The power to exclude or expel aliens is vested in the political
departments of the government, to be regulated by treaty or by act
of Congress, and to be executed by the executive authority
according to such regulations, except so far as the judicial
department is authorized by treaty or by statute, or is required by
the Constitution, to intervene. And this is true of the privilege
of transit.
By the treaty between the United States and China of 1894, the
privilege of transit across the territory of the United States
could only be enjoyed subject to such regulations of the government
of the United States as might be necessary to prevent the privilege
from being abused.
The treaty, in recognizing the privilege and providing that it
should continue, proceeded on the ground of its existence and
continuance under governmental regulations, and no act of Congress
was required to carry it into effect.
Under existing regulations, the action of the collector of
customs in refusing transit cannot be interfered with by the
courts.
This was a petition to the District Court of the United States
for the Northern District of California for a writ of habeas
corpus. The petition represented that the petitioner was a citizen
of the Empire of China, and a resident of Guatemala in the Republic
of Mexico, and was traveling to that place when interrupted in his
journey as afterwards described; that, on August 24, 1901, he
purchased, for the sum of 183 Mexican dollars, from the agent of
the Japanese steamship company of the Toyo Kisen Kaisha at Hong
Kong in China, passage thence to San Jose de Guatemala in Mexico,
and received from said agent a ticket for passage on the steamship
Nippon Maru to the port of San Francisco, and an order
upon the San Francisco agent of said company for a steerage ticket
from San Francisco to San Jose de Guatemala; that, upon arriving in
the port of San Francisco he was, on September 19, 1901, examined
by a customs inspector, his baggage and private papers opened, and
his
Page 185 U. S. 297
person searched; that, after the examination of the petitioner,
the collector of customs at the port made an order of deportation,
denying him the privilege of transit, and he was, by virtue of that
order, detained by the agent of the steamship company in a frame
building on the Pacific Mail dock at San Francisco, and, unless
released by the court, would be deported and sent back to China;
that the petitioner was not making application to enter the United
States, or to pass in transit through the territory thereof, but
was merely a passenger en route for a foreign port, and touching at
the port of San Francisco while on his journey along the usual
course of travel, and for the purpose of transhipping to another
vessel; that the order under which he was held was illegal and
void, and not authorized by any law of the United States, or by any
treaty between the United States and the Empire of China, and that
the collector of customs had no authority under the law to examine
or to confine the petitioner.
The district attorney, by leave of court, intervened in behalf
of the United States, and suggested that the petitioner was a
native of the Empire of China, and a laborer by occupation, and
before the filing of his petition arrived at San Francisco from
Hong Kong in transit, through the territory of the United States,
for the Republic of Mexico; that the collector of customs for the
port of San Francisco, after careful and due investigation, had
decided that he was satisfied that the petitioner did not intend in
good faith to continue his voyage through the territory of the
United States to the Republic of Mexico, and had for that reason
denied him the privilege further to continue his journey through
the territory of the United States, and had ordered him deported to
China, and that the court had no jurisdiction over the person of
the petitioner or over the subject matter of this proceeding.
The parties submitted the case to the decision of the court upon
the following facts:
"The petitioner is a subject of the Empire of China. He arrived
at the port of San Francisco on the Japanese steamship
Nippon
Maru, the manifest of which vessel states that he intended to
go to San Jose de Guatemala. Petitioner herein also alleges that
that was his intended destination.
Page 185 U. S. 298
The collector of customs at the port of San Francisco did, on
September 23, 1901, deny the petitioner the privilege of further
pursuing his journey to his alleged point of destination. The
petitioner has a ticket, or an order for a ticket, for a through
passage from Hong Kong, China, to San Jose de Guatemala by steamer.
The petitioner is now held by W. H. Avery, agent for the Japanese
steamship company, by virtue of an order issued by the collector of
customs for the port of San Francisco directing him to retain the
person of the petitioner in his custody and deport him to
China."
