Appellees Brief — Cheung Sum Shee v. Nagle

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Statement —aa

Siatutes involved ‘ 34

Argument. 4-12

Synopsis of argument:

I. It is conceded that these appellants would have had

the right to enter, under the decision in United

States v. Mrs. Gue Lim, 176 U. 8. 459, prior to the

enactment of the Immigration Act of May 26, 1924,

c. 190 (43 Stat. 153). As to their right since that

Act, there is a difference of opinion between the De-

partment of State and the Department of Labor..... 4-7

II. The appellants are excluded under section 13(c) of the

Act, and do not come within the exemption conferred

by section 3(6) . 7-10

If. The argument based upon hardship and the unity of

the family can not prevail against the clear language

of the statute_____ 10

1V. The appellants are likewise excluded by section 5 of

BE NO ercitestnipstic eieeicdcdsaicesttaiain ine chee artannitets aicandintinseaninitninite 11

V. Congress has made exceptions in favor of other aliens

in analogous positions, but has been careful not to

make an exception in favor of these appellants.

Under the maxim erpressio unius est exclusio al-

terius, no such exception can be implied_.........__ 11-12

VI. Treaty rights can not prevail against a subsequent

Re, WOUND GN U0 GIB ao enitcenmntnceensenminn 12

Appendix :

Memorandum of the views of the Department of State on

the present case [opposed to the views set forth in this

; CASES CITED

IN THE BRIEF

mmameereon v. Wett, 188 U. 8. 604, 706.....................-..- 10

Ah Quan, in re, 21 Fed. 182__ ‘ 5

| Cheng Chan v. Nagle (No. 770 at the present term; to be

| LIISA LNG eee 7 AERTS SE NS Ee nS AE eR ee 2,T

40612— 25--—-1

Page.

Cheung Sum Shee, ex parte (the present case below), 2 3.

(2nd) 995. 2;15

Chinese Wife, Case of the (in re Ah Moy), 21 Fea. T36.......-

Chung Fook ¥. White, 264 U. 8. 448

Chung Toy Ho, in re, 42 Fed. 398.

Commissioner of Immigration v. Gottlieb, 265 U. S. 310

Lapine vy. Wiliams, 232 U. S. 78, 92 eee

Lee Yoo Sing, im re, 85 Fed. 635

Li Foon, in re, 80 Fed. 881

Tulsidas y. Insular Collector, 262 U. 8. 258, 264

United States v. Mrs. Gue Lim, 176 U. S. 459

United States v. Goldenberg, 168 U. S. 95, 103.

Wo Tei Li, is re, 48 Fed. 668

Yee Won v. White, 256 U. 8. 399

IN THE APPENDIX

Anderson ¥. Watt, 188 U. S. 694, 706

Asakura vy. Seattle, 265 U. S. 332, 342

Cominetti ¥. United States, 242 U. S. 470, 490.

Cheung Sum Shee, ex parte (The present case below), 2 F.

a 6.—.-------------------—-—_--—_-—------

Chew Heong ¥. United States, 112 U. 8. 536, 539, 540

Chin Hern Shu, in re (D. C. Mass. Dec. 11, 1924, unreported) -- 21

Chung Toy Ho, 42 Fed. 398

Duplez Printing Co. v. Deering, 254 U. S. 443, 474

Geofroy ¥. Riggs, 133 U. 8. 258, 271

Goon Dip, ex parte, 1 ¥F. (2nd) 811

Hawenstein v. Lynham, 100 U. 8. 483, 487

Se Hapk Yon, ex parte, 1 F. (2nd) 814

Tucker ¥. Alexandroff, 183 U. 5S. 424, 437

UWoede ¥. Zlalicita, 226 U. S. 452, 454

Dnited States v. Mrs. Gue Lim, 176 U. 8. 459

United States v. Lee Yen Tai, 185 U. S. 213, 221

Wedd, ex parte, 225 U. S. 663, 683

Wisconsin R. R. Commission v. C. B. é Q. R. R., 257 U. 8. 563_-

Woo Hoo ¥. White, 243 Fed. 541, 543_

Yee Won y¥. White, 256 U. S. 399

STATUTES CITED

IN THE BRIEF

s. 6 (22 Stat. 58, 60)

(23 Stat. 115, 116) --

Act of May 26 1924, c. 190 (43 Stat. 153) (Immigration Act of

924): Page.

4 era as shi 11

5 - 1, 3, 6, 11, 12

13 urs 1, 3, 6, 7, 11, 12

IN THE APPENDIX

Act of May 26, 1924, c. 190 (43 Stat. 153) (Immigration Act of

Be ii oii nce date nennasessnne 17, 22, 23, 28, 35, 37, 38, 40

GS Dis i sh So de nena en 36, 37, 38, 40, 41

8. 15-- _ 24, 25, 27

TREATIES CITED

IN THE BRIEF

«hina, Nov. 17, 1880 (22 Stat. 826) --..---------------------- 4, 5,6

IN THE APPENDIX

Argeatina, July 27, 1853 (10 Stat. 1005) ----.----------------- 15

Belgium, Mar. 8, 1875 (19 Stat. 628) 15

Bolivia, May 18, 1858 (12 Stat. 10086) _...._..--......-----......- 15, 27

China, Nov. 17, 1880 (22 Stat. 826) 19, 21, 22

Custa Rica, July 10, 1851 (10 Stat. 916) ...-....-------------- 15

Great Britain, July 3, 1815 (8 Stat. 228) 15

Honduras, July 4, 1864 (13 Stat. 699) _---.------------------- 16

Italy, I'eb. 26, 1871 (17 Stat. 845) 16

Japan, Feb. 21, 1911 (37 Stat. 1504) 17, 21, 28

Norway-Sweden, July 4, 1827 (8 Stat. 346) 16

Serbia, Oct. 14, 1881 (22 Stat. 963) 28

Spain, July 3, 1902 (33 Stat. 2105) --------------------------- 18

Switzerland, Nov. 25, 1850 (11 Stat. 587) inion 28

OTHER CITATIONS

IN THE BRIEF

68th Congress, 1st Session, House Report No. 350_--.---------- 9

IN THE APPENDIX

Congressional Record (68th Congress, 1st Session), vol. 65,

part 6:

P. 5410 2 SE ee eee nee eee 24

P. 5416 a Siataeerhcrecimacsh ina aa ata acatntniinasiets heeitratert 25, 26, 29

Pp. B748-OT46.. nn enn sos eens 30, 32

a sce stele ances loa stn cana 26, 32

68th Congress, 1st Session, House Report No. 350. 33, 34

Devlin, The Treaty Power, Section 176.._--------------------- 23

Malloy, Treaties of the United States, vol. 1, p. 237_----------- 17

Inthe Supreme Court of the United States

OcroBeR TERM, 1924

CHEUNG SuM SHEE ET AL., APPELLANTS ]

Joun D. NAGLE, AS COMMISSIONER OF IM- }No. 769

MIGRATION FOR THE Port oF San FRAN-

CISCO, APPELLEE

ON CERTIFICATE FROM THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF ON BEHALF OF THE APPELLEE

STATEMENT

The appellants in this case are the alien Chinese

wives and minor children of Chinese merchants

domiciled and resident in the United States. The

appellants arrived at San Francisco from China

on July 11, 1924, seeking to join their respective

husbands or fathers in this country. On arrival,

they were taken into custody by the appellee,

Commissioner of Immigration, and were ordered

excluded, under the provisions of sections 5 and

13(e) of the Immigration Act of 1924 (Act of May

26, 1924, ce. 190, 43 Stat. 153). ‘The order of exclu-

sion was affirmed on appeal by the Secretary of

Labor, and was sustained in habeas corpus pro-

(1)

ceedings by the District Court for the Northern

District of California. The opinion of the court

is reported in 2 F. (2nd) 995 (first case).

