United States v. Jung Ah Lung/Opinion of the Court

This is an appeal by the United States from a judgment of the circuit court of the United States for the district of California, affirming the judgment of the district court of that district in a ca e of habeas corpus, which ordered the discharge from custody of the person in whose behalf the writ was sued out.

On the 28th of September, 1885, a petition was presented to the district court alleging that Jung Ah Lung, a subject of the emperor of China, was unlawfully restrained of his liberty by the master of a steam-ship in the port of San Francisco; he having arrived in that vessel, and not being allowed to land, because it was contended that it was unlawful for him to do so, under the provisions of the acts of congress on the subject On the filing of the petition, a writ of habeas corpus was issued by the district court to the master of the vessel, commanding him to produce the body of Jung Ah Lung before the court. This was done, and the master made return that he held Jung Ah Lung in his custody, 'by direction of the customs authorities of the port of San Francisco, California, under the provisions of the Chinese restriction act.' On the 12th of October, 1885, by leave of the court, the United States attorney for the district was allowed to file, on behalf of the United States, a special intervention and plea to the jurisdiction of the court. Two questions were raised by it: (1) That Jung Ah Lung was not so restrained of his liberty as to be entitled to the benefit of a writ of habeas corpus; (2) that the collector of the port had passed judgment on the matters of law and fact involved, and the same were res adjudicata. To this intervention Jung Ah Lung demurred, and the demurrer was sustained. The opinion of the court is reported in 25 Fed. Rep. 141. It considered the question of jurisdiction, and held that (1) the case was a proper one for the issuing of a writ of habeas corpus; (2) the collector was not clothed with exclusive jurisdiction in the premises. It gave leave to the district attorney to file an intervention to the merits, which he did, setting forth that Jung Ah Lung was lawfully refused permission to land in the United States, in compliance with the provisions of acts of congress, because he failed to produce to the collector the certificate of identification provided for by those acts; and that he was not entitled to land in the United States. The issue thus joined was tried by the court.

There is a bill of exceptions, which states that the counsel for Jung Ah Lung offered to prove that he was a Chinese laborer, residing in the United States on November 17, 1880, the date of the last treaty between the United States and the emperor of China; that he resided in the United States continuously until October 24, 1883, when, being about to return to China, he received from the collector of San Francisco a certificate enabling him to re-enter the United States, in conformity with the act of congress of May 6, 1882, c. 126, (22 St. 58;) that he departed for China, taking such duplicate with him: that he remained in China until he embarked for San Francisco, on August 25, 1885; that prior thereto, and in June, 1885, he was deprived of said certificate by its being taken from him by robbery by pirates in China; that the books in the registration office of the custom-house in San Francisco showed that the certificate was issued to him; that no one had presented it or entered upon it, and it was uncanceled; and that he conformed in every particular with the description kept in such registration office of the person to whom such certificate was issued. The district attorney objected to the introduction of this testimony as incompetent, on the ground that the statute provided that the certificate should be the only evidence permissible to establish the right of a Chinese laborer to re-enter the United States, and that no secondary evidence of the loss and contents of the certificate could be received. The objection was overruled by the court. The district attorney excepted to the ruling, and the evidence was received.

