Opinion of the Court.

The question whether, and upon what conditions, these aliens shall be permitted to remain within the United States being one to be determined by the political departments of the government, the judicial department cannot properly express an opinion upon the wisdom, the policy or the justice of the measures enacted by Congress in the exercise of the powers confided to it by the Constitution over this subject.

The three cases now before us do not differ from one another in any material particular.

In the first case, the petitioner had wholly neglected, failed and refused to apply to the collector of internal revenue for a certificate of residence, and, being found without such a certificate after a year from the passage of the act of 1892, was arrested by the United States marshal, with the purpose, as the return states, of taking him before a United States judge within the district; and thereupon, before any further proceeding, sued out a writ of habeas corpus.

In the second case, the petitioner had likewise neglected, failed and refused to apply to the collector of internal revenue for a certificate of residence, and, being found without one, was arrested by the marshal and taken before the District Judge of the United States, who ordered him to be remanded to the custody of the marshal, and to be deported from the United States, in accordance with the provisions of the act. The allegation in the petition, that the judge's order was made "without any hearing of any kind," is shown to be untrue by the recital in the order itself, (a copy of which is annexed to and made part of the petition,) that he had failed to clearly establish to the judge's satisfaction that by reason of accident, sickness or other unavoidable cause, he had been unable to procure a certificate, or that he had procured one and it had been lost or destroyed.

In the third case, the petitioner had, within the year, applied to a collector of internal revenue for a certificate of residence, and had been refused it, because he produced and could produce none but Chinese witnesses to prove the residence necessary to entitle him to a certificate. Being found without a certificate of residence, he was arrested by the

Dissenting Opinion: Brewer, J.

marshal, and taken before the United States District Judge, and established to the satisfaction of the judge, that, because of the collector's refusal to give him a certificate of residence he was without one by unavoidable cause; and also proved, by a Chinese witness only, that he was a resident of the United States at the time of the passage of the act of 1892. Thereupon the judge ordered him to be remanded to the custody of the marshal, and to be deported from the United States, as provided in that act.

It would seem that the collector of internal revenue, when applied to for a certificate, might properly decline to find the requisite fact of residence upon testimony which, by an express provision of the act, would be insufficient to prove that fact at a hearing before the judge. But if the collector might have received and acted upon such testimony, and did, upon any ground, unjustifiably refuse a certificate of residence, the only remedy of the applicant was to prove by competent and sufficient evidence at the hearing before the judge the facts requisite to entitle him to a certificate. To one of those facts, that of residence, the statute, which, for the reasons already stated, appears to us to be within the constitutional authority of Congress to enact, peremptorily requires at that hearing the testimony of a credible white witness. And it was because no such testimony was produced, that the order of deportation was made.

Upon careful consideration of the subject, the only conclusion which appears to us to be consistent with the principles of international law, with the Constitution and laws of the United States, and with the previous decisions of this court, is that in each of these cases the judgment of the Circuit Court, dismissing the writ of habeas corpus, is right and

must be

MR. JUSTICE BREWER dissenting.

Affirmed.

I dissent from the opinion and judgment of the court in these cases, and the questions being of importance, I deem it not improper to briefly state my reasons therefor.

Dissenting Opinion: Brewer, J.

I rest my dissent on three propositions: First, that the persons against whom the penalties of section 6 of the act of 1892 are directed are persons lawfully residing within the United States; secondly, that as such they are within the protection of the Constitution, and secured by its guarantees against oppression and wrong; and, third, that section 6 deprives them of liberty and imposes punishment without due process of law, and in disregard of constitutional guarantees, especially those found in the Fourth, Fifth, Sixth, and Eighth Articles of the Amendments.

And, first, these persons are lawfully residing within the limits of the United States. By the treaty of July 28, 1868, 16 Stat. 739, 740, commonly known as the "Burlingame Treaty," it was provided, article 5: "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." And article 6: "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 of the most favored nation." At that time we sought Chinese emigration. The subsequent treaty of November 17, 1880, 22 Stat. 826, which looked to a restriction of Chinese emigration, nevertheless contained in article 2 this provision:

"ARTICLE II. 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,

Dissenting Opinion: Brewer, J.

and exemptions which are accorded to the citizens and subjects of the most favored nation."

While subsequently to this treaty, Congress passed several acts May 6, 1882, 22 Stat. 58, c. 126; July 5, 1884, 23 Stat. 115, c. 220; October 1, 1888, 25 Stat. 504, c. 1064- to restrict the entrance into this country of Chinese laborers, and while the validity of this restriction was sustained in the Chinese Exclusion case, 130 U. S. 581, yet no act has been passed denying the right of those laborers who had once lawfully entered the country to remain, and they are here not as travellers or only temporarily. We must take judicial notice of that which is disclosed by the census, and which is also a matter of common knowledge. There are 100,000 and more of these persons living in this country, making their homes here, and striving by their labor to earn a livelihood. They are not travellers, but resident aliens.

But, further, this section six recognizes the fact of a lawful residence, and only applies to those who have such; for the parties named in the section, and to be reached by its provisions, are "Chinese laborers within the limits of the United States at the time of the passage of this act, and who are entitled to remain in the United States." These appellants, therefore, are lawfully within the United States, and are here as residents, and not as travellers. They have lived in this country, respectively, since 1879, 1877, and 1874 - almost as long a time as some of those who were members of the Congress that passed this act of punishment and expulsion.

That those who have become domiciled in a country are entitled to a more distinct and larger measure of protection than those who are simply passing through, or temporarily in it, has long been recognized by the law of nations. It was said by this court, in the case of The Venus, 8 Cranch, 253, 278: "The writers upon the law of nations distinguish between a temporary residence in a foreign country, for a special purpose, and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel, domicil, which he defines to be 'a habitation fixed in any place, with an intention of always staying there.' Such

Dissenting Opinion: Brewer, J.

a person, says this author, becomes a member of the new society, at least as a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens; but is, nevertheless, united and subject to the society, without participating in all its advantages. This right of domicil, he continues, is not established, unless the person makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. (Vatt. pp. 92, 93.) Grotius nowhere uses the word domicil, but he also distinguishes between those who stay in a foreign country by the necessity of their affairs, or from any other temporary cause, and those who reside there from a permanent cause. The former he denominates strangers, and the latter subjects." The rule is thus laid down by Sir Robert Phillimore: "It has been said that these rules of law are applicable to naturalized as well as native citizens. But there is a class of persons which cannot be, strictly speaking, included under either of these denominations, namely, the class of those who have ceased to reside in their native country, and have taken up a permanent abode in another. These are domiciled inhabitants; they have not put on a new citizenship through some formal mode enjoined by the law of the new country. They are de facto though not de jure citizens of the country of their domicil." 1 Phillimore, International Law, Chap. XVIII, p. 347.

In the Koszta case it was said by Secretary Marcy: "This right to protect persons having a domicil, though not nativeborn or naturalized citizens, rests on the firm foundation of justice, and the claim to be protected is earned by considerations which the protecting power is not at liberty to disregard. Such domiciled citizen pays the same price for his protection as native-born or naturalized citizens pay for theirs. He is under the bonds of allegiance to the country of his residence, and if he breaks them incurs the same penalties; he owes the same obedience to the civil laws .; his property is in the same way and to the same extent as theirs liable to contribute to the support of the government. . . In nearly all respects his and their condition as to the duties and burdens of government are undistinguishable." 2 Wharton Int. Law Digest, 198.