# Fong Yue Ting v. United States

> Supreme Court of the United States · May 15, 1893 · 149 U.S. 698

URL: https://www.frixlaw.com/law-library/cases/9417623

## Case

- **Full name:** Fong Yue Ting v. United States; Wong Quan v. United States; Lee Joe v. United States
- **Court:** Supreme Court of the United States
- **Decided:** May 15, 1893
- **Citations:** 149 U.S. 698; 13 S. Ct. 1016; 37 L. Ed. 905; 1893 U.S. LEXIS 2340
- **Precedential status:** Published
- **Opinion:** Dissent by Brewer
- **Judges:** Gray, Brewer, Field, Fullee
- **Cited by:** 576 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Reported overruled in part, on other grounds by The Japanese Immigrant Case, 189 U.S. 86 (1903) — not on the Supreme Court's list.
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9417623

## How later opinions describe it (automated extraction)

- holding that because deportation is not a crime, it does not implicate the Cruel and Unusual Punishment Clause
- holding that the political branches could deport residents based solely on their race and deem all people of “the Chinese race” incompetent to sign the affidavit needed for Chinese immigrants to remain lawfully
- explaining that “the provisions of the Constitution[] . . . prohibiting . . . cruel and unusual punishments[] have no application” to an order of deportation obtained “by appropriate and lawful means”

