An early Commerce Clause case in which Miln, a shipmaster who transported immigrants to the U.S., challenged a state regulation that required the screening of ship passengers and collection of fees. Fees collected ($1.50 for cabin passengers and $1.00 for those in steerage) were used to maintain a marine hospital. The Court held that states had certain powers to regulate immigrants within their boundaries, in the absence of a federal immigration policy. [A Legal History of Asian American (LHA), 1790-1990, by Hyung-Chan: 37] The lack of uniform immigration policies allowed the importation of labor for profit until federal control took hold in the 1880s.(ES)

All of plaintiff's companions were released from the custody of the sheriff on a writ of habeas corpus. But plaintiff by a writ of error brings the case to the Supreme Court. The Court ruled:

We are not called upon by this statute to decide for or against the right of a State, in the absence of legislation by Congress, to protect herself by necessary and proper laws against paupers and convicted criminals from abroad; nor to lay down the definite limit of such right, if it exist. Such a right can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity. When a State statute, limited to provisions necessary and appropriate to that object alone, shall, in a proper controversy, come before us, it will be time enough to decide that question. The statute of California goes so far beyond what is necessary, or even appropriate, for this purpose, as to be wholly without any sound definition of the right under which it is supposed to be justified. Its manifest purpose, as we have already said, is, not to obtain indemnity, but money.

Whether a young woman's manners are such as to justify the commissioner in calling her lewd may be made to depend on the sum she will pay for the privilege of landing in San Francisco. . . In any view which we can take of this statute, it is in conflict with the Constitution of the United States, and therefore void..(TCL)

Chew Heong is a subject of the emperor of China and a Chinese laborer. He resided in this country on November 11, 1880. He departed from the United States for Honolulu, in the Hawaiian kingdom, on June 18, 1881, and remained there until September 15, 1884, when he took passage on an American vessel bound for the port of San Francisco. Arriving at that port on September 22, 1884, his request to be permitted to leave the vessel was denied, and he was detained on board, under the claim that the act of congress of May 6, 1882, as amended, forbade him to land within the United States. He was thereupon brought before the circuit court of the United States, for the district of California, upon a writ of habeas corpus. The United States attorney for that district objected to his discharge. It was held that he was not entitled to re-enter or to remain in the United States, and must be deported to the place whence he came, to-wit, Honolulu.

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

[A treaty in force constitutes a part of the supreme law of the land] . . . By the treaty of 1868 subjects of China were entitled, without restriction, to come to this country for purposes of curiosity, or trade, or as permanent residents; but, in deference to the opinion of our government that the presence here of Chinese laborers might be injurious to the public interests, or might endanger good order in our land, China agreed in the treaty of 1880 to such modifications of previous treaties as would enable the United States to regulate, limit, or suspend their coming or residence, without absolutely prohibiting it; such limitation or suspension to be reasonable in its character. As to certain classes of Chinese, it was distinctly provided that they should be permitted to go and come of their own free will, and be accorded all the rights, privileges, immunities, and exemptions that are granted to citizens and subjects of the most favored nation. Those classes were: (1) Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants; (2) Chinese laborers who were in this country, Chinese laborers who were in exercise, by these particular classes, of the rights of free ingress and egress, no limitation in respect of time was imposed by the treaty.

. . . [the plaintiff] is a Chinese laborer who was in this country on the seventeenth day of November, 1880. He was, therefore, entitled, by the provisions of the treaty, to return to, and remain in, the United States . . .

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

In accordance with these views, it is adjudged that the plaintiff in error is entitled to enter and remain in the United States. . . The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. (TCL)

In 1880 there were about 320 laundries in San Francisco, of which about 240 were owned and operated by Chinese proprietors. Of the 320 about 310 were constructed of wood, as were nine-tenths of the houses in San Francisco. On May 26 and July 28, 1880 San Francisco's supervisors passed the "Chinese Laundry' Laws, municipal ordinances enacted ostensibly to protect the largely wooden city from fire, but whose true motive was to drive San Francisco's Chinese laundries out of business.

Yick Wo had operated a laundry in the same wooden building for twenty-two years. On July 1. 1885 he was refused consent to continue his trade. The City of San Francisco refused similar consent to over two hundred other Chinese laundrymen, while they gave their consent to eighty non-Chinese. Yick Wo and more than one hundred fifty other Chinese laundrymen were arrested, tried, and found guilty of violating the San Francisco "Chinese Laundry" Laws. Yick Wo was fined $10, which he refused to pay, and was imprisoned in the San Francisco County Jail. He petitioned the California Supreme Court to order San Francisco Sheriff Hopkins to release him.

That court refused and Yick Wo, asserting that the arbitrary application of a law based solely on race was unconstitutional, appealed to the U.S. Supreme Court. The issue is whether [Yick Wo] has been denied a right in violation of the Constitution, laws, or treaties of the United States. The Court ruled:

The rights of [Yick Wo], as affected by the proceedings of which [he] complain[s], are not less, because [he is an alien and subject] of the Emperor of China. By the third article of the treaty between this Government and that of China, concluded November 17, 1880, it is stipulated. ?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 powers 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' . . . The Fourteenth Amendment to 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. It is accordingly enacted by Section 1977 of the Revised Statutes, that ?all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.' The questions we have to consider and decide in [this case], therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.

