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Opinion of the Court.

tion. The collector of customs at the port of San Francisco did, on September 23, 1901, deny the petitioner the privilege of further pursuing his journey to his alleged point of destination. The petitioner has a ticket, or an order for a ticket, for a through passage from Hong Kong, China, to San José de Guatemala by steamer. The petitioner is now held by W. H. Avery, agent for the Japanese steamship company, by virtue of an order issued by the collector of customs for the port of San Francisco, directing him to retain the person of the petitioner in his custody, and deport bim to China."

The court ordered the petition and the writ of habeas corpus to be dismissed, and the petitioner remanded to custody; and he appealed to this court.

Mr. Maxwell Evarts for appellant.

Mr. Assistant Attorney General Hoyt for appellee.

MR. CHIEF JUSTICE Fuller delivered the opinion of the court.

The facts upon which the parties submitted the case to the decision of the court below do not include, on the one hand, the statement of the petition that the petitioner was examined by a customs inspector, his baggage and papers opened, and his person searched; nor, on the other hand, the statements in the intervention of the United States, that the petitioner was a laborer by occupation, and that the decision of the collector for his detention and deportation was made after due and careful investigation, and for the reason that he was satisfied that the petitioner did not intend in good faith to continue his voyage through the territory of the United States to the Republic of Mexico. But the facts agreed are simply that the petitioner was a subject of the Empire of China, arriving at the port of San Francisco, whose intended destination, as appeared by the mani. fest of the vessel in which he arrived, and by his own allega tion, was San José de Guatemala in the Republic of Mexico, and who had a ticket, or an order for a ticket, for a through passage from Hong Kong, China, to San José de Guatemala by

Opinion of the Court.

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steamer; and that the collector of customs at San Francisco denied him the privilege of further pursuing his journey to his alleged point of destination, and issued an order directing bim to be detained and deported to China.

The whole question in the case, therefore, is whether this denial and order of the collector were authorized by law.

Before the treaty of 1894 between the United States and China, the privilege of transit of Chinese persons across the territory of the United States was not specifically mentioned in any treaty or statute, except in the last clause of section 8 of the act of September 13, 1888, c. 1015, by which the Secretary of the Treasury was authorized to make, and from time to time to change, “such rules and regulations, not in conflict with tbis act, as he may deem necessary and proper to conveniently secure to such Chinese persons as are provided for in articles second and third of” a treaty between the United States and China, signed March 12, 1888, but not then ratified, “the rights therein mentioned and such as shall also protect the United States against the coming and transit of persons not entitled to the benefit of the provisions of said articles.” 25 Stat. 478. As that treaty was never ratified, it may be doubtful whether that section ever took effect. See Li Sing v. United States, 180 U. S. 486, 490; United States v. Gee Lee, 50 Fed. Rep. 271.

But such privilege of transit was recognized by successive Attorneys General from 1882 to January, 1894; (17 Opinions, 416, 485; 18 Opinions, 388; 19 Opinions, 369; 20 Opinions, 693;) and it was regulated by orders of the Treasury Department.

By regulations of Secretary Folger of January 23, 1883, it was provided that “where a Chinese consul resides at the port of landing or entrance into the United States by any Chinese laborer claiming to be merely in transit through the territory of the United States in the course of a journey to or from other countries, the certificate of such Chinese consul, identifying the bearer by name, height, age, etc., so far as practicable, and showing the place and date of his arrival, the place at which he is to leave the United States, the date when his journey is to begin, and that it is to be continuous and direct, shall be accepted as

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Opinion of the Court.

prima facie evidence;” that, “in the absence of such certifi. cate, other competent evidence to show the identity of the person, and the fact that a bona fide transit only is intended, may be received ;” and that “the production of a through ticket across the whole territory of the United States intended to be traversed may be received as competent proof, and should be exbibited to the collector and verified by him. Such tickets and all other evidence presented must be so stamped or marked and dated by the customs officer as to prevent their use a second time."

By regulations of Secretary McCulloch of January 14, 1885, the regulations of January 23, 1883, “relative to the transit of Chinese laborers through the territory of the United States, will be applied to all Chinese persons intending to so go in transit through the United States ;” and “ Chinese persons who may be compelled to touch at the ports of the United States in transit to foreign countries may be permitted to land under the regulations of January 23, 1883, so far as the same may be applicable, such persons to take passage by the next vessel leaving for their destination, or the voyage of which may form part of the route necessary to carry them to their destination."

By regulations of Secretary Windom of September 28, 1889, "any Chinese laborer claiming to be in transit through the territory of the United States, in the course of a journey from and to other countries, shall be required to produce to the collector of customs at the first port of arrival a through ticket across the whole territory of the United States intended to be traversed, and such other proof as he may be able to adduce, to satisfy the collector of the fact that a bona fide transit only is intended ; and such ticket and other evidence presented must be so stamped, or marked, and dated by the customs officer as to prevent their use the second time;" a bond in the penal sum of $200 was required for each Chinese laborer, "conditioned for his transit and actual departure from the United States within a reasonable time, not exceeding twenty days from the date of arrival ;” and previous regulations on the subject were rescinded.

By article 3 of the treaty between the United States and China

Opinion of the Court.

of March 17, 1894, it is “agreed that Chinese laborers shall continue to enjoy the privilege of transit across the territory of the United States in the course of their journey to or from other countries, subject to such regulations by the Government of the United States as may be necessary to prevent said privilege of transit from being abused.” 28 Stat. 1211. That article was also in the unratified treaty of 1888.

On December 8, 1900, Secretary Gage issued regulations amendatory of the regulations of September 28, 1889, and addressed “to collectors of customs and all other officers charged with the enforcement of the Chinese exclusion laws," the material parts of which were as follows:

“Complaints having reached the Department of attempted violations of the laws enacted for the exclusion of Chinese by those who have been allowed to pass through the United States to foreign territory, the following rules are hereby adopted for your guidance in granting permission for such transit:

“Any Chinese person arriving at your port, claiming to be destined to some foreign country, and seeking permission to pass through the United States, or any portion thereof, to reach such alleged foreign destination, shall be granted permission for such transit only upon complying with the following conditions:

“1. The applicant shall be required to produce to the collector of customs at the first port of arrival a through ticket across the whole territory of the United States (and to his or her alleged foreign destination according to the steamship manifest) intended to be traversed, and such other proof as he (or she) may be able to adduce, to satisfy the said collector that a bona fide transit only is intended; and such ticket and other evidence presented must be so stamped, or marked, and dated by the said collector, or such officer as be shall designate for that purpose, as to prevent their use a second time; but no such applicant shall be considered as intending bona fide to make such transit only, if he (or she) bas previously, on same arrival, made application for and been denied admission to the United States.

“2. The applicant in each case, or some responsible person on his (or ber) behalf, or the transportation company whose

Opinion of the Court.

through ticket he or she) holds, shall furnish to the said collector of customs a bond in a penal sum of not less than $500, conditioned for applicant's continuous transit through, and actual departure from, the United States within a reasonable time, not exceeding twenty days from the date of arrival at said

port."

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These regulations repeat the requirements of those of 1889, (wbich took the place of previous regulations,) that evidence must be produced to satisfy the collector" that a bona fide transit only is intended.” Clearly in the absence of provision for review his decision is final.

The doctrine is firmly established that the power to exclude or expel aliens is vested in the political departments of the Government, to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to such regulations, except so far as the judicial department is authorized by treaty or by statute, or is required by the Constitution, to intervene. Fong Yue Ting v. United States, 149 U.S. 698; Lem Moon Sing v. United States, 158 U. S. 538; Li Sing 1. United States, 180 U. S. 486.

And as a general proposition this must be true of the privilege of transit. The underlying principle is thus stated by Kent, (vol. 1, p. 35): “Every Nation is bound, in time of peace, to grant a passage, for lawful purposes, over their lands, rivers, and seas, to the people of other States, whenever it can be permitted without inconvenience; and burthensome conditions ought not to be annexed to the transit of persons and property. If, however, any government deems the introduction of foreigners, or their merchandise, injurious to those interests of their own people which they are bound to protect and promote, they are at liberty to withhold the indulgence. The entry of foreigners and their effects is not an absolute right, but only one of imperfect obligation, and it is subject to the discretion of the government which tolerates it."

In short, the privilege of transit, although it is one that should not be withheld without good cause, is nevertheless conceded only on such terms as the particular Government prescribes in

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