The court ordered the petition and the writ of habeas corpus to
be dismissed, and the petitioner remanded to custody, and he
appealed to this Court.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The facts upon which the parties submitted the case to the
decision of the court below do not include, on the one hand, the
statement of the petition that the petitioner was examined by a
customs inspector, his baggage and papers opened, and his person
searched; nor, on the other hand, the statements in the
intervention of the United States that the petitioner was a laborer
by occupation and that the decision of the collector for his
detention and deportation was made after due and careful
investigation, and for the reason that he was satisfied that the
petitioner did not intend in good faith to continue his voyage
through the territory of the United States to the Republic of
Mexico. But the facts agreed are simply that the petitioner was a
subject of the Empire of China, arriving at the port of San
Francisco, whose intended destination, as appeared by the manifest
of the vessel in which he arrived, and by his own allegation, was
San Jose de Guatemala in the Republic of Mexico, and who had a
ticket, or an order for a ticket, for a through passage from Hong
Kong, China, to San Jose de Guatemala by
Page 185 U. S. 299
steamer, and that the collector of customs at San Francisco
denied him the privilege of further pursuing his journey to his
alleged point of destination, and issued an order directing him to
be detained and deported to China.
The whole question in the case, therefore, is whether this
denial and order of the collector were authorized by law.
Before the treaty of 1894 between the United States and China,
the privilege of transit of Chinese persons across the territory of
the United States was not specifically mentioned in any treaty or
statute except in the last clause of section 8 of the Act of
September 13, 1888, c. 1015, by which the Secretary of the Treasury
was authorized to make, and from time to time to change,
"such rules and regulations, not in conflict with this act, as
he may deem necessary and proper to conveniently secure to such
Chinese persons as are provided for in articles second and third
of"
a treaty between the United States and China signed March 12,
1888, but not then ratified,
"the rights therein mentioned and such as shall also protect the
United States against the coming and transit of persons not
entitled to the benefit of the provisions of said articles."
25 Stat. 478. As that treaty was never ratified, it may be
doubtful whether that section ever took effect.
See Li Sing v.
United States, 180 U. S. 486,
180 U. S. 490;
United States v. Gee Lee, 50 F. 271.
But such privilege of transit was recognized by successive
Attorneys General from 1882 to January, 1894 (17 Opinions 416, 485;
18 Opinions 388; 19 Opinions 369; 20 Opinions 693), and it was
regulated by orders of the Treasury Department.
By regulation of Secretary Folger of January 23, 1883, it was
provided that
"where a Chinese consul resides at the port of landing or
entrance into the United States by any Chinese laborer claiming to
be merely in transit through the territory of the United States in
the course of a journey to or from other countries, the certificate
of such Chinese consul, identifying the bearer by name, height,
age, etc., so far as practicable, and showing the place and date of
his arrival, the place at which he is to leave the United States,
the date when his journey is to begin, and that it is to be
continuous and direct, shall be accepted as
Page 185 U. S. 300
prima facie evidence;"
that,
"in the absence of such certificate, other competent evidence to
show the identity of the person, and the fact that a
bona
fide transit only is intended, may be received;"
and that
"the production of a through ticket across the whole territory
of the United States intended to be traversed may be received as
competent proof, and should be exhibited to the collector and
verified by him. Such tickets and all other evidence presented must
be so stamped or marked and dated by the customs officer as to
prevent their use a second time."
By regulations of Secretary McCulloch of January 14, 1885, the
regulations of January 23, 1883,
"relative to the transit of Chinese laborers through the
territory of the United States, will be applied to all Chinese
persons intending to so go in transit through the United
States,"
and
"Chinese persons who may be compelled to touch at the ports of
the United States in transit to foreign countries may be permitted
to land under the regulations of January 23, 1883, so far as the
same may be applicable, such persons to take passage by the next
vessel leaving for their destination, or the voyage of which may
form part of the route necessary to carry them to their
destination."
By regulations of Secretary Windom of September 28, 1889,
"any Chinese laborer claiming to be in transit through the
territory of the United States in the course of a journey from and
to other countries shall be required to produce to the collector of
customs at the first port of arrival a through ticket across the
whole territory of the United States intended to be traversed, and
such other proof as he may be able to adduce, to satisfy the
collector of the fact that a
bona fide transit only is
intended, and such ticket and other evidence presented must be so
stamped, or marked, and dated by the customs officer, as to prevent
their use the second time;"
a bond in the penal sum of $200 was required for each Chinese
laborer,
"conditioned for his transit and actual departure from the
United States within a reasonable time, not exceeding twenty days
from the date of arrival,"
and previous regulations on the subject were rescinded.
