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Bradley

United States Supreme Court

112 U.S. 536

Chew Heong  v.  United States


This case comes before us upon a certificate of division in opinion upon questions that require a construction of the act of congress, approved May 6, 1882, c. 126, (22 St. 58,) entitled 'An act to execute certain treaty stipulations relating to Chinese,' commonly known as the Chinese restriction act,-and of the act amendatory thereof, approved July 5, 1884, c. 220, (23 St. 115.) The facts deemed important in the consideration of these questions, and as to which there is no dispute, are these: The plaintiff in error, Chew Heong, is a subject of the emperor of China, and a Chinese laborer. He resided in this country on the seventeenth of November, 1880, on which day commissioners plenipotentiary, upon the part of the United States and China, concluded, at Peking, a treaty containing articles in modification of former treaties between the same countries. 22 St. 826. He departed from the United States for Honolulu, in the Hawaiian kingdom, on the eighteenth of June, 1881, and remained there until September 15, 1884, when he took passage on an American vessel bound for the port of San Francisco. Arriving at that port on September 22, 1884, his request to be permitted to leave the vessel was denied, and he was detained on board, under the claim that the act of congress of May 6, 1882, as amended, forbade him to land within the United States. He was thereupon brought before the circuit court of the United States, for the district of California, upon a writ of habeas corpus. The United States attorney for that district, who was permitted to intervene in behalf of the government, objected to his discharge, and asked that such orders be made as would effect his removal from the country. It was held that he was not entitled to re-enter or to remain in the United States, and must be deported to the place whence he came, to-wit, Honolulu.

The questions certified involved the inquiry whether section 4 of the act approved May 6, 1882, as amended by that of July 5, 1884, prescribing the certificate which shall be produced by a Chinese laborer as the 'only evidence permissible to establish his right of re-entry' into the United States, is applicable to Chinese laborers who, residing in this country on November 17, 1880, departed by sea prior to May 6, 1882, and remained out of the United States till after July 5, 1884. In behalf of the plaintiff in error it is contended that he left for Honolulu with the right secured by treaty to re-enter the United States at his pleasure, subject only to such regulations and restrictions as did not substantially affect his enjoyment of that right; that this privilege does not depend upon his having procured, before he left the United States in 1881, a collector's certificate for which the law, at that time, made no provision; and, consequently, that his right to return, if questioned, must be determined by such evidence as is competent under the general principles of law. The contention on behalf of the government is that his admission into this country, upon evidence other than the certificate prescribed by the act of 1884, would be inconsistent with the intention of congress as manifested by the language of both the original and amendatory acts.

If, as claimed by plaintiff in error, the treaty of 1880, fairly interpreted, secured to him, at the time of his departure for Honolulu, the right to go from and return to the United States at pleasure, without being subjected to regulations or conditions affecting the substance of that right, the court should be slow to assume that congress intended to violate the stipulations of a treaty, so recently made with the government of another country. 'There would no longer be any security,' says Vattel, 'no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises.' Book 2, c. 12. And as sovereign nations, acknowledging no superior, cannot be compelled to accept any interpretation, however just and reasonable, 'the faith of treaties constitutes in this respect all the security of contracting powers.' Book 2, c. 17. 'Treaties of every kind,' says Kent, 'are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and are to be kept in the most scrupulous good faith.' 1 Kent, Comm. 174. A treaty that operates of itself without the aid of legislation is equivalent to an act of congress, and while in force constitutes a part of the supreme law of the land. Foster v. Neilson, 2 Pet. 314. Aside from the duty imposed by the constitution to respect 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 protected. And it would be wanting in proper respect for the intelligence and patriotism of a co-ordinate department of the government were it to doubt, for a moment, that these considerations were present in the minds of its members when the legislation in question was enacted.

With these observations, we proceed to consider whether the right claimed by the plaintiff is secured by treaty, and, if so, whether its recognition is inconsistent with the before-mentioned acts of congress.

Before referring to the treaty of 1880, it will be well to ascertain from those previously concluded between the United States and China, what were the relations of trade and commerce existing between their respective peoples. By the treaty of peace, amity, and commerce, concluded in 1858, citizens of the United States in China peaceably attending to their affairs, were placed on a common footing of amity and good-will with subjects of the latter country, entitled to receive and enjoy for themselves, and everything pertaining to them, the protection of the local authorities of government, who were required to defend them from insult or injury of any sort. Those residing or sojourning at any of the ports open to foreign commerce were permitted to rent houses and places of business, or hire sites on which they could themselves build houses, hospitals, churches, and cemeteries; to frequent certain designated ports and cities, and any other port or place thereafter, by treaty with other powers or with the United States, opened to commerce; to reside with their families and trade at such places, and to proceed at pleasure with their vessels and merchandise to and from said ports, or any of them; at each of said ports open to commerce, to import from abroad, and to sell, purchase, and export all merchandise of which the importation or exportation was not prohibited by the laws of China, subject to no higher duties than those paid by the most favored nation. By that treaty, also, any right, privilege, or favor, connected either with navigation, commerce, political, or other intercourse thereafter granted by China to the citizens of any nation, was at once to freely inure to the benefit of the United States, its public officers, merchants, and citizens. 12 St. 1025 et seq.

