arrival; whereas under the present 262 The Exclusion and Expulsion of Aliens. act they may be taken into custody and deported on the warrant of the Secretary of Commerce and Labor within three years thereafter. Arrest and Deportation on Warrant. Aliens who are found by the Secretary to be unlawfully in the United States whether because of unlawful entry in the first place or because found to have become public charges from causes existing prior to the landing are sub- ject to the general provisions of Rule 22 which requires that before the warrant of arrest shall issue there shall have been made a thorough investigation on the part of officers applying for the issuance thereof; that the appli- cation must state facts bringing the alien within one or more of the classes subject to deportation after entry and that the proof of these facts shall be the best that can be obtained. Subdivision 3 of Rule 22 provides that in cases involv- ing the question of whether or not tlie alien has become a public charge from causes existing prior to landing the application in such cases must be accompanied by a medi- cal certificate containing the following: (a) An explicit statement that the alien is a public charge, where, and how, and, if in an institution, the date of admission thereto. (b) A full and accurate statement of the alien’s disa- bilities, mental or physical; also whether or not a com- plete cure is possible ; and if yes, when ; and if not, whether partial cure may be expected; and to what extent the alien will thereafter be self-supporting. Also, in insane cases, recovered or apparently recovered from the attack, whether new attacks are to be expected. (c) Whether or not the disabilities described consti- tute the sole causes why the alien is a public charge ; any other causes to be stated. (d) Whether the causes which render the alien a pub- lic charge existed prior to landing or arose subsequent The Existing Immigration Law. 263 thereto, and in the former case the reasons in detail justi- fying such a conclusion. Where the Bureau so directs, the application must be further accompanied by a complete copy of the clinical or general history of the case as shown by the hospital records, including the statements of relatives and friends. If deemed advisable by the local immigration officer, it may be further accompanied by the certificate of an offi- cer of the Public Health and Marine Hospital Service in relation to the alien’s condition. The term “likely to become a public charge” has been held to include the likelihood of becoming a criminal as well as a pauper ; 16 thus there is no reason why, if, after the entry of the alien and within the statutory period there is proof that such a condition existed prior to his entry, he should not be subject to deportation under this section. Expense of Deportation — how and by whom paid. Under the prior act the expense of the deportation “in- cluding one-half of the inland transportation to the port of deportation” is to be borne by the “person bringing such alien into the United States, or if that cannot be done then at the expense of the Immigrant Fund.” Under the present section the “deportation including one-half of the entire cost of removal to the port of deportation shall be at the expense of the contractor, procurer, or other person by whom an alien was induced to enter the United States.” In case this cannot be done the cost of removal to the port of deportation shall be at the expense of the appropriation for the enforcement of the immigration law ; but, whereas under the prior act the owners or owner of the vessel were not under the expense of returning such alien from the port of deportation, in case the person who brought him to the United States could be found, by this act such expense shall in such case be borne by the owners of the vessel or transportation line by which such alien ^United States v. Williams, 175 Fed. 274. 264 The Exclusion and Expulsion of Aliens. came to the United States. Neither this section nor the following is retroactive to the extent of imposing on the ship owner liability to pay for the return of an alien woman who was brought here under no disability when the act of 1903 was in force, and, in July 1910 was found practicing prostitution and was thus subject to deporta- tion under the provisions of the Act of March 26th of that year. 17 The term “one-half of the entire cost of removal to the port of deportation” substitutes the term “one-half of the cost of inland transportation to the port of deportation” used in the corresponding section of the Act of 1903. The entire cost of removal might well be deemed to mean the sum of the expense involved in the removal of the alien. The provision of the earlier statute was held to mean “the cost of carrying the alien from the inland place where he may be detained to the port of deportation.” 18 The effect of the present provision seems to be that the person chargeable with the expense must bear not only one-half of that involved by the act of removing the alien to the port but one-half of the expense incurred by the officer or offi- cers in arriving at the inland place. The provision that such alien may be released under bond in the penalty of not less than $500, with security approved by the Secretary of Commerce and Labor, condi- tioned on his appearance for hearing with regard to the charge upon which he has been taken into custody, or for deportation, is new, and an addition to the preceding sec- tion. Release under bond. Subdivision 5 of Rule 22 provides that the amount of any bond under which an arrested alien may be released shall be $500, unless different instructions are given by the Department, which, also shall, prior to release, approve ^United States v. North German Lloyd, 185 Fed. 158. isUnited States v. Hamburg American liine, 159 Fed. 104. The Existing Immigration Law. 265 the bond, except that the approval of the local United States attorney as to form and execution shall be suffi- cient where, to avoid delay, the immigration officer in charge deems it proper to submit the bond to such at- torney for approval. Aliens who are unable to give bail shall be held in jail only in case no other secure place of detention can be found. Sec. 21. That in case the Secretary of Commerce and Labor shall be satisfied that an alien has been found in the United States in violation of this act, or that an alien is subject to deportation under the provisions of this act or of any law of the United States, he shall cause such alien within the period of three years after landing or entry therein to be taken into custody and returned to the country whence he came, as provided by section twenty of this act, and a failure or refusal on the part of the mas- ters, agents, owners, or consignees of vessels to comply with the order of the Secretary of Commerce and Labor to take on board, guard safely, and return to the country whence he came any alien ordered to be deported under the provisions of this act shall be punished by the imposition of the penalties prescribed in section nineteen of this act : Provided , That when in the opinion of the Secretary of Commerce and Labor the mental or physical condition of such alien is such as to require personal care and at- tendance, he may employ a suitable person for that pur- pose, who shall accompany such alien to his or her final destination, and the expense incident to such service shall be defrayed in like manner. Section 21 provides for the deportation of any alien — that is aside from the class to which the provisions of the preceding section particularly apply — in case the Secre- tary of Commerce and Labor is satisfied that such alien is in the United States in violation of this act, or that such alien is subject to deportation under the provisions of this act or of any law of the United States, such alien to be taken into custody and returned to the country whence he came as provided by section 20. The provision as to aliens subject to deportation under 266 The Exclusion and Expulsion of Aliens. the provisions of any law of the United States does not ap- pear in the act of 1903. The penalties of the former cor- responding section have been maintained in this act to apply to vessels whose masters, agents, owners, or con- signees have failed to comply with the order of the Secre- tary of Commerce and Labor relative to such deportation, being the same as the penalties imposed by section 19. This section contains a new provision to the effect that when a deported alien requires personal care and attend- ance the Secretary of Commerce and Labor may employ a suitable person to attend such alien on his or her return. In Rule 23 the Secretary has provided, at the request of many of the largest transportation companies, a means whereby this special care and attention may be provided by officers of the vessels, reports thereof being made to the Secretary — an arrangement which obviates the necessity of placing government attendants or nurses on the vessels. But the Secretary reserves the right to do so in case a steamship company fails to comply fully with the rule made in its interests. Rule 23 which deals with this subject contains the fol- lowing provisions : (1) Where the immigration authorities find that an alien about to be deported (whether after rejection by a board or on Department warrant) requires special care and attention, the steamship company concerned must provide such care and attention as his condition calls for, not only during the ocean voyage, but also as hereinafter provided during the foreign inland journey. (2) The alien shall be delivered to the master or first or second officer of the vessel by which deportation is to occur, together with the appropriate form, also a dupli- cate carbon of sheet “A” thereof. The receipt and sheet “A” shall (except as to signature) be filled out by an im- migration officer. The receipt attached to sheet “A” shall be signed by the ship’s officer to whom the alien has been delivered and returned forthwith to the immigration offi- The Existing Immigration Law. 267 cer making delivery. Sheets “B” and “C” shall be re- tained by the ship’s officer and in due course filled out by the agents or persons therein designated and by them re- turned by mail as therein provided. (3) From the foreign port of debarkation the steam- ship company must forward the alien to destination in charge of a proper custodian (all expenses to be borne by such company), except only in cases where foreign public officials decline to allow such custodian to proceed and themselves take charge of the alien, which fact must be shown by signing the form provided in the lower half of sheet “C”. Where the foreign public officials take charge not at the port of debarkation, but at an interior frontier, both forms on sheet “C” must be filled out, the former in relation to the inland journey as far as such frontier. (4) Whenever, without excuse satisfactory to the im- migration officer in charge at the port of embarkation, a steamship company has failed for a period of 90 days after departure of an alien requiring special care and at- tention under this rule to comply with any of the terms thereof, including where it has failed to return sheets “B” and “C” properly filled out, such immigration officer shall forthwith report this fact to the Bureau, and thereafter the Secretary of Commerce and Labor will without further notice and during such period as he shall determine, ex- ercise his right (sec. 21) to employ suitable persons to accompany to their final destinations aliens deported on a vessel of such steamship company requiring special care and attention. Instructions as to compensation of such attendants, their mode of travel, their right of access to the alien during the ocean voyage, and other necessary matters will be given in each case as it arises. The Warrant of the Secretary of Commerce and Labor. The right of the Secretary to issue the warrant is not impaired or taken away by the fact that it is directed against aliens who have been allowed to land under the 268 The Exclusion and Expulsion of Aliens. unanimous decision of a board of special inquiry ; 19 and the warrant need not be signed by the Secretary, but is valid if signed by the Assistant Secretary . 20 A warrant of arrest alleging that an alien is unlawfully in the United States in that he had been convicted or had admitted hav- ing committed prior to landing a felony or other crime or misdemeanor involving moral turpitude will support an order of deportation based, first, on such conviction, sec- ond, on the fact of having admitted the commission of such crime or crimes, and third, on the fact that he was likely to become a public charge. The court held that this last conclusion was wholly within the power of the Secretary to draw, even though not alleged in the warrant, inasmuch as the allegations of criminality alleged in the warrant and duly proven were of themselves sufficient to justify such a conclusion. The Court further found that the alien was advised at the outset that the authorities meant to rule thereon as a ground for deportation and that there was no requirement either in the act or in the promul- gated regulations that the warrant must state the alleged grounds . 21 On the other hand, it has been held that a warrant of arrest stating “that the said alien is a member of the ex- cluded classes in that he imported a woman for an immoral purpose and that he has been convicted of or admits hav- ing committed a felony or other crime or misdemeanor involving moral turpitude prior to his entry into the United States,” is insufficient, not being specific in that it did not state who the woman was or for what immoral purpose she was imported, whether the arrested alien was convicted of or merely admitted the commission of a crime, or whether it was either a crime or misdemeanor involving moral turpitude ” 22 and to the same effect, where isPearson v. Williams, 202 U. S. 281, 50 Law Ed. 1029. 2«United States v. Eedfern, 180 Fed. 506. ziUnited States v. Vvilliams, 175 Fed. 274. 22United States ex rel. Huber v. Sibray, 178 Fed. 144. The Existing Immigration Law. 269 the warrant charged that the alien woman was a member of the excluded class because she entered for an immoral purpose, where the warrant did not specify what the im- moral purpose was . 23 But on the contrary it has been held that a warrant is sufficient which charges that the alien is a member of the excluded classes in that he is a contract laborer, and was induced or solicited to migrate to this country by an offer or promise of employment or in consequence of an agreement not written or printed ex- press or implied, to perform manual labor in the United States, the warrant not being criminal in its nature . 24 Of the three decisions just cited, the first two are wholly irreconcilable with the third. The first two were reversed by the Circuit Court of Appeals 25 not, however, on the question of the sufficiency of the warrant, but on the ground that the aliens being enlarged on bail at the time the writ of habeaus corpus issued, its issue was legally unjustifiable, there being no “restraint.” The test of sufficiency given in the Sibray cases “that it should give to thb alien sufficient information of the spe- cific act or acts ... so that he can offer testimony in refu- tation of the charge at the hearing” is at least limited by the Court in the Williams case , 26 which drew attention to the fact that the applicant “was advised at the outset of the hearing” of the ground on which the authorities in- tended to rule. At the same time, it must be admitted that the two decisions are not in pari passu as to the re- quisites of the warrant, particularly with regard to the necessity of specifying the particular crime or misde- meanor the conviction or admission of commission of which forms the ground of deportation. And it has been held that a warrant of arrest will not support an order 2 3United States ex rel. Statlichnitzer v. Sibray, 178 Fed. 150. 2 *Ex parte Michele, 188 Fed. 449. 2 5United States ex rel. Hahn, Statlichnitzer and Kupples, v. Sibray, 185 Fed. 401. 2 *Supra; United States v. Williams, 175 Fed. 274. 270 The Exclusion and Expulsion of Aliens. for deportation where the warrant charges violation of the act of Congress approved Feb. 20, 1907, with speci- fications which appear to be within the expressed terms of section 2 thereof to the effect that the alien entered as a “contract laborer,” when it was proved that, as a matter of fact the alien entered the United States long prior to the Act of February 20, 1907, under the Act of March 3, 1903, which does not prohibit the entrance of such laborers; 27 nor where it is issued for the purpose of deporting an alien domiciled in the United States on the ground that he imported an alien woman for immoral pur- poses when he has already been tried and acquitted of the crime in the courts, as the right to prosecute criminally and the right to deport are inconsistent as concurrent rights and the Act of March 26, 1910 provides that the right to deport is dependent on a prior conviction. 28 De- portation may however be based on a warrant describing a Chinese woman as “Sally Doe,” where it appears from her own testimony that she is a Chinese prostitute and not entitled to remain in the United States. 29 As to what the warrant of the Secretary of Commerce and Labor shall contain, and as to how far the facts con- tained therein shall apprise the alien arrested thereon of the facts on which his arrest is based, the act contains no provision whatsoever. It may be said, on the one hand, that it is no more than fair that the warrant state those facts in such a way that the alien is enabled thereby to apprehend the meaning of its contents and be enabled to prepare a defense against the proceedings instituted against him with a view of depriving him of a home perhaps already established, of association with his friends and relatives, and, above all, of the benefits of the institutions of the country which he has chosen as the 27Davies v. Manolis, 179 Fed. 818. 28Lewis v. Frick, 189 Fed. 146, reversed in 195 Fed. 693 ; and see ex parte Pouliot, 196 Fed. 437 in accord with the reversing decision and sustaining the Secretary’s warrant of arrest. 2»Wong Chun v. United States, 170 Fed. 182. The Existing Immigration Law. 271 land of his domicile, and for which he has" given up that former home to which he has no desire to return. On the other hand, it may be said with regard to proceedings brought under the immigration act that they are not crimi- nal by nature, and that therefore the strict requirements of criminal procedure have no application; that they, like proceedings under the Chinese exclusion acts, are simply the mode provided by Congress for the removal to their own country of aliens who have no right to be here. There is no especial significance in the word “warrant”; the term “order” might have been used with equal accuracy in de- scribing the Secretary’s authority for arresting an alien found here in disregard of the immigration law. But the fact that the word “warrant” is so frequently used in criminal proceedings, and that strict requirements are observed in criminal procedure regarding its form and contents, seems, perhaps, to have unconsciously swayed those courts which have insisted upon a more or less strict conventionality of statement and conformance to the re- quirements of criminal procedure; all of which indicates that they viewed a proceeding of this nature more in the light of a prosecution for crime — as far as the actual effect on the deportee is concerned — than would seem to be justi- fied either by the nature of the proceedings or by the de- cisions of the Supreme Court. The three year period. Section 20 of the Act’ of 1903 provided that the alien falling thereunder should be deported within two years. “The statute says he shall be deported within two years, not that deportation proceedings shall be brought or com- menced, or that he shall be held or arrested for deporta- tion within that period” 30 following a similar holding under the Act of March 3, 1891. 31 The present section says “taken into custody and deported,” and section 21 3°Botis v. Davies, 173 Fed. 996. 31 In re Russomanno 128 Fed. 528. 272 The Exclusion and Expulsion of Aliens. uses the words “taken into custody and returned.” Yet these sections have been interpreted to mean that in a case where the three year period will have passed since the entry of such alien before deportation is physically pos- sible, but not where the proper proceedings have been in- stituted, the Secretary of Commerce and Labor still has jurisdiction . 32 It has been held that it begins to run from the date of the last entrance of the alien 33 and on the other hand that it begins to run from the time of his first entrance into the United States 34 and that the Government is entitled to the whole of the last day and in addition thereto a reasonable time in which to deport . 35 Which of these two views is the correct one seems to de- pend on the meaning of the term “entry” taken in con- nection with the general purpose and intent of the immi- gration acts. While the proceedings, as has been shown , 36 are not penal in nature, the effect upon the alien deported under such provisions is practically so; therefore there is good ground for as liberal an interpretation thereof as would not do violence to the true meaning and intent of the statute, taken as a whole. Moreover the effect of the provisions of both sections, not only on the alien but on the -transportation companies or agencies whiclh ,have brought him to this country, is punitive, and this would seem to afford additional ground for a strict construction thereof. Yet it should be borne in mind that the obvious purpose of these sections is not so much to place a hard and fast limitation on the period within which the Secre- tary of Commerce and Labor must deport persons falling thereunder, as to grant him the full extent of the three- year period in which to satisfy himself as to the existence of facts and circumstances, often unavailable at the time 32United States v. Redfern, 180 Fed. 506. 33United States v. Hook, 166 Fed. 1007. 34Redfern v. Halpert, 186 Fed. 150. 35United States v. International Mercantile Marine Co., 186 Fed. 669. s^Ante, p. 6. The Existing Immigration Law. 273 of entry, which may constitute either direct or inferential proof of the lawfulness or unlawfulness of the presence of the parties — and, after having so determined, to institute or refrain from instituting proceedings, as the circum- stances may require. The issuance of the Secretary’s war- rant within the three-year period is sufficient to bring about the legal deportation of an alien found to be here within three years after his arrival, although the execu- tion of the order of deportation cannot take place within that period because of the incarceration of the alien run- ning over the period as the result of his conviction for a crime committed in the United States; 37 and as the de- cision of board of special inquiry permitting an alien to enter is not final it will constitute no bar to his deporta- tion within the three-year period. 38 Persons to whom applicable. The aliens subject to arrest and deportation within the three year period are those who enter the United States and, while aliens, become public charges from causes ex- isting prior to landing, or those otherwise subject to de- portation under this act or any law of the United States. It follows that a contract laborer who entered the United States as such before the act went into effect, and under the Act of 1903, which did not exclude contract la- borers, is not unlawfully in the United States under this or the preceding act. 39 The possession of a passport is- sued by a foreign government to an alien otherwise ex- cludable is not a bar to the operation of the section with regard to him; 40 nor it has been held, can an alien prosti- tute who left the United States on March 7, 1908, after a residence of more than three years, and returns in June, 37Matsumura v. Higgins, 187 Fed. 601. 38 Pearson v. Williams, 136 Fed. 734. 39Botis v. Davies, 173 Fed. 996; Davies v. Manolis, 179 Fed. 818. 4°United States v. Redfern, 180 Fed. 506. 274 The Exclusion and Expulsion of Aliens. 1908, claim exemption from the effects of this section on being arrested here in September, 1909. 41 This section was held likewise to apply to the case of a Chinese woman who was admitted to the United States in 1906 as the wife of an American citizen, but was arrested within the three year period, after the passage of the act, for being engaged in acts of prostitution. Two facts in that case demanded the particular attention of the court; the claim that she assumed the status of her husband, and was thus not subject to the operation of the act, and that, as section 43 of the act specifically maintains in force the Chinese exclusion acts, she was subject to their operation only and not to that of the immigration act. But the court held that, although married to an American citizen, being Chinese she was not, under the naturalization laws of the United States, capable of naturalization, and that, whatever her rights were, they were not those of an Ameri- can citizen ; second, that section 43 did not limit the appli- cation of the present act to aliens other than Chinese. 42 There was also some question as to whether or not the alleged marriage was bona fide. The government was not of course bound by the decision of admission based on the ground that the marriage was made in good faith and could at any time thereafter, if a mock ceremony was found to have been entered into for the sole purpose of avoiding the effect of the exclusion or immigration laws, have the alien deported if found to be unlawfully in the United States. Application of section to Chinese. Section 43 contains the proviso that “this act shall not be construed to repeal, alter, or amend existing laws re- lating to the immigration or exclusion of Chinese persons, or persons of Chinese descent.” The courts have 41 In re Hoffman, 179 Fed. 839; and see United States v. Sprung, 187 Fed. 903. *2Looe Shee v. North, 170 Fed. 566. The Existing Immigration Law. 275 consistently held that the existence of disabilities which exclude aliens generally from admission into the United States under this act apply with equal force to aliens of Chinese nationality; 43 it follows that the rights of an alien as a Chinese merchant cannot be brought in ques- tion in proceedings before the Department of Commerce and Labor against him in the capacity of an alien viola- ting the Immigration Act of February 20, 1907 ; 44 nor can a Chinese alien who has entered this country in violation of the Immigration Laws claim as of right a trial before a United States Court as provided in the Chinese Exclu- sion Acts. 45 Nevertheless, while the District Court, in the case of Ex parte Wong You et al. 46 was particularly emphatic in holding that Chinese persons unlawfully in the United States are, equally with all other aliens, sub- ject to deportation under sections 20 and 21 of the immi- gration act, the Circuit Court of Appeals for the second circuit overruled that decision. 47 The exact question at issue, decided in the affirmative by the lower court and in the negative by the Circuit Court of Appeals was whether or not sections 20 and 21 apply to Chinese la- borers. The appellate court held that laborers of that race, “being subject to removal according to the provision of the Chinese exclusion laws, are not subject to removal in accordance with the procedure of the immigration act .... Chinese laborers are excluded by the Chinese act. All other Chinese persons, not being excluded by that act are subject to the provisions of the Immigration Act. A Chinese laborer, with or without a loathsome disease can- not enter at all. The Chinese act covers the case...” The ground of the decision, therefore, was the old maxim cf law (£ generalia specialibus non derogant” The provision of section 21 giving the Secretary of Com- 43 In re Lee Shee Wing, 164 Fed. 506. *±Ex parte Li Dick, 176 Fed. 998. 4 5 Ex parte Li Dick, 176 Fed. 998. 46174 Fed. 674. 47 Ex parte Wong You, 181 Fed. 313. ) ; 276 The Exclusion and Expulsion of Aliens. merce and Labor the right to deport aliens found to be subject to deportation under the provisions of this act, or of any law of the United States, has already been ad- verted to. No reference was made to this provision by the Circuit Court of Appeals, which, in applying the rules of statutory interpretation on which its conclusion was based limited itself to the consideration of the general effect of the immigration act on persons of the Chinese race in connection with section 43 of the immigration act. At the time of the passage of the present act, which re- pealed the Act of March 3, 1903, and all acts and parts of acts inconsistent with the new act, but specifically kept in force the Chinese exclusion acts, the only law of the United States dealing with the exclusion of aliens other than such sections of prior immigration acts as were not inconsistent with the provisions of the Act of 1907, was the law providing for the exclusion of Chinese. It is true that in specific terms the provisions of the Chinese ex- clusion acts were kept in force; but if the intention of Congress was to keep them in force to the exclusion of the operation of the immigration act to the case of Chi- nese laborers, as a class deportable under the Chinese acts, the provision of section 21 that the Secretary of Com- merce and Labor may deport any alien found unlawfully in the United States subject to deportation under any law of the United States is surplusage, and devoid of any sig- nificance whatsoever. Since, however, it is only as a last resort that the expressions of Congress should be viewed as being wholly without meaning, it is proper to inquire whether, in imputing to that body the intention to make both the Chinese exclusion acts and the immigration act — in so far as they provide for the deportation of aliens found to be unlawfully in the country, — apply equally to Chinese laborers, there is any good reason why Congress may not do so. The Circuit Court of Appeals seems to have been of the The Existing Immigration Law. 277 opinion that either the Secretary of Commerce and Labor under this section, or the United States Commissioner under the Chinese acts, had exclusive jurisdiction to de- port Chinese laborers found unlawfully in the United States; in other words, that both could not have jurisdic- tion over the same class ; that the Immigration act must be construed as being applicable to Chinese persons only in so far as it supplied the defects of the Chinese acts, and that where, under the latter, the terms of exclusion were absolute as to a given class, the Immigration act could not be deemed to supply a defect or remedy for which there was no need. The question of whether Congress has the power to deport Chinese laborers under both the immigra- tion and Chinese exclusion acts was not considered; the court merely assumed that Congress did not do so in this instance; hence the court’s application of the statutory rule of interpretation that the immigration act, being a general statute, silently excludes from its operation the cases provided for in the special statutes (the Chinese Ex- clusion acts) preceding it. It is not perceived however, what need exists for the application of this principle of construction. Leaving aside for the moment all consideration of the effect of the general power to deport vested in the Secretary under section 21, there seems to be no principle of international or municipal law, by which Congress, as the mouthpiece of the sovereign State, is limited to prescribing any form of procedure for the purpose of exercising its inherent right to exclude or expel aliens as long as the modes desig- nated are not such as to wantonly offend the law of na- tions and are not prohibited by the Constitution. If this view be correct Congress is not limited to the adoption of a single method, or bound to exact uniformity in the modes which it may adopt; and this being so, it is not perceived why the courts should feel called upon to designate which 278 The Exclusion and Expulsion of Aliens. form of procedure should be followed to the exclusion of the other. 48 But if it is alleged that by such a construction Chinese laborers are deprived of their right under the Chinese ex- clusion law to a judicial determination of their right to remain, it may be pointed out, in the first place, that it is not provided in terms by the act that the administra- tive determination of that right is final; second that the act does not give jurisdiction to the Secretary to the gen- eral exclusion of that of United States Courts and Com- missioners, but provides that he may pass on such cases as are brought administratively ; and third, that assuming that the effect of section 21 was to absolutely deprive per- sons of the Chinese race coming within its operation of the right to a judicial determination of their right to remain, the power of Congress to do this is not open to question. And while it may well be said that the methods hitherto adopted under the provisions of the exclusion laws for the deportation of Chinese persons similarly circumstanced have seemed sufficiently drastic, the provisions of section 21 if applicable to them, have at least the merit that they do not single them out as the special objects of onerous legislation, but deal with them on an equal basis together with all aliens of other nations unlawfully in the United States. Whether or not this section applies to aliens who have already acquired a residence in the United States, and re- turn to resume it, depends in part on whether or not the word “entry” is meant to include the act of entering the United States as an incident of such return. As this in- volves the broad question as to whether or not the immi- gration act is applicable to aliens who have already estab- lished a domicile in the United States, which is discussed 48This case was reversed by the Supreme Court of the United States in the case of United States v. Wong You, 223 U. S. 67, 56 Law Ed. . The Existing Immigration Law. 279 elsewhere 49 it would seem to require no further comment at this point. Under this section, as well as under the provisions of the exclusion acts relative to the extent of proof of lawful presence of the alien in this country, the test is simply whether or not the proof satisfies the Secretary of Com- merce and Labor that the alien’s presence is lawful. 493. The extent to which the decision of the Secretary (or that of a board of special inquiry in cases of entry) is binding on the courts is made the subject of another chapter hereof. 50 Sec. 22. That the Commissioner-General of Immigra- tion, in addition to such other duties as may by law be assigned to him, shall, under the direction of the Secre- tary of Commerce and Labor, have charge of the adminis- tration of all laws relating to the immigration of aliens into the United States, and shall have the control, direc- tion, and supervision of all officers, clerks, and employees appointed thereunder. He shall establish such rules and regulations, prescribe such forms of bond, reports, en- tries, and other papers, and shall issue from time to time such instructions, not inconsistent with law, as he shall deem best calculated for carrying out the provisions of this act and for protecting the United States and aliens migrating thereto from fraud and loss, and shall have authority to enter into contract for the support and re- lief of such aliens as may fall into distress or need public aid; all under the direction or with the approval of the Secretary of Commerce and Labor. And it shall be the duty of the Commissioner-General of Immigration to de- tail officers of the immigration service from time to time as may be necessary, in his judgment, to secure informa- tion as to the number of aliens detained in the penal, re- formatory, and charitable institutions (public and pri- vate) of the several States and Territories, the District of 49 Chapter on Status, post , p. 427. 49 aBut in proceedings under the immigration act the Government must make out a prima facie case of unlawful presence. soChapter on the Judicial Review of Administrative Decisions, post, p. 477. 280 The Exclusion and Expulsion of Aliens. Columbia, and other territory of the United States and to inform the officers of such institutions of the provisions of law in relation to the deportation of aliens who have become public charges : Provided, That the Commissioner- General of Immigration may, with the approval of the Secretary of Commerce and Labor, whenever in his judg- ment such action may be necessary to accomplish the pur- poses of this act, detail immigration officers, and also sur- geons, in accordance with the provisions of section seven- teen, for service in foreign countries. Departmental Rules and Regulations. The only limitation imposed on the discretion vested in the Commissioner-General of Immigration (under the di- rection of the Secretary of Commerce and Labor) to pre- scribe departmental rules supplementary to the provisions of the act seems to be that such rules shall not be incon- sistent with the act itself, and shall be calculated for car- rying out its provisions and for protecting the United States and aliens immigrating thereto from loss or fraud. The validity of departmental rules issued under the au- thority of the Secretary of Commerce and Labor, both in connection with the Chinese exclusion laws and the im- migration acts ( or of the Secretary of the Treasury before him ) has been passed upon not infrequently by the courts. They have the force and effect of law when not incon- sistent with the provisions of the acts themselves, or of the constitution of the United States, or the treaties of this country with foreign powers, and are binding on the courts . 82 It follows that where the only immediate au- thority for departmental acts is to be found in the rules themselves, the validity depends on whether or not they fulfil the requirements of the departmental regulations. Thus where the rules of the Department of Commerce and Labor designate the conditions under which warrants of deportation shall issue, they can, in order to be valid, 62 Ex parte Chow Chok, 161 Fed. 627 ; Fok Young Yo v. United States, 185 U. S. 296, 46 Law Ed. 917. The Existing Immigration Law. 281 issue only as prescribed by the conditions set out. 63 Sometimes the rules are not only authorized by the pro- visions of the municipal law, but by treaty as well. Thus the departmental regulations of September 28, 1889, the purpose of which was to enable Chinese persons to exer- cise the privilege of transit across the United States, being in force at the time of the ratification of the treaty of December 8, 1894, between the United States and China, were not only authorized by section 8 of the Act of September 13, 1888, but by the treaty itself, which pro- vided for the privilege of transit, and recognized the va- lidity of those regulations, and agreed to the modification thereof which took the form of the regulations of Decem- ber 8, 1900. 54 The power to prescribe rules for the enforcement of the immigration or Chinese exclusion acts includes the power to prescribe rules of evidence relating to presumptions and to the burden of proof in determining an alien’s right to admission. 55 But the application of the rules can ex- tend only to persons subject to the operation of the act; thus in construing the application of old rules 1 and 2 of the Department of Commerce and Labor, they were held to apply only to aliens entering the United States for the first time, and not to returning aliens. 56 Although the pay- ment of a head tax was not required of aliens in transit by the Act of 1903, Rule 15 of the Immigration regula- tions of August 1903 (rule 1 of the present regulations), issued for the purpose of enforcing that act and requiring a deposit of the amount of the head tax by the masters or owners of the vessels bringing aliens to United States ports, was held valid, 57 as was rule 24 of the regulations of July 1907 (New Rule 12), which designates certain 63 Ex parte Avakian, 188 Fed. 688. 54Fok Young Yo v. United States, 185 U. S. 296, 46 Law Ed. 917; In re Lee Gon Yung, 111 Fed. 998. 55 In re May Quong Shing, 125 Fed. 641. 6Q Ex parte Ng Quong Miung, 135 Fed. 378. 57Stratton v. Oceanic Co., 140 Fed. 829. 282 The Exclusion and Expulsion of Aliens. ports on the Canadian border as ports of entry for aliens, and provides that any alien entering across the border at any other point shall be deemed to have entered unlaw- fully, and shall be arrested and deported. 58 On the other hand, rule 21 of the Immigration Regula- tions of July 1907 (present rule 11), providing that, if Japanese or Korean laborers present themselves for ad- mission without passports, it shall be presumed (1) that they did not possess on departure from Japan or Korea any passport entitling them to come to this country, and (2) that they did possess at that time a passport lim- ited to Mexico, Canada or Hawaii, has been held invalid, as beyond the power of the Commissioner-General to pre- scribe. 69 The Court, was, however, apparently unaware that the rule which included this provision was prescribed by the Secretary in the exercise of the authority con- ferred upon him by this section and the additional powers conferred upon him by the President’s proclamation of March 14, 1907. This proclamation was issued in ac- cordance with the proviso of section 1 of this act — already adverted to, 60 — authorizing the president to prohibit the entrance of alien laborers into this country whenever it should appear that passports issued to them by their re- spective sovereigns were being used to the detriment of labor conditions in this country. Availing himself of the powers thus conferred, the Secretary of Commerce and Labor reached an understanding with the appropriate Japanese authorities whereby it was agreed, among other things, that the specific regulations which met with the Court’s disapproval in the decision above cited should go into effect. 81 Again, rule 23 of the Chinese Regulations of 1903, re- 68 Ex parte Hamaguchi, 161 Fed. 185. 59United States v. Hemet, 156 Fed. 285. so Ante, p. 201. 6iSee Annual Report of Commissioner General of Immigration for 1910. The Existing Immigration Law. 283 quiring that section 6 certificates presented at ports of entry by Chinese persons should be retained in the pos- session of the Government officials, was held invalid on the ground that the certificates, being the sole evidence on which the right to enter or remain could be established should not be taken from the persons interested in the establishment of that right. 62 While the general principle on which the decision turned seems unquestionably sound it is not thought, nor does the Department take the posi- tion, that absence of such a certificate from the possession of a Chinese person of the exempt class resident in this country renders him ipso facto liable to deportation. It may be added that while the Act of 1882 as amended makes the certificate the only evidence whereby the right to enter may be proven, no provision exists in any of the acts regarding the exclusion of Chinese to the effect that it shall constitute the only evidence of the right to remain. Another example of where a departmental rule was held invalid is to be found in a decision rendered in a com- paratively early case, 63 where the Court held Treasury Department Circular of October 19, 1897, authorizing the exclusion and deportation of one parent of a diseased minor alien invalid and unwarranted by the statutes then in force. Provisions for the relief or support of aliens. So much of this section as confers authority upon the Commissioner-General to enter into contracts for the sup- port and relief of aliens who fall into distress or need public aid is supplemented by rule 24 of the Departmental regulations, which provides that any alien who is a lawful resident of the United States and who has become a public charge from physical disability arising subsequent to landing may, with his consent and the approval of the Bureau, be deported within one year from date of landing, 62Toy Tong v. United States, 146 Fed. 343. 63 In re Kornmehl, 87 Fed. 314. 284 The Exclusion and Expulsion of Aliens. at Government expense, provided he is delivered to the Immigration officers at a designated port free of charge. If the alien’s deportation is directed, the charges incurred for his care and treatment in any public or charitable in- stitution, from the date of notification to an immigra- tion officer until the expiration of one year after landing, may be paid by the Bureau at such rates as it shall accept as reasonable. Sec. 23. That the duties of the Commissioners of Immi- gration shall be of an administrative character, to be pre- scribed in detail by regulations to be prepared under the direction or with the approval of the Secretary of Com- merce aiid Labor. The deportation regulations contain no provisions is- sued with direct reference to this section; but commis- sioners of immigration and other officials in charge of im- migration stations, or districts perform their duties in ac- cordance with instructions, oral or written, issued from time to time by the Commissioner-General or the Secre- tary of Commerce and Labor. Sec. 24. That immigrant inspectors and other immigra- tion officers, clerks, and employees shall hereafter be ap- pointed and their compensation fixed and raised or de- creased from time to time by the Secretary of Commerce and Labor, upon the recommendation of the Commis- sioner-General of Immigration and in accordance with the provisions of the civil-service Act of January sixteenth, eighteen hundred and eighty- three : Provided , That said Secretary, in the enforcement of that portion of this act which excludes contract laborers, may employ, without reference to the provisions of the said civil-service act, or to the various acts relative to the compilation of the offi- cial register, such persons as he may deem advisable and from time to time fix, raise, or decrease their compensa- tion. He may draw from the immigrant fund” annually fifty thousand dollars, or as much thereof as may be necessary, to be expended for the salaries and expenses The Existing Immigration Law. 285 of persons so employed and for expenses incident to such employment; and the accounting officers of the Treasury shall pass to the credit of the proper disbursing officer ex- penditures from said sum without itemized account when- ever the Secretary of Commerce and Labor certifies that an itemized account would not be for the best interests of the Government: Provided further , That nothing herein contained shall be construed to alter the mode of appoint- ing commissioners of immigration at the several ports of the United States as provided by the sundry civil appro priation act approved August eighteenth, eighteen hun- dred and ninety-four, or the official status of such com- missioners heretofore appointed. Immigration officers shall have power to administer oaths and to take and con- sider evidence touching the right of any alien to enter the United States, and, where such action may be necessary, to make a written record of such evidence; and any per- son to whom such an oath has been administered under the provisions of this act who shall knowingly or wilfully give false evidence or swear to any false statement in any way affecting or in relation to the right of any alien to admission to the United States shall be deemed guilty of perjury and be punished as provided by section fifty- three hundred and ninety-two, United States Revised Statutes. The decision of any such officer, if favorable to the admis- sion of any alien, shall be subject to challenge by any other immigration officer, and such challenge shall operate to take the alien whose right to land is so challenged before a board of special inquiry for its investigation. Every alien who may not appear to the examining immigrant inspector at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for examination in relation thereto by a board of special inquiry. In the ordinary run of cases a favorable decision of the immigration officer at the port granting the alien leave to enter the United States is the last step to be taken by the alien in connection with the establishment of his admissi- bility. But even the facts on which a favorable decision is based can reach the board of special inquiry at the port, established by section 25, in case its correctness or le- gality is challenged by any other immigration inspector. 286 The Exclusion and Expulsion of Aliens. Even though the decision is not challenged, and, by au- thority thereof, the alien is duly admitted, the proceedings under which he was admitted, not being judicial but ad- ministrative in nature, the decision, is not res judicata. The fact that the Secretary of Commerce and Labor is given the power by law to return aliens found by him to be unlawfully within the United States within three years after entry, shows that this must necessarily be so; and such has been the result of judicial opinion expressed in passing on the point of the legal effect of such decisions of executive officers . 64 A decision favorable to admission cannot, under this section, be rendered by the Immigrant inspector unless the alien seeking admission appears to him to be clearly and beyond a doubt entitled to land. If the alien does not so appear to the inspector he is to be detained for further examination in relation thereto by the board of special inquiry already mentioned. Powers of Inspection Officers relative to admission of aliens. The powers of immigration officers making what is commonly known the “primary” or “line” inspection rela- tive to the admission or the rejection of aliens under the act may be summed up as follows: Inspectors have the power to pass such aliens but they are without power to render a decision refusing admission. As a matter of course such cases are referred to the board of special in- quiry. And it has been held that an inspector who has in any given case refused to pass an alien on primary in- spection is not qualified to pass on the merits thereof if sitting on the board of special inquiry to which the case is referred . 66 This, however, is the only decision on the 64Pearson v. Williams, 202 U. S. 281, 50 Law Ed. 1029; Lew Quen Wo v. United States, 184 Fed. 685; Ex parte Stancampiano, 161 Fed. 164; Mar Bing Guey v. United States, 97 Fed. 576. tfsUnited States v. Redfern, 180 Fed. 500. The Existing Immigration Law. 287 point, and its soundness is possibly open to question, as it proceeds on the theory that the board’s hearing is in the nature of an appeal from the “decision” of the inspector who conducted the primary inspection, and that therefore it is to be assumed that a board so constituted would con- tain one member who might not pass upon the question of the alien’s admissibility with an open mind; whereas, the procedure does not in any degree partake of the nature of an appeal, the primary inspector having no power to ren- der a decision. His authority is limited by law to detain the alien for special enquiry, if he is not fully satisfied that the former is beyond a doubt entitled to land. False statements made to inspecting officers . While there seems to be a dearth of reported decisions bearing directly upon so much of this section as relates to perjury committed in connection with the application of an alien to enter, it is understood that, in several in- stances at least, witnesses have been convicted for false swearing under these circumstances. In order to justify such conviction, however, there seems to be little doubt that the false statements which constitute the basis of the charge must be made with reference to statements ma- terial to the right of the alien to enter . 66 Whether or not the commission of this offense affects the admissibility of the alien, depends necessarily on whether the result thereof is to place him within one of the excluded classes ; and this in turn depends on whether or not the commission of an act of perjury is included among those which operate to exclude. Not being specifically enumerated among those classified as causes of exclusion the question arises 66 A statement made by the applicant regarding his final destination does not concern the alien’s right to land any more than the fact of his occu- pation and last residence, and 'where, in the examination of aliens applying for admission to the United States (Hawaii) a failure on his part to give information not called for or suggested by the line of inquiry, is not a ground for a charge of perjury. United States v. Yamamoto, 3 U. S. D. Ct. Hawaii 224; and see United States v. Martin, 193 Fed. 795. 288 The Exclusion and Expulsion of Aliens. as to whether it is included in a general class of offenses the conviction or admission of which by the alien bars him from admission. It would seem that the only classifica- tion contained in the act in which the offense of perjury could properly take its place is “felony or other crime or misdemeanor involving moral turpitude.” Conceding that such is the case, and bearing in mind that the conviction of such an offense or the fact of its commission if ad- mitted, must, in order to justify exclusion under the law, have taken place prior to the alien’s entry into the coun- try, can (I) a conviction of an alien for false swearing to an inspecting officer concerning his right to land, and prior to the determination of that right render him subject to deportation, or (2) can he be legally deported on the ground of having admitted the commission of an offense involving moral turpitude where it is found that he has admitted, prior to being allowed to enter the United States, that he has made false statements under oath to a depart- mental officer concerning his right to land? It seems plain, in view of the consensus of judicial opinion on the point, 67 that in the case of (I) his convic- tion, taking place in the United States for an offense com- mitted against the laws of the United States, does not place him in the excluded classes enumerated in section 2 ; in the case of (2) the same result would seem to follow unless it is to be assumed that the offense on the admis- sion of which it is sought to deport the alien was com- mitted prior to his application for admission. It is per- fectly true that for certain purposes an alien is not to be deemed to have entered the United States until he has been regularly admitted in accordance with law. But when Congress goes so far as to define as a crime against the laws of the United States an act committed before ad- mission, the alien committing it must, for the purposes at least of that offense and its legal consequences under giEx parte Saraeeno, 182 Fed. 955. The Existing Immigration Law. 289 either the immigration act or the criminal laws of the United States, be deemed to be within the United States. For to concede that an act is punishable by a State is to concede that it is committed in violation of the laws of that state ; and the violation of such laws must necessarily be predicated on the commission of the proscribed act within the territorial limits of the law-making power. Sec. 25. That such boards of special inquiry shall be ap- pointed by the commissioner of immigration at the various ports of arrival as may be necessary for the prompt deter- mination of all cases of immigrants detained at such ports under the provisions of law. Each board shall consist of three members, who shall be selected from such of the im- migrant officials in the service as the Commissioner Gen- eral of Immigration, with the approval of the Secretary of Commerce and Labor, shall from time to time designate as qualified to serve on such boards: Provided , That at ports where there are fewer than three immigrant inspect- ors, the Secretary of Commerce and Labor, upon the rec- ommendation of the Commissioner General of Immigra- tion, may designate other United States officials for serv- ice on such boards of special inquiry. Such boards shall have authority to determine whether an alien who has been duly held shall be allowed to land or shall be de- ported. All hearings before boards shall be separate and apart from the public, but the said boards shall keep a complete permanent record of their proceedings and of all such testimony as may be produced before them; and the decision of any two members of a board shall prevail, but either the alien or any dissenting member of the said board may appeal through the commissioner of immigra- tion at the port of arrival and the Commissioner General of Immigration to the Secretary of Commerce and Labor, and the taking of such appeal shall operate to stay any action in regard to the final disposal of any alien whose case is so appealed until the receipt by the commissioner of immigration at the port of arrival of such decision which shall be rendered solely upon the evidence adduced before the board of special inquiry: Provided , That in every case where an alien is excluded from admission into the United States, under any law or treaty now existing 290 The Exclusion and Expulsion of Aliens. or hereafter made, the decision of the appropriate im- migration officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Sec- retary of Commerce and Labor ; but nothing in this section shall be construed to admit of any appeal in the case of an alien rejected as provided for in section ten of this act. Rule 15 contains the following special instruction for boards of special inquiry : 1. Every person appointed to serve on a board of special inquiry shall first subscribe to an oath of office. 2. Boards of special inquiry shall determine all cases as promptly as in the estimation of the immigration officer in charge the circumstances permit, due regard being had to the necessity of giving the alien a fair hearing. 3. An excluded alien shall be informed that the return voyage is at the expense of the steamship company which brought him and the fact that he has been so informed entered in the minutes. Authority of Board to Determine an Alien’s Right to Land. Only when the facts on which the claim of the alien to land is based are referred by the inspector who has refused to admit him to the board of special inquiry does the question properly arise as to whether he is to be ad- mitted or rejected. Whether the decision of the board re- fusing landing is final and conclusive depends on the nature of the causes of rejection, which are hereinbefore discussed in connection with section 10. 68 No cases other than those covered by section 10 can be determined finally by the board in its excluding decision, unless the applicant should fail to avail himself of his right to appeal to the Secretary, in which event the board’s decision becomes necessarily final. ‘ 68 Ante, p. 237. The Existing Immigration Law. 291 Nature of Hearings Before the Board. Employment of Counsel. While Rule 22 of the immigration rules relating to the deportation of aliens arrested under the warrant of the Secretary of Commerce and Labor provides 69 that at a cer- tain stage of the proceedings, and on the alien’s request counsel may be admitted to the hearing, there is no such provision regarding hearings before a board of special inquiry where the right of the alien to enter is the only issue. In the absence of such a provision from both the act and the rules issued for the enforcement thereof, it is plain that the right to be represented at such hearing can- not be successfully claimed, for there is nothing in the nature of deportation proceedings which can give just grounds for such a contention. 70 As the acts themselves do not authorize the admission of counsel, if allowed under ceTtain conditions by executive officers entrusted with the enforcement of the acts, such allowance constitutes merely a privilege, not a right. The above remarks apply only to the counsel at the hearings, not to their employ- ment by aliens seeking admission or by their friends on their behalf, in connection with their application to enter or their appeal from an excluding decision. Rule 31 contains the following special provisions with regard to the employment of counsel: 1. Admission to practice . — Every person desiring to ap- pear on behalf of an alien may be required to submit proof to show that he is a person of good character and reputa- tion, and if such proof fails to satisfy the immigration officer in charge, he shall forward it to the bureau for de- termination as to whether or not such person shall be permitted to practice before the immigration authorities. Any unseemly or unprofessional conduct on the part of an attorney shall be similarly reported to the bureau. 69 Subdivision 4. reunited States v. Sing Tuck, 184 U. S. 161, 48 Law Ed. 917. 292 The Exclusion and Expulsion of Aliens. 2. Change of representative. — Pending an appeal or warrant proceedings no alien shall change his representa- tive except upon such reasonable terms as the immigra- tion officer in charge shall prescribe, nor shall such change be permitted to delay the conduct or disposition of a mat- ter pending. 3. Fees of attorneys. — Attorneys and persons appear- ing in behalf of aliens applying for admission shall not charge a sum exceeding ten dollars in each case unless the immigration officer in charge shall in writing allow an additional compensation. A family or party of aliens traveling together shall be regarded as constituting a single case within the meaning hereof. If an attorney deems himself entitled to a larger fee or if it is necessary for him to incur expenses, he shall report the fact to the immigration officer in charge when applying for the privi- lege of charging an additional fee or claiming reimburse- ment for expenses. If permission be granted, he shall collect such additional fee and expenses only through the immigration officer in charge. Disbarment of Attorneys. Anyone charging an alien a fee prior to his detention, or charging or receiving from an alien or his relatives or friends a fee, gift, or compensation for his services in excess of the above rate except in the manner provided, or who shall deprive an alien of any part of his chattels or effects in lieu of or as security for said fee, will, if unable after a fair opportunity to answer the complaint be dis- barred by the Department (to which a full report of the matter shall be made) from practising at any immigration station of the United States. Finality of Board’s Decision. In the corresponding section of March 3, 1903, it was provided that the decision of the board should “prevail and be final” in the absence of appeal taken to the Secre- The Existing Immigration Law. 293 tary of Commerce and Labor by the rejected alien. This wording gave rise to the contention that in the ab- sence of such appeal the favorable decision of the board was final and binding on the Secretary, and thereby deprived him of jurisdiction to deport the alien thus admitted within the three year period. The correctness of this view was denied first in the case of Pearson against Williams , 71 and again on ap- peal from the decision to the Supreme Court of the United States . 72 While the lower court held that the decision of the board was final as to the right of the alien to land it took the view that such decision did not consti- tute a final determination of his status when in the United States; but in sustaining the result thus reached the Supreme Court asserted that the board is an instru- ment of the executive power, and not a court; and that its decisions are merely those of one branch of the execu- tive department, and cannot constitute res judicata in a technical sense; and that while final in so far as the act provided they should be — that is, with respect to the courts — they could not be considered final as against the Secretary of Commerce and Labor. But in order to en- able it to give any decision at all the board must be con- stituted as provided by this section and where the case of an alien has been adversely passed on by an immigra- tion officer, the affirmation of the decision by a board of which he was a member was illegal, although there was no other United States officer at the port who could have been called upon to act ; and the decision of the Secretary affirming such decision was held to be tainted with the same disability and not to be binding on the courts . 73 The subject of the finality of the Secretary’s decision 71136 Fed. 734. 72Pearson v. Williams, 202 U. S. 281, 50 Law Ed. 1029. 73United States v. Redfern, 180 Fed. 500. 294 The Exclusion and Expulsion of Aliens. as well as that of executive officers generally is elsewhere discussed. 74 Appeals. Where the right of appeal lies from the Board’s de- cision, the following rules of procedure, forming a part of Rule 17, have been adopted by the Department: 1. Informing alien as to right of appeal. — Where an appeal lies the alien shall be clearly informed of his right thereto and the fact that he has been so informed entered in the minutes. 2. Appeals , how filed. — An alien desiring to appeal may do so individually or through any society admitted to an immigrant station, also any relative or friend, or through any person, including attorneys permitted to practice be- fore the immigration authorities. Where a valid appeal has been taken, any further appeal shall be disregarded. Appeals purporting to be filed on behalf of an alien, but without his knowledge or consent previously obtained, may be ignored. 3. Time for filing appeals. — Appeals must be filed promptly. The immigration officer in charge may refuse to accept an appeal filed after the alien has been removed from an immigration station for deportation, provided the alien had a reasonable opportunity to appeal before such removal. Any appeal filed more than forty-eight hours after the time of exclusion may be rejected by the immigration officer in charge in his discretion. 7. Forwarding appeal records. — The complete appeal record shall be forwarded promptly to the bureau with the views in writing of the immigration officer in charge. Cases in which the alien has no right of appeal have been considered in connection with section 10. 75 74Chapter on Judicial Review of Administrative Decisions, post, p. 477. 75 Ante, p. 237. The Existing Immigration Law. 295 Sec. 26. That any alien liable to be excluded because likely to become a public charge or because of physical disability other than tuberculosis or a loathsome or dan- gerous contagious disease may, if otherwise admissible, nevertheless be admitted in the discretion of the Secretary of Commerce and Labor upon the giving of a suitable and proper bond on undertaking, approved by said Secretary in such amount and containing such conditions as he may prescribe, to the people of the United States, holding the United States or any state, territory, county, municipal- ity, or district thereof harmless against such alien becom- ing a public charge. The admission of such alien shall be a consideration for the giving of such bond or under- taking. Suit may be brought thereon in the name and by the proper law officer either of the United States Gov- ernment or of any state, territory, district, county, or municipality in which such alien becomes a public charge. Admission on bond. 76 As the admission on bond of aliens coming within the class described in this section is left to the discretion of the Secretary of Commerce and Labor, if he refuses to exercise such discretion favorably his decision cannot be judicially questioned, even though his refusal may not seem to be based on reasons which appear persuasive to a court. 77 Subdivisions 5 and 6 of Rule 17 contain the following provisions : 5. No appeal lies where a decision of a board of special inquiry, based solely upon the certificate of the examining medical officer, rejects an alien because he is suffering from some physical defect other than tuberculosis or a loathsome or dangerous contagious disease. But in such a case, notwithstanding exclusion, the alien may, if other- wise admissible, apply for admission on bond (sec. 26). In a case of this character he shall, after exclusion, be notified of his right to apply for admission on bond and 76See Chapter on Deportation Procedure, post, p. 614. 77United States ex rel. Chanin v. Williams, 177 Fed. 689. 296 The Exclusion and Expulsion of Aliens. may file his application within the time mentioned in sub- division 3 hereof. 6. Where the landing of an alien under bond is author- ized the bond shall, unless different instructions are given, be in the sum of $500, and the alien shall not be released until it has been furnished and the immigration official in charge has satisfied himself of the responsibility of the sureties. If within a reasonable time after landing under bond is authorized a satisfactory bond is not fur- nished, instructions shall be requested of the bureau. Sec. 27. That no suit or proceedings for a violation of the provisions of this act shall be settled, compromised or discontinued without the consent of the court in which it is pending, entered of record, with the reasons therefor. The purpose of this section is obvious. Evidently Con- gress considered the imposition of the penalties provided by the immigration law to be collected either civilly or criminally, as a very important branch of the enforcement of the law ; hence this precaution to have no compromising and minimizing of those penalties in any instances, or for any reasons, which would not stand the scrutiny of the courts. Sec. 28. That nothing contained in this act shall be construed to affect any prosecution, suit, action or pro- ceedings brought, or any act, thing or matter, civil or criminal, done or existing at the time of the taking effect of this act; but as to all such prosecutions, suits, actions, proceedings, acts, things or matters the laws or parts of laws repealed or amended by this act are hereby con- tinued in force and effect. The corresponding section of the Act of 1903 was con- strued not to be limited in its application to prosecutions or proceedings begun before the passage of the act, but to apply to those thereafter begun under the Act of 1875 The Existing Immigration Law. 297 based on acts committed before its repeal or amendment. 78 This holding has since been followed in construing this section, continuing in force the Act of 1903 as to the ex- clusion of alien prostitutes, and as saving the Govern- ment’s right to deport a member of that class who landed in 1906, though no proceeding was brought for that pur- pose until 1908 ; 79 and likewise as applicable to prosti- tutes residing in the United States at and prior to the time of its passage; 80 and to enure to the benefit of con- tract laborers entering prior thereto, while the Act of 1903 was in force, which did not prohibit the members of that class from entering this country. 81 Sec. 29. That the circuit and district cotfrts of the United States are hereby vested with full and concurrent jurisdiction of all causes, civil and criminal, arising under any of the provisions of this act. This provision appears in the Act of March 3, 1903, and in the case of Ex parte Crawford 82 was construed not to affect the final jurisdiction of the Secretary of Com- merce and Labor in matters pertaining to the exclusion of aliens seeking admission to this country. In section 13 of the Act of March 3, 1891, the clause appeared for the first time and was held by the Supreme Court in the case of Ekiu v. United States 83 to refer “to causes of judicial cognizance already provided for, whether civil actions in the nature of debt for penalties under sections 3 and 4 or indictment for misdemeanors under sections 6, 8 and 10. Its intention was to vest con- current jurisdiction of such causes in the circuit and district courts; and it is impossible to construe it as giv- 78Lang v. United States, 133 Fed. 201. 79 Ex parte Durand, 160 Fed. 558. 8°Looe Shee v. North, 170 Fed. 566. siBotis v. Davies, 173 Fed. 996. 8 2 Ex parte Crawford, 165 Fed. 830. ssEkiu v. United States, 142 U. S. 651, 35 Law Ed. 1146. 298 The Exclusion and Expulsion of Aliens. in g the courts jurisdiction to determine matters which the act has expressly committed to the final determination of executive officers.” Sec. 30. That all exclusive privileges of exchanging money, transporting passengers or baggage, or keeping eating houses, and all other like privileges in connection with any United States immigrant stations, shall be dis- posed of after public competition, subject to such condi- tions and limitations as the Commissioner General of Im- migration, under the direction or with the approval of the Secretary of Commerce and Labor, may prescribe: Pro- vided, That no intoxicating liquors shall be sold in any such immigrant station; that all receipts accruing from the disposal of such exclusive privileges as herein pro- vided shall be paid into the Treasury of the United States to the credit of the “immigrant fund” provided for in sec- tion one of this act. The “immigrant fund” mentioned here and elsewhere in the Act of 1907 (notably in sections 1 and 20), is no longer in existence, having been abolished by the appro- priation Act of March 4, 1909. 84 From the earliest stages of the Federal control of immigration the idea seems to have prevailed that the entry of foreigners into the coun- try should not be used as a means of collecting revenue. The excuse for the head tax has always been that the money so collected was to constitute primarily a fund for the benefit of the immigrants themselves. It was only incidentally that it was to protect the country against the influx of undesirable aliens. In the Head Money Cases, 85 considerable stress was laid upon the quasi-philanthropic nature of the tax. But, with the immigrant fund abol- ished, and the joint enforcement of the immigration and Chinese exclusion statutes conducted with an appropria- tion annually made which in no way approaches the amount of the income accruing from the tax imposed, the 8435 Stat. at L. 981. 85Head Money Cases, 112 U. S. 580, 28 Law Ed. 798. The Existing Immigration Law. 299 immigration law has become, it must be admitted, a reve- nue producing measure. Sec. 31. That for the preservation of the peace and in order that arrests may be made for crimes under the laws of the states and territories of the United States where the various immigrant stations are located, the officers in charge of such stations, as occasion may require, shall admit therein the proper state and municipal officers charged with the enforcement of such laws, and for the purpose of this section the jurisdiction of such officers and of the local courts shall extend over such stations. In section 16 of the act the scrivener, in abundance of caution, took care to insert that the removal of aliens to the custody of immigration officers for the purpose of passing upon their right to enter this country was not to be considered a landing. In the Ju Toy 86 and Japanese Immigrant 87 cases, so often cited in this volume, the Su- preme Court has held that, for the purpose of invoking certain constitutional guarantees, a foreigner seeking admission to this country shall not, until he has been duly admitted by the proper authorities, be deemed to have landed in the United States in the sense of having ac- quired the status of one actually resident within this jurisdiction, and as such in the position of being com- petent to invoke the protection of our laws to the same extent as citizens of this country, or persons who have by law free access to its dominions, or foreigners actually resident here. But the fact that the courts have so held and that the act itself provides that for certain purposes aliens subject to the jurisdiction of immigration officers for the purpose of examination are not to be deemed landed cannot of course be construed to imply their im- munity from ordinary criminal process. Indeed, the fact of an alien’s physical presence on shore, pending an ex- seUnited States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040. 87Yamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721. 300 The Exclusion and Expulsion of Aliens. amination would be immaterial in considering the ques- tion of the right of either the Federal or state authorities to preserve peace and order within their respective juris- dictions. Aliens who have not as yet left the passenger vessel bringing them to this country are, when in our ports, as much subject to the local jurisdiction as when they have been actually removed on shore for the purpose of examination. An immigration station is not, because of its being the seat of the official activity of purely Federal officers, a Government reservation, and crimes or offenses on its premises are necessarily subject to the local jurisdiction. Sec. 32. That the Commissioner General of Immigra- tion under the direction or with the approval of the Sec- retary of Commerce and Labor, shall prescribe the rules of the entry and inspection of aliens along the borders of Canada and Mexico, so as not to unnecessarily delay, im- pede, or annoy passengers in ordinary travel between the United States and said countries, and shall have power to enter into contracts with transportation lines for the said purpose. The rules adopted in pursuance of this authority are: Rule 12, based upon an agreement with the Canadian transportation companies, Rule 13, and certain sections of Rule 1 relating to the inspection and collection of head tax on account of aliens entering the United States from or through Mexico. These rules provide as follows : 1. Border ports of entry . — The following are desig- nated as Canadian border ports of entry for aliens : East- port, Calais, Vanceboro, Fort Kent, Fort Fairfield, Van Buren, Houlton, Madawaska, and Lowelltown, Me. ; Beecher Falls, N. H. ; Island Pond, Newport, Richford, St. Albans, Swanton, and Alburg, Vt. ; Rouses’ Point, Ma- lone, Fort Covington, Nyando, Ogdensburg, Morristown, Waddington, Clayton, Cape Vincent, Charlotte, Olcott, Lewiston, Niagara Falls, and Buffalo, N. Y. ; Cleveland The Existing Immigration Law. 301 and Toledo, Ohio; Detroit, St. Clair, Port Huron, and Sault Ste Marie, Mich. ; Chicago, 111. ; Duluth, Ranier, In- ternational Falls, Warroad, Beaudette, and Noyes, Minn. ; Hannah, Pembina, Neche, Walhalla, Portal, and St. John, N. Dak.; Sweet Grass and Gateway, Mont.; Porthill and Eastport, Idaho, and Marcus, Oroville, Sumas, and Blaine, Wash. 2. Seaports of entry and locations of boards of special inquiry . — (a) The following are designated as Canadian seaports of entry for aliens bound for the United States: Halifax, Nova Scotia, Quebec, and Point Levi, Quebec; St. John, New Brunswick, and Vancouver and Victoria, British Columbia. (b) Boards of special inquiry shall be located at said seaports and also at the following places: Yarmouth, Nova Scotia; Calais, and Houlton, Me.; Montreal, Que* bee ; Newport, Vt. ; Buffalo, Niagara Falls, and Lewiston, N. Y. ; Cleveland and Toledo, Ohio; Detroit, Port Huron, and Sault Ste Marie, Mich.; Chicago, 111.; Duluth and International Falls, Minn.; Winnipeg, Manitoba; Portal, N. Dak. ; Sweet Grass, Mont. ; Eastport, Idaho, and Mar- cus, Sumas, and Blaine, Wash. 3. Head Tax . — (a) The masters, owners, or agents of vessels plying to Canadian ports shall pay to the United States Commissioner of Immigration for Canada the sum of $4 on account of each alien bound for the United States, with the exception of such as are excluded and deported. (b) All aliens of the taxable class seeking to enter the United States from Canada or Newfoundland shall be denied examination under the United States immigration laws (except to a sufficient extent to determine liability for head tax) until they present to the examining officers a certificate from a duly appointed agent of the transpor- tation company bringing such aliens to the border, guar- anteeing that responsibility for the payment of head tax on account of such aliens will be assumed by said trans- 302 The Exclusion and Expulsion of Aliens. portation company, certificate guaranteeing payment of head tax being returnable to the applicant for admission in the event of his exclusion, such certificate before its re- turn to such applicant to have the word “Rejected” stamped or written in red ink across Its face. (c) All moneys collected under the provisions of this rule shall be transmitted by the commissioner of immi- gration for Canada to an assistant treasurer of the United States for deposit in appropriate manner. Reports of such receipts shall be made monthly by the said commis- sioner on the appropriate form. The commissioner shall give bond in the sum of $10,000, conditioned for the faith- ful discharge of his duties and the remittance of the col- lections herein described. 4. Manifests . — (a) The masters, owners, or agents of vessels bringing to Canadian ports aliens bound for the United States shall furnish to the United States immigra- tion officials in charge at such ports complete manifests and alphabetical books of all arriving alien passengers, and also complete manifests of all arriving alien passen- gers en route to the United States, such as are now re- quired by law of vessels bringing aliens to United States ports. (b) Such masters, owners, or agents shall also furnish to the United States commissioner of immigration for Canada manifests of all passengers not citizens of the United States leaving the United States and proceeding by their vessels to foreign ports, as required by law for vessels departing from United States ports. 5. Medical examination . — Aliens coming to the United States from or through Canada shall be examined for mental and physical disabilities or afflictions in the man- ner prescribed in section 17. 6. Inspection, certification, and admission . — (a) All necessary facilities, in the way of accommodations, access to the aliens, and the keeping of aliens apart from the public until after inspection, shall be afforded to the im- The Existing Immigration Law. 303 migration officials of the United States stationed at Ca- nadian ports to enable them to make the inspection re- quired by law. The inspection conducted at the seaports, the land border ports, or the interior board of special in- quiry stations herein mentioned shall be similar to that conducted at United States ports. Such aliens as in the opinion of the examining inspector are not clearly entitled to admission shall be taken before a board of special in- quiry. The decision of such a board shall be final unless reversed upon appeal, as provided by section 25. (b) Aliens found admissible by the inspectors or boards stationed at the seaports or by the boards stationed at the interior ports named in subdivision 2 hereof shall be furnished with a certificate of identity prepared on the form provided by the Bureau, signed by the United States commissioner of immigration for Canada, and shall be ad- mitted at any one of the ports of entry named in subdi- vision 1 hereof without further examination, upon pre- senting and surrendering said certificate and being identi- fied as the proper holder thereof. (c) Any alien of the taxable class, who shall apply for admission at the Canadian border within one year after arriving at a Canadian seaport, and not present the cer- tificate prescribed in the preceding paragraph, shall be returned by the transportation company which brought him to the border to one of the seaports of entry or to one of the board of special inquiry stations named in sub- division 2 hereof for guaranty of payment of head tax, examination, and procurement of certificate. Any alien, whether taxable or not, who applies for entry from Can- ada may be required by an inspector having a doubt of his admissibility to appear for examination before a board located at one of said places. If any nontaxable alien is conveyed by a transportation company to a border point where no board of special inquiry is stationed, he shall be returned and conveyed for examination to the nearest point at which such a board is located. 304 The Exclusion and Expulsion of Aliens. 7. Deportation . — (a) All aliens bound for the United States finally rejected at Canadian seaports shall be re- turned to the country whence they came by the steamship line bringing them. (b) The steamship lines shall return at their own ex- pense, from seaports of Canada or the United States as they may elect, to the transoceanic country of embarka- tion all aliens covered by the provisions of paragraph (c) of subdivision 6 hereof who are shown to belong to a class excluded by the immigration act, whenever in the judg- ment of the Secretary the deportation of such aliens in the manner described is deemed necessary to safeguard the interests of the United States. (c) All non taxable aliens who proceed to the Canadian border without having first been examined and granted the certificate of identity herein prescribed, and who may be excluded by a board of special inquiry at a border sta- tion, shall be returned a reasonable distance in Canada from the boundary by the transportation company which brought them thereto. (d) The steamship lines, parties to the Canadian agree- ment, shall return, at their own expense at any time within three years from the date of landing in Canada from some Canadian port, or when that is not practicable from some port of the United States, such aliens as, having been brought into Canada upon their respective lines and having subsequently proceeded to the United States, are shown to belong to any one of the classes subject to ex- clusion or deportation under the immigration act when- ever deportation of such an alien is ordered by the Secre- tary of Commerce and Labor. 8. Transits . — (a) Aliens of the taxable class applying to pass in transit through the United States from Canada shall furnish to immigration officers guaranty of payment of head tax prescribed in subdivision 3 hereof. If found admissible they shall be given a certificate providing for refund of head tax upon such certificate being properly The Existing Immigration Law. 305 indorsed by the alien and the purser of the outgoing trans- Atlantic or trans-Pacific steamship, or the conductor of the train, upon which the holder leaves the United States. (b) Refund of head tax will be made on aliens of the taxable class arriving at seaports of Canada and desiring to proceed immediately in transit through the United States to the transportation line responsible for its pay- ment, upon proof satisfactory to the United States com- missioner of immigration for Canada that such aliens have passed by direct and continuous journey through and out of the United States within the time limit speci- fied in subdivision 2 of Rule 1 hereof. This rule is based generally upon the immigration act, and specifically upon section 36 thereof authorizing the Secretary to designate land border ports of entry and upon an agreement between the various steamship and railroad companies in Canada and the Commissioner General, ne- gotiated in accordance with section 32. The various pro- visions of the law and regulations, in so far as applicable, should be enforced at the Canadian seaports and along the Canadian border. Any alien who enters the United States across the Canadian border at any other place than those named in subdivision 1 of this rule as a port of entry is subject to deportation under sections 20, 21, 35 and 36. The following rule has been adopted regarding inspec- tion on the Mexican border. 1. Ports of entry . — Under section 36 the following are named as Mexican border ports of entry for aliens: Brownsville, Hidalgo, Laredo, Eagle Pass, Del Rio, and El Paso, Tex.; Douglas, Naco, and Nogales, Ariz. ; and Andrade, Campo, Calexico, and Tia Juana, Cal. 2. Procedure . — Aliens applying for admission at the Mexican border ports of entry are subject to examination in the same manner and to the same extent as though arriv- ing at seaports, report of inspection to be made on the appropriate forms. Where they cross the border by bridge 306 The Exclusion and Expulsion of Aliens. or railway company, such company shall be responsible for the head tax. Where they cross the border at a port of entry otherwise than through the instrumentality, of one of said companies, they shall as a preliminary to in- spection be questioned sufficiently to determine with pre- cision whether, in the event that full inspection should show them to be admissible, they are in financial condi- tion to pay the $4 head tax. If found able to pay such tax, the inspection may be completed; and if found eli- gible, they shall pay the head tax before being permitted to enter. Sec. 33. That for the purpose of this act the term “United States” as used in the title as well as in the various sections of this act shall be construed to mean the United States and any waters, territory or other place subject to the jurisdiction thereof, except the Isthmian Canal Zone: Provided, That if any alien shall leave the canal zone and attempt to enter any other place under the jurisdiction of the United States, nothing contained in this act shall be construed as permitting him to enter under any other conditions than those applicable to all aliens. The effect of this section is that all aliens may, as far as the United States is concerned, enter the Canal Zone, free from the supervision or inspection of the immigra- tion authorities; but it effectively bars those who come thence to the United States from claiming like immunity on the ground that they have come from one part of the United States to another, either as residents or in any other capacity, and that they are, therefore, relieved from the operation of the statute. As far as the provi- sions of this act are operative it would seem that the Chinese may enter the Canal Zone as freely as any other alien, unless they are to be considered as excluded under the Chinese exclusion acts. The Existing Immigration Law. 307 Sec. 34. That the Commissioner General of Immigra- tion, with the approval of the Secretary of Commerce and Labor, may appoint a commissioner of immigration to discharge at New Orleans, Louisiana, the duties now re- quired of other commissioners of immigration at their respective posts. Sec. 35. That the deportation of aliens arrested within the United States after entry and found to be illegally therein, provided for in this act, shall be to the trans- Atlantic or trans-Pacific ports from which said aliens embarked for the United States; or, if such embarkation was for foreign contiguous territory, to the foreign port at which said aliens embarked for such territory. Sec. 36. That all aliens who shall enter the United States except at the seaports thereof, or at such place or places as the Secretary of Commerce and Labor may from time to time designate, shall be adjudged to have entered the country unlawfully and shall be deported as provided by sections twenty and twenty-one of this act: Provided , That nothing contained in this section shall affect the power conferred by section thirty-two of this act upon the Commissioner General of Immigration to prescribe rules for the entry and inspection of aliens along the borders of Canada and Mexico. The power of the Secretary to deport aliens en- tering the United States at any place other than the seaports thereof or other than such place or places as he may designate has already been dis- cussed in connection with the preceding sections of this act. 88 The purpose of this section is to make it obligatory upon aliens seeking admission from foreign contiguous territory to enter only at places or ports where inspection officers are located. A failure to do this renders the of- fender liable to deportation 89 as having evaded the immi- gration law. 90 The mere fact of crossing the border has 88 Ante, pp. 261, 265 et seq. 89 Ex parte Li Dick, 176 Fed. 998. 90 Ex parte Hamaguchi, 161 Fed. 185. 308 The Exclusion and Expulsion of Aliens. been held, however, not to constitute an entry 91 and not to give the immigration authorities the right to deport pro tanto but merely to turn the alien back. If, however, he cannot be turned back in the sense of being actually conducted back into the jurisdiction of the contiguous state without violating the laws of that state, it seems that he can either be released and immediately rearrested for being in the United States in violation of the Chinese exclusion laws — if a Chinaman 92 or at once held for depor- tation under the immigration act. 93 Entry by an alien by virtue of false representations made to the examining inspector results in the entry being illegal under this section when obtained by means of naturalization papers granted another and entering under the assumed name of that other. 94 It is obviously quite as important that aliens entering across the land boundaries shall be inspected for moral, mental and physical deficiencies as in the case of those landing at the seaports. The dignity and integrity of the law must be upheld in that regard ; to compel a thorough respect for it is the purpose of this section. Sec. 37. That whenever an alien shall have taken up his permanent residence in this country and shall have filed his declaration of intention to become a citizen, and thereafter shall send for his wife, or minor children to join him, if said wife or any of said children shall be found to be affected with any contagious disorder, such wife or children shall be held, under such regulations as the Secretary of Commerce and Labor shall prescribe, si Ex parte Chow Chok, 161 Fed. 629, aff. same v. United States, 163 Fed. 1021. szUnited States v. Yuen Pak Sune, 183 Fed. 260. 93United States v. Wong You et al., 223 U. S. 67, 56 Law Ed. . 94Williams v. United States, 186 Fed. 479; but see Lewis v. Frick, 189 Fed. 146, reversed in Frick v. Lewis, 195 Fed. 693. But entering under an assumed name or assumed relationship to a third party does not justify exclusion on the ground that the entry has been without inspection when the false statement has no bearing on the right of the applicant to admission. United States v. Martin, 193 Fed. 795. The Existing Immigration Law. 309 until it shall be determined whether the disorder will be easily curable, or whether they can be permitted to land without danger to other persons; and they shall not be either admitted or deported until such facts have been ascertained; and if it shall be determined that the dis- order is easily curable or that they can be permitted to land without danger to other persons, they shall, if otherwise admissible, thereupon be admitted. Under the Act of 1903 it was provided that in the case of the wife or minor children of aliens who had filed their declaration of intention to become citizens and had there- after sent for such wife or minor child to come to the United States, as a condition precedent to their tem- porary admission under the surveillance and care of the immigration officer, proof should be submitted to show that the illness was contracted on board the ship in which they came, and that this fact should be certified by the examining surgeon at the port of arrival. This condition does not appear in the present section. The wife and children of such alien declarants are spe- cially favored by this section in that it provides that they shall be held if affected with any contagious disorder. This comprehensive term must be taken to include tuber- culosis or any other loathsome or dangerous disease. Under the law the parties are to be held until it can be ascertained whether the disorder is easily curable or that they can be landed without danger to other persons. By the terms of section 2 if the ground of exclusion is disease, it must be either tuberculosis or some sickness of a loathsome or dangerous contagious character; other diseases, even though contagious, do not per se subject aliens in general to exclusion. The holding of such wife or children is preparatory to their admission or deporta- tion; but deportation could legally follow only in case the disease were tuberculosis or of a loathsome or danger- ous contagious nature. There is nothing in the act to prevent the Secretary from holding for cure any alien 310 The Exclusion and Expulsion of Aliens. afflicted with diseases which are not of the above-men- tioned classes. But this section allows even more than this, for not only does it give the diseased wife or chil- dren of the alien declarant the advantage of not being im- mediately deported, but also of being admitted, even if suffering from such disease or diseases, should it be de- termined that it or they are easily curable, or that such wife or children can be admitted to land without dangei to other persons. It would seem to follow that such alien wives or children can claim as of right the privilege of this preliminary admission which other aliens may only request as a privilege to be granted or refused in the dis- cretion of the Secretary of Commerce and Labor. 95 Curiously enough the act contains no similar provision for the wives and minor children of aliens who have become naturalized citizens of the United States, although prior to the passage of this act the Supreme Court denied relief in habeas corpus to an alien minor child of a nat- uralized alien afflicted with trachoma who had been re- fused admission to the United States by a board of spe- cial inquiry. 96 There the court had occasion to refer to the corresponding section of the Act of 1903, containing much the same provisions as to alien wives and minor children in similar circumstances, and to point out that the children, alien born, of naturalized citizens of the United States, were, if not having dwelt in this country, not so favorably situated with regard to the opportunities of entering, as the children of aliens who had done no more than to declare their intention. It may be added in this connection that if the wife of the naturalized citizen were seeking admission to the United States diseased or otherwise, she would, if she herself might be lawfully naturalized, be seeking admis- ssSee section 19. 06Zartarian v. Billings, 204 U. S. 170, 51 Law Ed. 428. The Existing Immigration Law. 311 sion as a citizen of this country 97 and not as an alien, and, therefore, would not come within the prohibition of the act. A child born outside of the United States, how- ever, and not having ever dwelt in this country could not claim the right to enter based on the naturalization of the father unless the father had been naturalized prior to the birth of the child. 98 The following rule (19) touching this point has been adopted by the department: 1. Staying deportation of wives and children of de- clarants . — If an alien found on arrival to be afflicted with tuberculosis or a loathsome or dangerous contagious dis- ease is the wife or minor child of a person shown to have declared his intention, or the minor child born abroad prior to the naturalization of a person shown to be a naturalized citizen, such alien shall be held until it is ascertained whether the disorder will be easily curable, or whether he can be permitted to land without danger to others. The law does not direct that any other aliens so afflicted shall be held. Deportation shall occur promptly with respect to such wives and minor children if and when it is ascertained that the disorder is not easily curable or that the alien can not be landed without danger to others, and with respect to all others if and when it is ascertained that the alien is diseased, unless, in behalf of either, application for treatment is made promptly in accordance with the terms of the next subdivision. Sec. 38. That no person who disbelieves in or who is op- posed to all organized government, or who is a member of or affiliated with any organization entertaining and teach- ing such disbelief in or opposition to all organized govern- ment, or who advocates or teaches the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers, either of specific individuals or of offi- 97 Fed. Stat. Annotated, 1994. But see this subject as discussed in th<» Chapter on Status, post , p. 379. 98 Fed. Stat. Annotated Sec. 1993. 312 The Exclusion and Expulsion of Aliens. cers generally, of the Government of the United States or of any other organized government, because of his or their official character, shall be permitted to enter the United States or any territory or place subject to the jurisdiction thereof. This section shall be enforced by the Secretary of Commerce and Labor under such rules and regulations as he shall prescribe. That any person who knowingly aids or assists any such person to enter the United States or any territory or place subject to the jurisdiction thereof, or who connives or conspires with any person or persons to allow, procure, or permit any such person to enter therein, except pursuant to such rules and regulations made by the Secretary of Commerce and Labor shall be fined not more than five thousand dol- lars, or imprisoned for not more than five years, or both. The question of the admissibility of alien anarchists has been discussed in connection with section 2 of this act." This section, as section 38 of the Act of 1903 was held constitutional, although attacked on the ground of being in contravention of the 1st, 5th and 6th articles of the Constitution, of Par. 1 of Article III thereof, and of the first amendment, prohibiting the passage of any law respecting the establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the Government for the re- dress of grievances. 100 Aside from the fact that the evi- dence adduced showed that the applicant considered and called himself an anarchist and proposed to address the working men of the country advocating a general strike, thus giving rise to the justifiable inference that he con- templated bringing about an absence of government by the use of force, the court held that even if the word “anarchist” was to be deemed to include aliens whose anarchistic views are professed as those of political phil- \ 99 Ante, p. 180. looUnited States ex rel. Turner v. Williams, 194 U. S. 279, 48 Law Ed. 979. The Existing Immigration Law. 313 osophers innocent of evil intent, it would follow that Con- gress might well consider the public presentation of the views of such persons as dangerous to the public weal and those exploiting them undesirable additions to the popula- tion of the United States; and held that “in the light of previous decisions the act, even in this aspect, would not be unconstitutional, as applicable to any alien who is opposed to all organized government.” Since alien anarchists are excluded under section 2 of the Act of 1907, the act of landing or attempting to land them merely as aliens and irrespective of their member- ship in an unusually objectionable class is specifically prohibited and penalized by section 8 thereof. The es- sence of the offense under section 8 is the landing or the attempt to land any alien in such a way that he may es- cape examination by the authorities. The fact that among a number of aliens unlawfully landed or attempted to be landed, and who have not been duly admitted by an immi- grant inspector, there may chance to be included one or more anarchists should not render the offender subject to the penalties of this section in the absence of know- ledge on his part of the anarchistic tendencies of the alien whom he has thus landed or attempted to land. Guilty knowledge is made of the essence of the offense and the courts, in construing the Chinese exclusion acts, have consistently held that the fact of such guilty know- ledge must be alleged in the indictment. By the language of this section it is clear that the term “knowingly” is used with reference to the fact that the alien landed or sought to be landed is an anarchist, and of a class whose presence is prohibited on account of the exceptional menace which it constitutes or may constitute to the lives and safety of the members of the community; hence the increase in penalty both as to fine and imprison- ment over that provided by section 8. The act of conniv- ing or conspiring to allow, procure or permit such person to enter except pursuant to the rules and regulations 314 The Exclusion and Expulsion of Aliens. made by the Secretary of Commerce and Labor is penal- ized to the same extent as aiding or assisting such en- trance in defiance of such rules and regulations. The act of conniving and conspiring to violate the immigration law renders the person found guilty thereof liable not only to the penalties imposed by this act but to those im- posed for the crime of conspiracy as defined therein under section 5440 necessarily includes imprisonment and is, may be laid under either section and the penalty imposed accordingly. In a case arising under the act, the penalty is a fine or imprisonment; under section 5440 fine and im- prisonment; but the fact that the penalty imposed by section 5440 of the Revised Statutes. 1 The indictment therefore, the more severe, offers no valid reason against proceeding against the offender under the Revised Stat- utes. 2 It may be added that the act provides that “this section shall be enforced by the Secretary of Commerce and Labor under such rules and regulations as he may prescribe,” and that any person is prohibited from aiding or assisting the entrance or conniving or conspiring to allow, procure or permit such entrance “except pursuant to such rules and regulations made by the Secretary of Commerce and Labor.” In view of this wording the mere absence of such rules and regulations would not seem to constitute a defense to a charge based on the acts performance of which is prohibited in this section. Sec. 39. That a commission is hereby created, consist- ing of three Senators, to be appointed by the President of the Senate, and three members of the House of Represen- tatives, to be appointed by the Speaker of the House of Representatives, and three persons to be appointed by the President of the United States. Said commission shall make full inquiry, examination, and investigation by sub- committee or otherwise into the subject of immigration iSee United States v. Stevenson et al. 215 U. S. 200, 54 Law Ed. 157. 2/6td. The Existing Immigration Law. 315 For the purpose of said inquiry, examination, and inves- tigation, said commission is authorized to send for per- sons and papers, make all necessary travel, either in the United States or any foreign country, and, through the chairman of the commission or any member thereof to administer oaths and to examine witnesses and papers re- specting all matters pertaining to the subject, and to em- ploy necessary clerical and other assistance. Said com- mission shall report to the Congress the conclusions reached by it and make such recommendations as in its judgment may seem proper. Such sums of money as may be necessary for the said inquiry, examination, and in- vestigation are hereby appropriated and authorized to be paid out of the “immigrant fund” on the certificate of the chairman of said commission, including all expenses of the commissioners and a reasonable compensation, to be fixed by the President of the United States, for those members of the commission who are not members of Con- gress; and the President of the United States is also au- thorized, in the name of the Government of the United States, to call, in his discretion, an international confer- ence, to assemble at such point as may be agreed upon, or to send special commissioners to any foreign country, for the purpose of regulating by international agreement, subject to the advice and consent of the Senate of the United States, the immigration of aliens to the United States; of providing for the mental, moral and physical examination of such aliens by American consuls or other officers of the United States Government at the ports of embarkation, or elsewhere; of securing the assistance of foreign governments in their own territories to prevent the evasion of the laws of the United States governing immi- gration to the United States; of entering into such inter- national agreements as may be proper to prevent the im- migration of aliens who, under the laws of the United States, are or may be excluded from entering the United States, and of regulating any matters pertaining to such immigration. Under the provisions of this section a commission was appointed in the spring of 1907 which recently completed an exhaustive study of the “immigration problem.” Its report, comprising some forty volumes of information, 316 The Exclusion and Expulsion of Aliens. gathered from all over the United States and from many foreign countries, is about to be issued. So far its labors have not resulted in any new legislation, except the amendatory Act of March 26, 1910, relating to sexually immoral aliens, to which extended reference has been made 3 in the discussion of section 3. Several bills have been introduced, however, as the result of the commis- sion’s researches, and additional and more drastic legisla- tion seems to be assured. The President has, as yet, not seen fit to exercise the discretion conferred on him by this section to call an “international conference,” or to send commissions to for- eign countries in an effort to control immigration by in- ternational treaties or arrangements. It may be seriously doubted whether the immigration problem of the United States is susceptible of settlement by any means other than such municipal legislation as Congress may from time to time adopt; for there is little community of inter- est between the United States and the countries whence the aliens come as far as concerns the general question of restriction of immigration to the shores of this country. Doubtless the latter feel that so far as the welfare or fair treatment of their nationals may be involved, such matters should properly be left to the care of that government the benefits of whose laws and institutions they have seen fit to invoke in preference to their own. Sec. 40. Authority is hereby given the Commissioner General of Immigration to establish, under the direction and control of the Secretary of Commerce and Labor, a division of information in the Bureau of Immigration and Naturalization ; and the Secretary of Commerce and Labor shall provide such clerical assistance as may be necessary. It shall be the duty of said division to pro- mote a beneficial distribution of aliens admitted into the United States among the several states and territories desiring immigration. Correspondence shall be had with sAnte, p. 203. The Existing Immigration Law. 317 the proper officials of the states and territories, and said division shall gather from all available sources useful in- formation regarding the resources, products, and physical characteristics of each state and territory, and shall pub- lish such information in different languages and distribute the publications among all admitted aliens who may ask for such information at the immigrant stations of the United States, and to such other persons who may desire the same. When any state or territory appoints and maintains an agent or agents to represent it at any of the immigrant stations of the United States, such agents shall, under regulations prescribed by the Commissioner General, subject to the approval of the Secretary of Com- merce and Labor, have access tp aliens who have been ad- mitted to the United States for the purpose of presenting either orally or in writing, the special inducements of- fered by such states oT territories to aliens to settle therein. While on duty at any immigrant station such agents shall be subject to all the regulations prescribed by the Commissioner General of Immigration who, with the approval of the Secretary of Commerce and Labor, may, for the violation of any such regulation, deny to the agent guilty of such violation any of the privileges herein granted. » The object of this section will be noted, is “to promote a beneficial distribution of aliens admitted into the United States among the several states and territories desiring immigration.” The manner in which such distribution is to be attempted, however, seems, so far as its specifica- tion is attempted, to be confined largely to furnishing oral, written, or printed information to admitted aliens, and the division established in the Bureau of Immigration and Naturalization for this purpose is called the Division of Information. In a sense this section is related to sec- tion 6, 4 for it is based on a recognition of the fact that some of the states and territories of the United States are still bidding for immigrants to settle within their limits, especially for the purpose of taking up lands * Ante, p. 214. 318 The Exclusion and Expulsion of Aliens. there. Sections 6 and 40 constitute, therefore, a curious anomaly in the law, the general spirit of which is diamet- rically opposed to artificial or stimulated immigration, whereas the provisions of these particular sections tend to encourage if not to assist the states or territories to increase the influx of foreigners into their respective jurisdictions. Sec. 41. That nothing in this act shall be construed to apply to accredited officials of foreign governments nor to their suites, families, or guests. This provision was not contained in the Act of 1903. In an opinion of the Attorney General 5 it was maintained that, inasmuch as Congress had failed to explicitly except diplomatic officers and their suites from the operation of that Act, the latter must be deemed to be subject to the head tax described in section 1 thereof. It is only fair to Congress to suppose that at the time the Act of 1903 was passed it had no intention of interfering with the immuni- ties and privileges of diplomatic officers accredited to the United States by subjecting them to the payment of the personal head tax. Under the present section, however, it is clear that the question cannot arise.* Sec. 42. It shall not be lawful for the master of a steam- ship or other vessel whereon immigrant passengers, or passengers other than cabin passengers, have been taken at any port or place in a foreign country or dominion (ports and places in foreign territory contiguous to the United States excepted) to bring such vessel and pas- sengers to any port or place in the United States unless the compartments, spaces, and accommodations herein- after mentioned have been provided, allotted, maintained, and used for and by such passengers during the entire voyage; that is to say, in a steamship, the compartments or spaces, unobstructed by cargo, stores, or goods, shall be of sufficient dimensions to allow for each and every passenger carried or brought therein eighteen clear super- ficial feet of deck allotted to his or her use, if the compart- 525 Opin. Atty. Gen., 370, 1905. The Existing Immigration Law. 319 ment or space is located on the main deck or on the first deck next below the main deck of the vessel, and twenty clear superficial feet of deck allotted to his or her use for each passenger carried or brought therein if the com- partment or space is located on the second deck below the main deck of the vessel: Provided , That if the height between the lower passenger deck and the deck immedi- ately above it is less than seven feet, or if the apertures (exclusive of the side scuttles) through which light and air are admitted together to the lower passenger deck are less in size than in the proportion of three square feet to every one hundred superficial feet of that deck, the ship shall not carry a greater number of passengers on that deck than in the proportion of one passenger to every thirty clear superficial feet thereof. It shall not be lawful to carry or bring passengers on any deck other than the decks above mentioned. And in sailing vessels such pas- sengers shall be carried or brought only on the deck (not being an orlop deck) that is next below the main deck of the vessel, or in a poop or deck house constructed on the main deck; and the compartment or space, unobstructed by cargo, stores, or goods, shall be of sufficient dimensions to allow one hundred and ten cubic feet for each and every passenger brought therein. And such passenger shall not be carried or brought in any between decks, nor in any compartment, space, poop, or deck house, the height of which from deck to deck is less than six feet. In com- puting the number of such passengers carried or brought in any vessel, children under one year of age shall not be included, and two children between one and eight years of age shall be counted as one passenger; and any person brought in any such vessel who shall have been, during the voyage, taken from any other vessel wrecked or in distress on the high seas, or have been picked up at sea from any boat, raft, or otherwise, sTiall not be included in such computation. The master of a vessel coming to a port or place in the United States in violation of either of the provisions of this section shall be deemed guilty of a misdemeanor; and if the number of passengers other than cabin passengers carried or brought in the vessel, or in any compartment, space, poop, or deck house thereof, is greater than the number allowed to be carried or brought therein, respectively, as hereinbefore prescribed, 320 The Exclusion and Expulsion of Aliens. the said master shall be fined fifty dollars for each and every passenger in excess of the proper number, and may also be imprisoned not exceeding six months. This section shall take effect on January first, nineteen hundred and nine. As this section is no more than an amendment to the navigation laws it would seem to require no comment here. Sec. 43. That the Act of March third, nineteen hundred and three, being an act to regulate the immigration of aliens into the United States, exception section thirty-four thereof, and the Act of March twenty-second, nineteen hundred and four, being an act to extend the exemption from head tax to citizens of New Foundland entering the United States, and all acts and parts of acts inconsist- ent with this act are hereby repealed: Provided , That this act shall not be construed to repeal, alter or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent, nor to repeal, alter, or amend section six, chapter four hundred and fifty-three, third session Fifty-eighth Congress, ap- proved February sixth, nineteen hundred and five, or, prior to January first, nineteen hundred and nine, section one of the act approved August second, eighteen hundred and eighty-two, and entitled “An act to regulate the car- riage of passengers by sea.” This section has already been discussed in connection with sections 20 and 21 of this act. 6 Sec. 44. That this act shall take effect and be enforced from and after July first, nineteen hundred and seven: Provided , however , That section thirty-nine of this act and the last proviso of section one shall take effect upon the passage of this act and section forty- two on January first, nineteen hundred and nine. Approved, February 20, 1907. c Ante, p. 274. Status. 321 CHAPTER III. STATUS. I. In General. II. A. International Status. B. Personal or Individual Status. C. Preliminary Status. D. Municipal Status (Individual or Communicated). (I.) The Acquisition and Loss of Municipal Status . 1. Under the Chinese Exclusion Acts. (A.) Acquisition (In General). (1.) Of Individual Municipal Status. (2.) Of Communicated Status. (B.) Loss (In General). (a.) By Death. (b.) By Acts of Congress. (c.) By Act of the Parties. (1.) Loss of Individual Municipal Status. (2.) Loss of Communicated Status. 2. Under the Immigration Laws. (A.) Acquisition (In General). (B.) Through the Acquisition of American Citi- zenship. (1.) By Naturalization. (a.) Effect of Naturalization of Father on His Minor Children. (b.) Effect of Naturalization of Hus- band on Wife. a. Residence of Wife in this Coun- try. b. What Women May Be Lawfully Naturalized. c. When Purpose of Marriage is to Avoid Deportation. (2.) By Birth in United States Territory, (a.) The Wong Kim Ark Decision. (b.) Children of Aliens Born a. While in Detention Prior to Ad- mission. b. Of Parents Unlawfully Residing in United States. III. The Status of Domiciled Aliens. A. In General. 322 The Exclusion and Expulsion of Aliens. B. Aliens Who After Entering the United States (1.) Fail to Acquire a Domicile. (2.) Renounce a Domicile Once Acquired. C. Aliens Who Acquire a Domicile. (1.) Where Original Entry is Lawful. 1. Where Alien Commits No Act Which Would Render Him Subject 'to Expulsion. 2. Where Alien While Here or Abroad Commits Some Act Which Would Render Him Subject to Ex- pulsion. 3. Voluntarily Becomes While Absent a Member of a Class Excludable on Grounds Other Than Physical or Mental Disability but Membership in Which Would Not Render Him Subject to Expulsion. 4. Who when abroad is convicted of a felony or crime or midemeanor involving moral turpitude. 5. Where the Conditions Under Which He Entered Under an Earlier Act, and Which Involved No Question of Mental, Moral or Physical Dis- ability would have constituted a bar to his ad- mission had he attempted to enter for the first time under the present act. (2.) Where Original Entry is Unlawful 1. Where Alien Seeks to Re-enter Within the Three- year Period. 2. When He Leaves Before the Three-year Period Has Run and Returns After Its Expiration. 3. When He Leaves After the Three-year Period Has Run. D. The Acquisition of Domicile as Affected by the Minor- ity of the Alien. IV. Special Classes to Whom the Immigration Act Does Not Apply. A. Seamen. B. Stowaways. C. Natives of Insular Possessions. Status. 323 I. In General. In considering the question of the acquisition and loss of status by aliens who seek to enter or remain in the United States under the Chinese exclusion or immigration acts the need of a clear appreciation of what is meant by the use of the term “status” at once becomes apparent. As the very act of seeking admission into a foreign coun- try, or of tendering allegiance to a new sovereign whose will is expressed by laws differing often fundamentally from those of the country whence the alien comes involves not only one but several changes of status, the rights and obligations of the alien, differing as they do with the assumption of each succeeding condition, should be care- fully distinguished. The word status is defined as the standing or condition of the person (Webster’s New International Dictionary, 1911). For the sake of convenience and of avoiding con- fusion in the use of so comprehensive a term the following classification is adopted. (1.) International Status, or the rights and obligations vested in and imposed upon foreigners by international law when they as aliens seek to enter or remain in the territory of a sovereign state other than their own. (2.) Personal or Individual Status, or the condition of an alien who, for purposes of expatriation, leaves his na- tive land and arrives at a port of the United States. (3.) Preliminary Status, or the condition of an alien whose right to enter, after arrival at a port of the United States for purposes of entry, has not been passed upon by the administrative officers but is pending before such officers, or whose right to enter has been adversely passed upon by those officers but is pending before a judicial tribunal. (4.) Municipal Status, or the condition of an alien who has been duly admitted in accordance with the provisions of the immigration and the exclusion laws, or who, having 324 The Exclusion and Expulsion of Aliens. entered unlawfully because being excludable under the former, has resided in this country unmolested by the immigration officials during the statutory period after the expiration of which he cannot be deported on the charge of unlawful entry. Municipal status acquired by virtue of these laws may be classified as (1) individual and (2) communicated status; the first being that ac- quired by an alien on a satisfactory showing that he himself possesses the attributes which entitle him to ad- mission; the second expressing the condition of a for- eigner who of himself or herself cannot claim the right to enter or remain in this country, but in whom, by virtue of the existence of such right in another, the law presumes the existence of a corresponding right. Municipal status as the term is used here may be further classified as (3) permanent or (4) conditional; permanent as to those aliens who after lawful entry or after the expiration of three years after unlawful entry do not commit acts which subject them to exclusion under the immigration laws, conditional as to those who do perform such acts. To avoid confusion, however, it is thought best to consider the municipal status acquired by aliens belonging to classes (1) and (2) as constituting a standing perma- nent under the immigration laws except in so far as it is subject to forfeiture by the performance of prohibited acts. The condition of the alien who has entered the United States unlawfully cannot, during the running of the three year period, be correctly classified as a condi- tional status, since, having entered in violation of those laws, he cannot be deemed to have acquired any status thereunder. II. A. International Status. The term international status as used in this classifica- tion denotes the situation which, in international law as opposed to municipal law, any alien occupies who leaves Status. 325 his country of origin, and applies for and obtains admis- sion for residential purposes to the country of another sovereign state. While the United States on more than one occasion has publicly announced and recognized as an incontrovertible principle “the inherent and inalienable right of man to change his home and allegiance” this enunciation cannot, of course, be deemed to ignore the equally important prin- ciple that the will of the sovereign state is supreme within its territorial limits, and that foreigners can enter only by the consent of the sovereign. There exists, then, in inter- national law no such thing as the personal or natural right of the individual alien to enter as against the sov- ereign will to exclude. Congress has the undoubted right to prohibit the en- trance into this country of any and all aliens, or to expel those already admitted, or to prohibit or conditionally permit the re-entrance into the United States of aliens who have already acquired a domicile here. This power is an attribute of national sovereignty as necessary as that of exercising any other act tending toward national self- preservation. Needless to say the exigency calling for the exercise of this power of general exclusion has never yet arisen, and would in all likelihood prove of doubtful vin- dication; for, as Hall says, for a state to exclude all for- eigners would be to withdraw from the brotherhood of civilized peoples . 1 On the contrary, the avowed policy of this country has been from the time it became a sov- ereign state to leave its ports open to social and commer- cial intercourse between its citizens and the nationals of its sister states. While against the expression or without the acquiesc- ence of the sovereign will no alien can claim a right to enter or remain within the limits of a foreign state, a dif- ferent situation arises when a state, by opening its ports, or by the establishment or promulgation of a gen- iHall International Law, 4th Ed., p. 223; ante, p. 3. 326 The Exclusion and Expulsion of Aliens. eral policy, indicates its willingness to receive as residents the citizens or subjects of foreign nations. The state by extending such an invitation impliedly binds itself to pro- tect all foreigners who avail themselves of the privilege of entering; and in return for this protection the alien, even though he retains his citizenship of origin, owes at least a temporary allegiance to the protecting state. The obligation to protect necessarily involves the exist- ence of rights which are to be protected; and it is these rights which the alien may call upon the state at any time to protect which clothe him with a definite status in international law. That status is expressed in a well- known principle of the law of nations that an alien avail- ing himself of the invitation thus offered by a foreign state, is entitled to all the rights which citizens of that state enjoy. On his part, he assumes all obligations im- posed by the laws and constitution of the country, except- ing rights or obligations of a nature purely political aris- ing merely by virtue of actual citizenship. This general principle must, however, always be applied with the reser- vation that the alien, in accepting the new protection, is subject to all the municipal laws of the country offering it, even though the laws themselves provide restrictions on the rights of the alien who submits himself to the operation thereof. The state’s only method of protection is by the enforcement of its laws, and this the alien is pre- sumed to know. If, on the one hand, the offer of protection extended by the state is a guaranty that the alien coming in response thereto shall be protected to the extent of its laws, on the other hand, the fact that the alien seizes the opportunity thus afforded is a guaranty that he volun- tarily submits to the operation of those laws, even though their effect be to impose limitations on the rights or rem- edies of the alien not imposed upon citizens. It is, however, to be presumed that in availing itself of the sovereign privilege to enact restrictive legislation regarding aliens, the state will observe the utmost frank- Status. 327 ness and good faith ; in other words that when a state has once invited the entrance of foreigners no restric- tions touching their right to enter into or reside therein should be imposed upon them other than those openly designated in existing treaties, decrees or public laws. Sir Robert Phillimore echoes a previous enunciation of an important principle of the law of nations when he states that no nation has the right to set a trap for for- eigners . 2 As before stated, in seeking the protection of a foreign state the alien impliedly agrees to submit to what- ever restrictions, whether touching the manner of his entry or the conditions under which he may be permitted to reside, which the municipal law imposes at the time of his admission into the country; he also impliedly sub- mits to the exercise by the state of its inherent right to impose further restrictions on him as an alien during the course of his residence, or even to cause his removal from the country, should the exigency therefor arise. But he cannot be said to impliedly submit to burdens other than those actually expressed in the municipal law of the country at the time of his entry or subsequently adopted by the law-making power to meet conditions which may not have existed at the time of such entry. In other words, while certain privileges conferred upon aliens under the laws existing at the time of their entry cannot be said to constitute vested rights 3 in the sense that they cannot be revoked by subsequent legislation on the part of the state based on a change of conditions coming into existence after such entry, the proper view seems to be that, in order justly to work such revocation, not only is new 2 Phillimore, International Law, Yol. 2, Chap. 2, citing Vattel, Droit des Gens. 3ln the case of Chae Chan Ping v. United States, 130 U. S. 581, quoted in Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905, the Supreme Court said: “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, not such as are personal and untransferable in their nature/ * 328 The Exclusion and Expulsion of Aliens. municipal legislation necessary, but the intent of the legislative power to impose further restrictions on domi- ciliary or other rights lawfully acquired must plainly ap- pear . 