. . . For the [case presents] the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to [Yick Wo], as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States. Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.... It appears that [Yick Wo has] complied with every requisite, deemed by the law or by the public officers charged with its administration. necessary for the protection of neighboring property from fire, or as a precaution against injury to the public health. No reason whatever, except the will of the supervisors, is assigned why (he] should not be permitted to carry on, in the accustomed manner, [his] harmless and useful occupation, on which [he depends] for a livelihood. And while this consent of the supervisors is withheld from [him] and from two hundred others who have also petitioned, all of whom happen to be Chinese subjects, eighty others, not Chinese subjects, are permitted to carry on the same business under similar conditions. The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hostility to the race and nationality to which [Yick Wo belongs], and which in the eye of the law is not justified. The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution. The imprisonment of [Yick Wo] is, therefore, illegal, and [he] must be discharged. To this end, the judgment of the Supreme Court of California in the case of Yick Wo ... [is reversed], and the [case] remanded. . . . with directions to discharge [Yick Wo] from custody and imprisonment.

The Yick Wo decision, striking down San Francisco's racially drawn Chinese Laundry Laws, was one of the few successful civil rights challenges under the Fourteenth Amendment's Equal Protection Clause. (TCL)

Baldwin and others detained by force and arms several hours Sung Lee and others, all Chinese aliens lawfully residing and doing business in Nicolaus, Sutter County, California, and with violence and intimidation, placed them upon a steam-boat barge, then plying on the Feather river, and drove them from their residence and labor, and from said county. Baldwin was held in custody by the marshal under a warrant issued by a commissioner of the circuit court for violation of the law in conspiracy "to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the United States. . ." This is a writ of error bought by Thomas for the review of a judgement of the circuit court of the United States for the District of California, refusing his discharge, on a writ of habeas corpus, from the custody of the marshal of the district. The judgment of the circuit court was reversed.

The Court ruled "the person on whom the wrong to be punishable must be inflicted is described as a citizen. In the constitution and laws of the United States the word 'citizen' is generally, if not always, used in a political sense, to designate one who has the rights and privileges of a citizen of a state or of the United States.

The treaty between China and the United States of 1880 provides "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 . . . accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation." and "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"

Although the court considers treaties are part of the supreme law of the land, and they are as binding within the territorial limits of the states as they are elsewhere throughout the dominion of the United States, it holds that a conspiracy thus violently to expel the Chinese from the county and town where they resided and did business was not a conspiracy to prevent or hinder by force the execution of a law of the United States. The court states that "there must be a forcible resistance of the authority of the United States while endeavoring to carry the laws into execution. The United States are bound by their treaty with China to exert their power to devise measures to secure the subjects of that government lawfully residing within the territory of the United States against ill treatment, and, if in their efforts to carry the treaty into effect they had been forcibly opposed by persons who had conspired for that purpose, a state of things contemplated by the statute would have arisen." Baldwin's conspiracy is "for the ill treatment itself, and not for hindering or delaying the United States in the execution of their measures to prevent it. His force was exerted against the Chinese people, and not against the government in its efforts to protect them."

By the treaty of 1880-81 with China, the government of the United States agreed to exert all its power to devise measures for the protection, against ill treatment at the hands of other persons, of Chinese laborers or Chinese of any other class, permanently or temporarily residing at that time in this country, and to secure to them the same rights, privileges, immunities, and exemptions to which the citizens or subjects of the most favored nation are entitled, by treaty, to enjoy here. It would seem from the decision in this case that if Chinamen, having a right, under the treaty, to remain in our country, are forcibly driven from their places of business, the government of the United States is without power, in its own courts, to protect them against such violence, or to punish those who in this way subject them to ill treatment. If this be so as to Chinamen lawfully in the United States, it must be equally true as to the citizens or subjects of every other foreign nation residing or doing business here under the sanction of treaties with their respective governments. I do not think that such is the present state of the law, and must dissent from the opinion and judgment of the court." Congress did not intend to protect the free exercise or enjoyment of rights secured by the constitution or laws of the United States, except where citizens are concerned.

"A treaty, in conferring a right of residence, requires no congressional legislation for the enforcement of that right. The treaty in that particular is executed by the intended beneficiaries. They select their residence. They are not required. . . to reside in any particular place, or do business there. A conspiracy to prevent by force a residence in the town or county selected by then appears to me, therefore, to be a conspiracy to prevent the operation-that is, the execution-of a law of the United States, and to be within the letter and spirit of the [law]. . . If the conspirators can expel the Chinese from their residence in the town and county of their selection, without being amenable to any law of the United States, they can, with like exemption from legal liability, expel the Chinese from the entire state, and this utterly defeat the stipulations of the treaty." (TCL)

Jung Ah Lung, a Chinese laborer, one of the proprietors of a laundry situated at No. 1391 Second Avenue, New York city. He was a resident of the United States on the 17th day of November, A. D. 1880, the date of the last treaty between the United States and the empire of China, and that he resided continuously in the United States until on or about the 24th day of October, 1883, when he sailed for China on the steamer Rio de Janeiro. Before sailing for China, he duly applied for and received from the collector of customs for the district of San Francisco a certificate of identification, stating his name, age, occupation, last place of residence, physical marks and peculiarities, in conformity to "An act to execute certain treaty stipulations relating to Chinese," approved May 6, 1882. He was attacked by pirates in China in June 18 in the port of San Francisco. His certificate was lost. No one used the certificate and the certificate was not canceled. He embarked for San Francisco on August 25, 1885. He was denied to enter the United States and detained in the port of San Francisco. On September 5, 1885, the district court entered a judgement discharging Jung Ah Lung from custody. The Untied States appealed. The circuit court affirmed the judgement. On appeal, the Supreme Court affirmed the judgement of the circuit court.

The issue is whether Jung Ah Lung who lost the certificate can be permitted to enter the United States.

The court makes a distinction between Section 4 and Section 12 of the Act of 1882.

Section 4 provides "That for the purpose of properly identifying Chinese laborers who were in the United States on the seventeenth day of November, eighteen hundred and eighty, or who shall have come into the same before the expiration of ninety days next after the passage of this act, and in order to furnish them with the proper evidence of their right to go from and come to the United States of their free will and accord, as provided by the treaty between the United States and China dated November seventeenth, eighteen hundred and eighty, the collector of customs of the district from which any such Chinese laborer shall depart from the United States shall, in person or by deputy, go on board each vessel having on board any such Chinese laborer and cleared or about to sail from his district for a foreign port, and on such vessel make a list of all such Chinese laborers, which shall be entered in registry-books to be kept for that purpose, in which shall be stated the name, age, occupation, last place of residence, physical marks or peculiarities, and all facts necessary for the identification of each of such Chinese laborers, which books shall be safely kept in the custom-house; and every such Chinese laborer so departing from the United States shall be entitled to, and shall receive, free of any charge or cost upon application therefor, from the collector or his deputy, at the time such list is taken, a certificate, signed by the collector or his deputy and attested by his seal of office, in such form as the Secretary of the Treasury shall prescribe, which certificate shall contain a statement of the name, age, occupation, last place of residence, personal description, and fact of identification of the Chinese laborer to whom the certificate is issued, corresponding with the said list and registry in all particulars. . . . The certificate herein provided for shall entitle the Chinese laborer to whom the same is issued to return to and re-enter the United States upon producing and delivering the same to the collector of customs of the district at which such Chinese laborer shall seek to re-enter. . .

Section 12 provides "That no Chinese person shall be permitted to enter the United States by land without producing to the proper officer of customs the certificate in this act required of Chinese persons seeking to land from a vessel. And any Chinese person found unlawfully within the United States shall be caused to be removed therefrom to the country from whence he came, by direction of the 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."

Justice Blatchford delivered the opinion of the court:

It [Section 4] does not say that such certificate shall be the only evidence permissible to establish the right of re-entry. It merely says that it shall be given for the purpose of properly identifying the laborer, and shall be proper evidence of his right to go from and come to the United States, and shall entitle him to return to and re-enter the United States, upon producing and delivering it to the collector of the district at which he shall seek to re-enter. It does not say that the Chinese laborer returning by a vessel shall not be permitted to enter the United States without producing the certificate. In this respect there is a marked difference between section 4 and section 12 of the same act, in regard to a Chinese person entering the United States by land. Section 12 provides that no Chinese person shall be permitted to enter the United States by land without producing the certificate mentioned in section 4 of the act. This distinction of language is very marked, and we think that, in the absence of like language in section 4, in regard to a Chinese laborer arriving by a vessel, it was competent for the district court to receive the evidence which it did, in the case of a certificate claimed to have been actually lost or stolen. and that its conclusion of law was justified by the facts which it found.

In regard to a suggestion made that a Chinese laborer who has lost his certificate, or from whom it has been stolen, may seek to re-enter the United States by a vessel at some port other than that at which he received the certificate, and that there would be a practical difficulty in identifying him at such port, in the absence of the certificate, it is sufficient to say that this is not such a case; and that there would be no difficulty in producing in evidence the record of the custom-house of the port of departure, or a copy of it, at any port of entry, so as to compare the particulars stated in it with the Chinese laborer, and thus establish his identity or want of identity. (TCL)

Between 1848, when gold was discovered in California, and the time of this case, the number of Chinese laborers in the United States greatly increased. During this short time, the Chinese immigrant population grew to become seventeen percent of the California population. This threatened American workers' jobs; in response Congress passed the Chinese Exclusion Act of 1882. The Act permitted the United States to regulate the flow of Chinese immigrants into the United States. Chae Chan Ping, a subject of the Emperor of China and a laborer by trade, lived in San Francisco, California. He left for China in 1875, but was not allowed to return to the United States in 1888 because of the new legislation. Ping contended that the Act violated existing treaties with China and that he should be allowed to re-enter the United States.

The Court ruled:

Congress did have the right to deny Chae Chan Ping's re-entry into the United States. Saying that treaties are equivalent to acts of Congress and can be repealed or amended, the Court reasoned that it was permissible to exclude the Chinese because the preservation of independence and the security against foreign aggression are the highest duties of every nation. All other considerations are subordinate. Congress must have the power to do whatever it may deem essential in order to maintain and protect the United States. Such power includes the control over the immigration of aliens and their return to the United States. The Court decided that Congress had the authority to determine whether certain foreigners should be excluded.(TCL)

Quock Ting claimed to be born in San Francisco and therefore was entitled to enter the United States. The Court affirmed the decision which rejected his claim of the court below.

Justice Field said in part:

The question presented is whether the evidence before the court below was sufficient to show that the petitioner was a citizen of the United States. The testimony given by himself amounted to very little; indeed, it was of no force or weight whatever. The particularity and positiveness with which he stated the place of his birth in San Francisco was evidently the result of instruction for his examination on this proceeding, and not a statement of what he had learned from his parents in years past. And his failure to mention any particulars as to the city of San Francisco, which he certainly ought to have been able to do if he resided there during the first 10 years of his life, was surprising. A boy of any intelligence, arriving at that age, would remember, even after the lapse of six years, some words of the language of the country, some names of streets or places, or some circumstances that would satisfy one that he had been in the city before. But there was nothing whatever of this kind shown. . . we are not prepared to hold that [the court's] finding was not justified. Its judgment is therefore affirmed.

The petitioner, who is also appellant here, is a subject of the emperor of China, and came from that country to the port of San Francisco, California, in the steam-ship Arabic, arriving there August 7, 1889. The officers of the customs refused to allow him to land in the United States, holding that he was a Chinese laborer, and as such within the provisions of the exclusion act. The captain of the steam-ship therefore detained him on board, and he applied through a friend to the circuit court of the United States for the northern district of California for a writ of habeas corpus to obtain his discharge from such detention, alleging that it was claimed by the master that he could not land under the provisions of the act of congress of May 6, 1882, and the act amendatory thereof, whereas he was a resident of the United States on the 17th of November, 1880, and departed therefrom prior to the 6th day of May, 1882, and that at all the times mentioned he was a merchant, doing business on Dupont Street, San Francisco, having only temporarily left the United States on April 19, 1882. Upon the petition the writ was issued. Subsequently the case was brought to a hearing before the circuit court and it held that the petitioner was not at the date of his petition illegally restrained of his liberty, but was a Chinese person forbidden by law to land within the United States or to remain therein. From this judgment an appeal was taken to this court.

The Court ruled:

The Act May 6, 1882 provides that every Chinese person other than a laborer, who may be entitled to come within the United States, shall produce a prescribed certificate of his identity and of this right to enter; and Act July 5, 1884, provides that this certificate shall be the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States. Act Oct. 1, 1888, prohibits any Chinese laborer who had been, or was been, or might hereafter be, a resident within the United States, and who had departed or might depart therefrom, to return to or remain in the United States. Since the passage of the latter act no Chinese person, formerly resident in the United States but temporarily absent therefrom, is entitled to return without the prescribed certificate. Judgement affirmed.(TCL)

Lau Ow Bew had been a resident of the United States for seventeen years engaged in the wholesale and importing mercantile business in Portland, Oregon under the firm name of Hop Chong & Co. The firm was worth $40,000 and Lau owned its one-fourth interest. The firm did business annually of $100.000. On September 30, 1890, Lau departed from the United States temporarily on a visit to China and returned to the United States by the steam-ship Oceanic which arrived in San Francisco from Hong Kong on August 11, 1981. In spite of his possession of sufficient proof of resident status of the United States, he was detained and confined in the ship and barred to land on the sole ground that he failed and neglected to produce the certificate of Chinese government as required by the Act of May 6, 1982, as amended July 5, 1984. The Act in Section 6 provides "every Chinese person, other than a laborer, who may be entitled by said treaty [the Burlingame Treaty] or this act to come within the United States, and who shall be about to come to the United States, shall obtain the permission of and be identified as so entitled by the Chinese government. . . in each case to be evidenced by a certificate issued by such government. . .and shall show such permission, with the name of the permitted person in his or her proper signature, and which certificate shall state the individual, family, and tribal name in full, title or official rank, if any, the age, height, and all physical peculiarities, former and present occupation or profession, when and where and how long pursued, and place of residence [in China] of the person to whom the certificate is issued . . . If the person so applying for a certificate shall be a merchant, said certificate shall, in addition to above requirements, state the nature, character, and estimated value of the business carried on by him prior to and at the time of his application as aforesaid. . ."

The case also involved the following treaties and regulations:

(1) Article 5 of the treaty concluded July 28, 1868, between the United States and China, known as the Burlingame Treaty, declares that: '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.." Article 6 of that treaty provides: "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 or 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."

