Fong Yue Ting v. United States

149 U.S. 698, 13 S. Ct. 1016, 37 L. Ed. 905, 1893 U.S. LEXIS 2340

• Court: Supreme Court of the United States
• Decided: May 15, 1893
• Docket: Nos. 1,345, 1,346, 1,347
• Status: Published

Opinions

Mr. Justice Gray,

after stating the facts, delivered the opinion of the court.

The general principles of public law which lie at" the foundation of these cases are clearly established by previous judgments of this court, and by the authorities therein referred to.

In the recent case of Nishimura Ekiu. v. United States, 142 U. S. 651, 659, the court, in sustaining the action of the executive department, putting in force an act of Congress for the exclusion of aliens, said : “ It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States, this power is vested in the national government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs t'o the political department of the government, and may be exercised either through treaties made by the President and Senate, or 'through statutes enacted by Congress.”

The same views-were more fully expounded in the earlier case of Chae Chan Ping v. United States, 130 U. S. 581, in which the validity of a former act of Congress, excluding Chinese laborers from the United States, under the circumstances therein stated, was affirmed.

In the elaborate opinion delivered by Mr. Justice Field, in behalf of the court, it was said : “ Those laborers are not citizens of the United States; they are aliens. That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would bé to that extent subject to the control of another power.” “ The United States, in their relation to foreign countries- and their subjects or citizens, are one nation, invested with powers -which belong to independent nations, the exercise of which can be Invoked’ for the maintenance of its absolute independence afid security throughout its entire territory.” . 130 U. S. 603, 604.

It was also said, repeating the language of Mr.’ Justice Bradley in Knox v. Lee, 12 Wall. 457, 555 : “ The United States is not only a government, but it is a national government, and the only government in this country that has the character of-nationality . It is invested with power over all the foreign relations of the country, war, péace, and negotiations and intercourse with other nations; all of which are forbidden to the state governments.” 130 U. S. 605. And it was added: “For local interests the several States of the Union exist; but for international purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.” 130 U. S. 606.

The court then went on to say: “ To preserve its independence, and give security' against foreign aggression • and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determination, so far as the subjects affected are concerned, is necessarily conclusive upon all its departments and officers. If, therefore, the government of the Uuited States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with, us, to be dangerous to - its peace and security, their exclusion is not to be stayed 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 necessity 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 must, also determine it in the other. In both cases, its determination is conclusive upon the judiciary. If the government of the country <?f which the foreigners excluded are subjects is dissatisfied with this action, it can make complaint to the executive head of our government, or. resort to any other measure which, in its judgment, its interests or dignity may demand; and there lies its only remedy. The power of the government to exclude foreigners from the country, whenever, in its judgment, the public interests require such exclusion, has been asserted in repeated instances, and never denied by the executive or legislative departments.” 130 U. S. 606, 607. This statement was supported by many citations from the diplomatic correspondence of successive Secretaries of State, collected in Wharton’s International Law Digest, § 206.

The right of a nation 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.

This is clearly affirmed in dispatches referred to by the court in Chae Chan Ping’s case. In 1856, Mr. Marcy wrote : “ Every society possesses the undoubted right to determine who shall compose its members, and it is exercised by all nations, both in peace and war¡ A memorable- example of the exercise of this power in time of peace was the -passage, of the alien law of the United States in the year 1798.” In 1869, Mr. Fish wrote : “ The control of the people within its limits, and the right to expel from its territory persons who are dangerous to the peace of the State, are too clearly within the essential attributes of sovereignty to be seriously contested.” Wharton’s International Law Digest, §206; 130 U. S. 607.

The statements - of leading commentators on the law of nations are to the same effect.

Vattel says: “ Every nation has.the right to refuse to admit a foreigner into the country, when he cannot enter without putting the nation in evident danger, or doing it a manifest injury. What it owes to itself, the care, of its own safety, gives it this right; and in yirtue of its natural liberty, it belongs to the nation to judge whether its circumstances will or Will not justify the admission of the foreigner.” “ Thus, also, it has a right to send them elsewhere, if it. has just cause to fear that they will corrupt the manners of the citizens ,* that. they will create religious' disturbances, or occasion any other disorder, contrary to 'the public safety. In a word, it has a. right, and is even obliged,.in this respect, to follow the rules-•which prudence dictates.” Vattel’s Law of Nations, lib. 1, c. 19, §§ 230, 231.

Ortolan says: “ The government of each state has always-the right to compel foreigners who are found within its territory to go away, by having them taken to the frontier.. This-right is based on the fact that, the foreigner not making-part of the nation, his individual reception into the territory is matter of pure permission, of- simple tolerance, and creates-no obligation. • The exercise of this right may be subjected,, doubtless, to certain forms by the domestic laws of each countrybut the right exists none the less, universally recognized and put in force. In France, no special form is now prescribed in this matter; the exercise of this right of expulsion is wholly left to the executive power.” Ortolan, Diplomatie de la Mer, lib. 2, c. 14, (4th ed.) p. 297.

Phillimore says“ It is a received', maxim of international law, that the government of a state may prohibit the entrance of strangers into the country, and may therefore regulate the conditions under which they shall be allowed to-remain in it, or may require and compel their departure from it.” 1 Phillimore’s International Law, (3d ed.) c. 10, § 220.