## Opinion text

Mr. Justice Brewer
dissenting.
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.
*733 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 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, *734 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 Exelusion case, 130 U. S. 581 , yet no act has be.en 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 Mattel, domieil, which he defines to be 'a habitation fixed in any place, with an intention of always staying there.’ Such *735 a person, says this author, becomes a member of the new society, at least as a permanent inhabitant, and is .a hind of citizen of an inferior order from the native citizens; but is, nevertheless, united and subject to the society, without participating in all its advantagós. 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.) G-rotius 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 jv/re citizens of the country of their domicil.” 1 Phillimore, International Law, Chap. XYIII, p. 347.
In the Koszta case it was said by Secretary Marey: “ This right to protect persons having a domicil, though not native-born 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 undistinguish able.” 2 Wharton Int. Law Digest, § 198.
*736 And in Lau Ow Bew v. United States, 144 U. S. 47, 61 , this court declared that “ by general international law, foreigners who have become domiciled in a country other than their own, acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the citizens of that country, and no restriction on the footing upon which such persons stand by reason of their domicil, . . . is to be presumed.”
Indeed, there is force' in the contention of counsel for appellants, that these persons are “ denizens ” within the true meaning and spirit of that word as used in the common law. The old definition was this:
“ A denizen of England by letters patent for life, in tayl or in fee, whereby he becomes a subject in regard of his person.” Craw v. Ramsey, Vaughan’s Reports, 278,
And again:
“A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject, . . . A denizen is in a kind of middle state, between an -alien and a natural-born subject, and partakes of both of them.” 1 Bl. Com. 374.
In respect to this, after quoting from some of the early constitutions of the States, in which the word “ denizen ” is found, counsel say: “ It is claimed that the appellants in this case come completely within the definition quoted above. They are alien born, but they have obtained the same thing as letters patent from this country. They occupy a middle state between an alien and . a native. They partake of both of them. They cannot vote, or, as it is stated in Bacon’s Abridgment, they have no ‘ power of making laws,’ as a native-born subject can, nor are they here as ordinary aliens. An ordinary alien within this country has come here under no prohibition, and no invitation, but the appellants have come under the direct request and invitation and under the ‘patent’ of the Federal government. They have been guaranteed ‘the same privileges, immunities, and exemptions in respect to . . . residence’ (Burlingame Treaty concluded July 28, 1868) as that enjoyed in the United States by the citizens and *737 subjects of the most favored nation. They have been told that if they would come here they would be treated just the same as we treat an Englishman, an Irishman, or a Frenchman. They have been invited here, and their position is much stronger than that of an alien, in regard to whom there is no guarantee from the government, and who has come not in response to any invitation, but has simply drifted here because there is no prohibition to keep him out. They certainly come within the meaning of ‘ denizen ’ as used in the constitutions of the States.”
But whatever rights a resident alien might have in any other nation, here he is within the express protection of the Constitution, especially in respect to those guarantees which are declared in the original amendments. It has been repeated so often as to become axiomatic, that this government is one of enumerated and delegated powers, and, as declared in Article 10 of the amendments, “’the powers not delegated to the United States by the Constitution, nor prohibited by it :to the States, are reserved to the States respectively, or to the people.”
It is said that the power here asserted is inherent in sovereignty. This doctrine of powers inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced ? Is it within legislative capacity to declare the limits? If so, then the mere assertion of an inherent power creates it, and despotism exists. May the courts establish the boundaries? Whence do they obtain the authority for this ? Shall they look to the practices', of other nations to ascertain the limits ? The governments -of other nations have elastic powers — ours is fixed and bounded by a written constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the- adoption of this Constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely, as it seems to me, they gave to this government no general power to banish. Banishment may be resorted to as punishment for crime; but *738 among the powers reserved to the people and not delegated to the government is that of determining whether whole ©lasses in our midst shall, for no crime but that of their race and birthplace, be driven from our territory.
• Whatever may be true as to exclusion, and as to that see Chinese Exclusion case, 130 U. S. 581 , and Nishimura Ekiu v. United States, 142 U. S. 651 . I deny that there is any arbitrary and unrestrained power to banish residents, even resident aliens. What, it may be asked, is the reason for any difference? The answer is obvious. The Constitution has no extraterritorial effect, and those who have not come lawfully within our territory cannot claim. any protection from its provisions. And it may be that the national government,.having full control -of all matters relating to other nations, has the power to build, as it w.ere, a Chinese wall, around our borders and absolutely forbid aliens to enter. But the Constitution has potency' everywhere within the limits of our territory, and the powers which the national, government may exercise'within such limits are those, and only those, given to. it by that instrument. Now, the power to remove resident -aliens is, confessedly, not expressed. Even if it be among the powers implied, yet still it can be exercised only in subordination to the limitations and restrictions imposed by the Constitution. In the case of Monongahela Navigation Company v. United States, 148 U. S. 312, 336 , it was said: “ But like the other .powers granted to Congress by the Constitution, the power to regulate commerce is subject to all the limitations imposed by such instrument, and among, them is that the Fifth Amendment we have heretofore quoted. Congress has supreme control over the regulation of commerce; but if, in exercising that supreme control, it deems it necessary to take private property, then .it must proceed subject to the limitations imposed by this Fifth Amendment, and can take only on payment of just compensation.” And if that be true of the powers expressly granted, it must as certainly be true of,those that are only granted by implication.