(2) A supplementary treaty concluded November 17, 1880 recites, among other things, in its preamble, that '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; and provides "Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who are now in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation."

(3) On the 3d of July, 1890, the Treasury Department issued certain instructions regarding the re-entry into the United States of Chinese persons after a visit to China, one of which is as follows: "Chinamen who are not laborers, and who may have heretofore resided in the United States, are not prevented by existing law or treaty from returning to the United States after visiting China or elsewhere. No certificates or other papers, however, are issued by the department, or by any of its subordinate officers, to show that they are entitled to land in the United States; but it is suggested that such persons should, before leaving the United States, provide themselves with such proofs of identity as may be deemed proper, showing that they have been residents of the United States, and that they are not laborers, so that they can present the same to and be identified by, the collector of customs at the port where they may return"

The case was brought to review upon certiorari the judgement of the circuit court of appeals for the ninth circuit affirming denial of a habeas corpus.

Chief Justice Fuller ruled:

. . . In the case of Low Yam Chow, 13 Fed. Rep. 605, it was held by the circuit court for the district of California (September 5, 1882) that Chinese merchants who resided, at the time of the passage of the act of congress of May 6, 1882, in other countries than China, on arriving in a port of the United States, were not required by that act to produce certificates of the Chinese government establishing their character as merchants, as a condition of their being allowed to land, but that their character as such merchants could be established by parol evidence. And Mr. Justice Field, delivering the opinion of the court, referring to the sixth section of the act, said: 'The certificate mentioned in this section is evidently designed to facilitate proof by Chinese, other than laborers, coming from China and desiring to enter the United States, that they are not within the prohibited class. It is not required as a means of restricting their coming. To hold that such was its object would be to impute to congress a purpose to disregard the stipulation of the second article of the new treaty, that they should be 'allowed to go and come of their own free will and accord.

And Judge Deady, in the district court for the district of Oregon, held, January 15, 1883, that the certificate provided for in section 6 was not the only competent evidence that a Chinese person is not a laborer, and therefore entitled to come to and reside within the United States, but that the fact might be shown by any other pertinent and convincing testimony. In re Ho King, 14 Fed. Rep. 724.

The amendatory act of July 5, 1884, enlarged the terms of the certificate, and provided that it should be the sole evidence permissible on the part of the person producing the same to establish a right of entry into the United States. This rule of evidence was evidently prescribed by the amendment as a means of effectually preventing the violation or evasion of the prohibition against the coming of Chinese laborers. It was designed as a safeguard to prevent the unlawful entry of such laborers under the pretense that they belonged to the merchant class or to some other of the admitted classes. But the phraseology of the section, in requiring that the certificate of identification should state, not only the holder's family and tribal name in full, his title or official rank, if any, his age, height, and all physical peculiarities, but also his former and present occupation or profession, when and where and how long pursued, and his place of residence, and, if a merchant, the nature, character, and estimated value of the business carried on by him prior to and at the time of his application for such certificate, involves the exaction of the unreasonable and absurd condition of a foreign government certifying to the United States facts in regard to the place of abode and the business of persons residing in this country, which the foreign government cannot be assumed to know, and the means of information in regard to which exist here, unless it be construed to mean that congress intended that the certificate should be procured only by Chinese residing in China or some other foreign country, and about to come for the first time into the United States for travel or business or to take up their residence.

Mr. Justice Field stated:

. . . government could not be expected to give, in its certificate, the particulars mentioned of persons resident-some, perhaps, for many years-out of its jurisdiction. Neither the letter nor the spirit of the act calls for a construction imputing to congress the exaction of a condition so unreasonable...

But Chinese merchants domiciled in the United States, and in China only for temporary purposes, animo revertendi, do not appear to us to occupy the predicament of persons 'who shall be about to come to the United States,' when they start on their return to the country of their residence and business. The general terms used should be limited to those persons to whom congress manifestly intended to apply them; and they would evidently be those who are about to come to the United States for the first time, and, therefore, might properly be required to apply to their own government for permission to do so, as also to so identify them as to distinguish them as belonging to the classes who could properly avail themselves of such leave. 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 that country; and no restriction on the footing upon which such person stand by reason of their domicile of choice, or commercial domicile, is to be presumed, while, by our treaty with China, Chinese merchants domiciled in the United States have, and are entitled to exercise, the right of free egress and ingress, and all other rights, privileges, and immunities enjoyed in this country by the citizens or subjects of the 'most favored nation.'

We are of opinion that it was not intended that commercial domicile should be forfeited by temporary absence at the domicile of origin, nor that resident merchants should be subjected to loss of rights guarantied by treaty if they failed to produce from the domicile of origin that evidence which residence in the domicile of choice may have rendered it difficult if not impossible to obtain; and as we said in considering the application of this petitioner for the writ of certiorari. . .

As Lau Ow Bew is, in our opinion, unlawfully restrained of his liberty, we reverse the judgment of the circuit court of appeals for the ninth circuit . . . remand the cause to the circuit court of the United States for the northern district of California, with directions to reverse its judgment and discharge the petitioner. (TCL)

Three writs of habeas corpus, were granted by the circuit court of the United States for the southern district of New York, upon petitions of three Chinese laborers, Fong Yue Ting, Wong Quan, and Lee Joe, 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 [Geary Act]. The provision of the Chinese Deportation Act of 1892, puts the burden of proof upon a Chinese laborer arrested for having no certificate, as well as the requirement of proof by one credible white witness that he was a resident of the United States at the time of the passage of the 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.

The Court ruled that 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.

Chinese laborers residing in the United States are entitled, like all other aliens, so long as they are permitted by the government to remain in the country, to all 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, as they have taken no steps to become citizens, and are incapable of becoming such under the naturalization laws, they remain subject to the power of congress to order their expulsion or deportation whenever, in its judgment, such a measure is necessary or expedient for the public interest. (TCL)

The appellant was a Chinese merchant, having a permanent domicile in the United States at San Francisco, and lawfully engaged in that city in mercantile business, and not otherwise. That domicile had never been surrendered or renounced by him. He was a member the firm of Kee Sang Tong & Co., wholesale and retail druggists in that city. On January 30, 1894, he went on a temporary visit to China, with the intention of returning and of continuing his residence in the United States, in the prosecution of that business.

During his temporary absence in China the appropriation act of August 18, 1894, was passed. That act contained these provisions:

Enforcement of the Chinese Exclusion Act: To prevent unlawful entry of Chinese into the United States, by the appointment of suitable officers to enforce the laws in relation thereto, and for expenses of returning to China all Chinese persons found to be unlawfully in the United States, including the cost of imprisonment and actual expense of conveyance of Chinese persons to the frontier or seaboard for deportation, and for enforcing the provisions of the act approved May fifth, eighteen hundred and ninety-two, entitled An act to prohibit the coming of Chinese persons into the United States,fifty thousand dollars.

In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or custom officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the secretary of the treasury.

The appellant returned to the United States, November 3, 1894, on the steamer Belgic, belonging to the Occidental & Oriental Steamship Company, of which D. D. Stubbs was secretary and manager. Upon his arrival here, he applied to John H. Wise, collector of customs at San Francisco, to be permitted to land and enter the United States on the ground that he was formerly engaged in this country as a merchant. He submitted to the collector the testimony of two credible witnesses other than Chinese, showing that he conducted business as a merchant here for one year previous to his departure, as above stated, from the United States, and that during that period he was not engaged in the performance of any manual labor except such as was necessary in conducting his business as a merchant. His application to enter the United States was denied, and consequently he was detained, confined, and restrained of his liberty by Stubbs, as secretary and manager of the steamship company. He applied for a writ of habeas corpus. The court made a distinction of this case from Lau Ow Bew v. U.S. noted above.

Justice Harlan ruled:

The power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications. Is a statute passed in execution of that power any less applicable to an alien who has acquired a commercial domicile within the United States, but who, having voluntarily left the country, although for a temporary purpose, claims the right under some law or treaty to re-enter it. We think not. The words of the statute are broad, and include every case of an alien, at least every Chinese alien, who at the time of its passage is out of this country, no matter for what reason, and seeks to come back. He is none the less an alien because of his having a commercial domicile in this country. While he lawfully remains here he is entitled to the benefit of the guaranties of life, liberty, and property secured by the constitution to all persons, of whatever race, within the jurisdiction of the United States. His personal rights when he is in this country and such of his property as is here during his absence are as fully protected by the supreme law of the land as if he were a native or naturalized citizen of the United States. But when he has voluntarily gone from the country and is beyond its jurisdiction, being an alien, he cannot re-enter the United States in violation of the will of the government, as expressed in enactments of the lawmaking power. He cannot, by reason merely of his domicile in the United States for purposes of business, demand that his claim to re-enter this country by virtue of some statute or treaty shall be determined ultimately, if not in the first instance, by the courts of the United States, rather than exclusively and finally, in every instance, by executive officers charged by an act of congress with the duty of executing the will of the political department of the government in respect of a matter wholly political in its character. He left the country subject to the exercise by congress of every power it possessed under the constitution.

It is supposed that the claim of the appellant is sustained by Lau Ow Bew v. U. S. [noted above]. But that is a mistake. That case arose under the sixth section of the act of May 6, 1882 (22 Stat. 58, c. 126), as amended by the act of July 5, 1884 (23 Stat. 115, c. 220). It presented the question whether that section applied to Chinese merchants already domiciled in the United States who, having left the country for temporary purposes, animo revertendi, sought to re-enter it and resume their business. The question was raised by writ of habeas corpus in the circuit court of the United States for the Northern district of California, which adjudged that Lau Ow Bew was not entitled to enter the United States. This court, upon certiorari to the United States court of appeals for the Ninth circuit, reversed the judgment below, and held that the statutes there in question did not apply to Lau Ow Bew, and that he had the right to return to the United States. Now, the difference between that case and the present one is that, by the statutes in force when the former was decided, the action of executive officers charged with the duty of enforcing the Chinese exclusion act of 1882, as amended in 1884, could be reached and controlled by the courts when necessary for the protection of rights given or secured by some statute or treaty relating to Chinese. But by the act of 1894 the decision of the appropriate immigration or custom officers excluding an alien from admission into the United States under any law or treatyis made final in every case, unless, on appeal to the secretary of the treasury, it be reversed. . .

The remedy of the appellant was by appeal to the secretary of the treasury from the decision of his subordinate, and not to the courts. . . But when congress went further, and declared that, in every case of an alien excluded by the decision of the appropriate immigration or customs officers ‘from admission into the United States under any law or treaty,' such decision should be final, unless reversed by the secretary of the treasury, the authority of the courts to review the decision of the executive officers was taken away. . .

The judgment of the court below denying the application for the writ of habeas corpus is affirmed.(TCL)

The case makes a distinction between exclusion and hard labor without judicial trial. On July 15, 1892, Wong Wing, Lee Poy, Lee You Tong, and Chan Wah Dong were charged with being unlawfully within the United States. The commissioner who was not a judge of the circuit court of the United States for the Eastern district of Michigan adjudged that they be imprisoned at hard labor at and in the Detroit House of Correction for a period of 60 days. A writ of habeas corpus was sued out of the circuit court of the United State but was discharged. From this discharge an appeal was taken to this court. Reversed.

Section 13 of the Act of September 13, 1888 provides: "That any Chinese person, or person of Chinese descent, found unlawfully in the United States or its territories, may be arrested upon a warrant issued upon a complaint under oath, filed by any party on behalf of the United States, by any justice, judge, or commissioner of any United States court, returnable before any justice, judge, or commissioner of a United States court, or before any United States court, and when convicted, upon a hearing, and found and adjudged to be one not lawfully entitled to be or remain in the United States, such person shall be removed from the United States to the country whence he came."

Section 4 of the Act of May 5, 1892 provides: "That any such Chinese person or person of Chinese descent, convicted and adjudged to be not lawfully entitled to be and 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.."

The Court decides that Congress has authority to legislate on exclusion or expulsion of aliens, but the court raised the constitutionality of Section 4 of the 1892 Act.

Justice Shiras delivered the opinion of the court:

There is an evident implication in this language of a distinction between those provisions of the statute which contemplate only the exclusion or expulsion of Chinese persons and those which provide for their imprisonment at hard labor, pending which their deportation is suspended. Our views upon the question thus specifically pressed upon our attention may be briefly expressed thus: We regard it as settled by our previous decisions that the United States can, as a matter of public policy, by congressional enactment, forbid aliens or classes of aliens from coming within their borders, and expel aliens or classes of aliens from their territory, and can, in order to make effectual such decree of exclusion or expulsion, devolve the power and duty of identifying and arresting the persons included in such decree, and causing their deportation, upon executive or subordinate officials.

But when congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, we think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused. . . .

In Ex parte Wilson, 114 U. S. 428, 5 Sup. Ct. 935, this court declared that, for more than a century, imprisonment at hard labor in the state prison or penitentiary or other similar institution has been considered an infamous punishment in England and America, and that imprisonment at hard labor, compulsory and unpaid, is, in the strongest sense of the words, ‘involuntary servitude for crime,' spoken of in the provision of the ordinance of 1787, and of the thirteenth amendment of the constitution, by which all other slavery was abolished, and which declares that such slavery or involuntary servitude shall not exist within the United States or any place subject to their jurisdiction, except as a punishment for crime whereof the party shall have been duly convicted.

And in the case of Yick Wo v. Hopkins, 118 U. S. 369, 6 Sup. Ct. 1064, it was said: ‘The fourteenth amendment to 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 law.' These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws.' Applying this reasoning to the fifth and sixth amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guarantied by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.

Our conclusion is that the commissioner, in sentencing the appellants to imprisonment at hard labor at and in the Detroit House of Correction, acted without jurisdiction, and that the circuit court erred in not discharging the prisoners from such imprisonment, without prejudice to their detention according to law for deportation. (TCL)

Simply put, the Court held that a child born in the United States, to parents of Chinese descent, is a citizen of the United States. Caveats were attached to this decision: the parents were presumed to be subjects of the emperor of China, they must have maintained a permanent domicile and residence in the United States, and they had to be "carrying on business, and not employed in any diplomatic or official capacity under the emperor of China."

At issue was whether a child born in the United States to parents who were not citizens became a citizen by virtue of the first clause of the 14th Amendment which declares: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." Implications of the decision in this case were great: it would provide the only legal means for a person of Chinese descent to achieve citizenship inasmuch as the Chinese Exclusion Acts and treaties between China and the U.S. expressly prohibited naturalization. If Wong Kim Ark were declared a U.S. citizen, then the restrictions of the Exclusion Acts would not apply to him. Furthermore, he would (under the terms of the civil rights act passed by the first session of the 39th Congress) "have the same right, in every state and territory in the United States, to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens? ." These rights were routinely denied to persons of Chinese descent.

U.S. v. Wong Kim Ark originated on a writ of habeas corpus, issued October 2, 1895 by the district court of the United States for the Northern district of California to the collector of customs at the port of San Francisco. Wong Kim Ark declared that he was born at 751 Sacramento Street in the city and county of San Francisco in 1873; he was, by occupation, a laborer. He said that his parents were of Chinese descent, subjects of the emperor of China, domiciled residents of San Francisco, and that they continued to reside and remain in the United States until the year 1890, when they returned to China. Wong also traveled to China and returned to the United States on the steamship Gaelic on July 26, 1890. The U.S. collector of customs permitted Wong to enter the United States on the sole ground that he was a native-born citizen.

From that time on, Wong remained in the United States until 1894, when he again traveled to China for a visit. In August 1895 he was returning to the United States on the steamship Coptic. When he applied to the customs collector to grant him permission to land at the port of San Francisco, the collector refused to grant him permission to disembark. Instead, the collector ordered the general manager of the steamship company to "restrain" Wong. The hearing on the writ of habeas corpus followed. The United States attorney argued against the writ: "Because the said Wong Kim Ark has been at all times, by reason of his race, language, color, and dress, a Chinese person? .[he] is not entitled to land in the United States, or to be or remain therein, because he does not belong to any of the privileged classes enumerated in any of the acts of congress, known as the 'Chinese Exclusion Acts? .'" The United States attorney also asked the court to order that Wong "be detained on board of said vessel until released as provided by law, or otherwise to be returned to the country from whence he came... ."

To decide whether Wong was a citizen, the Court analyzed how citizenship was conferred in English common law, American case law, the Napoleonic code, and European law. The Court also discussed the legislative intent of Congress when it passed the first uniform rules of naturalization beginning in 1790 and the "contemporaneous opinions of jurists and statesmen" discussing the ratification of the 14th Amendment. In the course of this part of the Court's analysis, the majority recognized the long established legal precedent that "distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents."

The Court also looked at the plain meaning of the opening phrase of the 14th Amendment. It concluded that the words "'All persons born,' are general, not to say universal, restricted only by place and jurisdiction, and not by color or race." According to the Court, "The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all ? persons, of whatever race or color, domiciled within the United States."

The Court found only two exclusions were contemplated with regard to citizenship as described in the 14th Amendment: (1) children born of "alien enemies in hostile occupation"; and (2) children of diplomatic representatives of a foreign state." Inasmuch as Wong's parents were neither "alien enemies" nor "diplomatic representatives," citizenship was conferred upon him by virtue of his birth in California. (Here, the U.S. attorney stipulated to the fact that Wong was American-born. In an earlier case, Quock Ting v. U.S. (1891) 140 U.S. 417, the petitioner, Quock Ting, failed to prove that he was born in the United States.)

The Court was unequivocal in its opinion on Wong Kim Ark's right to citizenship: "Whatever considerations?might influence the legislative or the executive branch of the government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the 14th Amendment? ."

In no uncertain terms, the majority of the Court found that "acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, [but they] cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the constitution: 'All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States." (ES)

Chin Bow, 10, applied for admission to the United States at Seattle. The board of special inquiry of the Immigration Bureau at that place denied him admission on the ground that, though his father is a citizen, he is not a citizen, because at the time of his birth in China his father had never resided in the United States. Chin Bow was born March 29, 1914, in China. His father, Chin Dun,was also born in China on March 8, 1894, and had never been in this country until July 18, 1922. Chin Dun was the son of Chin Tong, the respondent's grandfather. Chin Tong, 49, was born in the United States.

The Act of February 10, 1855, entitled 'An act to secure the right of citizenship to children of citizens of the United States born out of the limits thereof,' provides that persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States. 'The part of the Act of 1855 embodied in the Revised Statutes as section 1993 provides that all children born outside the limits of the United States who are citizens thereof and who continue to reside outside the United States shall, in order to receive the citizenship of the United States, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority.

The Court held that under statute, child born outside United States is not entitled to citizenship unless father has resided in United States before its birth. (TCL)

California Supreme Court

1. The People v. George Hall, 4 Cal. 399 (1854). The defendant, George Hall, was convicted of murder based on testimony given by Chinese witnesses. Hall appealed, claiming that the evidence against him was inadmissible because Chinese were allowed to testify in the trial. The claim was based on Section 304 of the Civil Practice Act which provided that "No Indian or Negro shall be allowed to testify as a witness in any action in which a white person is a party" [LHA at 48]. Chief Justice Murray of the California Supreme Court held that the terms "Indian" and "Negro" were generic, and therefore, included the Chinese.(ES)

2. The People v. Brady, 4 Cal. 198 (1854). The court held that forbidding a Chinese from testifying either for or against a white person was not a violation of the 14th Amendment of the U.S. Constitution. The principles in Hall and Brady were good law in the state of California until 1873, when the state legislature repealed all laws forbidding Chinese from testifying against whites [LHA at 49].(ES)

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