Bar says : “ Banishment and extradition must not be confounded. The former is simply a question of expediency and. humanity, since no state is bound to' receive ah foreigners, although, perhaps, to exclude all would be to say good-bye to ,the international union of all civilized states.; and although in some states, such'as England, strangers can only be expelled by means of special acts, of the legislative power, ho state has renounced its right to expel them, as is shown by the alien bills which the government of England has at times used to-invest itself with the right of expulsion.” “ Banishment is. regulated by rules of expediency and humanity, and is a. matter for the police óf the state. No doubt the police can apprehend any foreigner who refuses to • quit the country in spite of authoritative orders to do so, and convey him to the frontier.” Bar’s Internationa Law, (Gillespie’s ed. 1883) 708 note* 711.

In the passages just quoted' from Gillespie’s translation of Bar, “banishment” is evidently used in the sense of,expulsion or deportation by the political authority on the ground of expediency, and not in the sense of transportation or exile by way of. punishment for crime. Strictly speaking, “ transportation,” “ extradition ” and. “ deportation,” although each has the effect of removing a person from the country, are different things, and have different purposes. “. Transportation ” is by way of punishment of one convicted of an offence against the laws of the country. “Extradition” is the surrender to another country of one accused of an offence against its laws, there to bé tried, and, if found guilty, punished. “ Deportation ” 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 under those - of the country to which he is taken.

In. England," the' only question that has ever been made-iregard to the power to expel aliens has been whether it could be exercised by the King without the consent of Parliament.. It was formerly exercised by the King, but in later times by Parliament, which passed several acts on the subject between 1793 and 1848. 2 Inst. 57; 1 Chalmers Opinions, 26; 1 Bl. Com. 260; Chitty on the Prerogative, 49; 1 Phillimore, c. 10, § 220. and note; 30 Parl. Hist. 157, 167, 188, 217, 229; 34 Hansard Parl. Deb. (1st series) 441, 445, 471, 1065-1071; 6 Law Quart. Rev. 27.

Eminent English- judges, sitting in the Judicial -Committee -of the.Privy Council, have gone very far in supporting the exclusion or expulsion, by the, executive authority of a colony, •of aliens having .no absolute right to enter .its territory or to remain therein.

In 1837, in a‘ case arising in the Island of Mauritius, which had been conquered- by Great Britain from Prance in 1810, .and in which the lay of Prance continued in force, Lord Lyndhurst, Lord Brougham and Justices Bosanquet and Erskine, although considering it a case of great hardship, sustained the validity of an order of the English governor, deporting a friendly alien who had long resided and carried on business in the island, and had enjoyed the privileges and. exercised the rights of a person duly domiciled, but who had. not, as required by the French law, obtained from the colonial government formal and express authority to establish a domicil there. In re Adam, 1 Moore P. C. 460.

In a recent appeal from a judgment of the Supreme Court of the Colony of Victoria, a collector of customs, sued by a Chinese immigrant for preventing him from landing in the colony, had pleaded a justification under the order of a colonial minister claiming to exercise an alleged prerogative of the Crown to exclude alien friends, and denied the right of a court of law to examine his action, on the ground that what he -had done was an act of state; and the plaintiff had demurred to the plea. Lord Chancellor Halsbury, speaking for-himself, for Lord Herschell (now Lord Chancellor) and for other lords, after deciding against the plaintiff on a question of statutory construction, took occasion to observe: “ The facts appearing on the record raise, quite apart from the statutes referred to, a grave question as to the plaintiff’s right to maintain the action. He can only do so if he can establish that-an alien has a legal right, enforceable by action, to enter British territory. .No authority exists for the proposition that an alien has any such right. Circumstances may occur in which the refusal to permit an alien to land might be such an interference with international comity as would properly giver rise to diplomatic remonstrance from the country of which he was a native; but it is quite another thing to assert that an alien, excluded from any part of her Majesty’s dominions by the executive government there, can maintain an action in a. British court, and raise such questions as were argued before their lordships on the present appeal—whether the proper officer for giving or refuging access to the country has been duly authorized.by his own colonial government, whether the colonial government has received sufficient delegated authority from the Crown to-exercise the authority which the Crown had a right to' exercise through the colonial government if properly communicated to it, and whether the Crown has the right without parliamentary authority to exclude an alien. Their lordships cannot assent to the proposition that an alien refused permission to enter British territory can, in an action in a British court, compel the decision of such matters as these* involving delicate and difficult constitutional questions affecting the respective rights of . the Crown and Parliament, and the relations of this country to her self-governing colonies. "When onpe it is admitted that there is no absolute and unqualified right of action on behalf of an alien refused admission to British territory, their lordships are of opinion that it would be impossible, upon the facts which the .demurrer admits, for an alien to maintain an action.” Musgrove v. Chun Teeong Toy, App. Cas. (1891) 272, 282, 283.

The right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, being an inherent and inalienable right of every sov-. ereign and independent nation, essential to its safety, its independence and its welfare, the question now before the court is whether the manner in which Congress has exercised this right in sections.b and 7 of the act of- 1892 is consistent with the Constitution.

The United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and to • make it effective. The only government of this country, which other nations recognize or treat with, is the government of the Union; and the only American flag known throughout the world is the flag of the United States.

The Constitution of the United States speaks with no uncertain sound upon this subject. That instrument, established by the people of the United States as the fundamental law of the land, has conferred upon the President the executive, power; has made him the- commander-in-chief of the army and navy; has authorized him; by and with the consent of the Senate, to make treaties, and to appoint ambassadors, public ministers and consuls; and has made it his duty to take care that the laws be faithfully executed. The Constitution has granted to Congress the- power to regulate commerce with, foreign nations, including the entrance of ships, the importation of goods and the bringing of persons into the ports of the United States; to establish a uniform rule of naturalization ; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations ; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces ; and to make all laws necessary and proper for carrying into execution these powers, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. And the several States are expressly forbidden to enter into any'treaty, alliance or confederation; to grant letters of marque and reprisal ; to enter into any agreement or compact with another State, or with a foreign power; or to engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

In exercising the great - power which the people of the United States, by establishing a written Constitution as the supreme and paramount law, have vested in this court, of determining, whenever the question is properly brought before it, whether the acts of the legislature or of the executive are consistent with the Constitution, it behooves the court to be careful that it does not undertake to pass upon political questions, the final decision of which has been committed by the Constitution to the other departments of the government.

As long ago said by Chief Justice Marshall, and since constantly maintained by this court: “ The sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be earned into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter< and spirit of the Constitution, are constitutional.”

“ "Where the law is not prohibited, and is really calculated to •effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.” McCulloch v. Maryland, 4 Wheat. 316, 421, 423; Juilliard v. Greenman, 110 U. S. 421, 440, 450; Ex parte Yarbrough, 110 U. S. 651, 658; In re Rapier, 143 U. S. 110, 134; Logan v. United States, 144 U. S. 263, 283.

The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed Ly the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene.

In Nishimura Ekiu s case, it was adjudged that, although Congress might, if -it saw fit, authorize the courts to investigate and ascertain the facts upon which the alien’s right to land was made by the statutes to depend, yet Congress might intrust the final determination of those facts to an executive officer, and that, if it did so, his’ order was due process of law, and no other tribunal, unless expressly authorized by law to do so, was at liberty to reexamine the evidence on which he acted, or to controvert its sufficiency. 142 U. S. 660.

The power to exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of' one and the same power.

The power of Congress, therefore, to expel, like the power to.exclude aliens, or. any specified class of aliens, from the' country, may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien’s right to be in the country has been made by Congress to depend.

Congress, having the right, as it may .see' fit, to expel aliens of a particular class, or to permit them to remain, has undoubtedly the right to provide a system of registration and identification of the members of that class within the country, and to take all proper means to carry out the system which it provides.

It is no new thing for the law-making power, acting either through treaties made by the President and Senate, or by the more common method of acts ,.of Congress, to submit the decision of questions, not necessarily of judicial cognizance," either to the final determination of' executive officers, or to the decision of such officers in the first instance, with such opportunity for judicial review of their action as Congress may see fit to authorize or permit.

For instance, the surrender, pursuant to treaty stipulations, of persons residing or found in this country, and charged with crime in another, may be made by the executive authority of the President alone; when no provision has been made by treaty or by statute for an examination of the case by a. judge or magistrate. Such was the case of Jonathan Robbins, under article 27 of the Treaty with Great Britain of 1794, in which the President’s power in this regard was demonstrated in the masterly and conclusive argument of John Marshall in the House of Representatives. 8 Stat. 129; Wharton’s State Trials, 392; Bee, 286; 5 Wheat, appx. 3. But provision may be made, as it has been by later acts of Congress, for a preliminary examination before a judge or commissioner; and in such case the sufficiency' of the evidence on which he acts cannot be reviewed by any other tribunal, except as permitted by statute. Act of August 12, 1848, c. 167, 9 Stat. 302; Rev. Stat. §§ 5270-5274; Ex parte Metzger, 5 How. 176; Benson v. McMahon, 127 U. S. 457; In re Oteiza, 136 U. S. 330.

,_So claims to recover back duties illegally exacted on imports may, if Congress so provides, be finally determined by the Secretary of the Treasury. Cary v. Curtis, 3 How. 236; Curtis v. Fiedler, 2 Black, 461, 478, 479; Arnson v. Murphy, 109 U. S. 238, 240. But Congress may, as it did for long periods, permit them to be tried by suit against the collector of customs. Or it may, as by the existing statutes, provide for their determination by a board of general appraisers, and allow the decisions of that board to be reviewed by the courts in such particulars only as may be prescribed by law. Act of June 10, 1890, c. 407, §§ 14, 15, 25, 26 Stat. 137, 138, 141; In re Fassett, 142 U. S. 479, 486, 487; Passavant v. United States, 148 U. S. 214.

To repeat the careful and weighty words uttered by Mr. Justice Curtis, in delivering a unanimous judgment of this court upon the question what is due process of law: “ To avoid misconstruction upon so grave a subject, we think it proper to state that we do not consider Congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty ; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination. At the same time, there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.” Murray v. Hoboken Co., 18 How. 272, 284.

Before examining in detail the provisions of the act of 1892 now in question, it will be convenient to refer to the previous statutes, treaties and decisions upon this subject.

The act of Congress of July 27, 1868, d 249, (reenacted in sections 1999-2001 of the Revised Statutes,) began with these recitals: “ Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and Avhereas in the recognition of this principle this government-has freely received ¿migrants from all nations, and invested them with the rights of citizenship.” It then declared that any order or decision of .any officer of the United States to the contrary was inconsistent with the fundamental principles of this government; enacted that “all naturalized citizens of the United States, while in foreign states, shall be entitled to and shall receive from this government the' same protection of ^persons and property that is accorded to native-born citizens in like situations and circumstances; ” and made it the duty of the President to take measures to protect the rights in that respect of “ any citizen, of the United States.” 15 Stat. 223, 224. •

That act, like any other, is subject to alteration by Congress whenever the public welfare* requires, it. The right of protection which it confers is limited to citizens of the United States. Chinese persons not born in this country have never been recognized as citizens of the United States, nor authorized to become such under the naturalization laws. Rev. Stat. (2d ed.) §§ 2165, 2169; Acts of April 14, 1802, c. 28, 2 Stat. 153; May 26, 1824, c. 186, 4 Stat. 69; July 14, 1870, 254, § 7, 16 Stat. 256; February 18, 1875, c. 80, 18 Stat. 318; In re Ah Yup, 5 Sawyer, 155; Act of May 6, 1882, c. 126, § 14, 22 Stat. 61.

The treaty made between the United States and China on July 28, 1868, contained the following stipulations:

, “ Article V. The , United States of America 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 one country to the other, for purposes of curiosity, of trade, or as permanent' residents.”

“ Article VI. Citizens of the United States visiting or residing in China,” “ and reciprocally, Chinese subjects visiting or residing in the United States, shall enjoy the same privi-Aeges, 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 citizens of the United States in.China, nor upon the subjects of China in the United States.”

After some years’ experience under that treaty, the government of the United States was brought to the opinion that, the presence within our territory of large numbers of Chinese-laborers, of a distinct racé and religion, remaining strangers, in the land, residing apart by themselves, tenaciously adhering to the customs and usages of their own country, unfamiliar with our institutions, and apparently incapable of assimilating-with our people, might endanger good order, and be injurious, to the public interests; and therefore requested and obtained, .from China a modification of the treaty. Chew Heong v. United States, 112 U. S. 536, 542, 543; Chae Chan, Ping v. United States, 130 U. S. 581, 595, 596.

On November 17, 1880, a supplemental treaty was accordingly concluded between the two countries, which contained, the following preamble and stipulations:

“ Whereas the government of- the United States, because of the constantly increasing immigration of Chinese laborers to-the territory of the United States, and the embarrassments-consequent upon such immigration, now desires to negotiate a modification of the existing treaties which shall not be in direct contravention of their spirit: ”

“ Article I. Whenever, in the .opinion of the government, of the United States, the coming of the 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 immigra tion, 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 áre npw 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.

.“'ArticleTIL -If Chinese laborers, or Chinese of any other class, now either permanently.or temporarily residing in the territory, of the United State's, meet with ill treatment at the hands- of. q,ny .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 Stat.- 826, 827.

The act of May 6, 1882, c. 126, entitled “An act to execute certain treaty stipulations relating to Chinese,” and-amended' by the act of July 5, 1884, c. 220, began with the recital that, “ 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; ” and, in section 1, suspended, their coming for ten years, and enacted that it should “ not be lawful for any Chinese laborer to come from any foreign port or place, or, having so come, to remain within .the United States; ” in section 3, that this provision should not apply to Chinese laborers who were in the United States on November 17, 1880, or who came here within ninety days’.after the passage of the act of 1882, and who should produce evidence of that fact, as afterwards required by the act, to the master of the vessel arid to the collector of the port; arid, in section 4, that “ for the purpose of properly identifying Chinese laborers who were in the United States ” at such time, “ and in order to furnish them with the proper, evidence of their right to go from and come to the United States,” as provided by that act and by the treaty .of November 17, 1880, the collector of customs of the district, from which any Chinese laborers should depart from the United States by sea, should go on board the vessel, and make and register a list of them, with all .facts necessary for their identity, and should give to each a corresponding certificate, which should entitle him “ to-return to and reenter the United States, upon producing and delivering the same to the collector of customs,” to be cancelled. .The form of' certificate prescribed by the act of 1884 differed in some particulars from that prescribed by the act of 1882; and the act of 1884 added that “said ’certificate shall be the only evidence to establish his right of reentry.” -Each act further enacted,- in section 5, that any such Chinese laborer, being in the United States and desiring to depart by land, should be entitled to a like certificate of identity; and in section 12, that no Chinese person should be permitted to enter the United States by land, without producing such a certificate, and that “any Chinese person found unlawfully within the United States shall be caused to be removed therefrom to the country from whence he came, 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.” The act of 1884 further enacted, in section 16, that- a violation of hny of the provisions of the act, the punishment of which was not therein otherwise provided for, should be deemed a misdemeanor, and be\punishable by fine not exceeding $1000, or by imprisonment for not more than one year, or by both such fine and imprisonment.- 22 Stat. 58-60; 23 Stat. 115-118.

Under those acts, this court held, in Chew Heong v. United States, 112 U. S. 536, that .the clause of section 4 of the act of 1884, making the certificate of identity the only evidence to establish a. right to reenter the United States, was not applicable to-a Chinese laborer who resided in the United States at the date of the treaty of 1880, departed by sea before the passage of the act of 1882, remained- out of the United States until after the passage of the act of 1884, and then returned by sea; and in United States v. Yung Ah Lung, 124 U. S. 621, that a Chinese laborer, who resided in the United States at the date of the treaty of 1880, and until 1883, when, he left San Francisco for China, taking with him a certificate-of identity from the collector of tké port in the form provided by the act of 1882, which was stolen, from him in China, was entitled to land again in the United States in 1885, on proving by other evidence these facts, and his identity with the person described in the register kept by the collector of' customs as the one to whom that certificate was issued.

Both those decisions proceeded upon a consideration of the various provisions of the acts of 1882 and 1881, giving weight-to the presumption that-.they should not, unless unavoidably, be construéd as operating retrospectively, or as contravening the stipulations of the treaty. In the first of those cases-Justices Field and Bradley, and in the second case Justices Field, Harlan and Lamar, dissented from the judgment,- being-of opinion that the necessary construction of those acts was against the Chinese laborer. And in none of the opinions in either case was'it suggested that the acts in question, if construed as contended by the United States, and so as to contravene the treaty, would be unconstitutional or inoperative.

In our jurisprudence, it is well settled that the provisions of an act of Congress, passed in the exercise of its constitutional authority, on this, as on any other subject, if clear and explicit,, must be upheld by the courts, even in contravention of express-stipulations in an earlier treaty. As was said by this court in Chae Chan Ping's case,- following previous decisions: “ The treaties were of no greater legal obligation than the act of Congress.- By the Constitution, laws made in pursuance thereof and treaties made under the authority of the United. States are both declared to be the supreme law of the land, and no paramount authority is given to one 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 legislation to carry its stipulations into effect. Such legislation, will be open to.future repeal or amendment. If the treaty operates by its own force, and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either ease, the last expression of the sovereign will must Control..”' “ So far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal.” 130 U. S. 600. See also Foster v. Neilson, 2 Pet. 253, 314; Edye v. Robertson, 112 U. S. 580, 597-599; Whitney v. Robertson, 124 U. S. 190.

By the supplementary act of October 1, 1888, c. 1064, it was enacted, in section 1, that “ from and after the passage of this act, it shall be unlawful for any Chinese laborer, who shall at any time heretofore have been, or who may now or hereafter be, a resident within the United States, and who shall have departed or shall depart therefrom, and shall not have returned before the passage of this act, to return to, or remain in, the United States;” and in section 2, that “no certificates of identity, provided for in the fourth and fifth sections of the act to which this is a supplement, shall hereafter be issued; and every certificate heretofore issued in pursuance thereof is hereby declared void and of no effect, and the Chinese laborer claiming admission by virtue thereof shall not be permitted to enter the United States.” 25 Stat. 504.

In the case of Chae Chan Ping, already often referred to, a Chinese laborer, who had resided in San Francisco from 1875 until June 2,1887, when he left that port for China, having in his possession a certificate issued to him on that day by the collector of customs, according to the act of 1884, and in terms entitling him to return to the United States, returned to the same port on October 8, 1888, and was refused by the collector permission to land, because of the provisions of the act of October 1, 1888, above cited. It was strongly contended in his behalf, that by his residence in the United States for twelve years preceding June 2, 1887, in accordance with the fifth article of the treaty of 1868, he had now a lawful right to be in the United States, and had a vested right to return to the United States, which could not be taken .from him by any exercise of mere legislative power by Con-gress; that he-Had acquired such a right by contract between him and the United States, by virtue of his acceptance of the offer,'contained in the acts of 1882 and 1884, to every Chinese person then here, if -he should leave the country, complying with specified conditions, to permit jhim to return; that, as applied to him, the-act of 1888 was unconstitutional, as being a bill of attainder and an ex post facto law; and that the depriving him of' his right to return was punishment,’ which could mot be inflicted except by judicial sentence. The contention was thus summed up at the beginning of the opinion: “ The validity of the act is assailed as being in effect an expulsion' from the country of .Chinese .laborers, in violation of existing treaties between the United States and the government of China, and of rights vested ill them under the laws of Congress.” 130 U. S. 584-589.

Yet the court unanimously held that the statute of 1888 was constitutional, and that the action of the collector in refusing him permission to land was lawful; and, after the passages already quoted, said: “The power of exclusion of foreigners beihg an incident of sovereignty belonging' to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at anytime when, in .the judgment of the government, the interests of the country require it, cannot be granted, away or restrained on behalf of any one.. The. powers of government are delegated in trust tof the United States, and áre incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered,/when needed for the public good, by any consideratiQns of private interest. The exercise of these public trusts is not the subject of barter or contract. Whatever license, therefore, Chinese,laborers.may. have obtained, previo;is 'to'the act of October 1,- 1888, to return to the United "States after their departure, ig held at the will of the government, revocable at any time, at its pleasure.” “ The rights and interests created by a . treaty, which have become so vested that its expiration or abrogation will nof destroy .or impair them,' are such as' are connected with and lie in property, capable of sale and. transfer or other disposition., not such as are personal and untransferable in their character.” '“But far different is this, case, where a continued suspension of the exercise of a governmental power is insisted upon as a right, because, by the favor and consent of the government, it has not heretofore been exerted with respect to the appellant or to the class to which he belongs.’ Between property rights not affected by the termination or abrogation of a treaty, and expectations of benefits from the continuance of existing legislation, there is as wide- a difference as between realization and hopés.” 130 U. S. 609, 610.

It thus appears that in that case it was directly adjudged, upon full argument and consideration, that a Chinese laborer, who had been admitted into the United States while the treaty of 1868 was in force, by which the United. States and 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 oi their citizens and subjects, respectively, from one country to the other,” not only for the purpose of curiosity or of trade, but “ as permanent residents; ” and who had continued to reside here for twelve years, and who had then gone back to China, after receiving a certificate, in the form provided by act of Congress, entitling him to return to the United States; might be refused re-admission into the'United States, without judicial trial or hearing, and simply by reason of another act of Congress, passed during his absence, and declaring all such certificates to be void, and prohibiting all Chinese laborers who had at any time been residents in the United States, and had departed therefrom, and not returned before the passage of this act, from coming into the United States.

In view of that decision, which, as before .observed, was a' unanimous judgment of the court, and which had the concurrence of all the justices who had delivered, opinions in the cases arising under the acts of 1882 and 1884, it appears to be impossible to hold that a Chinese, laborer acquired, under any the treaties or acts of Congress, any right, as a denizen :or otherwise, to be and remain in this country, except by the license, permission and sufferance of Congress, to be withdrawn whenever, in its opinion, the public welfare might require it.

By the law of nations, doubtless, aliens residing in a country, with the intention of making it a permanent place of abode, acquire, in one sense, a domicil there ; and, while they are permitted by the nation to retain such a residence and domicil, are subject to its laws, and may invoke its protection against other nations. This is recognized by those publicists who, as has been 'seen, maintain in the strongest terms the right of the nation to expel any or all aliens at its pleasure. Yattel, lib. 1, c. 19, § 213; 1 Phillimore, c. 18, § 321; Mr. Marcy, in Koszta's case, Wharton’s International Law Digest, § 198. See also Lau Ow Bew v. United States, 144 U. S. 47, 62; Merlin, Repertoire de Jurisprudence, Domicile, § 13, quoted in the case, above cited, of In re Adam, 1 Moore P. C. 460, 472, 473.

Chinese laborers, therefore, like all other aliens residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility. ' But they continue to be aliens, having taken no steps towards becoming citizens, and incapable of becoming such under the naturalization laws; and therefore remain subject to the power of Congress to expel them, or to order them to be removed and deported from the country, whenever in its judgment their removal is necessary or expedient for the public interest.

Nothing inconsistent with these views was decided or suggested by the court in Chy Lung v. Freeman, 92 U. S. 275, or in Yick Wo v. Hopkins, 118 U. S. 356, cited for the appellants.

In Chy Lung v. Freeman, a statute of the State of California, restricting the immigration of Chinese persons, was held to be unconstitutional and void, because it contravened the grant in the Constitution to Congress of the power to regulate commerce with foreign nations.

In Yick Wo v. Hopkins, the point decided was that the Fourteenth Amendment of the Constitution' of the United States, forbidding any State to deprive any person of life, liberty or property without due process of law, or to deny to any person within its jurisdiction the equal protection of the laws, was violated by a municipal ordinance of San Francisco, which conferred upon the board of supervisors arbitrary power, without regard to competency of, persons or to fitness of places, to grant or refuse licenses to carry on public laundries,- and which was executed by the supervisors by refusing licenses to all Chinese residénts, and granting them to other persons under like circumstances. The question there was of the power of a State over aliens continuing to reside within its jurisdiction, not of the power of the United'States to put an.end to their residence in the country.

The act of May 5,1892, c. 60, is entitled “ An act to prohibit, the coming of Chinese persons into the United States”; and provides, in section. 1, that “all laws now in force, prohibiting. and regulating the coming into this country of Chinese persons and persons of Chinese descent, are hereby continued in force for a period of ten years from the passage of' this act.”

The rest of the act (laying, aside, as immaterial, section 5, relating to an application for a writ of habeas corpus• “by-a Chinese person seeking to land in the United States, to whom' that privilege has-been denied,”) deals with two classes of Chinese persons, first, those “ not lawfully entitled to be Or remain in the United States,” and second, those. “ entitled to remain in the United States.” These words of description neither confer nor take away any right; but simply, designate-the Chinese persons who were- not, or who were, authorized or permitted to remain in the United States under the laws and treaties existing at the time of the passage of this act, -but subject, nevertheless, to the power of the United States, absolutely or conditionally, to withdraw the permission and' to terminate the authority to remain.

Sections 2-1 concern Chinese “ not lawfully entitled to be or remain in the United States; ” and provide that, after trial before a justice, judge or commissioner, a “Chinese person, or person of Chinese descent, convicted and adjudged to be not lawfully entitled to be or remain in the United States,” shall be imprisoned at hard labor for not more than a year, and be afterwards removed to China or other country of which he appears to be a citizen or subject.

The subsequent sections relate to Chinese laborers “ entitled to remain in the United States” under previous laws. Sections 6 and 7 are the only sections which have any bearing on the cases before us, and the only ones, therefore, the construction or effect of which need now be considered.

The manifest, objects of these sections are to provide a system of registration and identification of such Chinese laborers, to require them to obtain certificates of residence, and, if they do not do so within a year, to have them deported from the United States.

