were not permitted by the naturalization laws to become citizens. The interpretation of the Constitution of the United States should be made in the light of the common law, by which every child born in England of alien parents was a natural-born subject, unless it was the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy occupying in hostility the place of birth of the child. At the time when the fourteenth amendment to the Constitution was adopted there did not exist any settled and definite rule of international law inconsistent with the ancient rule that citizenship arose by birth within the dominion. This amendment did not impose any new restrictions upon citizenship, but affirmed existing law, and declared existing rights, so far as citizenship was concerned, and was intended to allay doubts and to settle controversies which had arisen. It follows, therefore, that the Chinese exclusion acts passed after the adoption of this amendment cannot control its meaning or lessen its effect, but their construction and execution must be in subordination to its provisions. While Congress has power to regulate. naturalization, the fourteenth amendment confers upon it no power to restrict the effect of birth, which by the Constitution is declared to be a sufficient right to citizenship.71 72 § 189. Right to return.-The act of exclusion, unless required by its language, will not be given a retrospective operation." Hence, Chinese laborers who at the date of the treaty with China Lem Hing Dun v. United States, 49 Fed. 148, 1 C. C. A. 210, 7 U. S. App. 31; Gee Fook Sing v. United States, 49 Fed. 146, 1 C. C. A. 211, 7 U. S. App. 27. "United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. Rep. 456, 42 L. ed. 891. See, where it was held that the evidence was not sufficient to establish the citizenship of a Chinese person sixteen years of age, who claimed that he was born in the United States, and therefore a citizen, Quock Ting v. United States, 140 U. S. 417, 11 Sup. Ct. Rep. 733, 35 L. ed. 501. See, also, the case where it was held that a finding against a person claiming that he was born in San Francisco should not be disturbed on appeal, Gee Fook Sing v. United States, 49 Fed. 146, 1 C. C. A. 211, 7 U. S. App. 27; Lem Hing Dun v. United States, 49 Fed. 148, 1 C. C. A. 210, 7 U. S. App. 31; Lee Foo v. United States, Id. For a proceeding for deportation of a Chinese in which the evidence was held to be insufficient to show that such person was born in the United States, see Ho Ngen Jung v. United States, 153 Fed. 232. 12 Chew Heong v. United States, 112 U. S. 536, 5 Sup. Ct. Rep. 255, 28 L. ed. 770. were in the United States, but who departed before the exclusion act took effect, are entitled to land without producing the certificate required by the act.73 Chinese subjects, shipping on an American vessel, at an American port, for a round voyage, and who do not land at any foreign port, are not considered as departing from the United States.74 A person, by neglecting to apply for the certificate required by the statute, renounces the right of return secured to him by the treaty.75 $ 190. Power of state to exclude.-In the exercise of its police power, a state may exclude foreigners who are dangerous, such as convicts and lepers, but it cannot discriminate against the citizens as a class of a country possessing treaty rights.76 The power of exclusion by the state extends to paupers, vagabonds, criminals and sick, diseased, infirm and disabled persons, who will probably become a public charge. The state has power to impose such terms on their admission as will prevent the placing of the burden of their support upon the state. But where persons are in full possession of their faculties, sound in body, and are not paupers, vagabonds nor criminals, and in all respects are competent to earn a livelihood, they cannot be excluded by In re Tung Yeong, 19 Fed. 184, 9 Saw. 620. A laborer who leaves the United States temporarily may, under the exclusion act, return on obtaining a certificate of identification. Case of the Chinese Waiter, 13 Fed. 286, 7 Saw. 536. "In re Jack Sen, 36 Fed. 441, 13 Saw. 510; In re Tong Wah Sick, 36 Fed. 440, 13 Saw. 497. See, also, United States v. Lee Yung, 63 Fed. 520. In re Pong Ah Chee, 18 Fed. 527; In re Tong Ah Chee, 23 Fed. 441. The prescribed certificate is necessary. Wan Shing V. United States, 140 U. S. 424, 11 Sup. Ct. Rep. 729, 35 L. ed. 503. But see as to Chinese merchant leaving the country for temporary purposes with intention of returning, Lau Ow Bew v. United States, 144 U. S. 47, 12 Sup. Ct. Rep. 517, 36 L. ed. 340; United States v. Chin Quong Look, 52 Fed. 203; United States v. Gee Lee, 50 Fed. 271, 1 C. C. A. 516, 7 U. S. App. 183; In re Ah Ping, 23 Fed. 329. For other cases involving right to return, see In re Chae Chan Ping, 36 Fed. 431, 13 Saw. 486; United States v. Jung Ah Lung, 124 U. S. 621, 8 Sup. Ct. Rep. 663, 31 L. ed. 591; Lew Jim v. United States, 66 Fed. 953, 14 C. C. A. 281, 29 U. S. App. 513; Lai Moy v. United States, 66 Fed. 955, 14 C. C. A. 283, 29 U. S. App. 517. 16 In re Ah Fong, 3 Saw. 144, Fed. Cas. No. 102. the state, even in the absence of legislation of Congress on the subject." § 191. Construction of exclusion laws. It is not our purpose to consider at any length the force and effect of the various exclusion acts, as our purpose is only to show that their validity is not affected by the fact that they are in conflict with prior treaties, but it may be observed that the proceedings provided by these laws are in no sense a trial or sentence for crime, and, hence, the constitutional provisions requiring due process of law and trial by jury, and prohibiting unreasonable searches and seizures, do not apply.78 The provision that a Chinese person adjudged to be not lawfully entitled to remain in the United States shall be imprisoned at hard labor is unconstitutional.79 Placing the burden of proof upon the Chinese person accused of unlawful residence does not conflict with the Constitution.80 He may be removed by summary proceedings instead of indictment.81 The prevention of the further immigration of Chinese laborers, and not the expulsion of those in the United States, was the object of the Chinese exclusion act.82 The term "laborer" is used in its popular sense.83 A certificate from the Chinese gov 79 Wong Wing v. United States, 163 U. S. 228, 16 Sup. Ct. Rep. 977, 41 L. ed. 40; United States v. Wong Dep Ken, 57 Fed. 206. So United States v. Wong Dep Ken, 57 Fed. 206; In re Sing Lee, 54 Fed. 334. 