An appeal was taken to the Circuit Court of

Appeals; and that court has certified the following

question for determination here:

Are the alien Chinese wives and minor

children of Chinese merchants who were

lawfully domiciled within the United States

prior to July 1st, 1924, such wives and minor

children now applying for admission, man-

datorily excluded from the United States

under the provisions of the Immigration Act

of 1924?

It should be noted that this case involves an alto-

gether different question from that which is in-

volved in the case of Chang Chan et al. v. Nagle,

No. 770, at the present term. The two cases were

decided at the same time by the District Court; and

the two have come at the same time on certificate to

this Court. The present case involves the right of

Chinese wives of alien Chinese merchants to enter

this country; while Chang Chan v. Nagle, No. 770,

involves the right. 6f Chinese wives of citizens of the

United States. The two cases turn upon different

points of statutory > construction, based upon differ-

ent provisions of the Immigration Act of 1924; and

in addition, the present case involves a considera-

tion of treaty rights, while No. 770 does not. For

these reasons it is important that the two cases

should be kept distinct.

STATUTES INVOLVED

In the present case, we are concerned with the

following provisions of the Immigration Act of

1924 (Act of May 26, 1924, c. 190, 43 Stat. 153).

Sec. 13(¢) No alien ineligible to citizen-

ship shall be admitted to the United States

unless such alien (1) is admissible as a non-

quota immigrant under the provisions of

subdivision (b), (d), or (e) of section 4, or

(2) is the wife, or the unmarried child under

18 years of age, of an immigrant admissible

under such subdivision (d), and is accom-

panying or following to join him, or (3) is

not an immigrant as defined in section 3.

Of the exceptions above noted, only one is directly

in point here. ‘That is the exception provided by

section 3(6) :—

Sec. 3. When used in this Act the term

‘‘immigrant’’ means any alien departing

from any place outside the United States

destined for the United States, except

* a *

(6) an alien entitled to enter the United

States solely to carry on trade under and

in pursuance of the provisions of a present

existing treaty of commerce and navigation.

A further provision of the Act must also be

noticed :

Sec. 5. When used in this Act the term

‘‘quota immigrant’? means any immigrant

who is not a non-quota immigrant. An alien

who is not particularly specified in this Act

as a non-quota immigrant or a non-immi-

grant shall not be admitted as a nox-quota

immigrant or a non-immigrant by reason of

relationship to any individual who is so spe-

ecified or by reason of being excepted from

the operation of any other law regulating

or forbidding immigration.

The Treaty with China of November 17, 1880

(22 Stat. 826, 827) provides:

ArticLE IT. 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, privi-

leges, immunities, and exemptions which are

accorded to the citizens and subjects of the

most favored nation.

It is conceded that this is a ‘‘ present existing

treaty of commerce and navigation,’’ as contem-

plated by section 3(6) of the Immigration Act of

1924, supra, p. 3.

ARGUMENT

It will be observed that Article IT of the Treaty

of 1880, above quoted, speaks only of ‘‘ Chinese

merchants * * * together with their body and

household servants.”’ No mention is made of their

wives or minor children. Accordingly, for some

time, the lower Federal courts were in doubt as to

the right of such wives and minor children to enter

this country without the certificate required by

section 6 of the Act of May 6, 1882, ¢. 126 (22 Stat.

08, 60), as amended by the Act of J uly 5, 1884, ¢.

220 (23 Stat. 115, 116).

The right of the wives and children to enter with-

out certificates was upheld in the following cases:

In re Chung Toy Ho, 42 Fed. 398.

In re Lee Yee Sing, 85 Fed. 635.

The right was denied in the following cases:

In re Ah Quan, 21 Fed. 182.

Case of the Chinese Wife (In re Ah Moy),

21 Fed. 785.

In re Wo Tai Li, 48 Fed. 668.

In re Li Foon, 80 Fed. 881.

All doubts were set at rest, however, by the

decision of this Court in United States v. Mrs. Gue

Tim, 176 U. 8. 459, in which it was held that the

wife and minor children of a Chinese merchant

domiciled in this country were entitled to enter and

to join the head of their family without producing

the required certificate. In this decision the Court

construed the treaty as if it read:

Chinese merchants, * * * together

with their body and household servants

[wives and minor children] * * * ghall

be allowed to go and come, ete.

The Court held that the wife and children par-

took of the status of the head of the family, and

40512—25—-——-2

were included in the spirit of the treaty, if not in

its letter.

The question now before the Court is simply

this: Has the decision in the Gue Lim ease been

affected by the enactment of sections 5, 13(¢), and

3(6) of the Immigration Act of 1924, supra, pp.

3, 4% It is conceded that the appellants in this

ease would have had the right to enter this

country, under the Gue Lim decision, prior to July

1, 1924, the date when the relevant sections of the

Immigration Act of 1924 went into effect. It is

suggested, however, that their right had been

taken away by that Act, and that they must there-

fore be excluded.

At the outset it must be frankly explained that

there is a difference of opinion between the two

departments of the Government which are directly

concerned with the administration of the Act. The

Department of Labor is of opinion that the Act

requires the exclusion of these appellants. The

Department of State is of opinion that the Act

and the Treaty together require their admission.

The disagreement between the Departments thus

focuses upon the extent to which treaty rights

have been affected by the Act of 1924.

In view of the importance of this case, counsel

for the Government feel it their duty to submit

reasons in support of both opinions, in order

that this Court may have the benefit of comparing

them, and in order that it may not be compelled to

render a decision based upon a one-sided presenta-

tion of the case. Accordingly, in this brief is

set forth the reasoning in support of the exclusion

theory maintained by the Department of Labor.

In the Appendix (infra, p. 13) are set forth the

opposing arguments of the State Department, as

embodied in a memorandum prepared by the Solici-

tor for that Department.

It must be added that the foregoing statement

does not apply to the case of Chang Chan v. N agle,

No. 770, at the present term. That case, as has

already been noted, turns upon a different point,

and is treated in a separate brief.

It is conceded that the appellants in this case

would formerly have been admissible under the

Gue Lim decision. But we must now consider the

effect of the Immigration Act of 1924, supra, pp.

3, 4.

The appellants are clearly ‘aliens ineligible to

citizenship.”” They are therefore excluded by see-

tion 13(¢) of the Act, unless they can establish

their right to enter as ‘‘ treaty merchants ”’ under

section 3(6).

Section 3(6) grants admission to ‘‘ an alien en-

titled to enter the United States solely to carry on

tra’e under and in pursuance of the provisions of

a present existing treaty of commerce and naviga-

tion.”’

—,

Can it be said that the wife or the minor child of

a merchant comes here ‘‘solely to carry on trade’’?

The agent of a merchant is not himself entitled to

enter asamerchant. Tulsidas v. Insular Collector,

262 U.S. 258, 264. And this Court in the Gue Lin

case did not hold that the wife of a merchant was

entitled to enter “‘solely to carry on trade.’’ That

case merely decided that she was entitled to enter

solely to reside with her husband, as she then had

the right to do. The purpose of section 3(6) was

to take away that right by granting the right of

entry only to actual merchants, and not, as for-

merly, to merchants and their families. Any other

construction would deprive the section of its mean-

ing. At the time when the Gue Lim decision was

rendered, no statutory definition existed of the

term‘ merchant "’; and the Court aceordingly eou-

strued the language of the treaty as including both

merchants and their families. The Court might

have decided the Gue Lim ease differently had sec-

tion 3(6) then been in existence.

An examination of the legislative history of sec-

tion 3(6) is instructive. That section was inserted

at the request of the Secretary of State, for the

purpose of safeguarding treaty rights. But it

must be noted that section 3(6) in its final form is

very different from the provision which the Secre-

tary originally suggested; and it is possible that

the effect of the alteration is to exclude the wives

and children of merchants.

The Committee Report states:

The suggestions of Secretary Hughes for

the protection of treaties of the United

States with other countries have been met

by the addition to section 3 of an additional

exempted class, to wit:

‘*(6) An alien entitled to enter the United

States solely to carry on trade under and

in pursuance of a present existing treaty of

commerce and navigation.’’

The original suggestion of Secretary

Hughes was for an exemption in these

words :

‘‘An alien entitled to enter the United

States under the provisions of a treaty.”’

Subsequently, the Seeretary suggested the

following ~vords:

**An alien entitled to enter the United

States under the provisions of an existing

treaty.”’

The committee has incorporated in H. R.

7995 Secretary Hughes’ proposal, but has

used words which tie the exemptions to those

persons properly exempted and entitled to

enter the United States solely to carry on

trade under and in pursuance of all existing

treaties of commerce and navigation.—68th

Congress, Ist Session, House Report No.

350, pp. 2-3.

Whatever might have been the result had Con-

gress enacted, totidem verbis, either of the Secre-

tary’s suggestions, it is submitted that the case

must be judged upon the law as it is written. The

Committee Report indicates that Congress in-

tended to ‘* tie the exemptions to those persons

properly exempted and entitled to enter the United

States solely to carry on trade under and in pur- .

suance of all existing treaties of commerce and

navigation.’’ The effect of section 3(6), as actu-

ally passed by Congress, may be to deny the riglit

of entry to all who do not come here “ solely to

carry on trade.’”’ It is doubtful whether this

phrase can include the wife or child of one who

comes to trade.

III

In opposition to this view counsel cite the case

of Anderson y. Watt, 138 U. S. 694, 706, and other

eases holding that the domicil of the husband is

the domicil of the wife, and that the identity of the

wife is, in a sense, merged in that of the husband.

But has not this theory lost much of its force

since the enactment of the Act of September

22, 1922, c. 411 (42 Stat. 1021), under which

the citizenship of the wife no longer follows that

of the husband? And the Immigration Acts often

operate to prevent husband and wife from residing

together in this country. Yet this Court, when ap-

pealed to on the ground of hardship, has declined

to interfere.

Commissioner of Immigration v. Gottlieb,

265 U. 8. 310.

Chung Fook v. White, 264 U.S. 448.

Yee Won v. White, 256 U. S. 399.

In the next place, it should be noted that section

5 of the Act (supra, p. 3) provides that—

An alien who is not particularly specified

in this Act as a non-quota immigrant or

*a non-immigrant shall not be admitted as a

non-quota immigrant or a non-immigrant

by reason of relationship to any individual

who is so specified or by reason of being ex-

cepted from the operation of any other

law regulating or forbidding immigration.

(Italies ours.)

It was upon this section that the District Court

based its decision in the present case, being of opin-

ion that Congress had, by this section, manifested

its intention to exclude all persons having the

status of the appellants. It may well be that the

appellants have no right of entry in and of them-

selves; their right of entry is dependent, not upon

their own status, but upon that of their husbands

or fathers. And if that is so, then they are ex-

cluded by the operation of section 5.

It should also be noted that Congress has been

careful to grant admission to the families of

Chinese government officials [section 3(1) ], and to

the families of Chinese clergymen or professors

[section 4(d); section 13(¢) (2)]; and from this

fact it may be inferred that Congress did not intend

to grant admission to the families of Chinese mer-

chants, according to the maxim Expressio unius est

exclusio alterius.

Lapina v. Williams, 232 U.S. 78, 92.

United States v. Goldenberg, 168 U.S. 95,

103.

It is conceded that a strong presumption exists

in favor of maintaining treaty rights. While a

later statute may repudiate treaty obligations,

such repudiation is not to be presumed, especially

where considerations of humanity are involved.

The right of these appellants to enter this country

is a right conferred, if not by the letter of the

treaty, at least by the treaty as interpreted by this

Court. But it is submitted that even treay rights

can not prevail against the language of the Immi-

gration Act of 1924. And under Sections 5 and

13(c) of that Act, it is doubtful whether these

appellants can enter.

Such is the contention of the Department of

Labor; but this Court should also consider the care-

ful and well-reasoned epinion of the Solicitor for

the Department of State, before ‘answering the

question.

JAMES M. BEcK,

Solicitor General.

WiruiaM J. DONOVAN,

Assistant to the Attorney General.

APRIL, 1925.

APPENDIX

MEMORANDUM OF THE VIEWS OF THE DEPARTMENT

oF STATE ON THE QUESTIONS RAISED IN THE CASE

oF CHEUNG SUM SHEE ET AL. v. NAGLE

WIVES AND MINOR CHILDREN OF ALIEN MERCHANTS

ENGAGED IN INTERNATIONAL TRADE AND COMMERCE

ARE BY THE TERMS OF THE TREATIES OF COMMERCE

AND NAVIGATION ACCORDED A RIGHT TO ENTER THE

UNITED STATES ‘

Wives and minor children of alien merchants

entering the United States for purposes of trade

and commerce under a present existing treaty of

the United States are themselves clothed with a

treaty right to enter.

It may be noted in the first place that the courts

of the United States, when interpreting the treaties

of their country, act on the assumption that it was

the design of the Contracting Parties not to con-

travene principles of morality and fairness ;* that

their agreement should be interpreted ‘‘ in a spirit

of uberrima fides, and in a manner to carry out its

manifest purpose ’’;? and that its terms should be

liberally construed.’

1 Ubeda vy. Zialcita, 226 U. S. 452, 454.

? Mr. Justice Brown, in Tucker v. Alexandroff, 183 U. S. 424, 437.

