testimony of the witness does not show that he knew anything of the actual birth of those children. His knowledge on that subject must have been largely hearsay. Was not a question of fact for the determination of the commissioner presented? Does not this testimony itself create such a doubt of its truth or reliability that reasonable and prudent men are justified in refusing to accept it as satisfactory proof of the fact sought to be established? United States v. Yee Min, alias Chin Yee Min (1,309), and Chin Rock Ting, ́ alias Chin Pak Ting (1,306).

It having been admitted that defendants are Chinese persons not of the exempt class, and that they came into the United States from Canada, and were apprehended, as charged, Low Ming, for the defendants, testifies that defendants are children of his older sister, and were born at San José, Cal.; that one is 22, the other 20, years of age; was not present at birth, but saw them about two weeks thereafter. When the oldest defendant was 8, all went back to China. Defendants are just reappearing in this country. The witness says he had a younger brother. Chin He, for the government, says he knew Low Ming and his family in China, and has known him here, and states positively he did not have a sister or a brother, and that he came to the United States only 17 or 18 years ago. Low Ming says he came 24 years ago. These witnesses are so at variance on material points that it is not possible to more than guess at the truth. There is no preponderance of credible evidence. The commissioner could not well have been satisfied from the testimony before him that the defendants were born in the United States.

United States v. Yee Ark Tai and Woo Fun, alias Yee Woo Fun.

It was admitted that the defendants are Chinese persons, not of the exempt class, and that they came into the United States from the Dominion of Canada, and were apprehended, as charged. Young Jung, of Pell street, New York, testifies for the defendants, and states, in substance, that he came to the United States from China 22 years ago, and was at Salmon Island, Cal., for 7 years; then at Brooklyn 9 years; then in China one year. On bis return from China he came to New York, and has been here 5 years. Testifies he had an older sister, and that she had two sons born in the United States, who returned to China when 6 and 4 years of age, respectively; that he (witness) had been here about 1 year when these sons were born, and they returned to China with their parents. This makes the defendants 19 and 20 years of age, respectively. Witness says Yung Chee was 27 when he (witness) first came to the United States, and was only 36 when he went back to China, 16 years later. Yung Tin was 10 or 12 when witness came to the United States, and only 18 or 19 16 years later, when witness was back in China. Says he is sure about these ages of the persons described. For the government, Young Shai Foo says he knows and identifies Young Jung; knew him and his family well in China; is his cousin; that their mothers were sisters; and that Young Jung had no sister. This witness identified a photograph other than that of Young Jung as that of Young Jung, but did not fail to identify Young Jung's photograph. There is nothing to show how close the resemblance was, and hence this error is not very significant here. The main contradiction is that Young Jung had no sister, and hence the sister of that witness did not give birth to the defendants. If in error as to having a sister, he is easily in error as to the birth of the defendants. The commissioner was not satisfied the witness told the truth, and such contradictory evidence, read all together, failed to establish the main facts to his satisfaction.

United States v. Lin Park and Lee Choy.

It being first admitted that the defendants are Chinese persons, not of the exempt class, and that they came into the United States from the dominion of Canada, and were apprehended, as charged, Di Ging, who, according to his testimony, resides at 16 Pell street, New York City, is 46 years of age, was born in China, and came to the United States 22 years ago, and resided at San José for 12 years, and has been in New York since, further testified that he knows Lin Park, aged 20 years, and Lee Choy, aged 18 years, the defend

*ants, and knew them in San José. Being asked, "Where were they born?" he said, "San José." Being asked when they returned to China, he said one was 10 and the other 8 years of age when that occurred. He also says they were sons of his older sister, and their father's name was Woo Ah Tuk. On cross-examination he states some facts regarding his life, etc., and says Lee Choy was born 4 years after the witness came to the United States, or 18 years ago. He has not seen the defendants before in 10 years; hence one was 8 and the other 10 when last seen by the witness. Asked, "How did you recognize them?" he said, "I remember them;" no physical marks. He was then asked how he knew they were in jail at Plattsburg, and answered that he had a letter from them, sent from the steamer, saying "they were going to be in jail here." Letter also told him the trial would be the day It took place. He was told to go to an attorney, which he did, and the attorney took him over to testify. Chu Hall, for the government, testified that he knows the witness Di Ging, knew him in China, and also knew his father and family,-visited them often,-and that Di Ging had no brother or sister. It is evident that the defendants expected to bring up in jail before they landed in America, and that this witness was expected to be on hand to make a case for them. This is hardly consistent with the claim that they were born in the United States. In any event, there was such a conflict of evidence that the commissioner's judgment should not be disturbed.

United States v. Fook Chung, allas Fook Taing.

It was admitted that the defendant is a Chinese person, not a member of the exempt class, and came into the United States from the dominion of Canada, and was apprehended, as charged. Tsang Tsun testified for the defendart, Lem Sing for the government, and Hom Bing for the defendant fu reply. All are Chinese, and gave their testimony through an interpreter. Tsang Tsun resides at Ridgewood, N. J., is 39 years of age, and came to the United States when 18. Says his brother Tsang Loong and his wife came with him to this country from China, and, after two weeks in San Francisco, went to Butte City, Mont.; that they all lived together, on a vegetable ranch, in the same house; that the defendant Fook Chang was born there 3 years after their coming to this country, and is son of this brother; that they lived there 8 years, when this brother, wife, and child all went to China; that witner came on to New York, where he lived five years, and then went to Ridgewood, and remained 4 years, when he went to China, and stayed one year, and then returned to the United States; that in China, on this visit, he lived in the same house with defendant. In court he identified defendant, and stated he is his only nephew. On cross-examination states he has no sister, and only one brother. The witness states about the birth of defendant, and there are no errors or discrepancies in his lengthy cross-examination. None of his statements are improbable on their face, except that the father, a vegetable gardener, was a doctor, and understood the business of attending women in childbirth. Lem Sing, sworn for the United States, says he is 43 years old, lives at 12 Pell street, New York, and came to the United States 20 years ago, landing at Portland, Ore., and then went to Spokane Falls and worked on the railroad; that he knows the witness Tsang Tsun, and knew him first when they worked on the railroad together. Says they came on the same steamer, and worked together at Spokane Falls 4 years. Has seen him a few times within the last few years. He identifies the photograph of the witness as the same person. The cross-examination of this witness did not shake or discredit his testimony, and contained no contradictions. It exhibits no want of intelligence or bias. Hom Bing, for defendant, testified that he knew Tsang Tsun in Butte City, Mont., and his wife, and that defendant was born there, and that he recognizes him, although he is not related, and has not seen the child since it was 4 years old, some 15 to 17 years ago. The cross-examination of this witness demonstrated that he knows nothing of the birth of this defendant, except by hearsay, and cannot identify him. His testimony, as a whole, is inherently improbable, and, as it appears on the record, fails to carry conviction that he was speaking truthfully. In fact, it gives the contrary impression, decidedly. If Tsang Tsun spoke the truth, the defendant made his case. If Lem Sing spoke the truth,

and was not mistaken in his identification, Tsang Tsun did not tell the truth.. The other witness added nothing to the strength of defendant's case. The commissioner saw these witnesses, and observed their manner, etc., and hence was better able to judge their credibility. When the testimony given to establish a fact is evenly balanced, should not the judgment of the trial court be sustained on appeal?

Geo. B. Curtiss, U. S. Atty., and H. E. Owen, Asst. U. S. Atty. Jas. F. Akin, for defendants Lee Huen, Fong Ham, Yee Yim, So Ho Lung, Wong Hum, and Wong Ching.

R. M. Moore, for defendants Chan Hin, Yet Sang, Fong John, Soo Hoo We, Chong Jack, Ah Wing, and Bak Hen.

B. W. Berry (R. M. Moore, of counsel), for defendants Wong On, Chin Yuen, Chin How, and Chin Tung.

J. B. Riley, for defendants Jung Lee, Lee Gung, Yee Ark Tai, Woo Fun, Lin Park, and Lee Choy.

John B. Riley (R. M. Moore, of counsel), for defendants Yee Min and Chin Rock Ting.

J. H. Booth, for defendant Fook Chung.

RAY, District Judge (after stating the facts as above). Having given a somewhat detailed statement of the testimony in these cases, it only remains to call attention to the rules of law and evidence applicable thereto, and which must control this court in determining the appeals.

The influx of Chinese laborers into the United States attracted the attention of the congress prior to 1880, and has resulted in the enactment of certain laws from time to time applicable to all classes of Chinese aliens within or seeking entrance into the United States. With the wisdom of these laws the courts and judges have nothing whatever to do. It is the duty of the judicial officers charged with their enforcement to accept such laws as wise and suitable to the conditions that demanded and secured their enactment, and interpret and (so far as they are found to be constitutional and capable of execution) enforce them accordingly. Unless a different course of procedure is provided by law, these statutes to prohibit or regulate the coming of Chinese aliens into the United States, or to expel them therefrom, are to be executed, and all trials thereunder conducted according to the established rules and practice of the courts of the United States in similar cases. Except as stated, the same rules of evidence are to be applied, and there should be no relaxation of these established rules in the administration of the law, on the plea that the laws are severe or rigorous. For the modification of such laws, if any modifications are desired, application must be made to the lawmaking branch of the government, which, within its sphere and constitutional power, is supreme.

Chinese persons within the United States (meaning thereby the organized states and territories), and their descendants, when born therein of parents residing here, and not employed in a diplomatic or official capacity under the emperor of China, are citizens of the United States, and, when such fact is established in the mode and manner prescribed by the proper authorities, are entitled to be and remain

therein, and are entitled to the equal protection of the laws. U. S. v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890. Residents, alien born, are also entitled to the equal protection of the laws. Yick Wo. v. Hopkins, 118 U. S. 356-369, 6 Sup. Ct. 1064, 30 L. Ed. 220; Wong Wing v. U. S., 163 U. S. 242, 16 Sup. Ct. 977, 41 L. Ed. 140. The power to expel or exclude aliens, being a power affecting our international relations, is vested in the political departments of the government, and is to be regulated by treaty or act of congress, and is to be executed by the executive authority, except so far as the judicial department has been authorized or is required by the constitution to intervene. Fong Yue Ting v. U. S., 149 U. S. 711, 713, 714, 13 Sup. Ct. 1016, 37 L. Ed. 905; U. S. v. Wong Kim Ark, 169 U. S. 699, 700, 18 Sup. Ct. 456, 42 L. Ed. 890. The mode and manner of ascertaining this fact of citizenship as a means for excluding or expelling aliens is exclusively within the power of congress, acting within its constitutional limitations, to determine. Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905; U. S. v. Wong Kim Ark, 169 U. S. 699, 700, 18 Sup. Ct. 456, 42 L. Ed. 890. The right to exclude or expel aliens of any nationality is our inherent and inalienable right as a sovereign and an independent nation, and this power may be exercised entirely through executive officers. Same cases. It follows that a proceeding under our law to expel or exclude aliens is not a criminal prosecution or proceeding. 149 U. S. 730, 13 Sup. Ct. 1016, 37 L. Ed. 905. The defendants are not on trial for the offense of coming into or being in the United States contrary to law, but the government, in the exercise of its sovereign power, is seeking to expel or exclude aliens who have no right to be here. This is not done as a punishment for coming in or being here, whether lawfully or unlawfully, but as a matter of public policy. A crime is "a wrong which the government notices as injurious to the public, and punishes in what is called a 'criminal proceeding,' in its own name." Bish. Cr. Law, § 43; Kentucky v. Dennison, 24 How. 66, 16 L. Ed. 717; People v. Donohue, 84 N. Y. 441. Cent. Dict. tit. "Crime." True, congress may make it a crime for an alien to come into this country in violation of our laws, or, being herein, to remain in violation of such laws after being ordered to depart; and should this be done, and a punishment prescribed for the violation of such law, the trial would be by the judicial, and not by the executive, branch of the government, and the constitutional right of trial by jury, etc., would necessarily inure to the benefit, and operate for the protection, of the offender. Wong Wing v. U. S., 163 U. S. 228, 16 Sup. Ct. 977, 41 L. Ed. 140.

Section 4 of the act of May 5, 1892, "An act to prohibit the coming of Chinese persons into the United States," was declared unconstitutional by the supreme court of the United States, in the above-cited case, because no judicial trial according to the constitution to establish the guilt of the accused was provided, not because the power to enact a criminal statute in accordance with the constitution, and accompanied or limited by the safeguards of that instrument, does not exist. This was also declared, in substance, by Mr. Justice Gray in Fong Yue Ting v. U. S., 149 U. S. 730, 13 Sup. Ct. 1016, 37 L. Ed.

905. The decision in the Wong Wing case, supra, took from the act of May 5, 1892 (27 Stat. 25), its criminal features. The result is that in all these Chinese deportation cases the defendants may be sworn as witnesses in their own behalf. Potter v. Bank, 102 Ú. S. 163, 26 L. Ed. III; Bradley v. U. S., 104 U. S. 442, 26 L. Ed. 824; Green v. U. S., 9 Wall. 655, 19 L. Ed. 806. At their own request, defendants may testify in all criminal cases. In civil cases there is no provision of law that their failure to be sworn shall neither create a presumption nor permit an inference against them. In criminal cases there is such a provision. Act March 16, 1878, c. 37 (U. S. Comp. Stat. 1901, p. 660). "And his failure to make such request shall create no presumption against him." If defendants fail to give testimony in their own behalf, and explain doubtful matters peculiarly within their own knowledge, in these deportation cases, that fact may be commented on, and used to their disadvantage, possibly, for such fact may be considered by the court or commissioner, with all the evidence and circumstances of the case, and justify him in taking testimony they might have explained or denied, strongly against them. See cases cited below. Hence the commissioners in each of these cases had the right to consider the silence of the defendants in their respective cases in that regard, and such silence or failure to deny or contradict certain statements, or even give evidence on the main issue, may have turned the scales. Such silence cannot be taken as proof of any fact, or as an admission, but it is a circumstance which may be considered in determining which of two witnesses contradicting each other has testified correctly. Quock Ting v. U. S., 140 U. S. 420, II Sup. Ct. 733, 851, 35 L. Ed. 501; Schwier v. Railroad Co., 90 N. Y. 564; Grinnell v. Taylor, 85 Hun, 85, 32 N. Y. Supp. 684, affirmed in 155 N. Y. 653, 49 N. E. 1097.

Said the court, per Field, J., in Quock Ting v. U. S., supra:

"It is incredible that a father would allow the exclusion of his son from the country where he lived, when proof of his son's birth and residence there for years could have been easily shown, if such in truth had been the fact." Section 3 of the act of May 5, 1892 (27 Stat. 25), has wisely and necessarily provided (if the law is to be enforced):

"That any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended, shall be adjudged to be unlawfully within the United States unless such person shall establish by affirmative proof, to the satisfaction of such justice, judge or commissioner, his lawful right to remain in the United States."

The burden of proof, not of evidence, merely, is on the defendant. There is a wide difference between testimony and evidence, as well as between evidence and proof. There may be pages of testimony of some relevancy, without any substantial evidence of the fact sought to be established. So there may be some evidence of such fact, but no sufficient proof. Testimony is the statements given by the witnesses, and, if relevant, they are evidence. Evidence is whatever may properly be considered by the court, or properly may be submitted to the jury for its consideration, while proof is the legal effect of evidence. People v. Beckwith, 108 N. Y. 67-73, 15 N. E. 53; Steph. Dig. Ev. (2d Ed.) p. 3, note 2. See I Tayl. Ev., notes 2, 3, by Chamberlayne.