In the treaty concluded July 28, 1868, the governments of the United States and China recognized 'the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of free migration and emigration of their citizens and subjects, respectively, from one country to the other, for purposes of curiosity, of trade, or as permanent residents.' They therefore joined in reprobating any other than an entirely voluntary emigration for those purposes. By that treaty it was also provided that citizens of the United States visiting or residing in China, and Chinese subjects visiting or residing in the United States, should enjoy the same privileges, immunities, or exemptions in respect to travel or residence, and in respect of public educational institutions, as should be accorded to the most favored nation in the country in which they should be respectively visiting or residing. 16 St. 739.

This brings us to the treaty concluded November 17, 1880, which refers to the prior treaties of 1858 and 1868. To that treaty the senate gave its assent on May 5, 1881, and it was ratified by the president on the ninth of May, 1881. Its first three articles are as follows:

'Article 1. 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 threatens 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 absolutely 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 suspension of immigration, and immigrants shall not be subject to personal maltreatment or abuse.

'Art. 2. 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 subjects of the most favored nation.

'Art. 3. 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 protection, and to secure to them the same rights, privileges, immunities, and exemptions as may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty.' 22 St. 826.

It appears to the court that there can be no serious difficulty in ascertaining the object of these modifications of prior treaties. 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 permanent residents; but, in deference to the opinion of our government that the presence here 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 coming or residence, without absolutely prohibiting it; such limitation or suspension 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, immunities, and exemptions that are granted to citizens and subjects of the most favored nation. Those classes were: (1) Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants; (2) Chinese laborers who were in this country Chinese laborers who were in exercise, by these particular classes, 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. That the plaintiff in error belongs to one of these classes cannot be successfully disputed, since it is certified to us, and the fact must be so taken, that he is a Chinese laborer who was in this country on the seventeenth day of November, 1880. He was, therefore, entitled, by the provisions of the treaty, to return to, and remain in, the United States, unless, after his departure for Honolulu, congress withdrew the privilege which the treaty secured, and thereby precluded any recognition of it by the judiciary of this country. Whether such has been the effect of its legislation is the subject of our next inquiry.

The act of 1882, as amended, being too long for insertion here, has been printed in the margin, [2] and in such way as to indicate the additions and alterations made by the act of 1884. The words in italics were introduced by the latter act, while those in brackets were in the original, and were stricken out by the amendatory act. This legislation was enacted in execution of thetreaty, and because, in the opinion of the government of the United States, the coming of Chinese laborers endangered the good order of certain localities in this country. The first section, as amended, suspends their coming for 10 years, and declares it to be unlawful for any Chinese laborer to come from any foreign port or place, or, having so come, to remain within the United States. The second section, as amended, makes it a misdemeanor, punishable by fine, or by fine and imprisonment, for the master of any vessel to knowingly bring within the United States on such vessel, and land, or attempt to land, or permit to be landed, any such laborer from any foreign port or place. If these sections constituted the entire legislation in referene to the coming to this country of Chinese laborers, the court, under the established rules for the interpretation of statutes, would hold that they did not apply to Chinese laborers who, by their residence in the United States at the date of the last treaty, had acquired the right to go and come of their own free will, and to enjoy such privileges, immunities, and exemptions as were accorded here to citizens and subjects of the most favored nation. For 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, consequently, the court ought, if possible, to adopt that construction which recognized and saved rights secured by the treaty. The utmost that could be said, in the case supposed, would be that there was an apparent conflict between the mere words of the statute and the treaty, and that by implication the latter, so far as the people and the courts of this country were concerned, was abrogated in respect of that class of Chinese laborers to whom was secured the right to go and come at pleasure. But even in the case of statutes, whose repeal or modification involves no question of good faith with the government or people of other countries, the rule is well settled that repeals by implication are not favored, and are never admitted where the former can stand with the new act. Ex parte Yerger, 8 Wall. 105. In Wood v. U.S. 16 Pet. 362, Mr. Justice STORY, speaking for the court upon a question of the repeal of a statute by implication, said: 'That it has not been expressly or by direct terms repealed is admitted, and the question resolves itself into the narrow inquiry whether it has been repealed by necessary implication. We say, by necessary implication, for it is not sufficient to establish that subsequent laws cover some, or even all, of the cases provided for by it, for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of the new laws and those of the old, and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy.' In State v. Stoll, 17 Wall. 430, the language of the court was that 'it must appear that the latter provision is certainly and clearly in hostility to the former. If by any reasonable construction the two statutes can stand together, they must so stand. If harmony is impossible, and only in that event, the former law is repealed in part or wholly, as the case may be.' See, also, Ex parte Crow Dog, 109 U.S. 570; S.C.. 3 SUP. CT. REP. 396; Arthur v. Homer, 96 U.S. 140; Hartford v. U.S. 8 Cranch, 109.

When the act of 1882 was passed, congress was aware of the obligation this government had recently assumed, by solemn treaty, to accord to a certain class of Chinese laborers the privilege of going from and coming to this country at their pleasure. Did it intend, within less than a year after the ratification of the treaty, and without so declaring in unmistakable terms, to withdraw that privilege by the general words of the first and second sections of that act? Did it intend to do what would be inconsistent with the inviolable fidelity with which, according to the established rules of international law, the stipulations of treaties should be observed? These questions must receive a negative answer. The presumption must be indulged that the broad language of these sections was intended to apply to those Chinese laborers whose coming to this country might, consistently with the treaty, be reasonably regulated, limited, or suspended, and not to those who, by the express words of the same treaty, were entitled to go and come of their own free will, and enjoy such privileges and immunities as were accorded to the citizens and subjects of the most favored nation. These views find strong support in the third and fourth sections of the act.

The third section, as it originally stood, declared 'that the two foregoing sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, eighteen hundred and eighty, or who shall have come into the same before the expiration of ninety days next after the passage of this act, and who shall produce to such master before going on board such vessel, and shall produce to the collector of the port in the United States at which such vessel shall arrive, the evidence hereinafter in this act required, of his being one of the laborers in this section mentioned.' It is contended that provision was made in this clause only for Chinese laborers, of the two classes described, who should produce the certificate of identification required by the fourth section of the act; leaving those who could not produce it to rest under the prohibitions of the preceding sections. But thatconstruction is wholly inadmissible; for, apart from a violation of the treaty of 1880, which is involved in such a construction, it is inconceivable that congress would have announced its purpose not to include in the suspension for 10 years Chinese laborers who might come into the United States within 90 days immediately after the passage of the act of 1882, and, in the same act, have prohibited their entering this country unless they should produce a certificate which could have been furnished only to those who were here at the passage of that act, and left after it took effect.

But all basis for such a construction is removed by the amendment made in the third section by the act of 1884. The above clause as amended reads thus: 'That the two foregoing sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, eighteen hundred and eighty, or who shall have come into the same before the expiration of ninety days after the passage of the act to which this act is amendatory, nor shall said sections apply to Chinese laborers who shall produce to such master, etc., the evidence hereinafter in this act required, * * *' etc. The striking out of the word 'and,' in the third section of the original act, and inserting the words 'nor shall said sections apply to Chinese laborers,' are very significant. As amended, the third section wholly precludes the idea that the right to return to this country of those who were here at the date of the treaty, but were absent when congress legislated upon the subject of Chinese immigration, was to be incumbered with the condition, impossible to be performed, of producing a collector's certificate; for that section, as it stands, declares, without qualification, that the first and second sections shall not apply to those who were here at the date of the treaty. If a Chinese laborer who was here at the date of the treaty, and also when the act of 1882 was passed, desired again to leave the country, his right to return was made to depend upon his producing the certificate required by that act. And this was true, also, of a Chinese laborer, not here at the date of the treaty, who, having come within 90 days next after the original act was passed, desired to depart from the United States and return at some subsequent period.

Coming to the fourth section of the act, we find evidence of the most cogent nature of the intention of congress not to disregard that treaty. As it stood in the act of 1882, it was in these words: 'That for the purpose of properly identifying Chinese laborers who were in the United States on the seventeenth lay of November, eighteen hundred and eighty, or who shall have come into the same before the expiration of ninety days next after the passage of this act, and in order to furnish them with the proper evidence of their right to go from and come to the United States of their free will and accord, as provided by the treaty between the United States and China, dated November seventeenth, eighteen hundred and eighty, the collector of customs of the district from which any such Chinese laborer shall depart from the United States shall, in person or by deputy, go on board each vessel having on board any such Chinese laborer, and cleared, or about to sail, from his district for a foreign port, and on such vessel make a list of all such Chinese laborers, which shall be entered in registry books to be kept for that purpose, in which shall be stated the name, age, occupation, last place of residence, physical marks or peculiarities, and all facts necessary for the identification of each of such Chinese laborers, which books shall be safely kept in the custom-house; and every such Chinese laborer so departing from the United States shall be entitled to, and shall receive free of any charge or cost, upon application therefor, from the collector or his deputy, at the time such list is taken, a certificate signed by the collector or his deputy, and attested by his seal of office, in such form as the secretary of the treasury shall prescribe, which certificate shall contain a statement of the name, age, occupation, last place of residence, personal description, and facts of identification of the Chinese laborer to whom the certificate is issued, corresponding with the said list and registry in all particulars. In case any Chinese laborer, after having received such certificate, shall leave such vessel before her departure, he shall deliver his certificate to the master of the vessel, and if such Chinese laborer shall fail to return to such vessel before her departure from port, the certificate shall be delivered by the master to the collector of customs for cancellation. The certificate herein provided for shall entitle the Chinese laborer to whom the same is issued to return to and re-enter the United States upon producing and delivering the same to the collector of customs of the district at which such Chinese laborer shall seek to re-enter; and upon delivery of such certificate by such Chinese laborer to the collector of customs at the time of re-entry in the United States, said collector shall cause the same to be filed in the custom-house and duly canceled.'

This section was amended by the act of 1884 so as to require that the list made by the collector or his deputy, and entered in the registry books kept for that purpose, as well as the certificate issued by the collector to any Chinese laborer about to depart by vessel, should show-what the original act did not require-his individual, family, and tribal name in full, and when and where his occupation was followed. It was further amended so as to provide, in terms, that the certificate furnished to such laborer by the collector 'shall be the only evidence permissible to establish his right of re-entry.' In that section, as in the third, a certain class of Chinese laborers is described as those who were here on the seventeenth of November, 1880. Why was that date fixed, unless for the purpose of giving effect to the article of the treaty, which secured to Chinese laborers, who were in this country on that particular day, the same freedom, in respect of travel and intercourse, that was accorded to the citizens and subjects of the most favored nation? Congress certainly did not overlook, much less intend to ignore, the stipulations of the treaty, or question their scope or effect; for the fourth section, referring to Chinese laborers who were here on the seventeenth day of November, 1880, expressly recognizes the fact that the treaty of that date gave them 'the right to go from and come to the United States.

Now, the argument in behalf of the government is that, since congress made provision for certificates to be furnished to those who were entitled to demand them, it did not intend to recognize the right to return of any Chinese laborer who, being in the United States at the date of the treaty, was not here when the act of 1882 was passed. Assuming, always, that there was a purpose, in good faith, to abide by the stipulations of the treaty, this argument necessarily implies 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 continuously until the original act was passed, or who had returned by the latter date; in other words, that a Chinese laborer who was here on the seventeenth of November, 1880, lost the right to return, so far as that right was secured by treaty, if he left at any time-no matter for what purpose or for how brief a period-prior to, and had not returned before, the passage of the act of 1882.

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 return, of his own free will, without being subjected to burdens or regulations that materially interfere with its enjoyment. The legislative enactments in question should receive such a construction, if possible, as will save that right, while giving full effect to the intention of congress. That result can be attained consistently with recognized rules of interpretation. Lex non intendit aliquid impossibile is a familiar maxim of the law. The supposition should not be indulged that congress, while professing to faithfully execute treaty stipulations, and recognizing the fact that they secured to a certain class the 'right to go from and come to the United States,' intended to make its protection depend upon the performance of conditions which it was physically impossible to perform. 'Besides,' said this court in U.S. v. Kirby, 7 Wall. 486, 'general terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.' See, also, Carlisle v. U.S. 16 Wall. 153. So, in Perry v. Skinner, 2 Mees. & W. 471, it was said: 'The rule by which we are to be guided is to look at the precise words, and to construe them in their ordinary sense, unless it would lead to absurdity or manifest injustice; and if it should, so to vary them as to avoid that which certainly could not have been the intention of the legislature. We must put a reasonable construction upon their words.' Lake Shore Ry. Co. v. Roach, 80 N. Y. 339; Com. v. Kimball, 24 Pick. 370; Campbell's Case, 2 Bland, 209; Sedg. St. & Const. Law, 191. What injustice could be more marked than, by legislative enactment, to recognize the existence of a right by treaty to come within the limits of the United States, and, at the same time, to prescribe, as the only evidence permissible to establish it, the possession of a collector's certificate that could not possibly have been obtained by the person to whom the right belongs? Or, to prevent the re-entry of a person into the United States upon the ground that he did not, upon his arrival from a foreign port, produce a certain certificate, under the hand and seal of a collector, and upon forms prescribed by the secretary of the treasury, which neither that nor any other officer was authorized or permitted to give prior to the departure of such person from this country? Or what incongruity is more evident than to impose upon a collector the duty of going on board of a vessel about to sail from his district for a foreign port, and making and recording a list of its passengers of a particular race, showing their individual, family, and tribal names in full, their age, occupation, last place of residence, physical marks and peculiarities, when the collector? These questions suggest law passed which imposed that duty on the collector? These questions suggest the consequences that must result if it is held that congress intended to abrogate the treaty with China, by imposing conditions upon the enjoyment of rights secured by it which are impossible of performance.

But there is another view which tends to show the unsoundness of the construction upon which the government insists. It is this: If Chinese laborers who were here at the date of the treaty, or who came within 90 days next after the passage of the act of 1882, being out of the country when the act of 1884 was passed, can re-enter only upon producing the certificate required by the latter act, then congress must have intended to exclude even those who were in this country at the time the act of 1882 was passed, and who, upon going away, received the certificate mentioned in it; for the certificate prescribed by the act of 1882 is not the certificate prescribed by that of 1884; they differ in several particulars; and yet, if the act of 1884 is to be taken literally, all Chinese laborers are excluded who do not produce the very certificate mentioned in it. The original act expressly provides that the certificate prescribed therein 'shall entitle the Chinese laborer to whom the same is issued to return to and re-enter the United States, upon producing and delivering the same' to the collector of the district at which he seeks to re-enter. Congress did not intend, by indirection, to withdraw from those who received and relied upon the certificate mentioned in that act the privilege of returning, simply because they did not (and could not) produce the certificate required by the amendatory act, passed during their rightful absence. Those who left the country with certificates under the original act were entitled to return upon the production of those certificates. If, then, the act of 1884 did not defeat the rights given by that of 1882, it follows that there are Chinese laborers who, having been in the United States prior to July 5, 1884, may re-enter without producing the certificate required by the act of the latter date; and so the argument that congress intended to exclude from the country Chinese laborers of every class who did not produce the certificate prescribed by the act of 1884, fails in respects essential to sustain the judgment below. A construction of the original and amendatory acts which saves the rights of the plaintiff in error rests upon precisely the same grounds as does a construction of the amendatory act which saves the rights of those obtaining certificates under the original act, who did not seek to re-enter the country until after the act of 1884 was passed.

There are other sections of the act of congress upon which, it was suggested in argument, the judgment below could be sustained. Some stress is laid upon the fifth section, which provides that 'any Chinese laborer mentioned in section four of this act, being in the United States and desiring to depart from the United States by land, shall have the right to demand and receive, free of charge or cost, a certificate of identification similar to that provided for in section four of this act to be issued to such Chinese laborers as may desire to leave the United States by water; and it is hereby made the duty of the collector of customs of the district next adjoining the foreign country to which said Chinese laborer desires to go, to issue such certificate, free of charge or cost, upon application by such Chinese laborer, and to enter the same upon registry books to be kept by him for the purpose, as provided for in section four of this act.' The argument, based upon this section, is that the phrase 'being in the United States' indicates a purpose to exclude all Chinese laborers not in the United States at the date of the original act In our judgment, that phrase throws light upon the true meaning of the fourth section, in this: that, as the fifth section prescribes a certificate for those 'being in the United States' who desired to depart by land, so the fourth section prescribed a certificate for those being in the United States who desired to depart by water. In each case the provision is for those who are rightfully here, and therefore have an opportunity to demand and receive the required certificate, and not for those who are protected by the treaty, but who, being absent from the country, when the law was enacted making provision for a collector's certificate, could not demand and receive it. Neither section purports to defeat previously-existing rights by imposing conditions upon their enjoyment which cannot be satisfied.

It is also said, in support of the judgment, that the sixth section is significant, in that it prescribes the mode for the coming to this country of Chinese persons, 'other than a laborer who may be entitled by said treaty and this act to come within the United States,' but fails to provide the means for the return and identification of Chinese laborers who were entitled by the treaty to return, but who were out of the country when the act of congress was passed. But this argument, like the one just alluded to, only proves that congress, while making provision for the coming of persons who were entitled to come, other than laborers, omitted to make special provision in reference to the latter, and, consequently, left them to stand upon their rights as secured by the treaty, and, if their right to enter the United States was questioned, to prove in some way, consistent with the general principles of law, that they belonged to the class entitled to go and come. Some reliance was also placed upon the implication arising from that clause of the twelfth section which declares that 'no Chinese person shall be permitted to enter the United States by land, without producing to the proper officer of customs the certificate in this act required of Chinese persons seeking to land from a vessel.' We do not perceive that any argument based upon these words meets the view that the act of congress, in respect of Chinese laborers entitled to go and come, is inapplicable to those who were here at the date of the treaty, but, by reason of absence when the act of congress took effect, could not obtain the required certificate. If, however, the twelfth section should be held to forbid the entrance of Chinese persons of every class into this country, by land, except upon the certificate required by the fourth section, it would not follow that a Chinese laborer entitled by the treaty to go and come at pleasure, and who was out of the country when the act of congress was passed, could not re-enter byvessel, upon satisfactory evidence of his being here at the date of the treaty.

The entire argument in support of the judgment below proceeds upon the erroneous assumption that congress intended to exclude all Chinese laborers of every class who were not in the United States at the time of the passage of the act of 1882, including those who, like the plaintiff in error, were here when the last treaty was concluded, but were absent at the date of the passage of that act. We have stated the main reasons which, in our opinion, forbid that interpretation of the act of congress. To these may be added the further one, that the courts uniformly refuse to give to statutes a retrospective operation, whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature. In U.S. v. Heth, 3 Cranch, 413, this court said that 'words in a statute ought not to have a retrospective operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied;' and such is the settled doctrine of this court. Murray v. Gibson, 15 How. 423; McEwen v. Den, 24 How. 244; Harvey v. Tyler, 2 Wall. 347; Sohn v. Waterson, 17 Wall. 599; Twenty per cent. Cases, 20 Wall. 187. So far from the court being compelled, by the language of the act of congress, to give it a retrospective operation, the plain, natural, and obvious meaning of the words-interpreted with reference to the general scope and the declared purpose of the statute-utterly forbids the conclusion that there was any intention to impair or destroy rights previously granted. The Chinese laborer who, under the act of 1882, was entitled to return and re-enter the United States upon producing the certificate therein prescribed, and the Chinese laborer who, after the act of 1884 was passed, could re-enter the country only upon producing the certificate required by the latter act, is described as one 'to whom the same is issued.'

It would be a perversion of the language used to hold that such regulations apply to Chinese laborers who had left the country with the privilege, secured by treaty, of returning, but who, by reason of their absence when those legislative enactments took effect, could not obtain the required certificates. Statutory provisions which declare that a certificate shall be evidence, or the only evidence, of the right of the person 'to whom it is issued' to re-enter the United States, cannot, upon any sound rule of interpretation, be held to apply to one to whom it could not have been issued. A Chinese laborer, to whom a certificate was issued under the 538 only upon producing that certificate; one, to whom a certificate was issued under the act of 1884, is entitled to re-enter only upon producing such certificate; while the plaintiff in error, having left before any certificate was permitted to be issued, cannot be required to produce one before re-entering, because, having resided here on the seventeenth day of November, 1880, he was clearly entitled, under the express words of the treaty, to go from and return to the United States of his own free will,-a privilege that would be destroyed if its enjoyment depended upon a condition impossible to be performed. The recognition of that privilege is entirely consistent with existing legislation; for, by construing the original and amendatory acts, so far as they require the production of a collector's certificate by Chinese laborers who were in the United States on the seventeenth of November, 1880, as applicable only to those of that class who were here at the dates when those acts, respectively, took effect, no previously acquired rights are violated, and full effect is given to the expressed intention of congress to faithfully meet our treaty obligations. Thus, the legislation of congress and the stipulations of the treaty may stand together.

In accordance with these views, it is adjudged that the plaintiff in error is entitled to enter and remain in the United States. The first of the certified questions is, therefore, answered in the negative, and the second and third in the affirmative. The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.



NotesEdit

^2  CHINESE RESTRICTION ACT.

An Act to Execute Certain Treaty Stipulations Relating to Chinese, Approved May 6, 1882, as Amended July, 5, 1884.

Whereas, in the opinion of the government of the United States, the coming of Chinese laborers to this country endangers the good order of certain localities within the territories thereof; therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled:

Section 1. That from and after the [expiration of ninety days next after the] passage of this act, and until the expiration of ten years next after the passage of this act, the coming of Chinese laborers to the United States be, and the same is hereby, suspended; and during such suspension, it shall not be lawful for any Chinese laborer to come from any foreign port or place, or having so come [after the expiration of said ninety days] to remain within the United States.

Sec. 2. That the master of any vessel who shall knowingly bring within the United States on such vessel, and land, or attempt to land, or permit to be landed, any Chinese laborer, from any foreign port or place, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not more than five hundred dollars for each and every such Chinese laborer so brought, and may also be imprisoned for a term not exceeding one year.

Sec. 3. That the two foregoing sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November eighteen hundred and eighty, or who shall have come into the same before the expiration of ninety days next after the passage of the act to which this act is amendatory, [and] nor shall said sections apply to Chinese laborers, who shall produce to such master before going on board such vessel, and shall produce to the collector of the port in the United States at which such vessel shall arrive, the evidence hereinafter in this act required of his being one of the laborers in this section mentioned; nor shall the two foregoing sections apply to the case of any master whose vessel, being bound to a port not within the United States, shall come within the jurisdiction of the United States by reason of being in distress or in stress of weather, or touching at any port of the United States on its voyage to any foreign port or place: provided, that all Chinese laborers brought on such vessel shall not be permitted to land except in case of absolute necessity, and must depart with the vessel on leaving port.

Sec. 4. That for the purpose of properly identifying Chinese laborers who were in the United States on the seventeenth day of November, eighteen hundred and eighty, or who shall have come into the same before the expiration of ninety days next after the passage of the act to which this act is amendatory, and in order to furnish them with the proper evidence of their right to go from and come to the United States [of their free will and accord] as provided by the said act and the treaty between the United States and China, dated November seventeenth, eighteen hundred and eighty, the collector of customs of the district from which any such Chinese laborer shall depart from the United States

shall, in person or by deputy, go on board each vessel having on board any such Chinese laborer, and cleared or about to sail from his district for a foreign port, and on such vessel make a list of all such Chinese laborers, which shall be entered in registry books, to be kept for that purpose, in which shall be stated the individual, family, and tribal name in full, the age, occupation, when and where followed, last place of residence, physical marks or peculiarities, and all facts necessary for the identification of each of such Chinese laborers, which books shall be safely kept in the custom-house; and every such Chinese laborer so departing from the United States shall be entitled to and shall receive, free of any charge or cost upon application therefor, from the collector or his deputy, in the name of said collector, and attested by said collector's seal of office, at the time such list is taken, a certificate, signed by the collector or his deputy, and attested by his seal of office, in such form as the secretary of the treasury shall prescribe, which certificate shall contain a statement of the individual, family, and tribal name in full, age, occupation, when and where followed [last place of residence, personal description, and facts of identification] of the Chinese laborer to whom the certificate is issued, corresponding with the said list and registry in all particulars. In case any Chinese laborer, after having received such certificate, shall leave such vessel before her departure, he shall deliver his certificate to the master of the vessel; and if such Chinese laborer shall fail to return to such vessel before her departure from port, the certificate shall be delivered by the master to the collector of customs for cancellation. The certificate herein provided for shall entitle the Chinese laborer to whom the same is issued to return to and re-enter the United States upon producing and delivering the same to the collector of customs of the district at which such Chinese laborer shall seek to re-enter, and said certificate shall be the only evidence permissible to establish his right of re-entry; and upon delivering of such certificate by such Chinese laborer to the collector of customs at the time of re-entry into the United States, said collector shall cause the same to be filed in the custom-house and duly canceled.

Sec. 5. That any Chinese laborer mentioned in section four of this act, being in the United States, and desiring to depart from the United States by land, shall have the right to demand and receive, free of charge or cost, a certificate of identification similar to that provided for in section four of this act to be issued to such Chinese laborers as may desire to leave the United States by water; and it is hereby made the duty of the collector of customs of the district next adjoining the foreign country to which said Chinese laborer desires to go, to issue such certificate, free of charge or cost, upon application by such Chinese laborer, and to enter the same upon registry books, to be kept by him for the purpose, as provided for in sect ion four of this act.

Sec. 6. That in order to the faithful execution of [articles one and two of the treaty in] the provisions of this act, [before mentioned,] every Chinese person, other than a laborer, who may be entitled by said treaty [and] or this act to come within the United States, and who shall be about to come to the United States, shall obtain the permission of and be identified as so entitled by the Chinese government, or of such other foreign government of which at the time such Chinese person shall be a subject, in each case [such identity] to be evidenced by a certificate issued [under the authority of said] by such government, which certificate shall be in the English language, [or (if not in the English language) accompanied by a translation into English, stating such right to come,] and shall show such permission, with the name of the permitted person in his or her proper signature, and which certificate shall state the individual, family, and tribal name in full, title or official rank, if any, the age, height, and all physical peculiarities, former and present occupation or profession, when and where and how long pursued, and place of residence [in China] of the person to whom the certificate is issued, and that such person is entitled [conformably to the treaty in] by this act [mentioned] to come within the United States. If the person so applying for a certificate shall be a merchant, said 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 application as aforesaid: Provided, that nothing in this act nor in said treaty 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. If the certificate be sought for the purpose of travel for curiosity, it shall also state whether the applicant intends to pass through or travel within the United States, together with his financial standing in the country from which such certificate is desired. The certificate provided for in this act, and the identity of the person named therein, shall, before such person goes on board any vessel to proceed to the United States, be vised by the indorsement of the diplomatic representatives of the United States in the foreign country from which said certificate issues, or of the consular representative of the United States of the port or place from which the person named in the certificate is about to depart; and such diplomatic representative or consular representative whose indorsement is so required, is hereby empowered, and it shall be his duty, before indorsing such certificate as aforesaid, to examine into the truth of the statements set forth in said certificate, and if he shall find, upon examination, that said or any of the statements therein contained are untrue, it shall be his duty to refuse to indorse the same. Such certificate, vised as aforesaid, shall be prima facie evidence of the facts set forth therein, and shall be produced to the collector

of customs [or his deputy] of the port in the district of the United States at which the person named therein shall arrive, and afterwards produced to the proper authorities of the United States whenever lawfully demanded, and 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 stated therein disproved by the United States authorities.

Sec. 7. That any person who shall knowingly and falsely alter or substitute any name for the name written in such certificate, or forge any certificate, or knowingly utter any forged or fraudulent certificate, or falsely personate any person named in any such certificate, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not exceeding one thousand dollars, and imprisoned in the penitentiary for a term of not more than five years.

Sec. 8. That the master of any vessel arriving in the United States from any foreign port or place, shall, at the same time he delivers a manifest of the cargo, and if there be no cargo, then at the time of making a report of the entry of the vessel pursuant to law, in addition to the other matters required to be reported, and before landing or permitting to land any Chinese passengers, deliver and report to the collector of customs of the district in which such vessel shall have arrived, a separate list of all Chinese passengers taken on board of his vessel at any foreign port or place, and all such passengers on board the vessel at that time. Such list shall show the names of such passengers (and if accredited officers of the Chinese or of any other foreign government, traveling on the business of that government, or their servants, with a note of such facts) and the names and other particulars, as shown by their respective certificates; and such list shall be sworn to by the master in the manner required by law in relation to the manifest of the cargo. Any [willful] refusal or willful neglect of any such master to comply with the provisions of this section shall incur the same penalties and forfeiture as are provided for a refusal or neglect to report and deliver a manifest of the cargo.

Sec. 9. That before any Chinese passengers are landed from any such vessel the collector or his deputy shall proceed to examine such passengers, comparing the certificates with the list and with the passengers, and no passenger shall be allowed to land in the United States from such vessel in violation of law.

Sec. 10. That every vessel whose master shall knowingly violate any of the provisions of this act shall be deemed forfeited to the United States, and shall be liable to seizure and condemnation in any district of the United States into which such vessel may enter or in which she may be found.

Sec. 11. That any person who shall knowingly bring into or cause to be brought into the United States by land, or who shall [knowingly] 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 misdemeanor, and shall, on conviction thereof, be fined in a sum not exceeding one thousand dollars, and imprisoned for a term not exceeding one year.

Sec. 12. That no Chinese person shall be permitted to enter the United States by land without producing to the proper officer of customs the certificate in this act required of Chinese persons seeking to land from a vessel, and any Chinese person found unlawfully within the United States shall be caused to be removed therefrom to the country from whence he came, [by direction of the president of the United States,] and at the cost of the United States, after being brought before some justice, judge, or commissioner of a court of the United States, and found to be one not lawfully entitled to be or remain in the United States; and in all such cases, the person who brought or aided in bringing such person to the United States shall be liable to the government of the United States for all necessary expenses incurred in such investigation and removal; and all peace officers of the several states and territories of the United States are hereby invested with the same authority as a marshal or United States marshal in reference to carrying out the provisions of this act, or of the act of which this is amendatory, as a marshal or deputy marshal of the United States, and shall be entitled to like compensation, to be audited and paid by the same officers. And the United States shall pay all costs and charges for the maintenance and return of any Chinese person having the certificate prescribed by law as entitling such Chinese person to come into the United States, who may not have been permitted to land from any vessel by reason of any of the provisions of this act.

Sec. 13. That this act shall not apply to diplomatic and other officers of the Chinese, or other governments, traveling upon the business of that government, whose credentials shall be taken as equivalent to the certificate in this act mentioned, and shall exempt them and their body and household servants from the provisions of this act as to other Chinese persons.

Sec. 14. That hereafter no state court or court of the United States shall admit Chinese to citizenship, and all laws in conflict with this act are hereby repealed.

Sec. 15. That the provisions of this act shall apply to all subjects of China and Chinese, whether subjects of China or any other foreign power, and the words 'Chinese laborers,' wherever used in this act, shall be construed to mean both skilled and unskilled laborers and Chinese employed in mining.

Sec. 16. That any violation of any of the provisions of this act, or of the act of which this is amendatory, the punishment of which is not otherwise herein provided for, shall be deemed a misdemeanor, and shall be punishable by a fine not exceeding one thousand dollars, or by imprisonment for not more than one year, or both such fine and imprisonment.

Sec. 17. That nothing contained in this act shall be construed to affect any prosecution or other proceeding, criminal or civil, begun under the act of which this is amendatory; but such prosecution or other proceeding, criminal or civil, shall proceed as if this act had not been passed.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).