U.S. Supreme Court Fong Yue Ting v. United States, 149
U.S. 698 (1893) Fong Yue Ting v. United
States Nos. 1345, 1346, 1347 Argued May 10, 1893 Decided May 15, 1893 149
U.S. 698 APPEALS FROM THE CIRCUIT COURT OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK Syllabus The right to exclude or to expel aliens, or any class of aliens,
absolutely or upon certain conditions, in war or in peace, is an
inherent and inalienable right of every sovereign nation.

															In the United States, the power to exclude or to expel aliens is
vested in the political departments of the National Government, and
is to be regulated by treaty or by act of Congress, and to be
executed by the executive authority according to the regulations so
established, except so far as the Judicial Department is authorized
by treaty or by statute, or is required by the Constitution, to
intervene.

															The power of Congress 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 remain in the country has been made by
Congress to depend.

															Congress has the right to provide a system of registration and
identification of any class of aliens within the country, and to
take all proper means to carry out that system.

															The provisions of an act of Congress, passed in the exercise of
its constitutional authority, must, if clear and explicit, be
upheld by the courts, even in contravention of stipulations in an
earlier treaty.

															Section 6 of the act of May 5, 1892, c. 60, requiring all
Chinese laborers Page 149 U. S. 699 within the United States at the time of its passage, "and who
are entitled to remain in the United States," to apply within a
year to a collector of internal revenue for a certificate of
residence, and providing that anyone who does not do so, or is
afterwards found in the United States without such a certificate,
"shall be deemed and adjudged to be unlawfully in the United
States," and may be arrested by any officer of the customs, or
collector of internal revenue, or marshal, or deputy of either, and
taken before a United States judge, who shall order him to be
deported from the United States to his own country unless he shall
clearly establish to the satisfaction of the judge that, by reason
of accident, sickness, or other unavoidable cause, he was unable to
procure his certificate, and "by at least one credible white
witness" that he was a resident of the United States at the time of
the passage of the act, is constitutional and valid.

															These were three writs of habeas corpus, granted by the Circuit
Court of the United States for the Southern District of New York,
upon petitions of Chinese laborers arrested and held by the marshal
of the district for not having certificates of residence, under
section 6 of the act of May 5, 1892, c. 60, which is copied in the
margin.{1} Page 149 U. S. 700 The rules and regulations made and promulgated by the Secretary
of the Treasury under section 7 of that act prescribe Page 149 U. S. 701 forms for applications for certificates of residence, for
affidavits in support thereof, and for the certificates themselves;
contain the provisions copied in the margin;{2} and also
provide Page 149 U. S. 702 for recording duplicates of the certificates in the office of
the collector of internal revenue.

															The first petition alleged that the petitioner was a person of
the Chinese race, born in China, and not a naturalized citizen of
the United States; that, in or before 1879, he came to the United
States, with the intention of remaining and taking up his residence
therein, and with no definite intention of returning to China, and
had ever since been a permanent resident of the United States, and
for more than a year last past had resided in the City, County, and
State of New York, and within the second district for the
collection of internal revenue in that State; that he had not,
since the passage of the act of 1892, applied to the collector of
internal revenue of that district for a certificate of residence,
as required by section 6, and was, and always had been, without
such certificate of residence; and that he was arrested by the
marshal, claiming authority to do so under that section, without
any writ or warrant. The return of the marshal stated that the
petitioner was found by him within the jurisdiction of the United
States and in the Southern District of New York, without the
certificate of residence required by that section; that he had,
therefore, arrested him, with the purpose and intention of taking
him before a United States judge within that district; and that the
petitioner admitted to the marshal, in reply to questions put
through an interpreter, that he was a Chinese laborer, and was
without the required certificate of residence.

															The second petition contained similar allegations, and further
alleged that the petitioner was taken by the marshal before the
district judge for the Southern District of New York, and that

															"the said United States judge, without any hearing of any kind,
thereupon ordered that your petitioner be Page 149 U. S. 703 remanded to the custody of the marshal in and for the Southern
District of New York, and deported forthwith from the United
States, as is provided in said act of May 5, 1892, all of which
more fully appears by said order, a copy of which is hereto annexed
and made a part hereof,"

															and which is copied in the margin;{3} and that he was detained
by virtue of the marshal's claim of authority and the judge's
order. The marshal returned that he held the petitioner under that
order.

															In the third case, the petition alleged, and the judge's order
showed, the following state of facts: on April 11, 1893, the
petitioner applied to the collector of internal revenue for a
certificate of residence. The collector refused to give him a
certificate, on the ground that the witnesses whom he produced to
prove that he was entitled to the certificate were persons of the
Chinese race, and not credible witnesses, and required of him to
produce a witness other than a Chinaman to prove that he was
entitled to the certificate, which he was unable to do because
there was no person other than one of Page 149 U. S. 704 the Chinese race who knew and could truthfully swear that he was
lawfully within the United States on May 5, 1892, and then entitled
to remain therein; and, because of such unavoidable cause, he was
unable to produce a certificate of residence, and was now without
one. The petitioner was arrested by the marshal, and taken before
the judge, and clearly established to the satisfaction of the judge
that he was unable to procure a certificate of residence by reason
of the unavoidable cause aforesaid; and also established to the
judge's satisfaction, by the testimony of a Chinese resident of New
York, that the petitioner was a resident of the United States at
the time of the passage of the act; but, having failed to establish
this fact clearly to the satisfaction of the court by at least one
credible white witness, as required by the statute, the judge
ordered the petitioner to be remanded to the custody of the
marshal, and to be deported from the United States, as provided in
the act.

															Each petition alleged that the petitioner was arrested and
detained without due process of law, and that section 6 of the act
of May 5, 1892, was unconstitutional and void.

															In each case, the Circuit Court, after a hearing upon the writ
of habeas corpus and the return of the marshal, dismissed the writ
of habeas corpus, and allowed an appeal of the petitioner to this
Court, and admitted him to bail pending the appeal. All the
proceedings, from the arrest to the appeal, took place on May
6th.

															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 Page 149 U. S. 705 of this Court, and by the authorities therein referred to.

															In the recent case of Nishimura Ekiu v. United States, 142 U. S. 651 , 142 U. S. 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 to
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 be, 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 and security throughout
its entire territory." 130 U. S. 130 U.S. 603, 130 U. S.
604 .

															It was also said, repeating the language of Mr. Justice Page 149 U. S. 706 Bradley in Knox v. Lee , 12 Wall. 457, 79 U. S.
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, peace, and
negotiations and intercourse with other nations; all of which are
forbidden to the state governments."

															130 U.S. 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. 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 United 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 of
which the foreigners excluded are subjects is dissatisfied with
this action, it can make complaint to the Page 149 U. S. 707 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. 130 U. S.
606 -607. This statement was supported by many citations
from the diplomatic correspondence of successive Secretaries of
State, collected in Whart. Int. Law Dig. § 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."

															Whart. Int. Law Dig. § 206; 130 U.S. 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
virtue 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 Page 149 U. S. 708 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."

															Vatt. Law Nat. 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 country; but the right exists nonetheless, 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, (4th Ed.) lib. 2, c. 14, 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 Phillim. Int.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 all foreigners, although, perhaps, to exclude all
would be to say goodbye 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, no 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 of the State. No doubt, the police can apprehend any
foreigner who refuses to quit the country in Page 149 U. S. 709 spite of authoritative orders to do so, and convey him to the
frontier."

															Bar, Int.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 offense against the laws of the country.
"Extradition" is the surrender to another country of one accused of
an offense against its laws, there to be 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's 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 in regard
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 Chalm. Op. 26; 1 Bl. Comm. 260; Chit. Prerog. 49; 1 Phillim.
Int.Law, c. 10, § 220, and note; 30 Parl.Hist. 157, 167, 188, 217,
229; 34 Hans.Deb. (1st Series) 441, 445, 471, 1065-1071; 6 Law
Rev.Quar. 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 France in 1810, and in which
the law of France continued in force, Lord Page 149 U. S. 710 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 domicile 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 give 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 and action in a British court, and raise such question as
were argued before their lordships on the present appeal -- whether
the proper officer for giving or refusing access to the country has
been duly authorized by his own colonial government, whether the
colonial government has received sufficient delegated authority Page 149 U. S. 711 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 once 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 sovereign 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 6 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 Page 149 U. S. 712 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 offenses
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 carried into execution, which
will enable that body to perform the high duties assigned to it in
the Page 149 U. S. 713 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, 17 U. S. 421 , 17 U. S. 423 ; Juilliard v. Greenman, 110 U. S. 421 , 110 U. S. 440 , 110 U. S. 450 ; Ex parte Yarbrough, 110 U. S. 651 , 110 U. S. 658 ; In re Rapier, 143 U. S. 110 , 143 U. S. 134 ; Logan v. United States, 144 U. S. 263 , 144 U. S.
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 by the executive authority according
to the regulations so established, except so far 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. 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 Page 149 U. S. 714 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 lawmaking 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; Rev. St. §§ 5270-5274; Ex parte
Metzger , 5 How. 176; Benson v. McMahon, 127 U. S. 457 ; In re Luis 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 Page 149 U. S. 715 Secretary of the Treasury. Cary v.
Curtis , 3 How. 236; Curtis v.
Fiedler , 2 Black 461, 67 U. S.
478 -479; Arnson v. Murphy, 109 U.
S. 238 , 109 U. S. 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 June 10, 1890, c. 407, §§ 14, 15, 25, 26
Stat. 137, 138, 141; In re Fassett, 142 U.
S. 479 , 142 U. S.
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, 59 U. S.
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 the subject.

															The act of Congress of July 27, 1868, c. 249 (reenacted in
sections 1999-2001, Rev. St.), 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 whereas, in the
recognition of this principle this Government has freely received
emigrants from all nations, and invested them with the rights of
citizenship."

															It then declared that Page 149 U. S. 716 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 April 14, 1802, c. 28, 2 Stat. 153; May 26, 1824,
c. 186, 4 Stat. 69; July 14, 1870, c. 254, § 7, 16 Stat. 256; Feb.
18, 1875, c. 80, 18 Stat. 318; In re Ah Yup, 5 Sawy. 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. 5. 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 6. 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 privileges,
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."

															16 Stat. 740. Page 149 U. S. 717 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 race 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 , 112 U. S.
542 -543; Chae Chan Ping v. United States, 130 U. S. 581 , 130 U. S.
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 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."

															"ARTICLE 2. Chinese subjects, whether proceeding to the Page 149 U. S. 718 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 exemption
which are accorded to the citizens and subjects of the most favored
nation."

															"ARTICLE 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 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 10 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 90 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 and to the collector of the port; and, 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 Page 149 U. S. 719 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
identification, 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 canceled. 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 any 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 $1,000, 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. Jung Ah
Lung, 124 U. S. 621 ,
that a Chinese laborer who resided in the United Page 149 U. S. 720 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 the 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 1884, giving weight to
the presumption that they should not, unless unavoidably, be
construed 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 questions, 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 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 Page 149 U. S. 721 at the pleasure of Congress. In either case, the last expression
of the sovereign will must control. . . . So far as a treaty made
by the United States with any foreign nation can become the subject
of judicial cognizance in the courts of this country, it is subject
to such acts as Congress may pass for its enforcement,
modification, or repeal." 130 U. S. 130 U.S. 600. See also Foster v.
Neilson , 2 Pet. 253, 27 U. S. 314 ; Edye v. Robertson, 112 U. S. 580 , 112 U. S.
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, 188, 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 12 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 Congress; Page 149 U. S. 722 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 him 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 not 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 in them under the laws of
Congress."

															130 U.S. 584-589 [argument of counsel omitted].

															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 being 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 any time when, in the judgment of the
Government, the interests of the county require it, cannot be
granted away or restrained on behalf of anyone. The powers of
Government are delegated in trust to the United States, and are
incapable of transfer to any other parties. They cannot be
abandoned or surrendered. Nor can their exercise be hampered, when
needed for the public good, by any considerations of private
interest. The exercise of these public trusts is not the subject of
barter or contract. Whatever license, therefore, Chinese laborers
may have obtained previous to the act of October 1, 1888, to return
to the United States after their departure is held at the will of
the Government, revocable at any time at its pleasure. . . . The
rights and interests created by a treaty, which have become so
vested that its expiration or abrogation will not destroy or impair
them, are such as are connected with and lie in property, capable
of sale and transfer or other Page 149 U. S. 723 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 hopes."

															130 U.S. 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 of 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 12
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 readmission 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 of 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 Page 149 U. S. 724 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 domicile there, and, while they are permitted by
the nation to retain such a residence and domicile, 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. Vatt. Law Nat. lib. 1, c. 19, § 213; 1
Phillim. Int. Law, c. 18, § 321; Mr Marcy, in Koszta's
Case, 2 Whart. Int.Law Dig. § 198. See also Lau Ow Bew v.
United States, 144 U. S. 47 , 144 U. S. 62 ;
Merl.Repert. "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 Constitutional Congress of the power to regulate commerce with
foreign nations. Page 149 U. S. 725 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 residents, 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 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 2-4 concern Chinese "not lawfully entitled to be or
remain in the United States," and provide that, after trial Page 149 U. S. 726 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 Page 149 U. S. 727 laborer may have a certificate, in the nature of a passport,
with 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 validity 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 within the year, or who
shall afterwards be found within the jurisdiction of the United
States without such a certificate, "shall be deemed and adjudged to
be unlawfully within the United States." The meaning of this
clause, as shown 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 be 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 (or
to 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, if 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 Page 149 U. S. 728 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, 1014.

															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 Page 149 U. S. 729 the facts upon which depends his right to remain in the country
be 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.
Comm. 25; Osborn v. Bank of United
States , 9 Wheat. 738, 22 U. S. 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. Ogden v.
Saunders , 12 Wheat. 213, 25 U. S. 262 , 25 U. S. 349 ; Pillow v.
Roberts , 13 How. 472, 54 U. S. 476 ; Cliquot's
Champagne , 3 Wall. 114, 70 U. S. 143 ; Ex parte Fisk, 113 U. S. 713 , 113 U. S. 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 Page 149 U. S. 730 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. 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 77
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 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,
Comm. 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 offense. 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. Page 149 U. S. 731 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, before 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 Page 149 U. S. 732 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 an 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.

															"An act to prohibit the coming of Chinese persons into the
United States."

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

															"SEC. 2. That any Chinese person or person of Chinese descent,
when convicted and adjudged under any of said laws to be not
lawfully entitled to be or remain in the United States, shall be
removed from the United States to China, unless he or they shall
make it appear to the justice, judge, or commissioner before whom
he or they are tried that he or they are subjects or citizens of
some other country, in which case he or they shall be removed from
the United States to such country: provided, that in any case where
such other country, of which such Chinese person shall claim to be
a citizen or subject, shall demand any tax as a condition of the
removal of such person to that country, he or she shall be removed
to China."

															"SEC. 3. That any Chinese person or person of Chinese descent
arrested under the provisions of this act or the acts hereby
extended shall be adjudged to be unlawfully within the United
States, unless such person shall establish, by affirmative proof,
to the satisfaction of such justice, judge, or commissioner, his
lawful right to remain in the United States."

															"SEC. 4. That any such 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 a
period of not exceeding one year, and thereafter removed from the
United States, as hereinbefore provided."

															"SEC. 5. That after the passage of this act, on an application
to any judge or court of the United States in the first instance
for a writ of habeas corpus, by a Chinese person seeking to land in
the United States, to whom that privilege has been denied, no bail
shall be allowed, and such application shall be heard and
determined promptly, without unnecessary delay."

															"SEC. 6. And 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; and any Chinese laborer within the limits of the United
States, who shall neglect, fail, or refuse to comply with the
provisions of this act, or who, after one year from the passage
hereof, shall be found within the jurisdiction of the United States
without such certificate of residence, shall be deemed and adjudged
to be unlawfully within the United States, and may be arrested by
any United States customs official, collector of internal revenue
or his deputies, United States marshal or his deputies, and taken
before a United States judge, whose duty it shall be to order that
he be deported from the United States, as hereinbefore provided,
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. And any Chinese person other than a Chinese laborer,
having a right to be and remain in the United States, desiring such
certificate as evidence of such right, may apply for and receive
the same without charge."

															"SEC. 7. That immediately after the passage of this act, the
Secretary of the Treasury shall make such rules and regulations as
may be necessary for the efficient execution of this act, and shall
prescribe the necessary forms and furnish the necessary blanks to
enable collectors of internal revenue to issue the certificates
required hereby, and make such provisions that certificates may be
procured in localities convenient to the applicants. Such
certificates shall be issued without charge to the applicant, and
shall contain the name, age, local residence, and occupation of the
applicant, and such other description of the applicant as shall be
prescribed by the Secretary of the Treasury; and a duplicate
thereof shall be filed in the office of the collector of internal
revenue for the district within which such Chinaman makes
application."

															"SEC. 8. That any person who shall knowingly and falsely alter
or substitute any name for the name written in such certificate, or
forge such certificate, or knowingly utter any forged or fraudulent
certificate, or falsely personate any person named in such
certificate, shall be guilty of a misdemeanor, and upon conviction
thereof shall be fined in a sum not exceeding one thousand dollars,
or imprisoned in the penitentiary for a term of not more than five
years."

															"SEC. 9. The Secretary of the Treasury may authorize the payment
of such compensation in the nature of fees to the collectors of
internal revenue, for services performed under the provisions of
this act, in addition to salaries now allowed by law, as he shall
deem necessary, not exceeding the sum of one dollar for each
certificate issued."

															"Collectors of internal revenue will receive applications on the
following form at their own offices, from such Chinese as are
conveniently located thereto, and will cause their deputies to
proceed to the towns or cities in their respective divisions where
any considerable number of Chinese are residing, for the purpose of
receiving applications. No application will be received later than
May 5, 1893."

															"Collectors and deputies will give such notice, through leading
Chinese, or by notices posted in the Chinese quarter of the various
localities, as will be sufficient to apprise all Chinese residing
in their districts of their readiness to receive applications, and
the time and place where they may be made. All applications
received by deputies must be forwarded to the collector's office,
from whose office all certificates of residence will be issued, and
sent to the deputy for delivery."