4 To sum up, the status which any alien seeking admis- sion to the United States enjoys by the force of inter- national law alone, consists in the right to enter and re- main in this country and to enjoy the civil rights and privileges which citizens of this country resident therein may claim, subject, however, to all the restrictions and limitations imposed upon him as an alien by the laws of Congress regulating the entrance and residence of foreign- ers in this country and always subject, as long as he re- mains an alien, to the exercise of the inherent right of Congress to exclude or expel him absolutely from United States territory. B. Personal or Individual Status. By the term “personal or individual status” of an alien seeking to enter or to remain in the United States is meant his actual social standing or condition, as opposed to the position which he may occupy by reason of rights vested in him or obligations imposed upon him by international law or the municipal law of the United States. Before a foreigner has, in any of the methods provided by the acts of Congress, established his right to enter into or remain in the United States, he cannot be said, as far as this country is concerned, to have acquired a municipal status ; for by the provisions of those acts the question whether he has a right to enter or remain depends on the decision of the administrative officers in those cases in which their decision is made by law final, or on the decision of the Courts whenever they are empowerd to pass upon the case. He has, nevertheless, apart from an international status, a standing of some kind as an individual. He may be a ^Rodgers v. United States, 152 Fed. 346; Lau Ow Bew v. United States, 144 U. S. 401, 36 L. E. 340. Status. 329 laborer, a lawyer, or a merchant; yet that fact has, gen- erally speaking, no legal existence, as far as vesting him with any right to enter or to remain is concerned, until it is duly proven. The question of individual or personal status seldom assumes importance; but cases have arisen which point out the need of making clear the distinction between what is here defined as a municipal and a purely personal status. Under the Chinese exclusion laws there is only one class of Chinese persons who can under no circumstances ac- quire through their personal status a municipal status, to wit, Chinese laborers. All other Chinese may establish a municipal status under those laws, but only on proof of the existence of an actual personal status other than that of laborer. The need of distinguishing between a per- sonal and a municipal status can, of course, only arise where the personal status, duly proven, is such as can lay the foundation for a municipal status. It is perhaps the lack of precision with which the term “status” has been applied in questions arising under the Chinese Exclusion laws which leads to the need of appre- ciating the fact that aside from its creating a foundation for establishing a municipal status, personal status is an element which cannot always be overlooked. For in- stance, it is often affirmed that a Chinese alien who fails to prove his right to enter the United States has no status whatever. What is meant is that through failing to prove the requisite personal status — that is, membership in a class which entitles the applicant to admission under the Chinese Exclusion laws — he has failed to give proof of a right to enter under those laws. On more than one occa- sion the courts have gone so far as to hold that failure to prove the existence of a personal status which, if proven, would give the applicant the right to enter the United States, leaves him so entirely without a status of any kind as to make it incumbent upon the law to vest him with an artificial standing quite different from what his 330 The Exclusion and Expulsion of Aliens. personal status actually is. In other words, the Federal courts have in one or two instances taken the ground that even where it is admitted that an alien actually belongs to one of the exempted classes, the fact of his having been admitted on a deficient certificate by the examining officer absolutely deprives him of, or nullifies in law, his stand- ing as a member of that class. In the case of the United States v. Chu Chee 5 it was held that two Chinese minors admitted on deficient stu- dent certificates, who from the time of their entrance into the United States continued to be students, were laborers because their father, domiciled in this country, was a laborer ; that their status was that of laborers at the time they were admitted and that they could not be deemed to assume an exempt status after unlawful entry by doing the acts incidental to such status. The Chinese Exclusion acts contain no provision to the effect that persons of the exempt classes who fail to produce certificates issued in accordance with the law shall be deemed to be other than what they actually are; those acts simply provide that such persons shall be refused admission into this country. The true status of the applicants under the facts found, was that of students who had been allowed to enter the United States on defective certificates; and the right to enter being by law made to depend on the presentation to the proper officials of certificates filled out as prescribed by law, they did not acquire the right to enter. But the actual status, meaning thereby the condition or situation of a person, cannot be altered by failure to present proper proof thereof, although the exercise of the right claimed by virtue of the status — the right of entrance in this case — may be denied until proper proof thereof is pre- sented. There is no doubt that, had the applicants been refused admission at the port because of their failure to present the required evidence of their right to enter, this s 93 Fed. 797. Status. 331 defect could have been subsequently cured by presenting certificates in the form required by law. The court held that by reason of the defects in the certificates presented they could not be students, and that not being students, and being minors, they had no individual status whatever, apparently overlooking the fact that the real question in- volved in the case was not the controversion of a status claimed, but the question of whether or not the defective certificates gave the holders the right to remain ; and that the decision of this question did not involve the consider- ation of whether the boys were or were not laborers. This case is often referred to as constituting authority for the proposition that an exempt status cannot be ac- quired by one who has entered the United States unlaw- fully. But, as pointed out, in so far as the court took it for granted that the defendants attempted to assume an exempt status after unlawful entry clearly it must be wrong; for all they sought to do was to maintain the status of students after having been permitted to enter. The view that they must be considered as having acquired the personal status of their father, based as it is on the assumption of the absence of any status of their own, would seem equally unfounded. But assuming that being minor sons of a laborer they could not belong to the exempt student class — which in itself is absurd — and assuming furthermore that they actually took on the status of their father, the fact that the rights acquired by him as a laborer were transmitted to them could not make them laborers. They were, under this conception, the minor children of a laborer who himself had the right to re- main in the United States. In order to acquire this right he had been obliged to register under the Act of May 5, 1892, but this obligation was not by law communicated to the boys, for the simple reason that they were not laborers. The Supreme Court has decided that the obligation rest- ing on Chinese persons of the exempt class to produce the 332 The Exclusion and Expulsion of Aliens. certificates of identity required by the Act of 1882 in order to entitle them to admission to the United States, does not rest upon the wives and minor children. 6 It appears, however, that in its final result — that the boys were subject to deportation — the decision was correct, since seeking admission as members of an exempt class, they were bound to justify their right to enter in the method required by law ; and although admitted by an im- migration official, were unlawfully in the United States, since their certificates — on which alone their right to enter was based — were deficient in law. In this regard the case is analogous to that of the laborer who enters in absence of any right at all and then subsequently becomes a mem- ber of the exempted class. It is the unlawful entry which constitutes in such cases the real ground of deportation irrespective of the status subsequently acquired. It seems clear that the personal status of an applicant for admission is no more nor less in fact than what he is at the time of making his application ; and his actual con- dition is not affeqted by the fact that he fails to prove the existence thereof to the satisfaction of the inspecting authorities and in the mode prescribed by the statute. His right to enter does not depend on the existence of a given condition, but on whether or not he succeeds in proving the fact in the mode and in accordance with the conditions prescribed by law. Thus, while the examining inspector may be entirely satisfied in his own mind that a Chinese person seeking admission is a member of one of the classes exempt under the Chinese Exclusion act, he must deny him admission if the certificate presented by him does not meet the requirements of the act; but the position of the rejected applicant is in fact merely that of a member of such exempt class who has not* presented documents sufficient in law to entitle him to admission. His actual status or condition, viewed as a question of eUnited States v. Gue Lim, 176 U. S. 459, 44 Law Ed. 544. Status. 333 fact rather than of law, is not affected by the circum- stance that his papers are deficient. After rejection he may return with a new or amended certificate and be ad- mitted upon satisfactorily passing the inspector’s exami- nation. The Chu Chee case shows that the observance of these principles becomes of practical value in cases where the examining officer, convinced that the applicant belongs to one of the exempt classes, permits him to enter on a de- ficient certificate. It is true that entrance in such a case is unlawfully effected; but the fact of unlawful entrance cannot operate logically to divest the alien of the actual personal status with which he is clothed. The true ground of expulsion in such a case is not that the alien is not a member of the exempt class, but because, although a mem- ber of such class, he has not entered this country in exact accordance with the terms of the law authorizing the en- trance of such persons. The subject of personal status as distinguished from the mental or moral or physical condition of a person, has not the same importance when considered in connection with the immigration laws that it bears to the Chinese Exclu- sion acts. Under the latter the primary question to be determined is whether or not the Chinese alien belongs to one of the exempt classes; under the former, whether the alien is a member of a general class the members of which are generally admitted to entry, or is afflicted with mental, moral, or physical disabilities which, by the immigration laws, exclude him from admission to this country. Under the Chinese Exclusion acts the question of admissibility is made one of vocational classification, while under the Immigration acts it is largely one of personal qualifica- tion. Under the Chinese Exclusion acts the question of personal status acquires importance from the fact that it involves the possession of certain social attributes, whereas questions of social classification play but an in- significant part in the determination of the question of 334 The Exclusion and Expulsion of Aliens. the admissibiliy of an alien under the Immigration acts. Under the Immigration acts it is immaterial whether the alien other than Chinese seeking admission to the United States is a laborer, a merchant, or a lawyer; his right to enter depends absolutely upon his mental, moral, or physi- cal fitness. As the Immigration acts apply to aliens and yet leave the Chinese Exclusion acts in full force and effect, the right of Chinese persons to enter or to remain depends, first, on personal status dependent upon voca- tional classification; second, on proof of the existence of the classified status; and, third, upon the fact that the.) are free from disabilities the presence of which would ex- clude them under the Immigration act. By the Chinese acts, the burden of proving the existence of the personal status upon which subsequent municipal status must be based is cast upon the applicant; under the Immigration acts personal status, from the point of view of vocational classification, not being one of the necessary elements of admissibility, is of no importance; and, as aliens other than Chinese are generally admissible, when administer- ing the Immigration acts the burden of proving that an alien cannot claim the general exemption rests ordinarily with the Government. C. Preliminary Status. The question of the personal or individual status of aliens seeking admission to the United States has been discussed from the standpoint, irrespective of proof, of what the actual standing or condition of such an alien is, without reference to any rights to which he may lay claim because he is within the jurisdiction of the United States. The alien who leaves his country of origin with the inten- tion of taking up his permanent abode within the United States, and in pursuance of that intention comes to a port of the United States may be said to renounce, as far as personal inclination is concerned, his allegiance to his former sovereign and to proffer his allegiance to the new Status. 335 sovereign. Once within the jurisdiction of this country he has, at least for the time being, placed himself beyond the operation of the law of the state of his origin except, of course, in so far as by treaty between that country and the United States it may have been agreed to return him to his sovereign’s jurisdiction, as for instance, where he is a fugitive from justice and subject to extradition. The ordinary alien immigrant arriving at a port of the United States, but not yet admitted by the Immigration authori- ties, has nevertheless come to this country, and is, with qualifications, within its jurisdiction and subject to the operation of its laws. His status is that of a citizen of a foreign power seeking admission to the United States and temporarily within its jurisdiction until the question of his admissibility under the laws relating to the admission of aliens is finally decided. The political question to be determined by the United States is whether or not it will accept the allegiance proffered. It is true that by the mere fact of coming within this jurisdiction the alien has placed himself within the protection of the state exercising that jurisdiction; and that no right to protection, however limited, can exist without giving rise to certain duties of obedience and allegiance. But the ephemeral allegiance brought into being by the physical presence of the alien within this jurisdiction is far removed from even that tem- porary allegiance to which residence or presence actually acquired within the territorial limits of a sovereign state give rise; and the fact that the alien himself may be will- ing and even anxious to pledge a permanent allegiance under these conditions cannot alter the nature of the re- lations existing between him and the United States at this preliminary stage. The question is still open as to whether or not the United States will accept from him that allegiance which is the necessary result of actual presence within the territorial limits of this country and extend to him the corresponding protection. The obliga- tion to protect necessarily implies the existence of rights 336 The Exclusion and Expulsion of Aliens. to be protected, and the term preliminary status” of the alien as used in this connection designates the meas- ure of those rights which, under these conditions, he can successfully call upon the judicial or executive authorities of the United States to enforce. It is not the physical sur- roundings of the alien — whether he is still detained on or returned to the vessel on which he came, or has been re- moved to a house of detention or any other suitable place of maintenance for safe keeping— that affects the nature of his allegiance, the quality or amount of the protection due him, or the rights which he can claim thereunder. It was affirmed at an early period in the history of the Im- migration acts that the removal of the alien from the ves- sel to temporary confinement within the territorial limits of the United States must have no effect upon his pre- liminary status. But it has been affirmed judicially that the mere fact of having set foot on land pending the de- termination of deportation proceedings does not alter the alien’s situation, in so far as his right to invoke the ap- plication of constitutional guarantees is concerned. For such purposes his situation is no more nor less that it would be had he never been placed on shore . 7 It has been said that the constitution of the United States may be invoked for the protection of each and every person within the territorial limits of the United States including every Chinese alien who has entered and is found therein ; 8 but this is far from saying that each and every personal guarantee contained in that instru- ment applies with equal force to all individuals in the jurisdiction of the United States, irrespective of the con- ditions under which they are invoked. As has been stated 9 the position of aliens who have been admitted into the ?Ekiu v. United States, 142 U. S. 651, 35 Law Ed. 1146; United States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040; United States v. Seabury, 133 Fed. 983; In re Gayde, 113 Fed. 588; In re Way Tai, 96 Fed. 484; and see Zartarian v. Billings, 204 U. S. 170, 51 Law Ed. 428. sUnited States v. Wong Dep Ken, 57 Fed. 206. *Ante, p. 134. Status. 337 United States and made the subject of deportation pro- ceedings prosecuted in accordance with the laws regard- ing the admission and expulsion of aliens passed by Con- gress in the exercise of its sovereign powers is sui generis ; the constitutional guarantees of the right to trial by jury, of the right to be confronted with one’s accusers, and of the right to be excused from testifying against one’s self have no application to such proceedings . 10 But no court has thus far unqualifiedly asserted that the constitutional guaranty of due process of law does not apply to aliens seeking to enter the United States; on the contrary, such due process has been provided by Congress in appointing methods of administrative procedure and of regulating the admission and exclusion of aliens. If this principle applies to aliens subjected to deporta- tion proceedings who have already been admitted into the country, it must then, a fortiori , fit conditions arising from the application of aliens for admission and prior to the fact of such admission. Being physically within the ju- risdiction of the United States he has the right to invoke due process of law. He cannot base his demand on the ground that the nature of the proceedings per se falls short of being due process ; for, being created and author- ized by Congress in the exercise of powers bestowed by the constitution, those proceedings represent the only process applicable to the case. But, even so, the procedure adopted, must not in any of its phases, violate any of the fundamental principles of right and justice on which the Constitution is based. Thus, if it provided for the arbi- trary deportation of aliens, or for their imprisonment after an administrative hearing as the result of the at- tempt to enter when not entitled to do so, the alien would i°Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905; Chin Bak Kan v. United States, 186 U. S. 193, 46 Law Ed. 1121; Yama- taya v. Fisher, 189 U. S. 186, 46 Law Ed. 721; Ekiu v. United States, 142 U. S. 651, 35 Law Ed. 1146. 338 The Exclusion and Expulsion of Aliens. have his right of appeal to the Courts . 11 Again, were at- tempt made under the Immigration laws to deport a per- son not a citizen of the United States, to whom those laws have no application he could, on the plea of absence of due process be released from such wrongful detention . 12 The courts have however stopped at this point, holding that except in such extreme instances as above cited aliens detected in the attempt to violate the laws of this country relating to their admission have no right to invoke the guarantees of its national constitution . 13 D. Municipal Status. The term “municipal status” in its specific application to the Immigration and Exclusion Laws is here used to denote the rights acquired by an alien under the munici- pal laws of the United States regulating the subject of the admission and exclusion of aliens after having been duly admitted to residence here by the administrative officers; or, it may be added, an alien who enters this country irre- spective of the provisions of the Immigration or the Exclu- sion laws, where those laws have no application to the particular alien; and to these two classes of foreigners there must be added a third — that of aliens who, after having entered unlawfully have remained here for a longer period than that in which the law authorizes their de- portation, if found to have entered unlawfully. This con- dition is, as between the Immigration and Chinese Exclu- sion Laws peculiar only as to the former, since the latter provide no period after the expiration of which Chinese nYamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721; Wong Wing v. United States, 163 U. S. 230, 41 Law Ed. 140. 12 In re Buchsbaum, 141 Fed. 221, affirmed in Rodgers v. United States, 152 Fed. 346; United States v. Nakashima, 160 Fed. 842; Gonzales v. Williams, 192 U. S. 1, 48 Law Ed. 317. i3United States ex rel. Turner v. Williams, 194 U. S. 279, 48 Law Ed. 979; In re Chin Wah, 182 Fed. 256; Ex parte Lung Wing Wun, 161 Fed. 211; Wong Sang v. United States, 144 Fed. 968; United States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040. Status. 339 persons found to have entered this country are no longer subject to expulsion. The fixed municipal status is, of course, permanent only insofar as existing laws regulating the admission and exclusion of aliens are concerned. No foreigner, as long as he retains his political status as such, can be said to acquire a permanent municipal status in the United States, in the sense that it may not be submitted to the restrictive operation of Congressional legislation passed subsequent to his admission, or altogether terminated by such legislation; in other words, the rights of foreigners residing in the United States are always conditional on the continuance of the governmental permission to exer- cise them. It is not necessary, in order to acquire a fixed municipal status, in the sense in which the term is used here, that the alien shall be one of a class not subject to exclusion under the Exclusion or Immigration acts; for since those acts designate in various provisions the conditions under which aliens who have already entered may remain, the fulfillment of those conditions, or the expiration of the term during which their fulfillment may be required, serves to terminate the jurisdictional authority of ad- ministrative officers to deport. Thus, it is provided in sec- tion 21 of the Immigration act that any alien who has entered the United States may, within three years, be arrested and deported on a warrant issued by the Secre- tary of Commerce and Labor, if the latter shall be of the opinion that the alien is unlawfully in the United States. The act of deporting such alien is the extent to which the Immigration laws can be operative with regard to him within the three year period. With the passing of the period the right to deport no longer exists, and the right to remain becomes absolute as far as the Immigration act is concerned. So too with regard to the right of the Sec- retary of Commerce and Labor to deport within three years after landing aliens who within that period have 340 The Exclusion and Expulsion of Aliens. become public charges from causes existing prior to land- ing; the expiration of the three year period places the alien beyond the reach of the provision. It is to be noted however, that, although the standing of the alien with regard to the rights which he may exercise after entry is conditional on being allowed to continue to exercise them during the three year period ( and to that ex- tent his municipal status under that law might be desig- nated for the sake of convenience as a conditional munici- pal status ) the true ground for his expulsion is not that he is occupying a status subject to termination by the admin- istrative authorities within the designated period, but because, being unlawfully in the United States he is to be deemed as having entered unlawfully and therefore as never having acquired any municipal status whatever. The Acquisition of a “municipal status” and a domicile distinguished. The term “municipal status” acquired under the immi- gration laws is in no way to be confused with the acquisi- tion of domicile. An alien, who, whether entering in viola- tion of the Immigration acts, or, after being duly passed by the immigration authorities in the manner provided by law, takes up his residence here with intent to remain has done all that is necessary for the acquisition of a domicile. The only difference is that if the entry is lawful the mu- nicipal status is fully established, subject only to termi- nation by the commission of acts subsequent to entry which the law provides shall justify the forfeiture of the domicile lawfully acquired; whereas, if the entry is un- lawful the municipal status is not complete except on the expiration of the three year period within which aliens entering in violation of law are subject to deportation on the ground of unlawful entry. Municipal status under the Act of 1907, as amended by the Act of March 26, 1910, when fully acquired by aliens, involves not only the acquisition of a domicile, but of the right to maintain it Status. 341 subject only to its forfeiture by the commission of acts which the law provides shall have that effect. The distinction between the mere presence of an alien in this country after unlawful entry subject to termina- tion by deportation within the statutory period, and a status lawfully acquired under the Immigration law sub- ject to forfeiture by the commission of a certain act or acts is by no means academic. The recognition of this distinction becomes of the first importance in considering questions arising in connection with the right of an alien to re-enter the country based on previous domicile here; for in so far as, under the Immigration acts, the right of an alien to re-enter is based on continuing rights of domi- cile previously acquired, it seems plain that the acquisi- tion and the maintenance of the domicile must be lawful in order to sustain the alleged right to re-enter based thereon. The alien who enters the United States lawfully is, theoretically at least, absolutely immune from the oper- ation of the three year provision; his municipal status is acquired at the moment that his entry is lawfully accom- plished and the fact that he leaves this country for a tem- porary visit abroad prior to the expiration of the three year period can have no effect on rights, domiciliary or others, already acquired, which, through the very fact of their lawful acquisition are beyond the reach of the three year period. On the other hand the alien who enters un- lawfully and departs within the three year period has, from the time of entry until that of temporary departure, never acquired any municipal status under the Immigra- tion acts, and cannot therefore, invoke an unauthorized residence in support of the right to retain or resume it. A different question is presented by cases where the three year period has run as to aliens who have unlawfully en- tered and remained in the United States until the expira- tion thereof. This question will be considered in a later 342 The Exclusion and Expulsion of Aliens. section. 14 The only example of true conditional municipal status afforded by the Immigration law is in Section 3 as amended by the Act of March 26, 1910, which provides for the deportation to the country from whence they came, of aliens who, after having entered the United States law- fully or otherwise, are shown to have committed during their sojourn here certain prohibited acts. Here the law provides for the forfeiture by deportation of an estab- lished municipal status by those who have lawfully ac- quired it — which is very different from the removal from the United States of persons who have never lawfully come within its limits. (I.) The Acquisition and Loss of Municipal Status. Inasmuch as the provisions of the Chinese Exclusion and Immigration Acts constitute the municipal legisla- tion adopted by Congress for the regulation of the admis- sion and expulsion of aliens from the United States, the term “Municipal Status’’ as here used denotes the rights and obligations granted to and imposed upon foreigners by those special laws — not the general standing or condi- tion of aliens in this country apart from the operation of these special acts; for their general municipal status does not include rights or obligations originating in or de- pendent on the laws regarding the admission or expul- sion of aliens. 1. Under the Chinese Exclusion Acts. (A.) Acquisition (In General). 1. Of Individual Municipal Status. The acquisition of Municipal status under the Chinese Exclusion Acts depends on ( 1 ) the existence of a personal status in the applicant which, if proven, entitles him to entry at once; (2) proof of the personal status in the i * Post , p. 465. Status. 343 manner provided by law. Mere length of residence in this country is insufficient to establish the existence of a status lawfully acquired under these acts, or to give rise to a presumption that a Chinese person entered before the Act of 1882 went into effect. 15 By Article I of the Treaty of November 17th, 1880, between the United States and China 16 it was mutually agreed that the United States might regulate, limit or suspend the coming to or residence in this country of Chinese laborers but that such coming or residence might not be absolutely prohibited. The Acts of May 6, 1882, and July 5, 1884, passed for the purpose of exercising the right of suspension of Chinese immigration acknowledged in the treaty, prohibited for the term of ten years the coming to the United States of all Chinese laborers ex- cept such as were already in the country on the date of the conclusion of the treaty, or should have entered within ninety days thereafter. The effect of this legislation was to render the acquisition of a municipal status under the Exclusion acts an impossibility for Chinese persons of the laboring class. Provision was made, however, for the retention of rights already acquired by means of certifi- cates to be delivered by the customs officers to Chinese laborers already in the United States on the occasion of their departure from this country whereby their identifi- cation on return from a temporary absence might be se- cured. The acquisition of municipal status by members of the exempt classes under those acts was made conditional on the presentation at the ports of entry of a certificate of identity issued by designated authorities of the Chinese government, commonly called a “Section 6” certificate. This certificate was made by the laws in force to consti- tute prima facie evidence only that the rights enjoyed by ^United States v. Ah Chung, 130 Fed. 885. i QAnte, p. 26. 344 The Exclusion and Expulsion of Aliens. virtue of entry granted on presentation thereof were law- fully acquired; and the holder might at any time after entering be deported if the authorities found that the entry was unlawful. Unlawful entry might result from several causes, such as the wrongful acquisition of the certificate by a person not entitled thereto, or the fact that the certificate itself did not meet with the requirements prescribed by law. 17 But the fact that the acts provided that the contents of the certificate were always subject to rebuttal could not in law qualify the right to remain as conditional provided that it actually existed. A Chinese person — and this term includes all Chinese persons whether domiciled in China or elsewhere at the time of their application for admission to the United States 18 — ad- mitted under the law either has or has not acquired a municipal status thereunder. If his entry is lawful his status exists the moment he is admitted: if unlawful, he never acquires any status under the Exclusion laws, and the protection which he enjoys as a resident may be taken away by deportation as soon as his illegal presence is dis- covered and proven. In such cases no question of mu- nicipal status arises. The municipal status acquired by entry based on a “sec- tion 6” certificate issued according to law, while being complete, as far as the act under which it was issued was concerned, was and is subject to termination in any mode which such succeeding statutes might or may prescribe. The Chinese person of the exempt class, being an alien and, under our laws, incapable of naturalization, could claim no greater right through having been admitted in accordance with the Exclusion Act of 1882 than any other alien residing in the United States. He like any other alien, can never acquire by domicile or otherwise, a vested right to remain. On four distinct occasions Congress has i^Cheung Pang v. United States, 133 Fed. 392; United States v. Pin Kwan, 100 Fed. 609; Mar Bing Guey v. United States, 97 Fed. 576. i»Act of September 13, 1888; United States v. Foong King, 132 Fed. 107. Status. 345 exercised its inherent right to expel Chinese, irrespective of whether they have entered lawfully under the Exclusion laws, and without regard to domiciliary rights acquired by residence, even when based on prior treaties; and on each occasion the power of Congress to enact such pro- visions has been upheld by the highest tribunal of the United States. By the Act of October 1, 1888, Congress denied the right of reentering this country to Chinese laborers whether or not provided with the return certificates prescribed by the Acts in force, and which under these acts entitled the holder to return to this country. By the Act of May 6, 1892, further residence in the United States by any Chi- nese laborer, whether legally here or not, was made con- ditional on hi$ obtaining a certificate of registration from the Collector of Internal Revenue, or proving by special rules of evidence the fact that he had resided here prior to the date on which the law went into effect, and had been prevented by Unavoidable causes’’ from securing said certificate. To obtain a municipal status under the new law the certificate of residence was sufficient, and it was held that in order to overcome the presumption of the ex- istence of such status arising from its possession it was necessary for the testimony of the Government to be clear and convincing. 19 Indeed it was held in one case that where a Chinese person was ordered deported in a judg- ment on habeas corpus where the petitioner had sought judicial relief from an order of deportation, and after giving bail failed to appear and was later apprehended for the purpose of carrying out the judgment, and was found to have been granted a certificate of residence duly issued by the Collector of Internal Revenue under the Act of 1892 as amended, the certificate constituted conclusive proof of his right to remain in this country. 20 The effect of the judgment of discharge rendered by a United States 19 Jew Sing v. United States, 97 Fed. 582. 20 In re Tom Hon, 149 Fed. 842. 346 The Exclusion and Expulsion of Aliens. Commissioner has been held a bar to further proceedings against the same party on the same facts before a Dis- trict court of the same district; 21 and the jurisdiction of the Commissioner to cancel a certificate of residence on the ground that it was obtained by fraud has been de- nied. 22 But the judgment of discharge cannot operate to establish the existence of municipal status under the Act of 1892 if not rendered on the merits of the case. 23 Again the Act of November 3, 1893, amending that of May 5, 1892, provided that any Chinese person alleging himself to be a Chinese merchant seeking to re-enter the United States was under the obligation of proving the fact of a prior commercial domicile in this country for the year im- mediately preceding the alleged departure by special rules of evidence specified in the act. In the absence of such proof acquisition of a municipal status under this law is impossible. Finally, by the Act of August 18, 1894, Congress made the right to resume a commercial domicile previously ac- quired by Chinese person depend absolutely on the de- cision of the appropriate administrative officer; with vhe result that to-day a Chinese merchant who may have been lawfully established in this country for a generation can- not leave the United States for a temporary visit to China or elsewhere on business or pleasure, without running the risk of losing a municipal status lawfully acquired and for years as lawfully maintained, unless he succeeds in prov- ing its existence under conditions far more onerous than those to which he would be subjected had he never ac- quired it. (2.) Communicated Status. Generally, the acquisition of municipal status under the exclusion laws is, as previously stated, dependent on 2iUnited States v. Yeung Chu Keng, 140 Fed. 748. 22 In re Lee Ho How, 101 Fed. 115. 23j&r parte Loung June, 160 Fed. 251. Status. 347 proof by the applicant himself that he belongs to the exempt classes of Chinese, and on the presentation of the facts on which the right to enter is based according to the methods prescribed by law ; i. e. by a certificate of identity duly issued. Due recognition is, however, accorded to par- ticular cases in which, in order to entitle the applicant to the right to enter, only such evidence is required as will prove the existence of a communicated status. Such a condition arises when a Chinese person presents himself for admission, the right to enter being based on a mu- nicipal status previously acquired by an individual whose social connection with the applicant is so intimate and binding as to give rise to the presumption that the rights acquired by the former are necessarily communicated to the latter. Thus, it has been definitely determined, after decided vacillation of judicial opinion, that the wives and children of Chinese persons of the exempt classes who have been granted admission to the United States, have under the laws and treaties in force the right to enter by virtue of either marital or parental relationship, and by virtue of that alone. 24 In the case of United States v. Gue Lim, 25 the Court held that the provision of Section 6 of the Act of May 6, 1882, as amended by that of July 5, 1884, which made it incumbent on Chinese members of the exempt classes to present a certificate of identity as a prerequisite to acquisition by them of a municipal status under the act, had no application to the wife and minor children of a Chinese merchant who accompanied them or was already domiciled in this country. It was pointed out that the fact that such persons were not specifically men- tioned as constituting members of the exempt classes in the treaty of 1880 could not be interpreted to mean that 24United States v. Gue Lim, 176 U. S. 549, 44 Law Ed. 554; In re Chung Toy Ho, 42 Fed. 398; United States v. Foo Duck, 172 Fed. 856; contra In re Ah Moy, 21 Fed. 785. 25176 U. S. 549, 44 Law Ed. 544. 348 The Exclusion and Expulsion of Aliens. they were to be excluded, and that their failure to present the certificate of identity could not afford just ground for their rejection or expulsion, in as much as they were not only not bound under the treaty as such wife or minor child to obtain such certificate from their own Govern- ment, but w r ere not entitled to do so. They must enter or remain, said the Court, as the wife or minor child of the domiciled husband or father, or not at all. It necessarily follows that the fact that such persons have no certificate in their possession gives rise to no presumption that they are illegally in the United States . 26 It is plain, then, that such Chinese persons seeking ad- mission in this capacity under the Exclusion laws are not entitled to enter or remain of their own right. But the municipal status acquired, though of a communicated character, and not based on any inherent right to acquire it, is, none the less, a status as complete in every way as that of the person from whom it is derived. Obviously, it is erroneous to state that a Chinese wife or minor child has no status under the Exclusion laws. What is meant by this statement, so frequently made, is that when seeking to enter or remain in the United States such a wife or minor child cannot base a claim to enter on the existence in the individual of the right so to do. The personal status of such persons remains of course unchanged, but they can- not acquire a municipal status of their own right. It does not follow, however, that the wives or minor children cannot, under existing laws or treaties acquire a municipal status of their own. It is not impossible to conceive that the wife of a Chinese member of the exempt classes might come to the United States as a traveller for curiosity or pleasure or that the minor child of such per- son might seek admission in a similar capacity, or as a student or merchant. But in such case the applicants would be seeking to enter, not by virtue of a right com- 26United States v. Chin Sing, 153 Fed. 590. Status. 349 municated by another, but because of their membership in one of the classes allowed by treaty to enter, and would therefore, be under the obligation of proving their indi- vidual personal status as a preliminary step to acquiring a municipal status under the Chinese Exclusion laws. Aad as this status can be acquired only be presenting the certificate of identity prescribed by those laws, the rule laid down in the Gue Lim case would have no application. The Chinese persons who were allowed to remain in this country under the Gue Lim decision were the wife and minor child of a Chinese merchant domiciled here. Said the Court: “When the fact is established to the satisfac- tion of the said authorities that the person claiming to enter either as wife or minor child, is in fact the wife or minor child of one of the members of a class mentioned 5n the treaty as entitled to enter then that person is en- titled to admission without the certificate.” Since the de- termination of the right of the latter to enter has been en- trusted by the Act of 1894 exclusively to the judgment of executive officers, no right to enter can be claimed on behalf of the wife or minor child in the absence of a favorable administrative decision with respect to the status of the husband or father. As the Court expressed it: “They come by reason of their relationship to the father, and whether they accompany or follow him, a certificate is not necessary in either case.” In order to entitle the wife or minor child to enter it is not necessary that the father must have already acquired a commercial domicile; all that is required is that administrative offi- cers shall have passed favorably upon his right to enter. If the reasoning in the Gue Lim case is applicable to the wives or minor children of a merchant it is of course equally applicable to aliens similarly situated with regard to members of all the exempt classes, or, as the Court says, all those “entitled to enter.” The Act of September 13, 1888, and later the treaty of December 8, 1894, provided that any Chinese laborer who leaves the United States 350 The Exclusion and Expulsion of Aliens. may return thereto within the period of one year after the date of his departure, if such laborer so departing has a lawful wife, child, or parent, in the United States, or property therein of the value of one thousand dollars, or debts of like amount due him and pending settlement, provided he shall have duly obtained and on return pre- sented the return certificate required by law. The treaty of 1880 between the United States and China provided that Chinese laborers residing in the United States on November 17, 1880, should be allowed to go and come of their own free will and accord. Section 3 of the Act of May 6, 1882, provided that the act should not apply to Chinese laborers who were in the United States on the 17th day of November, 1880, or who should come into the country before the expiration of ninety days next after the passage of that act. It is obvious from this legislation taken in connection with the treaty which it was intended to supplement, and in connection with subsequent legis- lation on the subject, that, since August 5, 1882, Chinese laborers have been excluded from admission into this country; but it is equally dear that Chinese laborers who resided here on the 17th of November, 1880, or who ar- rived here on or prior to August 5th, 1882, were, both by the provisions of the Act of 1882 as well as those of the treaty of 1880 specially exempted from the excluding clauses contained in the act. The provision of the Act of September 13th, 1888, stating how and when Chinese la- borers might leave the United States and return thereto, did not, it would seem, create a new right which members of that class had not hitherto enjoyed, for the right to come and go was already accorded them by the treaty of 1880; it simply imposed conditions with regard to the manner in which the existing right might be exercised. The same may be said concerning Article II of the treaty of China of 1894 to the same effect. It has never been held that because under the Act of November 3, 1893, Con- gress imposed conditions on the manner of re-entry into Status. 351 the country by Chinese persons alleging themselves to be merchants domiciled in the United States such persons are for that reason, any the less members of the exempt classes. There seems to be no good reason why, therefore applying the principles of the Gue Lim case, any Chinese laborer returning from abroad within the time designated in the treaty of 1894, and presenting a return certificate lawfully obtained, could not claim as a matter of right, as a member of an exempted class, permission to bring into this country an accompanying wife or minor child. It is understood that this precise question has not been passed on either judicially or administratively — at least, not since the date of the Gue Lim decision; and since it has been uniformly held that the wife of a Chinese laborer takes his status as to class and is subject to the same class restrictions with her husband, 27 it is hard to avoid the conclusion that she takes the benefits with the bur- dens. The departmental view is that while a lawfully domiciled laborer cannot bring his wife or minor child into the United States, either accompanying him, or re- turning with him from a temporary lawful absence, or for the purpose of joining him here, it is conceded in adminis- trative practice that the wife or minor child of such lab- orer living in the United States derives from the marital relation a communicated status under which such wife or child may re-enter, either alone or with the husband or father, after temporary departure, on the statutory ground that they have a husband or father here, provided they do not overstay the period of one year prescribed by the Act of September 13th, 1888. While the Chinese laborer lawfully in the United States is in the full possession of such municipal rights as he may require as a laborer under the Exclusion acts, it is possible for him as an individual, to attain other and broader rights. As a laborer he may leave the United 27 Case of the Chinese wife (Ah Moy), 21 Fed. 785. 352 The Exclusion and Expulsion of Aliens. States and return only on certain conditions; whereas, should he ameliorate his condition and become a person engaged solely in matters of commercial enterprise, or in teaching or study, those particular restrictions as to re- turn have no further application to his case. There is nothing in the Exclusion acts that prevents a voluntary change of personal status on the part of the individual; but, while the individual is left free to act, the law deter- mines for itself whether the acts done bring about a change in the personal status on which new rights under the Ex- clusion laws may be based. The change once accom- plished, the new rights and obligations come at once into being, and former rights and obligations incident only to the old status are terminated. A practical demonstration of this principle is afforded by the case of a Chinese laborer, who, having failed to reg- ister during the registration period provided by the Act of May 5, 1892, as amended, subsequently becomes a mer- chant, and whose deportation is attempted on the ground that he failed to register when a laborer. The act provided that any Chinese laborer who shall be found within the jurisdiction of the United States without such certificate shall be deemed to be unlawfully in this country; it does not refer to merchants thus found. Thus, it has been held that an unregistered Chinese laborer, until proceeded against under the exclusion acts, has all the rights of a resident alien, and among them that of becoming a mer- chant and of enjoying all the rights of a merchant. 28 But a Chinese person who, as a laborer has unlawfully entered the United States cannot, it would seem, logically claim that subsequent acquisition of the mercantile status re- lieves him of the operation of the act ; for in such case the fact of unlawful entry would, under the provisions of the Chinese exclusion acts, necessarily deprive him of the 28 Ex parte Ow Guen, 148 Fed. 926; but see contra United States v. Chan Sam, 17 Philippine Reports 448. Status. 353 right to remain, irrespective of whether the right was claimed by him either as a merchant or a laborer. (B.) Loss (In General). Loss of municipal status acquired under the Chinese ex- clusion acts may occur in one of three ways: (1) by the death of the parties; (2) by acts of Congress, and (3) by the acts of the parties. (a.) By Death. Loss of municipal status by the death of the parties calls for comment only in so far as it involves the consid- eration of the effect thereof on aliens whose rights have been communicated by others who have acquired them in an individual capacity. Wives or minor children of Chinese who have been admitted into the United States, can, as such, claim such similar privileges only so long as the marital relationship or the condition of minority may exist. 29 This subject will be further discussed in the loss of communicated status. (b.) By Acts of Congress. The question of the effect of the exclusion acts on municipal rights already acquired by Chinese persons in the United States has been the subject of various de- 29This necessarily only on the assumption that they base the right to remain on a supposedly existing communicated status which has terminated by the death of the husband or father. But on what ground could the widow of a domiciled Chinese merchant be expelled? Not because she entered unlawfully, for her entrance was lawful; nor because she is a member of the laboring class, for she does not become by the death of her husband the member of a class to which she never belonged. The same reasoning is applicable to the minor children of deceased merchants; and, in spite of the departmental view to the contrary, it is thought that the Chinese exclusion acts constitute no authority for the expulsion of such persons on the ground that they are not members of an exempt class. An analysis of the Gue Lim decision reveals, it is thought, the enunciation of no principle in conflict with this view. 354 The Exclusion and Expulsion of Aliens. , . ; . Y • ! cisions by the Supreme Court of the United States. In the case of Chew Heong y. United States 30 it was held that since Article II of the Treaty of 1880 provided that “Chinese laborers who are now in the United States shall be allowed to go and come of their own free will and accord and shall be accorded all the rights, privileges, im- munities and exemptions which are accorded to the citi- zens and subjects of the most favored nation/’ and since the Act of 1882 was avowedly passed in furtherance of the provisions of the treaty, section 4 of the act providing that, in order to give Chinese laborers the right to return, should they present at the port of return certificates of identity, had no application to Chinese laborers who were not in the United States at the time the treaty was con- cluded or who should not have returned within ninety days after the passage of the act. The court refused to give the act retroactive force in a case where it was shown to have been a physical impossibility for the alien to conform to the requirements of the act regarding the certificate, calling particular attention to the fact that the law was enacted for the express purpose of carrying out — not of obstructing — the terms of the treaty, and to the further fact that in the absence of legislation clearly and beyond doubt pointing to the abrogation of the treaty no such intention on the part of Congress could be pre- sumed. The principle enunciated in the decision was, in a word, that a municipal status lawfully acquired by an alien residing in this country under the terms of a treaty entered into with a friendly power cannot be held to be terminated by general statutory provisions which do not point conclusively to the abrogation of treaty rights. 31 The same principle was expressed in the case of Lau Ow 80112 U. S. 536, 28 Law Ed. 770. siSee also United States v. Jung Ah Lung, 124 U. S. 621, 31 Law Ed. 591; In re Leong Yick Dew, 19 Fed. 490; In re Chin Ah On et al, 18 Fed. 506. Status. 355 Bew v. United States. 32 The Act of July 5, 1884, that pro- vided that the “section 6” certificate which Chinese per- sons of the exempt classes were obliged to secure from their own government prior to coming to the United States should constitute the sole evidence of their right to admission. The petitioner was a Chinese merchant domiciled in the United States who, after giving full proof of his identity and occupation as required by the regula- tions of the Treasury Department at that time, left the United States for a visit to China, and on his return was refused admission by the collector of the port of San Francisco on the ground that he had failed when in China to obtained the certificate above referred to. It had al- ready been held by the Federal courts that no certificate could be required from Chinese of the exempt class seek- ing to enter or return to the United States when it ap- peared that through residence in some foreign land other than China the certificate could not have been obtained. 33 These decisions the Supreme Court cited with approval, stating that the general terms used in the acts “should be limited to those persons to whom Congress manifestly in- tended to apply them,” and that “no restriction on the footing upon which such persons (domiciled foreigners) stand by reason of their domicile of choice or commercial domicile is to be presumed.” The doctrine of the Chew Heong case was thus in word and spirit reaffirmed. 34 Prior, however, to rendering the decision last cited the Supreme Court had occasion to examine the effect of con- gressional legislation purporting in terms, the intention of which could not be misunderstood, to terminate the municipal rights lawfully acquired by Chinese laborers under the exclusion laws of 1882 and 1884. 32144 U. S. 47, 36 Law Ed. 340. 33 In re Ah Ting, 23 Fed. 329; In re Low Yam Chow, 13 Fed. 605. 3 *United States v. Chin Quong Look, 52 Fed. 203; United States v. Lee How, 48 Fed. 825; In re Shong Toon, 21 Fed. 386; In re Ah Quan, 21 Fed. 182; In re Ho King, 14 Fed. 724. 356 The Exclusion and Expulsion of Aliens. The Act of September 13th, 1888, provides for the issue of return certificates to Chinese laborers lawfully in the United States who might wish to visit China, the produc- tion of which on their return was, like the certificate pro- vided by the Act of 1884, to constitute the sole evidence of that right. The protective Treaty with China on the ratification of which the Act of September 13th, 1888, depended was not ratified by that government, whereupon Congress passed the Act of October 1, 1888, prohibiting any Chinese laborer who had been, or was then, or who might thereafter be in the United States and who had de- parted or who might depart therefrom to enter the United States, whether in possession of the certificate or not. On the broad ground that Chinese aliens or any other aliens in the United States were there merely on suffer- ance, and subject at all times to the exercise on the part of the United States, through Congress, of the sovereign power to deport them; and on the further ground that, granting that the Act of October 1st, abrogated Article II of the Treaty with China of 1880 which provided that Chinese laborers then in the United States should be al- lowed to come and go of their own free will there was . nothing in the nature of treaty stipulations with foreign powers which rendered them incapable of repeal or abro- gation by a subsequent act of Congress, the Supreme Court held 35 that the act was constitutional, and that a Chinese laborer who had left the United States prior to October 1, 1888, was deprived by that act of his status of Chinese laborer with a right to re-enter the United States. And the same reasoning was applied in the case of a Chinese person claiming to be a returning merchant who had left the United States before the passage of the Act of November 3, 1893, which provided as a condition of admission that the fact of prior mercantile status in the United States should be proven according to special rules 36Wan Shing v. United States, 140 U. S. 424, 35 Law Ed. 503. Status. 357 of evidence, 36 and it was held that on failure to produce such proof the applicant was liable to deportation. It has, however, been held that in so far as the Act of No- vember 3, 1893, provided for the registration of Chinese laborers it was operative only on those who were in the United States at the time of its passage ; 37 and that where the facts showed that a Chinese non-laborer who tem- porarily left the United States on a visit to China had been domiciled in this country prior to 1868, the date of the first treaty with China, he was outside the operation of the exclusion laws. 38 Again the effect of the Act of August 18, 1894, is in point, insofar as it operates to exclude Chinese persons claiming the right to enter or return to the United States. By that act the decision of administrative officers as to the right of aliens to enter the United States was made final and not subject to judicial review; and under it the right of persons alleging themselves to be returning merchants, 39 or even wives and children of domiciled Chinese merchants 40 have been refused admission, and the action of the executive officers upheld when before the Supreme Court on appeal. Strictly speaking these decisions are not authorities on the loss of status by legis- lative enactment, because the executive officers found that the status claimed did not exist, and their finding of fact was made conclusive on that point. But, assuming that the facts were as claimed by the applicants and that the administrative decision was wrong they show how status may be lost by congressional legislation without any fault on the part of the alien who is deprived thereof. The en- s 6 United States v. Loo Way, 68 Fed. 475; Lew Jim v. United States, 66 Fed. 953; Lai Moy v. United States, 66 Fed. 955; In re Lung, In re Yue Soon, 61 Fed. 641. 37 In re Yue Bing Hi, 128 Fed. 319. 38 Ex parte Ng Quong Ming, 135 Fed. 378. 39Lem Moon Sing v. United States, 158 U. S. 539, 39 Law Ed. 1082. 40 Lee Lung v. Patterson, 186 U. S. 168, 46 Law Ed. 1108. 358 The Exclusion and Expulsion of Aliens. forcement of the Act of 1894 in connection with the Im- migration Acts will be considered at a later page. 41 (c.) By Act of the Parties. (1.) Loss of Individual Municipal Status. A merchant or member of the exempt class who has en- tered on a deficient certificate and is on that account de- ported has not suffered any loss of status in the sense of having been deprived of a right or privilege conferred upon him under the exclusion acts, because he has never been accorded the right to enter or to remain in the coun- try under those acts. By failure to prove the right to enter in accordance with the provisions of law he has never acquired it ; nor does his deportation affect his right to obtain a valid certificate of identity from his own gov- ernment. For the same reason loss of status does not occur by deportation where the administrative authorities discover that the facts alleged in the certificate on which the applicant was admitted do not exist, since no rights can be deemed acquired by virtue of a certificate which does not contain a true statement of the applicant’s stand- ing, or under a certificate illegally issued to him, or which is deficient in its contents. 4121 Loss of status may occur by virtue of acts done by the party irrespective of whether or not they were in violation of the Chinese exclusion laws. Thus, a Chinese laborer who leaves the United States without taking out the re- turn certificate prescribed by law loses his right to enter, although his failure to procure the same may be due to the fact that at the time of his departure he had no in- tention of returning; 42 but not, it has been held, where a Chinese laborer, lawfully in the United States, crosses over the Mexican border line, and after a brief stay of two 4i Post, p. 489 et seq. 4iaChan Tse Cheung v. United States, 189 Fed. 412. 42United States v. Tuck Lee, 120 Fed. 989; In re Tong Ah Chee, 23 Fed. 441; In re same, 18 Fed. 527. Status. 359 or three days returns to the United States ; for to exclude him from admission under such circumstances would be an act not contemplated by the exclusion laws. 43 A mer- chant who disposes of his property and leaves without the intention of returning and then returns and becomes a laborer loses his former status of merchant. 44 However, the mere fact that a Chinese person engaged in a legiti- mate mercantile pursuit in the United States chooses to dispose of his stock in trade in this country would not, it would seem, necessarily result in his becoming a mem- ber of the laboring class, even for the purposes of the Chinese exclusion law. He might well occupy the posi- tion of a retired merchant. If, however, he sought read- mission to the United States as a merchant previously en- gaged in this country in mercantile pursuits he would be obliged, under section 2 of the Act of November 3, 1893, in order to obtain admission on that ground, to prove that he had been constantly employed in the business of a merchant up to the time of his departure. It is thought, moreover, that this particular provision is meant to apply only to those Chinese persons who seek admission for the purpose of retaining and continuing a mercantile business which existed prior to their depart- ure and has continued to exist during their absence — not to confer the privilege of re-entry without a “section 6” certificate on Chinese who have abandoned their busi- ness on departure. The proper view seems to be that where such business has been abandoned the returning applicant must obtain and present a “section 6” certificate just as if he was seeking to enter this country for the first time. Again, rights existing by virtue of the mercantile status ^United States v. Lee Yung, 63 Fed. 520; but see United States v. Don On, 49 Fed. 569, and United States v. Ah Sou, 138 Fed. 775, where the court refused to interfere with the order of deportation issued against a Chinese girl when the result of the deportation was to relegate her to a life of slavery. 44 United States v. May Yim, 115 Fed. 652. 360 The Exclusion and Expulsion of Aliens. are lost when a Chinese merchant lawfully domiciled in the United States becomes a laborer, although in such ca$e his right to remain in the United States as well as to exercise other privileges inherent to the status of resi- dent laborers are not lost thereby ; 45 and, as has already been stated, such rights are not forfeited by a Chinese laborer who was a merchant during the registration period and failed to procure a certificate of registra- tion ; 46 but, where a Chinese merchant became a laborer within the registration period and failed to register as required by law, his failure to do so was held to render him subject to deportation in spite of the circumstances of his original entry . 