Chew Heong v. United States

• Decision Date: 08 December 1884
• Citation: 112 U.S. 536,28 L.Ed. 770,5 S.Ct. 255
• Parties: CHEW HEONG v. UNITED STATES. 1
• Court: U.S. Supreme Court

112 U.S. 536

5 S.Ct. 255

28 L.Ed. 770

CHEW HEONG v. UNITED STATES.¹

December 8, 1884.

[Syllabus and statement of facts from 536-537 intentionally omitted] H. S. Brown and Thos. D. Riordan, for plaintiff in error.

Asst. Atty. Gen. Maury, for defendant in error.

HARLAN, J.

This case comes before us upon a certificate of division in opinion upon questions that require a construction of the act of congress, approved May 6, 1882, c. 126, (22 St. 58,) entitled 'An act to execute certain treaty stipulations relating to Chinese,' commonly known as the Chinese restriction act,—and of the act amendatory thereof, approved July 5, 1884, c. 220, (23 St. 115.) The facts deemed important in the consideration of these questions, and as to which there is no dispute, are these: The plaintiff in error, Chew Heong, is a subject of the emperor of China, and a Chinese laborer. He resided in this country on the seventeenth of November, 1880, on which day commissioners plenipotentiary, upon the part of the United States and China, concluded, at Peking, a treaty containing articles in modification of former treaties between the same countries. 22 St. 826. He departed from the United States for Honolulu, in the Hawaiian kingdom, on the eighteenth of June, 1881, and remained there until September 15, 1884, when he took passage on an American vessel bound for the port of San Francisco. Arriving at that port on September 22, 1884, his request to be permitted to leave the vessel was denied, and he was detained on board, under the claim that the act of congress of May 6, 1882, as amended, forbade him to land within the United States. He was thereupon brought before the circuit court of the United States, for the district of California, upon a writ of habeas corpus. The United States attorney for that district, who was permitted to intervene in behalf of the government, objected to his discharge, and asked that such orders be made as would effect his removal from the country. It was held that he was not entitled to re-enter or to remain in the United States, and must be deported to the place whence he came, to-wit, Honolulu.

The questions certified involved the inquiry whether section 4 of the act approved May 6, 1882, as amended by that of July 5, 1884, prescribing the certificate which shall be produced by a Chinese laborer as the 'only evidence permissible to establish his right of re-entry' into the United States, is applicable to Chinese laborers who, residing in this country on November 17, 1880, departed by sea prior to May 6, 1882, and remained out of the United States till after July 5, 1884. In behalf of the plaintiff in error it is contended that he left for Honolulu with the right secured by treaty to re-enter the United States at his pleasure, subject only to such regulations and restrictions as did not substantially affect his enjoyment of that right; that this privilege does not depend upon his having procured, before he left the United States in 1881, a collector's certificate for which the law, at that time, made no provision; and, consequently, that his right to return, if questioned, must be determined by such evidence as is competent under the general principles of law. The contention on behalf of the government is that his admission into this country, upon evidence other than the certificate prescribed by the act of 1884, would be inconsistent with the intention of congress as manifested by the language of both the original and amendatory acts.

If, as claimed by plaintiff in error, the treaty of 1880, fairly interpreted, secured to him, at the time of his departure for Honolulu, the right to go from and return to the United States at pleasure, without being subjected to regulations or conditions affecting the substance of that right, the court should be slow to assume that congress intended to violate the stipulations of a treaty, so recently made with the government of another country. 'There would no longer be any security,' says Vattel, 'no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises.' Book 2, c. 12. And as sovereign nations, acknowledging no superior, cannot be compelled to accept any interpretation, however just and reasonable, 'the faith of treaties constitutes in this respect all the security of contracting powers.' Book 2, c. 17. 'Treaties of every kind,' says Kent, 'are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and are to be kept in the most scrupulous good faith.' 1 Kent, Comm. 174. A treaty that operates of itself without the aid of legislation is equivalent to an act of congress, and while in force constitutes a part of the supreme law of the land. Foster v. Neilson, 2 Pet. 314. Aside from the duty imposed by the constitution to respect treaty stipulations when they become the subject of judicial proceedings, the court cannot be unmindful of the fact that the honor of the government and people of the United States is involved in every inquiry whether rights secured by such stipulations shall be recognized and protected. And it would be wanting in proper respect for the intelligence and patriotism of a co-ordinate department of the government were it to doubt, for a moment, that these considerations were present in the minds of its members when the legislation in question was enacted.

With these observations, we proceed to consider whether the right claimed by the plaintiff is secured by treaty, and, if so, whether its recognition is inconsistent with the before-mentioned acts of congress.

Before referring to the treaty of 1880, it will be well to ascertain from those previously concluded between the United States and China, what were the relations of trade and commerce existing between their respective peoples. By the treaty of peace, amity, and commerce, concluded in 1858, citizens of the United States in China peaceably attending to their affairs, were placed on a common footing of amity and good-will with subjects of the latter country, entitled to receive and enjoy for themselves, and everything pertaining to them, the protection of the local authorities of government, who were required to defend them from insult or injury of any sort. Those residing or sojourning at any of the ports open to foreign commerce were permitted to rent houses and places of business, or hire sites on which they could themselves build houses, hospitals, churches, and cemeteries; to frequent certain designated ports and cities, and any other port or place thereafter, by treaty with other powers or with the United States, opened to commerce; to reside with their families and trade at such places, and to proceed at pleasure with their vessels and merchandise to and from said ports, or any of them; at each of said ports open to commerce, to import from abroad, and to sell, purchase, and export all merchandise of which the importation or exportation was not prohibited by the laws of China, subject to no higher duties than those paid by the most favored nation. By that treaty, also, any right, privilege, or favor, connected either with navigation, commerce, political, or other intercourse thereafter granted by China to the citizens of any nation, was at once to freely inure to the benefit of the United States, its public officers, merchants, and citizens. 12 St. 1025 et seq.

In the treaty concluded July 28, 1868, the governments of the United States and China recognized 'the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of free migration and emigration of their citizens and subjects, respectively, from one country to the other, for purposes of curiosity, of trade, or as permanent residents.' They therefore joined in reprobating any other than an entirely voluntary emigration for those purposes. By that treaty it was also provided that citizens of the United States visiting or residing in China, and Chinese subjects visiting or residing in the United States, should enjoy the same privileges, immunities, or exemptions in respect to travel or residence, and in respect of public educational institutions, as should be accorded to the most favored nation in the country in which they should be respectively visiting or residing. 16 St. 739.

This brings us to the treaty concluded November 17, 1880, which refers to the prior treaties of 1858 and 1868. To that treaty the senate gave its assent on May 5, 1881, and it was ratified by the president on the ninth of May, 1881. Its first three articles are as follows:

'Article 1. 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.

'Art. 2. 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...