															The affidavit of at least one credible witness of good character
to the fact of residence and lawful status within the United States
must be furnished with every application. If the applicant is
unable to furnish such witness satisfactory to the collector or his
deputy, his application will be rejected, unless he shall furnish
other proof of his right to remain in the United States, in which
case the application, with the proofs presented, shall be forwarded
to the commissioner of internal revenue for his decision. The
witness must appear before the collector or his deputy, and be
fully questioned in regard to his testimony before being sworn.

															"In all cases of loss or destruction of original certificates of
residence, where it can be established to the satisfaction of the
collector of the district in which the certificate was issued that
such loss or destruction was accidental, and without fault or
negligence on the part of the applicant, a duplicate of the
original may be issued under the same conditions that governed the
original issue."

															"In the matter of the arrest and deportation of Wong Quan, a
Chinese laborer."

															"Wong Quan, a Chinese laborer, having been arrested in the City
of New York on the 6th day of May, 1893, and brought before me, a
United States Judge, by John W. Jacobus, the Marshal of the United
States in and for the Southern District of New York, as being a
Chinese laborer found within the jurisdiction of the United States
after the expiration of one year from the passage of the act of
Congress approved on the 5th day of May, 1892, and entitled 'An act
to prohibit the coming of Chinese persons into the United States,'
without having the certificate of residence required by said act;
and the said Wong Quan having failed to clearly establish to my
satisfaction that by reason of accident, sickness, or other
unavoidable cause he had been unable to procure the said
certificate, or that he had procured such certificate, and that the
same had been lost or destroyed: Now, on motion of Edward Mitchell,
the United States attorney in and for the Southern District of New
York, it is ordered that the said Wong Quan be, and he hereby is,
remanded to the custody of the said John W. Jacobus, the United
States Marshal in and for the Southern District of New York; and it
is further ordered, that the said Wong Quan be deported from the
United States of America in accordance with the provisions of said
act of Congress approved on the 5th day of May, 1892."

															"Dated New York, May 6, 1893."

															"Addison Brown"

															"United States District Judge for the"

															"Southern District of New York."

															MR. JUSTICE BREWER, dissenting.

															I dissent from the opinion and judgment of the Court in these
cases, and, the questions being of importance, I deem it not
improper to briefly state my reasons therefor. Page 149 U. S. 733 I rest my dissent on three propositions: first, that the persons
against whom the penalties of section 6 of the act of 1892 are
directed are persons lawfully residing within the United States;
secondly, that, as such, they are within the protection of the
Constitution, and secured by its guaranties against oppression and
wrong; and third, that section 6 deprives them of liberty, and
imposes punishment without due process of law, and in disregard of
constitutional guaranties, especially those found in the 4th, 5th,
6th, and 8th articles of the amendments.

															And, first, these persons are lawfully residing within the
limits of the United States. By the treaty of July 28, 1868, 16
Stat. 740, commonly known as the "Burlingame Treaty," it was
provided, Article 5:

															"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 the one country to the other for purposes of
curiosity, of trade, or as permanent residents."

															And, Article 6:

															"Citizens of the United States visiting or residing in China
shall enjoy the same privileges, immunities, or exemptions in
respect to travel or residence as may there be enjoyed by the
citizens or subjects of the most favored nation; and, reciprocally,
Chinese subjects visiting or residing in the United States shall
enjoy the same privileges, immunities, and exemptions in respect to
travel or residence as may there be enjoyed by the citizens or
subjects of the most favored nation."

															At that time, we sought Chinese emigration. The subsequent
treaty of November 17, 1880, 22 Stat. 826, which looked to a
restriction of Chinese emigration, nevertheless contained, in
Article 2, this provision:

															"ARTICLE II. Chinese subjects, whether proceeding to the United
States as teachers, students, merchants, or from curiosity,
together with their body and household servants, and Chinese
laborers who are now in the United States, shall be allowed to go
and come of their own free will and accord, and shall be accorded
all the rights, privileges, immunities, Page 149 U. S. 734 and exemptions which are accorded to the citizens and subjects
of the most favored nation."

															While, subsequently to this treaty, Congress passed several acts
-- May 6, 1882, 22 Stat. 58; July 5, 1884, 23 Stat. 115; October 1,
1888, 25 Stat. 504 -- to restrict the entrance into this country of
Chinese laborers, and while the validity of this restriction was
sustained in the Chinese Exclusion Case, 130 U.
S. 581 , yet no act has been passed denying the right of
those laborers who had once lawfully entered the country to remain,
and they are here not as travelers, or only temporarily. We must
take judicial notice of that which is disclosed by the census, and
which is also a matter of common knowledge. There are 100,000 and
more of these persons living in this country, making their homes
here, and striving by their labor to earn a livelihood. They are
not travelers, but resident aliens.

															But, further, this section 6 recognizes the fact of a lawful
residence, and only applies to those who have such, for the parties
named in the section, and to be reached by its provisions, are
"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." These appellants, therefore, are lawfully
within the United States, and are here as residents, and not as
travelers. They have lived in this country, respectively, since
1879, 1877, and 1874 -- almost as long a time as some of those who
were members of the Congress that passed this act of punishment and
expulsion.

															That those who have become domiciled in a country are entitled
to a more distinct and larger measure of protection than those who
are simply passing through or temporarily in it has long been
recognized by the law of nations. It was said by this Court in the
case of The Venus , 8
Cranch 253, 12 U. S.
278 :

															"The writers upon the law of nations distinguish between a
temporary residence in a foreign country for a special purpose and
a residence accompanied with an intention to make it a permanent
place of abode. The latter is styled by Vattel 'domicile,' which he
defines to be 'a habitation fixed in any place, with an intention
of always staying there.' Such Page 149 U. S. 735 a person, says this author, becomes a member of the new society
at least as a permanent inhabitant, and is a kind of citizen of the
inferior order from the native citizens, but is, nevertheless,
united and subject to the society, without participating in all its
advantages. This right of domicile, he continues, is not
established unless the person makes sufficiently known his
intention of fixing there, either tacitly of by an express
declaration. Vatt. Law Nat. pp. 92, 93. Grotius nowhere uses the
word 'domicile,' but he also distinguishes between those who stay
in a foreign country by the necessity of their affairs, or from any
other temporary cause, and those who reside there from a permanent
cause. The former he denominates 'strangers,' and the latter,
'subjects.' The rule is thus laid down by Sir Robert
Phillimore:"

															"There is a class of persons which cannot be, strictly speaking,
included in either of these denominations of naturalized or native
citizens, namely, the class of those who have ceased to reside in
their native country, and have taken up a permanent abode in
another. These are domiciled inhabitants. They have not put on a
new citizenship through some formal mode enjoined by the law or the
new country. They are de facto, though not de
jure, citizens of the country of their domicile."

															1 Phillim. Int.Law, c. 18, p. 347.

															In the Koszta Case, it was said by Secretary Marcy:

															"This right to protect persons having a domicile, though not
native-born or naturalized citizens, rests on the firm foundation
of justice, and the claim to be protected is earned by
considerations which the protecting power is not at liberty to
disregard. Such domiciled citizen pays the same price for his
protection as native-born or naturalized citizens pay for theirs.
He is under the bonds of allegiance to the country of his
residence, and, if he breaks them, incurs the same penalties. He
owes the same obedience to the civil laws. His property is, in the
same way and to the same extent as theirs, liable to contribute to
the support of the Government. In nearly all respects, his and
their condition as to the duties and burdens of Government are
undistinguishable."

															2 Whart. Int.Law Dig. § 198. Page 149 U. S. 736 And in Lau Ow Bew v. United States, 144 U. S.
47 , 144 U. S. 61 ,
this Court declared that,

															"by general international law, foreigners who have become
domiciled in a country other than their own acquire rights, and
must discharge duties, in many respects the same as possessed by
and imposed upon the citizens of the country, and no restriction on
the footing upon which such persons stand by reason of their
domicile is to be presumed."

															Indeed, there is force in the contention of counsel for
appellants that these persons are "denizens," within the true
meaning and spirit of that word as used in the common law. The old
definition was this:

															"A denizen of England by letters patent for life, entail or in
fee, whereby he becomes a subject in regard of his person." Craw v. Ramsey, Vaughan 278.

															And again:

															"A denizen is an alien born, but who has obtained ex
donatione regis letters patent to make him an English subject.
. . . A denizen is in a kind of middle state between an alien and a
natural-born subject, and partakes of both of them."

															1 Bl. Comm. 374.

															In respect to this, after quoting from some of the early
Constitutions of the States, in which the word "denizen" is found,
counsel say:

															"It is claimed that the appellants in this case come completely
within the definition quoted above. They are alien born, but they
have obtained the same thing as letters patent from this country.
They occupy a middle state between an alien and a native. They
partake of both of them. They cannot vote, or, as it is stated in
Bacon's Abridgment, they have no 'power of making laws,' as a
native-born subject has, nor are they here as ordinary aliens. An
ordinary alien within this country has come here under no
prohibition and no invitation, but the appellants have come under
the direct request and invitation, and under the 'patent,' of the
federal Government. They have been guarantied 'the same privileges,
immunities, and exemptions in respect to . . . residence'
(Burlingame Treaty, concluded July 28, 1868) as that enjoyed in the
United States by the citizens and Page 149 U. S. 737 subjects of the most favored nation. They have been told that if
they would come here, they would be treated just the same as we
treat an Englishman, an Irishman, or a Frenchman. They have been
invited here, and their position is much stronger than that of an
alien, in regard to whom there is no guaranty from the Government,
and who has come not in response to any invitation, but has simply
drifted here because there is no prohibition to keep him out. They
certainly come within the meaning of 'denizen,' as used in the
Constitutions of the States."

															But, whatever rights a resident alien might have in any other
nation, here, he is within the express protection of the
Constitution, especially in respect to those guaranties which are
declared in the original amendments. It has been repeated so often
as to become axiomatic that this Government is one of enumerated
and delegated powers; and, as declared in Article 10 or the
amendments,

															"the powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States, respectively, or to the people."

															It is said that the power here asserted is inherent in
sovereignty. This doctrine of powers inherent in sovereignty is one
both indefinite and dangerous. Where are the limits to such powers
to be found, and by whom are they to be pronounced? Is it within
legislative capacity to declare the limits? If so, then the mere
assertion of an inherent power creates it, and despotism exists.
May the courts establish the boundaries? Whence do they obtain the
authority for this? Shall they look to the practices of other
nations to ascertain the limits? The Governments of other nations
have elastic powers. Ours are fixed and bounded by a written
Constitution. The expulsion of a race may be within the inherent
powers of a despotism. History, before the adoption of this
Constitution, was not destitute of examples of the exercise of such
a power, and its framers were familiar with history, and wisely,
and it seems to me, they gave to this Government no general power
to banish. Banishment may be resorted to as punishment for crime,
but Page 149 U. S. 738 among the powers reserved to the people, and not delegated to
the Government, is that of determining whether whole classes in our
midst shall, for no crime but that of their race and birthplace, be
driven from our territory.

															Whatever may be true as to exclusion -- and, as to that, see
Chinese Exclusion Case, 130 U. S. 581 , and Nishimura Ekiu v. United States, 142 U. § 651 -- I deny
that there is any arbitrary and unrestrained power to banish
residents, even resident aliens. What, it may be asked, is the
reason for any difference? The answer is obvious. The Constitution
has no extraterritorial effect, and those who have not come
lawfully within our territory cannot claim any protection from its
provisions; and it may be that the National Government, having full
control of all matters relating to other nations, has the power to
build, as it were, a Chinese wall around our borders, and
absolutely forbid aliens to enter. But the Constitution has potency
everywhere within the limits of our territory, and the powers which
the National Government may exercise within such limits are those,
and only those, given to it by that instrument. Now, the power to
remove resident aliens is, confessedly, not expressed. Even if it
be among the powers implied, yet still it can be exercised only in
subordination to the limitations and restrictions imposed by the
Constitution. In the case of Monongahela Navigation Company v.
United States, 148 U. S. 312 , 148 U. S. 336 ,
it was said:

															"But, like the other powers granted to Congress by the
Constitution, the power to regulate commerce is subject to all the
limitations imposed by such instrument, and among them is that of
the Fifth Amendment we have heretofore quoted. Congress has supreme
control over the regulation of commerce; but if, in exercising that
supreme control, it deems it necessary to take private property,
then it must proceed subject to the limitations imposed by this
Fifth Amendment, and can take only on payment of just
compensation."

															And, if that be true of the powers expressly granted, it must as
certainly be true of those that are only granted by
implication.

															When the first ten amendments were presented for adoption, Page 149 U. S. 739 they were preceded by a preamble stating that the conventions of
many States had, at the time of their adopting the Constitution,
expressed a desire, "in order to prevent misconception or abuse of
its powers, that further declaratory and restrictive clauses should
be added." It is worthy of notice that, in them, the word "citizen"
is not found. In some of them, the descriptive word is "people,"
but, in the Fifth, it is broader, and the word is "person," and in
the Sixth it is the "accused," while in the Third, Seventh, and
Eighth there is no limitation as to the beneficiaries suggested by
any descriptive word.

															In the case of Yick Wo v. Hopkins, 118 U.
S. 356 , 118 U. S. 369 ,
it was said:

															"The Fourteenth Amendment of the Constitution is not confined to
the protection of citizens. It says:"

															"Nor shall any State deprive any person of life, liberty, or
property without due process of law, nor deny to any person within
its jurisdiction the equal protection of the laws."

															"These provisions are universal in their application to all
persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality; and the equal
protection of the laws is a pledge of the protection of equal
laws."

															The matter considered in that case was of a local nature, a
municipal ordinance for regulating the carrying on of public
laundries, something fairly within the police power of a State, and
yet, because its previous conflicted with the guaranties of the
Fourteenth Amendment, the ordinance was declared void.

															If the use of the word "person" in the Fourteenth Amendment
protects all individuals lawfully within the State, the use of the
same word, "person," in the Fifth must be equally comprehensive,
and secures to all persons lawfully within the territory of the
United States the protection named therein; and a like conclusion
must follow as to the Sixth.

															I pass, therefore, to the consideration of my third proposition:
Section 6 deprives of "life, liberty, and property without due
process of law." It imposes punishment without a trial, and
punishment cruel and severe. It places the liberty of one
individual subject to the unrestrained control of Page 149 U. S. 740 another. Notice its provisions: it first commands all to
register. He who does not register violates that law, and may be
punished; and so the section goes on to say that one who has not
complied with its requirements, and has no certificate of
residence, "shall be deemed and adjudged to be unlawfully within
the United States," and then it imposes as a penalty his
deportation from the country. Deportation is punishment. It
involves -- first, an arrest, a deprival of liberty, and, second, a
removal from home, from family, from business, from property. In 1
Rapalje & Lawrence's Law Dictionary (vol. 1, page 109),
"banishment" is thus defined:

															"A punishment by forced exile, either for years or for life,
inflicted principally upon political offenders; 'transportation'
being the word used to express a similar punishment of ordinary
criminals."

															In 4 Bl. Com. 377, it is said: "Some punishments consist in
exile or banishment, by abjuration of the realm, or
transportation." In Vattel, we find that "banishment is only
applied to condemnation in due course of law." Note to section 228,
Book 1, c. 19, in 1 Vattel.

															But it needs no citation of authorities to support the
proposition that deportation is punishment. Everyone knows that to
be forcibly taken away from home and family and friends and
business and property, and sent across the ocean to a distant land,
is punishment, and that oftentimes most severe and cruel. Apt and
just are the words of one of the framers of this Constitution --
President Madison -- when he says (4 Elliot Debates 555):

															"If the banishment of an alien from a country into which he has
been invited as the asylum most auspicious to his happiness -- a
country where he may have formed the most tender connections; where
he may have invested his entire property, and acquired property of
the real and permanent, as well as the movable and temporary, kind;
where he enjoys, under the laws, a greater share of the blessings
of personal security and personal liberty than he can elsewhere
hope for; . . . if, moreover, in the execution of the sentence
against him, he is to be exposed, not only to the ordinary dangers
of the sea, but to the peculiar casualties incident to a crisis of
war and of unusual licentiousness on Page 149 U. S. 741 that element, and possibly to vindictive purposes, which his
immigration itself may have provoked -- if a banishment of this
sort be not a punishment, and among the severest of punishments, it
will be difficult to imagine a doom to which the name can be
applied."

															But punishment implies a trial: "No person shall be deprived of
life, liberty, or property without due process of law." Due process
requires that a man be heard before he is condemned, and both heard
and condemned in the due and orderly procedure of a trial, as
recognized by the common law from time immemorial. It was said by
this Court in Hagar v. Reclamation District, 111 U.
S. 701 , 111 U. S.
708 :

															"Undoubtedly, where life and liberty are involved, due process
requires that there be a regular course of judicial proceedings,
which imply that the party to be affected shall have notice, and an
opportunity to be heard."

															And by Mr. Justice Bradley, in defining "due process of law" in Davidson v. New Orleans, 96 U. S. 97 , 96 U. S.
107 :

															"If found to be suitable or admissible in the special case, it
will be adjudged to be 'due process of law,' but if found to be
arbitrary, oppressive, and unjust, it may be declared to be not
'due process of law.'"

															And no person who has once come within the protection of the
Constitution can be punished without a trial. It may be summary, as
for petty offenses and in cases of contempt, but still a trial, as
known to the common law. It is said that a person may be extradited
without a previous trial, but extradition is simply one step in the
process of arresting and securing for trial. He may be removed by
extradition from California to New York, or from this country to
another, but such proceeding is not oppressive or unjust, but
suitable and necessary, and therefore due process of law. But here,
the Chinese are not arrested and extradited for trial, but arrested
and, without a trial, punished by banishment.

															Again, it is absolutely within the discretion of the collector
to give or refuse a certificate to one who applies therefor.
Nowhere is it provided what evidence shall be furnished to the
collector, and nowhere is it made mandatory upon him to grant a
certificate on the production of such evidence. It cannot Page 149 U. S. 742 be due process of law to impose punishment on any person for
failing to have that in his possession, the possession of which he
can obtain only at the arbitrary and unregulated discretion of any
official. It will not do to say that the presumption is that the
official will act reasonably, and not arbitrarily. When the right
to liberty and residence is involved, some other protection than
the mere discretion of any official is required. Well was it said
by Mr. Justice Matthews in the case of Yick Wo v. Hopkins, on page 118 U. S.
369 :

															"When we consider the nature and the theory of our institutions
of Government, the principles upon which they are supposed to rest,
and review the history of their development, we are constrained to
conclude that they do not mean to leave room for the play and
action of purely personal and arbitrary power."

															Again, a person found without such certificate may be taken
before a United States judge. What judge? A judge in the district
in which the party resides or is found? There is no limitation in
this respect. A Chinese laborer in San Francisco may be arrested by
a deputy United States marshal, and taken before a judge in Oregon;
and, when so taken before that judge, it is made his duty to deport
such laborer unless he proves his innocence of any violation of the
law, and that, too, by at least one credible white witness. And how
shall he obtain that witness? No provision is made in the statute
therefor. Will it be said that Article 6 of the amendments gives to
the accused a right to have a compulsory process for obtaining
witnesses in his favor? The reply is that if he is entitled to one
part of that Article, he is entitled to all, and among them is the
right to a speedy and public trial by an impartial jury of the
State and district. The only theory upon which this proceeding can
be sustained is that he has no right to any benefits of this
Article 6; and if he has no right thereto, and the statute has made
no provision for securing his witnesses, or limiting the proceeding
to a judge of the district where he resides, the results follow
inevitably, as stated, that he may be arrested by any one of the
numerous officials named in the statute, and carried before any
judge in Page 149 U. S. 743 the United States that such official may select, and then,
unless he proves that which he is given no means of proving, be
punished by removal from home, friends, family, property, business,
to another country.

															It is said that these Chinese are entitled, while they remain,
to the safeguards of the Constitution and to the protection of the
laws in regard to their rights of person and of property, but that
they continue to be aliens, subject to the absolute power of
Congress to forcibly remove them. In other words, the guaranties of
"life, liberty, and property," named in the Constitution, are
theirs by sufferance, and not of right. Of what avail are such
guaranties?

															Once more: supposing a Chinaman from San Francisco, having
obtained a certificate, should go to New York or other place in
pursuit of work, and, on the way, his certificate be lost or
destroyed. He is subject to arrest and detention, the cost of which
is in the discretion of the court, and judgment of deportation will
be suspended a reasonable time to enable him to obtain a duplicate
from the officer granting it. In other words, he cannot move about
in safety without carrying with him this certificate. The situation
was well described by Senator Sherman in the debate in the
senate:

															"They are here ticket-of-leave men. Precisely as, under the
Australian law, a convict is allowed to go at large upon a
ticket-of-leave, these people are to be allowed to go at large, and
earn their livelihood, but they must have their tickets-of-leave in
their possession."

															And he added:

															"This inaugurates in our system of Government a new departure --
one, I believe, never before practiced, although it was suggested
in conference that some such rules had been adopted in slavery
times to secure the peace of society."

															It is true this statute is directed only against the obnoxious
Chinese, but, if the power exists, who shall say it will not be
exercised tomorrow against other classes and other people? If the
guaranties of these amendments can be thus ignored in order to get
rid of this distasteful class, what security have others that a
like disregard of its provisions may not be resorted to? Profound
and wise were the Page 149 U. S. 744 observations of Mr. Justice Bradley, speaking for the court in Boyd v. United States, 116 U. S. 616 , 116 U. S.
635 :

															"Illegitimate and unconstitutional practices get their first
footing in that way, namely, by silent approaches, and slight
deviations from legal modes of procedure. This can only be obviated
by adhering to the rule that constitutional provisions for the
security of person and property should be liberally construed. A
close and literal construction deprives them of half their
efficacy, and leads to gradual depreciation of the right, as if it
consisted more in sound than in substance. It is the duty of the
courts to be watchful for the constitutional rights of the citizen,
and against any stealthy encroachments thereon. Their motto should
be, ' obsta principiis. '"

															In the Yick Wo Case, in which was presented a municipal
ordinance fair on its face but contrived to work oppression to a
few engaged in a single occupation, this Court saw no difficulty in
finding a constitutional barrier to such injustice. But this
greater wrong, by which a hundred thousand people are subject to
arrest and forcible deportation from the country, is beyond the
reach of the protecting power of the Constitution. Its grievous
wrong suggests this declaration of wisdom coming from the dawn of
English history: "Verily, he who dooms a worse doom to the
friendless and the comer from afar than to his fellow injures
himself." The Laws of King Cnut, 1 Thorpe's Ancient Laws and
Institutes of England, p. 397.

															In view of this enactment of the highest legislative body of the
foremost Christian nation, may not the thoughtful Chinese disciple
of Confucius fairly ask, "Why do they send missionaries here?"

															MR. JUSTICE FIELD, dissenting. * I also wish to say a few words upon these cases, and upon the
extraordinary doctrines announced in support of the orders of the
court below. Page 149 U. S. 745 With the treaties between the United States and China, and the
subsequent legislation adopted by Congress to prevent the
immigration of Chinese laborers into this country, resulting in the
exclusion act of October 1, 1888, the court is familiar. They have
often been before us, and have been considered in almost every
phase. The act of 1888 declared that, after its passage, it should
be unlawful for any Chinese laborer -- who might then or thereafter
be a resident of the United States, who should depart therefrom,
and not return before the passage of the act -- to return or remain
in the United States. The validity of this act was sustained by
this Court. Chinese Exclusion Case, 130 U.
S. 581 . In the opinion announcing the decision, we
considered the treaties with China, and also the legislation of
Congress, and the causes which led to its enactment. The court
cited numerous instances in which statesmen and jurists of eminence
had held that it was the undoubted right of every independent
nation to exclude foreigners from its limits whenever, in its
judgment, the public interests demanded such exclusion.

															"The power of exclusion of foreigners," said the Court,

															"being 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 any time when, in
the judgment of the Government, the interests of the country
require it, cannot be granted away or restrained on behalf of any
one. The powers of Government are delegated in trust to the United
States, and are incapable of transfer to any other parties. They
cannot be abandoned or surrendered. Nor can their exercise be
hampered, when needed for the public good, by any considerations of
private interest. The exercise of these public trusts is not the
subject of barter or contract. Whatever license, therefore, Chinese
laborers may have obtained previous to the act of October 1, 1888,
to return to the United States after their departure, is held at
the will of the Government, revocable at any time at its pleasure.
Whether a proper consideration by our Government of its previous
laws, or a proper respect for the nation whose subjects are
affected by its action, ought to have qualified its inhibition, and
made it applicable only to Page 149 U. S. 746 persons departing from the country after the passage of the act,
are not questions for judicial determination. If there be any just
ground of complaint on the part of China, it must be made to the
political department of our Government, which is alone competent
act upon the subject."

															I had the honor to be the organ of the Court in announcing this
opinion and judgment. I still adhere to the views there expressed,
in all particulars; but between legislation for the exclusion of
Chinese persons -- that is, to prevent them from entering the
country -- and legislation for the deportation of those who have
acquired a residence in the country under a treaty with China,
there is a wide and essential difference. The power of the
Government to exclude foreigners from this country -- that is, to
prevent them from entering it -- whenever the public interests, in
its judgment, require such exclusion, has been repeatedly asserted
by the Legislative and Executive Departments of our Government, and
never denied; but its power to deport from the country persons
lawfully domiciled therein by its consent, and engaged in the
ordinary pursuits of life, has never been asserted by the
Legislative or Executive Departments, except for crime, or as an
act of war, in view of existing or anticipated hostilities, unless
the Alien Act of 1798 can be considered as recognizing that
doctrine. 1 Stat. p. 570, c. 58. That act vested in the President
power to order all such aliens as he should adjudge dangerous to
the peace and safety of the United States, or should have
reasonable grounds to suspect were concerned in any treasonable or
secret machinations against the Government, to depart out of the
territory of the United States within such time as should be
expressed in his order; and in case any alien, when thus ordered to
depart, should be found at large within the United States after the
term limited in the order, not having obtained a license from the
President to reside therein, or, having obtained such license,
should not have conformed thereto, he should, on conviction
thereof, be imprisoned for a term not exceeding three years, and
should never afterwards be admitted to become a citizen of the
United States, with a proviso that if the alien thus ordered to
depart should prove to the satisfaction Page 149 U. S. 747 of the President, by evidence to be taken before such person or
persons as he should direct, that no injury or danger to the United
States would arise from suffering him to reside therein, the
President might grant a license to him to remain within the United
States for such time as he should judge proper, and at such place
as he should designate. The act also provided that the President
might require such alien to enter into a bond to the United States,
in such penal sum as he might direct, with one or more sureties, to
the satisfaction of the person authorized by the President to take
the same, conditioned for his good behavior during his residence in
the United States, and not to violate his license, which the
President might revoke whenever he should think proper. The act
also provided that it should be lawful for the President, whenever
he deemed it necessary for the public safety, to order to be
removed out of the territory of the United States any alien in
prison in pursuance of the act, and to cause to be arrested, and
sent out of the United States, such aliens as may have been ordered
to depart, and had not obtained a license, in all cases where, in
the opinion of the President, the public safety required a speedy
removal, and that if any alien thus removed or sent out of the
United States should voluntarily return, unless by permission of
the President, such alien, being convicted thereof, should be
imprisoned so long as, in the opinion of the President, the public
safety might require.