“It is a general principle of construction with respect to treaties

that they shall be liberally construed, so as to carry out the apparent

intention of the parties to secure equality and reciprocity between

them.” Geofroy v. Riggs, 133 U. S. 258, 271.

®’Declared Mr. Justice Butler in the Opinion of the Court in

Asakura vy. Seattle, 265 U. S. 332, 342: “Treaties are to be construed

in a broad and liberal spirit, and when two constructions are possible,

one restrictive of rights that may be claimed under it and the other

favorable to them, the latter is to be preferred. Hauenstein vy.

Lynham, 100 U. S. 483, 487; Geofroy v. Riggs, supra, 271; Tucker v.

Alexandroff, 183 U. 8. 424, 437.”

(13)

40512—-25-—-3

There is thus imputed the best of faith to the

High Contracting Parties. This attitude of the

courts gives recognition to the only intelligible

theory on which enlightened states could be deemed

to conclude treaties with each other. While it indi-

eates no peculiar rule of construction, it establishes

the plane from which problems of treaty interpre-

tation must always be approached, and the spirit

in which search for the ultimate fact—the actual

design of the Contracting Parties—must be made.

The commercial treaties of the United States

providing for the entrance and residence of na-

tionals of one Contracting Party into the terri-

tories of the other for the purposes of trade have not

made mention of the wives and minor children of

such individuals. It seems to have been taken for

granted that there is such unity of interest in the

individual family that the head thereof, if given the

right to enter a country for purposes of trade, is

the representative of an entity embracing his wife

and children who are not to be dissociated from him.

This conclusion is fortified by the fact that treaties

with Japan, China, and other countries contem-

plate prolonged and undetermined residence for

the purposes of trade, the occupation of dwellings,

and by necessary inference the establishment of

homes.

In considering the various treaties of commerce

and navigation which have been concluded by the

United States with various foreign powers, it is

necessary to note in the first place that, while there

is considerable variation in the language employed,

the general intent and purpose of all such treaties

is the same. To illustrate, the Treaty of Friend-

ship, Commerce and Navigation with the Argentine

Republic, signed July 27, 1853 (10 Stat. 1005, 1006),

contains in Article IT the following language:

* * * The citizens of the two countries,

respectively, shall have liberty, freely and

securely, to come with their ships and cargoes

to all places, ports, and rivers in the terri-

tories of either, to which other foreigners, or

the ships or cargoes of any other foreign

nation or State, are, or may be, permitted to

come; to enter into the same, and to remain

and reside in any part thereof, respectively ;

to hire and occupy houses and warehouses,

for the purposes of their residence and

commerce.

Article I of the Treaty of Commerce and Naviga-

tion with Belgium, signed March 8, 1875 (19 Stat.

628, 629), outlines the rights of the contracting

parties ‘‘ whether established or temporarily resid-

ing ’’ in the territories of the other.

Article IIT of the Treaty of Peace, Friendship,

Commerce and Navigation with Bolivia, signed

May 13, 1858 (12 Stat. 1003, 1005}, states that:

‘‘ The citizens of either republicmay * * * re-

side in all parts of the territory of either, and

occupy dwellings and warehouses.”’

Article II of the Treaty of Friendship, Com-

merce and Navigation with Costa Rica, signed July

10, 1851 (10 Stat. 916, 917), provides that: ‘‘The

subjects and citizens of the two countries, respec-

tively, shall have liberty * * * to remain and

reside.’’ This last phrase is also used in Article I

of the Convention of Commerce and Navigation

with Great Britain, signed July 3, 1815 (8 Stat.

228), and in Article II of the Treaty of Friend-

ship, Commerce and Navigation with Honduras,

signed July 4, 1864 (13 Stat. 699, 700). The words

‘¢ sojourn and reside ”’ are used in Article I of the

Treaty of Commerce and Navigation with Italy,

signed February 26, 1871 (17 Stat. 845, 846), and

also in the Treaty of Commerce and Navigation

with Norway-Sweden, signed July 4, 1827 (8 Stat.

346).

It would scarcely be suggested that each of these

treaties should be interpreted differently in accord-

ance with the exact words used. Such literal con-

struction could not give effect to the intent of the

contracting parties, nor could it avail to carry out

the general purposes for which such treaties are

concluded. It is believed that the varying terms

of all these treaties may be properly paraphrased

thus:

The contracting parties agree that their

citizens and subjects, respectively, shall

have a right to come into the territories of

the other for the purpose of carrying on

international trade, and they are accorded

the privilege of remaining indefinitely in the

country, of establishing their homes and of

bringing with them for this purpose the

members of their families so long as they are

here for that purpose.

The right of ‘‘ treaty merchants ” to bring with

them their families follows as a necessary conse-

quence upon their right: to establish themselves in

the country.

It may also be observed in this connection that

although treaties are commonly referred to, as a

matter of convenience, by so-called ‘‘titles,’’ these

‘titles’? are unofficial and can not be used as a

basis in classifying a particular convention as a

‘‘treaty of commerce and navigation”’ as that

phrase is used in Section 3(6). Strictly speaking,

a treaty has, as a rule, no legal ‘‘title,”’ although

some treaties contain in the preamble phrases de-

scriptive of the treaties which might be regarded as

legal titles or captions. Thus, the preamble to the

treaty of February 21, 1911, with Japan (37 Stat.

1504), states that the United States and Japan

‘have resolved to conclude a Treaty of Commerce

and Navigation,’’ and the President’s Proclama-

tion of April 5, 1911, concerning this treaty (37

Stat. 1504) begins, ‘‘ Whereas a Treaty of Com-

merce and Navigation.’’ Although capital initials

are used, these phrases may be regarded as descrip-

tive merely. Anexamination of the original signed

copy of the treaty of 1880 with China, in the

archives of the Department of State, reveals that

there is nothing therein which can be regarded as a

title, although in Malloy’s compilation (Vol. 1, p.

237) it is given the caption, ‘‘ Immigration

Treaty.”’

In so far as the Chinese treaty refers to mer-

chants, and provides for their entry into the United

States, it seems entirely reasonable and proper to

consider it as a ‘‘ treaty of commerce and naviga-

tion,’ because it may be taken to have been the

design of the contracting parties that Chinese

merchants should be permitted to enter as such for

purposes of trade, just as merchants of other states

have by treaty been given a similar right to enter

the United States. There are also a number of

treaties with Central and South American states

which are called ‘‘ Conventions for the Develop-

ment of Commerce by Facilitating the work of

Traveling Salesmen.’’ Such treaties accomplish a

purpose similar to that of the general treaties

called ‘‘ treaties of commerce and navigation ’’ and

evidently come within the spirit of Section 3(6).

The treaty of July 3, 1902, with Spain (33 Stat.

2105) is captioned ‘‘ Treaty of Friendship and Gen-

eral Relations,’’ but the language of Article II is

not to be distinguished from that of many other

commercial treaties. It would seem to be obviously

improper to place dependence upon the unofficial

captions of a compilation rather than upon the sub-

stance of the treaties themselves. It is only the

latter consideration which can fairly meet the in-

tent of the Immigration Act.

When the various treaties of ecommerce and navi-

gation were concluded it was well known to the

eontracting states that requirements of traders

and importers demanded the extended sojourn of

nationals of one country in the territory of the

other as a necessary incident of the business of

firms engaged in international trade between the

territories of the contraeting parties. Corpora-

tions engaged in international trade usually require

the presence of commercial representatives in an-

other country for prolonged and indefinite periods.

This feature of international trade is a common in-

cident of our commerce with almost every foreign

eountry. Definite restriction of it would menace the

welfare of a trade which the United States is zealous

to maintain ; and the harm to it from the restriction

applied to alien traders in our own country would

be as vital as if the restriction were to be applied

conversely to American representatives abroad.

It would be unreasonable to assume in the ab-

sence of convincing evidence that the United States

and Japan, for example, sought, on the one hand, to

give traders the right to enter, remain, and reside

for an indefinite period for the purposes of trade,

and, on the other, to isolate them while exercising

that privilege from their wives and minor children.

An important social policy well recognized in

the Anglo-American system lies at the foundation

of this principle. Our courts have recognized the

identity of interest which exists between husband

and wife. The wife is an integral part of the

husband’s sphere of activity. In Anderson v.

Watt, 138 U. S. 694, 706, the Supreme Court re-

ferred to previous decisions of the same tribunal

and said as to husband and wife ‘‘ the domicile of

the husband is her domicile.’’ This rule, the Court

said, is ‘‘ founded upon the theoretic identity of

person, and of interest, between husband and wife,

as established by law, and the presumption that,

from the nature of that relation, the home of the

one is that of the other, and intended to promote,

strengthen and secure their interests in this rela-

tion, as it ordinarily exists, where union and har-

mony prevail.’’ Therefore, because the family

does exist as a single united entity, it may, in a

broad sense, be said that the wife’s purpose is the

husband’s purpose, and if the husband comes to the

United States to carry on trade, his wife comes for

that same purpose.

The Supreme Court of the United States in de-

ciding the Gue Lim case‘ interpreted the treaty

between the United States and China of November

17, 1880 (22 Stat. 826), in a manner that sustains

*United States v. Mra. Gue Lim, 176 U. S. 459.

this conclusion. Mr. Justice Peckham, in the course

of the opinion of the Court, said (176 U. S. 459,

466) :

And yet it is not possible to presume that

the treaty, in omitting to name the wives

of those who by the second article were

entitled to admission, meant that they should

be excluded. If not, then they would be en-

titled to admission because they were such

wives, although not in terms mentioned in

the treaty.°

Referring to prior conflicting decisions of the

lower Federal Courts, Mr. Justice Peckham says

further (p. 464):

It is not necessary to review these cases in

detail. It is sufficient to say that we agree

with the reasoning contained in the opinion

delivered by Judge Deady. In re Chung

Toy Ho, 42 Fed. Rep. supra.

In that case Judge Deady said (42 Fed. 398,

399) :

It is impossible to believe that parties to

this treaty, which permits the servants of a

merchant to enter the country with him, ever

contemplated the exclusion of his wife and

children. And the reason why they are not

expressly mentioned, as entitled to such ad-

mission, is found in the fact that the domicile

of the wife and children is that of the hus-

band and father, and that the concession to

*It is not believed that the distinction drawn by Mr. Justice Mc-

Reynolds in Yee Won v. White, 256 U. 8. 399, with respect to United

States v. Mrs. Gue Lim, 176 U. 8S. 459, has any bearing on the pres-

ent discussion, or that the learned Justice sought to minimize the

effect of the language quoted in the text above.

the merchant of the right to enter the United

States, and dwell therein at pleasure, fairly

construed, does include his wife and minor

children.°

In the ease of Ex Parte Goon Dip, 1 F. (2nd)

811, arising under the Act of 1924, Judge Neterer,

of the District Court of the Western District of

Washington, N. D., held that the wife and minor

son of a domiciled Chinese merchant were admis-

sible under the provisions of Section 3 (6) of the

Immigration Act of 1924, since by the Chinese

treaty of November 17, 1880, such wife and child

were accorded a right of entry. U.S. v. Mrs. Gue

Lim, 176 U. S. 459, and In re Chung Toy Ho, 42

Fed. 398, are cited in support of this proposition.’

The same judge in Ex Parte So Hakp Yon, 1

F. (2nd) 814, held that the wife of a resident

Japanese merchant was not admissible for the rea-

son that the Japanese Treaty of 1911 did not give

to such wives a right analogous to that conferred

upon the wives of Chinese merchants by the Chi-

nese Treaty of 1880. The attempted distinction is

based upon the fact that the Chinese Treaty in-

cludes the words ‘‘ merchants * * * together

with their body and household servants,”’ while

the Japanese Treaty does not contain this exact

language. The argument is that if servants were

admitted, wives, though not expressly named, were

also admitted a fortiori. This distinction between

*See also Yee Won v. White, 256 U. S. 399, 401. In Woo Hoo v.

White, 243 Fed. 541, 543, the Circuit Court of Appeals for the Ninth

Circuit said: “It is well settled that the terms of that treaty confer

upon a Chinese merchant domiciled in this country the right to bring

his wife and minor children into the United States.”

* See also In re Chin Hern Shu, D. C. Mass., Dec. 11, 1924 (unre-

ported).

the two treaties is believed to be unsound. The

Supreme Court in the Gue Lim case does not rest

its decision upon this language of the Chinese

Treaty, but upon the theory of the identic domicile

of husband and wife and the design of the contract-

ing parties. As already pointed out, the design in

concluding the various treaties of commerce and

navigation is similar in all such treaties and con-

templated that merchants should not be separated

from their families. This is the fundamental pur-

pose of all treaties of this description.

For these reasons it is believed to have been the

design of the Contracting Parties in concluding

the treaty of 1880 and other commercial treaties, to

permit traders to whom was given the right to

enter and reside, the right to bring with them their

wives and children; or, to express it differently,

such individuals and their wives and children have

a treaty right to enter and reside as a necessary

incident to the trade which the treaty contem-

plates.

THE MEANING OF SECTION 3 (6)

Before attempting to construe the language of

the Act it is necessary to emphasize the well-estab-

lished rule of construction, which has been fre-

quently enunciated by the Supreme Court, that it

is never to be supposed that an Act of Congress

overrides the provisions of a treaty unless its words

are so clear that there is no escape from that con-

clusion. Declared Mr. Justice Harlan in the opin-

ion of the Court in Chew Heong v. United States,

112 U. S. 536, 539, 540:

* * * The court should be slow to as-

sume that Congress intended to violate the

stipulations of a treaty so recently made with

the government of another country x

Aside from the duty imposed by the Consti-

tution to respect treaty stipulations when

they become the subject of judicial proceed-

ings, the court eannot be unmindful of the

fact, that the honor of the government and

the people of the United States is involved

in every inquiry whether rights secured by

such stipulations shall be recognized and pro-

tected. And it would be wanting in proper

respect for the intelligence and patriotism of

a coordinate 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.*

The Immigration Act of 1924 must therefore be

approached with this principle in mind. Only the

clearest and most explicit language would warrant

imputing to Congress an intent to violate our

treaties, i. e., an intent to exclude the wives and

minor children of “‘ treaty merchants.’’ On the

other hand, a weighty presumption is thrown into

the scales in favor of a construction which respects

our treaties.