47 The rights of a Chinese merchant lawfully domiciled in the United States are not lost by the mere fact of a pro- longed absence in China, where there is no allegation that his return was accomplished in a manner not prohibited by law . 48 This equally true with regard to Chinese prac- ticing recognized professions who, after having resided in the United States for several years return from a six years’ absence in China . 49 The obligation of resident Chinese laborer’s to pro- cure return certificates in case they wish to secure their 45 in re Yew Bing Hi, 128 Fed. 319; United States v. Louie Yuen, 128 Fed. 522 ; United States v. Sun Won Tong, 132 Fed. 190. 46United States v. Seid Bow, 139 Fed. 56; In re Yew Bing Hi, 128 Fed. 319; United States v. Louie Yuen, 128 Fed. 522; In re Chin Ark Wing, 115 Fed. 412; United States v. Sing Lee, 71 Fed. 680. 47Cheung Him Nin v. United States, 133 Fed. 391. 48United States v. Wong Lung, 103 Fed. 794, and see Lau Ow Bew v. United States, 144 U. S. 47, 36 Law Ed. 340; In re Ah Ting, 23 Fed. 329; but see with regard to the effect of long absence, United States v. Cut Yong, 1 U. S. D. Gt. Hawaii 104; United States v. Cam Yow, ibid., 113; Gee Fook Sing v. United States, 49 Fed. 146; In re Louie Yow, 97 Fed. 580. In the case of Lorenzo v. McCoy, 15 Phil. Rep. 559, it was held that a person born of Chinese parents residing in the Philippine Islands dur- ing their residence there lost his citizenship “if he ever had it” by leaving the Islands when a minor and staying away in China for eleven years. 4»Umted States v. Chin Fee, 94 Fed. 828. Status. 361 right to return has already been discussed. 50 The fact that a Chinese laborer has left without obtaining the re- turn certificate prescribed by the acts in force has been held to militate conclusively against the right to return even though he has resided continuously in the United States for twenty-one years and remained in Canada for the period of two weeks only. 51 While departure and absence from the United States without obtaining the return certificate required of Chinese laborers under the law may be said to constitute of itself a bar to the exercise of the right in future of entering or remaining in the United States, there must be an actual departure. Proof of such absence became material in the highest degree during the period in which the Act of October 1, 1888, was in force. That act pro- vided that no Chinese laborer could return to the United States whether he held a return certificate or not. 52 Thus, it was held that Chinese subjects purchasing through tickets and embarking in an American vessel from one part of the United States to another, and not leaving the vessel on touching at foreign ports, did not depart from the United States within the meaning of the Act of 1888, 53 presence on an American vessel constituting presence within the jurisdiction of the United States. 54 Moreover, on this last-mentioned ground, it was previously held that a Chinese laborer who shipped on an American vessel at London prior to the passage of the exclusion acts and remained on board until arrival at an American port, although arriving after the date on which, under the Act of 1882, Chinese laborers might be admitted, was entitled to land. 55 ^oAnte, p. 358; and see United States v. Lim Jew, 192 Fed. 644. BiUnited States v. Don On, 49 Fed. 569. 52 Wan Shing v. United States, 140 U. S. 424, 35 Law Ed. 503; United States v. Wong Hong, 71 Fed. 283. 53 In re Tong Wah Sick, 36 Fed. 440; In re Jack Sen et al., 36 Fed. 441. 5 *Ibid.; In re Ah Sing, 13 Fed. 286. 55 In re Mon Can, 14 Fed. 44. 362 The Exclusion and Expulsion of Aliens. As appears , 56 Chinese seamen or persons employed aboard ship are considered to have a status other than that of laborers and do not lose their right to resume their United States residence on the return of the vessel to this country, merely because they have been permitted by the captain to land for a few hours at a foreign port or place ; 57 but their status as such is lost if, while in an American port as members of a vessel’s crew, they effect their escape to United States territory ; 58 and the courts have further held that a Chinese person employed on a ship of American register is to be deemed for the purpose of the act to be within American territory . 59 Loss of status has been held to follow acts deliberately performed by the defendants which constitute a violation of the exclusion laws. The act of escape to American soil above referred to, affords a good example, The fact of be- ing a seaman constituting the essence of the right of the defendant to enter the port, the voluntary casting aside of this attribute necessarily puts an end to the existence of any right, claimed or exercised thereunder; and the de- fendant must stand revealed as a Chinese person whose living is gained by the work of his hands, and must, there- fore, be deemed unlawfully in the United States. As stated, the fact that a Chinese person who entered on a merchant’s certificate engages immediately on landing in laboring pursuits, while it renders him subject to depor- tation on the theory that his acts rebut the contents of the certificate , 61 cannot properly be said to subject him to loss of mercantile status, for he cannot be deemed to have acquired the right as a merchant to enter or to remain in 56 Ante, p. 361. 57 In re Ah Tie et ah, 13 Fed. 291. 587*1, re Mon Can, 14 Fed. 44. 59Case of the Chinese Merchant, 13 Fed. 605; In re Ah Sing, 13 Fed. 286; In re Mon Can, 14 Fed. 44. siChain Chio Fong v. United States, 133 Fed. 154; United States v. Ng Park Tau, 86 Fed. 605. Status. 363 the United States. All Chinese persons being by law re- quired to enter at the ports designated by the Act of September 13, 1888, 62 a Chinese person lawfully in the United States who, after securing a return certificate, re- enters at any other than a designated port loses thereby his right to remain. 63 Whether or not the wrongful act deprives him of the right to return thereafter by arrival at a designated port presents an interesting question — but one which in the case of Chinese laborers might well, it seems, be answered in the negative, on the ground of fail- ure to obtain the return certificate provided by the act after the wrongful re-entry. The concurrence of conditions, which, taken collec- tively, constitute the mercantile status of Chinese per- sons residing in the United States being defined by statute, must be shown to exist in the case of him who claims to exercise rights thereunder; and it follows that the failure or absence of any one of the indispensable features of the mercantile status gives rise to the existence of a different status or condition. What the resulting status is, depends on the nature of its elements. Thus, if a person having a mercantile status exercises acts of manual labor other than such as are necessary for the conduct of his business as such merchant he ceases to be a merchant as defined by the Act of 1893, and must be held to have the acquired status with which the laws invest those who engage in manual labor — to wit: that of a Chinese laborer. It may be well to point out in this connection that although, as above shown, the loss of status is the result of certain acts, some performed law- fully and some with an unlawful motive, and although the expression forfeiture of status” is occasionally used when speaking of such cases, the loss thereof cannot be held to be in the nature of the infliction of a penalty. A status is lost because certain of its elements cease to exist, or 62 Section 7. 63United States v. Tuck Lee, 120 Fed. 989. 364 The Exclusion and Expulsion of Aliens. because the person claiming possession of them does cer- tain acts inconsistent therewith, the performance of which brings about a result in law which is irreconcilable with the original status. Sometimes, as in the case of a person with mercantile interests who engages in manual labor without parting with that interest, the loss of the mer- cantile interest involves a reversion to the status of la- borer. But such a person does not become a laborer be- cause he has ceased to be a merchant, or because he is to be punished for doing the acts of manual labor while a merchant — but because the nature of the acts done estab- lishes the fact that he is a laborer under the law. Thus, a merchant might cease to engage in business and devote his time to study or travel for curiosity or pleasure; he would probably lose his status of merchant thereby, but he would certainly not, under the facts suggested, be a laborer. It has been held that a merchant who has committed a crime and has been sent to jail at hard labor is, during that time at least, a laborer, and, as such, subject to de- portation for failure to register, although the term of his imprisonment extended through the registration period. 64 The court proceeded on the assumption that because the Act of 1893 provided that a Chinese person in order to be a merchant, must not engage in manual labor unneces- sary to his business the alien in this case was a laborer; and that because he was a laborer during his imprison- ment, and failed to register, he lost the right to remain in the United States. The effect of the decision was to deprive the defendant of his municipal status as a mer- chant. It is to be observed that it was not the commission of the offense while a merchant, which was taken to consti- tute the real ground of deportation, but the fact that the court conceived that the labor done in prison changed the prisoner’s personal status to that of laborer; and that 64United States v. Wong Ah Hung, 62 Fed. 1005; United States v. Ah Poing, 69 Fed. 972; and see same as to laborer, United States v. Chang Fi Koon, 83 Fed. 143. Status. 365 failure to register as a laborer although in jail at the time of registration, resulted in the loss of his municipal status as a laborer. In order to justify deportation under this act it was necessary, first, that the person deported be a laborer within the meaning of the act, and, second, that while such laborer he had failed to register during the registration period. At the time of his conviction the prisoner was unquestionably a merchant. His municipal rights under the exclusion acts were made to depend abso- lutely on his vocation. What his vocation was depended upon the nature of the acts in which he was engaged, and there was no question but that up to the time of his con- viction he had committed no act of manual labor incon- sistent with his mercantile status. The law provides that a Chinese person is a merchant if he is engaged in mer- cantile pursuits at a fixed place of business conducted in his name, and does not engage in the performance of manual labor except such as is necessary to the conduct of his business as such merchant. Unquestionably the mercantile status of the prisoner would have ceased to exist had he voluntarily divested himself of the attri- butes designated by law as necessary to establish or main- tain the mercantile status. The distinction between the merchant and the laboring class is based wholly upon vo- cational classification. The law provided that if acts of manual labor necessary for the pursuance of the vocation of a merchant were performed by a Chinese person such acts constituted incontrovertible evidence that his voca- tion was that of a laborer, not of a merchant. The only distinction made by the very law under which the pris- oner was deported was one of vocation. The definition of the term “merchant” has been given; that of laborers is given in the same section as “skilled and unskilled manual laborers” — Chinese “employed” or “engaged” in certain pursuits. It is needless to say that a Chinese merchant arrested for the violation of a state law and convicted to imprisonment at hard labor does not thereby become a 366 The Exclusion and Expulsion of Aliens. “laborer” within the meaning of the act. He is a Chinese merchant undergoing forced punishment for crime. The act might have provided the loss of mercantile status fol- lowed by deportation as a penalty for the commission of crimes by Chinese merchants; but it did not do so. The result of the sentence was in effect to impose deportation as a penalty for the commission of a crime. (2.) Loss of Communicated Status. The right of the wife and child to enter in that ca- pacity is dependent on the status of the husband and father to such an extent that forfeiture or abandonment of the right to remain on the latter’s part terminates the corresponding right of the wife or child. The fact of the relationship when established does not confer upon either wife or child any distinct status in the sense of an indi- vidual and independent political attribute peculiar to her or it. Each has its own status as such wife or minor child to be sure; but it is not a status which includes in its elements the right of either, as a member of an ex- empt class to enter or to remain in the United States. Thus marriage to a Chinese person entitled to remain in the United States, while it adds further rights to the sum of those which the wife might have exercised, apart from such marital connection, does not vest her with the right to enter or remain in this country independent of the right of her husband to do so. She must enter or remain as the wife of her domiciled husband, or not at all. 65 Should she marry again after the death of her first hus- band her right to enter or to remain must be determined by that of her second husband; consequently, the wife of a merchant who, on his death, marries a laborer can exercise only such rights of domicile and return as her 65United States v. Gue Lim, 176 U. S. 549, 44 Law Ed. 544; provided that she does not seek to enter in her individual right as a member of one of the exempt classes. Status. 3GT second husband has, 66 provided that the relationship is set up as the only basis of her right to enter or remain; and in the case of a Chinese woman who lawfully entered the United States before the enactment of the Chinese exclusion laws, and remained, but failed to obtain the re- quired certificate, and thereafter and prior to her arrest, was lawfully married to a citizen of the United States, it was held that she was not subject to deportation under the Act of 1892. 67 Having entered the United States when there was no laws in existence prohibiting such entry she entered lawfully; and even had she come as a single woman after the passage of those laws, it is not seen why, as a matter of law, she might not have come in on a “sec- tion 6” certificate, as a Chinese subject traveling for pur- poses of pleasure or curiosity. Be that as it may, it seems clear that she was not a laborer, inasmuch as the acts do not provide nor do the courts hold that an unmarried Chinese woman qua a single woman is a laborer ; and that being the case, she would not be under any legal obliga- tion to register as such laborer. The court based its de- cision on the ground, however, that her marriage to a citizen of the United States communicated to her all the rights of domicile which he could exercise. But in order to exercise the rights communicated by the husband’s status the marital relation must be genuine, or rather must have been found to be genuine by the proper authori- ties ; and where a Chinese girl was brought into the United States for immoral purposes and after escaping from these influences was married to a Chinese laborer in the United States, she was held liable to deportation in view 66 Case of the Chinese wife, 21 Fed. 785. 67 Tsoi Sim v. United States, 116 Fed. 920; but see in this connection United States v. Cam Yow, 1 U. S. D. Ct. Hawaii 113, where it was held that where the preliminary marriage ceremony was conducted in China and the bride comes to lives with her husband who was in Hawaii at the time, and was allowed to enter on the representation that she was his wife, and where, after entry the marriage ceremony was performed after her arrival in Hawaii, held that she was not the wife of her husband at the time of her arrival, and that she was subject to deportation. 368 The Exclusion and Expulsion of Aliens. of proof which created considerable doubt as to whether the marriage was regarded as bona fide as between the parties themselves . 68 In such a case the defendant could not have been deported on the ground of “communicated status” (i. e.y on the ground that she was a laborer), inas- much as the marriage relationship was not held to have been proven ; but deportation might well have been based on the ground that she did not belong to one of the exempted classes. It may be stated in connection with this case that Chinese women practicing prostitution are laborers within the intent of the Chinese exclusion acts . 69 And where the facts show that a Chinese woman was engaged in prostitution at the time of her arrest for deportation, and when on bail during appeal contracted a marriage with a citizen of the United States of Chinese descent obviously for the purpose of avoiding deportation, such facts were held sufficient to show that there was no mar- riage, but a sham ceremony entered into for the purpose of defeating the object of the exclusion laws, and that under such circumstances she could acquire no rights by virtue of the existence of citizenship in the alleged hus- band . 70 The bona fides of the relationship claimed is a sine qua non of admissibility; and although a marriage arbitrated in China on behalf of a Chinese girl and her betrothed, who at at the time was lawfully in the United States was held not to be a valid marriage by the laws of this country the bride was permitted to enter, since it appeared that the marriage was contracted under the laws of China was entered into in good faith . 71 68United States v. Ah Sou, 138 Fed. 775. 69Looe Shee v. North, 170 Fed. 566; Lee Ah Yin v. United States, 116 Fed. 614. 70Wong Heung v. Elliott, 179 Fed. 110. 7i In re Lum Lin Ying, 59 Fed. 682; but see contra United States v. Cam Yow, 1 U. S. D. Ct. Hawaii, 113, where the same state of facts was pre- sented, except that an additional ceremony was performed after the bride was duly admitted, but was nevertheless ordered deported after entry, the court sustaining the order on the ground that the deportee was not married at the time of admission. Status. 369 With the minor children — adopted as well as actual 72 — as in the case of the wives of Chinese persons, the right to enter or remain in the United States is communicated by virtue of the father’s status ; 73 and merely because they are not in their own right members of the exempt classes mentioned in the treaty with China of 1880 does not mean that they are laborers. 74 To say that the actual status of the merchant or laborer is communicated to the wife or child would be to allege that the wife or child herself or himself is a merchant, or laborer, as the case may be, which would be contrary to the fact. As the rights which the child enjoys in the absence of any personal status self acquired with increasing years are dependent on the ex- istence of those rights in the father, the extinction of such rights in the latter effects the extinction thereof, as far as the child is concerned. But from the fact of cessation or abandonment of the father’s rights it does not follow that the child who has effected a lawful entry into the United States loses thereby his right to remain. What those rights are must be determined by the nature of the inde- pendent status thus suddenly thrust upon him; and the nature of this status is to be determined by the course of conduct which he pursues. Thus, where a Chinese minor child entered the United States lawfully as the child of a Chinese merchant domiciled in the United States, the re- turn of the father to China sine animo revertendi was held to interrupt the communication to the son of the rights flowing from the father’s mercantile status, and the former’s status, although still a minor nineteen years of age, was determined by his own occupation — which, being that of a laborer during the registration period rendered registration as to him an absolute requirement. 75 72United States v. Joe Dick, 134 Fed. 988. ^United States v. Gue Lim, 176 U. S. 549, 44 Law Ed. 544; United States v. Foo Duck, 172 Fed. 856. 7 *In re Lee Yee Sing, 85 Fed. 635. 75United States v. Joe Dick, 134 Fed. 938. 370 The Exclusion and Expulsion of Aliens. But where, under identical circumstances of entrance the alien only performed occasional acts of manual labor it was held that he was not subject to deportation. 76 And the status enjoyed by the minor child of a merchant domi- ciled here by virtue of his relationship to his father is not lost where, after lawful entry and an unsuccessful business venture, he works occasionally in a laundry pend- ing a re-establishment in a new mercantile business. 77 There is no good reason why the mere fact of the minority of the son during the father’s presence in the United States should prevent the former from acquiring a status of his own, whether that of merchant, student, or laborer, provided that he is competent to select and perform the acts necessary to an individual status; but it seems that the mere performance of manual labor by the son of a domiciled merchant interspersed with periods of study does not alter his status as a merchant’s minor son; and the fact that since his majority he has worked as a laborer does not make his residence in the United States unlaw- ful where he became a laborer after the registration period. 78 2. Under the Immigration Laws. (A.) Acquisition. (In General.) It has been said that the purpose of the exclusion acts was to prohibit the entrance of all Chinese except those especially exempted, while the intent of Congress in pass- ing the laws on immigration was to allow all aliens to enter ^except those to whom entrance was expressly pro- hibited. 79 There is little in the treaties with China or in the acts themselves to warrant the unqualified acceptance of this assertion; the Supreme Court has indeed on more 76United States v. Foo Duck, 172 Fed. 856. 77United States v. Yee Wong Yeun, 191 Fed. 28, and see United States v. Foo Duck, 172 Fed. 856. 78United States v. Foo Duck, 163 Fed. 440. 7»United States v. Crouch, 185 Fed. 907. Status. 371 than one occasion expressed with regard to the purpose of the Chinese exclusion acts a contrary view. While Chinese persons of the exempt classes are under the obligation of presenting to the port authorities at the time of entrance a certificate of identity duly issued by their government, an equal obligation rests upon those authorities to admit the applicant in the absence of evidence indicating that the certificate has been fraudulently obtained. In other words all Chinese except those of the laboring class are at liberty to enter and remain in the United States on presenting the credentials required by law. The provision requiring the presentation of these certificates to members of the exempt classes has been looked upon by the highest authority as an aid rather than an obstacle to their ad- mission. “The certificate, ” says the Supreme Court in the Lau Ow Bew case , 80 citing a former lower court de- cision with approval, “is evidently designed to facilitate proof by Chinese other than laborers coming from China and desiring to enter the United States, that they are not within the prohibited class. It is not required as a means to restrict their coming. To hold that such was its pur- pose would be to impute to Congress a purpose to disre- gard the stipulation of the new treaty that they should be allowed to go and come of their own free will and accord.” And in cases where such persons were not in a position to obtain the certificate they have been allowed to enter without it, on submitting other proof of their vocational standing . 81 It is true that the burden of proof of the right to enter is on the Chinese applicant for admission in the sense that he cannot enter except on presentation of the proper papers; but on the other hand the law pro- vides that those papers, duly executed, issued, and pre- sented, constitute evidence of his right to enter which the 80 Lau Ow Bew v. United States, 144 U. S. 47, 36 Law Ed. 340. 81 Lau Ow Bew v. United States, 144 U. S. 47, 36 Law Ed. 340; In re Ah Ping, 23 Fed. 329. 372 The Exclusion and Expulsion of Aliens. Government must overthrow in order to afford justifica- tion for his exclusion. Irrespective, however, of the precise purpose of the pro- vision requiring the presentation of certificates by Chinese of the exempt classes the fact remains that they can enter only on the presentation of the certificate, whereas under the immigration acts no such credentials are required of alien subjects of other than Mongolian nations. Under those acts the test of admissibility is one of personal qualification, irrespective of class — excepting that of alien contract laborers — and the only cases in which positive proof of eligibility is required from the aliens themselves are those of aliens whose ticket or passage has been paid for with the money of another, or who have been assisted by others to come to this country. In other words, evi- dence of eligibility under the exclusion laws must be given by the applicants themselves, while under the immi- gration laws evidence of ineligibility must be found by the Government in order to justify exclusion. But under both sets of laws a favorable decision by the immigrant officers based on examination at the time of entrance it is necessary in order that the applicant may lawfully acquire a muni- cipal status under either. Acquisition of municipal status under the immigration act means simply the process of being admitted into the United States after examination by the immigration au- thorities in accordance with the provisions of law and the rules and regulations of the Department of Commerce and Labor. Aliens are not classified for the purpose of determining their eligibility by vocation, but by mental, moral or physical qualifications. The foreign laborer, provided that he does not come to the United States under contract to perform services here, is as free to enter as the foreign merchant or financier; and the disabilities which would bar the former, would be equally effective to forbid entrance to the latter. Under the Chinese exclusion acts the Chinese laborer is excluded because he belongs to the Status. 373 laboring class, not because of any mental, moral or phys- ical failing which would make him an undesirable addi- tion to our national community; under the immigration statutes the alien is forbidden entrance, not as a member of a class, but because, as an individual, he may, if ad- mitted, prove a menace to the peace, health, or prosperity of the people of the United States. In short, the Chinese exclusion acts constitute legislation directed against a class; the immigration law, legislation against the indi- vidual. This being so, it necessarily follows that the doctrine of communicated status so fully recognized in the appli- cation of the exclusion laws has no place in the immigra- tion law. Under the former the only tests of eligibility are membership in the exempt classes and the presenta- tion of the special kind of proof of such membership as is required by law. The wives and minor children of exempt Chinese lawfully admitted to residence in this country, seeking admission by virtue of that relationship to one whose right to enter has already been proven, are ad- mitted — not, to be sure, on the claim that they as indi- viduals are members of a class specifically designated as exempt from exclusion by the treaty — but merely because the nature of the relationship shown, in connection with the personal status of the husband or father is such as to negative the idea that the applicants could belong to the laboring class. This being so, and since the wife or minor child as such are unable to obtain the certificate on the presentation of which alone members of the exempt classes can be admitted under the Act of 1882, the right of the husband and father, duly established as such mem- ber, is held to be communicated to the wife or minor child. Under the immigration law, however, the right of the alien husband and father to enter is based, not on the fact that he belongs to a class in itself exempt from exclu- sion, but simply because, as an individual, he has been found to be free from disabilities which operate to ex- 374 The Exclusion and Expulsion of Aliens. elude. It is plain that where a right is based solely on absence in the individual of mental, moral, or physical defects such a right, based as it is on the existence of a condition exclusively peculiar to a given person, is inca- pable of transmission to another, precisely because of the fundamental difference between individuals. But, although as between aliens the marital or parental relationship cannot, for the reasons stated, give rise to a communicated status based on rights acquired by the alien husband or father who has entered the United States, it plays nevertheless a most important part in questions of the admissibility under the immigration law of persons of foreign birth. The laws of the United States provide that alien women who marry citizens of the United States be- come thereby citizens of this country, and that under certain conditions the naturalization of the father vests his children with the attribute of American citizenship which he himself has assumed. No question can, of course, arise as to the exemption of all American citizens from the operation and effects of the immigration laws; but considerable doubt has of late been expressed as to whether or not those laws apply to women of foreign extraction who, possibly for the purpose of exempting themselves from the operation of the act, marry American citizens at a time when as aliens, they could not, by reason of some disability which would afford a ground for their exclusion or expulsion, claim the right to enter or remain in the United States. Indeed, some of recent decisions have gone so far as to hold that alien women who cannot claim this right are not “capable of naturalization” under the citizenship or naturalization laws of the United States, and that a marriage contracted with an American citizen during the existence of a disability cannot vest them with United States citizenship. The possibility of such a ques- tion arising in connection with the Chinese exclusion acts is precluded by the fact that Chinese cannot be nat- uralized under the Constitution and laws of this country. Status. 375 Moreover, no question of the communication of status is raised under the immigration acts in considering the right of such women or children of foreign extraction to enter cr remain in the United States. As already stated, per- sonal qualification is not a communicable element. The rights of such persons depend solely on whether or not they are citizens of the United States, and this in turn depends on whether the pertinent provisions of the immi- gration acts are to be read in pari materia with the laws governing the acquisition of citizenship by persons of for- eign birth. The question of the effects of the acquisition of a com- mercial domicile by Chinese of the exempt class on their right to enter or to remain in the United States has al- ready been discussed 82 in connection with the effect of the Act of August 18, 1894 upon rights claimed under the Chinese exclusion laws. That act provided that the ex- cluding decision of the Secretary of the Treasury — now of the Secretary of Commerce and Labor — should be final with respect to the right of any alien to enter this country who might seek admission under any law or treaty. As no Chinese person — except diplomatic officers and their suites — can lawfully enter the United States except under rights conferred by treaty, the Act of 1894 necessarily included all Chinese persons other than those above desig- nated in its provisions. Not so with regard to aliens gen- erally. Until the Act of March 3, 1903, went into effect it was universally held by the courts that the excluding provisions of the immigration acts did not apply to aliens not coming to the United States for the first time, but for the purpose of resuming a domicile already lawfully ac- quired. Since the passage of that act there has been a division of judicial opinion on this point, the grounds of which will be considered in detail in subsequent pages. 82a The real question at issue in this connection is 82 Ante, p. 357. 82a Post, p. 427 . 376 The Exclusion and Expulsion of Aliens. not whether a lawful domicile previously acquired re- moves the alien from the operation of the excluding pro- visions of a law to which, in the absence of such domicile, he would have been in terms subjected, but whether it was the intention of Congress to exclude aliens who have al- ready lawfully established their homes in this country — in short, whether aliens already lawfully domiciled in the United States and who return here from a visit abroad are seeking to enter or to return “under any law of the United States.” (B.) Through the Acquisition of American Citizenship. Acquisition of municipal status under the immigra- tion law is, of course, possible only to those who on seek- ing to enter the United States, are subject to the pro- visions of that law. Aliens who have been admitted to this country through the favorable decision of the proper immigration officers can be said to have acquired a muni- cipal status, by virtue of the operation of those laws, but, if through one cause or another an alien has from any other legitimate source acquired the right to enter and reside in the United States the immigration acts are not applicable to him, and the municipal status which he ac- quires on entering the country exists independent of any provision of the special statute governing the admission of aliens. This principle is generally conceded. As the immigration act purports to include in its opera- tion all aliens, or at least all aliens seeking to “enter” the United States, a status which will exempt persons seeking tc enter from the operation thereof must be incompatible with the condition of alienage. It is conceded that persons not aliens in the sense of the immigration act are not sub- ject to its provisions . 83 Since it is admitted that, generally speaking, citizenship acquired by naturalization or mar- 83Taylor v. United States, 207 U. S. 120, 52 Law Ed. 130; Gonzales v. Williams, 192 U. S. 1, 48 Law Ed. 317. Status. 377 riage removes the person claiming it from the operation of the immigration laws, and that citizenship may he ac- quired by this process, why is it, when there is no dispute as to the actual facts on which the right to enter is based, that the Department of Commerce and Labor takes the view, and the courts have more than once held that such persons are subject to the operation of those laws? Merely because it is contended that granting that condi- tions may exist under which citizenship may be acquired by aliens, they cannot exist when at the time the resulting exempting status is ought to be established the person de- siring to acquire it is suffering from disabilities which, if an alien, would render him excludable under the provi- sions of the act. With certain rare exceptions, noted later, 84 the only political status other than alienage known to our law is citizenship. This can be acquired in one of two ways, by naturalization or marriage ; for, citizenship resulting from the fact of birth cannot be said to be “acquired.” The question to be determined, then, is how far, if at all, rights claimed by virtue of naturalization or marriage to an American citizen are affected by the provisions of the immigration law; in other words, under what circum- stances, if any, aliens giving proof of the existence of a state of facts, which under the general laws of the United States dealing with the subject, ordinarily gives rise to a change in political status, are subject to the operation of the immigration laws. (1.) By Naturalization. The right of aliens to acquire citizenship in the United States is purely statutory, 85 “The fourteenth amendment of the Constitution,” says Mr. Justice Gray, speaking for the court, in the case of United States v. Wong Kim Ark, s^That occupied by natives of Porto Rico and the Philippines. ssFong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905; United States v. Rodgers, 185 Fed. 334. 378 The Exclusion and Expulsion of Aliens. “in the declaration that ‘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* contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by nat- uralization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States and subject to the juris- diction thereof becomes at once a citizen of the United States and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized either by treaty, as in the case of the annexation of foreign territory; or by author- ity of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments con- ferring citizenship upon foreign-born children of citizens or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.** 86 When the claim to admission is based on citizenship, either as the necessary result of birth in this country or acquired by any one of the different processes of naturali- zation, the facts being admitted, the political effect of those facts or combinations of facts generally involves no question of immigration law. In ordinary cases, only one question presents itself to the solution of the immigration officers — whether or not the person presenting himself for admission is personally qualified under the immigration law to enter. If found to be suffering from disabilities which operate to exclude, the applicant is without more assigned for deportation. But it frequently occurs that, granting the existence of disabilities which would be fatal to his admission if an alien, the claim is made 86United States v. Wong Kim Ark, 169 U. S. 649, 42 Law Ed. 890. Status. 379 that the applicant is a citizen of the United States, sup- ported by allegation of the existence of facts from which the political status of citizenship purports to result. This raises at once a new issue of fact — that is, whether the facts from which the exempting status is alleged to result are as represented. This question being decided by the examining officers in the affirmative, there remains only the pure question of law as to whether the political results of those acts is American citizenship; and this would seem to depend wholly on those laws of the United States which designate how and when American citizenship can be acquired. The naturalization of an alien changes his political status from that of alienage to citizenship and may af- fect the political condition of his wife and minor children. As regards the alien himself, his naturalization is, of course, sufficient to remove him from the operation of the act, but the mere declaration of intention does not change his political status of alien to that of citizen. 87 The fact of naturalization being shown, the applicant must be admitted as a matter of course, not because he has proven his right to admission under the immigration acts but because he has shown that immigration officers have no jurisdiction over him whatsoever. All such cases necessarily involve no question of the acquisition of a municipal status under the immigration law, but, on the contrary, the proof of a political status which places the party beyond the reach of the provisions of that law. (a.) Effect of the Naturalization of the Father on His Minor Children. Section 1993 Revised Statutes 88 provides that “all chil- dren heretofore born or hereafter born out of the limits 87 In re Kleibs, 128 Fed. 656; In re Moses, 83 Fed. 995; Maloy v. Duden, 25 Fed. 673; Sanz v. Randall, 4 Dill. 425. 88 Aet February 10, 1885, c. 71, st. 1, vol. 10, p. 604. 380 The Exclusion and Expulsion of Aliens. / and jurisdiction of the United States whose fathers were or may be at the time of their birth citizens thereof are declared to be citizens of the United States ; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.” This provision ap- plies with equal force to the children of native-born and naturalized citizens. That they are to be considered Amer- ican citizens has been judicially determined even though the parents are permanently residing abroad; 89 and the same result is bound to follow where the residence is tem- porary. 90 Section 2172 of the Revised Statutes 91 provides that “the children of persons who have been duly natural- ized under any law of the United States — being under the age of twenty-one years at the time of the naturalization of their parents shall, if dwelling in the United States, be considered as citizens thereof;” and section 5 of the Act of March 2, 1907, 92 provides “that a child born with- out the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the parent: Provided , That such naturalization or resumption takes place during the minority of such child : And provided further , That the citizenship of such minor child shall begin at the time such minor child begins to reside per- manently in the United States.” It has always been admitted that the naturalization of the father results in the naturalization of a minor child provided that the child has been at the time and subse- quent to the naturalization of the father, and during its minority, a resident of this country. 93 But until naturali- 89See Oldtown v. Bangor, 1870, 58 Me. 353. soSasportas v. De la Motta, 1858, 10 Kich. Eq. 38. »iAct April 14, 1902, ch. 28, sec. 2, vol. 4, p. 155. 9234 Stats. 1228. 93Campbell v. Gordon, 1809, 6 Cranch 176, 183; In re Morrison, 1861, 22 How. Pr. 99; People v. McNally, 1880, 59 Howard Pr. 500; State v. Mins, 1879, 26 Minn. 183; Prentice v. Miller, 1890, 82 Cal. 570; Dorsey v. Brigham, 1898, 177 111. 250. Status. 381 zation is complete no power to confer it upon the child can exist in the father. Therefore, the mere declaration of intention, incomplete in itself to vest the father with citizenship, cannot change the existing political status of the minor child. 94 Thus it was held in the case of In re Moses 95 that the wife and children of an alien who had been admitted into the United States and had estab- lished his domicile here could not prove their exemption from the operation of the immigration act by showing that the father had done no more toward acquiring Amer- ican citizenship than to file his declaratory oath under the naturalization statute. But even if he had become a citizen, his children not having dwelt in the United States, could not have successfully urged their claim to citizen- ship. That alien minors who have never dwelt in this country cannot claim exemption from the operation of the immigration laws through the naturalization of their father was decided by the Supreme Court of the United States in the case of Zartarian v. Billings. 96 There a former Turkish subject became naturalized in 1896, and some years after his naturalization sent for his wife and minor children to join him in this country. The daughter was found to be afflicted with trachoma, which, under the Immigration Act of March 3, 1903, excluded her as an alien from admission. It was contended that the immigration act had no application to her, as by the naturalization of the father, she herself became naturalized ; but the court held that, being born abroad, a native of Turkey, the applicant could not become a citizen of the United States except in compliance with the terms of section 2172 of the Revised Statutes; that, never having legally landed in the United States, she could of course never have dwelt here and, never having dwelt here, did not come within the terms 94Henry v. Hull, 1892, 6 N. Mexico 643, 660; In re Conway, 1863, 17 Wis. 526. 9583 Fed. 995. 96204 U. S. 170, 51 Law Ed. 428. 382 The Exclusion and Expulsion of Aliens. of the statute. Her right to entry was then bound to be based on her qualifications as an alien; and these failing to meet the requirements of the immigration act, no right to enter could exist. The applicant was at a peculiar dis- advantage since her passport had been granted her by the Turkish authorities on the condition that she could never return to Turkey. She was ordered deported, but as Mr. Van Dyne observes, “at this juncture the doctors at the hospital pronounced her cured, the Department of Commerce and Labor issued an order for her release, and she was allowed to join her parents.” 97 The conclusion reached by the Supreme Court had already been enunci- ated by the Circuit Court of Appeals , 98 and the principles leading thereto have since been invoked and applied by the Federal courts on more than one occasion in connec- tion with their application to the immigration law . 99 Conversely, it has been held that when the father of an alien minor child becomes a naturalized citizen, the child, if dwelling in the United States at or after the naturaliza- tion of the father, is not subject on re-entry to the jurisdic- tion of immigration officers . 100 It follows, a fortiori, from the doctrine laid down in the Zartarian case, that if the naturalization of the father cannot vest his minor child who has never yet lived in this country with a status which exempts him from the operation of the act, the mere declaration of intention by the father is powerless to do so. It was so held in a comparatively early Federal de- cision , 1 and the contrary opinion expressed in a later case 2 cannot, it would seem, be regarded any longer as an au- thority. 97Van Dyne on Naturalization, 207. ssUnited States v. Williams, 132 Fed. 895. ssUnited States v. Rodgers, 182 Fed. 274 ; United States v. Rodgers, 185 Fed. 334. looXJnited States ex rel. Fisher v. Rodgers, 144 Fed. 711. i In re Moses, 83 Fed. 995. 2/?i re Di Simone, 108 Fed. 942; reversed on confession of error. Status. 383 (b.) Effect of Naturalization of the Husband on the Wife. Section 1994 of the Revised Statutes 3 provides that “any woman who might lawfully be naturalized under the existing laws, married, or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen.” Where the fact of marriage to an American citizen is made the basis of the claim to enter, the first question to be determined by the immigration authorities is whether the marital status actually exists as represented. The mere perfunctory performance of the marriage ceremony entered into for the sole purpose of evading immigration or exclusion acts means nothing ; there must be a bona fide marriage between the parties. Whether such a relation- ship exists is a pure question of fact to be finally deter- mined by the administrative officers ; and if they find that the marriage was a sham, exclusion or expulsion will result as a matter of course. 4 Again, if the marriage would be held void on grounds of public policy if per- formed in the United States, the fact that it was legal in the jurisdiction where the relationship was originally entered into cannot avail the parties. Thus, where a former Russian subject who, as a naturalized American citizen, returned to Russia, there contracted a marriage with his niece, and returned to the United States with the woman and an idiot child, the court held that the marriage relation, being incestuous and absolutely void by the laws of the state at the port of which the parties presented themselves for admission, could afford no ground on which to base the right to enter. 5 Again, where naturalization by marriage is urged as against the right of the state to exclude under the immi- 3Act February 10, 1855, c. 71, s. 2, vol. 10, p. 604. 8And see 23 Op. Atty. Gen. 521, 1901. 474 The Exclusion and Expulsion of Aliens. case lie would be seeking admission to this country in the capacity of an immigrant and his right to enter for that purpose would be conditional on his freedom from such disabilities as operate to exclude. His presence hene would not be that of a seaman engaged in the ordinary pursuits incident to his vocation. Chinese Seamen. Chinese seamen have generally been held to be exempt from the excluding provisions of the Chinese exclusion acts . 59 But in order to guard against abuses and to insure their reshipment a bond may be required ; 60 and it has been held that where the giving of a bond is provided by the rules of the Department of Commerce and Labor, the right to enter is conditioned on furnishing the bond prescribed . 61 As in the case of aliens of other nationalities, the fact that a Chinese person arrives at a United States port as the member of a ship’s crew does not render him exempt from exclusion under the Chinese exclusion acts, where the voyage was made with intent to gain admission to this country . 62 B. Alien Stowaways. Alien stowaways have been held not to come within the operation of the immigration acts ; 63 but it is obvious that the mere fact of being stowaways does not decide the ques- tion of exemption. No matter in what way or in what capacity the alien enters the ship at a foreign port, the question of his right to remain must depend on the ca- pacity in which he seeks to remain. If it is his intention to take up a permanent abode here, or to remain even tem- 59United States v. Jamieson, 185 Fed. 165; In re Jam, 101 Fed. 989; United States v. Burke, 99 Fed. 895; In re Ah Kee, 22 Fed. 519; In re Mon Can, 14 Fed.' 44; In re Ah Sing, 13 Fed. 286; In re Ah Sing, 1 U. S. District Court, Hawaii, 15. eoUnited States v. Ah Fook, 183 Fed. 33; In re Jam, 101 Fed. 989. eiUnited States v. Crouch, 185 Fed. 907. 62United States v. Graham, 164 Fed. 655. 63Cunard Steamship Co. v. Stranahan, 134 Fed. 318. Status. 475 porarily in any capacity other than that of a sailor, he does not come within the terms of the Taylor decision. 64 But the fact that he entered the ship as a stowaway is of itself not sufficient under the law to subject him to inspec- tion by the immigration officers, for there is nothing in the fact that he so entered to prevent him from assuming the status of a seaman. In the case of United States v. Neil McDonald, decided by the Supreme Court in connection with the Taylor case, 65 there was an allegation in the indictment against the master that the alien was a stowaway under order of deportation. But, the court there stated that there is nothing in the fact that an alien has been refused leave to land from a British ship and has been ordered to be de- ported to make it impossible, as a matter of law, for the British master subsequently to accept him as a sailor on the high seas, even if bound for an American port. C. Natives of the Insular Possessions Porto Bicans, native inhabitants of the islands at the time of its cession by Spain to the United States, are not to be considered aliens in the meaning of the immigration act. In the case of Gonzales v Williams, 66 the Supreme Court emphasized the fact that the question to be deter- mined in deciding the point as to whether the immigra- tion Act of March 3, 1891, applied to native Porto Ricans was not whether such persons were natives of the United States, but “the narrow one whether Gonzales was an alien within the meaning of that term as used in the act.” In reaching the conclusion above stated the court said : “We think it clear that the act relates to foreigners as respects this country, to persons owing allegiance to a foreign government and citizen or subjects thereof; and that citi- zens of Porto Rico whose permanent allegiance is due tc 64 Ante p. 472. 65Taylor v. United States, 207 U. S. 120, 52 Law. Ed. 130. 66192 U. S. 1, 48 Law Ed. 317. 476 The Exclusion and Expulsion of Aliens. the United States, who live in the peace of the dominion of the United States, the organic law of whose domicile was enacted by the United States, and is in force through officials sworn to support the Constitution of the United States are not ‘aliens,’ and upon their arrival by water at the ports of our mainland are not ‘alien immigrants’ within the intent and meaning of the Act of 1891.” For the same reasons it would appear that natives of the Philippines are not aliens within the meaning of the pres- ent law. 67 6722 Op. Atty. Gen. 495, 1899. Judicial Review of Administrative Decisions. 477 CHAPTER IV. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS. I. In General. A. Administrative Officers final Judges on Questions of Fact. II. Prior to the Act of August 18, 1894. A. Right of Judicial Review. B. Matters going to the Jurisdiction of Executive Officers. 1. Persons not within the operation of the Exclusion or Immigra- tion Acts. 2. Acts in excess of Executive authority. III. After the passage of the Act of August 18, 1894. A. Right of Judicial Review. B. Matters going to the Jurisdiction of Executive Officers. 1. Allegation of Citizenship Insufficient to give the Courts Juris- diction. (A.) When the writ of Habeas Corpus is applied for before Administrative Appeal is taken. (B.) Where the writ is applied for after Administrative Ap- peal is taken. 2. Aliens not subject to the operation of the Immigration Laws. (A.) Domiciled aliens returning to the United States. (B.) Citizens of the insular possessions. (C.) Alien seamen. 3. When applicants status has already been finally decided by competent authorities. 4. Loss of departmental jurisdiction by alien’s change of status. C. Finality of Departmental Findings as to Right to Enter. 1. Extent of and to what applicable. 2. Favorable decisions not final. 3. Administrative findings of fact only are final. 4. Necessity for fair hearing. (A.) What constitutes a fair hearing. (1.) Opportunity to be heard. (2.) Executive officers must consider all the evidence submitted. (3.) Denial of the right of appeal. (4.) Obligation of departmental officers to pass on all questions before them. 178 The Exclusion and Expulsion of Aliens. 5. Departmental finding must constitute bona fide “decision.” 6. Abuse of authority. 7. Questions of fact. (A.) Whether an alien an immigrant a question of fact. (B.) Whether Chinese belong to exempt classes a question of fact. (C.) Citizenship a question of fact or a mixed question of law and fact. (D.) Other questions of fact. D. Finality of Departmental Findings as to the right to remain. E. Showing necessary to entitle Applicant to a Judicial Hearing. I. In General. Section 2 of the Immigration Act of August 3, 1882, 1 charged the Secretary of the Treasury with the duty of executing the provisions thereof; and section 3 required him to establish such rules and regulations not inconsist- ent with the law as he might deem best calculated to pro- tect the United States and the immigrants coming to the United States ports, and to carry out the provisions of the act. In the performance of these general duties the Secre- tary was empowered to enter into contracts with such state commission, board, or officers as might be designated for that purpose by the governor of any state. 2 This power, however, was withdrawn by the Act of March 3, 1891. 3 The Chinese exclusion Act of 1882, 4 prohibiting the fur- ther immigration of Chinese laborers into the United States, and providing for the issuance of certificates the possession of which was to entitle those laborers already in the country to entry on return, and Chinese members of the exempted classes to entry, designated the collector of customs as the authority to pass on the right of those seeking admission. By section 8 of the Act of September i22 Stat. at L. p. 214. 2Section 2. 326 Stat. at L. p. 1084. 422 Stat. at L. p. 58. Judicial Review of Administrative Decisions. 479 13, 1888, 5 the Secretary of the Treasury was empowered to make, prescribe and amend such rules and regulations as he might deem necessary to secure and protect both the United States and all Chinese persons in those rights se- cured to them by the second and third articles of the treaty with China of 1880. 6 The authority and power with re- spect to the enforcement of the immigration and exclusion laws, theretofore vested in the Secretary of the Treasury, were transferred to the Secretary of Commerce and Labor by the Acts of February 14, 1903, and April 28, 1904. Section 8 of the Act of March 3, 1891, provided that “all decisions made by the inspection officers or their assist- ants touching the right of any alien to land when adverse to such right shall be final unless appeal be taken to the Superintendent of Immigration whose action shall be subject to review by the Secretary of the Treasury.’’ Sec- tion 5 of the Act of March 3, 1893, provided that every ar- riving alien immigrant who should not appear to the ex- amining inspector to be clearly and beyond a doubt enti- tled to admission should be detained for special inquiry; that no immigrant should be admitted except after a favorable decision rendered by at least three out of four inspectors holding the inquiry; and that any decision to admit should be subject' to appeal by any dissenting in- spector to the Superintendent of Immigration, whose ac- tion should be subject to review by the Secretary of the Treasury. Section 12 of the Chinese exclusion Act of September 13, 1888, provided that no Chinese passenger of a vessel enter- ing a port of the United States should be allowed to land in violation of law ; “and that the collector shall in person decide all questions in dispute with regard to the right of any Chinese passenger to enter the United States, and his decision shall be subject to review by the Secretary of the 525 Stat. at L. p. 476. eAnte , p. 26. 480 ; The Exclusion and Expulsion of Aliens. Treasury and not otherwise.” This section is, however, to be regarded as not binding on the courts. 7 A. Administrative Officers Final Judges on Ques- tions of Fact. These provisions make it clear that in legislating re- garding the right of aliens, Chinese or others, to enter the United States, it was the intention of Congress to submit all questions of fact on which the right to enter was based to the final determination of the officers who, by the pro- visions of the various statutes dealing with the subject, were to pass upon the evidence on which the right claimed w^as founded. The matter was thereby made one for ad- ministrative and not judicial decision. The right of Congress so to do is incontestable. To quote the Supreme Court in the case of Ekiu v. United States : 8 “Congress may if it sees fit authorize the courts to investigate and ascertain the facts on which the right to land depends. But on the other hand, the final determina- tion of those facts may be entrusted by Congress to execu- tive officers ; and in such a 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 author- ized by law to do so, is at liberty to re-examine or con- trovert the sufficiency of the evidence on which he acted.” It had been contended in the case of the United States v. Jung Ah Lung 9 that there was no jurisdiction in the United States District Court to issue a writ of habeas corpus on behalf of a Chinese person held in custody by order of the collector of customs for deportation under the Act of 1884. Said the court: “It is urged that the only restraint of the party was that he was not permitted to 7Li Sing v. United States, 180 U. S. 486, 45 Law Ed. 634. 8142 U. S. 651; 35 Law Ed. 1147. 9124 U. S. 621, 3 3 Law Ed. 591. Judicial Review of Administrative Decisions. 481 enter the United States The party was in custody. The return of the master was that he held him in custody by direction of the customs authorities of the port under the provisions of the Chinese restriction act. This was an act of Congress. He was, therefore, in custody under or by color of the authority of the United States within the meaning of section 753 of the Revised Statutes We see nothing in these acts which in any manner affects the jurisdiction of the courts of the United States to issue a writ of habeas corpus” And the decision in the Ekiu case, 10 although holding that the courts could not be ap- pealed to for passing on questions of fact, when the same had been entrusted by Congress to administrative officers, was equally firm in holding that “an alien immigrant pre- vented from landing by any 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.” To say, however, that on habeas corpus proceedings the court cannot inquire into the facts would be to put the proposition too broadly to be consistent with accuracy. The facts on which the court will not pass are only those facts the determination of which Congress has left with the administrative officers, to wit: the facts on which the claim of the alien is based. Thus it has been held that the office of habeas corpus , when invoked under the immi- gration or Chinese exclusion acts is to inquire into the jur- isdiction exercised by| administrative officers, or quasi judicial tribunals, such as those presided over by a United States commissioner, in order to determine whether such officer or tribunal has kept within his or its legal limits and proceeded according to law. 11 The question of whether or not the decision of depart- mental officers is final and binding on the courts originates ioEkiu v. United States, 142 U. S. 651, 35 Law Ed. 1146. uln re Vito Rullo, 43 Fed. 62. 482 The Exclusion and Expulsion of Aliens. in the vast majority of cases with an administrative hold- ing adverse to the right of the alien to enter this coun- try. The immigration and exclusion acts do not provide that a favorable decision on the part of such officers is final, although those sections of the exclusion acts provid- ing for a hearing before the United States commissioner where Chinese aliens claim to be entitled to remain in the United States have been construed by the courts to make the commissioner’s favorable finding on the merits a final settlement of the question in dispute and as giving the Government no right of appeal ; 12 but it must be a de- cision on the merits, or it is not final. 13 The favorable decisions of executive officers, on the con- trary, have no binding effect and are of no force as con- trolling adjudications. 14 Thus the fact that the board of special inquiry established under the present immigration Act of February 20, 1907, passes favorably on the right of aliens to admission does not exempt them from the op- eration of the three year probationary period during which they may be deported by the Secretary of Commerce and Labor if found by him to be unlawfully in the United States; 15 and consequently the Secretary has the right to order the board to institute a second hearing in such cases, although it may have unanimously decided only a month before that the alien is entitled to enter. Eecourse to the writ in connection with proceedings instituted before United States commissioners under the Chinese exclusion acts will be considered in a subsequent chapter. 16 i2Leong Jun v. United States, 171 Fed. 413. i3 Ex parte Leung Jun, 160 Fed. 251. i *In re Li Foon, 80 Fed. 881; Ex parte Stancampiano, 161 Fed. 164; Li Sing v. United States, 180 U. S. 486, 45 Law Ed. 634; Pearson v. Williams, 202 U. S. 281, 50 Law Ed. 1029. isPearson v. Williams, 202 U. S. 281, 50 Law Ed. 1029; and see 136 Fed. 734. i6Chapter on Deportation Procedure, post, p. 652. The appeal provided by law, and not an application for the writ is the proper remedy. Judicial Review of Administrative Decisions. 483 II. Prior to the Act of August 18, 1894. A. Right of Judicial Review. Prior to the passage of the Act of August 18, 1894, 17 the courts pursued the principle of non-interference with the decisions rendered by the proper officials as to the right of aliens to land in or enter the United States whenever the right of judicial review thus invoked would have included an examination of the facts on which the right of the petitioner to enter or land was based, or when it would have included a judicial determination of facts to ascertain how executive officers had performed the duty imposed on them by the acts. Thus the courts refused to interfere for the purpose of passing on the action of the collector of customs in refusing to issue the return cer- tificate provided by the Acts of 1882 and 1884 to a Chinese laborer leaving the United States, the propriety of issuing such certificates having been left entirely to the discretion of that officer, 18 and steadily refused to exercise a super- visory control over the manner in which the collector per- formed his duty. 19 When the question was simply whether or not the finding of the collector was correct, and even when it appeared that the finding as to the facts was in- correct, when such incorrect finding was based on the un- truthful statements of the petitioner, the courts refused to interfere. 20 The test was conceded to be whether or not, in denying a landing, the proper officers were acting within the jurisdiction vested in them by the law, 21 and their findings were held not subject to review as long as competent evidence of the facts on which it was their duty to pass was before them at the time of the excluding de- 17 Post, p. 489. 18 In re Kew Ock (Case of the Limited Tag), 21 Fed. 789. 19 In re Ah Kee, 21 Fed. 701. 20 In re Dietz, 40 Fed. 324. 21 In re Day, 27 Fed. 678; In re Cummings, 32 Fed. 75; In re Vito Rulio, 43 Fed. 62; In re Chin Yuen Sing, 65 Fed. 571. 484 The Exclusion and Expulsion of Aliens. cision. 22 Thus, where the collector of customs under the Act of August 3, 1882, 23 had decided that the petitioners were not public charges, thereby reaching a different con- clusion from that of the board of commissioners, the writ was dismissed on the ground that the former had no power to reverse the findings of the board, the latter being vested by law with jurisdiction to pass upon the status of immi- grants to the exclusion of that of the collector. 24 Nor does the decision of the Supreme Court in the Jung Ah Lung case 25 lay down principles in conflict with the generally accepted view. That was the case of a Chinese laborer who left the United States in 1883 after having procured the return certificate of identification required by that act. The collector sought to exclude him on the ground that he had neither presented the certificate issued under that act nor that required by the Act of 1884, passed in his absence, and that no other evidence of his right to enter was admissible under the provisions of the Act of 1884. The court held that the Act of 1884 had no appli- cation to him and that his rights were to be determined by the provisions of the Act of 1882, which did not pro- vide that the certificate should be the only evidence of the right to return. It was, however, urged that the decision of the collector was exclusive, but the court said: “It is true that the ninth section of the act provides that before any Chinese passengers are landed the collector shall proceed to examine the passengers and that no passenger shall be allowed to land in the United States from such vessel in violation of law. But we regard this as only a provision for specifying the executive officer who is to perform the duties prescribed, and that no inference can be drawn from that or any other language 22 In re Cummings, 32 Fed. 75; In re Chin Yuen Sing, 65 Fed. 571. 2322 Stat. p. 214. 24 in re Palagano, 38 Fed. 580. 25124 U. S. 621, 31 Law Ed. 591. Judicial Beview of Administrative Decisions. 485 in the acts that any judicial cognizance which would otherwise exist is intended to be interfered with.” The petition went in effect to the jurisdiction of the collector: no question as to the correctness or incorrect- ness of his findings was raised. The question was whether or not on the facts shown the petitioner was entitled as a matter of law to land under the acts. The jurisdiction of the collector was limited to cases of passengers landing “from such a vessel in violation of law;” and when the facts as found by the collector failed to show that the peti- tioner if landing, would be doing so in violation of the acts, it would necessarily follow that the collector would be without jurisdiction, and that the facts on which such lack of jurisdiction was based would be properly before the court on habeas corpus. But the writ was refused in the case of an alien immigrant who had been denied land- ing by an inspector of immigration, duly appointed under the Act of March 3, 1891, where such immigrant had failed to appeal from the excluding decision to the super- intendent of immigration — the opportunity for such ap- peal being duly provided by section 8 of that act. 26 B. Matters Going to the Jurisdiction of Executive Officers. Whether or not the executive officers are acting within the limits of their jurisdiction depends primarily on two things — first, whether or not the person excluded is one who comes within the operation of the act or acts under which he is excluded, and second, whether or not the power under which he is excluded is that vested in the ex- ecutive officers for the purpose of enforcing the act. 1. Persons Not Within the Operation of the Exclusion or Immigration Acts. It was held in earlier cases that inasmuch as it was not the intention of Congress that the excluding provi- 26Ekiu v. United States, 142 U. S. 651, 35 Law Ed. 1156. 486 The Exclusion and Expulsion of Aliens. sions of the Chinese exclusion acts should apply to persons of Chinese descent who were citizens of the United States, such persons when held for the purpose of deportation were entitled to their release on habeas corpus; 21 and it appears that any person alleging himself to be a citizen of the United States desiring to return to this country from a foreign land, and prevented from doing so by deten- tion by the immigration authorities, who applied on that ground for a writ of habeas corpus was entitled to a hear- ing, and to a judicial determination of the facts alleged; and that no act of Congress could be understood to bar such hearing and judicial determination. 28 So, too, with regard to Chinese persons who, though not alleging citizenship in the United States, gave proof to the customs authorities of other facts the existence of which was not deemed a bar to their exclusion under the Chinese exclusion acts; or with regard to other aliens determined not to be within the classes excludable under the immi- gration acts. Thus the writ was granted in the case of a Chinese merchant who at the time of the passage of the Act of 1882 was domiciled in Peru, and could have had no opportunity of obtaining a certificate of identity under that act, 29 or where it appeared that the petitioner was a Chinese laborer domiciled in the United States who left the country prior to the Act of 1882 or 1884 and could not, therefore, produce the required certificate on his return. 30 Similarly where it was proven that the petitioner had never left the United States, but had traveled from one port thereof to another by vessel, as in such case no cer- tificate of return was required by the act; 31 and finally 27 Ex parte Chin King, 35 Fed. 354; In re Yung Sing Hee, 36 Fed. 437. 28Gee Fook Sing v. United States, 49 Fed. 146. Decisions under the later acts show them to have been based on a fallacy, at least so far as they sought to make of citizenship a peculiarly high question of fact. 29Case of the Chinese merchant, 13 Fed. 605. 30 in re Chin A On, 18 Fed. 506; United States v. Jung Ah Lung, 124 U S. 621. si In re Tong Wah Sick, 36 Fed. 440, Judicial Review of Administrative Decisions. 487 release on the writ was held to be the proper course where it appeared that the petitioners were alien residents of the United States returning to this country from a trip abroad, and were held for deportation on the ground of being alien immigrants under the Act of 1885, as the act was consistently held to apply only to aliens coming to this country for the first time to establish their domicile here, and not to aliens who, having established that domi- cile left it temporarily animo revertendif 2 but the de- cision of the Secretary of the Treasury to the effect that the petitioner was an immigrant presented a finding of fact with which the courts refused to interfere. 33 Relief was held proper where the petitioner was a Chinese merchant domiciled in the United States for seven- teen years, who left after obtaining proofs of identity from the collector of the port, and was held for deporta- tion on his return from a business trip to China for failure to obtain the certificate of identity from the Chinese gov- ernment required from Chinese merchants coming to the United States for the first time; those acts containing no provision whatsoever rendering it obligatory on such persons to obtain certificates when returning to the United States. 34 Again, it was held that a Chinese girl, the bride of a Chinese person then in the United States, refused admission and held for deportation, properly seeks relief in habeas corpus when it appears that the marriage was solemnized in good faith, although the groom was in the United States at the time the ceremony was performed in China; as the treaty with China and the provisions of the exclusion acts were held not to exclude from admission to the United States the wives or children of Chinese per- sons belonging to the exempt classes designated therein. 35 And where a Chinese person was held for deportation on 32 In re Panzara, 51 Fed. 275; In re Bucciarello et al., 45 Fed. 463. 33 In re Howard, 63 Fed. 263. 3 *Lau Ow Bew v. United States, 144 U. S. 47. 35 In re Lim Lim Ying, 59 Fed, 682. 488 The Exclusion and Expulsion of Aliens. the ground that he was a Chinese laborer who had failed to register according to the Act of 1893, he was discharged on habeas corpus proceedings on the ground that the evi- dence produced by him in deportation proceedings was sufficient to establish his status as a merchant, and that as such he was not subject to deportation under that act for failure to register. 36 The reason for granting the relief in habeas corpus in the class of cases last cited is clear: The fact of detention under color of authority of the United States for purposes of deportation under the Chinese exclusion and immigration acts of aliens who it was not the purpose of Congress to exclude, and the conse- quent lack of jurisdiction in the departmental officers to exclude or expel. 2. Acts in Excess of Executive Authority. The second general ground for affording relief as stated 37 is where the facts which the courts are requested to review show that executive officers have exceeded the powers vested in them by statute through adopting meth- ods of exclusion not provided by or justifiable under the acts themselves. Thus, on a writ of habeas corpus brought by an immigrant held for deportation under the Act of August 3, 1882, the court, after inquiring into the cause of detention, found it proper to ascertain whether or not the board of inquiry acted within its powers; and release on the writ was held proper where, under the same act, the petitioners were held for deportation in the absence of any examination by the board; 38 and the power of the courts to review was held to be limited to an examination as to whether or not the proceedings of the immigration authorities were fair and regular. 39 And similarly under *6The proper procedure in cases coming before United States Commis- sioners under that Act is by appeal, and not by writ of habeas corpus. wAnte, p. 485. as in re Bracmadfar, 37 Fed. 774. 39 In re Dietz, 40 Fed. 324. Judicial Review of Administrative Decisions. 489 the Act of March 3, 1891, where it appeared that the pe- titioner had been refused the privilege of the special in- quiry provided under section 1 of that act, and was there- upon detained for deportation, the court ordered his re- lease on habeas corpus.* 0 III. After the Passage of the Act of August 18, 1894. A. Right of Judicial Review. On August 18, 1894, Congress passed the Sundry Civil Appropriation Act appropriating $100,000 under the sub- title “Enforcement of alien laws/’ and $50,000 under the subtitle “Enforcement of the Chinese exclusion act,” imme- diately following the former. The closing paragraph of the latter reads as follows: “In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if ad- verse to the admission of such alien shall be final unless reversed on appeal to the Secretary of the Treasury.” By the Acts of February 14, 1903, and April 28, 1904, the jurisdiction of the Treasury Department in these matters was transferred to the Department of Commerce and Labor. At the time of the passage of this act the Chinese ex- clusion Acts of 1882 and 1884, and October 1, 1888, were in force. As regards the Act of September 13, 1888, “while sections 1 to 4 and section 15 never took effect be- cause the treaty upon which they were dependent was not ratified, the remainder of the act was not dependent 011 the treaty, and has a field of operation as existing law.” 41 And it was held in 1892 that the act became law from the date of its approval with the exception of sections 2, 4, and 15, but that while the law existed at that time, in the *°In re Feinknopf, 47 Fed. 447. 4123 Opinions Atty. Genl. 621, 1902. 42United States v. Long Hop, 55 Fed. 58, 490 The Exclusion and Expulsion of Aliens. absence of the ratification of the treaty there was no field of operation for those sections. 42 Even in 1901 the matter of the force of those provisions which were not dependent on the treaty involved considerable doubt. Says the Su- preme Court in the case of Li Sing v. United States : 43 “Without finding it necessary to say that there are no pro- visions in the Act of September 13, 1888, which from their nature are binding on the courts as existing statements of the legislative will, we are willing to hold that section 12 of that act cannot be so regarded.” 44 Moreover, at the time of the passage of the Sundry Civil Appropriation Act of August 18, 1894, the Acts of March 3, 1891, and March 3, 1893, amending and facilitat- ing the enforcement of the various acts relating to the immigration and importation of aliens, were in full force and effect. Prior to the Act of August 18, 1894, in one instance only had Congress provided that the decision of executive offi- cers should be final as to the right of aliens to be admitted to the United States. This was section 8 of the Act of March 3, 1891, to the effect that all decisions of inspection officers touching that right should be final “unless appeal be taken to the Superintendent of Immigration, whose action shall be subject to review by the Secretary of the Treasury.” There it was the failure on the part of the alien to take the appeal that made the decision final, True, section 12, of the Act of September 13, 1888, pro- vided that the collector in person should decide all ques- tions in dispute as to the right of Chinese persons to land, and that his decision should be subject to review by the Secretary of the Treasury but not otherwise. But, as above stated, 45 section 12 was held by the Supreme Court not to be binding on the courts. The Act of 1894 com- 43180 U. S. 486, 45 Law Ed. 634. 44Section 5 to 14 excepting Section 12 were, in order to dispel any further doubts on the question, re-enacted by the Acts of 1902, and 1904. 45 Supra. Judicial Review of Administrative Decisions. 491 mitted the decision of the right of entry to officers of the executive department for final determination , 46 and in spite of determined attacks made upon it in the courts, its constitutionality was upheld on the ground that Con- gress could entrust the executive department with the ex- clusion determination of the right of aliens to enter the United States; that it had expressed its will in this in- stance, and had made the decision of the Secretary of the Treasury the final expression of the governmental intent in these cases . 47 Administrative Decisions May Not Be Arbitrary. Still, in spite of the positive and comprehensive terms of the statute they cannot be construed to vest executive officers with arbitrary power. There is the law itself, which defines the method in which the right to enter is to be determined. If determined in accordance with the method prescribed by Congress, harsh as those methods may be, the existence of the right has none the less been decided lawfully, and the alien excluded cannot be heard to say that he has been excluded without due process of law; but to constitute due process of law as understood at the time of the Constitution he cannot be detained for deportation without having had, at some time an oppor- tunity to be heard upon his right to enter ; 48 also he must, in order that the executive decision be final, be an alien seeking admission to the United States under some law or treaty of the United States; otherwise he is not within 46Lem Moon Sing v. United States, 158 U. S. 539, 39 Law Ed. 1082. 47Lem Moon Sing v. United States, 158 U. S. 539; 39 Law Ed. 1082; United States v. Sing Tuck, 194 U. S. 161, 48 Law Ed. 917; United States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040; Yamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721; Lee Lung v. Patterson, 186 U. S. 168, 46 Law Ed. 1108; United States v. Watchorn, 164 Fed. 152; ex parte Stancampiano, 161 Fed. 164; In re Gayde, 113 Fed. 588, and same 112 Fed. 416; In re Way Tai, 96 Fed. 484; United States v. Jin Fung, 100 Fed. 389; In re Moses, 83 Fed. 995; United States v. Wong Chow, 108 Fed. 376; In re Leong Youk Tong, 90 Fed. 648. 48Yamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721. 492 The Exclusion and Expulsion of Aliens. the purview of the statute, and the excluding decision, far from being final, would be null and void, inasmuch as it is only under some law or treaty that the Secretary has jurisdiction to pass upon his case. How far the right of an alien to a hearing in habeas corpus proceedings has been restricted by the Act of 1894, and to what extent the court will, in view of this legislation, review the decisions of the executive department, will be considered in the fol- lowing pages. Effect of the Act of 189 If on the Right of Judicial Review. The question of jurisdiction and of whether or not, in passing on any given case, the methods designated and in- tended by Congress to be pursued are in fact employed to-day, is, as it was before the passage of the Act of 1894, the only real issue which justifies the courts in re- viewing administrative decisions rendered under the Chinese exclusion and immigration acts. How, then, it may be asked, does the passage of that act either restrict the courts in their power of review or make the decisions of administrative officers more binding on the judiciary than they were prior to the passage of the act? The dis- tinction may be said to be this : Before the Act of 1894 was passed whenever the courts refused to exercise the right of review it was merely on the broad ground that all discretion having been granted to executive officers by the provisions of the preceding acts to pass on the facts on which the right to enter was based, Congress had shown that it was its intention that as to those facts the decision of the executive officers should be final ; but that, if the claim was made that, over and above the officer’s finding of fact, the applicant was entitled to enter under any law or treaty, the courts would pass on whether or not he was entitled to enter under such law or treaty. The decision of those officers as to the right of foreigners to enter under any law or treaty not being made final by any Congressional legislation to that effect, Judicial Review of Administrative Decisions. 493 there could be no obstacle to its review by the courts on habeas corpus proceedings. 49 But after the passage of the Act of 1894., a different con- dition was created. Under the earlier acts the facts as found by the officer were not subject to review because of a generally recognized legal principle applicable to the existence in such officer of a delegated authority to pass on those facts ; but where it was contended that an alien was deprived of treaty rights by being excluded, the courts would exercise their power of examining into that par- ticular question. This power the Act of 1894 took away. As said in the Lem Moon Sing case, 50 where the writ of habeas corpus was refused a Chinese person who, in spite of his assertion that he was a returning Chinese merchant lawfully domiciled in the United States, had been refused admission to the United States: “The contention is that while, generally speaking, immigration officers have juris- diction under the statute to exclude an alien who is not entitled under some statute or treaty to come to the United States; yet if the alien is entitled, of right, by some law or treaty, to enter this country, but is neverthe- less excluded by such officers, the latter exceed their juris- diction ; and their illegal action, if it results in restraining the alien of his liberty, presents a judicial question for the decision of which the courts may intervene upon a writ of habeas corpus ” The court goes on to say that if this contention is correct the provision that the adminis- trative decision should be final would be nullified and of no practical effect. The question of whether or not an alien was entitled to enter under some law or treaty on which the Supreme Court had, prior to August 18, 1894, so frequently passed, was no longer open to judicial consid- *9Ekiu v. United States, 142 U. S. 651, 35 Law Ed. 1146; Lau Ow Bew, petitioner, 141 U. S. 583, 35 Law Ed. 868; Wan Shing v. United States, 140 U. S. 424, 35 Law Ed. 503; United States v. Jung Ah Lung, 124 U. S. 621, 31 Law Ed. 591; Chew Heong v. United States, 112 U. S. 536, 28 Law Ed. 770. soLem Moon Sing v. United States, 158 U. S. 539, 39 Law Ed. 1082. 494 The Exclusion and Expulsion of Aliens. eration. As stated in this case, the effect of the Act of 1894 was to commit to executive officers “exclusive authority to determine whether a particular alien seeking admission into this country belongs to the class entitled by some law or treaty to come into the country or to a class forbidden to enter the United States.” In distin- guishing between this case and that of Lau Ow Bew v. United States 51 the Court said : “Now the difference between that case and the present one is that, by the statutes in force when the former was decided the action of executive officers charged with the duty of enforcing the Chinese Exclusion Act of 1882 as amended in 1884, could be reached and controlled by the Courts when necessary for the protection of rights given or secured by some statute or treaty relating to Chinese. But by the Act of 1894, the decision of the appropriate im- migration or customs officers excluding an alien ‘from ad- mission to the United States under any law or treaty’ is made final in every case, unless, on appeal to the Secretary of the Treasury it be reversed, If the Act of 1894 had done nothing more than appropriate money to enforce the Chinese Exclusion act, the Courts would have been authorized to protect any right the appellant had to enter the country, if he was of the class entitled to admission under existing laws or treaties and was improperly ex- cluded. But when Congress went further (by passing the Act of 1894) the authority of the Courts to review the decision of the executive officers was taken away.” 52 Where it appears that the person excluded is an alien, that he was seeking admission under and was ex- cluded under a law or treaty of the United States, and that the excluding decision is not reversed on appeal, these facts taken together, would seem to constitute those ele- ments creating a condition into which the Courts cannot intrude. Conversely it seems that the absence of any one siLau Ow Bew v. United States, 144 U. S. 47, 36 Law Ed. 340. 62158 U. S. 539, 39 Law Ed. 1082. Judicial Review of Administrative Decisions. 495 cf these elements would deprive an administrative decision rendered under those conditions of the shield of finality thrown about it by the statute. It is not to be considered, however, that Congress has provided that the decisions of executive officers only need to be rendered in order to be final. The decision of the Supreme Court in the Japanese Immigrant case 53 which went as far as any other rendered by that tribunal in upholding the constitutionality of the Act of 1894 and in adhering to the strict principles of non-interference by the Courts with decisions rendered by administrative officers entrusted with the execution of the Chinese and Immi- gration Acts, contains the following statement : “But this Court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons may disregard the fundamental principles that inhere in “due process of law” as understood at the time of the adoption of the Constitution. One of these princi- ples is that no person shall be deprived of his liberty with- out opportunity, at some time, to be heard . . . Therefore, it is not competent for the Secretary of the Treasury or any executive officer at any time within the year limited by the statute arbitrarily to cause an alien who has entered the country and has been subject in all respects to its jurisdic- tion, and a part of its population, although alleged to be illegally here, to be taken into custody and deported with- out giving him all opportunity to be heard upon the ques- tions involving his right to be and remain in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized.” B. Matters going to the Jurisdiction of Executive Officers. As before stated 54 the jurisdiction of departmental of- ssYamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721. 54 Ante , p. 491. 496 The Exclusion and Expulsion of Aliens. ficers is complete under the Act of August 18, 1894, when the person before them is an alien and attempting to enter under any law or treaty of the United States. As will be seen, 55 when the question of whether or not he is an alien or a citizen depends absolutely on the facts found by the executive officer, the latter’s decision is final as to such alienage or citizenship. Such decision is not final how- ever, if the person found to be an alien is not found to be seeking admission to the United States under any law or treaty; in other words if the law or treaty under which the power to exclude is exercised does not include within its operation the alien excluded in a particular case. Whether a person seeking admission into this country is a citizen or a foreigner is a question of fact 56 for adminis- trative officers to determine insofar as the applicant’s po- litical status can be correctly determined by reference to facts alone; whether if found to be an alien he is as such, subject to the operation of a law or treaty regarding his right to admission, is a question of law. 67 But it must always be borne in mind that while the facts from which executive officers may deduce the resulting political status of alienage or citizenship cannot be disturbed by the Courts they may pass upon the point as to whether or not the deduction of law based on such fact is correct. 58 1. Mere Allegation of Citizenship Insufficient to give Courts Jurisdiction. Before passing to an examination of what, in the light of judicial determination, is a test of a fair hearing, or of the circumstances under which the Courts will review ad- ministrative decisions, it will be well to consider how the Courts have interpreted the Act of 1894 with particular regard to its application to cases where the alien seeking ssPost, p. 534. 66Lem Moon Sing v. United States, 158 U. S. 534, 39 Law Ed. 1082. 57Gonzales v. Williams, 192 U. S. 1, 48 Law Ed. 317. BsUnited States v. Wong Kim Ark, 169 U. S. 649, 42 Law Ed. 890. Judicial Review of Administrative Decisions. 497 to enter the United States has sought to avoid its opera- tion by the claim that he is an American citizen. Atten- tion has already been called to the fact that the mere allegation of United States citizenship on the part of a person excluded from admission to this country and de- tained for deportation was sufficient to grant him a hear- ing in habeas corpus. 59 The question was first presented to the Supreme Court in the case of Chin Bak Kan v. United States, 60 decided in 1902. The petitioner was a person of Chinese descent arrested on the ground of being unlawfully in the United States, and brought before a United States commissioner in deportation proceedings. It was claimed that the Commissioner had no jurisdiction because the basis of the right to remain was alleged to be the United States citizenship of the party arrested, and that by law the Obligation to prove the right to remain before the commissioner rested in Chinese persons only.” But the Court held that the right on which such a claim is rested must be made to appear, and that “the inesti- mable heritage of citizenship is not to be conceded to those who seek to avail themselves of it under a pressure of a particular exigency without being able to show that it was ever possessed.” Further, the Court laid particular stress on the fact that the United States Commissioner was a quasi- judicial officer and that he acts judicially in such proceedings. It is also to be noted that under the procedure prescribed the law gives the right to appeal, the effect of which is to create a hearing de novo before the Court reviewing the proceedings held before the Commis- sioner, and full opportunity to prove the fact of citizen- ship before a court of the United States. The application for the writ was denied. 59 Gee Fook Sing v. United States, 49 Fed. 146. 60186 U. S. 193, 46 Law Ed. 1121. 498 The Exclusion and Expulsion of Aliens. (A.) When the writ is Applied for before Administrative Appeal is taken. In deciding the case of the United States v. Sing Tuck 61 the Supreme Court had before it the question as to whether or not Chinese persons seeking admission into the United States, who, on being interrogated as to their right to enter, stated that they were American citizens and then stood mute, and were then found not entitled to enter, — from which finding they took no appeal from the inspector in charge at the port of application — were entitled, on being detained for deportation, to their discharge on a writ of habeas corpus. It was argued, that, by the construction of the Act of 1894 the fact of citizenship went to the juris- diction of the immigration officers, and that the statute did not purport to apply to one who was a citizen in fact. But the Court said, “We shall not argue the meaning of the act. That must be taken to be established. As to whether or not the act could make the decision of an ex- ecutive officer final upon the fact of citizenship, we leave the question where we find it. Whatever may be the law on that point the decisions just cited are enough to show that it is too late to contend that the act is void as a whole In order to act at all the executive officer must decide on the question of citizenship. If his jurisdic- ton is subject to being upset still it is necessary that he proceed if he decides that it exists. An appeal is provided by the statute. The first mode of attacking his decision is taking that appeal. If the appeal fails it is then time enough to consider whether upon a petition showing reasonable cause, there ought to be a further trial upon habeas corpus.” 62 eil94 U. S. 161, 48 Law Ed. 917. 62And see re Koon Ko and re Koon Heen, 3 U. S. Dct. Hawaii, p. 623; and see Jao Igco v. Shuster, 10 Phil. Rep. 448; Lun Jao Lu v. McCoy, 10 Phil. Rep. 641. Judicial Review of Administrative Decisions. 499 (B.) Where the writ is Applied for after Administrative Appeal is taken. In the case of United States v. Ju Toy, 63 the question was squarely raised of whether or not the allegation of American citizenship on the part of Chinese persons re- fused admission to the United States by the Immigration authorities and again denied the right to enter on appeal to the Secretary of Commerce and Labor sufficed to take the case from the hands of departmental officers and into the jurisdiction of the courts on habeas corpus. The case of the petitioner appeared to be peculiarly strengthened by the fact that a United States District Court had granted the writ, and on hearing the evidence adduced the judge found the petitioner to be a native born citizen of the United States. He alleged only the fact of citizenship, and the petition was silent as to the existence of any abuse of authority on the part of the executive officers or the absence of a fair hearing. In denying the writ the Court said : “It is established, as we have said, that the Act of 1894 purports to make the decision of the Department final, whatever the ground on which the right to enter the coun- try is claimed, — as well when it is citizenship as when it is domicile, and the belonging to a class excepted from the Exclusion Acts. It is also established by the former case (United States v. Sing Tuck) and others which it cites that the relevant portion of the Act of August 18, 1894, Chapter 301, is not void as a whole. The statute has been upheld and enforced. But the relevant portion being a single section, accomplishing all its results by the same general words must be valid as to all that it embraces, or altogether void. An exception of a class constitutionally exempted cannot be read into those general words merely for the purpose of saving what remains. That has been decided over and over again (citing cases). It necessarily 63198 U. S. 253, 49 Law Ed. 1040. 500 The Exclusion and Expulsion of Aliens. follows that when such words are sustained they are sus- tained to their full extent.” Certain observations made by the Court both in the Sing Tuck and Ju Toy cases have served perhaps to create an erroneous impression as to that court’s attitude concern- ing the right of immigration officers to arrest and detain citizens of the United States seeking to enter this country. In the former case it is said that “the detention during the time necessary for investigation was not un- lawful even if all the parties were not attempting to upset the inspection machinery by a transparent device;” and in the J u Toy case : “if for the purpose of argument we assume that the Fifth Amendment applies to him (the petitioner) and that to deny entrance to a citizen is to de- prive him of liberty, we nevertheless are of the opinion that in regard to him, due process of law does not require a judicial trial.” But these remarks, aside from" being purely dicta, cannot be held as laying down the proposi- tion that under the Chinese and Immigration Acts taken in connection with the Act of 1894, the decisions of execu- tive officers denying admission to citizens of the United States are final and binding on the courts. What the Su- preme Court does hold unqualifiedly is that the mere as- sertion of citizenship by persons excluded under any law or treaty of the United States is insufficient on which to base the claim for a judicial hearing to which, as Ameri- can citizens, they would be entitled ; and this holding cer- tainly finds support in the decision rendered in the Chin Bak Kan case 64 inasmuch as the relief sought in that case in habeas corpus was refused on the ground that petitioner had failed to prove himself what he had asserted himself to be, a citizen of the United States. It seems indisput- able, as stated in the dissenting opinion in both the Sing Tuck and Ju Toy cases, that not only do the statutes of the United States expressly limit the finality of the determi- 64186 U. S. 193, 46 Law Ed. 1121. Judicial Review of Administrative Decisions. 501 nation of the immigration officers to the case of aliens, but the rules of the Department are to the same effect. But it seems idle to speak of limiting the jurisdiction of such officers to cases of aliens in the absence of some rule whereby it may be determined who are aliens and who are not. The question of whether a Chinese person is a citizen of the United States is dependent on one fact only: that of his birth in the United States; and unless the fact is proven who shall say that in excluding such a person under the Act of 1894 the provisions of the statute have been invoked for the purpose of banishing a citizen of the United States? The only forum provided by law for ascer- taining that fact is the Department of Commerce and Labor ; and, therefore, the claim of citizenship, if not proven in that forum, cannot, for political purposes at least, insofar as the right to enter under the Chinese exclusion laws is based thereon, be said to exist. Whether or not Congress acted wisely in restricting a person alleging United States citizenship to so limited a forum may well be considered a matter of grave doubt ; but, admitting that by passing the Act of 1894 Congress has done so — and such is undoubtedly the law to-day — there seems to be no justi- fication for the assertion that Congress has authorized “the banishment of American citizens” at the discretion of the Secretary of Commerce and Labor without the right of appeal to the courts. As the result of these cases it is settled law that the mere allegation of citizenship by one excluded from entry under the exclusion and immigration acts does not go to the jurisdiction of executive officers. But the fact of citi- zenship once proven in the mode provided for such proof by the statute necessarily goes to that jurisdiction. This was decided by the Supreme Court in the case of United States v. Wong Kim Ark 65 where the departmental officers found that the applicant, a person of Chinese descent, was 65169 U. S. 649, 42 Law Ed. 890. 502 The Exclusion and Expulsion of Aliens. born in the United States. There the only issue was as to w^h ether birth in this country made the applicant an Amer- ican citizen, and the court held that it did. There was no dispute as to the facts. 2. Aliens Not Subject to the Operation of the Immigra- tion Laws. With the passage of the Act of 1894, the principle that the decision of executive officers rendered under conditions set out in that act were final and binding on the judi- ciary, was universally accepted by the courts. 66 But it was also recognized that the decisions of immigration offi- cers were not final when based on a finding of fact which showed that the aliens excluded were not members of a class upon which the acts under the color of which they were refused admission were intended to be operative. 67 (A.) Domiciled Aliens Returning to the United States. Prior to the Act of March 3, 1903, the immigration acts had been almost invariably held to include within their operation — aside from certain classes of aliens whose en- trance was specially prohibited — only alien immigrants, or persons coming to the United States for the first time for the purpose of establishing their domicile in this country. It had been held in 1895 that the “entire body 66Yamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 421; Fok Young Yo v. United States, 185 U. S. 306, 46 Law Ed. 917; Li Sing v. United States, 180 U. S. 486, 45 Law Ed. 634 ; Lem Moon Sing v. United States, 158 U. S. 539, 39 Law Ed. 1082; United States v. Watchorn, 164 Fed. 152; Ex parte , Stancampiano, 161 Fed. 164; Ex parte, Lung "Wing Wun, 161 Fed. 211; United States v. Wong Soo Bow, 112 Fed. 416; United States v. Wong Chow, 108 Fed. 376; United States v. Gin Fung, 100 Fed. 389; in re Way Tai, 96 Fed. 484; in re Leong Wouk Tong, 90 Fed. 648; in re Moses, 83 Fed. 995; in re Chin Yeun Sing, 65 Fed. 571. 67As where there is an agreed finding of facts that the children of domi- ciled aliens born in the United States are held for deportation (in re Giovanna, 93 Fed. 659) or where Chinese minors are found to be the adopted children of a Chinese merchant domiciled in the United States (ex parte Fong Yim, 134 Fed. 938) ; and see 160 Fed. 1014 and 176 Fed. 478. Judicial Review of Administrative Decisions. 503 of statute law touching the exclusion of contract laborers shows that it is directed solely against alien immigrants, not against alien residents, when returning after a tem- porary absence ;” 68 and this view was generally adopted by the Federal courts both before and after the rendering of the decision just quoted up to the passage of the Act of March 3, 1903. 69 In the decision from which the quota- tion is taken it was held that when it appeared that the relator, an unmarried man, came to this country with the intention of making it his permanent abode, remained here about two years, and then left for his native country with the intention of returning might, if detained by order of the immigration authorities on such return, claim his right to be discharged on habeas corpus. Later decisions rendered under the Acts of 1891 and 1893 sustained this holding, asserting that the courts had jurisdiction to pass on the question of whether or not the petitioner was an alien immigrant. 70 By the Act of March 3, 1903, the term “alien immi- grants” as used in the preceding acts, was in certain sec- tions discarded, and the word “aliens” substituted there- for. The significance of this change has been discussed at length in an earlier chapter. 71 Its significance for the purposes of the point at present under discussion amounts to this : If the word “immigrants” was deliberately omitted from the Act of 1903, for the purpose of extend- ing the scope of that act to all aliens entering the United States irrespective of whether or not they might be return- ing to resume a domicile already lawfully established, the effect would be to vest executive officers with jurisdiction over a certain class of aliens — those who were found on examination to have already acquired a domicile in this 68 In re Maiola, 67 Fed. 114. 69 In re Panzara, 51 Fed. 275; in re Martorelli, 63 Fed. 437; in re Ota, 96 Fed. 487. 70 In re Di Simone, 108 Fed. 942 ; but reversed on confession of error. 71 Chapter on Status, ante, p. 434 et seq. 504 The Exclusion and Expulsion of Aliens. country, and to be returning for the purpose of continuing to maintain the same — which, by a practically unbroken line of judicial decisions, such officers had been held not to exercise. Under the Act of 1903, various judicial opinions, con- flicting as to the finality of executive decisions, were ren- dered by the Federal courts. On the one hand (and citing as authority the case of Lem Moon Sing v. United States) it was held that the Act of 1903 applied to “all aliens ;” 72 on the other, it was asserted that the change of termin- ology from “alien immigrants” to “aliens” could not be construed to have this effect and that the courts had the right of review in such cases. 73 The conflict in judicial opinion on this point is still apparent in decisions ren- dered under the present act, although in section 25 thereof the word “aliens” used in the Act of 1903 has been dis- carded and the term “immigrants” substituted therefor. 74 But conceding that the term “aliens” as used in section 2 of the present act, wherein are designated the classes of aliens excluded from admission — and, it may be noted, as used in section 2 of the preceding act, and in the cor- responding section of the Act of March 3, 1891, which had been steadily held to apply only to alien immigrants — means “all aliens,” still the question remains unsolved as tc whether or not the act is to be considered confined in its operation to all aliens seeking “admission” or is meant to include all aliens who, after having once been “ad- mitted” depart temporarily and then return. Attention has been called to the fact that the Lem Moon Sing case has been cited in support of the view that the 72Taylor v. United States, 152 Fed. 1. 73United States v. Nakashima, 160 Fed. 842; United States v. Altman, 143 Fed. 922; in re Buchsbaum, 142 Fed. 221; Rodgers v. United States, 152 Fed. 346 ; Redfern v. Halpert, 186 Fed. 150. 74United States v. Williams, 187 Fed. 470; in re Hoffman, 179 Fed. 839; ex parte Koerner, 176 Fed. 478; United States v. Villet, 173 Fed. 500; United States v. Hook, 166 Fed. 1007; ex parte Petterson, 166 Fed. 536; ex parte Crawford, 165 Fed. 830; United States v. Watehorn, 164 Fed. 152. Judicial Review of Administrative Decisions. 505 excluding provisions of the present act and the Act of 1903 apply to aliens domiciled in this country as well as those seeking admission here for the first time. It is true that in that case the Act of 1894 makes the decision of de- partmental officers final in excluding an alien from “ad- mission” to the United States, and that the Supreme Court upheld the application of the act to the case of a person claiming to be a Chinese merchant returning to the United States. It must be borne in mind, however, that the reason why the applicant was refused admission by the collector of customs was simply because the collector had not found as a fact that he was a returning merchant. Had this been the result of the administrative finding — in other words had the applicant proved his mercantile status in accordance with the provisions of the acts under which he sought to enter — he would have been permitted to enter as a matter of right. The principle for which the applicant contended was that having acquired a domicile in this country his right to retain it could not be lawfully made to depend on the decision of an executive officer ; but the court held that the mere fact of such acquisition of domicile by a foreigner could not render him immune from the operation of municipal legislation enacted subsequently to his ac- quisition of such domicile and which specifically included him in its operation. In relying on the Lem Moon Sing case those courts which have done so seem to have over- looked the fact that the right of the applicant to return in that case could only be claimed under some law or treaty of the United States ; whereas the right of domiciled aliens of other nationalities to return had never, until the passage of the Act of March 3, 1903, been held by the courts to depend on any law or treaty whatsoever. At the time of the passage of the Act of August 18, 1894, no one would have claimed that the right of domiciled aliens other than Chinese to return to the United States was dependent for its exercise upon some law or treaty of the United 506 The Exclusion and Expulsion of Aliens. States. The right of such aliens to retain their domicile was, under the universally recognized rule of interna- tional law the necessary consequence of having been al- lowed by this Government to acquire it. And it would seem that had Congress in the just exercise of its sovereign powers seen fit to revoke that right by municipal legis- lation, it would have done so in an unmistakable manner ; and the fact that in selecting the terms by which to designate in the second section of the Acts of 1903 and 1907 those aliens who should be subject to the excluding provisions thereof it repeated word for word the term used in the corresponding section of the Act of March 3, 1891, which had never been held to apply to returning domiciled aliens, is of itself an indication that the rights hitherto enjoyed by them under earlier acts were to remain undis- turbed. (B.) Citizens of the Insular Possessions. In the case of Gonzales v. Williams, 75 the petitioner in habeas corpus , an unmarried woman and a native of Porto Rico residing there on April 11, 1899, the date of the ratification of the Treaty of Paris whereby Porto Rico was ceded to the United States, on seeking admission to this country was denied entry on the ground that she was an alien and subject to exclusion under the Immigration Act of March 3, 1891. The Government contended that by virtue of the provisions of that act and of the Act of August 18, 1894, the decisions of the departmental officers was final ; further, that not having been found to be a citi- zen of the United States, she must necessarily be an alien, and, therefore, within the departmental jurisdiction. But the court held that the question in the case was not whether she was a citizen of the United States, but whether she was an alien within the intent of the immigration statute, and that the courts were not bound by the deci- 76192 U. S. 1, 48 Law Ed. 317. Judicial Review of Administrative Decisions. 507 sions of the executive officers in such a case as this, thereby denying the application thereto of the Act of 1894. There was no dispute as to the fact ; the only question was the question of law as to whether or not a citizen of Porto Rico conies within the operation of the immigration acts, which, being decided in the negative, all questions of fact were held to become immaterial. The court accordingly granted the writ. The same result would necessarily fol- low were such an appeal presented by a citizen of the Philippine Islands or of Hawaii. (C.) Alien Seamen. Foreign seamen in the bona fide exercise of their calling have been consistently held by the courts not to come within the excluding provisions of either the immigration or the Chinese exclusion laws. In construing the Act of March, 1903, Mr. Justice Holmes pointed out that the act has no application to foreign sailors carried to an American port with a bona fide intent to take them out again when the ship goes on, since it is necessary to commerce that sailors should go ashore in the ordinary pursuits of their calling, and that it would be unreason- able to believe that the statute altogether intended to prohibit their doing so. 76 3. When Applicant’s Status Has Already Been Definitely Decided by Competent Authority. While the jurisdiction of departmental officers to finally pass on the facts on which the right of aliens seeking ad- mission is based cannot be questioned, those facts may reveal causes other than those consisting in the failure of the statute to apply to a given case, which will justify the court in affording relief in habeas corpus. Thus, when the facts below show that a Chinese alien seeking admis- sion into the United States has received a judgment of dis- 76Taylor v. United States, 207 U. S. 120, 52 Law Ed. 130. 508 The Exclusion and Expulsion of Aliens. charge on the merits from a United States commissioner, that discharge is as binding on the Secretary of Commerce and Labor as it would be on the Government in the pro- ceeding in which the order was issued, 77 although the ex- ecutive decision is final on the point of whether or not the alien presenting the discharge is in fact the individual to whom it was issued. 78 4. Loss of Departmental Jurisdiction by Alien’s Change of Status. It has been held that departmental jurisdiction may be lost by a change of status of the person detained for de- portation ; thus where, pending the deportation of an alien woman, and pending her application for release on habeas corpus, she marries a citizen of the United States she is at once entitled to her discharge from custody, and if this is refused to her release on the writ. 79 However, this is due to the fact that under the naturali- zation laws she herself becomes as an individual a citizen of the United States; and this can only occur when the woman herself is capable of being naturalized. 80 And when an alien woman marries an alien abroad, who deserts her, and, after coming to the United States becomes a citizen of this country, she herself becomes a citizen of the 77Leong June v. United States, 171 Fed. 413. As is the judgment of a District Court in habeas corpus proceedings as to alien's right to remain. United States v. Chung Shee, 76 Fed. 951. 78j Ex parte Long Lock, 173 Fed. 208; ex parte Lung Wing Wun, 161 Fed. 211 . 79Hopkins v. Fachant, 130 Fed. 839; but see contra cases in chapter on Statutes. soWhere the change of status is brought about not by marriage, but by adoption, pending deportation proceedings it has been held that depart- mental officers do not lose their juris dicition thereby. Co v. Rafferty, 14 Phil. Rep. 235. To deport the alien who has in this way actually acquired a bona fide communicated status which would entitle him to admission would seem a somewhat futile proceeding, since after being deported he would have a perfect right to enter on his return. See Rafferty v. Judge of First Instance, 7 Phil. Rep. 164. Judicial Beview of Administrative Decisions. 509 United States and is not subject to the operation of the immigration laws even though after the desertion she be- comes the mistress of another ; 81 nor is the right of such a woman to enter the United States affected because she is at the time of attempted entry afflicted with trachoma . 82 In the course of a dissenting opinion rendered in the re- cent case of United States v. Sprung , 83 where the majority of the court refrained from passing on the exact point Judge Pritchard stated that “the immigration laws have not added to the persons incapable in their own right of naturalization.” In an earlier Federal decision , 84 where the right to enter was based on a marriage the existence of which was not denied, the court observed, obiter, that it was admitted by both the Government and the applicant that the right to enter depended on whether or not there was a lawful marriage — but that where the marriage, although lawful in the country of origin was incestuous here the relationship could not be admitted to be such as to entitle the applicant to enter as an American citizen. Some courts have, however, taken the view that the acqui- sition of citizenship by marriage must depend on whether the woman is admissible under the immigration laws. Indeed, it has been held that where the purpose of the marriage was to avoid deportation the celebration of the ceremony did not remove the alien wife from the opera- tion of the immigration law . 85 In this case the court was of the opinion that an alien woman belonging to a class of persons excluded by law from entry into the United States is incapable of naturalization, basing its decision on a prior Federal case to the same effect. In that case 86 the court said: “The immigration laws have since added to the class of persons who are incapable in their own 81/71 re Nicola, 184 Fed. 323. 82 Ibid. 83187 Fed. 914. 84United States v. Rodgers, 109 Fed. 886. 85 Ex parte Kaprielian, 188 Fed. 694. 86 /ti re Rustigian, 165 Fed. 980. 510 The Exclusion and Expulsion of Aliens. right of naturalization.” For the reasons stated in a prior chapter, 87 it is thought that, given the administra- tive finding of fact of an actual marriage between a citizen of the United States and a woman of foreign extraction, the jurisdiction of the Secretary of Commerce and Labor ceases ipso facto and a departmental decision of exclusion or expulsion is not binding on the courts. C. Finality of Departmental Findings as to Right to Enter. 1. Extent of and to What Applicable. In providing that the decisions of departmental officers should be final the Act of 1894 went no further than to re- quire that the administrative decisions should be final as to the existence of the particular fact or facts on which the right of the alien to enter is based. Thus the decision of a customs official refusing a Chinese alien admission into the United States, who seeks it on the ground that he is a Chinese merchant and as such is entitled to enter, is final only as to his right to enter as such merchant and is not final in deportation proceedings brought before a United States commissioner in order to determine the right of the prisoner to remain in this country when such right is based on the claim that he is a citizen thereof; nor is the decision of a departmental officer, final although it may be as to the right of a Chinese person to land, final as to his right to remain, and cannot, therefore, constitute a bar to his right to remain in deportation proceedings before a United States commissioner. 89 A final excluding decision rendered by an immigrant in- spector at the port is effective, as far as the right of the alien excluded thereby is concerned, not only at the port where such decision was rendered, but at any other port sfChapter on Status, ante , p. 385 et seq . 89United States v. Wong Chung, 92 Fed. 141. Judicial Review of Administrative Decisions. 511 where the alien may seek to enter. 90 Departmental deci- sions are not final, however, when rendered in deference to a departmental regulation providing for the exclusion of aliens where Congress has made no such provision, 91 but a decision based on a valid regulation is final, and the courts will not grant the writ when the ground urged in the petition is the exacting nature of the rules in the matter of the evidence to be required of aliens by which to establish their right to enter or remain in the United States. 92 2. Favorable Decisions Not Final. The act provides that only excluding decisions not re- versed on appeal are final; therefore, the favorable deci- sions of executive officers are by necessary implication not final, and cannot constitute res judicata in a technical sense; 93 and the fact that an alien has been arrested once under the Act of February 20, 1907, on the charge of hav- ing committed abroad a crime involving moral turpitude and has been discharged by the Secretary of Commerce and Labor because he was not identified as the person named in the certificate of conviction will not authorize 9 °Ex parte Lung Foot, 174 Fed. 70. 91 In re Kornmehl, 87 Fed. 314. 92lfl, re Moy Quong Shing, 125 Fed. 641. 93Pearson v. Williams, 202 U. S. 281, 50 Law Ed. 1029; Li Sing v. United States, 180 U. S. 486, 45 Law Ed. 634; Pearson v. Williams, 136 Fed. 734; Mar Bing Guey v. United States, 97 Fed. 576; In re Li Foon, 80 Fed. 881; and see Yamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721; United States v. Lim Jew, 192 Fed. 644. The facts in this case showed that the defendant, a Chinese person, left the United States for China in 1905 and was allowed to re-enter as a native born citizen in 1908 on a cer- tificate describing him as such. He was arrested in 1909 and found by the commissioner to be a native of China unlawfully in this country. In 1888 a United States Circuit Court rendered a decision to the effect that he was a resident of this country prior to 1880 and released him on habeas corpus proceedings. Held, the judgment not conclusive as to his nativity nor was the administrative finding at the time of his second entry res adjudicata of his citizenship, on which he based his right to remain. Affirmed in Lim Jew v. United States, 196 Fed. 736. 512 The Exclusion and Expulsion of Aliens. his release under habeas corpus proceedings when again arrested on the same charge by the same authority. 94 3. Administrative Findings of Fact Only Are Final. The question as to whether administrative officers are proceeding according to law is a judicial question and is at all times open to inquiry by the courts on habeas corpus , 95 And, though the final determination of a depart- mental official with power to determine the question may not be reviewed, the courts will inquire into whether the law grants such right of final determination ; 96 or whether, on a given state of facts the right to deport at all lies with executive officers. Thus, where the Secretary of Com- merce and Labor ordered an alien to be deported on the ground of having imported a foreign woman for an im- moral purpose, and the court construed section 3 of the Act of March 26, 1910, to provide that such deportation can be legally accomplished only after actual conviction of the offense, the court ordered his discharge in habeas corpus on a showing that there had been no conviction. 97 It has also been held — and very generally — that the final determination of what statute may be applicable to a par- ticular case coming before the Secretary of Commerce and Labor, or whether indeed, immigration laws apply at all, cannot rest with the executive department. 98 There- fore, when it is said that the courts have the right to de- termine who is an alien under the Act of March 3, 1901, 99 or that when the question as to the jurisdiction of de- sfFar parte Stancampiano, 161 Fed. 164. 96Lavin v. Lefevre, 125 Fed. 693; In re Top Chin, 2 U. S. D. Ct. Hawaii 153 ; In re Pang Kun, ibid. 192. seRodgers v. United States, 157 Fed. 381. 97Lewis y. Frick, 189 Fed. 146, reversed by the Circuit Court of Appeals for the Sixth Circuit, 195 Fed. 693. ssDavies v. Manolis, 179 Fed. 818; Botis v. Davies, 173 Fed. 996; In re Lea, 126 Fed. 234; and see United States v. Taylor, 207 U. S. 120, 52 Law Ed. 130; Gonzales v. Williams, 192 U. S. 1, 48 Law Ed. 317. 99 in re Di Simone 108 Fed. 942, reversed upon confession of error. Judicial Review of Administrative Decisions. 513 partmental officers to decide as to the right of aliens to enter the United arises under the immigration laws the courts can inquire as to whether or not the officers had jurisdiction over the person affected by the decision, this should mean — not that the courts can pass on the correct- ness of the finding of fact whereby the officer reaches the conclusion that the alien is an immigrant, — but merely that they are empowered to decide, on the given state of facts, whether or not the law applies to the applicant. 4. 'Necessity for a Fair Hearing. On the principles enunciated in the case of Yamataya v. Fisher (often referred to as the Japanese immigrant case 100 ) no person can be deprived of his liberty and de- tained for deportation in the absence of having been af- forded an opportunity to present the facts upon which the right to enter is based to the officer whose duty it is to pass on these facts, 1 and this principle applies with double force where the decision rendered holds that the master of a vessel is liable for bringing an alien into a United States port who escaped from the vessel, and after deserting became insane, and where the master was found guilty of an infraction of the immigration act of March 3, 1903, without being given an opportunity of pleading his case before the administrative authorities. 2 A fair hearing is absolutely essential to the right of executive officers to deport. But if such a hearing is granted to aliens subject to the operation of the exclusion and immi- gration statutes, and as a result thereof they have been excluded from admission into or expelled from this coun- try without any abuse of authority, and in the absence of arbitrary action, recourse to the courts is absolutely de- nied. 3 iooi89 U. S. 86, 47 Law Ed. 721. iHopkins v. Fachant, 130 Fed. 839. 2 Waterhouse & Co. v. United States, 159 Fed. 876. sUnited States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040; Yamataya v. 514 The Exclusion and Expulsion of Aliens. (A.) What Constitutes a Fair Hearing. (1.) Opportunity to be heard. The hearing must be appropriate to the nature of the case upon which the executive officers are to act, and the alien must be given all opportunity to be heard upon the question involving his right to be and remain in the United States ; 4 but ignorance of the English language on the part of the alien does not necessarily make a hearing a “pretended” one and gives no ground for relief in habeas corpus . 6 In the case of Chin Yow v. United States, 6 the petitioner was a Chinese person refused admission by the executive authorities. He sought relief in habeas corpus. The pe- tition contained the usual allegations of citizenship, re- straint and denial of entry by the authorities, and in addi- tion thereto the further allegation that he was prevented from obtaining the testimony of certain witnesses duly designated by name, and that, had he been permitted he could have proved his citizenship in the United States through such witnesses — the import of these allegations being that the petitioner was arbitrarily denied the hear- ing which the statute meant he should have. The Supreme Court held that the foundation of jurisdiction of the courts in habeas corpus in such cases is the absence of a fair hearing, and of an opportunity to produce evidence; but that mere allegations to this effect do not open the case on the merits, and the fact that the department re- fuses to accept certain sworn statements as true is not of itself sufficient to give the courts jurisdiction. Said the court : “The statutes purport to exclude aliens Fisher, 189 U. S. 86, 47 Law Ed. 721; Edsell v. Mark, 179 Fed, 292; Ex parte Chin Hen Lock, 174 Fed. 282; Ex parte Lung Foot, 174 Fed. 70; Ex parte Long LocTc, 173 Fed. 208; United States v. Wood, 168 Fed. 438; Ex parte Lee Kow, 161 Fed. 592; Ex parte Jong Jim Hong, 157 Fed. 447. *Yamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721. &Ibid. 6208 U. S. 8, 52 Law Ed. 369. Judicial Review of Administrative Decisions. 515 only. They create or recognize the right of citizens outside the jurisdiction to return to the United States. If one alleging himself to be a citizen is not allowed a chance to establish his right in the mode provided by those stat- utes, although that mode is intended to be exclusive the statutes cannot require him to be turned back without more. The decision of the department is final, but that is on the presupposition that the decision was after a hearing in good faith, however summary in form. As be- tween the substantive right of citizens to enter, and of persons alleging themselves to be citizens to have a chance to prove their allegation on the one side, and the conclu- siveness of the commissioner’s fiat on the other, when one or the other must give way, the latter must yield. In such a case something must be done, and it naturally falls to be done by the courts.” The court added that detention for deportation on a vessel constitutes actual imprisonment. “De facto he is locked up and carried out of the country against his will. The petitioner then is imprisoned for deportation without the process of law to which he is given a right. Habeas corpus is the usual remedy for unlawful imprisonment. But, on the other hand, as yet the petitioner has not established his right to enter the country. He is impris- oned only to prevent his entry, and an unconditional re- lease would make the entry complete without the requisite proof. The courts must deal with the matter somehow, and there seems to be no way so convenient as a trial of the merits before the judge.” 7 (2.) Executive Officers Must Consider All the Evidence Submitted. Executive officers have no power to designate what evi- 7Where an alien is held for deportation on the ground of being an alien stowaway which he denies, and who on the same ground is not granted any hearing whatsoever by a board of special inquiry, the court will grant his application for the issuance of a writ of habeas corpus. United States ea rel. d 'Amato v. Williams, 193 Fed. 228. 516 The Exclusion and Expulsion of Aliens. dence shall be considered by them, but are under the obli- gation of admitting and passing upon all that is offered by the applicant; 8 and failure to admit it or the commis- sion of acts that make it impossible for the applicant to present it, and to detain him for deportation without giv- ing him an opportunity to present it is arbitrarily to deny him the right of a hearing provided by law. 9 And it has been held, and very naturally, that such officers may con- sult records which have a connection with the alien’s case other than the precise papers which are sent up before the Secretary of Commerce and Labor on appeal, including in the latter records statements that have a bearing on the contents of the former. 10 (3.) Denial of the Eight of Appeal. When the statute gives the right of appeal to higher departmental authority the refusal to grant such appeal denies the alien the “full opportunity to be heard” to which he is entitled, and he may claim relief by habeas corpus proceedings. Thus where, on an adverse decision of the board of special inquiry the defendant was refused the right to have the papers in the case forwarded to the Secretary of the Treasury, this was held to constitute a denial of the right of appeal and not to be binding on the courts; 11 similarly the right of appeal is denied where there is no hearing on the merits on the appeal to the Sec- retary; 12 and likewise where some of the evidence pre- sented to the inspector including facts tending to prove sUnited States v. Sing Tuck, 194 U. S. 161, 48 Law Ed. 917. 