															The passage of this act produced great excitement throughout the
country, and was severely denounced by many of its ablest statesmen
and jurists as unconstitutional and barbarous, and among them may
be mentioned the great names of Jefferson and Madison, who are
throughout our country honored and revered for their lifelong
devotion to principles of constitutional liberty. It was defended
by its advocates as a war measure. John Adams, the President of the
United States at the time, who approved the bill, and against whom
the responsibility for its passage was charged, states in his
correspondence that the bill was intended as a measure of that
character. 9 John Adam's Works, 291. The State of Virginia
denounced it in severe terms. Its general assembly Page 149 U. S. 748 passed resolutions upon the act, and another act of the same
session of Congress, known as the "Sedition Act." Upon the first --
the alien act -- one of the resolutions declared that it exercised
a power nowhere delegated to the federal Government, and which, by
uniting legislative and judicial powers to those of executive,
subverted the general principles of free Government, as well as the
particular organization and positive provisions of the federal
Constitution. 4 Elliot's Deb. 529. The resolutions upon both acts
were transmitted to the legislatures of different States, and their
communications in answer to them were referred to a committee of
the General Assembly of Virginia, of which Mr. Madison was a
member, and upon them his celebrated report was made. With
reference to the Alien Act, after observing that it was incumbent
in this, as in every other exercise of power by the Federal
Government, to prove from the Constitution that it granted the
particular power exercised, and also that much confusion and
fallacy had been thrown into the question to be considered by
blending the two cases of aliens, members of a hostile nation,
and aliens, members of friendly nations, he said:

															"With respect to alien enemies, no doubt has been intimated as
to the federal authority over them, the Constitution having
expressly delegated to Congress the power to declare war against
any nation, and, of course, to treat it and all its members as
enemies. With respect to aliens who are not enemies, but members of
nations in peace and amity with the United States, the power
assumed by the act of Congress is denied to be constitutional, and
it is accordingly against this act that the protest of the General
Assembly is expressly and exclusively directed."

															4 Elliot's Deb. 554.

															"Were it admitted, as is contended, that the 'act concerning
aliens' has for its object, not a penal, but a preventive, justice, it would still remain to be proved
that it comes within the constitutional power of the Federal
Legislature, and, if within its power, that the Legislature has
exercised it in a constitutional manner. . . . But it can never be
admitted that the removal of aliens, authorized by the act, is to
be considered not as punishment for an offense, but as a measure
of Page 149 U. S. 749 precaution and prevention. If the banishment of an alien from a
country into which he has been invited as the asylum most
auspicious to his happiness -- a country where he may have formed
the most tender connections; where he may have invested his entire
property, and acquired property of the real and permanent as well
as the movable and temporary kind; where he enjoys, under the laws,
a greater share of the blessings of personal security and personal
liberty than he can elsewhere hope for; . . . if a banishment of
this sort be not a punishment, and among the severest of
punishments, it would be difficult to imagine a doom to which the
name can be applied. And, if it be a punishment, it will remain to
be inquired whether it can be constitutionally inflicted, on mere
suspicion, by the single will of the executive magistrate, on
persons convicted of no personal offense against the laws of the
land, nor involved in any offense against the law of nations,
charged on the foreign state of which they are members."

															4 Elliot's Deb. 555. It does not follow because aliens are not
parties to the Constitution, as citizens are parties to it, that,
whilst they actually conform to it, they have no right to its
protection. Aliens are not more parties to the laws than they are
parties to the Constitution, yet it will not be disputed that, as
they owe, on one hand, a temporary obedience, they are entitled, in
return, to their protection and advantage. If aliens had no rights
under the Constitution, they might not only be banished, but even
capitally punished, without a jury or the other incidents to a fair
trial. But, so far has a contrary principle been carried in every
part of the United States that, except on charges of treason, an
alien has, besides all the common privileges, the special one of
being tried by a jury, of which one-half may be also aliens.

															"It is said, further, that, by the law and practice of nations,
aliens may be removed at discretion, for offenses against the law
of nations; that Congress are authorized to define and punish such
offenses; and that to be dangerous to the peace of society is, in
aliens, one of those offenses."

															"The distinction between alien enemies and alien friends is Page 149 U. S. 750 a clear and conclusive answer to this argument. Alien enemies
are under the law of nations, and liable to be punished for
offenses against it. Alien friends, except in the single case of
public ministers, are under the municipal law, and must be tried
and punished according to the law only."

															4 Elliot's Deb. 556.

															Massachusetts, evidently considering the Alien Act as a war
measure, adopted in anticipation of probable hostilities, said, in
answer to the resolutions of Virginia, among other things, that

															"the removal of aliens is the usual preliminary of hostility,
and is justified by the invariable usages of nations. Actual
hostility had, unhappily, been long experienced, and a formal
declaration of it the Government had reason daily to expect."

															Id. 535.

															The duration of the act was limited to two years, and it has
ever since been the subject of universal condemnation. In no other
instance, until the law before us was passed, has any public man
had the boldness to advocate the deportation of friendly aliens in
time of peace. I repeat the statement that in no other instance has
the deportation of friendly aliens been advocated as a lawful
measure by any department of our Government. And it will surprise
most people to learn that any such dangerous and despotic power
lies in our Government -- a power which will authorize it to expel
at pleasure, in time of peace, the whole body of friendly
foreigners of any country domiciled herein by its permission; a
power which can be brought into exercise whenever it may suit the
pleasure of Congress, and be enforced without regard to the
guaranties of the Constitution intended for the protection of the
rights of all persons in their liberty and property. Is it possible
that Congress can, at its pleasure, in disregard of the guaranties
of the Constitution, expel at any time the Irish, German, French,
and English who may have taken up their residence here on the
invitation of the Government, while we are at peace with the
countries from which they came, simply on the ground that they have
not been naturalized?

															Notwithstanding the activity of the public authorities in
enforcing the exclusion act of 1888, it was constantly evaded. Page 149 U. S. 751 Chinese laborers came into the country by water and by land;
they came through the open ports, and by rivers reaching the seas,
and they came by the way of the Canadas and Mexico. New means of
ingress were discovered, and, in spite of the vigilance of the
police and customs officers, great numbers clandestinely found
their way into the country. Their resemblance to each other
rendered it difficult, and often impossible, to prevent this
evasion of the laws. It was under these circumstances that the act
of May 5, 1892, was passed. It had two objects in view . There were
two classes of Chinese persons in the country -- those who had
evaded the laws excluding them and entered clandestinely and those
who had entered lawfully, and resided therein under the treaty with
China.

															The act of 1892 extended, for the period of 10 years from its
passage, all laws then in force prohibiting and regulating the
coming into the country of Chinese persons or persons of Chinese
descent, and it provided that any person, when convicted or
adjudged under any of those laws of not legally being or remaining
in the United States, should be removed therefrom to China, or to
such other country as it might appear he was a subject of, unless
such other country should demand a tax as a condition of his
removal thereto, in which case he should be removed to China. The
act also provided that a Chinese person arrested under its
provisions, or the provisions of the acts extended, should be
adjudged to be unlawfully within the United States unless he should
establish by affirmative proof his lawful right to remain within
the United States, and that any Chinese person, or persons of
Chinese descent,

															"convicted and adjudged not lawfully entitled to be or remain in
the United States, should be imprisoned at hard labor for a period
not exceeding one year, and thereafter removed from the United
States."

															With this class of Chinese, and with the provisions of law
applicable to them, we have no concern in the present case. We have
only to consider the provisions of the act applicable to the second
class of Chinese persons -- those who had a lawful right to remain
in the United States. By the additional articles to the Page 149 U. S. 752 treaty of 1858, adopted in 1868, generally called the
"Burlingame Treaty," the Governments of the two countries
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 the
one country to the other for purposes of curiosity, of trade, or as
permanent residents,"

															and accordingly the treaty, in the additional articles, provided
that citizens of the United States visiting or residing in China,
and Chinese subjects visiting or residing in the United States,
should reciprocally enjoy the same privileges, immunities, and
exemptions in respect to travel or residence as should be enjoyed
by citizens or subjects of the most favored nation, in the country
in which they should, respectively, be visiting or residing. 16
Stat. 739, 740. The supplemental treaty of November 17, 1880,
providing for the limitation or suspension of the emigration of
Chinese laborers, declared that

															"the limitation or suspension shall be reasonable, and apply
only to Chinese who may go to the United States as laborers --
other classes not being included in the limitation,"

															and that

															"Chinese subjects, whether residing in the United States as
teachers, students, merchants, or from curiosity, together with
their body and household servants, and Chinese laborers who were
then in the United States, shall be allowed to go and come of their
own free will and accord, and shall be accorded all rights,
privileges, immunities, and exemptions which are accorded to the
citizens and subjects of the most favored nation."

															There are many thousands of Chinese laborers who came to the
country and resided in it under the additional articles of the
treaty adopted in 1868, and were in the country at the time of the
adoption of the supplemental treaty of November, 1880. To these
laborers, thus lawfully within the limits of the United States,
section 6 of the act of May 5, 1892, relates. That section, so far
as applicable to the present cases, is as follows:

															"SEC. 6. And 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 Page 149 U. S. 753 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, and any Chinese laborer
within the United States, who shall neglect, fail, or refuse to
comply with the provisions of this act, or who, after one year from
the passage hereof, shall be found within the jurisdiction of the
United States without such certificate of residence, shall be
deemed and adjudged to be unlawfully within the United States, and
may be arrested by any United States customs official, collector of
internal revenue or his deputies, United States Marshal or his
deputies, and taken before a United States judge, whose duty it
shall be to order that he be deported from the United States, as
hereinbefore provided, unless he shall establish clearly, to the
satisfaction of the 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 had
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."

															The purpose of this section was to secure the means of readily
identifying the Chinese laborers present in the country, and
entitled to remain, from those who may have clandestinely entered
the country in violation of its laws. Those entitled to remain, by
having a certificate of their identification, would enable the
officers of the Government to readily discover, and bring to
punishment, those not entitled to enter, but who are excluded. To
procure such a certificate was not a hardship to the laborers, but
a means to secure full protection to them, and at the same time
prevent an evasion of the law.

															This object being constitutional, the only question for our Page 149 U. S. 754 consideration is the lawfulness of the procedure provided for
its accomplishment, and this must be tested by the provisions of
the Constitution and laws intended for the protection of all
persons against encroachment upon their rights. Aliens from
countries at peace with us, domiciled within our country by its
consent, are entitled to all the guaranties for the protection of
their persons and property which are secured to native-born
citizens. The moment any human being from a country at peace with
us comes within the jurisdiction of the United States, with their
consent -- and such consent will always be implied when not
expressly withheld, and, in the case of the Chinese laborers before
us, was, in terms, given by the treaty referred to -- he becomes
subject to all their laws, is amenable to their punishment, and
entitled to their protection. Arbitrary and despotic power can no
more be exercised over them, with reference to their persons and
property, than over the persons and property of native-born
citizens. They differ only from citizens in that they cannot vote
or hold any public office. As men having our common humanity, they
are protected by all the guaranties of the Constitution. To hold
that they are subject to any different law, or are less protected
in any particular, than other person is, in my judgment, to ignore
the teachings of our history, the practice of our Government, and
the language of our Constitution. Let us test this doctrine by an
illustration: if a foreigner who resides in the country by its
consent commits a public offense, is he subject to be cut down,
maltreated, imprisoned, or put to death by violence, without
accusation made, trial had, and judgment of an established
tribunal, following the regular forms of judicial procedure? If any
rule in the administration of justice is to be omitted or discarded
in his case, what rule is it to be? If one rule may lawfully be
laid aside in his case, another rule may also be laid aside, and
all rules may be discarded. In such instances, a rule of evidence
may be set aside in one case, a rule of pleading in another; the
testimony of eye-witnesses may be rejected, and hearsay adopted; or
no evidence at all may be received, but simply an inspection of the
accused, as is often Page 149 U. S. 755 the case in tribunals of Asiatic countries, where personal
caprice and not settled rules prevail. That would be to establish a
pure, simple, undisguised despotism and tyranny with respect to
foreigners resident in the country by its consent, and such an
exercise of power is not permissible under our Constitution.
Arbitrary and tyrannical power has no place in our system. As said
by this Court, speaking by Mr. Justice Matthews, in Yick Wo v.
Hopkins, 118 U. S. 366 , 118 U. S.
369 :

															"When we consider the nature and the theory of our institutions
of Government, the principles upon which they are supposed to rest,
and review the history of their development, we are constrained to
conclude they do not mean to leave room for the play and action of
purely personal and arbitrary power. . . . The fundamental rights
to life, liberty, and the pursuit of happiness, considered as
individual possessions, are secured by those maxims of
constitutional law which are the monuments showing the victorious
progress of the race in securing to man the blessings of
civilization under the reign of just and equal laws."

															What once I had occasion to say of the protection afforded by
our Government, I repeat:

															"It is certainly something in which a citizen of the United
States may feel a generous pride that the Government of his country
extends protection to all persons within its jurisdiction, and that
every blow aimed at any of them, however humble, come from what
quarter it may, 'is caught upon the broad shield of our blessed
Constitution and our equal laws.'" Ah Kow v. Nunan, 5 Sawy. 552-563.

															I utterly dissent from, and reject, the doctrine expressed in
the opinion of the majority that

															"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."

															An arrest in that way, for that purpose, would not be a
reasonable seizure of the person, within the meaning of the Fourth
Article of the amendments of the Constitution. It would be brutal
and oppressive. The Page 149 U. S. 756 existence of the power thus stated is only consistent with the
admission that the Government is one of unlimited and despotic
power, so far as aliens domiciled in the country are concerned.
According to this theory, Congress might have ordered executive
officers to take the Chinese laborers to the ocean, and put them
into a boat, and set them adrift, or to take them to the borders of
Mexico, and turn them loose there, and in both cases without any
means of support. Indeed, it might have sanctioned towards these
laborers the most shocking brutality conceivable. I utterly
repudiate all such notions, and reply that brutality, inhumanity,
and cruelty cannot be made elements in any procedure for the
enforcement of the laws of the United States.

															The majority of the Court have, in their opinion, made numerous
citations from the courts and the utterances of individuals upon
the power of the Government of an independent nation to exclude
foreigners from entering its limits, but none, beyond a few loose
observations, as to its power to expel and deport from the country
those who are domiciled therein by its consent. The citation from
the opinion in the recent case of Nishimura Ekiu v. United
States, (the Japanese Case ), 142 U.
S. 651 ; the citation from the opinion in Chae Chan
Ping v. United States (the Chinese Exclusion Case ), 130 U. S. 603 , 130 U. S. 604 , 130 U. S. 606 ;
the citation in the case before the Judiciary Committee of the
Privy Council -- all have reference to the exclusion of foreigners
from entering the country. They do not touch upon the question of
deporting them from the country after they have been domiciled
within it by the consent of its Government, which is the real
question in the case. The citation from Vattel is only as to the
power of exclusion; that is, from coming into the country. The
citation from Phillimore is to the same effect. As there stated,
the Government allowing the introduction of aliens may prescribe
the conditions on which they shall be allowed to remain, the
conditions being imposed whenever they enter the country. There is
no dispute about the power of Congress to prevent the landing of
aliens in the country. The question is as to the power of Congress
to deport them, without Page 149 U. S. 757 regard to the guaranties of the Constitution. The statement
that, in England, the power to expel aliens has always been
recognized, and often exercised, and the only question that has
ever been as to this power is whether it could be exercised by the
King without the consent of Parliament, is, I think, not strictly
accurate. The citations given by Mr. Choate in his brief show
conclusively, it seems to me, that deportation from the realm has
not been exercised in England since Magna Charta except in
punishment for crime or as a measure in view of existing or
anticipated hostilities. But even if that power were exercised by
every Government of Europe, it would have no bearing in these
cases. It may be admitted that the power has been exercised by the
various Governments of Europe. Spain expelled the Moors; England,
in the reign of Edward I., banished 15,000 Jews;** and Louis XIV.,
in 1685, by revoking the edict of Nantes, which gave religious
liberty to Protestants in France, drove out the Huguenots. Nor does
such severity of European Governments belong only to the distant
post. Within three years, Russia has banished many thousands of
Jews, and apparently intends the expulsion of the whole race -- an
act of barbarity which has aroused the indignation of all
Christendom. Such was the feeling in this country that, friendly as
our relations with Russia had always been, President Harrison felt
compelled to call the attention of Congress to it in his message in
1891 as a fit subject for national remonstrance. Indeed, all the
instances mentioned have been condemned for their barbarity and
cruelty, and no power to perpetrate such barbarity is to be implied
from the nature of our Government, and certainly is not found in
any delegated powers under the Constitution.

															The Government of the United States is one of limited and
delegated powers. It takes nothing from the usages or the former
action of European Governments, nor does it take any power by any
supposed inherent sovereignty. There is a great deal of confusion
in the use of the word "sovereignty" Page 149 U. S. 758 by law writers. Sovereignty or supreme power is in this country
vested in the people, and only in the people. By them certain
sovereign powers have been delegated to the Government of the
United States, and other sovereign powers reserved to the States or
to themselves. This is not a matter of inference and argument, but
is the express declaration of the Tenth Amendment to the
Constitution, passed to avoid any misinterpretation of the powers
of the General Government. That Amendment declares that

															"that powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States, respectively, or to the people."

															When, therefore, power is exercised by Congress, authority for
it must be found in express terms in the Constitution, or in the
means necessary or proper for the execution of the power expressed.
If it cannot be thus found, it does not exist.

															It will be seen by its provisions that the sixth section
recognizes the right of certain Chinese laborers to remain in the
United States, but, to render null that right, it declares that if,
within one year after the passage of the act, any Chinese laborer
shall have neglected, failed, or refused to comply with the
provisions of the act to obtain a certificate of residence, or
shall be found within the jurisdiction of the United States without
a certificate of residence, he shall be deemed and adjudged to be
unlawfully within the United States, and may be arrested by any
United States customs official, collector of internal revenue or
his deputies, United States marshal or his deputies, and taken
before a United States judge, whose duty it shall be to order that
he be deported from the United States, unless he shall establish
clearly, to the satisfaction of the judge, that by reason of
accident, sickness, or other unavoidable cause, he has been unable
to secure his certificate, and to the satisfaction of the judge, by
at least one credible white witness, that he was a resident of the
United States at the time of the passage of the act. His
deportation is thus imposed for neglect to obtain a certificate of
residence, from which he can only escape by showing his inability
to secure it from one of the causes named. That is the
punishment Page 149 U. S. 759 for his neglect, and that, being of an infamous character, can
only be imposed after indictment, trial, and conviction. If applied
to a citizen, none of the Justices of this Court would hesitate a
moment to pronounce it illegal. Had the punishment been a fine, or
anything else than of an infamous character, it might have been
imposed without indictment; but not so now, unless we hold that a
foreigner from a country at peace with us, though domiciled by the
consent of our Government, is withdrawn from all the guaranties of
due process of law prescribed by the Constitution, when charged
with an offense to which the grave punishment designated is
affixed.