The district court filed the following findings: 'Counsel for applicant proceeded to introduce testimony, by which it appeared to the satisfaction of this court, and this court so finds that, Jung Ah Lung is a Chinese laborer, being one of the proprietors of a laundry situated at No. 1391 Second avenue, New York city; that he was a resident of the United States on the 17th day of November, A. D. 1880, the date of the last treaty between the United States and the empire of China, and that he resided continuously in the United States until on or about the 24th day of October, A. D. 1883, when he sailed for China on the steamer Rio de Janeiro; that, before sailing for China, he duly applied for and received from the collector of customs for the district of San Francisco a certificate of identification, stating his name, age, occupation, last place of residence, physical marks and peculiarities, and all facts necessary for his identification in conformity to the act of congress entitled 'An act to execute certain treaty stipulations relating to Chinese,' approved May 6, 1882; that he departed on said steamer for China, having in his possession, and taking away with him, the said certificate; that during the month of June, A. D. 1885, while on a voyage from his native village to the city of Canton, China, the junk upon which he was a passenger was attacked by pirates in waters notoriously infested with piratical craft, who deprived said Jung Ah Lung of said certificate entitling said applicant to re-enter the United States; that no one has presented said certificate at this port, and said certificate is outstanding, and remains uncanceled on the books of the custom-house for the district of San Francisco; that the applicant corresponds in all respects to the description contained in the registration books of the custom-house of the person to whom the said certificate was issued, and that no doubt can be entertained that the applicant is the person to whom the said certificate was issued and delivered; that it was not suggested by the district attorney, nor contended by him, that the proof, if admissible, failed to establish, in the most satisfactory manner, the facts herein found by the court, and he claimed that the applicant should be remanded solely on the ground that the testimony offered by the applicant could not, under the provisions of the acts of congress known as the 'Restriction Acts,' be received in evidence. Whereupon the court, being of opinion that the said proofs were admissible, and fully established the facts as claimed by the applicant, ordered that he be discharged.'

The district attorney filed the following exceptions to the findings: '(1) That the court had no authority or jurisdiction to issue a writ in this case, as the applicant was not restrained of his liberty within the true intent and meaning of the act of congress known as the 'Habeas Corpus Act.' (2) That the court, on the return of said writ of habeas corpus, had no authority or jurisdiction to inquire into and decide upon the lawfulness of said alleged restraint, for the reason that the same had been decided to be lawful by the collector of the port of San Francisco, or his deputy. (3) For the reason hereinbefore set forth, the said testimony as to the issuance, loss, and contents of the certificate mentioned aforesaid, and the evidence of the fact that the applicant is the identical person to whom said certificate was issued, is inadmissible, under the provisions of the said restriction acts; and that the applicant having failed to produce his certificate is not now entitled to enter the United States.'

On the 5th of November, 1885, the district court entered a judgment dis charging Jung Ah Lung from custody. The United States appealed to the circuit court from the judgment, and from the rulings objected to by the United States on the trial, and especially from the order sustaining the demurrer to the special intervention and plea to the jurisdiction, and from the rulings admitting other testimony than the certificate to establish the right of Jung Ah Lung to come into the United States. The circuit court affirmed the judgment, as before stated, and from its judgment this appeal is taken.

It is contended for the United States that there was no jurisdiction in the district court to issue the writ in the first instance, because the party was not restrained of his liberty within the meaning of the habeas corpus statute. It is urged that the only restraint of the party was that he was not permitted to enter the United States. But we are of opinion that the case was a proper one for the issuing of the writ. The party was in custody. The return of the master was that he held him in custody by direction of the customs authorities of the port, under the provisions of the Chinese restriction act. That was an act of congress. He was therefore in custody under or by color of the authority of the United States, within the meaning of section 753, Rev. St. He was so held in custody on board of a vessel within the city and county of San Francisco. The case was one falling within the provisions of chapter 13, tit. 13, Rev. St.

It is also urged that if the right to issue the writ existed otherwise, under the general provisions of the Revised Statutes, that right was taken away by the Chinese restriction act, which regulated the entire subject-matter, and was necessarily exclusive. The act of May 6, 1882, c. 126, (22 St. 58,) entitled 'An act to execute certain treaty stipulations relating to Chinese,' as originally passed, and as amended by the act of July 5, 1884, c. 220, (23 St. 115,) is set forth in the margin; the words in italics being introduced by the act of 1884, while those in brackets were in the act of 1882, and were stricken out by the act of 1884. We see nothing in these acts which in any manner affects the jurisdiction of the courts of the United States to issue a writ of habeas corpus. On the contrary, the implication of section 12 is strongly in favor of the view that the jurisdiction of the courts of the United States in the premises was not intended to be interfered with. That section provides that 'any Chinese person found unlawfully within the United States shall be caused to be removed therefrom to the country from whence he came, * *  * after being brought before some justice, judge, or commissioner of a court of the United States, and found to be one not lawfully entitled to be or remain in the United States.' So that, if it were to be claimed by the United States that Jung Ah Lung, if at any time he should be found here, was found unlawfully here, he could not be removed to the country from whence he came unless he were brought before some justice, judge, or commissioner of a court of the United States, and were judicially found to be a person not lawfully entitled to be or remain here. This being so, the question of his title to be here can certainly be adjudicated by the proper court of the United States, upon the question of his being allowed to land.

