Chew Heong v. United States/Dissent Field

by Stephen Johnson Field

United States Supreme Court

112 U.S. 536

Chew Heong  v.  United States

FIELD, J., dissenting.

I am unable to agree with my associates in their construction of the act of May 6, 1882, as amended by the act of July 5, 1884, restricting the immigration into this country of Chinese laborers. That construction appears to me to be in conflict with the language of the act, and to require the elimination of entire clauses and the interpolation of new ones. It renders nugatory whole provisions which were inserted with sedulous care. The change thus produced in the operation of the act is justified on the theory that to give it any other construction would bring it into conflict with the treaty; and that we are not at liberty to suppose that congress intended by its legislation to disregard any treaty stipulations. The circuit judge, in his opinion, assumes that the treaty of 1880 allows Chinese laborers, then in the United States, freedom to depart and return without reference to their subsequent residence in the country; and that this freedom is assured to them whether they afterwards abandon or continue their residence. Proceeding on this assumption, as though it were impregnable, the assertion is made, with great positiveness and frequent repetition, that the act of congress, construed according to the natural meaning of its terms, violates that treaty and our plighted faith; and the enormity of such legislation is dwelt upon with much warmth of expression. The majority of this court, adopting a similar construction of the treaty, narrow the meaning of the act so as measurably to frustrate its intended operation. Whereas, if the treaty as to such laborers be construed, as I think it should be, to apply to those then here who afterwards continue their residence in the country, and who may, during such residence, desire to be temporarily absent, there is no conflict between it and the act of congress. Both are then in perfect harmony, the imputation of bad faith is without a plausible pretext, and the citations in the opinion of the circuit judge, and of this court, as to the necessity of so construing acts as not to lead to injustice, oppression, or absurd consequences, have no application.

The petitioner, a native of China, and a laborer, though here when the treaty of 1880 was concluded, left the country in June, 1881, and was in the Hawaiian islands over three years before he desired to return. Chinese laborers do not travel for pleasure, and during that time he had acquired a residence in those islands as fully as he ever had in the United States. But, according to the opinion of the court, this fact is of no significance. He could reside there 20 years and then return, notwithstanding the act of congress. I cannot construe the treaty as conferring any such unrestricted right, or as applying to any other laborers than those who after wards continued their residence here. If, however, the act of congress be in conflict with the treaty upon the immigration of Chinese laborers, it must control as being the last expression of the sovereign will of the country. And while I agree with all that is said in the opinion of the court as to the sanctity of the public faith, I must be permitted to suggest that if the legislative department sees fit, for any reason, to refuse, upon a subject within its control, compliance with the stipulations of a treaty, or to abrogate them entirely, it is not for this court or any other court to call in question the validity or wisdom of its action, and impute unworthy motives to it. It should be presumed that good and sufficient reasons controlled and justified its conduct. If the nation with which the treaty is made objects to the legislation it may complain to the executive head of our government, and take such measures as it may deem advisable for its interests. But whether it has just cause of complaint, or whether, in view of its action, adverse legislation on our part be or be not justified, is not a matter for judicial cognizance or consideration. A treaty is, in its nature, a contract between two or more nations, and is so considered by writers on public law; and by the constitution it is placed on the same footing and made of like obligation as a law of the United States. Both are declared in that instrument to be the supreme law of the land, and no paramount authority is given to either over the other.

Some treaties operate in whole or in part by their own force, and some require legislation to carry their stipulations into effect. If that legislation impose duties to be discharged in the future, it may be repealed or modified at the pleasure of congress. If the treaty relates to a subject within the powers of congress, and operates by its own force, it can only be regarded by the courts as equivalent to a legislative act. Congress may, as with an ordinary statute, modify its provisions, or supersede them altogether. The immigration of foreigners to this country, and the conditions upon which they shall be permitted to come or remain, are proper subjects both of legislation and of treaty stipulation. The power of congress, however, over the subject can neither be taken away nor impaired by any treaty.

