The Act of April 29, 1902, c. 641, continuing all laws then in
force "so far as the same are not inconsistent with treaty
obligations," does not repeal § 3 of the Act of May 5, 1892,
putting the burden of proving their right to remain in this country
on Chinese arrested under the act. Neither does it repeal § 6 of
the act requiring Chinese laborers who are entitled to remain in
the United States to obtain a certificate of residence.
A written statement by a United States commissioner that a
Chinese person of a certain name was brought before him and was
adjudged to have the right to remain in the United States by reason
of being a citizen is not evidence of a judgment.
The facts are stated in the opinion.
Page 193 U. S. 75
MR. JUSTICE HOLMES delivered the opinion of the Court.
These are appeals from judgments of the United States district
court confirming decisions of a commissioner and adjudging that the
appellants be removed from the United States to China.
Chin Bak
Kan v. United States, 186 U. S. 193. The
commissioner decided that each of the appellants was a Chinese
laborer found without certificate of residence, as required by law,
within the United States, and was not entitled to remain within the
United States. The facts may be summed up as follows: the
appellants were arrested in July, 1902, when working in laundries,
they all having failed to produce certificates of residence when
called upon to do so by the Chinese inspector. At the hearing
before the commissioner, they offered testimony of witnesses other
than Chinese that they were residents of the United States on May
5, 1892. Ah How and Chu Do put in evidence that they were not
laborers. Yung Lee offered evidence of illness, which he contended
made him unable to procure his certificate. Chu Do offered parol
evidence that he was born in the United States, and therefore was a
citizen, and also that he was a minor during the time allowed by
the statute for obtaining a certificate. Lew Guey offered similar
evidence and a certificate of another United States commissioner of
a hearing before him and an adjudication that Lew Guey had the
right to remain in the United States by reason of being a citizen
thereof. The United States offered no evidence beyond the facts
stated above.
The ground of appeal common to all the cases is that §§ 3
Page 193 U. S. 76
and 6 of the Act of May 5, 1892, 27 Stat. 25, have been
repealed. By § 3, any Chinese person arrested under the provisions
of the act shall be adjudged to be unlawfully within the United
States unless he shall establish by affirmative proof, to the
satisfaction of the judge or commissioner, his right to remain. Of
course, if the burden of proof was on the appellants, the
commissioner and judge might not be satisfied by the affirmative
evidence produced. We are not asked to review the finding of fact.
See Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S.
714-715. But it is argued that this section is done away
with by § 1 of the Act of April 29, 1902, c. 641, 32 Stat. 176,
continuing all laws then in force, "so far as the same are not
inconsistent with treaty obligations." It is said that the section
is inconsistent with Article 4 of the Treaty of December 8, 1894,
28 Stat. 1210, agreeing that Chinese laborers, or Chinese of any
other class, either permanently or temporarily residing in the
United States, shall have, for the protection of their persons and
property, all rights that are given by the laws of the United
States to citizens of the most favored nation, excepting the right
to become naturalized citizens. It is pointed out that the Treaty
of 1894 with Japan and the Treaty of 1859 with Paraguay give the
rights and privileges of native citizens to the subjects of those
countries in access to the courts and in the defense of their
rights, and it is said that the law as to the burden of proof cuts
down those privileges and rights. The section has been upheld,
however, by this Court, since the treaty and after the passage of
the act.
Chin Bak Kan v. United States, 186 U.
S. 193,
186 U. S. 200;
United States v. Lee Yen Tai, 185 U.
S. 213. It is not repealed by the laws of 1902. The
clause of the treaty had a different object, and, in view of the
difficulties encountered in such an investigation, it could not
have been supposed to promise that special measures theretofore
taken should not be continued in force for the purpose of
ascertaining the very question whether the laborers were lawfully
residing in the United States or not.
See Fong Yue Ting v.
United States, 149 U. S. 698,
149 U. S. 730.
But it is enough to say that the treaty itself, in Article 5,
expressly refers to the act of 1892 as
Page 193 U. S. 77
amended by the act of 1893, and states that the Chinese
government will not object to the enforcement of those acts.
It follows still more clearly from the language of Article 5 of
the treaty that § 6, as amended by the Act of November 3, 1893, 28
Stat. 7, remains in force.
Lee Lung v. Patterson,
186 U. S. 168,
186 U. S.
176-177. That section requires Chinese laborers who are
entitled to remain in the United States to obtain a certificate of
residence from the collector of internal revenue of their district
or to be deported, subject to certain excuses. Article 5 of the
treaty especially refers to the requirement of registration in the
acts of 1892 and 1893, although, as we have said, it states that
the enforcement of the acts as a whole will not be objected to. In
one or two of the cases, there was a suggestion below that § 6 of
the act was unconstitutional, but that question was disposed of in
Fong Yue Ting v. United States, 149 U.
S. 698, and was not pressed.
The complaints are objected to as insufficient because, in
addition to alleging that the appellants are laborers not entitled
to remain in the United States without certificates, it adds the
words "having come unlawfully into the United States without
certificates," thus implying, it is said, that an unlawful coming
into the United States could be legalized by obtaining a
certificate. It is enough to say that such objections have been
answered by
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S. 729,
and
Chin Bak Kan v. United States, 186 U.
S. 193,
186 U. S. 199.
In the former, it was laid down that "no formal complaint or
pleadings are required." That proposition is not affected by the
later statutes. We do not mean to imply that there is anything in
the objection if we should consider it on its merits.
As to the testimony that two of the appellants were merchants
during the period of registration, all that appears is that the
commissioner did not believe it. We cannot go outside the record of
the specific case for the purpose of inquiring whether the decision
was induced by some view of the law which may be open to argument.
The same may be said as to the parol testimony as to the age of two
of the appellants or their birth in this country. But we may add
that it
Page 193 U. S. 78
by no means follows from the decision in
United States v.
Gue Lim, 176 U. S. 459,
that the minor children of laborers, old enough to do work, are not
required to have certificates. The language of the statute
certainly is broad enough to include them, and does not indicate a
division by local laws with regard to coming of age. The principle
applicable to the admission into this country of the wife and
children of a certificated merchant is not the principle applicable
to such a case. As to the certificate of the United States
commissioner offered by Lew Guey, it was merely a written statement
by the commissioner that a person of that name was brought before
him on the usual charge, and was adjudged to have the right to
remain in the United States by reason of being a citizen. Apart
from the possibility that the commissioner in the present hearing
was not satisfied of the identity of the party, such a statement is
not the certificate of residence required by the act of 1892, and
is not evidence of a judgment.
United States v. Lee Poy
Dew, 119 F. 786. The evidence that Yung Lee was disabled by
sickness from obtaining a certificate did not satisfy the
commissioner. We cannot say as matter of law that he was bound to
be satisfied by the testimony of Yung Lee himself that he was so
disabled.
We have assumed, for the purpose of decision, what does not
clearly appear from the record -- that the judge who tried the case
on appeal tried it solely on the commissioner's report of evidence,
and heard no witnesses. Whether the fact could be assumed if the
result would be a reversal of the judgment below we need not
decide.
See United States v. Lee Seick, 100 F. 398, 399.
There is no other question worthy of notice. We are asked to
express an opinion as to the right of the appellants to give bail
pending their appeal, but that now is a moot point. We agree with
the government that these cases are covered by previous decisions
of this Court.
Judgment affirmed.
MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissent.