Lau Ow Bew v. United States

STATEMENT BY MR. CHIEF JUSTICE FULLER.

This is a writ of certiorari for the review of a judgment of the circuit court of appeals for the ninth circuit, affirming the judgment of the circuit court of the United States for the northern district of California, in a case of habeas corpus, which determined that Lau Ow Bew, the appellant, is a Chinese person forbidden by law to land within the United States, and has no right to be or remain therein, and ordered that he be deported out of the country, and transported to the port in China whence he came.

The proceedings in the circuit court are set out in the application for the certiorari, as reported in 141 U.S. 583, 12 Sup. Ct. Rep. 43. The case was heard and determined in that court upon an agreed statement of facts, as follows:

'It is hereby stipulated and agreed that the following are the facts herein:

'(1) That the said Lau Ow Bew is now on board the S. S. Oceanic, which arrived in the port of San Francisco, state of California, on the 11th day of August, A. D. 1891, from Hong Kong, and is detained and confined thereon by Captain Smith, the master thereof.

'(2) That the said passenger is now and for seventeen years last past has been a resident of the United States, and domiciled therein.

'(3) That during all of said time the said passenger has been engaged in the wholesale and importing mercantile business in the city of Portland, state of Oregon, under the firm name and style of Hop Chong & Co.

'(4) That said firm is worth $40,000, and said passenger has a one-fourth interest therein, in addition to other properties.

'(5) That said firm does a business annually of $100,000, and pays annually to the United States government large sums of money, amounting to many thousands of dollars, as duties upon imports.

'(6) That on the 30th day of September, A. D. 1890, the said passenger departed from this country temporarily on a visit to his relatives in China, with the intention of returning as soon as possible to this country, and returned to this country by the steam-ship Oceanic on the 11th day of August, A. D. 1891.

'(7) That, at the time of his departure, he procured satisfactory evidence of his status in this country as a merchant, and on his return hereto he presented said proofs to the collector of the port of San Francisco, but said collector, while acknowledging the sufficiency of said proofs, and admitting that the said passenger was a merchant domiciled herein, refused to permit the said passenger to land, on the sole ground that the said passenger failed and neglected to produce the certificate of the Chinese government mentioned in section 6 of the Chinese restriction act of May 6, 1882, as amended by the act of July 5, 1884.'

The circuit court rendered judgment September 14, 1891, (47 Fed. Rep. 578,) which, the case having been carried by appeal to the circuit court of appeals for the ninth circuit, was on the 7th day of October, 1891, affirmed, (47 Fed. Rep. 641.)

On November 16, 1891, this court, upon the application of appellant, ordered that a writ of certiorari issue to the circuit court of appeals, requiring it to certify the case up for review and determination, under section 6 of the act to establish circuit courts of appeals, approved March 3, 1891. 26 St. pp. 826, 828.

The fifth article of the treaty concluded July 28, 1868, between the United States and China, known as the 'Burlingame Treaty,'(16 St. p. 739,) 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 is as follows:

'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."

A supplementary treaty was concluded November 17, 1880, (22 St. p. 826,) which 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 articles 1 and 2 of which are as follows:

'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.

'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.'

The sixth section of the act of May 6, 1882, entitled 'An act to execute certain treaty stipulations relating to Chinese,' (22 St. p. 58,) as amended by the act of July 5, 1884, (23 St. p. 115,) the matter inserted in amendment being italicized, and the matter stricken out being in brackets, reads as follows:

'Sec. 6. That in order to the faithful execution of [articles one and two of the treaty in] the provisions of this act, [before mentioned,] every Chinese person, other than a laborer, who may be entitled by said treaty [and] 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, or of such other foreign government of which at the time such Chinese person shall be a subject, in each case [such identity] to be evidenced by a certificate issued [under the authority of said] by such government, which certificate shall be in the English language, [or (if not in the English language) accompanied by a translation into English, stating such right to come,] 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, and that such person is entitled [conformably to the treaty in] by this act [mentioned] to come within the United States. 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: provided, that nothing in this act nor in said treaty shall be construed as embracing within the meaning of the word 'merchant' hucksters, peddlers, or those engaged in taking, drying, or otherwise preserving shell or other fish for home consumption or exportation. If the certificate sought for the purpose of travel for curiosity, it shall also state whether the applicant intends to pass through or travel within the ''United States, together with his financial standing in the country from which such certificate is desired. The certificate provided for in this act, and the identity of the person named therein, shall, before such person goes on board any vessel to proceed to the United States, be viseed by the indorsement of the diplomatic representatives of the United States in the foreign country from which said certificate issues, or of the consular representative of the United States at the port or place from which the person named in the certificate is about to depart; and such diplomatic representative or consular representative whose indorsement is so required is hereby empowered, and it shall be his duty, before indorsing such certificate as aforesaid, to examine into the truth of the statements set forth in said certificate, and, if he shall find upon examination that said or any of the statements therein contained are untrue, it shall be his duty to refuse to indorse the same''. Such certificate, viseed as aforesaid, shall be prima facie evidence of the fact set forth therein, and shall be produced to the collector of customs [or his deputy] of the port in the district in the United States at which the person named therein shall arrive, and afterwards produced to the proper authorities of the United States whenever lawfully demanded, and 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; but said certificate may be controvered, and the facts therein stated disproved, by the United States authorities.'

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.' Syn. Treas. Dec. 1890, pp. 253, 254.

J. Hubley Ashton and T. D. Riordan, for appellant.

Asst. Atty. Gen. Parker, for the United States.

[Argument of Counsel from pages 53-55 intentionally omitted]

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.