It is also urged that the statute confides to the collector of the port of San Francisco the authority to pass upon the question of allowing Jung Ah Lung to land in the United States, and provides no means of reviewing his action in the premises; that only executive action in enforcing the treaty and the statutes is contemplated; and that there is no case, in law or equity, growing out of the facts, to be inquired into by a judicial tribunal. It is true that the ninth section of the act provides that, before any Chinese passengers are landed from a vessel arriving in the United States from a foreign port, the collector of customs of the district in which the vessel arrives shall proceed to examine such passengers, comparing with the list and with the passengers the certificates issued under the act; and that no passenger shall be allowed to land in the United States from such vessel in violation of law. But we regard this as only a provision for specifying the executive officer who is to perform the duties prescribed, and that no inference can be drawn from that or any other language in the acts that any judic al cognizance which would otherwise exist is intended to be interfered with.

It is also urged that the treaty itself contemplates only executive action, for the reason that the fourth article of the treaty (22 St. 858) provides that, if the legislation adopted by the United States to carry out the treaty shall be 'found * to work hardship upon the subjects of China, the Chinese minister at Washington may bring the matter to the notice of the secretary of state of the United States, who will consider the subject with him.' But there is nothing in this provision which excludes judicial cognizance, or which confines the remedy of a subject of China, in a given case of hardship, to diplomatic action.

The remaining question is as to the effect of the non-production of the certificate. It is contended for the United States that the actual production by Jung Ah Lung of the certificate issued to him was essential to enable him to land; that the statute does not provide for secondary evidence of its contents; and that it is of no consequence that he corresponds in all respects to the description contained in the registration books at the custom-house of the person to whom the certificate was issued, for the reason that the statute does not say that such species of evidence can be resorted to. Jung Ah Lung having departed from the United States on the 24th of October, 1883, and having then received the certificate of identification under the act of 1882, his case is to be governed by the provisions of that act, and not by the provisions of the act of 1884. The certificate he received contained the matters provided for by the act of 1882, and not those provided for by the act of 1884. The registry books of the custom-house contained, in regard to him, the particulars specified in the act of 1882, and not those specified in the act of 1884. The provisions of the act of 1884, in the respects in which they differ from those of the act of 1882, do not apply to him or to his certificate; and, if he had his certificate to present to the collector, he could not be required to present a certificate containing the additional particulars required by the amendments made by the act of 1884 to the fourth section of the act of 1882. The provisions of the act of 1884, so far as they relate to the contents of the certificate to be issued, and of the certificate to be presented to the collector by the returning Chinese laborer arriving by a vessel, are not retrospective. This principle was determined in the case of Chew Heong v. U.S., 112 U.S. 536, 5 Sup. Ct. Rep. 255, where it was held that a Chinese laborer who was residing in the United States at the date of the treaty of November 17, 1880, and who departed by sea before the passage of the act of 1882, and remained out of the United States until after the passage of the act of 1884, was not required to produce any certificate to the collector, because otherwise his previously vested right to return would be injuriously affected. The same principle applies to the present case, in respect to the right of Jung Ah Lung to return without having received a certificate containing the additional particulars required by the amendatory act of 1884.