When the first ten amendments were presented for adoption *739 they were preceded by a preamble stating that the conventions of many States had at the time of. their adopting the Constitution expressed a desire, “ in order to prevent misconception or abuse of its powers, that further declaratory and restrictive clauses should be added.” It is worthy of notice that in them the word “ citizen ” is not found. In some of them the descriptive word is “ people,” but in the Fifth it is broader, and the word is “ person,” and in the Sixth it is the “ accused,” while in the Third, Seventh, and Eighth there is no limitation as to the beneficiaries suggested by any descriptive word.
In the case of Yick Wo v. Hopkins, 118 U. S. 356, 369 , it was said: “ The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘Nor shall any State deprive any person of life, liberty, or property without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection-of equal laws.” The matter considered in that case was of a local nature, a municipal ordinance for regulating the carrying on of public laundries, something fairly within the police power of a State; and yet because its provisions conflicted with- the guarantees of the Fourteenth Amendment, the ordinance was declared void.
If the use of the word “person” in the Fourteenth Amendment protects all individuals lawfully within the State, the use of the same word “ person ” in the Fifth must be equally comprehensive, and secures to all persons lawfully within the territory of the United States the protection named therein ; and a like conclusion must follow as to the Sixth.
I pass, therefore, to the consideration of my third proposition : Section 6 deprives of “ life, liberty, and property without due process of law.” It imposes punishment without a trial, and punishment cruel and severe. It places the liberty of one individual subject to the unrestrained' control of *740 another. Notice its provisions: It first commands all to> •register. He who does not register violates that law, and. may be punished; and so the section goes on to say that one who* has not complied with its requirements, and has no certificate-of residence, “ shall be deemed and adjudged to be unlawfully within the United States,” , and then it imposes as- a penalty his deportation from the country.’ Deportation is punishment. It involves first an arrest, a deprival of liberty; and,, second, a removal from home, from;family, from; business,, from property. In Rapalje & Lawrence’s. Law Dictionary,, (vol. 1, page 109,) “banishment” is thus defined : “ A punishment by forced exile, either for years or for life;' inflicted, principally upon political offenders, ‘transportation’ being-the word used to express a similar punishment of ordinary criminals.” In 4 Bl. Com. 377, it is said: “ Some punishments-consist in exile or banishment, by abjuration of the realm, or-transportation.” In Yattel we find that “ banishment is only-applied t.o condemnation in due course of law.” Note to* § 228, Book 1, c. 19, in 1 Vattel.
But it needs no citation of authorities to support the proposition that deportation is punishment. Every one knows that-to be forcibly taken away from home, and family, and friends,, and business, and property, and sent across the ocean to a distant land, is punishment; and that oftentimes most severe-- and cruel. Apt and just are the words of one.of the framers-of this Constitution, President Madison, when he says (4 Elliot’s Debates, 555): “ If the banishment of an alien from a’ country into which he has been invited as the asylum most-auspicious to his happiness — a country where he may have-formed the most tender connections ; iwhere he may have invested his entire property, and acquired property of .the real and permanent, as well as the movable and.temporary kind,-; where he enjoys, under the laws, a greater share of the blessings of personal security and personal -liberty than he can. elsewhere hope for; . . . if, moreover, in the execution-, of the sentence against him he is to be exposed, not only to-the ordinary dangers of the sea, but to the peculiar casualties; incident to a crisis of war and of unusual licentiousness on *741 that element, and possibly to vindictive purposes, which his immigration itself may have provoked — if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied.”
But punishment implies a trial: “No persotn shall be deprived of life, liberty, or property, without due process of .law.” Due process requires that a man be heard before he is condemned, and both heard and condemned in the due and orderly procedure of a trial ás recognized by the common law from time immemorial. It was said by this court in Hagar v. Reclamation District, 111 U. S. 701, 708 , “undoubtedly where life and liberty are involved, due process requires that there be a regular course of judicial proceedings, which imply that the party to be affected shall have notice and an opportunity to be heard.” And by Mr. Justice Bradley, in defining “ due process of law ” in Davidson v. New Orleans, 96 U. S. 97, 107 , “ if found to be suitable or admissible in the special case, it will be adjudged to be due process of law,’ but if found to be arbitrary, oppressive, and unjust, it may be declared to be not * due process of law.’ ” And no person who has once come within-the protection of the Constitution can be punished'' without a trial. . It may be summary, as for petty offences and in cases of contempt, but still, a trial, as known to the •common law. It is said that a person may be extradited without a previous trial, but extradition is simply one step in the process of arresting and securing for trial. He may be removed by extradition from'Calif ornia to New York, or from "this country to another, but such proceeding is not oppressive or unjust, but suitable and necessary, and, therefore, due process .of law. But here, the Chinese are not arrested and extradited for trial, but arrested and, without a trial, punished by banishment. -