81 United States v. Wong Sing, 51 Fed. 79. 82 Case of the Chinese Cabin Waiter, 13 Fed. 286, 7 Saw. 536. 83 In re Ho King, 14 Fed. 724, 8 Saw. 438. For other decisions as to who are laborers, see In re Fook, 65 How. Pr. 404; Lew Jim v. United States, 66 Fed. 953, 14 C. C. A. 281, 29 U. S. App. 513; In re Ah Yow, 59 Fed. 561; United States v. Douglas, 17 Fed. 634; United States v. Sing Lee, 71 Fed. 680; In re Ah Kee, 22 Fed. 519, 22 Blatchf. 520; In re Shong Toon, 21 Fed. 386; United States v. Ah Fawn, 57 Fed. 591; United States v. Wong Ah Hung, 62 Fed. 1005; In re Moncan, 14 Fed. 44, 8 Saw. 350; In re Ah Lung, 9 Saw. 306, 18 Fed. 28. As to merchants, see Lee Kan v. United States, 62 Fed. 914, 10 C. C. A. 669, 15 U. S. App. 516; United States v. Loo Way, 68 Fed. 475; Lai Moy v. United States, 66 Fed. 955, 14 C. C. A. 283, 29 U. S. App. 517; In re Tung Yeong, 19 Fed. 184, 9 Saw. 620; In re Quan Gin, 61 Fed. 395. See, also, Case of the Chinese Wife, 21 Fed. 785; In re Lum Lin Ying, 59 Fed. 682. 84 ernment is prima facie evidence of the mercantile character of the holder. The certificates of identity are merely licenses.85 A Chinaman who has lost his certificate by theft may prove his identity. That a merchant is such may be established by parol evidence. Any pertinent and convincing testimony may be received.88 But the only evidence of the right of a Chinese laborer who departed from the United States after the act of 1882 is the certificate.89 87 § 192. Conclusiveness of decision of Department.—Many of the questions that arose and would arise under the exclusion acts will not, in the future, come before the courts, for the reason that the supreme court of the United States has determined that the decision of the Secretary of Commerce and Labor, affirming the denial of the immigration officers, after examination of the right of a person of Chinese descent to enter the United States, is conclusive on the courts. In habeas corpus proceedings, the deeision of the secretary is just as conclusive when the ground on which the right of entry is claimed is citizenship as when the ground is any one of those excepted from the exclusion acts. The provision of the statute declaring that the decision of the appropriate department on the right of a person of Chinese descent In re Tung Yeong, 19 Fed. 184, 9 Saw. 620. $5 Chae Chan Ping v. United States, 130 U. S. 581, 9 Sup. Ct. Rep. 623, 32 L. ed. 1068. "United States v. Jung Ah Lung, 124 U. S. 621, 8 Sup. Ct. Rep. 663, 31 L. ed. 591. "Case of the Chinese Merchant, 13 Fed. 605. In re Ho King, 14 Fed. 724, 8 Saw. 438; In re Leong Yick Dew, 19 Fed. 490; In re Ah Quan, 21 Fed. 182. Case of the Limited Tag, 21 Fed. 789. See, also, In re Tom Mun, 47 Fed. 722; In re Wo Tai Li, 48 Fed. 668. But see as to a merchant, Lau Ow Bew v. United States, 144 U. S. 47, 12 Sup. Ct. Rep. 517, 36 L. ed. 340. A Chinese laborer con victed of felony is not entitled to reg- who seeks entry into the United States shall be conclusive on the courts in habeas corpus proceedings does not infringe the constitutional guaranty of due process of law, where there is no abuse of authority, notwithstanding that the ground on which the right of entry is based is citizenship of the United States.90 § 193. Hearing arbitrarily denied. Recently the supreme court of the United States declared that the decision of the Department of Commerce and Labor, in refusing to allow a Chinaman to enter, was final and conclusive, but that this principle was based on the supposition that the decision was reached after a hearing had in good faith, although it might be summary in character. In the petition for a writ of habeas corpus, it was alleged that the petitioner was born in the United States of parents domiciled there; that he was denied the right to land; that he was prevented by the officials from obtaining testimony, including that of witnesses named by him, and that if he had been given a proper opportunity, he could have produced overwhelming evidence that he was born in the United States. The allegations substantially were to the effect that he was arbitrarily denied such a hearing and such an opportunity to prove his right of entrance as it was intended by the statute that he should have. The court said that the case could proceed no further, if the petitioner was not denied a fair opportunity to produce the evidence in his behalf that he desired, or if he had a fair though summary hearing. The court held that these facts are the foundation for the jurisdiction of the court, but that such jurisdiction would not be established simply by proving that the officials did not accept the truth of sworn statements, even if no contradicting or impeaching testimony was produced. "The statutes," said Mr. Justice Holmes, delivering the opinion of the court, "purport to exclude aliens only. They create or recognize, for present purposes, it does not matter which, the right of citizens outside the jurisdiction to return to the United States. If one alleging himself to be a citizen is not allowed a chance to establish his right in the mode provided by those statutes, although that mode is intended to be exclusive, the stat 90 United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. Rep. 644, 49 L. ed. 1040. In this case Mr. Justice Brewer filed a dissenting opinion, in which Mr. Justice Peckham concurred. Mr. Justice Day also dissented. |