As said by Mr. Justice CURTIS, in Taylor v. Morton: 'To refuse to execute a treaty, for reasons which approve themselves to the conscientious judgment of the nation, is a matter of the utmost gravity and delicacy; but the power to do so is prerogative, of which no nation can be deprived without deeply affecting its independence. That the people of the United States have deprived their government of this power in any case, I do not believe. That it must reside somewhere, and be applicable to all cases, I am convinced. I feel no doubt that it belongs to congress. That, inasmuch as treaties must continue to operate as part of our municipal law, and be obeyed by the people, applied by the judiciary and executed by the president, while they continue unrepealed; and inasmuch as the power of repealing these municipal laws must reside somewhere, and no body other than congress possesses it,-their legislative power is applicable to such laws whenever they relate to subjects which the constitution has placed under that legislative power.' 2 Curt. 459. And the learned justice holds that whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise,-is not a judicial question; that the power to determine these matters has not been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments of our government; that they belong to diplomacy and legislation, and not to the administration of the laws. And he concludes, as a necessary consequence of these views, that if the power to determine those matters is vested in congress, it is wholly immaterial to inquire whether, by the act assailed, it has departed from the treaty or not, or whether such departure was accidental or designed, and if the latter, whether the reasons therefor were good or bad.

As said by Attorney General Crittenden, in his opinion furnished to the head of the treasury department respecting claims under the treaty with Spain ceding Florida, with which an act of congress was supposed to conflict, the 'constitution does not say that congress shall pass no law inconsistent with a treaty, and it would have been a strange anomaly if it had imposed any such prohibition. There may be cases of treaties so injurious, or which may become so by change of circumstances, that it may be the right and duty of the government to renounce or disregard them. Every government must judge and determine for itself the proper occasion for the exercise of such a power; and such a power, I suppose, is impliedly reserved by every party to a treaty, and I hope and believe belongs inalienably to the government of the United States. It is true that such a power may be abused; so may the treaty-making power and all other powers. But for our security against such abuse, we may and must rely on the integrity, wisdom, and good faith of our government.' 5 Op. Attys. Gen. 345. This power was exercised by congress in 1798, when it declared that the United States were of right freed and exonerated from the stipulations of the treaties and consular convention previously concluded with France, and that they should not thereafter be regarded as obligatory on the government or citizens of the United States. 1 St. at Large, 578. But, what is more important than these citations as to the weight to be given to an act of congress when in conflict with a preceding treaty, this court has this day rendered an authoritative decision on the subject. In several cases, brought to recover from the collector of the port of New York moneys received by him as duties on passengers landing there from foreign ports, not being citizens of the United States, at the rate of 50 cents for each of them, under the act of congress of August 3, 1882, to regulate immigration, it was objected that the act violated provisions contained in treaties of our government with foreign nations, but the court replied that, 'so far as the provisions in that act may be found in conflict with any treaty, they must prevail in all the judicial courts of this country.' And, after a careful consideration of the subject, the court reached this conclusion, and held that, '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.' Edye v. Robertson and Cunard Steam-ship Co. v. Same Party, ante, 247. See, also, the case of The Cherokee Tobacco, 11 Wall. 616, and the Case of Ah Lung, the Chinese laborer from Hong Kong, 9 Sawy. —S.C.. 18 Fed. Rep. 28. While, therefore, the courts will always endeavor to bring legislation into harmony with treaty stipulations, and not presume that it was intended by the legislative department to disregard them, yet an act of congress must be construed according to its manifest intent, and neither limited nor enlarged by ingenious reasoning or fanciful notions of a purpose not declared on its face.

Before proceeding to examine in detail the act of congress in question, a few words may be said as to the causes which led to its enactment. Upon the acquisition of California and the discovery of gold, people from all parts of the world came to the country in great numbers, and among them Chinese laborers. They found ready employment. They were industrious and docile, and generally peaceable. They proved to be valuable domestic servants, and were useful in constructing roads, draining marshes, cultivating fields, and, generally, wherever out-door labor was required. For some time they excited little opposition, except when seeking to work in the mines. But as their numbers increased they began to engage in various trades and mechanical pursuits, and soon came into competition, not only with white laborers in the field, but with white artisans and mechanics. They interfered in many ways with the industries and business of the state. Very few of them had families, not 1 in 500, and they had a wonderful capacity to live in narrow quarters without injury to their health, and were generally content with small gains and the simplest fare. They were perfectly satisfied with what would hardly furnish a scanty subsistence to our laborers and artisans. Successful competition with them was, therefore, impossible, for our laborers are not content, and never should be, with a bare livelihood for their work. They demand something more, which will give them the comforts of a home, and enable them to support and educate their children. But this is not possible of attainment if they are obliged to compete with Chinese laborers and artisans under the conditions mentioned; and it so proved in California. Irritation and discontent naturally followed, and frequent conflicts between them and our people disturbed the peace of the community in many portions of the state.

By the treaty concluded in July, 1868, generally known as the Burlingame treaty, the contracting parties declare that they '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 also that '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 and 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.' 16 St. at Large, 740, arts. 5, 6.

But, notwithstanding these favorable provisions, opening the whole of our country to them, and extending to them the privileges, immunities, and exemptions of citizens or subjects of the most favored nation, they have remained among us a separate people, retaining their original peculiarities of dress, manners, habits, and modes of living, which are as marked as theircomplexion and language. They live by themselves; they constitute a distinct organization with the laws and customs which they brought from China. Our institutions have made no impression on them during the more than 30 years they have been in the country. They have their own tribunals to which they voluntarily submit, and seek to live in a manner similar to that of China. They do not and will not assimilate with our people; and their dying wish is that their bodies may be taken to China for burial. But this is not all. The treaty is fair on its face. It stipulates for like privileges, immunities, and exemptions on both sides,-to our people going to China and to their people coming here. But the stipulations to our people are utterly illusive and deceptive. No American citizen can enjoy in China, except at certain designated ports, any valuable privileges, immunities, or exemptions. He can trade at those ports, but nowhere else. He cannot go into the interior of the country and buy or sell there, or engage in manufactures of any kind. A residence there would be unsafe, and the crowded millions of her people render it impossible for him to engage in business of any kind among them. The stipulations of the treaty, so far as the residence of the citizens or subjects of one country in the other and the trade which would follow such residence are concerned, are therefore one-sided. Reciprocity in benefits between the two countries in that respect has never existed. There is not and never has been any 'mutual advantage' in the migration or emigration of the citizens or subjects, respectively, from one country to the other which the treaty, in 'cordially recognizing,' assumes to exist. Suggestions of any such mutuality were deceptive and false from the outset. The want of it was called to the attention of our government in 1878 by a communication to the state department from our minister in China. 'A few words,' says the minister, 'are needed to indicate the lack of reciprocity between us. I think there are no opportunities of residence or of enterprise from which the Chinese among us are debarred. They can go where they will and do what they will in all our broad domain. But it is not so here. Our countrymen may reside in a few cities only, and they may engage in no enterprise outside of the ordinary interchange of commodities, and their transportation between defined points. Opportunities exist to develop mines, to establish furnaces and factories, to construct roads, canals, railroads, and telegraphs, to operate these, and steam and other vessels, on many routes now not open to them; but from all these and many other important branches of enterprise we are effectually and perhaps hopelessly shut out.' And this is not all. By the treaty of 1868 the contracting parties declare their reprobation of any other than 'an entirely voluntary emigration,' and they agree to pass laws making it a penal offense for a citizen of the United States or Chinese subjects to take Chinese subjects to the United States without their free and voluntary consent. In the face of this explicit provision large numbers of them, more than one-half of all who have come to the United States, have been brought under what is termed the contract system; that is, a contract for their labor. In one sense they come freely, because they come pursuant to contract, but they are not the free immigrants whose coming the treaty contemplates, and for whose protection the treaty provides. They are for the time the bond thralls of the contractor-his coolie slaves. The United States had already legislated to prevent the transportation by their citizens of coolies from China to any foreign port; but no law has ever been passed by China to prevent its subjects, thus bound, from being taken to the United States. Act February 19, 1862, (12 St. at Large, 340.)

In view of these facts-that the Chinese cannot assimilate with our people, but continue a distinct race among us, with institutions, customs, and laws entirely variant from ours; that the larger portion of persons termed Chinese laborers were imported under the labor-contract system; that no law to prevent their importation under this system had ever been passed by China; thatcompetition with them tended to degrade labor, and thus to drive our laborers from large fields of industry; that the treaty was one-sided in the benefits it conferred as to residence and trade by the citizens or subjects of one country in the other, the condition of the people of China rendering any reciprocity in such benefits impossible-it is not surprising that there went up from the whole Pacific coast an earnest appeal to congress to restrain the further immigration of Chinese. It came not only from that class who toil with their hands, and thus felt keenly the pressure of the competition with coolie labor, but from all classes. Thoughtful persons who were exempt from race prejudices saw, in the facilities of transportation between the two countries, the certainty, at no distant day, that from the unnumbered millions on the opposite shores of the Pacific, vast hordes would pour in upon us, overrunning our coast and controlling its institutions. A restriction upon their further immigration was felt to be necessary to prevent the degradation of white labor, and to preserve to ourselves the inestimable benefits of our Christian civilization.