Section 6, in the first place, provides that “it shall be the duty of all Chinese laborers, within the limits of the United States at the time of the passage of this act, and who are entitled to remain in the United States, to apply to the collector of internal revenue of their respective districts, within one year after the passage of this act, for a certificate of residence.” This provision, by making it the duty of the Chinese laborer to apply to the collector of internal revenue of the district for a certificate, necessarily implies a correlative duty of the collector to grant him a certificate, upon due proof of the requisite facts. What this proof shall be is not defined in the statute, but is committed to the supervision of the Secretary of the Treasury by section 7, which directs him to make such rules and- regulations as may be necessary for the efficient execution of the act, to prescribe the necessary forms, and to make such provisions that certificates may be procured in localities convenient to the applicants, and without charge to them; and the Secretary of the Treasury has, by such rules and regulations, provided that the fact of residence shall be proved by “ at least one credible witness of good character,” or, in case of necessity, by other proof.' The statute and the regulations, in order to make sure that every such Chinese laborer may have a certificate/ iir the. nature of a passport, Avith which he may go into any part of the United States, and. that the United States may preserve a record of all such certificates issued, direct that a duplicate of each certificate shall be recorded in the-office of the collector who granted it, and may be issued to the laborer upon proof of loss or destruction of his original certificate. There can be no doubt of the validT ity of these provisions and regulations, unless they are invalidated by the other provisions of section 6.

This section proceeds to enact that .any Chinese laborer within the limits of the United States, who shall neglect, fail or refuse to apply for a certificate of residence Avithin the year, or Avho. shall after-wards be found within' the jurisdiction of /the United States without such a certificate, “ shall be deemed and adjudged to be unlawfully Avithin the United States.” The meaning of this clause, as shoAvn by those which follow, is not that this fact shall thereupon be held to be conclusively established against him, but only that the. want of a certificate shall b & prima facie evidence that he is not- entitled to remain in the United States; for the section goes .on to direct that he “ may be arrested by any customs official, collector of internal revenue or his deputies, United States marshal or his deputies, and taken before a United States judge;” and that it shall thereupon be the duty of the judge to order that the laborer “be deported from the United States” to China, (orto any other country which he is a citizen or subject of, and which, does not demand any tax as a condition of his removal, to it,) “ unless he shall establish clearly, to the satisfaction of said judge, that by reason of accident, sickness or other unavoidable cause, he has been unable to procure his certificate, and to the satisfaction of the court, and by at least one credible white witness, that he was a resident of the United States «at. the time of the passage Of 'this act; and if, upon the hearing, it shall appear that he is so entitled to a certificate, it shall be granted upon his paying the cost. Should it appear that said Chinaman had procured a certificate which has been lost or destroyed, he shall be detained and judgment suspended a reasonable time to enable him to procure a duplicate from the officer granting it; and in such cases the cost of said arrest and trial shall be in the discretion of the court.”

For the reasons stated in the earlier part of this opinion, Congress, under the power to exclude or expel aliens, might have directed any Chinese laborer, found in the United States without a certificate of residence, to be removed out of the country by executive officers, without judicial trial or examination, just as it might have authorized such officers absolutely -to prevent his entrance into the country. But Congress has not undertaken to do this.

The effect of the provisions of section 6 of the act of 1892 is that, if a Chinese laborer, after the opportunity afforded him to obtain a certificate of residence within a year, at a convenient place, and without cost, is found without such a certificate, he shall be so far presumed to be not entitled to remain within the United States, that an officer of the customs, or a collector of internal revenue, or a marshal, or a deputy of either, may arrest him, not with a view to imprisonment or punishment, or to his immediate. deportation without further inquiry, but in order to take him before a judge, for the purpose of a judicial hearing and determination of the only facts which, under the act of Congress, can have a material bearing upon the question whether he shall be sent out of the country, or be permitted to remain.

The powers and duties of the executive officers named being ordinarily limited to their own districts, the reasonable inference is that they must take him before a judge within the same judicial district; and such was the course pursued in the cases before us.

The designation of the judge, in general- terms, as “a United States judge,” is an apt and sufficient description of a judge of a court of the United States, and is equivalent to or •synonymous with the designation, in other statutes, of the judges authorized to issue writs of habeas corpus, or warrants to arrest persons accused of crime. Rev. Stat. §§ 752, 1011.

When, in the form prescribed by law, the executive officer, acting in behalf of the United States, brings the Chinese laborer before the judge, in order that he may be heard, and the facts upon which depends his right to remain in the country he decided, a case is duly submitted to the judicial power; for here are all the elements of a civil case — a complainant, a defendant and a judge — actor, reus et judex. 3 Bl. Com. 25; Osborn v. Bank of United States, 9 Wheat. 738, 819. No formal complaint or pleadings are required, and the want of them does not affect the authority of the judge, or the validity of the statute.

If no evidence is offered by the Chinaman, the judge makes the order of deportation, as upon a default. If he produces competent evidence to explain the fact of his not having a certificate, it must be considered by the judge; and if he thereupon appears to be entitled to a certificate, it is to be granted to him. If he proves that the collector of internal revenue has unlawfully refused to give him a certificate, he proves an “unavoidable cause,” within the meaning of the act, for not procuring one. If he proves that he had procured a certificate which has been lost or destroyed, he is to be allowed a reasonable time to procure a duplicate thereof.

The provision which puts the burden of proof upon him of rebutting the presumption arising from his having no certificate, as well as the requirement of proof, “ by at least one credible white witness, that he was a resident of the United States at the time of the passage of this act,” is within the acknowledged power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence, in the courts of its own government. Odgen v. Saunders, 12 Wheat. 213, 262, 349; Pillow v. Roberts, 13 How. 472, 476; Cliquot’s Champagne, 3 Wall. 114, 143; Exparte Fisk, 113 U. S. 713, 721; Holmes v. Hunt, 122 Mass. 505, 516-519. The competency of all witnesses, without regard to their color, to testify in the courts of the United States, rests on acts of Congress, which Congress may at its discretion modify or repeal. Rev. Stat. §§ 858, 1977. The reason for requiring a Chinese alien, claiming the privilege of remaining in the United States, to prove the fact of his residence here, at the time of the passage of the act, “ by at least one credible white witness,” may have been the experience of Congress, as mentioned by Mr. Justice Field in Chae Chan Ping's case. that the. enforcement of former', acts, under which the testimony of Chinese persons was admitted to prove similar facts, “ was attended with great embarrassment, from the suspicious nature, in many instances, of the testimony offered to establish' the residence of the parties, arising from the loose.notions entertained by the witnesses of the obligation of an oath.” 130 U. S. 598. And this requirement, not allowing such a fact to be proved solely by the testimony of aliens -in a like situation, or of the same race, is quite analogous to the provision, which has existed for seventy-seven years in the naturalization laws, by which aliens applying for naturalization must prove their residence within the limits and under the- jurisdiction of the United States, for five years next preceding, “ by the oath or affirmation of citizens of the United States.” Acts of March 22, 1816, c. 32, § 2, 3 Stat. 259; May 24, 1828, c. 116, § 2, 4 Stat. 311; Rev. Stat. § 2165, cl. 6; 2 Kent Com. 65.

The proceeding before a United States judge, as provided for in section 6 of the act of 1892, is in no proper sense a trial and sentence for a crime or offence. It is simply the ascertainment, by appropriate and lawful means, of the fact whether'the-conditions exist upon which Congress has enacted that an alien of this class may remain within the country. The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing 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 constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty or property, without due process of law; and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application. -

The question whether, and upon what conditions, these, aliens shall be permitted to remain within the United States being one to be determined by the political departments of the government, the judicial department cannot properly express an. opinion upon the wisdom, the policy or the justice of the measures enacted by Congress in the exercise of the powers confided to it by the Constitution over this subject.

The three cases now before, us do not differ from one another in any material .particular.

In the first case, the petitioner had wholly neglected, failed and refused to apply to the collector of internal revenue for a certificate of residence, and, being found without such a certificate after a year from the passage of the act of 1892, was arrested by the United States marshal, with the purpose, as the return states, of taking him before a United States judge within the district; and thereupon, beforé any further proceeding, sued out a writ of habeas corpus.

In the second case, the petitioner had likewise neglected, failed and refused to apply to the collector of internal-revenue for a certificate of residence, and, being found without one, was arrested by the marshal and taken before the District Judge of the United States, who ordered him to be remanded-to the custody of the marshal, and to be deported from the United States, in accordance with the provisions of the act. The allegation in the petition, that the judge’s order was made “ without. any hearing of any kind,” is shown to be untrue by the recital in the order itself, (a copy of which is annexed to and made part of the petition,) that he had failed to clearly establish to the judge’s satisfaction that by reason of accident, sickness or other unavoidable cause, he - had been unable to procure a certificate, or that he had procured one and it had been lost or destroyed.

In the third case, the petitioner had, within the year; applied to a collector of internal revenue for a certificate of residence, and had been refused it, because he. produced and could produce none’but Chinese witnesses to prove the residence necessary to entitle him to a certificate. Being found without a certificate of' residence, he was arrested by the marshal, and taken before the United States District Judge, and established to'the satisfaction of the judge, that,-because of the collector’s refusal to give him a certificate of residence he was without one by unavoidable cause; and also proved, by a Chinese witness only, that he was a resident of the United States at the time of the passage of the act of 1892. Thereupon the judge ordered him to be remanded to the custody of the marshal, and to be- deported from the United States, as provided in that act.

It would seem that the. collector of internal revenue, when applied to for a certificate, might properly decline to find the requisite fact of residence upon testimony which, by an express provision of the act, would be insufficient to prove that fact at a hearing before the judge. But if the collector might have received and acted upon such testimony, and did, upon any ground, unjustifiably refuse a certificate of residence, the only remedy of the applicant was to prove by competent and sufficient evidence at the hearing before the judge the facts requisite to entitle him- to a certificate. To one of those facts, that of residence, the statute, "which, for the reasons already stated, appears to us to be within the constitutional authority of Congress to enact, peremptorily requires at that hearing the testimony of a credible white witness. And it was because no such testimony was produced, that the order of deportation was made.

Upon careful consideration of the subject, the only conclusion which appears to. us to be consistent with the principles of international law, with the Constitution and laws of the United States, and with the previous decisions of this court, is that' in each of these cases the judgment' of the Circuit Court, dismissing the writ of habeas corpus, is right and must be

Affirmed.