Chew Heong v. United States/Dissent Bradley
I concur with Mr. Justice FIELD in dissenting from the judgment of the court in this case. It seems to me that both the act of 1882 and the act of 1884, when carefully examined, require that a Chinese laborer should present the certificate which those laws prescribe in order to be entitled to the privilege of landing or coming into the territory of the United States.
By the treaty with China, adopted November 17, 1880, (but not proclaimed until October, 1881,) it was agreed that the United States might limit or suspend the coming of Chinese laborers into, or their residence in, the United States; but it was provided that those who were then in the country should be allowed to go and come of their own free will and accord. The act of May 6, 1882, prohibited their coming into the country for 10 years after the expiration of 90 days from that date; but exempted from the prohibition those who were in the United States at the date of the treaty, (November 17, 1880,) or who should have come into the same before the expiration of 90 days from the passage of the act, and should produce the evidence, required by the act, of being in the excepted class. This evidence was a certificate of identification (analogous to a passport) to be given to any laborer leaving the country and desirous of returning, by the collector of the port from which he sailed. Without such a certificate he was not permitted to return to the United States. Of course, those who had already left the country before the law was passed could not have such certificates, and their condition is what produces the controversy. From the supposed hardship of their case the circuit courts of the United States gave a construction to the law which let them come in on parol proof of their former residence here. This was calculated to produce great abuses, for Chinese of the lower class have little regard for the solemnity of an oath. Congress passed another act, July 5, 1884, amendatory of the first act, by which it was declared (section 4) that the 'said certificate shall be the only evidence permissible to establish his right of re-entry,' (referring to the person who should receive such a certificate;) and that masters of vessels arriving at any port with Chinese on board, should, before they would be permitted to land, deliver to the collector a list exhibiting their names and other particulars as shown by their respective certificates.
But the exemption clause of this act, (section 3,) declaring who should be exempted from the prohibition to come into the United States, by some inadvertence was expressed in the disjunctive, namely, that the act should not apply to those who were in the United States on the seventeenth of November, 1880, or who should have come into the same before the expiration of 90 days from the passage of the act of 1882, nor to those who should produce the certificate before mentioned. The whole tenor of the act shows that this was an inadvertent expression, and that it should have been, (as in the act of 1882,) 'and who should produce the certificate, etc.,' which, by the familiar rule of construction for changing 'or' into 'and,' and vice versa, is admissible, and in this case is required to prevent a palpable incongruity. When those are exempted who were here in November, 1880, or came here before the expiration of 90 days from the passage of the act of 1882, it would be incongruous to add, as an additional and separate class, those who should present a certificate, for no others could get a certificate. This incongruity, as well as the general tenor of the act, make it clear that the CLAUSE OF EXEMPTION SHOULD BE READ CONJUNCTIVELY AS IN THE ACT OF 1882. and, taking the whole act together, it seems to me perfectly clear that it requires a certificate in all cases. By the twelfth section it is declared that no Chinese person shall be permitted to enter the United States by land without producing to the proper officer of customs the certificate required of those seeking to land from a vessel, showing that no exceptions were to be made, but that every one coming into the country, in whatever way, or by whatever route, must have a certificate.
It may be that this view of the law makes it conflict with the treaty, though Justice FIELD has shown strong reasons to the contrary; but whether it does so or not, I think it is the true construction, and the rule is now settled that congress may, by law, overrule a treaty stipulation; although, of course, it should not be done without strong reasons for it, and an act of congress should not be construed as having that effect unless such be its plain meaning. Thinking, as I do, that the act in question cannot be fairly construed in a different sense from that which I have indicated, I cannot concur in the judgment of the court.