Passing, then, to a consideration of the terms of

the Immigration Act of 1924, it is noted that Seec-

‘The favegeing statement was quceted fo Mr. parry Peckham in

the opinion of the Court in United States v. Mrs. Gue Lim, 176 U. 8S.

459, 465, where it was said: “It is impossible to entertain the belief

that the Congress of the United States, immediately after the con-

clusion of a treaty between this country and the Chinese Empire,

would, while assuming to carry out its provisions, pass an act which

violated or unreasonably obstructed the obligation of any provision

of the treaty.”

See also Er Parte Webb, 225 U. S. 663, 683; United States v. Lee

Yen Tai, 185 U. 8S. 213, 221; Devlin on the Treaty Power, Section 176,

tion 3(6) of the Act classifies as a nonimmigrant

‘¢ an alien entitled to enter the United States solely

to carry on trade under and in pursuance of the

provisions of a present existing treaty of Com-

merce and Navigation.’’ Section 13(c) provides

that ‘‘ no alien ineligible to citizenship shall be ad-

mitted to the United States unless such alien

* * * is not an immigrant as defined in Sec-

tion 3.”’

If we assume that aside from the Act wives and

minor children of merchants are given by the treaty

a right to enter the United States, it is obvious

that no argument for their exclusion under the act

could arise except for the words “solely to carry

on trade,’ which appear in Section 3(6). The

argument is made that since wives and minor

children do not carry on trade, they are not non-

immigrants and are excluded by force of the pro-

visions of Section 13(c). It is argued that this

phrase in Section 3(6) was directed against the

wives and children of merchants, on the ground

that any other construction deprives this phrase

of all meaning. However, such is not the case.

It is common knowledge that when the then pro-

posed Immigration Act was before the House Com-

mittee on Immigration, Secretary Hughes wrote to

Representative Johnson, Chairman of that Com-

mittee, on February 8, 1924 [Cong. Ree., vol. 65,

part 6, p. 5810], stating inter alia that he did not

believe that the present subdivision (2) of Section

3 of the then proposed Act providing for the tem-

porary admission of aliens for business or pleas-

ure fully met our treaty obligations. It is also

common knowledge that the debates in Congress

upon the rights of aliens under existing treaties

centered around the treaties relating to Japanese,

and particularly to the so-called Gentleman’s

Agreement. The debates further disclose that Sen-

ator Shortridge, who proposed and sponsored

the amendment which is now Section 3(6) of

the Act, was emphatic in asserting that his pro-

posed amendment preserved to Japanese all rights

which they had under the treaty of 1911. But he

also indicated that it was not proposed to recognize

the Gentleman’s Agreement, the terms of which

had not been disclosed to the Senate and which they

feared allowed more extensive entry of Japanese

than they desired to concede.

In this connection attention is called to the fol-

lowing quotations from the debates in the Senate

when the present subdivision (6) of Section 3 was

being discussed. It will be noted that the remarks

quoted are those of the late Senator Colt, Chairman

of the Senate Immigration Committee, and of Sen-

ator Shortridge, proposer of an Amendment put-

ting the treaty exemption into the form which it

now has.

{Congressional Record, 68th Congress, Ist Session, Vol. 65,

Part 6]

Page 5416.

Mr. Cour. If you will dwell on what is

held to be an ‘‘ immigrant,’’ I think it will

help you. I have already said that wnder

the trade treaties relating to commerce those

who come over as traders are not “ immi-

grants.”” The gentlemen’s agreement re-

lates to laborers, and hence to immigrants.

The Secretary of State objected, so far as

the House bill is concerned, first, upon the

ground that it violated the treaty, because it

only admitted aliens here temporarily, and

therefore was not broad enough to cover

traders, and, secondly, that it violates the

gentlemen’s agreement. Thereupon the

House in their amended bill, among the ex-

cepted classes, excepted those coming in

under present treaties. Now, mind you, the

treaty class are not strictly immigrants, and

therefore a mere phrase excepting those

coming in under a treaty would cover the

treaty with Japan, but would not cover the

gentlemen’s agreement.

* * * * *

Mr. SuHortriper. Mr. President, begging

the indulgence of the Senator from Rhode

Island for a moment, before we turn from

the subject, I wish not to be misunderstood.

I have made the statement, and I venture to

repeat it, that the amended bill of the House

does meet the objection that the contem-

plated exclusion of aliens ineligible to citizen-

ship violates an existing treaty. I state that

not idly or impulsively, but deliberately. It

meets that objection; all those who are ad-

missible into this country under any exist-

ing treaty of commerce and navigation are to

be admitted under this act. But it is also

true that there is a so-called gentleman’s

agreement, which never was a treaty, is not a

treaty, and which has failed of its purpose.

* * * * *

Page 6304.

Mr. Bayarp. The amendment which the

Senator now offers to the pending bill will

operate to prevent the continuance of that

gentlemen’s agreement?

Mr. Suorteiper. It will have that effect.

Mr. Bayarp. That is the opinion of the

Senator?

Mr. SHortrRiDGE. Yes.

Mr. Bayarp. And it is for that purpose

that it is put in?

Mr. SHortripce. Yes. The proposed com-

mittee amendment to the Senate bill seeks

to perpetuate this agreement. The House

bill has already eliminated it utterly. TI pro-

pose that the Senate shall do likewise.

[Italics ours. ]

* * * * *

It is therefore believed that the phraseology of

Section 3(6) was adopted with a desire to grant

full rights to persons entitled to enter under

treaties of commerce and navigation. As has

already been demonstrated, wives and children

have such a right of entry. In other words, this

phraseology was adopted to show that the treaty

provisions referred to were only those provisions

respecting privileges of commerce and navigation,

and that the class of persons referred to was the

merchant class within the scope of those provisions.

There is another apparent reason for the use of

the phrase ‘‘ solely to carry on trade ’”’ as used in

Section 3(6). The various treaties of commerce

and navigation do not refer exclusively to mer-

chants. A right of entry is also accorded to ships

(and necessarily to their crews) and to temporary

visitors. For example, the Treaty of Peace,

Friendship, Commerce, and Navigation with Bo-

livia, signed May 13, 1858 (12 Stat. 1003, 1005),

provides in Article III that ‘‘ The citizens of either

republic may frequent with their vessels all the

coast, ports, and places of the other, where foreign

commerce is permitted ’’ and ‘‘ shall also have the

unrestrained right to travel in any part of the pos-

sessions of the other.’’ Article I of the Treaty of

1911 with Japan (37 Stat. 1504), also grants lib-

erty of ‘‘ travel,’’ as does Article I of the Conven-

tion of October 14, 1881, with Serbia (22 Stat. 963).