It was objected to the legislation sought that the treaty of 1868 stood in the way, and that while it remained unmodified, such legislation would be a breach of faith to China, and give her just ground of complaint. I was formerly of that opinion, and so expressed myself in some judicial decisions, the want of reciprocity in the benefits stipulated not being called to my attention, or being overlooked at the time, (Case of Chinese Merchant, 7 Sawy. 549; S.C.. 13 Fed. Rep. 605;) but subsequent reflection has convinced me that my views on this subject require modification. Be that as it may, many jurists of eminence have not hesitated to affirm that such legislation would not have been the subject of just reproach by any one acquainted with the failure of reciprocal benefits to our people in the operation of the treaty, in consideration of which alone the treaty was adopted. The first treaty with China, negotiated in 1844 by Mr. Cushing, and the treaty with that country negotiated by Mr. Reed, in 1858, had not only declared that there should be peace and friendship between the two nations and their people, but stipulated for commercial intercourse at certain designated ports in China, and for protection to citizens of the United States there, while peaceably attending to their affairs. 8 St. at Large, 592; 12 St. at Large, 1023. It was in the treaty of 1868, the Burlingame treaty, as it is called, that the two nations recognized the mutual advantages 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 stipulated that each should enjoy, in the country of the other, the privileges, immunities, and exemptions, in respect to residence and trade, which might be thus enjoyed by citizens or subjects of the most favored nation. Yet, as already stated, such freedom of trade or residence is not allowed to American citizens in China, and, from her crowded population, never can be. The stipulation for reciprocal benefits, in this way, has never been performed by the Chinese government, and has always been incapable of enforcement. The consideration, therefore, for allowing free emigration from China to this country has failed, and it may be affirmed with much justice that by reason of this failure there would have been no breach of faith to China had the stipulation on our part been disregarded by the legislation of congress. If the treaty had stipulated for the like admission to each country of the goods of the other, and China excluded our goods, or her condition was such that they could not be landed, it would seem that no one could pretend that the stipulation on our part to receive her goods would continue obligatory. It cannot make any difference that the stipulations relate to emigrants instead of goods. So of any other mutual stipulations: when on one side they are not observed, or become incapable of enforcement, they cease to be binding on the other; and surely it could never have been contemplated that an unlimited emigration of Chinese, with all the privileges of subjects of the most favored nation, should be continued without our receiving corresponding benefits for which the treaty stipulated.

The present secretary of state, in a recent dispatch to our minister in England respecting the Clayton-Bulwer treaty, calls attention to a provision which he states that Great Britain has not kept, adding that if she 'has violated and continues to violate that provision, the treaty is, of course, voidable at the pleasure of the United States.' Indeed, history furnishes many instances where one nation has claimed a release from a treaty because the other party has disregarded it, or the conditions which existed at its date have essentially changed, and in so claiming and acting no reproaches of bad faith were incurred or made. Undoubtedly, as said by Mr. Justice CURTIS, the withdrawal of a nation from the execution of a treaty is a matter of great delicacy and gravity, and not to be lightly done. Usually, notice beforehand is given as the course of which the other can least complain. Yet it is a matter resting entirely with the legislative and executive departments.

In response to the urgent and persistent appeals of the Pacific coast for restrictive legislation, and in deference to those who were of opinion that without a modification of the treaty such legislation would be a breach of faith, commissioners were appointed to proceed to China and there negotiate for such modification. The supplementary treaty of November, 1880, was the result. It declared in its first article that '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.' In its second article it declared that '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, and immunities and exemptions which are accorded to the citizens and subjects of the most favored nation.'

As thus seen, by the first article, China not only agrees, notwithstanding the stipulations of former treaties, that the government of the United States may regulate, limit, or suspend the coming of Chinese laborers whenever in its judgment the interests of our country, or of any part thereof, may require such action, but the legislation for such regulation, limitation, or suspension is committed to its discretion, with a proviso that the legislation shall be reasonable, and that the immigrants shall not be maltreated or abused. The reasonableness and necessity of the legislation enacted is confided to its judgment. The second article, which provides that Chinese laborers then in the United States shall be allowed freedom of ingress and egress, could have been intended to apply only to such laborers as might continue their residence in the United States, not to those who might subsequently leave the country without any intention to return. Its manifest design was to allow such persons then here to leave the country for a temporary absence and return. The same reasons which could be supposed to induce legislation against further immigration of laborers apply, and with equal if not aggravated force, to the return of those who have once abandoned their residence here. The opinion of the court proceeds on the supposition that those here at the date of the treaty, having subsequently left the country, have the right to return at any time in the indefinite future, though they may have abandoned their residence here and acquired one elsewhere. This view of the rights of such laborers, and the necessity of subordinating the provisions of the act of congress to the maintenance of such supposed rights, is, in my judgment, and I say it with deference, the source of error in the opinion and conclusion of the court. The complaining party here, as already stated, had been absent from the United States over three years and in the Sandwich islands, when he sought to return, and in that time he had acquired a residence there as fully as he ever had in the United States. Neither does the second article prevent the United States from prescribing regulations for the identification of the Chinese laborer here at the date mentioned, and insisting upon a compliance with them as a condition of his right to re-enter the country after once leaving it. A European nation requiring passports of foreigners seeking to enter its territory, and a certificate of identification if residing therein, was never held to violate stipulations for free intercourse or free residence. Nor does the article preclude the enactment of regulations to identify Chinese subjects other than laborers, if it be found that this last class attempt the evasion of the requirement as to their own identification by seeking to personate other classes, such as merchants or students.