By article 3 of treaty between the United States and China
Page 185 U. S. 301
of March 17, 1894, it is
"agreed that Chinese laborers shall continue to enjoy the
privilege of transit across the territory of the United States in
the course of their journey to or from other countries, subject to
such regulations by the government of the United States as may be
necessary to prevent said privilege of transit from being
abused."
28 Stat. 1211. That article was also in the unratified treaty of
1888.
On December 8, 1900, Secretary Gage issued regulations
amendatory of the regulations of September 28, 1889, and addressed
"to collectors of customs and all other officers charged with the
enforcement of the Chinese exclusion laws," the material parts of
which were as follows:
"Complaints having reached the Department of attempted
violations of the laws enacted for the exclusion of Chinese by
those who have been allowed to pass through the United States to
foreign territory, the following rules are hereby adopted for your
guidance in granting permission for such transit:"
"Any Chinese person arriving at your port, claiming to be
destined to some foreign country, and seeking permission to pass
through the United States, or any portion thereof, to reach such
alleged foreign destination, shall be granted permission for such
transit only upon complying with the following conditions:"
"1. The applicant shall be required to produce to the collector
of customs at the first port of arrival a through ticket across the
whole territory of the United States (and to his or her alleged
foreign destination according to the steamship manifest) intended
to be traversed, and such other proof as he (or she) may be able to
adduce, to satisfy the said collector that a
bona fide
transit only is intended, and such ticket and other evidence
presented must be so stamped, or marked, and dated by the said
collector, or such officer as he shall designate for that purpose,
as to prevent their use a second time; but no such applicant shall
be considered as intending
bona fide to make such transit
only, if he (or she) has previously, on same arrival, made
application for and been denied admission to the United
States."
"2. The applicant in each case, or some responsible person on
his (or her) behalf, or the transportation company whose
Page 185 U. S. 302
through ticket he (or she) holds, shall furnish to the said
collector of customs a bond in a penal sum of not less than $500,
conditioned for applicant's continuous transit through, and actual
departure from, the United States within a reasonable time, not
exceeding twenty days from the date of arrival at said port."
These regulations repeat the requirements of those of 1889
(which took the place of previous regulations) that evidence must
be produced to satisfy the collector "that a
bona fide
transit only is intended." Clearly, in the absence of provision for
review, his decision is final.
The doctrine is firmly established that the power to exclude or
expel aliens is vested in the political departments of the
government, to be regulated by treaty or by act of Congress, and to
be executed by the executive authority according to such
regulations, except so far as the judicial department is authorized
by treaty or by statute, or is required by the Constitution, to
intervene.
Fong Yue Ting v. United States, 149 U.
S. 698;
Lee Moon Sing v. United States,
158 U. S. 538;
Li Sing v. United States, 180 U.
S. 486.
And as a general proposition, this must be true of the privilege
of transit. The underlying principle is thus stated by Kent (vol.
1, p. 35):
"Every nation is bound, in time of peace, to grant a passage,
for lawful purposes, over their lands, rivers, and seas, to the
people of other states, whenever it can be permitted without
inconvenience, and burdensome conditions ought not to be annexed to
the transit of persons and property. If, however, any government
deems the introduction of foreigners or their merchandise injurious
to the interests of their own people, they are at liberty to
withhold the indulgence. The entry of foreigners and their effects
is not an absolute right, but only one of imperfect obligation, and
it is subject to the discretion of the government which tolerates
it."
In short, the privilege of transit, although it is one that
should not be withheld without good cause, is nevertheless conceded
only on such terms as the particular government prescribes in
Page 185 U. S. 303
view of the wellbeing of its own people. If, then, these
regulations have the force of law, they bind the courts.
The first article of the Treaty of December 8, 1894, provides
that "the coming, except under the conditions hereinafter
specified, of Chinese laborers to the United States shall be
absolutely prohibited." The second paragraph of article three
reads:
"It is also agreed that Chinese laborers shall continue to enjoy
the privilege of transit across the territory of the United States
in the course of their journey to or from other countries, subject
to such regulations by the government of the United States as may
be necessary to prevent said privilege of transit from being
abused."
We regard this as explicitly recognizing existing regulations,
and as assenting to their continuance, and to such modification of
them as might be found necessary to prevent abuse. It dealt with
the subject specifically, and was operative without an act of
Congress to carry it into effect.