The Convention of November 25, 1850 with Switz-

erland (11 Stat. 587, 588) grants liberty to ** come,

go, sojourn temporarily.” Congress had already

provided for alien seamen in Section 19 of the Act

and for visitors or travelers in Section 3(2)

thereof. As already noted above, it was originally

believed by the framers of the bill that Section

3(2) sufficiently covered those entitled to enter

under the treaties until Secretary Hughes indi-

eated his contrary opinion in his letter of February

8, 1924, to Representative J ohnson. It seems that

Congress was intent on putting in a new provision

to cover merchants, and it was with this in view

that they inserted the phrase ‘ solely to carry on

trade’? under the treaties. In other words, the

phrasing of Section 3(6) seems to have been

adopted partly to avoid a conflict with or repeti-

tion of Sections 3(2) and 19, and was designedly

supplemental thereto.

That Congress did not intend to exclude wives

and children of merchants who themselves had a

right under the treaties to enter the United States

is amply shown by the remarks of Senator Short-

ridge in supporting his amendment (the present

Section 3 (6)) on the floor of the Senate. ;

In this connection it may first be noted that

where the words of an Act are ambiguous, the

Supreme Court will be aided in seeking the intent

of Congress, not, it is true, from the merely general

debates, but from the statements of those who

framed or introduced the legislation and from

Committee reports. In Caminetti v. U. S. (1917),

242 U. 8. 470, 490, the Supreme Court said: ‘ Re-

ports to Congress accompanying the introduction

of proposed laws may aid the courts in reaching

the true meaning of the legislature in cases of

doubtful interpretation.’’ In Duplex Printing

Press Company V. Deering (1921), 254 U. S. 443,

474, the court rejected the debates but said: * Re-

ports of committees * * * stand upon a more

solid footing and may be regarded as an exposition

of the legislative intent * * * and this has been

extended to include explanatory statements in the

nature of a supplemental report made by the com-

mittee member in charge of a bill in course of pas-

sage.” See also Wisconsin R. R. Commission V.

(., B. and Q. R. R. (1922), 257 U. 8. 563. The re-

marks of Senator Shortridge, as the member who

introduced and sponsored this part of the Act, are

believed to be entitled to be received as evidence

of the intent of Congress in regard to this provi-

sion. His statements explaining the purpose of his

amendment are therefore quoted here:

[Congressional Record. 68th Congress, 1st session, Vol. 65,

Part 6]

Page 5416.

Mr. SHortriper. I answer the Senator

that it is not my purpose, it is not the pur-

pose of anyone in sympathy with me, to

violate any existing treaty; wherefore—

* * *

Mr. Rosinson. Let us get right down to

this. Does the Senator mean to say that if

his amendments are violative of a treaty

with Japan, or would have the effect of abro-

gating it, he would not propose the amend-

ments, but would withdraw them?

Mr. SxHorrriper. I answer thus: I can

imagine a situation where we would be justi-

fied in legislating as we did in respect to the

treaty with China. The Congress of the

United States passed an exclusion law aimed

at that country, full, direct, in the face of a

then-existing treaty. I do not offer that as

a worthy precedent to be followed, but in

this case I have taken the trouble to say

that we have sought to avoid that entirely.

Mr. Rosinson. I understand that very

well. You would much rather not abrogate

the treaty.

Mr. SHortripGe. Certainly not.

* * * %

Page 5743.

Mr. SHortripGe. What Secretary Hughes

feared was lest by this legislation we offend

against existing treaties. We have avoided

that altogether in the bill.

Page 5744.

Mr. SHortripceE. * * * I think, as |

said the other day, that the Secretary of

State will now see clearly that we do not pro-

pose in this bill in anywise to modify, annul,

or disregard the provisions of the treaty of

1911.

* * * * ~

Mr. SHortRIDGE. By the amendment which

we put in, in addition to all who may come

in under the treaty of 1911—and there is no

limit to the number who may come pursuant

to the provisions of that treaty.

* * * * *

Mr. McKe iar. The Senator says that

students and ministers of the Japanese

church and traders may come and may stay

ad libitum. Do I understand there is no

limit put upon those three classes at all, and

their families? Would not that let in a very

large body of men and women?

Mr. Reep of Pennsylvania. If it would be

of any assistance to the Senator, I have the

language of the treaty here. It is quoted by

Secretary Hughes in his letter.

Mr. SHortripGE. I should be glad to quote

the words of the treaty. Undoubtedly there

is no limit as to the number of those admis-

sible under that treaty. That was one of the

reasons why former President Roosevelt was

so indignant over that treaty of 1911, as I

will point out in a moment. There is no

limit set as tothe number. * * *

Page 5745.

Mr. SuHortripce. Yes; I will put them

into the Record. I suggest to the Senate

that there is presented a situation which is

charged with unrest, with friction, and w ith

danger. Our Secretary of State in the per-

formance of his duty, of course, was par-

ticularly concerned with this legislation. As

the bill was first introduced in the other

House—I beg Senators to note this, if they

will—it did not contain the present provi-

sion covered by my amendment, which re-

spects fully and unequivocally the treaty of

1911, so that neither Japan nor China nor

Siam nor any of the nations of the earth

can object to our action if we adopt this

measure upon any suggestion that it is vio-

lative of any treaty of commerce and naviga-

tion.

Page 5746.

Mr. SHortriper. The first objection is ad-

vanced more by our own people than by

them. It is said that we violate the treaty

obligations of this Republic. So, once for

all, that the most stupid or perverse-minded

man elsewhere may understand it—every

Senator understands now that we do not,

but in order that the most stupid or per-

verse-minded man elsewhere may under-

stand it—let me say that we have proposed

specifically to recognize the existing treaty

of commerce and navigation with Japan.

Whatever rights are guaranteed to Japan

under that treaty are to remain. We are

not disposed to question the terms of the

treaty. There it is. This Nation has set

itshand to it. There is the treaty, and there

let it be, and let it be observed. So let us

have done with puerile discussion elsewhere

that we propose to trample upon an Ameri-

can treaty. Far from it. We lft it up;

we stand by it; and we are only anxious that

Japan shall stand by it and observe it.

* * *

Page 6304. *

Mr. SHortripce. * * * To remove any

doubt which may be in the mind of a thought-

ful Senator I repeat again and yet again that

it is not the purpose of the House bill, it is

not the purpose of the proposed amendment,

itis not my purpose, and it is not the purpose

of any of those who favor this exclusion |

policy to violate in any degree any such exist-

ing treaty. I may observe that that treaty

admits an unknown number for the purposes

specifically in the treaty set out. So that—

and this question has been put to me by other

thoughtful Senators—it should be under-

stood by us, of course, and once and for all,

that there is no disposition to violate any ex-

isting treaty such as is described in the

House bill or in the proposed amendment.

[ Italies ours. ]

This same desire and intent to uphold our treaty

obligations are also amply proved by the following

quotations from pages 2, 3, and 4 of the Report of

the House Committee on Immigration, acecompany-

ing the introduction of the ‘‘ Johnson Bill,’’ H. R.

7995.