Soon after the ratification of the treaty of 1880 restrictive legislation was attempted, and a bill passed the two houses of congress, but failed to become a law. On the sixth of May, 1882, another act passed by congress received the executive sanction. 22 St. at Large, 58. This act-the one under consideration-is entitled 'An act to execute certain treaty stipulations relating to Chinese,' and, in my judgment, it is authorized by the treaty, and, whether so authorized or not, cannot be judicially annulled upon any theory that congress went beyond the requirements of good faith in its enactment. It consists of 15 sections. The first declares that after 90 days from the passage of the act, and for the period of 10 years from its date, the coming of Chinese laborers to the United States is suspended, and that it shall be unlawful for any such laborer to come, or, having come, to remain within the United States. The second makes it a misdemeanor punishable by fine, to which imprisonment may be added, for the master of any vessel knowingly to bring within the United States from a foreign country and land any such Chinese laborer. The third then provides that these two sections shall not apply to Chinese laborers who were in the United States September 17, 1880, or who came within 90 days after the passage of the act. The majority of the court, by their construction, add the words: 'If those here September 17, 1880, have previously left the United States, but shall apply to those subsequently leaving;' that is to say, in their view the sections do not apply to those who may have been here at the date of the treaty, if they had left the country before the passage of the act, but do apply if they afterwards left. Those who have left, says the court, may come at any time in the indefinite future without regard to the act. But the third section draws no such distinction in its exception, and it is impossible from its language to exempt from any subsequent requirement those who had left before the passage of the act, without extending it to those who left afterwards; and it will not be pretended that the following sections do not require of the latter a certificate of identification. It is not necessary, in my judgment, to interpolate any words to reach the intention of congress. The fourth section gives interpretation to the language of the third. It declares that, for the purpose of identifying the laborers who were here on the seventeenth of November, 1880, or came within the 90 days mentioned, and to furnish them with 'the proper evidence' of their right to go from and come to the United States, 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 each laborer thus departing shall be entitled to receive from the collector or his deputy a certificate containing such particulars, corresponding with the registry, as may serve to identify him. 'The certificate herein provided for,' says the section, '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.'

The plain purport of the act, as it seems to me, was to exclude all Chinese laborers, except those who came at certain designated periods, and continued their residence in the country, and, if they should leave and be desirous of returning, to require them to obtain a proper certificate of identification. By this construction, all the provisions of the act are made harmonious. Without it, they are contradictory and absurd. The fourth section has no meaning, unless applied to those excepted laborers mentioned in the third section; for it refers to them by name, and they are only excepted, within its conditions, from the general prohibition of the first section. The third section declares that the first two (those which contained the general prohibition) shall not apply to certain laborers, but it does not declare that the remaining sections shall not apply to them, and, if they do apply, they impose their conditions. By the construction of the majority, the fourth section is surplusage, and should be stricken from the act. The language of the third section in the amended act of 1884 differs slightly from that used in the act of 1882. In the original act the third section declares that the first two sections shall not apply to Chinese laborers who were in the United States on the seventeenth of November, 1880, or who shall have come before the expiration of 90 days after the passage of the act, and who shall produce the required certificate. The amendatory act has, instead of 'and who shall produce,' these words: 'nor shall said sections apply to Chinese laborers who shall produce' the certificate. From this change of language, which appears from the debates to have been incorporated during the discussion of the act in the house without any supposition by the friends of the measure that it, in any respect, changed its general features, it is contended that a distinction is made between laborers here at the dates mentioned, and those who might obtain a certificate, and that the subsequent requirements of the act apply to one class and not the other. But this position has no basis upon which to rest; for no laborers, other than those here on the dates mentioned, could obtain a certificate; and, when we turn to the fourth section, we find its language embracing all of them. None are excepted from the necessity of securing that document. There is no expression anywhere in the act of an intention to deal with a class of Chinese laborers less than the whole body who were excepted from the general prohibition. Not a word looks to any such purpose; and it can be extracted from the act only by force of a construction which falls, in the law of interpretation, under no recognized head.