The treaty of 1880, 22 Stat. 826, in declaring, in respect of
the coming of Chinese laborers into this country, that the
government of the United States might "regulate, limit, or suspend
such coming or residence," did not refer to the privilege of
transit, and, as it was not self-executing, the Act of May 6, 1882,
was passed to carry the stipulation into effect. But the provision
of this treaty applicable here, in recognizing the privilege of
transit and providing that it should continue, proceeded on the
ground of its existence and continuance under governmental
regulations, and no act of Congress was required.
In re Lee Gon
Yung, 111 F. 998.
Nor is the provision open to the ingenious construction
suggested, that it is only after transit has commenced that the
privilege may be abused. The abuse of the privilege might consist
in the use of passage across the country to reach a point from
which to effect an entrance into it, contrary to law. The journey
contemplated would in effect be continuous, and the intermediate
destination could not absolve from the guilt involved in the effort
to attain that forbidden ulterior destination. Such an abuse of the
privilege could only be prevented by arresting the journey on the
threshold.
Page 185 U. S. 304
Necessarily the collector's decision could not be controlled by
the bare production of a through ticket to a point in foreign
territory. The very question to be determined is good faith in the
transit, and good faith would be lacking if that transit were
merely a means of effecting admission into the United States. And
the decision of the Treasury Department as to the right of
admission is made final by statute.
For instance, it is difficult, if not impossible, to police
effectively the long frontier between the United States and Mexico,
and if, in a given case, a Chinese laborer arrives at San Francisco
ostensibly bound to a port in Mexico, but going there for the
purpose of crossing thence into this country, this would be an
abuse of the privilege, and denial of transit would be justified.
And this, in cases where such is the intent and purpose, is in
accordance with the terms of the treaty, and not in the exercise of
a general power to prohibit that which the treaty permits.
By the Act of August 18, 1894, 28 Stat. 390, the decision of the
proper executive officer, if adverse to an alien's admission, was
made final unless reversed on appeal to the Secretary of the
Treasury.
That act came under consideration in
Lee Moon Sing v. United
States, 158 U. S. 538.
Petitioner contended that, while the immigration officers had
authority to exclude aliens from coming into the United States, yet
if an alien was entitled of right to enter the country, and was
nevertheless excluded by such officers, the latter exceeded their
jurisdiction, and the courts might intervene; but MR. JUSTICE
HARLAN, speaking for the Court, said:
"That view, if sustained, would bring into the courts every case
of an alien who claimed the right to come into the United States
under some law or treaty, but was prevented from doing so by the
executive branch of the government. This would defeat the manifest
purpose of Congress in committing to subordinate immigration
officers and to the Secretary of the Treasury exclusive authority
to determine whether a particular alien seeking admission into this
country belongs to the class entitled by some law or treaty to come
into the country, or to a class forbidden to enter the United
States.
Page 185 U. S. 305
Under that interpretation of the act of 1894, the provision that
the decision of the appropriate immigration or customs officers
should be final, unless reversed on appeal to the Secretary of the
Treasury, would be of no practical value."
So, in the case before us, the treaty manifestly operated to
commit the subject of transit to executive regulation and
determination, and by the then, as well as the present,
regulations, the final decision as to permitting transit was
devolved on the collector of customs, and no appeal to the
Secretary was provided for. It appears from the official documents
referred to on the argument that the Treasury Department has "held
that neither the treaty nor the laws relating to the exclusion of
Chinese, either expressly or by implication, give to Chinese
persons refused the privilege of transit the right of appeal;" but
possession of the power to grant an appeal, or to supervise the
action of the collector in some other appropriate way, in
circumstances demanding intervention, has not been disavowed.
This case is an attempt to transfer the inquiry from the
collector to the courts. Congressional action has placed the final
determination of the right of admission in executive officers,
without judicial intervention, and this has been for many years the
recognized and declared policy of the country. The regulations to
prevent abuse of the privilege of transit have been and are
intended to effectuate the same policy, and recourse to the courts
by habeas corpus to determine the existence of such abuse appears
to us equally inadmissible.
The record does not present a case of regulation or action in
contravention of the Constitution, and we think that, upon the
admitted facts, the orders of the collector cannot be held to have
been invalid.
Order affirmed.
MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissented.