Thеse are writs of habeas corpus and certiorari to test the legality of the detention at Malone, N. Y., of the petitioner, a Chinaman applying to return to this country. The petitioner came to this country 46 years ago, and has had a domicile of residence at San Francisco ever since. He is a grand master of the-lodge of Freemasons for California, and has been for some time deputized by that organization to travel throughout the United States and Canada, organizing societies of his countrymen in the Masonic order. In May, 1894, the petitioner obtained a certificate of residence from the collector of internal revenue for the First District of California. The certificate stated upon its face thаt it was issued to a person other than a laborer, giving his occupation as a “Chinese Masonic organizer.” Some months ago he went to Canada to organize Masonic lodges among the Chinese there; and, on attempting to return to this country, was detained at Malone, and refused admission by the Chinese exclusion inspector, whose decision was affirmed on аppeal by the Secretary of Commerce and Labor. The inspector states in his opinion that “it is probable * * * that this person is what he claims to be. However, he is not a merchant, a teacher, a student, or a traveler for curiosity and pleasure”—and that therefore he comes under the provisions-in rule 2 of the regulations promulgated by the Secretary of Commerce and Labor in regard to Chinese immigration, which provide that “only those Chinese persons who are expressly declared by the laws and treaty regulating the exclusion of Chinese to be admissible shall be
When this mattеr was first submitted, the petitioner was not produced in court, and no proof was furnished that there had been any agreement between counsel waiving his production. The writs were therefore dismissed on the ground that the courts in the Northern District, and not this court, had jurisdiction-. A motion for a reargument was made, and it was shown upon such motion that there had been an agreement bеtween counsel which practically admitted that the respondent had the petitioner in his custody and control, and which agreed to waive his production in this court. In my opinion, such a stipulation conferred jurisdiction of the case upon this court in the same manner as though the petitioner had been produced in court, as was recently held in the Case of Fong Yim,
The question on the merits in this case is whether rules 1 and 2 of the Chinese regulations prescribed by the Secretary of Commerce and Labor are valid as to a Chinaman domiciled in this country, not of the laboring class, who, having left the country temporarily, without any intention of abandoning his domicile, desires to return, and who is not included in one of the classes of persons deсlared to be entitled to enter under rule 1.
The sixth article of the treaty of 1868 provides that:
“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 nations.”
When this treaty was ratified the petitioner had lived in this country about 10 years, and then had a domicile of residence at San Francisco. The treaty of 1868 is still in full force, except as it may have been modified by subsequent treaties or acts of Congress.
The Chinese treaty of 1880 states, in its preamble, that:
“The government of the United States, because of the constantly increasing immigration of Chinese laborers to the territory of the United States, and the embarrassments consequent upon such immigration, desires to negotiate a modification of the existing treaties.”
The first article provides that:
“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, * * * the government of China agrees that the government of the United States may regulate, limit, or suspend such coming or residence.”
The second article provides that:
“Chinеse 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 ae*380 corded all the rights, privileges, immunities, and exceptions which are accorded to the citizens and subjects of the most favored nations.”
It will be observed that the whole object of this treaty was substantially to exclude Chinese laborers; that it expressly permitted Chinese subjects who were teachers, students, merchants, or traveling for curiosity, to go and come of their own free will; and that no reference is expressly made to those Chinesе persons, not of the laboring class, who were at the time of the adoption of the treaty, domiciled in the United States. This treaty, it seems to me, has sole reference to persons thereafter coming into the United States. The history of the negotiations between the commissioners of the two countries which resulted in the adoption of this treaty, a full accоunt of which is given in the case of United States v. Ah Fawn (D. C.)
The act of September 13, 1888, c. 1015, 25 Stat. 476 [U. S. Comp. St. 1901, p. 1312], entitled “An act to prohibit the coming of Chinese laborers to the United States,” provides, in the first section, that:
“From and after the date of the exchange of ratifications of the рending treaty between the United States of America and the Emperor of China, signed March 12, 1888, it shall be unlawful for any Chinese person, whether a subject of China or of any other power, to enter the United States, except as hereinafter provided.”
The second section provides that “Chinese officials, teachers, students, merchants, or travelers for pleasure or curiosity, shall be permitted to enter the United States” under certain conditions. These sections of the act of 1888, if they had ever taken effect, would, I think, have au
The act of 1892 provided that all Chinese laborers within the United States should apply for a certificate of residence, and the sixth section provided that:
“Any Chinese person, other than a Chinese laborеr, having a right to be and remain in the United States, desiring such certificate as evidence of such right, may apply fo; and receive the same without charge.”
This provision obviously does not compel any person other than a Chinese laborer, having a right to remain in the United States, to take out such a certificate. The only object of taking out such a certifiсate by a Chinese nonlaborer domiciled in this country is for him to have a convenient means of proof of his right to remain here. This act of 1892 was the one under which the petitioner took out his certificate, which stated upon its face that he was a person other than a laborer, and which described him as a “Chinese Masonic organizer.”
No other act оf Congress has been called to my attention which enumerates any class of persons, other than laborers, who shall be permitted to enter the United States. The Chinese treaty of 1894, however, which recites that “the government of China, in view of the antagonism and much deprecated and serious disorders to which the presence of Chinese laborers has given rise in сertain parts of the United States, desires to prohibit the emigration of such laborers from China to the United States,” provides, in the first section, that “for a period of ten years, * * * the coming, except under the conditions hereinafter specified, of Chinese laborers to the United States shall be absolutely prohibited.” The third section provides that “the provisions of this convention shall not affect the right at present enjoyed by Chinese subjects, being officials, teachers, students, merchants, or travelers for curiosity or pleasure, but not laborers, of coming to the United States and residing therein.” This treaty of 1894, however, has recently been abrogated.
In 1903, the Secretary of Commerce and Labor promulgated certain Chinese regulаtions. Rule 1 provides that:
“Under the provisions of the laws and treaties in relation to the exclusion of Chinese persons, only such persons as are registered Chinese laborers, offi*382 dais of the Chinese government, teachers, students, travelers for curiosity or pleasure, merchants and their lawful wives and minor children, laborers seeking in good faith to pass through the country tо foreign territory, seamen as provided in rules 15 and 16, and persons whose physical condition necessitates immediate hospital treatment shall be permitted to land at any port of the United States.”
Rule 2 provides that:
“Only those Chinese persons who are expressly declared by the laws and ■treaty relating to the exclusion of Chinese to be admissible shall be allowed to enter the United States, and those only upon compliance with the requirements of said laws and treaty and of regulations issued thereunder. See Op. Atty. Genl., vol. xxii, p. 132.”
The opinion of the Attorney General referred to in this rule was given in respect to an application of certain Chinese persons who sought admission to the United States for the first time. In the course of that opinion, the Attorney General says that in respect to Chinese legislation—
“It may be stated comprehensively that the result of the whole body of these laws, and decisions thereon, is to determine that the true theory is not that all Chinese persons may enter this country who are not forbidden, but that only those are entitled to enter who are expressly allowed.”
It is not necessary to determine in this case whether no Chinese persons except those affirmatively designated as being entitled to enter by the existing treaties, and who are comprehensively enumerated in rule 1, have a right to enter. The question in this case is whether a Chinese person who has had a domicile of residence in this country from a period before any treatiеs or laws relating to the exclusion of Chinese existed, and who has temporarily left the country, without any intention of abandoning his domicile, and with the intention of returning, can be excluded from returning because he is not included in one of the classes designated in rule 1. The petitioner in this case is not a laborer, or an official, a teacher, a student, a traveler, or а merchant. He is described in the certificate as a “Chinese Masonic organizer.” The proof shows that he is a man of high standing in that order, and is employed by that organization in promoting its interests. I am not a Mason, but I believe that that great and ancient order is one whose objects are praiseworthy, and whose influence is beneficent; and I think that it may be assumed that a man who occupies a high position in it, and who is employed by it to work in its interests, is a man of character, capacity, and intelligence. I can see no reason to doubt that he had, under the treaties between this country and China, which were concluded after he had adopted this country as his place of residence, a right to continue his residenсe in this country, and the certificate issued to him in 1894 officially admits it. I can see nothing in the treaties or the laws in relation to Chinese exclusion, which were avowedly passed to prevent the evil of the immigration of Chinese laborers, which applies to such a case as this. If this petitioner had a right of domicile in this country, protected by the treaties, I cannot believe that the fact that he took a temporary journey across the line into Canada, with the intention of returning, has abrogated that right. Suppose that a Chinese merchant, domiciled for yéars in this country,
‘‘Chinese merchants domiciled in the United States, and in China only for temporary purposes, animo revertendi, do not appear to ns to occupy the predicament of persons ‘who shall be about to. сome to the United States,’ when they start on their return to the country of their residence and business. The general terms used should be limited to those persons to whom Congress manifestly intended to apply them, and they would evidently be those who are about to come to the United States for the first time.”
In my opinion, this language is equally applicable to persons other than mеrchants who have a right of domicile in this country under existing treaties and laws. See, also, United States v. Mrs. Gue Lim,
It was held in United States v. Chin Lee (D. C.)
The cases of United States v. Ah Fawn (D. C.)
I think that thе existing treaties and laws did not authorize the establishment of rules preventing the return to this country of a Chinese person, not a laborer, who has a right of domicile in this country, and who has left it temporarily, with the intention of returning, and that the provisions of rules 1 and 2 of the Chines'e regulations, which provide that
My conclusion is that the petitioner should be discharged from detention and permitted to enter this country.