9 Chin Yow v. United States, 208 U. S. 8, 52 Law Ed. 369; In re Chop Tin, 2 U. S. D. Ct. Hawaii 153. 10 In re Jim Yuen, 188 Fed. 350; Tang Tun v. Edsell, 223 U. S. 673, 56 Law Ed. . 1 x ln re Monaco, 86 Fed. 117 ; and seee Eodgers v. United States, 152 Fed. 346, and United States v. Nakashima, 160 Fed. 842. 12 In re Tang Tun, 161 Fed. 618; but on appeal held to constitute a hear- ing on the merits; see Tang Tun v. Edsell, supra. Judicial Review of Administrative Decisions. 517 the American citizenship of the petitioner is not included in the record sent up on appeal from the inspector to the Secretary of Commerce and Labor. 13 (4.) Obligation of Departmental Officers to Pass on All Questions Before Them. Executive officers must actually pass on the question before them; when they fail to do so and deportation is ordered before the examination is closed, and before the department’s final decision is had on the appeal, the pro- ceedings are devoid of final effect and the courts will be justified in intervening on behalf of the petitioner in habeas corpus. 1 * Moreover, the precise claim on which the right to enter is based must be made the subject of a de- partmental finding, and the failure to do so cannot be supplemented by an excluding decision based on other grounds. Thus where the claim is that the Chinese alien seeking admission is a merchant and he is ordered de- ported by the immigration authorities without passing on his right to enter as a merchant, the decision is not final, 15 nor is it, under similar conditions when the claim is that of American citizenship in the alien ; 16 and the fact that the alien claiming the right to admission as a citizen of this country is suffering with trachoma, a dangerous, contagious disease, does not render him subject to ex- clusion without recourse to the courts on the finding of the board of special inquiry that he is thus afflicted, al- though the act provides that the decision of the board is final in such cases and no appeal lies to the Secretary of Commerce and Labor. 17 If a person is a citizen he is, as such, whether or not suffering from any disease, beyond the 13 In re Can Pon, 168 Fed. 479. re Di Simone, 108 Fed. 942, reversed on confession of error; United States v. Jin Fung, 100 Fed. 389. isEx parte Ow Guen, 148 Fed. 926. i6United States v. Rodgers, 144 Fed. 711. i7United States v. Nakashima, 160 Fed. 842. 518 The Exclusion and Expulsion of Aliens. jurisdiction of the department to exclude, and a decision in which the claim of citizenship is passed over or ignored overlooks the preliminary question of whether executive officers have jurisdiction to pass on the applicant’s case. A hearing cannot be said to be either unfair or unlawful merely because in a given case the excluding decision has been rendered by the Assistant Secretary of Commerce and Labor instead of the Secretary in person; 5 * * * * * * * * * * * * 18 but it has been held, however, that an excluding decision rendered by a board of special inquiry composed of members one of whom was the inspector who referred the case to the board as provided by section 24 of the existing law, being in doubt as to the eligibility of the alien to land, cannot be binding on the courts, inasmuch as the hearing before the board thus composed could not constitute the “fair hearing” which the law requires. 19 5. The Departmental Finding Must Constitute a Bona Fide “Decision” That the facts as found by the executive officers cannot be appealed to or examined by the courts has been too often authoritatively asserted to warrant more than pass- ing mention. Still, in providing that the executive find- ing is final it cannot be denied that Congress assumes that an actual decision shall have been rendered, that such decision shall be the result of a fair hearing, and that the executive officer shall not act arbitrarily or abuse the powers conferred upon him. The result reached by the officer must partake of the nature of a decision, and the term itself necessarily implies the consideration of the facts presented pro and contra, in deciding which of the two groups represents the actual conditions. This seems to have been the view taken by the court in the case of is In re Jem Yuen, 188 Fed. 350; and see In re Way Tai, 96 Fed. 484; Tang Tun v. Edsell, 223 U. S. 673, 56 Law Ed. . isUnited States v. Redfern, 180 Fed. 500. Judicial Review of Administrative Decisions. 519 United States v. Wong Chung, 20 which presented that of a Chinese alien seeking admission to the United States who offered as evidence of his right to enter a “section 6” certificate complying in all respects with the law. The deputy collector refused to allow him to enter on the sole ground of a mere rumor reported to him by a person who had obtained it from a third party on hearsay only that the applicant “was going to a laundry.” The court held that the alleged “decision” was not such as was contem- plated by the statutes and that it was binding neither on the United States commissioner nor on the courts before whom the applicant was subsequently brought on appeal on the charge of being unlawfully in the United States. This decision has the support of later cases which hold that the courts have jurisdiction in habeas corpus when it appears that the evidence taken in deportation proceed- ings is absolutely uncontradicted and establishes as a mat- ter of law that the case is not within the statute ; 21 or when there is no evidence whatsoever to support the excluding decision. 22 Thus where an alien has been excluded from admission by the board of special inquiry on the finding that he was likely to become a public charge, and the facts showed that he had a recognized profession and property valued at several thousand dollars, some of which con- sisted of diamonds and jewelry given an appraised value of f 640, and in addition thereto had offers of employment in this country from reputable residents it was held that there was no evidence which could justify such a finding. 23 The courts, however, are slow to reach the conclusion that the facts presented to administrative officers are not 2092 Fed. 141. 21 Ex parte Petterson, 166 Fed. 536 (obiter). 22 Ex parte Saraceno, 182 Fed. 955; United States v. Williams, 175 Fed. 274. 23United States v. Williams, 189 Fed. 915; nor was there held to con- stitute any evidence in law to the effect that an alien woman was likely t) become a public charge, where, after being induced by a false offer of marriage to accompany a foreigner to this country it was shown that she 520 The Exclusion and Expulsion of Aliens. such as to afford any evidence to support the administra- tive finding and thereby deprive the ultimate finding of all validity on the ground that it did not constitute a “decision.” Indeed, in a recent case , 24 where the right of the petitioner to remain was alleged to consist in Amer- ican citizenship acquired by her marriage to a citizen of this country and supported by an unimpeached marriage certificate, the court refused to grant her relief in habeas corpus in spite of the circumstance that the certificate, together with other facts, pointed strongly to the existence of the marital relationship ; all of which had been submit- ted to the examining officer. There was, however, a strong dissent expressing the view that the circumstances were such as to preclude the existence of a fair hearing, par- ticularly where as in this case, the examining officer had stated that even if he had been convinced that the certifi- cate was not colorable he would have passed unfavorably on the petitioner’s case. And relief has been refused even where the marriage was shown to have actually existed and the fact was not even contradicted by the government . 25 The effect of marriage in its application to the status of the parties under the immigration acts has already been discussed . 26 The view of the majority of the court in the Sprung case — in holding that the marriage certificate might in connection with all remaining circumstances be disregarded without rendering the executive finding sub- ject to being upset on the charge of unfairness — certainly seems open to criticism. Granting that it is within the power of executive officers to determine whether the par- ties coming before them and presenting what is the equiva- forsook him and was successful in a breach of promise suit later brought against him, that she was 26 years old, followed the occupation of nursing, had secured a substantial judgment against the defendant, had funds and friends here, and that there was no indication whatever that she was likely to become a public charge. United States v. Martin, 193 Fed. 795. 24United States v. Sprung, 187 Fed. 903. 25 Ex parte Kaprielian, 188 Fed. 694. 26Chapter on Status, ante, p. 403 et seq. Judicial Review of Administrative Decisions. 521 lent of at least prima facie proof of the existence of the facts on which their right to enter or remain in the United States is based are actually the parties to whom the docu- ments — whether certificates of marriage, naturalization, or certificates issued under the Chinese exclusion laws — were originally issued, it is equally true that whrle such a document may be overcome by proper evidence its legal effects should not be destroyed in the absence of positive and competent evidence . 27 It may be that in such cases the executive officer, for reasons which appeal to him, is not satisfied that the documents are genuine, or that the par- ties presenting them are those described therein, or that the status which those documents purport to confer exists. But it will not do for him to make even genuine suspicion the sole basis of an unfavorable decision — and if he does the courts should not shrink from the responsi- bility of passing on the facts. It seems unreasonable, to say the least, to give less credit to an instrument of such solemn and authoritative import as a marriage certificate than to a certificate of residence issued under the exclusion acts. And in this connection it may be said that it has been held recently that the courts will intervene where a Chinese person has received a certified copy of the judg- ment of a United States Commissioner that he is an Amer- ican citizen where, on his return from a trip abroad, un- dertaken with the permission of the Department of Com- merce and Labor, the immigration officers on his return refused to give such certificate full force and effect, merely because there was evidence of erasure on the document, but no proof that it had been made by the applicant; and that to exclude him as the result of slight discrep- ancies easily explained was, under the circumstances, to deny him a fair hearing, since “the refusal to permit him 27Liu Hop Fong v. United States, 209 U. S. 453, 52 Law Ed. 888; Lew Quen Wo v. United States, 184 Fed. 685; In re Tom Hon, 149 Fed. 842; In re See Ho How, 101 Fed. 115. 522 The Exclusion and Expulsion of Aliens. to return had no tangible basis on which to rest and was without authority of law.” 28 The fact already adverted to 29 that departmental officers must examine and pass upon all the evidence before them must not be taken to mean that because they are under the obligation of examining all the testimony introduced at a hearing they are not, within the limits stated, at lib- erty to give no credence to any part thereof which may ap- pear to them to be entitled to no weight. Their duty is done and their word is final, except insofar as the alien may take advantage of an administrative appeal, once they give the alleged facts presented their fair and full con- 28United States v. Chin Len, 187 Fed. 544; but see In re Sue Yen Hoon, 2 U. S. D. Ct. Hawaii 606, where the court held that the departmental officer was not bound to admit a Chinese applicant for admission who pre- sented are apparently valid and duly issued certificate of his birth in the islands. It was here contended that the inspector did not accord these certificates their proper legal effect, but the court said that since the peti- tion showed that hearing was had and did not claim that the inspector re- fused to hear any evidence the petitioner had to offer, or that all the evi- dence was not sent up on appeal, the court could not review the finding that the petitioner was not, in fact, born in Hawaii. The court apparently took the view that in the absence of a law which stated that such certificates should constitute prima facie evidence of birth in Hawaii which could not be overcome except by positive testimony to the contrary, they would be given no more force than any other proper allegation of the applicant’s birth in the Hawaiian Islands, oral or otherwise, which the inspector might believe or not, as he chose. Even in the absence of any such special pro- vision, it certainly seems that such certificates, constituting as they do written evidence of the existence of the fact, made at the time of its occur- rence, should be given in deportation cases, the same significance which any other apparently genuine official document is given under the common law. It hardly seems equitable to hold that, as this same court did in a previous case, it was to be presumed that all births were recorded in the Hawaiian Islands because the law penalized the failure to so record them, and to base the refusal to admit an alien who claimed birth in Hawaii on the fact that there was no record of such birth and, on the other hand, to hold that such records, when presented as proof of such birth, do not give rise to a presumption of such birth which requires positive and direct testimony for its rebuttal. It seems clear that failure to accord such a document its proper value might result in an unfair hearing, and that the question might be well considered by the court on this ground. 2 9Jnte, p. 517. Judicial Review of Administrative Decisions. 523 sideration. Thus the fact that the board’s decision is based on the personal appearance and the characteristics of the alien as revealed at his examination will not throw the executive findings open to judicial review merely be- cause the board in its decision placed no weight whatso- ever on the testimony given by the applicant or his friends, and because his personal characteristics, actions and ap- pearance alone appeared to them to justify an excluding decision. 30 The decisions above cited in which the courts have re- viewed the administrative findings of fact on the ground that there was no evidence to support them cannot, of course, be considered as holding that the courts can ques- the mere correctness or incorrectness of the departmental officer’s finding of facts, for it is well settled that they have no such power; 31 and the fact that a court may be of the opinion that there was sufficient evidence to war- rant a finding the other way will not justify it in assuming jurisdiction. 32 The jurisdiction of the courts to review the evidence has thus been stated: “This court can only examine the evi- dence to see: (1) Was a full and fair and unbiased hear- ing had? (2) Was the decision based on such a state of facts that a question of fact was presented for the decision of the inspector? or (3) was the evidence conclusive as a matter of law so that the decision, affirmed by the Depart- ment of Commerce and Labor was arbitrary and unwar- ranted?” 33 The right of the courts to interfere in such cases can only (and it would seem correctly) be supported on the principle that an executive order of deportation, not based on any facts which tend to show that the person to be de- 30 United States v. Williams, 190 Fed. 897. siCliin Yow y. United States, 208 U. S. 8, 52 Law Ed. 369. 32CMn Yow v. United States, supra; United States v. Williams, supra ; Ex parte Lee Kow, 161 Fed. 592. 33 Ex parte Long Lock, 173 Fed. 208. 524 The Exclusion and Expulsion of Aliens. ported is excludable under the exclusion or immigration acts is, aside from wanting the elements of a decision, nec- essarily arbitrary, 34 and, if arbitrary, cannot be said to be be the result of a fair hearing. 35 6. Abuse of Authority. It is not every abuse of authority on the part of the immigration officials that will result in giving the alien who has been subjected thereto a right to turn to the courts for relief. Officers may in the course of the pro- ceedings commit acts of themselves improper, and in no wise authorized either by statutory provisions or depart- mental regulations — but, provided that the result of these abuses is not to deprive the alien of a fair hearing, it is hard to see how their commission can affect the right of the Government to deport, or enlarge the scope of the relief which the alien may claim as a matter of right be- yqnd that provided by the purely administrative procedure which the law has prescribed to meet his case. The mere fact that an alien has been roughly or unfairly treated pending detention for examination does not necessarily mean that he is deprived of a fair hearing; at the same time, if as the direct result of such treatment he were prevented from testifying or from testifying as fully as he otherwise might have done; or if by threats or intimida- tion he were prevented from availing himself of any right necessarily incident to a fair hearing, or which by law 3 35But see contra Glavis v. Williams, 190 Fed. 686, where the court disclaimed the power to examine the question of whether there was any evidence at all on which the Secretary of Commerce and Labor could base his decision of expulsion. This view is, however, decidedly against the weight of authority. At an early date in the history of the exclusion and immigration acts it was held that the finality of the collector’s decision depended upon whether the evidence on which an excluding decision was based constituted competent evidence of the facts as found by the col- lector and on which he attempted to justify his decision. In re Cummings, 32 Fed. 75. Judicial Review of Administrative Decisions. 525 or regulation he is entitled to exercise, the hearing itself would be tainted ; and if tainted undoubtedly he would be entitled to seek and obtain his relief in the courts. In the case of Lee Gon Yung v. United States, 36 a Chinese person seeking admission for purposes, it was al- leged, of transit, was prohibited from entering by the im- migration authorities and held for deportation to China. He applied for a writ of habeas corpus ; which was denied, whereupon the petitioner appealed. The petition stated that upon his arrival he was examined by a customs in- spector, his baggage and private papers opened, and his person searched. The Supreme Court upheld the jurisdic- tion of the collector to detain the petitioner for deporta- tion under the circumstances, stating that if the petitioner had just cause of complaint of the conduct of the collector’s subordinates the remedy was not to be found in his dis- charge on habeas corpus; in other words, that the fact that the customs inspector might have violated the constitu- tional provision against unlawful searches and seizures did not go to the jurisdiction of the collector to deport an alien found by him not to be entitled to enter this coun- try. The Supreme Court had, moreover, held in the case of Fong Yue Ting, 37 that the constitutional guarantee against unlawful searches and seizures had no application to the immigration acts. In the case of Yamataya v. Fisher, 38 the contention was made that the alien, who had been arrested for deporta- tion within one year of her entry by authority of the Act of October 19, 1888, had been given only a pretended hear- ing by the departmental officers touching her right to re- main, it being alleged that the petitioner had no know- ledge of the English language and that as to her there was no fair hearing. But the Supreme Court held that these 36 185 U. S. 306, 46 Law Ed. 921; Fok Young Yo v. United States, 185 U. S. 296, 46 Law Ed. 917. 37Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. 38189 U. S. 86, 47 Law Ed. 721. 52G The Exclusion and Expulsion of Aliens. were considerations which should have been presented to the departmental officers primarily in charge of the case, or on appeal to the Secretary of the Treasury, and that failure to do so would not justify the intervention of the courts. “It is not to be presumed,” said the court, “that either would have refused a second or fuller investigation, if a proper application and showing for one had been made by the appellant.” * * * “And as no appeal was taken to the Secretary from the decision of the immigration inspector that decision was final and conclusive. If the ap- pellant’s want of knowledge of the English language put her at some disadvantage in the investigation conducted by that officer, that was her misfortune and constitutes no reason under the acts of Congress or under any rule of law for the intervention of the court by habeas corpus” The court obviously entertained some doubt as to the sincerity of the claim of lack of knowledge of the English language ; particularly since the petitioner had not apparently suf- ficient faith in its efficacy to encourage her to present it as the basis of the administrative appeal provided by law. The decision stands unequivocally for the principle that a hearing is not pretended merely because the alien has no knowledge of the English tongue. To maintain the con- trary would be tantamount to declaring that no alien seeking the benefit of our institutions could be deported under the law except after an examination conducted in the language of his country of origin — a contention mani- festly absurd. But it would be equally unreasonable to suppose that the court meant by its language to convey the idea that a hearing would be fair which was limited to proceedings of the nature of which neither the alien nor his representative had any understanding, or where, in the absence of such understanding on the part of the alien himself, or in the absence of representation depart- mental officers should take advantage of the alien’s un- fortunate situation to render an excluding decision. Such a contingency is, however, most unlikely to occur ; and it Judicial Review of Administrative Decisions. 527 must furthermore be borne in mind that the examining officers are not, as a matter of law, bound to go further in their investigation than the appearance, behavior and characteristics of the alien himself — at least in the case of aliens seeking admission. In the case of foreigners arrested within the country for deportation the provision that they may have the assistance of counsel would nec- essarily involve the consideration of other proofs by the examining officer. It is thought that the principles enunciated in the Yamataya case 39 and later cases of the United States Su- preme Court 40 have not been always altogether correctly interpreted by the lower Federal courts. “This court,” says Mr. Justice Harlan in the Yamataya case, “has never held, nor must we now be understood as holding that executive officers, when executing the provisions of a statute involving the liberty of persons may disregard the fundamental principles that inhere in due process of law. It is not competent for any executive offi- cer arbitrarily to cause an alien to be de- ported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized.” In the case of Glavas v. Williams 41 it appears from the somewhat meager statement of facts reported that an alien was arrested by the immigration authorities on the charge of being unlawfully here, and held for deportation. It seems that one of the grounds on which his unlawful presence was predicated was that he had admitted the commission of a crime involving moral turpitude. The affidavit presented by the petitioner after the return of the 39Yamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721. 4 °Gonzales v. Williams, 192 U. S. 1, 48 Fed. 317 ; Chin Yow v. United States, 208 U. S. 8, 52 Law Ed. 369. 41 190 Fed. 686. 528 The Exclusion and Expulsion of Aliens. writ stated that the admission was obtained through ply- ing him with liquor, and by means of threats. But this, said the court, was wholly a question of fact for the executive authorities with whose decision the court would have no right to interfere, had any such evidence been presented. The charge that the admission had been obtained in this way appeared for the first time in the court proceedings. It seems plain that, granting that the admission was ob- tained by unjust or unlawful methods the obtaining of such admission constituted no part of the hearing. The pro- ceeding before the officer authorized to determine whether the alien had the right to remain afforded the opportunity provided by law whereby the prisoner might attempt to show, if he so chose, that the statement was unlawfully obtained, and might or might not substantiate the charge. This, by his silence, he refused to do, under the impression that he could reserve this defense for a later occasion. This was no more or less than an attempt to obtain a ju- dicial determination of a question of fact which the law reserves for the consideration of departmental authori- ties ; and, as was decided in the Ju Toy case, 42 was destined to failure. But the court proceeds : 43 “Nor do I under- stand that even an abuse of authority is reviewable pro- vided that a hearing be given, and certain elementary pro- cedural rights are observed in form.” The court inter- preted the Yamataya case “as meaning that abuse of their powers by the authorities is a matter only of executive discipline provided that the requisite forms are not vio- lated It becomes unnecessary to determine whether the admission of having committed a crime in- volving moral turpitude mentioned in section 2 of the act must take place at the time of the hearing or may occur before. It also renders unnecessary a determination whether the admission actually made upon the hearing 42United States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040. 43p. 687. Judicial Review of Administrative Decisions. 529 by the relator was an admission of the commission of such a crime.” It is difficult to concede the correctness of this reason- ing. As before stated if the charge made at the hearing was that the alien had made a statement which, if consti- tuting an admission, would render him subject to deporta- tion it was one for him to refute at the time of the hearing, and was thus a question of fact for the departmental offi- cers’ exclusive determination. If it was found as a matter of fact that the statement was the result of threats or abuse, whether or not it constituted an admission as a question of law was also within their jurisdiction to de- cide; but their conclusion of law would be open to judicial review. But, if the alleged admission was made at the hearing itself, as the result of threats or intimidation or other unlawful or unfair acts on the part of the presiding officer or his subordinates how could it be contended in the face of numerous decisions by the highest Federal tri- bunal that the courts would be powerless to correct such abuses of authority? The fact is that abuse of authority at the hearing which takes the form of producing evidence for the Government as the result of threats or intimida- tion directed toward the witness cannot be co-existent with the observance of certain elementary procedural rights either in form or in substance. To concede the ex- istence of the one is to deny the observance of the other. It cannot, it is thought, be successfully denied that where an alien has been accorded the opportunity to call wit- nesses, to be represented by counsel, to be informed of the charge against him, to have a hearing before a designated tribunal and a chance to present his side, that he has had a fair hearing; but it seems equally true that to extract statements from him at that hearing by means of threats, and to make the statements thus elicited the basis of the warrant authorizing his deportation, is in effect to deprive him of a full chance to present his side of the case, since such an admission must, if given any weight, necessarily 530 The Exclusion and Expulsion of Aliens. destroy the effect of any other evidence which he might produce. It is in vain that we may search the Yamataya decision 44 to support the judicial view enunciated in this case to the effect that if the admission claimed was made at the time of the hearing and obtained by the adoption of the meth- ods charged, the court was powerless to interfere. There the Supreme Court passed on the point as to whether or not the hearing was “pretended,” and found that it was not; here the judge denied his power to pass on the ques- tion of an abuse of authority even if alleged to have taken place at the hearing. But for the reasons already stated, it is thought that the court was right in refusing to grant the writ requested, since it appears that to do so would have been to pass on a fact which apparently arose before the hearing was had, was not a feature of the proceedings and was, therefore, within the exclusive jurisdiction of de- partmental officers. 7. Questions of Law and Fact. The principle that, by virtue of the Act of August 18, 1894, the courts cannot pass on questions of fact, but are nevertheless empowered to pass upon questions of law, is easily stated. But it is not always easy to distinguish a question of fact from a question of law (A.) Whether an Alien an Immigrant a Question of Fact. The question arising under the immigration acts of whether or not an alien seeking admission was an immi- grant was treated as a mixed question of law and fact on which the court had a right to pass. 45 To a certain extent, however, these holdings may be deemed to be misleading. The status of an alien seeking admission to the United 44 Yamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721. 45 In re Di Simone, 108 Fed. 942 ; United States v. Burke, 99 Fed. 895. Judicial Review of Administrative Decisions. 531 States — and by status is meant no more or less than the result of the inspector’s finding of fact — was, even prior to the Act of 1894, a condition the existence of which did not come within the province of judicial investigation by re-examination of the facts on which the inspector’s find- ing was based. But the remedy of habeas corpus was open to any alien deprived of his liberty under color of the au- thority of the United States, 46 and the court could deter- mine whether or not the petitioner was deprived of any right to which he was entitled by any law or treaty. It would seem that in the present state of the law, the courts, when passing on the rights of aliens to enter the country, under the immigration acts, do not decide a mixed question of law and fact; that they are restricted to the executive officer’s finding of fact, and on those facts decide the legal effect of the alien’s status, thereby passing on the pure question of law as to whether or not the acts in ques- tion apply to the alien. It is true that several of the Fed- eral decisions rendered on this point appear to hold that the decision of the Secretary of the Treasury was neces- sarily binding on the courts, although as a matter of fact and law the aliens excluded were not immigrants. 47 But it would seem that if, as was decided, they were not immi- grants as a matter of law, they were not as a matter of law subject to the operation of an act held to apply only to immigrants. But whether or not the court could justly assume jurisdiction would depend on whether the facts as found by the Secretary showed that they were not com- ing to the United States to resume a formerly acquired and unrelinquished domicile. Reduced to its lowest terms the present situation of the law with regard to questions of law and fact seems to be 46Ekiu v. United States, 142 U. S. 651, 35 Law Ed. 1146; Lau Ow Bew v. United States, 144 U. S. 47, 36 Law Ed. 340; Wan Shing v. United States, 140 U. S. 424, 35 Law Ed. 503; United States v. Jung Ah Lung, 124 U. S. 621, 31 Law Ed. 591; Chew Heong v. United States, 112 U. S. 536, 28 Law Ed. 770. nin re Ota, 96 Fed. 487 ; In re Giovanna, 93 Fed. 659. 532 The Exclusion and Expulsion of Aliens. this : Where the alien seeks admission to the United States the administrative finding as to what class of aliens he belongs, based on the classification prescribed by the Chinese-exclusion and Immigration laws is a pure finding of fact and is absolute and final on the point. Until this stage is reached the courts are powerless to disturb such a finding provided that the hearing has been fair. Thus, if the Secretary of Commerce and Labor finds that the ap- plicant for admission is an immigrant — that he is coming to the United States for the first time for the purpose of making this country his home — the case can proceed no further, for there is no question of law for the courts to consider. But suppose the Departmental findings reveal facts which show that the applicant, although an alien, is not an immigrant, but he is excluded on the assumption that the Immigration laws apply to him. The administrative rea- soning which inspires his exclusion involves the determi- nation of no fact concerning the applicant and leads to no more than a simple conclusion of law reached by the ap- propriate executive officer. Were the courts to pass both on whether the applicant is an immigrant and on whether, not finding him to be such, the immigrant laws apply to him as an alien, then indeed would they, in passing on the whole, be considering two separate questions, the first a point of fact, the second a point of law. But in passing on the question of whether the immigration laws apply to an alien who is frankly admitted by the administrative offi- cers not to be an immigrant the only point which the courts have to consider, or which they have the right to consider, is the question of whether the immigration acts apply — a pure question of law. It is conceded that when the administrative conclusion is that the alien is an immigrant this decision, based on the facts submitted to executive officers is final, as far as the courts are concerned. But in the event that the depart- ment finds that the alien is domiciled in this country and Judicial Beview of Administrative Decisions. 533 is returning to resume such domicile and yet concludes on the whole that he is an immigrant and therefore subject to exclusion, would, the case end there? Obviously not. In order to constitute a finding of fact the conclusion reached must be the logical result of the facts revealed by the in- quiry. The personal status of an individual seeking ad- mission under the immigration acts is a pure question of fact to be determined by marshalling the various facts ^vhich are proven to exist during the course of the exami- nation and which are found to be true by the officer in charge. The departmental finding consists of the sum of these facts — not of the words of description by which the officer designates them as a whole. To apply the term “im- migrant” to an alien who is found not to be coming to this country to make it his home, or is found to be domiciled here, would be as gross an error as to find that a foreigner is of Caucasian blood and state as the result of such find- ing that he is of Chinese descent. In case an alien were excluded from admission under such conditions the courts would have jurisdiction to review the departmental ac- tion on either of two grounds: first, that the so-called “finding ” — not being based on the facts as found by the officer constitutes no decision ; or, second, the court, ignor- ing the wrong words of description as utterly immaterial would pass on the separate question of law as to whether, on the facts as found, the alien was subject to the opera- tion of the immigration laws. (B.) Whether Chinese belong to Exempt Classes a Ques- tion of Fact. Under the Chinese-exclusion laws departmental officers had always had the right prior to the passage of the Act of 1894 to finally pass on the point as to whether an alien seeking admission into this country belonged to a particu- lar class of Chinese. But before the passage of that act the courts had always exercised the power of considering whether or not the applicant was entitled to enter under 534 The Exclusion and Expulsion of Aliens. any law or treaty. The effect of the Act of 1894 was to leave the administrative finding as to class where it was before — beyond the reach of judicial review — but to per- mit no further appeal to the courts merely because the contention was made that a right secured to the alien by treaty was involved. But the question of law was still necessarily left open as to whether or not a law or treaty applies to aliens found by departmental officers to belong to a particular class; for if a foreigner is not seeking ad- mission by virtue of a law or treaty he certainly cannot be excluded as attempting to enter under either. Thus the Supreme Court has on various occasions exercised the right of passing on whether the immigration act applied to certain classes of persons not citizens of the United States. 48 The question of whether or not a Chinese person seeking admission as one of the exempt classes is seeking to enter under any law or treaty cannot arise, since no Chinese person can enter this country except by virtue of the laws or treaties covering the subject ; consequently the only questions on which departmental officers have to pass in such cases are necessarily included in the consideration of facts whereby it is to be determined whether or not the applicant belongs to one of the exempt classes. (C.) Citizenship a Question of Fact, or a Mixed Question of Law and Fact. Where a person seeks admission into this country on the ground that he is an American citizen a different situ- ation is presented. In the case of persons of Chinese de- scent where the existence of the political status claimed must depend on one fact alone — that of birth in the United States — it has been decided in a multitude of cases that the question of American citizenship is one of fact the final determination of which is vested in executive offi- 48Gonzales v. Williams, 192 U. S. 1, 48 Law Ed. 317 ; Taylor v. United States, 207 U. S. 120, 52 Law Ed. 130. Judicial Review of Administrative Decisions. 535 cers. 49 But where such determination involves a conclu- sion of law it presents a mixed question of law and fact, and the departmental finding is generally held to be sub- ject to judicial review. 50 (D.) Other Questions of Fact. Where a Chinese merchant domiciled in the United States petitions the Court in habeas corpus on behalf of an alleged minor son detained for deportation by the Im- migration authorities the question of whether the relation- ship exists is one of fact, and subject to final determi- nation by the department ; 51 and when the alleged wife and minor children of a Chinese merchant seeking admission into the United States under the laws and treaties appli- cable to Chinese even though presenting the certificate re- quired by the Act of 1882, are refused admission the courts will not interfere in habeas corpus, though it appears that the Collector may have “disregarded” the contents of the 49 Ju Toy v. United States, 198 U. S. 253, 49 Law Ed. 1040; United States v. Sing Tuck, 194 U. S. 161, 48 Law Ed. 917 ; In re Tang Tun, 168 Fed. 488; Ex parte Lung Wing Wun, 161 Fed. 211; Ex parte Jong Jim Hong, 157 Fed. 447; Wong Sang v. United States, 144 Fed. 968; In re Moy Quong Shing, 125 Fed. 641; In re Sun Yen Hoon, 3 U. S. D. Ct. Hawaii, 606; Ngo Ti v. Shuster, 7 Phil. Rep. 355. soSee De Briuler v. Gallo, 184 Fed. 566. For decisions on the acquisition of American citizenship by marriage by women of foreign extraction to American citizens or by the naturalization of the husband see Chapter on Status, ante, p. 383. In the case of Lorenzo v. McCoy, 15 Phil. Rep. 559 the facts as found by the collector of customs of Manila were that the applicant for admission was apparently born in the Philippines in 1874, of a Chinese father and a Filipina. The birth was out of wedlock. In *89 he left for China where he remained until 1908 when he returned to the Philippines. The collector reached the conclusion that if he had ever been a citizen of the Philippines he had renounced his citizenship by his absence. This conclusion was treated by the Court as deciding no more than a mere question of fact, and it refused to grant the applicant judicial relief. It would seem that the collector’s decision may well have involved a question of law. The Chief Justice dissented. BiWong Sang v. United States, 144 Fed. 968; ex parte Wong Sang, 143 Fed. 147; in re Lee Yee Sing, 85 Fed. 635; as is the question whether the applicant is a minor. Go To Sim v. McCoy, 16 Phil. Reports 497. 536 The Exclusion and Expulsion of Aliens. certificate ; 52 nor when the collector finds that the certifi- cate presented by the alleged wife and child do not meet the requirements of the statute . 63 The “disregarding” of the certificate in the case above cited cannot be deemed equivalent to a refusal to consider it. As stated else- where 54 certificates of identification constitute but prima facia evidence of the proof of the facts therein alleged, and the act which authorized their use provided specifically that their contents might be controverted by the Govern- ment. Moreover the Collector found as a fact that the woman was a plural wife of the resident merchant al- though legally married to him in China, and was not satis- fied that the child was his legitimate offspring. Aside from this feature, however, the administrative officer ex- cluded the applicants for admission under laws and treat- ies of the United States, which constituted the only au- thority under which persons of their nationality could enter at all; and for this additional reason his decision was not subject to judicial review. Departmental decisions have been held final with regard to the following facts : The identity of a Chinese alien pre- senting as his warrant for admission a certificate pur- porting to have been issued to him by a United States Commissioner ; 55 as to whether an alien is an anarchist 56 or is afflicted with a loathsome disease 57 or is a public charge ; 58 and the writ of habeas corpus will not be granted on the application of a Chinese laborer detained for de- portation by the Collector of Customs on a finding that 52Lee Lung v. Patterson, 186 U. S. 168, 46 Law Ed. 1108; and see in re Yim Quoek Leung, 1 U. S. D. Ct. Hawaii, 166. 53 in re Lee Lung, 102 Fed. 132. 54 Post, p. 577. 55 Ex parte Long Lock, 173 F.ed. 208. 56United States v. Williams, 194 U. S. 279, 48 Law Ed. 979. 57Pearson v. Williams, 202 U. S. 281, 50 Law Ed. 1029. ssGonzales v. Williams, 177 Fed. 689; United States v. Rogers, 65 Fed. 787 ; United States v. International Marine Company et al., 194 Fed. 408. Judicial Review of Administrative Decisions. 537 the alien, although asserting that his purpose in attempt- ing to enter the United States is to exercise the right of transit accorded members of that class by Article III of the Treaty with China of 1894, is not seeking to enter for that purpose. 59 The finding that the person seeking ad- mission is an alien is final although he possesses a pass- port purporting to have been issued to him by the Secre- tary of State of the United States. 60 On failure to perfect the appeal allowed by law from an executive finding of fact to the proper administrative offi- cer — as to aliens seeking admission to the country the Sec- retary of Commerce and Labor — the courts will refuse to take jurisdiction on habeas corpus 61 although the failure to take the appeal will be no bar to the relief sought where the excluding decision of a board of inquiry is made final by statute, and the facts show that the board has failed to pass on some of the grounds on which the right to enter is based, and where the act is held not to apply to the petitioners. 62 D. Finality iof Departmental Decisions as to the Right to Remain. The act of March 3, 1903, has no application to aliens 59Fok Young Yo, 185 U. S. 296, 46 Law Ed. 917; Lee Gon Yung v. United States, 185 U. S. 306, 46 Law Ed. 922; in re Lee Gon Yung, 111 Fed. 998. eoEdsell v. Mark, 179 Fed. 292. eiYamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721; United States v. Sing Tuck, 194 U. S. 161, 48 Law Ed. 917 ; ex parte Chow Chok, 161 Fed. 627 ; ex parte Wong Sang, 143 Fed. 147 ; Wong Sang v. United States, 144 Fed. 968. N. B. Where the court refers to the failure of the alien to ap- peal in the case of Yamataya v. Fisher the word appeal is used in a gen- eral rather than in a technical sense. No ‘‘appeal” lies in deportation pro- ceedings from proceedings held subsequently to the arrest of an alien alleged to be unlawfully in the country. He is arrested by order of a warrant issued by the Secretary of Commerce and Labor whose deputy presides over the proceedings. The Supreme Court points out that the Secretary had the power to grant a second hearing should he choose to do so. 62 United States v. Nakashima, 160 Fed. 842. 538 The Exclusion and Expulsion of Aliens. lawfully in the United States, 63 and the same is true re- garding the Act of February 20, 1907. The Act of 1894 making administrative decisions final is in terms limited to the decisions of departmental officers not reversed on appeal to the Secretary of the Treasury (now the Secre- tary of Commerce and Labor), which operate to exclude aliens from admission into this country. Under the pres- ent act the boards of special inquiry are the administra- tive bodies vested with the power to pass upon the ques- tion of admissibility regarding aliens under that law, and the decision of such a board is by section 10 specifi- cally made final in the cases set out therein; otherwise final only if not reversed by the Secretary on appeal. 64 Under the Chinese Exclusion acts jurisdiction to decide whether aliens once admitted to the United States are en- titled to remain is vested in United States Commissioners, an appeal on the facts to the District Court of the United States being provided by law. Section 21 of the Immigration act provides that if the Secretary of Commerce and Labor is satisfied that an alien has been found in the United States in violation of the act, or that the alien is subject to deportation under the provisions thereof or under any law of the United States, he shall cause the alien within three years after entry to be deported ; but the act contains no specific pro- vision that such a finding shall be final. In a decision rendered under the Act of March 3, 1891, providing for the return of aliens who had been found to have entered this country unlawfully it was held that the finding of the Secretary of the Treasury to that effect was final and not subject to judicial review; 65 and a later de- cision rendered when the same statute was in force was to the effect that the Secretary’s finding, not being in terms made final, as it was in the case of aliens excluded from 63Frank Waterhouse & Co. v. United States, 159 Fed. 876. 6*Sec. 25. esUnited States v. Arteago et al. ; 68 Fed. 883. Judicial Review of Administrative Decisions. 539 admission to the United States, this fact did not affect its validity and that it must be held to stand until reversed by higher authority. 66 This was in effect to hold that par- amount authority existed, and that to that extent at least the Secretary’s decision was not final ; and it was so held, under the same act, regarding the right of a Chinese per- son not a laborer, to remain in the United States. 67 In passing upon the authority of the Secretary of Commerce and Labor finally to decide the right of aliens to remain in this country under the Act of March 3, 1903, the court held that where an alien woman was arrested under the act the question as to whether she entered prior to the act, and was thus not subject to its provisions, was one for the court to consider on habeas corpus proceedings, and which, if decided in the affirmative would authorize the discharge of the petitioner. 68 Under the existing law. Several decisions rendered on the point under the present act hold that the decision of the Secretary that an alien is unlawfully here and is not entitled to remain is not final, but is subject to judicial review. 69 But in some of the above cases at least the decision was based on the fact that as a matter of law the parties detained for de- portation were not included within the operation of the act, rather than turning on the bare question of the finality of the Secretary’s holding regarding the right of aliens already in the United States to remain. 70 The 66United States v. Yamasaka, 100 Fed. 404. 67United States v. Chin Fee, 94 Fed. 828. 68 in re Lea, 126 Fed. 234. 69Redfern v. Halpert, 186 Fed. 150; Davies v. Manolis, 179 Fed. 818; Botis v. Davies, 173 Fed. 996; Frank Waterhouse & Co. v. United States, 159 Fed. 876; and see Moy Suey v. United States, 147 Fed. 697; Ex parte Saraceno, 182 Fed. 955. ToDavies v. Manolis, 179 Fed. 818; Botis v. Davies, 173 Fed. 996. 540 The Exclusion and Expulsion of Aliens. finality of the departmental decision in this regard has, however, occasionally been squarely upheld. 71 The writ will be granted where it appears that during the proceedings terminating with the issuance of the Sec- retary’s warrant of deportation of aliens charged with conducting a house of prostitution they were persuaded through intimidation on the part of the governmental offi- cers not to employ counsel ; 72 but not where the only ground alleged in the writ is that the board of special inquiry had decided (when they applied for admission) that the petitioners, subsequently detained for deportation within the three year period, were lawfully entitled to enter the United States; 73 nor where an alien prostitute based her claim to remain on prior residence of three years under the act of February 20, 1907, and she is proceeded against under the Act of March 26, 1910, for acts committed after that time, although she includes in the petition her prior discharge under proceedings instituted under the Act of 1907, 74 as neither the discharge nor the favorable finding by the board of special inquiry constitute res adjudicata. Nor will the writ be granted on the ground that the peti- tioner, shown to have entered the United States surrepti- tiously, is in the United States in violation only of an im- migration rule, and not in violation of the Immigration Law which does not in terms prohibit surreptitious entry, 75 nor where the petition shows that the petitioner, a woman of Chinese descent, formerly admitted on a show- ing that she was an American citizen, is later arrested for deportation, where copies of the alleged unlawful process are not annexed to or set out in the petition. 76 TiUnited States v. Sprung, 187 Fed. 903; and see Yamataya v. Fisher, 189 U. S. 86, 47 Law Ed. 721; in re Umeno, 3 U. S. D. Ct. Hawaii, 481; Prentis v. Di Giacomo, 192 Fed. 467; Prentis v. Stathakos, 192 Fed. 469. 72United States v. Williams, 185 Fed. 598. 7sPearson v. Williams, 136 Fed. 734. 74Sire v. Berkshire, 185 Fed. 967. 75 Ex parte Hamaguchi, 161 Fed. 185. 76Haw Moy v. North, 183 Fed. 89. Judicial Review of Administrative Decisions. 541 E. Showing Necessary to Entitle Applicant to a Judicial Hearing. In the case of United States v. Ju Toy 77 and in the more recent case of Chin Yow v. United States 78 the Supreme Court passed on the nature of the allegations which the petition should contain in order to give the courts the right to grant even a preliminary hearing in habeas corpus . The Ju Toy case came up on a certificate from the United States Circuit Court of Appeals for the ninth Circuit pre- senting the questions: (1) whether habeas corpus should be granted in behalf of a person of Chinese descent whose right to enter the United States has been denied by the im- migration officers, and affirmed on appeal by the Secretary of Commerce and Labor, and citizenship is the only ground alleged as making the detention unlawful, and (2) whether under such circumstances the writ should be dis- missed or a further hearing be granted, and (3) whether the decision of the Secretary of Commerce and Labor is conclusive, in the absence of abuse of authority. The first question was answered in the negative, the third in the affirmative, and the second by stating that the writ should be dismissed. 79 The Court, citing the Sing Tuck case said : “ ‘A peti- tion for habeas corpus ought not to be entertained unless the court is satisfied that the petitioner can make out at least a prima facie case.’ This petition should have been denied on this ground irrespective of what more we have to say because it alleged nothing except citizenship. It disclosed neither abuse of authority nor the existence of evidence not laid before the Secretary. It did not even set forth that evidence or allege its effect.” While it may truly be said, on the one hand, that the act 77198 U. S. 253, 49 Law Ed. 1040. 78208 U. S. 8, 52 Law Ed. 369. 79Reporter , s Statement. 542 The Exclusion and Expulsion of Aliens. of 1894 applies only to aliens, it is equally true that the act applies to all aliens irrespective of the ground on which such aliens may allege the right to enter; and if it be true that to refuse admission to a person alleging that he is an American citizen may in fact constitute banish- ment in the particular case, it is equally true that in grant- ing a judicial hearing to any person claiming citizenship in the United States, such person may as a matter of fact be an alien, and the provision of the statute would thereby be flatly disregarded. It is of course undeniable that if the person seeking admission is a citizen of this country, the officer is without jurisdiction to exclude him from ad- mission, or even to detain him for examination with knowledge that he is in fact such citizen. But it is equally undeniable that this absence of jurisdiction cannot be held to exist as a proven fact, until the fact of citizenship is determined. If the contrary is assumed — that until a per- son seeking admission is proven an alien the immigration authorities have no jurisdiction at all — then the very fact of granting the applicant the hearing required by law would be dependent for its validity on the eventual find- ing that he was an alien. Had the law provided for a pre- liminary hearing by some special tribunal for the estab- lishment of the jurisdictional fact, the case would be other- wise; no such provision existing, however, the fact of alienage is necessarily left to the determination of the de- partmental officers whose decision is by law made final as to the right of the alien to enter under any law or treaty. Whether or not a given law or treaty is applicable to an alien or any class of aliens is a question for the Courts, not the administrative officers, to decide. 80 But it may be said if the courts can decide whether an act or treaty is applicable to a given alien or any special class of aliens, with all the more reason have they jurisdiction to point out that no act or treaty can possibly apply to an Ameri- soGonzales v. Williams, 192 U. S. 1, 48 Law Ed. 317. Judicial Review of Administrative Decisions. 543 can citizen, and to release him on habeas corpus on that ground. No court or departmental officer has ever had the temerity to deny the truth of this proposition, and cer- tainly the Ju Toy 81 case cannot be cited as an authority against it. The facts before the Supreme Court in that case were simply that a person had presented himself to the immigration authorities seeking admission into this country on the alleged ground of American citizenship; that in the exercise of the powers conferred on those officers by Congress they found that this person was an alien and a Chinese alien to boot, and consequently de- tained him for deportation on the ground that he did not belong to a class entitled to enter the United States ; and that the applicant, in spite of the administrative finding of fact sought judicial relief in habeas corpus stating in his petition as the sole ground for such relief that he was a citizen of this country, thereby requesting the Court in effect to re-examine the facts on which the adverse de- cision was based, and to thereby exercise a power which had been taken away from the courts by the Act of 1894. The Supreme Court, being bound to follow the provisions of that act, dismissed the writ and found that the peti- tioner was detained under due process. It may still be urged that to grant the writ and review the facts in this case and similar cases would be to violate the Act of 1894 is to beg the question, since that act was confined in its application to aliens. But the argument overlooks the suggestion that no person can be heard to say that the provisions of that or any other act do not apply^ to him unless he proves, in the method provided by law, that he is not within its operation. The only forum provided by the laws of the United States in which this fact is sus- ceptible of proof in the case of persons seeking admission into this country is the administrative forum of the Depart- ment of Commerce and Labor. It can be shown in no other siUnited States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040. 544 The Exclusion and Expulsion of Aliens. way. It is true that the jurisdiction of officers of that de- partment depends on whether or not the person is seeking admission under any law or treaty, that whether or not a given individual is in fact seeking admission under such law or treaty is a judicial question, and that, if a citizen seeks admission it is not by virtue of any law or treaty. But the question of the applicant’s personal status is one of fact which must necessarily be de- cided before the supplemental question of law as to whether persons similarly situated seek admission under any law or treaty can come up. The Gonzales case 82 did no more than to decide that the executive officer’s conclu- sion of law that a Porto Rican .citizen was an alien, for the purpose of the Immigration Act, was incorrect — it did not question the correctness of his finding of fact that the applicant was a Porto Rican. In the case of Chin Yow vs. United States 83 the petitioner was excluded from admission by the commissioner of im- migration, and sought relief in habeas corpus on the ground that he was a citizen of the United States, and on the further ground that he was denied a fair hearing. So far as the allegation of citizenship goes the case was within the Ju Toy 84 case, and, like that case would, on that ground alone, have been subject to dismissal for want of jurisdic- tion. With regard to the jurisdiction of the district court based on the allegation of lack of a fair hearing the Su- preme Court said: “If the petitioner was not denied a fair opportunity to produce the evidence that he desired, or a fair though summary hearing, the case can proceed no farther. These facts are the foundation of the jurisdic- tion of the district court, if it has any jurisdiction at all. It must not be supposed that the mere allegation of the facts opens the merits of the case, whether those facts are proved or not.” 82Gonzales v. Williams, 192 U. S. 1, 48 Law Ed. 317. 83208 U. S. 8, 52 Law Ed. 369. 84United States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040. Judicial Review of Administrative Decisions. 545 This language must not, however, be construed to mean that the allegation that the petitioner was refused a fair hearing is the only ground on which the courts can as- sume jurisdiction. The finality of departmental decisions is destroyed by the fact of lack of jurisdiction, as well as by the fact that they are rendered under conditions or in a mode which the statute does not authorize. The Ju Toy Case 85 held, and the Chin Yow 86 decision shows, that the mere allegation of American citizenship does not go to the jurisdiction of departmental officers. When therefore, as in the latter case, beside the allegation of an unfair hearing the only other allegation made is citizenship in the applicant, there being no jurisdictional question to consider, the fact of the unfair hearing is, as the court states, “the foundation of the jurisdiction of the court.” This constitutes sufficient ground for judicial re- view, whether the departmental officers have acted with jurisdiction or without it. Or both grounds together may constitute the ground of the Court’s jurisdiction, if, in ad- dition to refusing the applicant a fair hearing, the depart- mental officers attempt, as was done in the Gonzales case , 87 to exclude a person found by them to be an alien, but who was, nevertheless, not amenable to the Immigration Laws. In the light of the decisions cited in this section, and particularly of the principles enunciated in the Gonzales, Ju Toy, and Chin Yow cases, the law touching the finality of departmental decisions excluding aliens attempting to enter the United States under any law or treaty may be thus summed up : The grounds on which the courts may assume jurisdic- tion in habeas corpus proceedings are two : The fact that as a matter of law the alien is not attempting to enter the United States under any municipal law or treaty, and the fact of an unfair hearing, a denial of a hearing, or any 85United States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040. 86CMn Yow v. United States, 208 U. S. 8, 52 Law Ed. 369. 87Gonzales v. Williams, 192 U. S. 1, 48 Law Ed. 317. 546 The Exclusion and Expulsion of Aliens. other arbitrary abuse of power on the part of the immi- gration officers which results in the denial of a fair hear- ing. In assuming jurisdiction the courts must accept as absolute and binding such officers’ findings of fact, except when the alleged “findings” are not, as a matter of law, supported by any evidence whatsoever — the only ground for the court’s assuming jurisdiction even in such a case being the necessarily arbitrary nature of the so-called de- cision rendered under such circumstances. In order to give the courts jurisdiction it is sufficient if the petition alleges the fact of the absence of a fair hear- ing irrespective of the existence or absence of jurisdiction on the part of the executive officer. That allegation stand- ing alone is sufficient to justify judicial review to the ex- tent of determining whether a fair hearing was accorded; if found to have been denied then the Court can pass on the merits. Where the claim is that the petitioner does not come within the operation of the act under color of which he is held for deportation it must be based strictly on the facts as found by the executive officer; and if on those facts as found the Court finds that the petitioner is not within the operation of the statute under color of which he is detained, his release will be ordered . 88 But the claim that the statutes have no application to a given case will not be supported by the mere allegation that the pe- titioner is a citizen of the United States, when the depart- mental officer has found otherwise, and cannot be viewed in the light of a jurisdictional question . 89 ssGonzales v. Williams, 192 U. S. 1, 48 Fed. 317; In re Nakashima, 160 Fed. 842; In re Buchsbaum, 141 Fed. 221; Davies v. Manolis, 179 Fed. 818. 89United States v. Ju Toy, 198 U. S. 253, 49 Law Ed. 1040. Evidence. 547 CHAPTER V. EVIDENCE. I. In general. II. The burden of proof. A. Under the Immigration Act. 1. Evidence not prescribed by statute. (A.) In the case of aliens seeking to enter the United States. (B.) In the case of aliens arrested within the country. 2. Evidence prescribed by statute. (A.) Assisted aliens. (B.) Japanese and Korean laborers. B. Under the Chinese Exclusion Acts. 1. Evidence not prescribed by statute. (A.) Of citizenship of uersons of Chinese descent. (1.) Sufficiency of evidence to establish fact of birth in the United States. ^(B.) Marital or filial relationship. (C.) Of prior mercantile status during registration period. 2. Evidence prescribed by statute. (A.) In general. (B.) Certificates as evidence of the right of holder to enter or remain. (1.) “Section 6” Certificate. (2.) Laborer’s “return” Certificate. (3.) Certificates of Registration or Residence. (C.) Evidence available in absence of Certificate. 3. Other classed of evidence in Deportation Proceedings. 4. Sufficiency of evidence in determining. (A.) Laborer Status. (B.) Mercantile Status. I. In General. In taking up the subject of evidence in connection with the study of the exclusion and immigration laws, a brief survey of the acts and of the leading cases in which some question of evidence has been submitted to judicial determination suffices to show that, although the cases in which such questions are discussed are fairly numerous, considering the total number of adjudications based on the acts, they present little or nothing that is new or of any 548 The Exclusion and Expulsion of Aliens. particular interest in the law or rules of evidence. This is due mainly to the fact that the thing to be proven in deportation proceedings is always the same; that is, the right of the defendant to remain in or to enter the United States. The facts necessary to establish this right are few and simple and largely prescribed by statute, and the kind of evidence submitted to support them must neces- sarily be of the same general nature. Thus, as has been shown, the Chinese laborer arrested under the Act of 1892, as amended, for failure to register, had only to establish the fact that he failed to do so by accident, by sickness, or by some other unavoidable cause, and that he was a resi- dent in the United States prior to the registration period. Although accidents are infinite in variety the mode of proving them is generally of the simplest, necessarily con- sisting in deportation cases, as in ordinary proceedings, in the physical evidences thereof apparent in the person of the defendant, corroborated by the statements of a suffi- cient number of credible witnesses of the former, and by the assertions of the defendant coupled with the usual cor- roboration and proof, to the satisfaction of the presiding officer. The same may be said with regard to establishing the fact of sickness or unavoidable cause. The corrobora- tive facts naturally differ as to time and locality; but the general nature of the evidence must necessarily remain the same. The extent or kind of the proof to be offered in such cases as the above is not the determinative factor in the final result, for that factor is prescribed by law to be the proof of the facts alleged “to the satisfaction of the judge or commissioner.” 