The construction which I have suggested preserves the act with all its intended benefits. Other sections than those I have cited corroborate and strengthen it. Thus, the eighth section declares that the master of any vessel arriving in the United States shall, 'before landing or permitting to land, any Chinese passengers, deliver and report to the collector of customs of the district in which such vessel shall have arrived, a separate list of all Chinese passengers taken on board of his vessel at any foreign port or place, and all such passengers on board the vessel at that time. Such list shall show the names of such passengers, (and, if accredited officers of the Chinese or of any other foreign government, traveling on the business of that government, or their servants, with a note of such facts,) and the names and other particulars, as shown by their respective certificates.' This shows clearly that any Chinaman on board such vessel, not being an officer of the government of China, is expected to have a certificate; for the names and description of all Chinese passengers not being officials are to be 'shown by their respective certificates.' Then the ninth section provides 'that before any Chinese passengers are landed from any such vessel, the collector or his deputy shall proceed to examine such passengers, comparing the certificates with the list and the passengers, and no passenger shall be allowed to land in the United States from such vessel in violation of law.' The twelfth section also declares 'that no Chinese person shall be permitted to enter the United States by land without producing to the proper officer of customs the certificate in this act required of Chinese persons seeking to land from a vessel.' Should we limit the designation of persons mentioned in this section to laborers, no conceivable reason can be stated why a certificate of identification should be required from them when entering the United States by land which does not equally apply to them when entering the United States by vessel.

If the construction I give works hardship to any persons, it is for congress, not this court, to afford the remedy. This court has no dispensing power over the provisions of an act of congress. It is itself only the servant of the law, bound to obey, not to evade or make it. The act of May 6, 1882, requires, in my judgment, a certificate for their admission from all Chinese laborers coming to the United States, whether they have been in the country before or not. If they have been here and left before the passage of the act they are necessarily excluded, for the act makes no exception in their favor. The amendatory act of 1884 seems to me to remove any doubt as to the necessity of the certificate, if any existed under the act of 1882. Under the construction adopted in the circuit court, before the amendatory act, parol evidence had been allowed in a multitude of cases where previous residence was alleged, and the district and circuit courts were blocked up by them to the great inconvenience of suitors. This fact, and the suspicious character in many instances of the testimony by reason of the loose notions entertained by the witnesses as to the obligation of an oath, led to the general expression of a desire for further legislation restricting the evidence receivable. This desire led to the passage of the amendatory act of 1884. The committee of the house of representatives for foreign affairs, which reported the act, accompanied it with a report in which they said that 'the manifold evasions, as well as attempted evasions, of the act that have occurred since its passage through the broad, actual, and possible interpretations of the words 'merchant' and 'traveler,' together with the notorious capabilities of the lower classes of Chinese for perjury, have not only flooded our federal courts on the Pacific coast with cases which, being quasi criminal, are entitled to precedence over other and more important business,' but show that the act of 1882 'has failed to meet the demands which called it into existence.' To obviate the difficulties attending the enforcement of that act from the causes stated, the amendatory act of 1884 declared that the certificate which the laborer must obtain 'shall be the only evidence permissible to establish his right of re-entry into the United States.' By it the door is effectually closed, or would be closed but for the decision of the court in this case, to all parol evidence, and the perjuries which have heretofore characterized its reception. But for this decision, nothing could take the place of the certificate or dispense with it; and I see only trouble resulting from the opposite conclusion. All the bitterness which has heretofore existed on the Pacific coast on the subject of the immigration of Chinese laborers will be renewed and intensified, and our courts there will be crowded with applicants to land, who never before saw our shores, and yet will produce a multitude of witnesses to establish their former residence, whose testimony cannot be refuted and yet cannot be rejected. I can only express the hope, in view of the difficulty, if not impossibility, of enforcing the exclusion of Chinese laborers intended by the act, if parol testimony from them is receivable, that congress will, at an early day, speak on the subject in terms which will admit of no doubt as to their meaning.