															The punishment is beyond all reason in its severity. It is out
of all proportion to the alleged offense. It is cruel and unusual.
As to its cruelty, nothing can exceed a forcible deportation from a
country of one's residence, and the breaking up of all the
relations of friendship, family, and business there contracted. The
laborer may be seized at a distance from his home, his family, and
his business, and taken before the judge for his condemnation,
without permission to visit his home, see his family, or complete
any unfinished business. Mr. Madison well pictures its character in
his powerful denunciation of the alien law of 1798, in his
celebrated report upon the resolutions, from which we have cited,
and concludes, as we have seen, that if a banishment of the
sort described be not a punishment, and among the severest of
punishments, it will be difficult to imagine a doom to which the
name can be applied. Again, when taken before a United States judge, he is required,
in order to avoid the doom declared, to establish clearly, to the
satisfaction of the judge, that, by reason of accident, sickness,
or other unavoidable cause, he was unable to secure his
certificate, and that he was a resident of the United States at the
time, by at least one credible white witness. Here the
Government undertakes to exact of the party arrested the testimony
of a witness of a particular color, though conclusive and
incontestable testimony from others may be adduced. The law might
as well have said that, unless the laborer Page 149 U. S. 760 should also present a particular person as a witness, who could
not be produced, from sickness, absence, or other cause, such as
the archbishop of the State, to establish the fact of residence, he
should be held to be unlawfully within the United States.

															There are numerous other objections to the provisions of the act
under consideration. Every step in the procedure provided, as truly
said by counsel, tramples upon some constitutional right. Grossly
it violates the Fourth Amendment, which declares that

															"The right of the people to be secure in their persons . . .
against unreasonable searches and seizures shall not be violated,
and no warrant shall issue but upon probable cause, supported by
oath or affirmation, and particularly describing the . . . persons
. . . to be seized."

															The act provides for the seizure of the person without oath or
affirmation or warrant, and without showing any probable cause by
the officials mentioned. The arrest, as observed by counsel,
involves a search of his person for the certificate which he is
required to have always with him. Who will have the hardihood and
effrontery to say that this is not an "unreasonable search and
seizure of the person?" Until now, it has never been asserted by
any court or judge of high authority that foreigners domiciled in
this country by the consent of our Government could be deprived of
the securities of this Amendment; that their persons could be
subjected to unreasonable searches and seizures, and that they
could be arrested without warrant upon probable cause, supported by
oath or affirmation.

															I will not pursue the subject further. The decision of the
Court, and the sanction it would give to legislation depriving
resident aliens of the guaranties of the Constitution, fill me with
apprehensions. Those guaranties are of priceless value to every one
resident in the country, whether citizen or alien. I cannot but
regard the decision as a blow against constitutional liberty when
it declares that Congress has the right to disregard the guaranties
of the Constitution intended for the protection of all men
domiciled in the country with the consent of the Government, in
their rights of person and property. Page 149 U. S. 761 How far will its legislation go? The unnaturalized resident
feels it today, but if Congress can disregard the guaranties with
respect to any one domiciled in the country with its consent, it
may disregard the guaranties with respect to naturalized citizens.
What assurance have we that it may not declare that naturalized
citizens of a particular country cannot remain in the United States
after a certain day unless they have in their possession a
certificate that they are of good moral character, and attached to
the principles of our Constitution, which certificate they must
obtain from a collector of internal revenue upon the testimony of
at least one competent witness of a class or nationality to be
designated by the Government?

															What answer could the naturalized citizen in that case make to
his arrest for deportation which cannot be urged in behalf of the
Chinese laborers of today?

															I am of the opinion that the orders of the court below should be
reversed, and the petitioners should be discharged.

															* MR. JUSTICE FIELD's dissenting opinion bears the titles of the
three cases, Nos. 1345, 1346, and 1347, and is further generally
entitled "Chinese Deportation Cases."

															** The Jews during his reign were cruelly despoiled, and in 1290
ordered, under penalty of death, to quit England forever before a
certain day. 6 Amer. & Eng. Enc. Law, p. 434.

															MR. CHIEF JUSTICE FULLER, dissenting.

															I also dissent from the opinion and judgment of the Court in
these cases.

															If the protection of the Constitution extends to Chinese
laborers who are lawfully within, and entitled to remain in, the
United States, under previous treaties and laws, then the question
whether this act of Congress, so far as it relates to them, is in
conflict with that instrument is a judicial question, and its
determination belongs to the Judicial Department.

															However reluctant courts may be to pass upon the
constitutionality of legislative acts, it is of the very essence of
judicial duty to do so when the discharge of that duty is properly
invoked.

															I entertain no doubt that the provisions of the Fifth and
Fourteenth Amendments, which forbid that any person shall be
deprived of life, liberty, or property without due process of law,
are, in the language of Mr. Justice Matthews, already quoted by my
Brother Brewer,

															"universal in their application to all persons within the
territorial jurisdiction, without Page 149 U. S. 762 regard to any differences of race, of color, or of
nationality;"

															and although, in Yick Wo's Case, 118 U.
S. 356 , only the validity of a municipal ordinance was
involved, the rule laid down as much applies to Congress under the
Fifth Amendment as to the States under the Fourteenth. The right to
remain in the United States, in the enjoyment of all the rights,
privileges, immunities, and exemptions accorded to the citizens and
subjects of the most favored nation, is a valuable right, and
certainly a right which cannot be taken away without taking away
the liberty of its possessor. This cannot be done by mere
legislation.

															The argument is that friendly aliens, who have lawfully acquired
a domicile in this country, are entitled to avail themselves of the
safeguards of the Constitution only while permitted to remain, and
that the power to expel them, and the manner of its exercise, are
unaffected by that instrument. It is difficult to see how this can
be so in view of the operation of the power upon the existing
rights of individuals; and to say that the residence of the alien,
when invited and secured by treaties and laws, is held in
subordination to the exertion against him, as an alien, of the
absolute and unqualified power asserted, is to import a condition
not recognized by the fundamental law. Conceding that the exercise
of the power to exclude is committed to the political department,
and that the denial of entrance is not necessarily the subject of
judicial cognizance, the exercise of the power to expel, the manner
in which the right to remain may be terminated, rests on different
ground, since limitations exist or are imposed upon the deprivation
of that which has been lawfully acquired. And while the General
Government is invested, in respect of foreign countries and their
subjects or citizens, with the powers necessary to the maintenance
of its absolute independence and security throughout its entire
territory, it cannot, in virtue of any delegated power, or power
implied therefrom, of of a supposed inherent sovereignty,
arbitrarily deal with persons lawfully within the peace of its
dominion. But the act before us is not an act to abrogate or repeal
treaties or laws in respect of Chinese laborers entitled to remain
in the United States, or Page 149 U. S. 763 to expel them from the country, and no such intent can be
imputed to Congress. As to them, registration for the purpose of
identification is required, and the deportation denounced for
failure to do so is by way of punishment to coerce compliance with
that requisition. No euphuism can disguise the character of the act
in this regard. It directs the performance of a judicial function
in a particular way, and inflicts punishment without a judicial
trial. It is, in effect, a legislative sentence of banishment, and,
as such, absolutely void. Moreover, it contains within it the germs
of the assertion of an unlimited and arbitrary power, in general,
incompatible with the immutable principles of justice, inconsistent
with the nature of our Government, and in conflict with the written
Constitution by which that Government was created and those
principles secured.

Summary:
In *Fong Yue Ting v. United States*, the Supreme Court upheld the power of the US government to expel or exclude aliens, stating it as an "inherent and inalienable right of every sovereign nation." The Court affirmed that this power rests with the political and executive branches, with potential involvement from the judiciary to ascertain facts. Congress has the authority to establish systems for alien registration and identification and can enact laws to carry out these systems, even if they contradict earlier treaty stipulations.

The Court examined Section 6 of the Act of May 5, 1892, which required Chinese laborers in the US to obtain residence certificates and provided for deportation if they failed to do so. It was argued that this violated the Constitution's safeguards, but the Court disagreed, stating that the power to expel aliens does not arbitrarily override their lawfully acquired rights.

However, the Court clarified that Congress cannot arbitrarily deal with persons lawfully within US territory and that the Act was not intended to expel Chinese laborers entitled to remain. The Court characterized the Act as a means to coerce compliance with registration requirements, deeming it a "legislative sentence of banishment" and thus void.

In summary, the case affirmed the government's power over alien exclusion and expulsion but maintained that such power must be exercised within constitutional limits, respecting the rights of individuals lawfully present in the country.