1 It has, however, been held that where in deportation proceedings before a District Court on ap- peal the appellant has asserted American citizenship as the basis of his right to remain the right of the Govern- ment to deport or banish cannot be exercised until such iYee N’Goy v. United States, 116 Fed. 333; United States v. Leung Sam, 114 Fed. 702. Evidence. 549 right has been judicially determined in accordance with the usual or ordinary rules of evidence 2 even if not “to the satisfaction of the Commissioner.” The proceedings not being criminal in nature, the element of reasonable doubt does not call for consideration in determining whether the judgment shall be a discharge of the defendant, or an order for his deportation. The judge or commissioner must be satisfied — and that is all; and it is at least safe to say that if a reasonable doubt exists in the mind of the presid- ing officer he will not be satisfied with the proof before him. But, as has already been shown , 3 satisfaction, as the term is used in the act, has a special, although a broad meaning — special in so far as it precludes the amount of proof which would be required to satisfy a mind domi- nated by arbitrary, obstinate, or unreasoning modes of thought — broad in so far as it requires the proof offered to be such as thoroughly to convince a reasonable and un- biased man of the truth of the representations made on the part of the defendant. Proof of former residence must, in like manner, be made to the satisfaction of the court or commissioner; but in this case the source of at least a portion of such proof must be one credible witness other than Chinese. Whether or not such witness is to be be- lieved is likewise to be determined to the satisfaction of the presiding official. Under these conditions, and bearing in mind that a ju- dicial review of any given case originating before a com- missioner constitutes on appeal a hearing of the facts de novo, and further that the facts in any given case must necessarily differ, in degree at least if not so much in kind, from those in any other given case, those who rely on ju- dicial precedent to establish their contention, whatever it may be, have no light task. A search for authoritative precedent among cases determined virtually solely on the facts constitutes no more or less than a search for a prior 2 Moy Suey v. United States, 147 Fed. 697. sSupra. 550 The Exclusion and Expulsion of Aliens. decision based on a similar or at least closely analogous state of facts. Under these conditions the difficulty, if not the impossibility, of completely covering the subject of evidence in connection with the Chinese exclusion acts without actually setting forth the separate state of facts peculiar to each case considered by the courts on appeal becomes at once apparent. Reference is made advisedly in this connection to the Chinese exclusion laws apart from the immigration acts, for the reason that even before the Act of August 18, 1894, went into effect, the courts showed no inclination, even on habeas corpus, to review the decis- ions of executive officers charged with the execution of the immigration acts when the questions involved were solely questions of fact; and since the passage of the said act it is settled law that administrative decisions will not be re- viewed by the courts, on habeas corpus or otherwise, ex- cept as to errors of law made by Ihe executive officials, or unless the hearing given the applicant for admission is shown to have been unfair and the decision therefore an ar- bitrary one. While, therefore, it might be of some practical value to insert in this work a complete digest of all the facts in such cases, together with the judgments rendered therein, it is thought that whatever slight assistance such a compilation might afford in the way of precedent would be offset by the fact that the value of such precedents, small as it always was, is diminishing rather than in- creasing. This is due to the fact that the vast majority of cases of applicants for admission arising under the exclu- sion and immigration acts are tried administratively, and are not subject to judicial review, and to the further fact that by sections 20 and 21 of the present immigration Act of February 20, 1907, the Secretary of Commerce and La- bor is empowered, when satisfied that an alien has been found in the United States in violation of that act, or that he is subject to deportation under the provisions thereof, or under any law of the United States, to cause such alien Evidence. 551 within three years after landing or entry to be deported — the process being strictly administrative in its nature. It is true that the Act of February 20, 1907, provides that the act shall not be construed to repeal, alter, or amend ex- isting laws relating to the admission or exclusion of Chi- nese persons 4 and that it has been judicially held that the immigration act does not apply to Chinese laborers unlaw- fully in the United States. 5 The opposite view has, how- ever, been taken by other Federal Courts. 6 Be this as it may, while it is not thought that the power given to the Secretary of Commerce and Labor in Section 21, if in fact it applies to all Chinese persons unlawfully in the United States, would operate to exclude judges or commissipners from the exercise of the powers conferred on them by the Chinese exclusion acts, it would at least tend to reduce in great part the number of those cases over which they at present have jurisdiction; and to this extent diminish the number of cases in which questions of evidence can come up for judicial review. Procedure under the immigration acts differs some- what from that prescribed by the Chinese exclusion acts in that the former is in all stages purely administrative, whereas the latter presents features of a strictly adminis- trative character only when the question involved is that of the right of the applicant to enter the United States. 7 Under the immigration acts, the right of the alien to re- main is determined by proceedings held under the direc- tion of immigration officers on the authority of a warrant of arrest signed by the Secretary or Assistant Secretary *Sec. 43. 5 Wong You v. United States, 181 Fed. 313. 6 Looe Shee v. North, 170 Fed. 566; Ex parte Li Dick, 176 Fed. 998; Ex parte Wong You, 176 Fed. 933. The Supreme Court of the United States has definitely settled the question by reversing the decision of the Circuit Court of Appeals for the Second Circuit (181 Fed. 313, supra n.) in the recent case of United States v. Wong You et al., 223 U. S. 67, 56 Law Ed. ?See Chapter on “Deportation Procedure” post, p. 614. 552 The Exclusion and Expulsion of Aliens. of Commerce and Labor as provided by section 21 of the act. Under the Chinese exclusion acts on the other hand the proceedings are quasi- judicial in nature, and are con- ducted in the first instance by a United States commis- sioner, and in case of appeal the facts are reviewed de novo by the United States judge for the district in which the original hearing was had. Deportation proceedings under either branch of the law being sui generis, the rules of evidence common to ordinary civil and criminal procedure have no application; there are, in other words, no rules setting forth the manner in which the prisoner’s case is to be presented. But in cer- tain classes of cases to be considered later in connection with the subject of evidence in its application to deporta- tion proceedings under the Chinese exclusion acts, both purely administrative or quasi- judicial, Congress has des- ignated certain specified facts tvhich must be shown to exist in order to give the right to return or remain, as well as the persons by whom these facts must be sworn to. Where the statutes do not prescribe the nature of the proof to be presented, the alleged right may be sustained by any and all facts at the alien’s command — and the presiding officer is in no way limited by law as to the nature or amount of the evidence which he may consider. The evidence to be presented in deportation proceedings may then be roughly classified as that which is and that which is not prescribed by statute. II. The Burden of Proof. A. Under the Immigration Act. Under the Chinese exclusion acts the burden of proving either the right to enter or remain is imposed on the Chinese person by whom the right is claimed. Merchants may enter or remain only by presenting the proofs re- quired whether in the shape of certificates or by showing Evidence. 553 the existence of certain facts in the manner prescribed by law. Laborers are entitled to return on the showing pre- scribed by the statute, and on further proof, if deemed nec- essary by the immigration officials that the applicant is the person named in the certificate he presents; or to re- main only by presenting the evidence of their right to do so whenever the law, as by the Acts of 1892 or 1893, re- quires such proof. And the burden of proving his right to remain is on any Chinese person — excepting those specially exempted from the provisions of the act or by treaty — who is in the United States. In short, the laws regarding the exclusion or admission of Chinese persons absolutely ex- cludes newcomers of the laboring class, and imposes on those who belong to the exempt classes the burden of prov- ing their exemption ; while under the immigration acts, all aliens being entitled to admission except such as belong to certain classes membership in which subjects the alien to expulsion, the burden is, generally speaking, on the Gov- ernment to prove that a given alien is not entitled to land, or if already landed, to remain. Since by general intendment, the immigration laws im- pose the burden of proving the fact of the alien’s ineligi- bility thereunder on the Government, the obligation to prove the contrary can only rest on the foreigner seeking admission, where the law clearly provides that such is the intent. This would naturally appear in the form of a pro- vision made applicable to a specially designated class or classes, stating directly that the burden of proving their exemption is on them, and prescribing special rules of evidence whereby the right to land must be shown to exist. 1. Evidence Not Prescribed by Statute. (A.) Aliens Seeking to Enter the United States. When the alien lands, say at Ellis Island docks, he forms one of a line of passengers which passes before the desk of the examining inspector to whom that particular 554 The Exclusion and Expulsion of Aliens. line is assigned. From two to five minutes are, as a rule, devoted to tlie “line” or “primary” examination of each alien — not to be known as a preliminary examination in the case of those “who may not appear to the examining immigrant inspector to be clearly and beyond a doubt en- titled to land.” The purpose of this brief examination is to enable the inspector to determine whether or not the particular applicant shall be detained for examination by the board of special inquiry provided by the act. Whether or not the alien shall be detained for this purpose depends wholly on the opinion of the inspector as to his eligibility, based either on the alien’s general personal appearance or cn the answers with which the former’s questions are re- ceived. Detention for further examination by the board is not to be considered a detention resulting from a deci- sion to the effect that the alien is within the excluded classes, for the inspector is not authorized by law to ren- der a decision ; but the duty to detain is imperatively im- posed upon him as the result of the existence of a doubt in his mind, no matter how vague, of the tight of the alien to land. Section 25 provides that the board of special inquiry has the authority to determine whether an alien who has been duly held shall be allowed to land or shall be de- ported; and all hearings held by its members shall be separate and apart from the public, but they shall keep a complete permanent record of their proceedings, and of all such testimony as shall be produced before them. There is no provision in the law that in case of doubt as to his eligibility the alien shall at the hearing before the board be under the obligation of dispelling such doubt in the minds of his examiners. The fact that sufficient doubt has existed in the mind of the examining inspector to detain him for examination does not imply the presence of such a doubt in the mincls of the members of the board. The law contemplates a full and fair hearing; and so fully has this principle been recognized by the courts that it Evidence. 555 has been held that an examining inspector who caused an alien to be held for examination may not, under the law, constitute a member of the board which is to decide on his right to enter . 8 The real object of the board’s examination would seem to be not to determine whether the alien has a right to enter — but whether it is the duty of its members to ex- clude him under the law. It is true that the act provides that the members shall have the authority to determine whether he shall be allowed to land — but the Supreme Court of the United States has held that the decision of the Board allowing an alien to enter is in no way deter- minative of that right or of his right to remain as against a subsequent decision of the Secretary of Commerce and Labor denying the right. The only grounds on which the board may arrive at an excluding decision is by finding as a matter of fact that the alien belongs to a class membership in which bars him from admission under the law. If the board fails to reach such a conclusion or to make such a finding the alien must be considered entitled to land — and herein lies the distinc- tion between the Chinese exclusion acts and the immigra- tion act regarding the burden of proof. The Chinese ex- clusion acts purport no more to exclude Chinese merchants from their operation than does the immigration act to exclude aliens who are free from the disabilities which operate to exclude. But by imposing on Chinese mer- chants the obligation of proving their exempt status by means of the certificate of identity the Government was relieved from the obligation of proving that a Chinese per- son presenting himself for admission was in fact a laborer. The immigration act does not impose the burden of prov- ing the fact of their admissibility on aliens of the exempt class, and, consequently, it devolves upon the Government to prove that the exemption claimed does not in fact exist. sUnited States v. Redfern, 180 Fed. 500. 556 The Exclusion and Expulsion of Aliens. But inasmuch as the act imposes no limitation on the methods to be used or the sources on which the board cf special inquiry may draw in order to determine whether or not the alien applicant is exenjpt as claimed, other than that he shall be given a full and fair hearing, any and all facts which may appear to the presiding officials to have any bearing on the issue may be properly drawn upon in order to enable them to. reach their conclusion. They must examine all the evidence which the applicant pre- sents ; 9 but the question of what weight they shall give to any evidential fact, whether consisting in the physical or mental attitude of the alien himself, his behavior, his statements or those of witnesses appearing in his behalf, is to be determined by them alone. In certain classes of cases, the exclusion of the alien is necessarily determined on no other principle of evidence than that of res ipsa loquitur . This occurs in all cases where the disability found to exist is tuberculosis or a loathsome or dangerous contagious disease, idiocy, imbe- cility, feeble-mindedness, epilepsy or insanity, or where the alien is found to be and is certified by the examining surgeon as being mentally or physically defective, such mental or physical defect being of such a nature as may affect the ability of the alien to earn a living. Although the subject himself may be said to constitute or provide the evidence on which the excluding decision is based the burden of proof still rests on the Government. To be sure, the proof is at hand in the presence and appearance of the alien, but the burden of discovering and recogniz- ing the evidences of the defect is necessarily assumed by those on whom the law imposes the duty of determining whether or not it exists. A situation somewhat analogous is presented by persons likely to become public charges, paupers or professional beggars. Persons likely to become public charges be- aUnited States v. Sing Tuck, 194 U. S. 161, 48 Law Ed. 917; Chin Yow y. United States, 208 U. S. 8, 52 Law Ed. 369. Evidence. 55T cause of some physical or mental defect would generally come within the class of those found to be suffering from some defect which is certified by the examining sur- geon as being such as to probably involve their mainte- nance by the state if allowed to enter. Whether an alien is a pauper, a professional beggar or likely to become a public charge may be in part, at least, inferred from per- sonal appearance aside from physical or mental defects, or from other evidence tending to show that he may well be considered a member of the objectionable classes. Since all relevant facts may be taken into consideration by the members of the board in reaching their conclusion, and since they are the sole judges of whether or not a given fact, even in the face of opposing testimony, is sufficient to warrant an excluding decision, it is plain that the per- sonal appearance and bearing of the applicant may be and often is, of itself, the sole and sufficient ground of his re- jection, irrespective of other and oral testimony to the contrary . 10 Courts Generally Without Power to Revieto the Evidence. In the case of United States ex rel. Barlin v. Rodgers , 11 it was claimed that there was no testimony or insufficient tes- timony to warrant the findings of the inspectors. The court after commenting on the fact that the record showed that testimony of witnesses summoned on behalf of the alien was heard said: “But more than all, the alien himself was present and subjected to personal examination by the inspectors The printed record of the answers made by the alien and witnesses does not fairly pre- sent the case The important factor of the impres- sion made upon the inspectors by the personal appearance of and the conversation had with the aliens is necessarily absent from the record. We can well conceive that such loUnited States ex rel. Tommaso Buccino and Salvatore Buccino, 190 Fed. 897. 1U91 Fed. 790. 558 The Exclusion and Expulsion of Aliens. an impression would have a most important bearing upon the determination reached by the inspectors in those cases in which the alien was debarred from entry, on the ground that he was likely to become a public charge or as having been certified by the examining surgeon as mentally or physically defective in such a way as to affect his ability to earn a living. We are not at liberty to set aside such determination, because on the record we think we might or would have reached a different conclusion. We have only to find that the inspectors acted within the scope of their authority and that the integrity of their proceedings is not impeached.” While it is true that the examining officers must con- sider all the testimony offered to rebut the unfavorable presumption raised by the personal appearance or other characteristics of the applicant this does not mean that, having once considered the evidence thus offered, they are not at liberty to conclude that it is lacking in sufficient probative value to affect their decision, or that it has no probative force at all. There is a vast difference between rejecting statements put forward to support an alleged state of facts, and disregarding them in the sense of reach- ing the conclusion that they have no weight when put forward as evidence in a given case. When the Courts Will Review the Evidence. Touching the subject of judicial review of evidence pre- sented in proceedings purely administrative, attention may be called at this stage to one exception to the rule that the evidence thus given is not reviewable by the courts. Grounds for this exception exist where it appears that the evidence given could lead to only one conclusion on the part of a fair-minded man / 2 or where the evidence bearing on the right of the alien to enter is so conclusive of that right as to make an adverse departmental ruling 12 Ex parte Petterson, 166 Fed. 536. Evidence. 559 arbitrary and unjust. 13 But the fact that the courts will exercise this power of review in such cases is not based on any general right to examine the evidence taken in pro- ceedings before departmental officers, but on the ground that the findings made do not constitute a decision as that word is used in the Act of August 18, 1894 ; in other words, that a decision is required by the statute, and that a mere arbitrary expression of opinion, not having in the facts presented to the officer expressing it any basis or justifica- tion whatever, is sufficient to show that the hearing itself was not conducted by the officer with a fair and unbiased mind. Such cases are necessarily rare, and the courts will be extremely slow to assume jurisdiction on this ground where the only evidence of unfairness is the con- flict between the finding and the facts presented at the hearing. (B.) Aliens Arrested Within the Country. In proceedings brought to deport aliens arrested within the country the procedure differs somewhat from that which characterizes hearings before boards of special inquiry, but the burden of proof is naturally upon the Government. The law provides merely that certain classes of aliens “shall upon the warrant of the Secre- tary of Commerce and Labor be taken into custody and de- ported’’ in case the latter “shall be satisfied that (he) has been found in the United States in violation of this act, or that he is subject to deportation, etc.” 14 But it is provided by Kule 22 that “officers shall make thorough in- vestigation of all cases when they are credibly informed or have reason to believe that a specified alien in the United States is subject to arrest and deportation on warrant; that the application for the warrant must state facts bringing the alien within a class subject to deportation after entry; that upon receipt of a warrant of arrest the Ex parte Jong Jun Hong, 157 Fed. 447. ^Sections 20 and 21 Act 1907. 560 The Exclusion and Expulsion of Aliens. alien shall be taken before the appropriate immigration officials and granted a hearing to enable him to show cause why he should not be deported ; and that during the course of the hearing the alien shall be allowed to inspect the warrant and all the evidence on which it was issued , to have counsel, and by him to make a copy of the minutes so far as it has proceeded, and to offer evidence to meet any evidence theretofore or thereafter presented by the Government. And at the close of the hearing, the full record is sent to the Bureau of Immigration in order that the Secretary of Commerce and Labor may decide whether the proceedings are such as to justify the issuance of a warrant of deportation. The burden of making out a prima facie case is thus clearly upon the Government. 2. Evidence Prescribed by Statute. (A.) Assisted Aliens. Any alien whose ticket or passage is paid for with the money of another, or who is assisted by others to come must, in order to prove his right to enter “affirmatively and satisfactorily show” that he does not belong to any of the excluded classes and that his ticket or passage was not paid for by any corporation, association, society, municipality or foreign government either directly or indi- rectly. In other words, the payment of an alien’s passage or ticket by another, or the fact that he is assisted by others to come, raises a presumption against his admissibility which he must rebut by proof of the facts prescribed by the act. (B.) Japanese and Korean Laborers, Section 1 of the Act provides that whenever the Presi- dent shall be satisfied that passports issued by any foreign government to its citizens to go to any country other than the United States or to its insular possessions or to the Evidence. 5bl Canal Zone are being used for the purpose of enabling hold- ers to come to this country to the detriment of labor conditions here, he may refuse to permit such citizens to enter this country from such other country or its out- lying possessions or territory subject to its sovereignty. On March 14, 1907, it was announced by presidential proclamation that the President was satisfied that pass- ports were being issued to citizens of Japan and Korea for that purpose, that Japanese and Korean laborers, skilled and unskilled, who had secured passports to go to Mexico, Canada, and Hawaii were to be refused admission to this country, and that the Secretary of Commerce and Labor was empowered to take the necessary steps to en- force the prohibition. Thereupon the Department adopted the following rule : That if a Japanese or Korean laborer applies for admission and presents no passport it shall be presumed (1) that he did not possess when he departed from Japan or Korea a passport enabling him to come to the United States, and (2) that he did possess at that time a passport limited to Mexico, Canada or Hawaii. It was further provided that “if the applicant presents a passport limited to Mexico, Canada or Hawaii but claims that he is not a laborer, skilled or unskilled, proof of such claim shall be required.” The rule providing the double pre- sumption was subjected to severe criticism and pronounced beyond the power of the Commissioner General of Immi- gration to provide in the case of United States v. Hemet. 15 The second provision imposes on the Japanese or Korean applicant the burden of proving that he is not a laborer, skilled or unskilled, within the meaning of the act. This is a much less drastic provision than that which obtains under the exclusion statutes, the distinction being that under this rule the alien is not restricted as to the manner in which he shall prove his exemption from the prohibition of the proclamation, whereas under the exclusion acts the 15156 Fed. 285. 562 The Exclusion and Expulsion of Aliens. exempt status at the time of entry can only be shown by at least prim a facie proof of its existence in the mode pre- scribed by law to the exclusion of all other modes of proof. B. Under the Chinese Exclusion Acts. The evidence on which Chinese persons can establish their right to enter or to remain in the United States has, almost from the beginning of legislation having for its object the exclusion from this country of subjects of the Chinese Empire, been prescribed, limited and regulated by statute. The certificates of identity prescribed by sec- tion 6 of the Act of 1882, commonly called “Section 6 Cer- tificates/’ were issued for the sole purpose of constituting evidence of the right of persons other than laborers to enter the United States; and the certificates prescribed by sections 4 and 5 of said act, commonly called “return cer- tificates,” were issued as evidence on which laborers leaving the United States might be permitted to re-enter. The latter, issued by the United States Government, con- stituted what appeared at the time of the passage of the act to be the best available method of identifying the la- borers on their prospective return ; and the former, issued by the Chinese government, constituted no more or less than the averment on the part of that government that the holders belonged to some one of the exempted classes. The ineffectiveness of this measure to put a stop to the continued influx of Chinese laborers gave rise to the amendatory Act of 1884, which provided that the “section 6 certificate” “shall be the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States ; but said certificate may be controverted, and the facts therein stated dis- proved by the United States authorities.” This act was followed by the Act of September 13, 1888, at the time of the passage of which a proposed treaty with China was under negotiation. The Chinese Evidence. 563 government failing to ratify the treaty, the Act of October 1, 1888, was passed, which specifically provided that no Chinese laborer should be allowed to return to the United States, whether or not provided with the return certificate issued under the Act of 1882, as amended by that of 1884. This act was, however, repealed by the treaty with China of December 8, 1894, 16 and succeeded by the Act of May 5, 1892, subsequently amended by that of November 3, 1893. 17 The Act of 1892 continued in force all laws pro- hibiting and regulating the coming into this country of Chinese persons. Among these acts were such sections of the Act of September 13, 1888, as were not dependent for their existence on the ratification of the treaty of 1894 which China failed to ratify. These sections — subse- quently re-enacted by the Acts of 1902 and 1904 — carried, among others, provisions permitting the return of Chinese laborers to the United States within the period of one year from departure therefrom on the production by them of a certificate of return issued by the proper Chinese inspector in the United States on proof that such la- borers had a lawful wife or child or parent in the United States or property therein of the value of $1,000.00 or debts of like amount due them and pending settlement — which certificate was to constitute the sole evidence of their right to return. The Act of 1892 was not limited to continuing in force laws prescribing the evidence by which laborers and per- sons other than laborers of Chinese nationality may prove their right to return to or enter the United States. Its main purpose was to provide for the registration of Chinese laborers in the United States; such registration to be completed within one year after the passage thereof. The time wherein registration might be completed was extended in section 6 of the amendatory Act of November 3, 1893, to six months after the passage of the act, and 1621 Op. Atty.-Gen., 1894. 17 See Appendix. 564 Tpie Exclusion and Expulsion of Aliens. provided further that no Chinese person heretofore con- victed in any court of the states or territories of the United States of a felony should be permitted to avail him- self of the opportunity offered to law-abiding Chinese laborers. In addition to prescribing the evidence by which a Chinese laborer was obliged by the above-cited section to establish his right to remain, the following provision, setting out the method by which Chinese persons return- ing to the United States must establish the mercantile status on which their right to enter was based, appears in section 2 of said amendatory act: “He shall establish by the testimony of two credible witnesses other than Chinese the fact that he conducted such business as here- inbefore defined for at least one year before his departure from the United States, and that during such year he was not engaged in the performance of any manual labor, except such as was necessary in the conduct of his busi- ness as such merchant, and in default of such proof shall be refused landing.” These provisions were at once strongly attacked on the ground that their effect was to place the burden of prov- ing the right to remain on Chinese who had not registered as required by the act and that they were further illegal in that they designated the only kind of evidence by which the right could be proven, in the absence of registration. But it was held that the obligation imposed by the act on Chinese persons to prove affirmatively their right to re- main in the United States was consistent with the prin- ciple that every legislature has the inherent power to pre- scribe the evidence which shall be received, as well as the effect thereof in its courts, and that the act was, there- fore constitutional. 18 This reasoning applies with equal force to section 2 of the Act of 1893, requiring that the mercantile status of returning Chinese shall be proven isLi Sing v. United States, 180 U. S. 486, 45 Law Ed. 634; Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. Evidence. 565 by two reputable witnesses other than Chinese. 19 The right of Congress to put the burden of proof on the alien in such cases is no longer open to controversy; 20 and that burden was not removed by the provisions of section 1 of the Act of April 29, 1902, which provide that all laws now in force prohibiting and regulating the coming of Chinese persons and persons of Chinese descent into the United States, and the residence of such persons therein, are re- enacted, extended and continued so far as the same are not inconsistent with treaty obligations. 21 The burden of proving their right to enter or remain is upon all Chinese seeking to exercise such right. 22 Since the exclusion acts provide that even members of the exempt classes must at the time of entry furnish the evidence required by law of their right to enter, the absence of such evidence in the hands of an applicant, coming here for the first time creates a presumption — which the law has made absolute by prohibiting the introduction of any evidence other than that provided by the certificate — that he is not an exempt under the law. Again, where the law provides that Chinese laborers already within the country shall take out certificates of registration, the fail- ure of one of the laboring class to have the certificate in his possession raises the presumption that he was not lawfully in the country during the registration period. But in this case, the act provides that the absence of the certificate may be satisfactorily accounted for on the proof of certain facts under the conditions prescribed by law. And the act of 1892 provides that any Chinese per- wlbid. 2 °Ah How v. United States, 193 U. S. 65, 48 Law Ed. 619; Li Sing v. United States, 180 U. S. 486, 45 Law Ed. 634; Fong You Ting v. United States, 149 U. S. 698, 37 Law Ed. 905; United States v. How Way, and three similar cases, 156 Fed. 247 ; Low Foon Yin v. United States, 145 Fed. 791; United States v. Sing Lee, 125 Fed. 627; United States v. Lee Huen, 118 Fed. 442; In re Sing Lee, 54 Fed. 334. ziTom Hong v. United States, 193 U. S. 517, 48 Law Ed. 772; Ah How v. United States, 193 U. S. 65, 48 Law Ed. 619. 22 Fong Mey Yuk v. United States, 113 Fed. 898. 5G6 The Exclusion and Expulsion of aliens. son arrested under its provisions shall be adjudged to be unlawfully in the United States unless he establishes the contrary to the satisfaction of the commissioner — thereby in so many words imposing upon the prisoner the burden of proving that his presence here is legal. The burden thus imposed is the result of the general purport of the law, and is in no way to be confused with the additional obligation which lies upon Chinese persons to prove the existence of certain specified facts by the testimony of members of specified classes of witnesses in order to establish the right claimed. This general obliga- tion to prove the right to remain or to enter is constant, irrespective of whether the act prescribes in certain cases and in others fails to prescribe the establishment of cer- tain subsidiary facts through witnesses specially desig- nated, or by means of documentary proof in the form of certificates of identity, residence or return. Here, as in the immigration act, the evidence naturally falls into two classes : that prescribed by statute and that not prescribed by statute. If a Chinese person seeks admission on the ground of membership in any one of the exempt classes not only must he show it but his proof must be made by one par- ticular method, viz: by a “section 6” certificate; 23 if a la- borer, lie must show he is returning to resume a lawful residence in the United States, and here again the proof must be of a specified nature, viz : a “return certificate 24 if a merchant returning to a domicile in the United States he must show by the testimony of two credible witnesses other than Chinese that he is entitled to enter on said grounds; 25 and if the applicant claims to be the wife or minor child of a citizen or the wife or minor child of an exempt the status of the husband or father must be proved in the way required by the law, and the relation- 23Section 6, Act 1882-1884. 24Section 7, Act 1888. 25Section 2, Act of 1893; Rule 15, Chinese Regulations — append. Evidence. 567 ship claimed must be established affirmatively 26 — all of the rules cited being based on the general purport and spirit of the law. Regarding a Chinese person arrested within the coun- try: If a laborer he must produce the certificate of resi- dence prescribed by the Act of 1893 or establish that his failure to secure it was due to unavoidable cause and that he was lawfully in the country prior to the passage of that act, the latter by the testimony of at least one witness other than Chinese. 27 1. Evidence Not Prescribed by Statute. (A.) Of Citizenship of Persons of Chinese Descent. Where the claim is that the applicant is a citizen of the United States it must be established by ordinary affirma- tive evidence which, in order to prevail, must satisfy the appropriate official of the truth of the facts alleged. 28 The acquisition of citizenship by persons of Chinese descent is possible only by birth in the United States while subject to the jurisdiction thereof. 29 The naturalization statutes, in designating what persons could be naturalized, limited the description to free white persons and persons of African descent. Inasmuch as the power to naturalize is vested exclusively in Congress, 30 and Congress has thus limited the persons who can be naturalized, it has been held that Chinese persons, and Mongolians generally, cannot acquire citizenship by naturalization. 31 The Act of 1884 specially forbade the further naturali- zation of Chinese by any of the courts of the United 26Rule 9, Chinese Regulations. z^Section 6, Act of 1892, as amended by section 1, Act of 1893. 28Rule 16, Chinese Regulations, Append. 29United States v. Wong Kim Ark, 169 U. S. 649, 42 Law Ed. 890. so Ibid. siUnited States v. Wong Kim Ark, supra; Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. 568 The Exclusion and Expulsion of Aliens. States ; 32 but the use of the word “further” cannot be con- strued to imply that the naturalization of Chinese by such courts prior to the passage of the act was valid in the face of the positive limitation as to race contained in the naturalization laws. Its insertion in the provision can hardly be given more significance than is to be derived from the fact that prior to the time of the passage of the act of which it forms a part the United States courts had, in several instances conferred the oath of citizenship and allegiance on Chinese persons in the manner and form prescribed by the naturalization laws. The first section of the fourteenth amendment of the Constitution was construed by the Supreme Court in the Wong Kim Ark case to mean that birth occurring within the territorial limits of the United States of Chinese parents residing here at the time was sufficient to impose on the person so born the character of a citizen of the United States. But the court held that the only method by which Chinese persons can acquire United States citizenship is by virtue of such birth. Therefore, proof of citizenship in Chinese deportation cases means no more or less than proof of birth in the United States. In the case of Chin Bak Kan 33 it was claimed by the defendant in deportation proceedings that he was a citizen of the United States, and that, inasmuch as the Chinese exclusion acts gave the power to commissioners to pass upon the right of Chinese persons to remain in the United States, it conferred on them no jurisdiction over American citizens. But the court said: “It is thus settled that the mere claim of citizenship on the part of the defendant in deportation proceedings cannot oust the officers pre- siding thereat of their jurisdiction to pass on the right of the defendant claiming citizenship to remain in the United States, and furthermore that the burden of proof 3 2 Section 14; Fong Yue Ting v. United States, supra; In re Gee Hop, 71 Fed. 274; 21 Op. Atty. Gen. 37; 21 Op. Atty. Gen. 581. 33186 U. S. 193, 46 Law Ed. 1121. Evidence. 509 of establishing this fact placed upon Chinese by the Act of 1892 is not removed by the nature of the contention. This question is now so firmly settled as to be no longer open to controversy/’ 34 But it has been held that where the physical appearance of the defendant is such that the court cannot be sure that he is a Chinaman the burden rests upon the Government to prove his Chinese nation- ality. 35 The nature of the evidence required is not restricted or designated by statute, as is that required for former resi- dence or for proving prior mercantile status by the Act of 1892, as amended. The place of birth of persons of Chinese descent may be proven in deportation proceedings by Chinese or other witnesses, like any other fact for the proof of which no particular kind of evidence is provided for by statute. 36 (1.) Sufficiency of Evidence to Establish Fact of Birth in the United States. Evidence uncontradicted, direct, positive and circum- stantial of the defendant’s birth in this country is suffi- cient to show his right to remain by establishing the fact of nativity, 37 and the effect of evidence marked by such qualities is not lightly to be overthrown. Thus, when a Chinese person claims to have been born in the United States and never to have left the country, and when he and other unimpeached witnesses testify to this without contradiction, and other persons who have known him for years testify to his truthfulness and good character, such 34Chin Bak Kan v. United States, 186 U. S. 193, 46 Law Ed. 1121; Yee Ging v. United States, 190 Fed. 270; Lim Sam v. United States, 189 Fed. 534; United States v. Too Toy, 185 Fed. 839; Kum Sue v. United States, 179 Fed. 370; Yee King v. United States, 179 Fed. 368; United States v. How Way, 156 Fed. 247; In re Lam Jung Sing, 150 Fed. 608. ssChee Cue Beng v. United States, 184 Fed. 383; United States v. Louie Lee, 184 Fed. 651; and see Moy Suey v. United States, 147 Fed. 697. seUnited States v. Lee Seick, 100 Fed. 398. 37United States v. Wong Lung, 103 Fed. 794; and see 169 Fed. 565. 570 The Exclusion and Expulsion of Aliens. evidence will not be rebutted by tbe testimony of one American witness tending to show that the defendant had previously testified that he was born in China ; 38 and so, too, where the witnesses’ story is candid and consistent and they are unimpeached . 39 It has been lately held that when apparent inconsistencies exist an effort should be made if possible to harmonize them rather than to impute a corrupt motive to one of the witnesses . 40 Again, the statement of witnesses of vouched for veracity who swear that the defendant was born in the United States and left for China when young, giving the name of the street where his father lived and where petitioner was born, and the further statement of a witness that the latter saw the petitioner in China after he left the United States and identified him — all of which testimony was positively and apparently truthfully given, is sufficient to prove that the defendant was a United States citizen . 41 And when the Chinese testimony shows that defendants were born in the United States, and this testimony is corroborated by that of credible white witnesses to the effect that they were personally acquainted with the defendants when young, it is sufficient to prove their lawful presence in the United States . 42 Again, where defendant shows a regular certifi- cate on which is based his right to be in the United States, testifies that he is the person named therein, and is cor- roborated by other Chinese witnesses, he makes out a strong prima facie case, which is further strengthened by the fact that his story is pursuasive ; and the effect of this evidence is not rebutted by the fact that a certificate bear- ing the same number was passed through another immi- gration office under suspicious circumstances . 43 On the other hand, it has been held that where the testi- 38United States v. Jhu Why, 175 Fed. 630. 39Mar Poy v. United States, 189 Fed. 288. 4oLim Sam v. United States, 189 Fed. 534. 4iPang Sho Yin v. United States, 154 Fed. 660. 42United States v. Lee Wing, 136 Fed. 701. 43United States v. Wong Ock Hong, 179 Fed. 1004. Evidence. 571 mony of the defendant, several other witnesses, and one white witness tended to show that he was born in the United States, the fact that he was shown to have made a previous signed statement that he was born in China, coupled with the fact that the judge was not favorably impressed with the white witnesses’ manner of testifying, is insufficient to prove the fact of birth in the United States . 44 It is apparent that in the face of such serious discrepancies in the testimony on the vital point at issue, there is nothing left to do but deport — particularly when the evidence as to birth in China is shown positively to have come originally from the defendant’s own lips ; 45 and such discrepancies are not to be explained away by trivial excuses, such as that when the impeaching statement was made the defendant was dazed with seasickness . 46 As the allegation of citizenship of a Chinese person necessarily includes the feature of residence at some time or other in the United States, and residence in turn im- plies at least some knowledge of this country and its lan- guage, the fact that a returning Chinese person paid his head tax at the port of entry, fails to submit disinterested evidence of previous residence in the United States for twenty years, was unfamiliar with the English language, and had no acquaintance with the environments in which it was claimed he had resided for twenty years, was held insufficient to establish the fact of birth in this country . 47 The mere fact that a witness testifying as to birth of de- fendant in the United States alleges that defendant was born at a certain time and place, unsupported by further details concerning the facts already stated will, naturally, 44United States v. Wong Du Bow, 133 Fed. 326. 45Yee Ngoy v. United States, 116 Fed. 333; Lee Ah Yin v. United States, 116 Fed. 614. 4 6Chew Hing v. United States, 133 Fed. 227 ; Ah How v. United States, 193 U. S. 65, 48 Law Ed. 619. 47United States v. Leung Sam, 114 Fed. 702; see also Lee Sing Far v. United States, 94 Fed. 834; In re Wong Lin, 1 U. S. D. Ct. Hawaii 44; and see United States v. Cut Yong, Vol. I, Ibid, p. 104. 572 The Exclusion and Expulsion op Aliens. be inconclusive as to the claim of citizenship ; 48 and the corroboration of the alleged fact of birth by the hearsay testimony of Chinese witnesses who have seen defendant but a few times is likewise held insufficient to prove his citizenship . 49 Uncontradicted Testimony. That the testimony given by defendant and his wit- nesses is uncontradicted does not necessarily prove the fact at issue . 50 That it is the nature and credibility of the testimony given and not the simple fact of failure on the part of the Government to contradict it which should de- termine the result is clear, since the burden of proof being put by law on the alien, the exempt status which he claims must be established as required by statute. It may be that the facts which he alleged, standing alone, do not satisfy the presiding officer of the truth of the ultimate facts to be proven, in other words fail to constitute a prima facie case. Under these conditions it cannot avail him that his insufficient statement is uncontradicted. The point is that it is not corroborated ; a fact often of itself at times sufficient to justify an excluding decision . 51 Again, it is possible for designing aliens to submit alleged evidence of birth in the United States of a character so remote in time and place as to make actual contradiction of the specific facts alleged an impossibility as far as the Government is concerned. The true test is, then, the na- ture and credibility of the evidence irrespective of the fact of contradiction. Thus, when the evidence of a Chinese person seeking admission to the United States on the ground of American citizenship, which although unim- peached in any way is in itself inherently improbable, the 48United States v. Lee Huen, 118 Fed. 442. *9Gee Fook Sing v. United States, 49 Fed. 146. so in re Jew Wong Low, 91 Fed. 240. 5i In re Louie You, 97 Fed. 580. Evidence. 573 general rule that uncontradicted evidence should control the decision of the court should not apply . 52 Aside from the class necessarily excluded from the op- eration of the exclusion and immigration acts by virtue of citizenship in the United States, are Chinese merchants, students, and others allowed by treaty or statutes relat- ing to the admission of Chinese, and other aliens not of that nationality whose admission into the United States is not prohibited by the acts on immigration. As in the case with Chinese who claim the right to enter or remain on the ground of American citizenship, the burden of proof is on all Chinese except those coming here in a diplo- matic capacity together with their suites and servants . 53 Similarly in the cases of all Chinese defendants in depor- tation proceedings, uncontradicted evidence is not binding on the court , 54 even though defendant’s claim is supported by as many as three reputable Chinese merchants whose testimony is unimpeached in any way ; 55 and here, too, the fact that the evidence is of itself of such a nature as to be incontrovertible by the Government constitutes no objection to the deportation of the defendant . 56 (B.) Proof of Marital or Filial Relationship. If the claim to admission is that the applicant is the wife or minor child of a person of Chinese descent who is 52Quock Ting v. United States, 140 U. S. 417, 35 Law Ed. 501. 53Ah How v. United States, 193 TJ. S. 65, 48 Law Ed. 619; Li Sing v. United States, 180 U. S. 486, 45 Law Ed. 634; Fong You Ting v. United States, 149 U. S. 698, 37 Law Ed. 905; United States v. Chin Ken, 183 Fed. 332; United States v. Yee Gee You, 152 Fed. 157; Low Foon Yin v. United States, 145 Fed. 791; Yee Yuen v. United States, 133 Fed. 222; Lee Yue v. United States, 133 Fed. 45; United States v. Ling Lee, 125 Fed. 627; United States v. Lee Huen, 118 Fed. 442; United States v. Leung Sam, 114 Fed. 702; United States v. Chun Hoy, 111 Fed. 899; United States v. Lung Hong, 105 Fed. 188. ^United States v. Lee Huen, 118 Fed. 442; Quong Sue v. United States, 116 Fed. 316 ; Lee Sing Far v. United States, 94 Fed. 834. 65Woey Ho v. United States, 109 Fed. 888. seKum Sue v. United States, 179 Fed. 370. 674 The Exclusion and Expulsion of Aliens. a citizen of the United States or of a member of the exempt classes the fact of such relationship must be proven in the ordinary manner to the satisfaction of the inspecting offi- cers; but, of course, the authorities must be satisfied that the husband or father is fully qualified to enter or remain in this country.® 7 (C.) Proof of Prior Mercantile Status During Registra- tion Period. 58 As before pointed out the Act of 1892, as amended by that of 1893 provides that as to both Chinese merchants and laborers the evidence of witnesses other than Chinese is required to prove as to the first their right to return to the United States, and as to the second their right to re- main therein. The provisions as to registration therein contained are obligatory on laborers only, but any Chinese person other than a laborer having the right to be and remain in the United States was thereby privileged to re- quest a certificate of registration as evidence of such light. 59 While, therefore, the right of a Chinese laborer to remain in the United States could, after the passage of the act as amended, be proved in the absence of the cer- tificate only as provided by that act, to wit, by proof of good reason why he had not obtained a certificate and by further proof of residence in the United States prior to May 5, 1892, by at least one credible witness other than Chinese, the last-named limitation is not prescribed as a mode of proving the mercantile status of a Chinese person whose right to remain has been questioned in deportation proceedings. Thus it has been held that the fact that a Chinese person has been engaged in mercantile pursuits may be proven by Chinese witnesses. 60 But where the right to enter the United States is based on the mercan- 57See Chinese Regulations, Rule 9, Append. ssSee post, pp. 584, 587. 6 9 Section 6. eoUnited States v. Louie Yuen, 128 Fed. 522. Evidence. 575 tile status, and inasmuch as the Act of 1893 in its second section provides that this status shall be established by the testimony of two credible white witnesses, the provisions of the statute must be strictly followed, and in the absence of such evidence, other proof whereby the mercantile status is sought to be established is insufficient. 61 Of course, where the right to remain in the United States is the question at issue, the testimony of white witnesses, although not required by statute, is admissible as well as often desirable. Thus, where the testimony showed with- out contradiction and by disinterested witnesses other than Chinese that the defendants had been in the United States from ten to thirty years, that for four years (1891- 1895) they had carried on a Chinese grocery known by a firm title, had bought and sold groceries, and had kept books of account under articles of partnership, this was held sufficient to prove their mercantile status ; 62 and again, Chinese testimony that defendants were merchants in the United States, when corroborated by the testimony of credible white witnesses that the latter had known~de- fendants as the children of persons commonly known as and reputed to be Chinese merchants, their lawful pres- ence in this country was held to be proven, 63 The question of whether the statutory rules of evidence prescribed by the act apply to cases of Chinese persons who, since the registration period have lost their mercan- tile status and have become laborers or who are merchants at the time of their arrest subsequent to the expiration of the registration period, although they were laborers dur- ing that period, will be more fully considered in the sec- tion entitled “Evidence available in the absence of cer- tificate.” 64 6i In re Lung, also In re Yue Soon, 61 Fed. 641. 62Tom Hong v. United States, 193 U. S. 517, 48 Law Ed. 772. 63United States v. Lee Wing, 136 Fed. 701. 64 Post p. 584, 587. 576 The Exclusion and Expulsion of Aliens. 2. Evidence Prescribed by Statute. (A.) In General. This evidence consists of (1) Documentary proof in the form of certificates of entry issued under section 6 of the Act of 1882 as amended by that of 1884 to members of the exempt classes of Chi- nese coming to the United States for the first time, and commonly known as section 6 certificates; certificates of return provided by section 7 of the Act of September 13, 1888, to be issued to Chinese laborers lawfully in this country desirous of leaving it for a temporary visit to China; and certificates of registration or residence pro- vided by the Act of May 6, 1882, as amended by that of November 3, 1893, issued to Chinese laborers already in the country in order to constitute permanent and definite proof of their right to remain; and finally the certificates prescribed in the Treaty of 1894. (2) Proof by testimony, other than that contained in certificates, of designated facts coming from persons of a designated class, such as the proof by at least one credible witness other than Chinese of prior residence in this country (required by section 6 of the Act of 1892 as amended) ; of all laborers found without the certificate of registration prescribed by that act; and proof of prior mercantile status in this country by two credible witnesses other than Chinese required of Chinese persons seeking admission on the claim of having been formerly engaged in this country as merchants. (B.) Certificates — As Evidence of the Right of Holder to Enter or Remain. Certificates of identity and certificates of registration differ as much with regard to their evidential effect as to the rights which they confer on their respective holders as they do with regard to the purposes for which they were issued. Evidence. 577 (1.) “Section 6” Certificates. The “section 6 certificates’’ and the “return certificates” issued first under the Act of 1882 were intended, the first for the purpose of identifying Chinese persons of the exempt classes on leaving China for the United States in order that on their arrival at the ports of this country they might be identified as belonging to those classes; the second for the purpose of identifying on their return Chinese laborers leaving the United States temporarily animo revertendi. By the Act of 1884 it was provided 65 that the certificate of identity should be the sole evidence whereby the holders thereof might establish their right of entry into the United States ; but said certificate might be controverted and the facts therein stated disproved by the United States authorities. 66 It was also provided that the return certificate of the outgoing laborer was to constitute on return the only evidence of his right of re- entry. The Supreme Court held, however, that the Act of 1882 as amended was not applicable to Chinese laborers who were living in the United States on March 17, 1880, the date of the ratification of the treaty with China, ( whereby it was first agreed that the United States should restrict the immigration of Chinese laborers) and who had left before the passage of the Act of May 6, 1882, and remained out of the United States until after July 5, 1884. 67 This Supreme Court decision was fol- lowed by another denying the application of the evi- dential effect of the lack of the certificate to Chinese laborers who left the United States before the Act of July 5, 1884 was passed. 68 Nor does the “section 6 certifi- cate” of identity constitute the only evidence on which the wives and children of Chinese merchants commercially esSee Appendix. ^Section 6. eschew Heong v. United States, 112 U. S. 536, 28 Law Ed. 770; United States y. Chu Chee, 93 Fed. 797 ; In re Chin A On, 18 Fed. 506. esUnited States v. Jung Ah Lung, 124 U. S. 621, 31 Law Ed. 591. 578 The Exclusion and Expulsion of Aliens. domiciled in the United States can base their right to enter, 69 in the sense at least that they shall not be allowed to prove the right in any other way; particularly in view of the fact that such persons were not specifically desig- nated in the Treaty of 1880 as members of the privileged classes, the treaty being construed to mean that the right to enter guaranteed thereby to members of the exempt classes must necessarily include the right of their wives and minor children to participate in the privilege. 70 (2.) Laborer’s a Return” Certificate. Section 7 of the Act of September 13, 1888, provides for the temporary departure and return, under conditions, of Chinese laborers ; and this right was specially confirmed by Article II of the treaty of December 8, 1894. The act provides that such laborers shall be given a return certifi- cate, “which shall be the sole evidence gben to such per- son of his right to return,” but that if it “be transferred it shall become void and the person to whom it was given shall forfeit his right to return to the United States,” and that no Chinese laborer shall be permitted to re-enter the United States without producing the return certificate to the proper officer. Thus it is settled law to-day that certificates of return and certificates of identity constitute the sole evidence of the right of the holder to re-enter, or enter the United States for the first time, 71 and that the absence thereof in hands of the applicant in either case renders him liable to deportation. 72 It is equally well settled that such certifi- cates constitute only prima facie evidence of the holder’s 69United States v. Gue Lim, 176 U. S. 549, 44 Law Ed. 544. 70 Ibid. 7iWan Shing v. United States, 140 U. S. 424, 35 Law Ed. 503; United States v. Pin Ewan, 100 Fed. 609; United States v. Cbu Chee, 93 Fed. 797; In re Wo Tai Li, 48 Fed. 668; Case of Limited Tag, 21 Fed. 789. 72Mar Bing Guey v. United States, 97 Fed. 576. Evidence. 579 right to remain. 73 This appears from the acts them- selves. 74 But to constitute such prima facie evidence their contents must conform strictly to the requirements of the statute; 75 and if entrance is allowed a Chinese person not a laborer on a defective certificate who after entry becomes a merchant, he may be deported in spite of having exer- cised acts incidental to the mercantile status for seventeen months. 76 Nor do defective certificates constitute evidence of the right to enter or remain, for this right is made by law to depend on the possession of a certificate executed in the form prescribed by statute 77 and by the authority designated in the act ; 78 and the fact that an official of the Government allows a Chinese person to land in the United States without presenting any certificate at all is not prima facie evidence of his right to remain. 79 And the prima facie evidence afforded by the contents of the “sec- tion 6 certificate’’ that the holder is a merchant is rebutted by the fact that he entered upon manual labor imme- diately after being admitted into the United States. 80 But, while the prima facie proof constituted by a certifi- cate issued in accordance with Article II of the treaty of December 8, 1894 may be overcome by proper evidence and may not have the effect of a judicial determination, being made in conformity to the treaty, and the holder has been duly admitted to a residence in this country, he can- not be deported on the ground of wrongfully entering the 73Wan Shing v. United States, 140 U. S. 424, 35 Law Ed. 503; Lew Quen Wo v. United States, 184 Fed. 685; United States v. Ng Park Tan, 86 Fed. 605; United States v. Yong Yew, 83 Fed. 832. ^Section 6 of the Act of 1882; section 7 of the Act of September 13, 1888. 75Cheung Pang v. United States, 133 Fed. 392; United States v. Yong Yew, supra. 76 United States v. Pin Kwan, supra. 77Cheung Pang v. United States, supra. 78United States v. Mock Chew, 54 Fed. 490. 79 Mar Bing Guey v. United States, supra. 89 United States v. Ng Park Tan, 86 Fed. 605; United States v. Young Yew, 83 Fed. 832. 580 The Exclusion and Expulsion of Aliens. United States upon a fraudulent certificate unless there is some competent evidence to overcome the legal effect of the document. 81 (3.) Certificates of Registration or Residence. The certificate of registration or residence issued under the Act of 1892, as amended, differs in essential particu- lars from the “section 6 certificate” of identity, or the “re- turn certificate” authorized by the Acts of 1882 and 1884, and the Act of 1888. Whereas the possession of the former constitutes at best only prima facie evidence of the right of the holder to enter the United States, and constitutes the only evidence on which such right may be supported, the possession of the latter in the hands of him to whom it was issued by lawful authority is conclusive evidence of the right to remain, 82 and its absence constitutes only prima facie proof that the person failing to present it is not lawfully in the United States. 83 Rights which arise from the lawful possession of a certificate of registration may, however, be forfeited by subsequent illegal acts of the holder ; thus, if a Chinese laborer, registered in accord- ance with the Act of 1892, leaves the United States with- out first obtaining the return certificate prescribed by the Act of 1888, and re-enters by other than a regular port of entry the certificate is ineffective in his hands. 84 What stress the courts place on the final and conclusive effect of the certificate of registration is shown in the recently decided case of Lew Quen Wo v. United States, 85 where the court held that the effect thereof was to register the solemn act of the United States Government, and the in- tention was to furnish conclusive evidence of the right siLiu Hop Fong v. United States, 209 U. S. 453, 52 Law Ed. 888. 82 In re Tom Hon, 149 Fed. v 842. 83Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. 84United States v. Tuck Lee, 120 Fed. 989; Jew Sing v. United States, 97 Fed. 582. 85184 Fed. 685. Evidence. 581 of the holder to remain in the United States, such evi- dence not to be subject to collateral attack; 86 and so con- clusive is the effect of such a certificate considered that it has been held that a United States Commissioner has not the right to cancel it on the ground that it was ob- tained by fraud. 