In regard to the main question involved, section 4 of the act of 1882 provides that, for the purpose of properly identifying Chinese laborers who were in the United States on the 17th of November, 1880, and in order to furnish them with the proper evidence of their right to go from and come to the United States of their free will and accord, as provided by the treaty, the collector shall, on board of the departing vessel, make a list of the Chinese laborers who are about to sail, which shall be entered in registry books to be kept for the purpose, in which shall be stated the particulars specified by the section, and all facts necessary for the identification of each Chinese laborer, which books shall be safely kept in the custom-house; and that each Ch nese laborer shall receive from the collector, at the time such list is taken, a certificate signed by the collector, and attested by his seal of office, which shall contain a statement of the particulars before mentioned, and facts of identification of himself, corresponding with the said list and registry in all particulars. The section then says: 'The certificate herein provided for 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.' It does not say that such certificate shall be the only evidence permissible to establish the right of re-entry. It merely says that it shall be given for the purpose of properly identifying the laborer, and shall be proper evidence of his right to go from and come to the United States, and shall entitle him to return to and re-enter the United States, upon producing and delivering it to the collector of the district at which he shall seek to re-enter. It does not say that the Chinese laborer returning by a vessel shall not be permitted to enter the United States without producing the certificate. In this respect there is a marked difference between section 4 and section 12 of the same act, in regard to a Chinese person entering the United States by land. Section 12 provides that no Chinese person shall be permitted to enter the United States by land without producing the certificate mentioned in section 4 of the act. This distinction of language is very marked, and we think that, in the absence of like language in section 4, in regard to a Chinese laborer arriving by a vessel, it was competent for the district court to receive the evidence which it did, in the case of a certificate claimed to have been actually lost or stolen. and that its conclusion of law was justified by the facts which it found.

In regard to a suggestion made that a Chinese laborer who has lost his certificate, or from whom it has been stolen, may seek to re-enter the United States by a vessel at some port other than that at which he received the certificate, and that there would be a practical difficulty in identifying him at such port, in the absence of the certificate, it is sufficient to say that this is not such a case; and that there would be no difficulty in producing in evidence the record of the custom-house of the port of departure, or a copy of it, at any port of entry, so as to compare the particulars stated in it with the Chinese laborer, and thus establish his identity or want of identity.

The judgment of the circuit court is affirmed.

Mr. Justice FIELD, Mr. Justice LAMAR, and myself are unable to concur in the interpretation placed by the court upon the act of May 6, 1882, passed by congress in execution of the supplemental treaty with China, concluded on the 17th of November, 1880. By that treaty the United States were at liberty, not withstanding the stipulations of the original treaty, to enact laws regulating, limiting, or suspending the coming of Chinese laborers to, or their residence in, the United States; such limitation or suspension to be reasonable in its character. It further provided 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 [November 17, 1880] 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 first section of the act of May 6, 1882, suspends the coming of Chinese laborers to the United States from and after the expiration of 90 days next after that date, and until the expiration of 10 years next after the passage of the act; and makes it unlaw ul for any Chinese laborer to come, or having so come after the expiration of said 90 days, to remain in this country. The second section makes it an offense, punishable by fine and imprisonment, for any master of a vessel to knowingly bring any Chinese laborer within the United States on such vessel from any foreign port or place. The third section exempts from the operation of the preceding sections only such Chinese laborers as were in this country on the 17th of November, 1880, or who shall have come into the same before the expiration of 90 days next after May 6, 1882, 'and who shall produce to such master before going on board such vessel, and shall produce to the collector of the port in the United States at which such vessel shall arrive, the evidence hereinafter in this act required of his being one of the laborers in this section mentioned.' The fourth section provides for registry books, to be kept by the collector of customs, in which shall be entered a list of all Chinese laborers departing on any vessel from his district, 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 such laborers. Each Chinese laborer so departing from the country, after the passage of the act of 1882, was entitled to receive, free of charge, upon application therefor, at the time such list is taken, a certificate showing the above facts, signed by the collector or his deputy, and attested by his seal of office, in such form as the secretary of the treasury shall prescribe. It is important to observe that this statute expressly declares that all this was to be done 'for the purpose of properly identifying Chinese laborers who were in the United States on the 17th of November, 1880, or who shall have come into the same before the expiration of ninety days next after the passage of this act, and in order to furnish them with the proper evidence of their right to go from and come to the United States of their free will and accord, as provided by the treaty between the United States and China, dated November 17, 1880.' Further: 'The certificate herein provided for 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, and, upon delivery of such certificate by such Chinese laborer to the collector of customs at the time of re-entry into the United States, said collector shall cause the same to be filed in the custom-house, and duly canceled.' The fifth section made provision for a similar certificate to a Chinese laborer of the class mentioned in the fourth section, and who desired to depart from this country 'by land,' to be given by the collector of customs of the district next adjoining the foreign country to which such laborer desires to go. The twelfth section provides 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,' etc.

In view of these provisions, we have been unable to reach any other conclusion than that congress intended, by the act of 1882, to prohibit the return to this country of any Chinese laborer who was here on the 17th of November, 1880, and who thereafter left the United States, taking with him the certificate prescribed by that act, unless he produced such certificate at the time he sought to re-enter. It is not disputed that such was the intention of congress with respect to Chinese persons seeking to enter the United States 'by land.' Indeed, dispute upon that point is precluded by the express prohibition, in the twelfth section, upon all Chinese persons being permitted to enter this country by land 'without producing to the proper officer of ustoms the certificate in this act required.' But is there any ground to suppose that congress intended to prescribe a different or a more stringent rule in relation to Chinese laborers entering by land than that prescribed in relation to Chinese laborers entering at one of the ports of the country? If it be said that the registry books kept at the port of departure furnish ample evidence for the identification of Chinese laborers seeking to enter the country at that port, we answer (1) that congress saw fit to exclude from the country all Chinese laborers of the class to which appellee belongs, unless they produced to the collector the certificate issued as evidence of their right to re-enter the United States; (2) that the rule prescribed is, by the very terms of the statute, uniform in its application to all Chinese laborers, and to every port of the United States. The Chinese laborer who received a certificate under the act of 1882 was not bound to re-enter the United States at the port from which he sailed and at which he received that certificate. He could, as we have seen, re-enter by land, or at any port of the United States, 'upon producing and delivering' his certificate 'to the collector of customs of the district at which such Chinese laborer shall seek to re-enter.' Now, suppose the petitioner, Jung Ah Lung, had sought to re-enter the United States at the port of New York. How could he have been identified at that port as a Chinese laborer, to whom a certificate had been issued by the collector of customs at San Francisco? The collector of customs at New York would have been without authority to accept affidavits in support of his claim of a right to re-enter. It is to be further observed that the act of July 5, 1884, (23 St. 115,) provides that section 4 of the act of 1882 shall be so amended as to read that 'said certificate shall be the only evidence permissible to establish his right of re-entry.' This did not declare a new rule, but indicates, in language clearer than that previously used, the intention of congress in passing the act of 1882.

If appellee's certificate was forcibly taken from him by a band of pirates, while he was absent, that is his misfortune. That fact ought not to defeat what was manifestly the intention of the legislative branch of the government. Congress, in the act of 1882, said in respect to a Chinese laborer who was here when the treaty of 1880 was made, and who afterwards left the country, that 'the proper evidence' of his right to go and come from the United States was the certificate he received from the collector of customs at the time of his departure, and that he should be entitled to re-enter 'upon producing and delivering such certificate' to the collector of customs of the district at which he seeks to re-enter; while this court decides that he may reenter the United States without producing such certificate, and upon satisfactory evidence that he once had it, but was unable to produce it. As by the very terms of the act a Chinese laborer who was here on November 17, 1880, is not excepted from the provision absolutely suspending the coming of all that class to this country for a given number of years, unless he produces to the collector the certificate issued to him, we cannot assent to the judgment of the court.