Again, it is absolutely within the discretion of the collector to give or refuse a certificate to one who applies therefor. Nowhere is it provided what evidence shall be furnished to' the collector, and nowhere is it made mandatory upon him to grant a certificate on the production of such evidence. It can *742 not be due process of law to impose punishment on any person for failing to have that in his possession, the possession of which he' can obtain only at the arbitrary and unregulated discretion of any official. It Will not do to say that the presumption is' that the official will act reasonably and not arbitrarily. "When the'right to liberty and residence is involved,, some other protection than the mere discretion of any official is required. Well was it said by Mr. Justice Matthews, in the case of Yick Wo v. Hopkins, supra, on page 369 : “ When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room' for the play and action of purely personal and arbitrary power.”
Again, a person found without such certificate may be taken before a United States Judge. What judge? A judge in the district in which the party resides or is found ? There is no limitation. in this respect. A Chinese laborer in San Francisco may be arrested by a deputy United States marshal, and taken before a judge in Oregon; and when so taken before that judge, it is made his duty to deport such laborer unless he proves his innocence of any violation of the law, and that, too, by at least one credible white witness. And how shall he obtain that witness ? No provision is made in the statute therefor. Will it be said that Article 6 of the amendments gives to the accused a right to have a compulsory process for obtaining witnesses in his favor? The reply is, that if he is entitled to one part of that article, he is entitled to all; and among them is the right to a speedy and public trial by an impartial jury of the State and district. The only theory upon which this proceeding can be sustained is that he has no right to any benefits of. this Article 6 ; and if he has no right thereto, and the statute has made no provision for securing his witnesses or limiting the proceeding to a judge of the district where he resides, the result follows inevitably, as stated, that he may be arrested by any one of the numerous officials named in the statute, and carried before any judge in *743 the United States that such official -may select, and, then, unless he proves that which he is given no means of proving, be punished' by removal from home, friends, family, property,, business, to another country.
It is said that these Chinese are entitled, while they remain,, to the safeguards of the Constitution and to the protection of the laws in regard to their rights of person and of property j, but that they continue to be aliens, subject to the absolute power of Congress to forcibly remove them. In other words,, the guarantees of “ life, liberty, and property,” named in the Constitution, are theirs by sufferance and not of right. Of what avail ar.e such guarantees ?
Once more: Supposing a Chinaman from San Francisco, having obtained a certificate, should go to New York or other place in pursuit of work, and on the way his certificate be lost or destroyed. ' He is subject to arrest and detention, the cost of which is in the discretion of the court, and judgment of deportation will be suspended a reasonable time to enable him to obtain a duplicate from’ the officer granting it In other words, he cannot move about in safety without carrying with him this certificate. The situation was well described by Senator Sherman in the debate in the Senate: “ They are here ticket-of-leave men; precisely as, under the Australian law, a convict is allowed to go at large upon a .ticket-of-leave, these people aré to be allowed to go at large and earn their livelihood, but they must have their tickets-of-leave in their possession.” And he added: “ This inaugurates in our systen^ of government a new departure; one, I believe, never before practised, although it was suggested in-conference that some such rules had been adopted in slavery times to secure the peace of society.”
, It is true this statute is directed only against the obnoxious Chinese; but if the power exists, who shall say it-will not be exercised to-morrow against other .classes and other people? If the guarantees of these amendments can be thus ignored in order to get rid of this distasteful class, what security have, others that a like disregard of its provisions may'not be resorted to? Profound and wise were the *744 observations of Mr. Justice Bradley, speaking for the court in Boyd v. United States, 116 U. S. 616 , 635: “ Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches, and slight .deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the courts to be watchful for the constitutional rights of the. citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.”
In the Yick Wo case, in which was presented a municipal ordinance, fair on its face, but contrived to work oppression to a few engaged in a single occupation, this court saw no difficulty' in finding a constitutional barrier to such injustice. But this greater wrong, by which a hundred thousand people are subject to arrest and forcible deportation from the country, is beyond the reach of the protecting power of the Constitution. Its grievous wrong suggests this declaration of wisdom, coming from the dawn of English history : “ Verily he who dooms a worse doom to the friendless and the comer from afar than to his fellow, injures himself.” (The Laws of King Cnut, 1 Thorpe’s Ancient Laws and Institutes of England, p. 397.)
In view of this enactment of the highest legislative body of the foremost Christian nation, may not the thoughtful Chinese disciple of Confucius fairly ask, Why do they send missionaries here \

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9417623. Public record. Not legal advice.