87 ' And where a Chinese alien after being ordered deported in a judgment in habeas corpus proceed- ings gave bail but failed to appear, and was afterwards apprehended for the purpose of carrying out the judg- ment, and was found to have been granted a certificate of residence under the Act of 1893, the court held that the certificate constituted conclusive proof of his right to re- main in the United States, and was not subject to collat- eral attack in a proceeding to enforce a judgment of de- portation rendered against him before the registration law took effect. 88 The effect of the certificate is, needless to say, based on the assumption that it is genuine; and when a United States Commissioner finds that the cer- tificate on which the defendant bases his right to remain is spurious, the defendant is not entitled to his discharge on habeas corpus . 89 It may be added in passing that a Chinese laborer who has acquired a certificate under the Act of May 5, 1892, does not need to register under that of November 3, 1893 ; and that, the failure to produce the latter may consequently be cured by producing the former. 90 (C.) Evidence Available in Absence of Certificate. As has been already pointed out, where, as in the Act of 1888, the law makes possession of certificates by Chinese persons the sole evidence of the right to enter or re- turn, or where, as under the Act of 1893, the law provides 86 Liu Hop Fong v. United States, 209 U. S. 453, 52 Law Ed. 888. In re See Ho How, 101 Fed. 115. 88 In re Tom Hon, 149 Fed. 842. 89 Ex parte Lung Wing Wun, 161 Fed. 211. 90 United States v. Jung Jow Tow, 110 Fed. 154. 582 The Exclusion and Expulsion of Aliens. the kind of evidence necessary to establish the right in the absence of certificates of registration and residence, no other evidence in the first instance, and no evidence of a different nature from that prescribed by statute in the second will suffice to establish the right. This is the gen- erally accepted rule ; although as has been seen, it was sub- ject to relaxation when attempt was made to strictly apply it under the Acts of 1882 and 1884, the reason being that the acts could not be construed to apply to persons who, under the circumstances, never had an oppor- tunity to obtain the certificate; 91 or when there was abso- lute proof that, once having been lawfully obtained, it had been lost or stolen. 92 And just as it was impossible for a Chinese laborer residing in the United States on the date of the treaty of 1880, who had left the United States on a visit to China before the passage of the Act of 1882 to secure the return certificate, which, under that act, was to be issued in this country, so was it equally impossible for a Chinese merchant not residing in China at the time of the passage of the Act of 1882, and who arrived in the United States from the foreign country of his residence, to procure the certificate of identity required by this act, inasmuch as that particular certificate could be is- sued only by the Chinese government. In such a case it was held that the mercantile status of the latter could be proven by parole evidence, 93 as well as where the appli- cant for admission left China for Honolulu but was for some reason brought first to a port of the United States. 94 In such cases the main question is whether parole or other evidence is permissible, and the second of what shall such evidence consist. The rule regarding secondary evi- dence was in effect that it would be allowed only in such 9iChew Heong v. United States, 112 U. S. 536, 28 Law Ed. 770; In re Ah Quan, 21 Fed. 182; In re Leong Yick Dew, 19 Fed. 490; In re Chin A On et al., 18 Fed. 506. »2United States v. Jung Ah Lung, 124 U. S. 621, 31 Law Ed. 591. ssCase of the Chinese Merchant, 13 Fed. 605. 94 7?i re Ho King, 14 Fed. 724. Evidence. 583 extraordinary and exceptional cases as could not be deemed to have been within the legislative prohibition; as to all other cases it was unquestionably the intention of Congress to exclude secondary evidence, and for this reason no provision was made as to what kind of second- ary evidence should be available. It follows that in such cases any competent evidence bearing on the right of entry or return might be introduced. And this must necessarily result in all cases where no restriction has been placed by Congress on the evidence whereby the alien may prove his right to enter or remain. Where Claim is American Citizenship . Occasional difficulty is experienced, however, in deter- mining whether or not a restricting provision applies to a particular case. In the proof of citizenship, set up as the sole and fundamental ground of the right to re-enter (no claim to mercantile status being made) it is plain that the provision of section 2 of the Act of 1892 requiring proof of mercantile status by at least two credible white wit- nesses would have no application. So, where the claim of citizenship is made by a person arrested without the cer- tificate of residence required by section 6 of the Act of 1892. It may be said that while the fundamental ground of the right to remain is the fact of having been born in the United States, the establishment of this fact would neces- sarily include proof of former residence — and the act pro- vides that such residence cannot be shown by testimony wholly Chinese. But the fact of residence, proof of which is thus required by the Act of 1893, is ordinarily the main — and in truth the only essential fact — by which the right to remain can be established; whereas if proof thereof is presented in a case where the right to remain is based on the citizenship of the party, it can only be in the nature of proof of an incident, and — in view of the fact that birth itself is the only determinative fact of citizenship irrespec- 584 The Exclusion and Expulsion of Aliens. tive of residence — one which can have no direct bearing on the main fact to be proven. Thus the courts have decided that citizenship may be proven by Chinese testimony, stat- ing that the requirement that a Chinese person claiming to be a merchant who seeks to re-enter the United States must prove his status as such by white witnesses is a special rule of evidence and does not apply to the issue of citizenship ; 95 and where the claim of the defendant that he was a native born citizen of the United States was supported by his own testimony, consistent and explicit in character, and giving his place of birth, residence at different times, place of attending school, and other ma- terial facts, all of which were supported and corroborated by the testimony of an uncle and cousin and wholly un- contradicted, it was held sufficient to prove the citizenship claimed . 96 The above examples seem to express the exist- ing law on the subject, although there are other decisions in which the holding that the defendant has proven his American citizenship is based in part at least on the cor- roborative testimony of white witnesses . 97 Where Claim is Mercantile Status During Registration Period — In General. A situation analogous to the above is presented by the case of a Chinese person arrested in deportation proceed- ings for not having secured a certificate of registration, and who claims he was a merchant at the time the act went iuto effect, and was, therefore, under no obligation to pro- cure the same. Such a person, if in fact he was a mer- chant during the registration period, is under no obliga- tion, on reverting to the status of laborer after that period, to procure a certificate, and, as a matter of fact, could not do so as a laborer because the act limited the period within 95United States v. Lee Seick, 100 Fed. 398. seMoy Suey v. United States, 147 Fed. 697. 97United States v. Lee Wing, 136 Fed. 701. Evidence. 585 which such certificates were procurable. 98 But, being a laborer found without such certificate, is the evidence by which he is to prove his right to remain subject to the re- strictions of the act? Bearing in mind that it is the former residence which must be proven by the evidence of at least one witness other than Chinese, it would seem that the restrictions should not be deemed to apply to evidence offered to prove mercantile status, but that, on failure to prove the latter, the provision of the statute should apply. There is, however, a conflict of judicial opinion on this point, some courts holding that the mer- cantile status may be proven by Chinese witnesses 99 and others that residence as such in the United States prior to May 5, 1892, must be proven by at least one credible white witness. 100 Registration is required first of all of Chinese laborers and not of merchants. In the case of laborers, presence in the United States without the certificate of residence constituted no more than prima facie proof that they were not entitled to remain. 1 This, the act specially provided, could be rebutted by proof of residence in the United States at the time of the passage of the act — and this was to be proven by at least one credible witness other than Chinese. Not so with Chinese merchants ; for, in the first place, being under no obligation to register, the evidential effect of the absence of the certificate was, as to them, nil ; and, as to merchants, who are not excluded by the exclu- sion acts, but on the contrary, are expressly permitted to enter, the fact of their presence here is prima facie evi- dence of their right to remain, subject, of course, to re- buttal by the Government. 2 ssUnited States v. Leo Won Tong, 132 Fed. 190 ; In re Yew Bing Hi, 128 Fed. 319; United States v. Louie Yuen, 128 Fed. 422. ^United States v. Louie Yuen, supra. i°°United States v. Yee Gee You, 152 Fed. 157. iFong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905. 2 United States v. Chin Sing, 153 Fed. 590; United States v. Wong Lung, 103 Fed. 794. 586 The Exclusion and Expulsion of Aliens. (a.) Where the Person Arrested is a Merchant. If the person arrested on the ground of being a laborer is a merchant, he is under no obligation to prove residence prior to 1893, as that provision applies exclusively to laborers. If, therefore, the claim of existing mercantile status is raised, this would seem to be a preliminary ques- tion for the court to decide, as there is no provision to the effect that the absence of the certificate is conclusive evi- dence of a labor status, and that the person concerned can prove his right to remain only by showing a prior resi- dence. The present mercantile status, may, then, be raised just as in the case of citizenship; and as there is no pro- vision of law restricting or imposing limitations on the manner in which this is to be proved it is open to proof by any evidence which the defendant may offer. If this proof fails he is then necessarily relegated to the status of laborer, and must as such prove prior residence in the manner provided by statute. (b.) Where the Person Arrested is a Laborer. There seems to be no reason why a different rule should apply as to the mode of proving prior mercantile status existing during the period of registration. Chinese labor- ers were registered under the act only on showing proof sufficient to the registering officer of their right to remain. Absence of the registration certificate consequently gave rise to the presumption of non-residence in the country at the time of registration; and, therefore, the Chinese laborer arrested without a certificate was under the obli- gation of rebutting the presumption of non-residence and of rebutting it by testimony prescribed by statute. If, however, the allegation of mercantile status during the registration period is made by the defendant, here again a preliminary question is presented to the commissioner; for, if at the time the defendant was in fact a merchant, not being under the obligation to register, his failure to do so would not give rise to the presumption that he was Evidence. 587 not residing in the United States during the registration period; and thus the obligation of rebutting such a pre- sumption could not exist. Again, the failure to register, apart from the philosophy of the provision, is what gives rise to the obligation to rebut the effects of that failure by testimony of a designated kind. It would not seem to be the policy of the law to impose equal obligations on persons who, in the face of the expressed directions of the statute, deliberately failed to carry them out, and those who have omitted to perform an act which that law expressly provided that they were under no obligation to perform. a. Where Original Mercantile Status Terminated Before Expiration of Begistration Period. A different case is presented by that of Chinese laborers who on arrest for failure to register present bona fide cer- tificates of identity issued to them as merchants under section 6 of the act of 1882, as amended by the Act of 1884, who, before the period for registration had ended, lost their mercantile status or assumed that of laborers. As such certificates constitute only prima facie evidence of the mercantile status their contents are of course re- butted by the established fact that the holders are no longer merchants. Having lost their status as such be- fore the expiration of the registration period the act, which specifically includes all laborers, must include them also ; and the mere fact that they were merchants at some former point of time constitutes no defense. 3 Proof of such former status would in such case be immaterial to the issue, and, the facts being shown, the validity of any defense left to them could be established only by the method applicable to other Chinese laborers. 3Cheung Him Nin v. United States, 133 Fed. 391; Chain Chid Fong v. United States, 133 Fed. 154. 588 The Exclusion and Expulsion of Aliens. Wives and Minor Children of Domiciled Chinese of the Exempt Classes. The necessity of the possession of certificates of identity, as sole evidence of their right to admission by Chinese merchants coming to the United States has already been discussed. 4 While Congress both by legislative enactment 2 nd by treaty has provided that return certificates be issued to Chinese laborers and that no other evidence of their right to return shall be admissible, no provision was made in the law regarding the issuance of return certifi- cates to Chinese merchants who depart temporarily from this country. It was thought at an early period in the history of the Chinese exclusion acts that the “section 6 certificate” must be considered as the sole evidence of that right, but the decisions of the courts to the contrary 5 showed the need of special legislation on this point, and the existing lack was supplied by the Act of 1893 requir- ing special proof of mercantile status during at least one year preceding the date of departure. The controlling fact in allowing such merchants to return without pre- senting the certificate in question was the duly proven domicile and mercantile status of the parties. In an early case the presence of a Chinese merchant otherwise entitled to remain in the United States, who returned from a tem- porary visit to Canada, was held to be lawful, although on re-entry he did not present the certificate to the collector who was otherwise satisfied of his right to remain, on the ground that the Act of 1884 provided that “the collector shall in person decide all questions in dispute with regard to the right of any Chinese passenger to enter the United States; and his decision shall be subject to review by the Secretary of the Treasury, but not otherwise.” 6 The nature of the evidence necessary to establish the 4 Ante, p. 577. 6 Lau Ow Bew v. United States, 144 U. S. 47, 36 Law Ed. 340; United States v. Gee Lee, 50 Fed. 271. eUnited States v. Lee Hoy, 48 Fed. 825. Evidence. 589 right to enter into or remain in the United States of per- sons not directly designated by treaty or statute as be- longing to the exempt classes, already adverted to, 7 has been the subject of judicial consideration on more than one occasion. Reference is made to the wives and minor children of Chinese merchants or of other persons who by law belong to the exempt classes. The right of such per- sons to enter the United States without the certificate of identity required by section 6 of the Act of 1882 had been repeatedly denied, 8 and also repeatedly affirmed 9 by vari- ous lower United States courts before which it came for adjudication, until it was definitely affirmed by the Su- preme Court in the case of United States v. Gue Lim. 10 In this case the wife and minor children of a Chinese mer- chant domiciled in the United States had been allowed to land without the production of the certificate. They were later arrested on the charge of being laborers who had failed to register as required by the Act of 1893 and there- fore without certificate of registration, and without any other legal right or authority to remain in this country. Said the Court: “It is impossible to presume that the treaty of 1880 in omitting to name the wives of those who by the second article were entitled to admission meant that they should be excluded. If not then they would be entitled to admission because they were such wives, al- though not in terms mentioned in the treaty.” In com- menting on the fact that section 6 of the act could not be construed to mean that wives must take out certificates of identity the court said : “The section assumes that ap- plicant for a certificate has some occupation or profession 7 Ante, p. 573. 8 in re Li Foon, 80 Fed. 881; In re Lum Lin Ying, 59 Fed. 682; In re Wo Tai Li, 48 Fed. 668; Case of the Chinese Wife, 21 Fed. 785; In re Ah Quan, 21 Fed. 182. ' Hn re Lee Yee Sing, 85 Fed. 635; United States v. Gue Lim, 83 Fed. 136; In re Chung Toy Ho, 42 Fed. 398. 10 176 U. S. 549, 44 Law Ed. 544; and see United States v. Yee Oung Yuen, 191 Fed. 28. 590 The Exclusion and Expulsion of Aliens. which has theretofore been pursued at some place, which is not the case here.” And again: “To hold that a cer- tificate is required in this case is to decide that the woman cannot come into this country at all, for it is not possible for her to comply with the act, for she cannot in any event procure the certificate even by returning to China. She must come in as the wife of the domiciled husband, or not at all. The act was never intended to accomplish the re- sult of permanently excluding the wife under the circum- stances of this case, and we think that properly and rea- sonably construed, it does not do so. If we hold that she is entitled to come in as the wife because the true con- struction of the treaty and the act permits it, there is no provision that makes the certificate the only proof that she is such wife. In the case of the minor children the same result must follow as in that of the wife.” This decision shows, not only that the wife and a minor child of a Chinese person belonging to any one of the ex- empt classes are themselves not excluded from entry with- out a certificate by the Act of 1882, but that the fact of the marriage or parental relation may be proven by any evidence available. The case of Lee Lung vs. Patterson 11 in which the right of entry was denied presents a some- what similar state of facts, but the excluding decision was based on entirely different grounds. There a domiciled Chinese merchant together with a second wife lawfully wedded to him in China, although the first wife was still living as such at the time of their arrival in the United States, and accompanied by an alleged child by the first wife, sought admission to this country. He was duly ad- mitted, but the second wife and child although provided with section 6 certificates issued in accordance with the third article of the treaty of December 8, 1894, were re- fused admission; the wife on the ground that she was not a legal wife according to our interpretation of the nl86 U. S. 168, 46 Law Ed. 1108. Evidence. 591 term; and that, therefore, the reasons on which the Gue Lim decision 12 was based did not meet her case — the child because the Secretary of the Treasury was not satisfied of the fact of her identity as the child of the alleged father. The court held that as the Act of August 18, 1894, vested the final determination as to the right of aliens to enter the United States under any law or treaty in executive officers, the judgment of the district court to which the matter had been brought on habeas corpus that it was without jurisdiction should be affirmed. The difference in result between the two classes lies largely in the difference between the remedies available to the parties. In the Gue Lim case the parties were ar- rested as laborers without the right to remain in the United States. The proceedings were, therefore, before a United States commissioner, and included the right of judicial review of the facts on appeal. In the Lee Lung 13 case the issue was the right to enter, not to remain in the United States, and the facts on which the issue was based were not subject to judicial review. The question arose as to the sufficiency of the certificate held by the women. It was admitted that it constituted at best but prima facie evidence of the right to enter; but it was claimed that the collector had not given due weight thereto. The court held, however, that even if the col- lector had disregarded it as evidence he would not lose his jurisdiction thereby. While there is no doubt that in excluding the alleged daughter the decision of the col- lector was based purely on his finding of fact, may it not be said that in holding that the second wife was not enti- tled to admission as such he went beyond his jurisdiction in passing on a question of law? There is, however, little doubt as to the correctness of his conclusion on that point, as it can scarcely be presumed that either the treaty of 1880, the Act of 1882, or the Treaty of 1894 meant to in- laUnited States v. Gue Lim, 176 U. S. 549, 44 Law Ed. 544. 13 Lee Lung v. Patterson, 186 U. S. 168, 46 Law Ed. 1108. 592 The Exclusion and Expulsion of Aliens. elude as members of the exempt classes persons whose status was based on a polygamous relationship. Still, in the light of later decisions of the Supreme Court it seems as if the district court might have properly assumed juris- diction as to that point. In those cases in which the right to enter is found to exist — that is, when the relationship claimed is proven to the satisfaction of the executive officers — the basis of the right to enter is the communication of the corresponding right in the husband or father. As said in the Gue Lim 14 case, the woman must come in as the wife of the domiciled husband or not at all. This being the case the prima facie evidence of the right to remain presented by the accepted fact of the marital relation may be rebutted by such evi- dence as is sufficient in law to rebut the prima facie evi- dence presented by the husband’s certificate of identity; a fortiori by evidence tending to show that the marital relationship did not in fact exist, or was merely colorably entered into by either or both parties for the special pur- pose of evading the provisions of the law . 15 In the case of Chu Chee v. United States, the question of the communication of status and evidence submitted in connection therewith was considered at length both by the district court 16 and by the Circuit Court of Appeals . 17 In this case the evidence of the right to enter consisted in insufficient certificates of identity in which the applicants were described as students. The certificates were insuf- ficient because they were issued only by the United States consul at Hongkong without the authorization of the Chinese government. The law provides that members of the exempt class shall take out the certificate in the pre- scribed form in order to enter the United States. The applicants were students, and were entered by the col- i*Gue Lim v. United States, 176 U. S. 549, 44 Law Ed. 544. isLooe Shee v. North, 170 Fed. 566. i«87 Fed. 312. 1793 Fed. 797, and see Chapter on Status, ante, p. 330. Evidence. 593 lector as such. It does not appear whether they were ar- rested on the ground that they were laborers not provided with registration certificates or on the ground that they were merely Chinese persons unlawfully in the United States. They introduced the certificates of identity to show that they were not laborers, and in addition thereto other evidence which established the undisputed fact that they were at the time of their arrest, and had been ever since their arrival in the country, students. 18 The Circuit Court of Appeals held that being landed on a certificate other than that provided by law, they were unlawfully in the United States and subject to deportation ; and that the certificate constituted no evidence of their right to land. The district court held that “while these statutes 19 in ex- press terms make a certificate the sole evidence of the right to land, and in the case of laborers the sole evidence of the right to remain in the United States, yet in all other cases of deportation it is permissible for the person arrested to establish by affirmative proof his lawful right to remain.” Both courts are in accord as to the point of un- lawful entry. But the Circuit Court of Appeals further states that “they cannot purge themselves of their offense by assuming the occupation of members of the privileged classes;” that their right to land being dependent on the certificate they must produce the same in order to prove the right to remain; and that being minors, and their father being a laborer, the status of the children was, under the law, that of the father. “The defendants be- longed to that class upon their arrival in this country, and they so continued up to the time of their arrest ; and not having the certificate as required under section 6 of the Act May 5, 1892, they were not entitled to re- main in the United States.” It seems clear enough that, being admitted on certifi- cates insufficient in law, the entry thus affected must nec- 1887 Fed. 314. 19 Of 1892 and 93, as well as the earlier acts. 594 The Exclusion and Expulsion of Aliens. essarily be unlawful, and that the certificates could not constitute even prima facie evidence of the right to land. But it seeems equally clear that in proceedings against them on the ground that they were laborers who had failed to take out certificates of registration the defendants were entitled to show by means of any evidence in their posses- sion that they were not laborers when arrested, or during the registration period, and furthermore that the certifi- cates, deficient as they were, might well have gone far to prove that such was the case, although necessarily insuffi- cient to show that, even as students, they were entitled to remain in the United States. The deficiency of the certifi- cate was no proof conclusive as to the absence of the status claimed, but merely proof of the absence of the right to enter. Regarding the evidence by which such existing status may be proven it remains to be said that this de- pends on the nature of the charge on which the right to deport is claimed. If it is unlawful presence in the United States it will be sustained by the facts of this case, to wit, that the entry was effected by means of a certificate in- sufficient in law. If, however, it is on the ground that the defendant is a laborer who has not taken out his certificate of registration under the Act of 1893 proof that the de- fendant is not a laborer but a student should be received just as proof is receivable in charges brought under the same section when the defense is that the defendant is, or was at the time of registration, a merchant, or a citizen of the United States; that is, irrespective of the submis- sion of evidence other than Chinese required by a special rule of evidence, when the fact to be proven is prior resi- dence of a Chinese laborer who has failed to register as provided by law. 3. Other Evidence in Deportation Proceedings. When Congress by the Act of August 18, 1894, entrusted to administrative officers the final determination as to the right of aliens, claiming to exercise the same by virtue of Evidence. 595 any law or treaty, to enter the United States, the former were, in the vast majority of cases, made the sole judges of the existence of such right, and as such were given prac- tically exclusive jurisdiction to pass on the questions of fact on which the right to enter was based. While not going so far as to say that they may exclude evidence which properly comes before them they may disregard it in the sense that they may consider it inconclusive if not altogether immaterial to the issue, provided, perhaps, that such refusal to concede it any evidential force whatsoever is not purely arbitrary. Being the sole judges of ques- tions of fact, anything from which the existence or non- existence of the facts whereby the right of entry is sought to be proven may be determined is a proper subject for their consideration, and there is no limitation on the sources on which they may draw for the purpose of reach- ing a correct and fair conclusion. The province of the United States commissioner in de- portation proceedings to determine the right of Chinese aliens to remain in the United States is practically the same, excepting that the proceedings held by him are sub- ject to review by the courts. This distinction is not, in practical effect, of such great importance as at first thought it might seem to be. Difference between the right of ju- dicial review and the absence thereof may and does mean in many individual cases the difference between remaining in and being deported from the United States ; indeed, it is possible that it may in certain cases mean the difference between the banishment from his native country of an American citizen and the continued exercise and enjoy- ment of his right as a dweller therein under the Constitu- tion. But in the great majority of cases, as pointed out at a later page, 19a the court will not on appeal reverse the commissioner’s findings of fact, even if on the same facts the court itself would have come to a different conclusion, isaSee post Chapter on Deportation Procedure. 596 The Exclusion and Expulsion of Aliens. unless the finding is obviously opposed to the great weight of the evidence offered. It is true that the courts may examine additional testi- mony if they so desire ; but it is likely that such evidence would be viewed with the greatest suspicion, at least under conditions where it was available at the time of the hearing before the commissioner. Deportation proceedings being sui generis , many of the rules of evidence applicable to civil or criminal trials have little or no application ; 20 thus both the courts and the commissioner may be said to have, in common with execu- tive officers, the right of determining whether or not any given fact, no matter how apparently immaterial in its application to the main fact to be proven, has any real bearing on the issue. It follows that the evidential force and effect of acts or conditions connected with the pro- gress of the case which could not or might not be prop- erly considered in the course of the trial of ordinary causes is frequently presented for the determination of either the judge or the commissioner. Chinese Evidence. Thus the probative value of evidence given by Chinese persons merely because they were Chinese has been passed upon in the light of an evidentiary fact which it was proper to take into consideration in determining the issue of a given case ; and while it has been held that, as Chinese evidence, it must be scrutinized with more than common caution, the mere fact that the witness is a Chinaman does not mean that he is necessarily an interested or biased witness . 21 Testimony Given by the Witness Against Himself. Deportation proceedings not being criminal in charac- ter, not only is evidence given by the witness against him- 2oBut see Moy Suey v. United States, 149 Fed. 697. 2iUnited States v. Lee Huen, 118 Fed. 442. Evidence. 597 self admissible , 22 but it is competent for the Government to swear the defendant as a witness against himself , 23 and the evidential effect of such statement will be given full consideration by the court. Although, strictly speaking, the rules of evidence have no application, and any and all testimony may be received by the judge or commissioner, he may see fit, for the very reason which renders certain evidence inadmissible if offered in regularly conducted civil or criminal cases, to reject it, or give it no weight whatsoever. Thus it was held that statements made by an alien under compulsion imposed jointly by an inspector and official interpreter would not be considered by the court in determining the date of the alien’s arrival in the United States . 24 Refusal to Testify. The effect of standing mute and failing to testify has been differently construed by different courts. It has been held to constitute per se a badge of illegality, and an ad- mission that the defendant has no right to enter or re- main in this country . 25 Other decisions hold that, while it cannot be taken as proof or admission of any fact, it may constitute an unfavorable circumstance against the accused 26 and may be taken into consideration in order- ing his deportation ; 27 and still others the fact that the defendant refuses to take the stand is not of itself alone sufficient to justify an order of deportation , 28 particularly when statements, which, if true, would show his right to remain, are uncontradicted and unimpeached . 29 Again, a 22United States v. Hung Chang, 134 Fed. 19. 23Low Foon Yin v. United States, 145 Fed. 791. 24 In re Lea, 126 Fed. 234. 25United States v. Chin Keu, 183 Fed. 332 ; and see United States v. Sing Tuck, 194 U. S. 161, 48 Law Ed. 917. 26United States v. Lee Huen, 118 Fed. 442. 27United States v. Moy You, 126 Fed. 226. 28United States v. Leung Shue, 126 Fed. 423. 2 ». Ex parte Sing, 82 Fed. 22. 598 The Exclusion and Expulsion of Aliens. distinction has been drawn between cases where there was a mere failure to testify on the part of the defendant who has not been requested to do so, and where no such request has been made ; it being held that the former case afforded no just ground for the issuance of the order . 30 ftur'reptitious Entry . Surreptitious entry into the United States, while per- haps not affording absolute proof of the absence of the right to enter or remain, falls but little short thereof ; and at least goes far to show that the presence of the defend- ant in the United States is unlawful, and that sufficient grounds for his deportation exist . 81 But proof of frequent illegal attempts on the part of other Chinese persons cross- ing the Rio Grande should not be allowed to be of weight in determining whether a Chinese person held for depor- tation at El Paso was born in the United States or effected his entry in the same way . 32 Racial Characteristics . The fact that an alien possesses all the physical charac- teristics of a Chinese person (of which the court will take judicial notice) establishes at least prima facie that he is a Chinaman, on the principle of res ipsa loquitur , and the Government is not obliged to prove that nationality by additional facts ; 33 but if the appearance of the alien ar- rested in deportation proceedings on the charge of being a Chinese person unlawfully in the United States is such that the court itself cannot be sure that he is a Chinaman, the burden is on the Government to prove the fact of Chinese nationality . 34 3oArk Foo v. United States, 128 Fed. 697. 3iLee Joe Yen v. United States, 148 Fed. 682; United States v. Lee Wing, 136 Fed. 701. 32Lim Sam v. United States, 189 Fed. 534. 33United States v. Hung Chang, 134 Fed. 19. 34United States v. Louie Lee, 184 Fed. 651; Chee Cue Beng v. United States, 184 Fed. 383. Evidence. 599 Statements of Government Officers. The affidavit of a Chinese inspector charging the pris- oner with being a Chinese person unlawfully in the United States does not constitute evidence of the fact by compe- tent testimony; and, on the other hand, when the com- plaint alleged the residence of the defendant in the United States on May 5, 1892 without the certificate of residence, this allegation cannot be considered evidence of the fact of such residence, and the latter must be proven by the defendant as required by the statute. 35 But the statement of regularly appointed Chinese inspectors and interpreters in deportation proceedings as to the Chinese nationality of the defendant constitute evidence of that fact and do not lose their evidential effect because it is shown that the the witnesses obtained their knowledge of Chinese and Chinese characteristics through personal contact and in- tercourse rather than through book learning, and could not qualify as experts in ethnology and anthropology. 36 Although the fact that an alien presenting such physical characteristics arrives from China gives rise to the pre- sumption that he was born there, 37 this will be rebutted by direct, circumstantial and uncontradicted evidence of his birth in the United States 38 Presumptions Based on Absence of Certificate. The want of possession of the certificate of registration on the part of a Chinese laborer, as has already been stated, was made by law to constitute prima facie proof of his illegal presence in the United States. There seems to be little doubt that no such presumption exists in the case of a domiciled merchant who fails to have in his pos- session the “section 6 certificate,” which alone authorized ssUnited States v. Williams, 83 Fed. 997. 36United States v. Hung Chang, supra. 37 Ex parte Lung Wing Wun, 161 Fed. 211. 33 United States v. Jue Wy, 103 Fed. 795. 600 The Exclusion and Expulsion of Aliens. his entry; since such certificates have never been consid- ered to constitute more than evidence of the right to enter as opposed to proof of the right to remain. It has been held that a Chinese person is not subject to deportation when it is proved that he is and has been for seven years a member of a firm of merchants in the United States, although he has failed to produce any proof whatsoever as to the manner of his re-entry; 39 and it has been definitely held that the failure by the minor child of a Chinese mer- chant to have such a certificate in his possession can give rise to no presumption of illegal residence. 40 Indeed, when the lawful entry of such minor son has been shown such entry gives rise to a presumption of continued lawful resi- dence here. 41 The obvious reason for this conclusion ap- pears to be that, as neither the exclusion laws nor the treaties with China contain any such requirement the presence or absence of the certificate from or in the pos- session of a Chinese person of the exempted classes act- ually in the United States can have no significance one way or the other. Presumption raised by length of residence. Mere length of residence in the United States by a Chinese person is no indication that his presence in this country is lawful. Thus it is not to be presumed that be- cause a Chinese person arrested in 1903 has lived without molestation in the United States for nineteen years he ar- rived in this country before the Act of 1882 went into effect. 42 Nor does the fact that a Chinese person has been allowed to land by the Collector of Customs constitute even prima facie proof of the alien’s right to remain ; 43 and when the evidence shows that an alien is a Chinese person 39United States v. Wong Lung, 103 Fed. 794. 4oUnited States v. Chin Sing, 153 Fed. 590; and see United States v. Yee Oung Yuen, 191 Fed. 28. 4iUnited States v. Yee Oung Yuen, supra. 42United States v. Ah Chong, 130 Fed. 885. 43United States v. Lau Sun Ho, 85 Fed. 422. Evidence. 601 and not of the exempt class the presumption arises that he was not born in the United States. 44 Evidential effect of official acts or documents. The Courts have at times had occasion to determine what evidential effect shall be ascribed to acts of an execu- tive or judicial nature such as the issuance of documents purporting to establish the right of entry or return of Chinese persons, or judgments or decisions rendered with regard to such right. Thus the courts have gone so far as to hold that a passport issued by the Secretary of State constitutes no evidence of United States citizenship, 45 while other courts, taking a less extreme view, state that a passport is not conclusive evidence of its contents, and its possession by a Chinese alien should be satisfactorily accounted for ; 46 but it has been held that the legal effect of passports, certificates, and other papers in the possession of a Chinese person seeking admission into the United States is not rendered void by a statement made under oath by a Chinese inspector that the interpreter told him that the applicant had made certain statements to him as to his occupation and intention at variance with the con- tents of the passport. 47 The fact, however, that an alien possesses a passport issued by a foreign government does not affect this Government’s right to deport; 48 nor is that light affected by the fact that the defendant holds a “cer- tificate of identity” granted him by administration officers in accordance with Rule 19 of the Chinese Regulations of 1910 issued by the Department of Commerce and Labor, 49 though the possession by a Chinese person, who has ac- quired a domicile in Canada, of a certificate of leave en- **Ex parte Loung June, 160 Fed. 251. 45 Edsell v. Mark, 179 Fed. 292 ; In re Gee Hop, 71 Fed. 274. ^United States v. Sing Lee, 125 Fed. 627. 4 7 In re Lum Lin Ying, 59 Fed. 682. ^United States ex rel. Calamia v. Redfern, 180 Fed. 506. 49 Lew Quen Wo v. United States, 184 Fed. 685; see Chinese Regulations, Appendix. 602 The Exclusion and Expulsion of Aliens. titling him to return to Canada, issued by the Canadian officials at Vancouver, is sufficient to show prima facie that he has not lost his domicile. 60 The contents of a ship’s list of Chinese passengers has been held inadmissible, un- less the list is shown to be authoritative, and a certified copy thereof is produced, 61 nor is a birth certificate, not prepared as required by law, legal evidence in deportation proceedings; 62 nor does a consular certificate issued at Hongkong, and not indorsed by the Chinese Government in accordance with the provisions of section 6 of the Act of 1882 constitute evidence of the right of the holder to enter the United States. 63 And when the certificate shows that it has been issued by the Chinese Consul General at Yokohama, this fact alone is insufficient to show that it has been issued by the authority of the Chinese Govern- ment. 64 The certificate issued by a United States commis- sioner to the effect that a Chinese person is a citizen of the United States and thus entitled to remain is not legal evi- dence of the facts on which the commissioner’s decision was based; 66 and where in proceedings against a Chinese alien he presents the judgment of a former United States commissioner dismissing former proceedings against him on the ground that he was an American citizen, this is not conclusive evidence of the fact that the defendant is the 5oUnited States v. Chong Sam, 47 Fed. 878. 5iUnited States v. Long Hop, 55 Fed. 58. 62Lee Yuen Sue v. United States, 146 Fed. 670. It has been held that the facts on which a Chinese person seeking to prove his birth in the Hawaiian Islands depends are presumably within his own control, and where at the time of the alleged birth in the Hawaiian Islands the law made it a penal offence for any parent not to report for registration the birth of the child, and no proof of compliance with this law was introduced on behalf of the petitioner, this fact militates strongly against the petitioner’s con- tention, inasmuch as it was presumed that all births of children were reg- istered in accordance with this law. In re Leong Sai, Yol. 1, U. S. District Ct. Hawaii, 234. 63United States v. Chu Chee, 93 Fed. 797. e^United States v. Mock Chew, 54 Fed. 490. zsEx parte Lung Wing Wun, 161 Fed. 211. Evidence. 603 ‘ ! ) • ] , person described in the judgment. 56 The written state- ment by a United States commissioner that a Chinese per- son has been adjudged to have the right to remain in the United States does not constitute either evidence of such adjudication or a judgment conclusive of such fact; 57 and on the other hand the affidavit of a United States Chinese inspector charging the prisoner with being a Chinese la- borer does not constitute evidence to that effect, 58 nor does an unverified telegraphic despatch alleged to have been sent by the Bureau of Immigration at Washington, D. C., showing that an appeal in an immigration case has been dismissed constitute legal evidence that the appeal has in fact been dsposed of. 59 4. Sufficiency of Evidence in Determining Status. The preceding sections dealing with the evidence which may be presented for the purpose of establishing that the defendant in a particular case belongs to one of the classes declared exempt from its operation by the Chinese- exclusion acts, or is exempt altogether from the operation thereof by virtue of birth in the United States, have dealt with the subject of the evidence offered from the point of view of what proof is by statute available, or of how the fact at issue may be shown, rather than from that of the sufficiency of the evidence presented. It is now proposed to show whether or not, on a given state of facts, the status sought to be established is shown to exist. This involves at the outset an examination of the meaning of the terms “laborer” and “merchant” as used in the Chinese exclusion acts. Where the statute itself provides a definition its terms must be strictly followed, except of course where a literal interpretation of the same would give results which Con- s$Ex parte Long Lock, 173 Fed. 208. 57 Ah How v. United States, 193 U. S. 65, 48 Law Ed. 619 ; Ex parte Lung Foot, 174 Fed. 70. 68United States v. Louie Lee, 184 Fed. 651. 59 in re Di Simone, 108 Fed. 942 ; reversed on confession of error. 604 The Exclusion and Expulsion of Aliens. gress plainly could not have contemplated, or which would obviously defeat the purposes of the act; and where no statutory definition appears the terms must, as a general rule, be deemed to have been used in their ordinary sense. (A.) Laborer Status. The term “laborer” was never defined in the Chinese exclusion acts until the passage of the law of November 3, 1893. The general distinction constantly maintained has been that which exists between “laborers” and “per- sons other than laborers.” Those belonging to this second general class are designated by Article II of the Treaty of 1880 as “teachers, students, merchants, or Chinese sub- jects proceeding to the United States from curiosity,” and later by Article III of the Treaty of 1894 as “Chinese sub- jects being officials, teachers, students, or travellers for curiosity or pleasure, but not laborers.” It is true that Section 15 of the Act of 1882, as amended, states that “the words Chinese laborers wherever used in this act shall be construed to mean both skilled and unskilled laborers and Chinese employed in mining ;” but merely to provide that the word “laborers” should include special classes of laborers did not constitute a definition of the general term. Section 2 of the Act of 1893 provides “That the words ‘laborer’ or ‘laborers,’ wherever used in this act, or in the act to which this is an amendment, shall be construed to mean both skilled and unskilled manual laborers, includ- ing Chinese employed in mining, fishing, huckstering, peddling, laundry-men, or those engaged in taking, drying or otherwise preserving shell or other fish for home con- sumption or exportation.” This definition, it will be noted, while more detailed and particular than that in the Act of 1882, is not exclusive in its terms. Moreover, it does not limit the meaning of the word “laborer” so as to Evidence. 605 except therefrom any persons who were laborers within the intent of those words as used in the treaty of 1880. 60 While the common and generally accepted meaning of the term “laborer” in this country may be said to involve the conception of the performance of manual labor to the exclusion of other pursuits, the term as used in the Chi- nese exclusion acts is given a far broader meaning by the courts. Shortly before the Act of 1893 went into effect, a United States District Court held that the words “Chinese laborers,” as used in the then existing law on the subject, had the same meaning as in the treaty with China; that, therefore, as far as regards exclusion, they included all Chinese persons not specifically enumerated as exempt; 61 and that it followed that highbinders and gamblers were laborers and subject to deportation under the Act of May 5, 1892. After the passage of the Act of 1893, it seems that an employment or business other than business partici- pated in by legitimate “merchants” which only incidentally involved the exercise of manual labor for its conduct placed the participator or owner thereof in the category of man- ual laborers. Thus where the evidence showed that the proprietor of a restaurant provided, prepared and cooked meat for his patrons, it was held sufficient to prove that he was a laborer ; 62 and the same result was reached where it was proven that a Chinese person acted at times as a cook, although his main occupation was that of mer- chant; 63 and where a Chinese person was shown to be a clerk employed in a store this was held sufficient to prove that he was a laborer within the prohibition of the act. 64 It was in vain that evidence was offered showing that Chi- nese persons had interests in mercantile concerns or were in fact regular members of such mercantile establish- 60 Lee Ah Yin v. United States, 116 Fed. 614. eiUnited States v. Ah Fawn, 57 Fed. 591. 62 In re Ah Yow, 59 Fed. 561. 63Lew Jim v. United States, 66 Fed. 953. 64 Mar Sing v. United States, 137 Fed. 875. 606 The Exclusion and Expulsion of Aliens. ments. If the evidence showed that they spent part of their time regularly in manual labor, even if done in con- nection with the business of the firm, the status of laborer was held thereby to be conclusively proven, unless it were also shown that the manual labor performed “was neces- sary to the conduct of such business.” 66 Even Chinese per- sons shown to be engaged in the business of keeping a res- taurant or lodging house have been held to be laborers; 66 although it has been stated that the mere fact of being a restaurant keeper does not necessarily make the owner a laborer ; 67 and where a Chinaman was a resident merchant prior to the passage of the exclusion acts and in possession of a merchant’s certificate providing for his re-entry after a temporary absence from the United States, it was held that he could not be regarded as unlawfully in this coun- try because he had become a restaurant-keeper and had no laborer’s certificate. 68 The fact that a Chinese person was an active teacher in a Sunday School, when shown in connection with the further fact that he was a laundry- man, was held insufficient to take him out of the status of a laborer ; 69 a decision which would seem to be fully justi- fied by the bare words of section 2 of the Act of 1893, which specify that laundrymen are laborers. The conception more or less common in the United States that one engaged in manual labor is employed for hire in the service of another — and this seems to have been the judicial conception thereof in some of the earlier cases 70 — has no application to the Chinese exclusion acts. Thus, where the proof showed that a Chinese person owned an interest of five hundred dollars in a mercantile establishment, but operated a fruit farm independently as 65Mar Bing Guey, 97 Fed. 576; Lai Moy v. United States, 66 Fed. 955. 66United States v. Chung Fi Koon, 83 Fed. 143; In re Ah Yow, 59 Fed. 961. 6720 Op. Atty.-Gen., 602, May 26, 1893. 6889 P. 525. 69/71 re Leung, 86 Fed. 303. 70/7J, re Ho King, 14 Fed. 724. Evidence. 607 a tenant thereof and sold the fruit grown there by his own labor, it was held sufficient to prove him a laborer under the exclusion acts ; 71 and this decision follows, in so far as it decides that work done on a fruit farm by the lessee thereof is sufficient to classify him as a laborer, an earlier decision holding that the performance of certain manual labor by the lessee in assisting his employees — to what ex- tent it did not appear — in gathering and caring for the fruit, was sufficient to establish his laborer’s status. As a Chinese woman takes, as has already been shown, the status of her husband, one marrying a Chinese laborer acquires thereby the same rights only to enter or remain in the United States as her husband holds ; 72 and it ap- pears that acts of prostitution by a Chinese woman con- stitute proof at least of her want of exempt status, and she is therefore to be held in the same category as a la- borer . 73 Similarly want of exempt status is proven by the fact that a Chinese slave girl was brought into this coun- try for purposes of prostitution by her master, from whom she later escaped ; 74 and this in spite of the fact of her mar- riage, subsequent to the escape, to a person registered in the United States as a Chinese laborer. There was, how- ever, considerable doubt as to the bona tides of the mar- riage. Proof of the fact that a Chinese merchant was impris- oned for a felony has been held sufficient to show that du- ring the time of his imprisonment he was a laborer, and consequently under the obligation of registering as such TiLew Quen Wo v. United States, 184 Fed. 685; and likewise when a Chinese person is acting as manager of a rice plantation on which he worked, belonging to an unincorporated company in which he claims an interest, but which company had no articles of incorporation or co-partner- ship in which his name appears, he is an employee of the company and therefore not a merchant, but a laborer. U. S. v. Cut Yong, Yol. 1, U. S. D. Ct. Hawaii, 104. 72 Case of the Chinese Wife (Ah Moy) 21 Fed. 785. 73 Lee Ah Yin v. United States, 116 Fed. 614. 7*United States v. Ah Sou, 138 Fed. 775. 608 The Exclusion and Expulsion of Aliens. under the Act of 1893 — an act the performance of which was manifestly impossible as his term of imprisonment ex- tended throughout the registration period. It must be conceded that it is somewhat difficult to conceive how du- ring that time he could justly be held to be unlawfully in the United States, if, as a merchant, he was, up to the time of his imprisonment, lawfully in the country. It would seem that no matter how desirable the elimination from the community of so undesirable a resident may have been, the fact that he was imprisoned could not in truth alter the fact of his being a merchant any more than it could affect his nationality; that by no subtlety of legal alchemy could imprisonment at hard labor evolve a la- borer from a merchant, and that for this reason alone his case would not seem to fall within the intent of the Act of 1893. The Court seems to have fallen into the same error as did the Circuit Court of Appeals in the Chu Chee case, 75 i. e., of overlooking the fact that status, meaning thereby what a man really is, is a pure question of fact; and that the mere circumstance that for some reason the person occupying the position cannot exercise it or is de- prived of certain rights enjoyed by others similarly cir- cumstanced, cannot operate to destroy a status which the incumbent has not surrendered or which has not ceased to exist by virtue of some positive provision of law. When the record of the United States commissioner be- fore whom certain Chinese persons were tried originally stated that “the proofs furnished in this case are suffi- cient to show that these three persons were engaged in business rather than in manual labor in 1894,” although later found engaged as laborers without certificates of residence, they were held not to be laborers. 76 A distinc- tion has been made between Chinese persons who were laundrymen whose regular business consisted in the manual labor necessary to conduct a laundry, and the pro- 75United States v. Chu Chee, 93 Fed. 797. 76Tom Hong v. United States, 193 U. S. 517, 48 Law Ed. 772. Evidence. 609 prietors thereof. Thus where the facts showed that the defendant was the owner and operator of various Chinese laundries, and may incidentally have ironed a shirt or cooked his own dinner, he was held not to be a laborer under the act. 77 And the fact that the manual labor shown to have been done by the defendant was merely house work for a firm of thirteen partners was held sufficient to class him as a domestic. 78 It is to be noted in this connection that while members of the exempt classes “together with their body servants’’ are to be allowed to go and come of their own accord by Article II of the Treaty of 1880, Ar- ticle III of the Treaty of 1894 contains no provisions as to domestics or servants. It may be further noted that the defendant in the case was a Chinese person who, up to some months before the passage of the Act of 1893, was a peddler, but who, at the time indicated, became a member of the firm in question, and was on that additional ground held not to be a laborer within the meaning of the act. Proof of facts which show that Chinese persons are en- gaged in a calling or profession participation in which is not specifically designated in the treaties as exempting them from exclusion has been held sufficient to show that they were not subject to exclusion as laborers. Thus where it is shown that Chinese persons present in or seek- ing admission to the United States are actors, 79 waiters on board ship, 80 or members of a ship’s crew, 81 it has been held that such persons are not laborers; but it is at the same time held that Chinese seamen have no right to enter the United States under the exclusion acts except on giving bond as required by the Rules of the Department of Com- 77TJnited States v. Kol Lee, 132 Fed. 136. 78United States v. Sun, 76 Fed. 450. 79 In re Ho King, 14 Fed. 724; contra In re Fook 65 Howard Practice, 404. 80 In re Ah Sing, 13 Fed. 286. 8iUnited States v. Jamieson, 185 Fed. 165; In re Moncan, 14 Fed. 44. 610 The Exclusion and Expulsion of Aliens. merce and Labor. 82 Except for the fact that it has been made the subject of judicial determination, 83 it would seem unnecessary to add that the wife and minor chifdren of Chinese merchants domiciled in the United States are not laborers within the meaning of the exclusion acts. It was held in an early decision 84 that a Chinese laborer, to be excludable under the Act of 1882, must be a subject of the emperor of China; but in interpreting the meaning of the term laborer as used in the Act of September 13, 1888, it was held that where the evidence shows that a Chinese person has emigrated from Hongkong, or is even a native of that colony, he is excludable under that act. 85 (B.) Mercantile Status. The Act of 1893 was the first of the Chinese-exclusion acts to provide a definition for the term “merchant;” but the act of 1882 had already designated the facts which, if contained in the certificate of identity required by section 6 thereof, were to constitute prima facie proof of the mercantile status of the holder. In addition to the facts to be shown by the certificate of every Chinese person other than a laborer, said act provided that the merchant’s certificate “shall, in addition to above requirements, state the nature, character and estimated value of the business carried on by him prior to and at the time of his applica- tion aforesaid : Provided that nothing in this act nor in said treaty ( 1880 ) shall be construed as embracing within the meaning of the word “merchant” hucksters, peddlers, or those engaged in taking drying or otherwise preserving shell or other fish for home consumption or exportation.” As already stated, the contents of the certificate were sub- ject to rebuttal by the authorities and, if the certificate did 82United States v. Crouch, 185 Fed. 907; United States v. Jamieson, 185 Fed. 165; United States v. Ah Foot, 183 Fed. 33; In re Jam, 101 Fed. 989. 83 In re Lee Yee Sing, 85 Fed. 635. s^United States v. Douglas, 17 Fed. 634. ssUnited States v. Foong King, 132 Fed. 107. Evidence. 611 not conform to the requirements, the holder was subject to exclusion on arrival, or if within the country, and basing his right to remain on the defective certificate, to deporta- tion. 86 Section 2 of the Act of 1893 defines to the exclusion of any other meaning the term “merchant” as used therein: “A merchant is a person engaged in buying and selling merchandise at a fixed place of business, which business is conducted in his name, and who, during the time he claims to be engaged as a merchant, does not engage in the per- formance of any manual labor, except such as is necessary in the conduct of his business as such merchant.” The section further provides that “Where an applica- tion is made by a Chinaman for entrance into the United States on the ground that he was formerly engaged in this country as a merchant he shall establish by the testimony of two credible witnesses other than Chinese the fact that he conducted such business as hereinbefore defined for at least one year before his departure from the United States, and that during such year he was not engaged in the per- formance of any manual labor except such as was neces- sary in the conduct of his business as such merchant, and in default of such proof shall be refused landing.” Buying and Selling Merchandise at a Fixed Place of Busi- ness. In order to prove a mercantile status a Chinese person arrested for deportation who claims to be a merchant must affirmatively show a fixed place of business, and such frequent sales of merchandise as entitle him to be con- sidered a merchant within the ordinary meaning of the term, or an actual or substantial interest in some firm of such merchants. 87 Thus, when it appears that the de- fendant was conducting the business of a merchant’s clerk in his own name as a merchant’s clerk, and was a mer- chant’s clerk; succeeded to the interest of his father, a seCheung Pang v. United States, 133 Fed. 392. STUnited States v. Lung Hong, 105 Fed. 188. 612 The Exclusion and Expulsion of Aliens. Chinese merchant in a Chinese mercantile concern, and was sent out by said firm to take charge of another busi- ness establishment, and owned a half interest in the firm, his mercantile status was held established. 88 “Which Business is Conducted in His Own Name” Where the evidence shows that a Chinese person was a merchant and a member of a mercantile firm up to the time when the stock was destroyed by fire, and that imme- diately thereafter he and his partner resumed and built up a business anew, the fact that his name does not appear in the firm name or in the partnership accounts is insuffi- cient to prove the absence of mercantile status. 89 It is enough if the evidence shows that business is carried on in the firm name, where this includes the name of the de- fendant. 90 The soundness of this view was questioned by the Circuit Court of Appeals in the case of Pin Kwan; 91 but the Supreme Court held in the case of Tom Hong v. United States 92 that the names of the partners need not appear in the firm style under which a Chinese grocery is conducted in order to constitute the partners merchants under the Act of 1893 ; and that when the fact of a mercantile partnership is proved by other facts, the partnership books are not essential to establish the fact of partnership. 93 “Does not Engage in the Performance of Any Manual Labor Except Such as is Necessary to the Conduct of His Business as Such Merchant.” Where the evidence showed that a Chinese person had owned interests in two mercantile firms and at the time of deportation proceedings still had an interest in one, 88 in re Chu Po j, 81 Fed. 826. 89Wong Fong v. United States, 77 Fed. 168, reversing 71 Fed. 283; Lee Kam v. United States, 62 Fed. 914. aoUnited States v. Wong Ah Gah, 94 Ted. 831. aiUnited States v. Pin Kwan, 100 Fed. 609. 92193 U. S. 517, 48 Law Ed. 772. 93And see United States v. Tan Sam Tao, 15 Phil. Rep. 592. Evidence. 613 but was not actively engaged in business, and bad a third interest in a restaurant of which he was head cook, and had provided himself with a laborer’s certificate, these facts were held insufficient to establish a mercantile status ; 94 and a Chinese person who spends half his time in cutting and sewing garments for sale by the firm of which he is a member is not a merchant within the meaning of the act; 95 nor is evidence showing that defendant worked as a servant in a boarding house and nailed up and deliv- ered boxes in a grocery store where he had no financial interest consistent with a claim of mercantile status. 96 It being under the act incumbent on Chinese persons who, on returning to the United States, allege that they are merchants, to furnish proof of the fact of the exist- ence of the mercantile status for a period covering at least one year before departure, this can be done only by proving that during that time the applicant for ad- mission was in fact a “merchant” as that term is defined in the Act of 1893. 97 Therefore, evidence which shows that during periods of varying length in the year prior to his departure for China, the applicant worked as a house servant for an old employer and engaged thereby in manual labor unconnected with his business as a mer- chant, is not sufficient to prove the status on which the claimed right of re-entry is based; 98 but w T here a Chinese merchant during the year antedating his visit to China was shown to have done no manual labor, except that for a short time he assisted in pickling shrimp and delivering them to customers, in connection with the business of a mercantile firm of which he was a member, these acts were held not to constitute manual labor within the meaning of the statute. 99 9