[Report No. 350, H. R., 68th Congress, Ist session, March

24, 1924]

Protection of Treaties—The suggestions

of Secretary Hughes for the protection of

treaties of the United States with other

countries have been met by the addition to

section 3 (p. 5) of an additional exempted

class, to wit:

‘*(6) An alien entitled to enter the United

States solely to carry on trade under and in

pursuance of the provisions of a present ex-

isting treaty of commerce and navigation.”’

The original suggestion of Secretary

Hughes was for an exemption in these words :

*‘An alien entitled to enter the United

States under the provisions of a treaty.”’

Subsequently, the Secretary suggested the

following words:

*‘An alien entitled to enter the United

States under the provisions of an existing

treaty.”

The Committee has incorporated in H. R.

7995 Secretary Hughes’s proposal, but has

used words which tie the exemptions to

those persons properly exempted and entitled

to enter the United States solely to carry on

trade under and in pursuance of all exist-

ing treaties of commerce and navigation.

The committee agrees with Secretary

Hughes that immigration and the regulation

thereof is a domestic matter.

The control of immigration belongs to the

Congress of the United States. Your com-

mittee feels that this additional exemption

does not pass that control from Congress,

and feels also that it is broad enough to take

care of all of the clauses of all our com-

mercial treaties, including that with Japan,

which has been specifically mentioned in the

exchange of letters between the State De-

partment and the committee.

The Secretary of State, by the very nature

of his office, must guard our treaties with

other nations. In fairness, the Secretary of

State must present the views of other coun-

tries to the committees of Congress which

have to do with the framing of legislation

which may affect other nations or the rela-

tions of the United States with other nations.

The House Committee on Immigration in

turn has felt obliged to go just as far as it

could in an effort to meet the views of Seere-

tary Hughes with reference to treaties in

connection with the effort to accomplish a

restriction of immigration.

“ 7 . > *

The committee believes that the exemption

of those entitled to enter under treaty pro-

visions, and the exemption of “ aliens visit-

ing the United States as tourists or tempo-

rarily for business or pleasure ’’ fully satis-

fies treaty requirements.

Having established that the various treaties of

commerce and navigation confer upon the wives

and minor children of merchants engaged in inter-

national trade and commerce, a right to enter the

United States with their husbands and fathers, and

having shown that this right was recognized and

preserved by Section 3(6) of the Immigration Act

of 1924, it is proper to consider the reasoning of

those who are inclined toward a contrary construc-

tion of the statute and treaties.

POSITION OF THE DEPARTMENT OF LABOR

The contentions of the Department of Labor are

set out in Acting Secretary White’s letter of Octo-

her 24, 1924, to the Secretary of State. He bases

his interpretation on two portions of the Immigra-

tion Act of 1924. First, he says:

I am not, however, convinced that the con-

clusions reached in your letter have given

sufficient effect to the language of clause 6

of Section 3 of the Immigration Act of 1924,

which appears to me to cover not every alien

who is entitled to enter under the treaty of

commerce and navigation, but only such of

those aliens as enter solely to carry on trade

under and in pursuance of the provisions of

such a treaty, which can not be truly said of

the wife and minor children coming merely

as such with the husband and father, al-

though he himself may be entering for that

purpose.

This is nothing short of a blunt assertion that

Congress undertook to cut off rights conferred by

treaty. Unless such an imputation is supported by

evidence, it should not be treated seriously, for it

contradicts the sound canon of construction above

noted whereby the Supreme Court always presumes

that Congress has no design to violate an existing

treaty of the United States, Moreover, in the

present case, this confention is valueless, because

the evidence is convincing that Congress did in

fact, after discussion of the matter, endeavor to

respect the treaty obligations of the nation.

Second, he says:

I am also not convinced that sufficient

effect has been given to Section 5 of that Act,

which appears to me to declare so definitely

that no alien shall be admitted as a nonim-

migrant by reason of relationship to any in-

dividual who is so specified or by reason of

being excepted from the operation of any

other regulation or law forbidding immigra-

tion that I feel there is no room left for con-

struction.

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The gist of this contention is that wives and chil-

dren of merchants not being admissible in their

own right, are expressly excluded by Section 5,

which provides ‘‘ an alien who is not particularly

specified in this Actasa * * * nonimmigrant

shall not be admitted as a * * * nonimmi-

grant by reason of relationship to any individual

who is so specified.’’

The answer to this contention depends upon two

things: first, the meaning of the appropriate

treaty provisions; and second, the meaning of Sec-

tion 3(6). If the treaty gives the wives and chil-

dren of merchants a right to enter the United

States, and if Section 3(6) stipulates that anyone

having a right under the treaties is a nonimmigrant.

then it may be said that wives and children are so

particularly specified in that Section. These points

have, it is believed, already been established above,

but it is pertinent to note that the phrase “ par-

ticularly specified,’’ as used in Seetion 5, is neces-

sarily an expression of greater generality than the

words themselves would imply. If we turn to See-

tion 3(6) we find that it says merely ‘‘an alien

entitled to enter,’’ ete. No particular persons are

specified. The Section does not include the words

‘fa merchant ”’ or ‘‘ a business man ”’ or ‘* an alien

man ’’ or similar specific designations. It merely

says “‘ an alien.’’ The other qualifying words have

been discussed above and it has been shown that

they do not limit the class included in this provi-

sion to the merchants themselves. The persons

‘particularly specified’? in Section 3(6) are

‘‘ aliens ’’ who are entitled to enter for commercial

purposes under the treaties. ‘‘An alien’’ may bea

man, woman, or minor child, and any one of these

may therefore be said to be “‘particularly speci-

fied.’’

If wives and children of merchants enter by

virtue of a right granted by the treaty, Section 5

is not applicable, because Section 5 refers to per-

sons whose sole claim to a right of entry is based

on relationship. It has no reference to persons

whose treaty right is expressly recognized by the

terms of some section of the Act, and therefore has

no reference to these wives and children whose

right of entry—as has been demonstrated—is rec-

ognized by Section 3(6).

POSITION OF THE DISTRICT COURT FOR THE NORTHERN

DISTRICT OF CALIFORNIA, SECOND DIVISION, IN DE-

CIDING THE PRESENT CASE

The basis for the Court’s decision is to be found

in 2 F. (2nd) 995, at page 997.

The Court says:

As already pointed out, the treaty of 1880,

while permitting ‘‘ teachers, students, [and]

merchants together with their body and

household servants’’ to enter, does not in

terms permit their wives and children to do

so, and their entry has been so far sanctioned

by virtue of their relationship to a member

of one of those classes. The present act

designates such merchants as nonimmi-

grants, and the provision alluded to, to the

effect that an alien who is not particularly

specified in the act as a nonimmigrant shall

not be admitted as such by reason of rela-

tionship to any individual who is so specified,

seems to me to be directly pointed at per-

sons in the situation of these petitioners.

While it is not wholly clear what the Court had in

mind, an analysis of the judicial reasoning is un-

necessary, because the Court has evidently failed

to grasp the essential points which must be borne

in mind in interpreting the Act. The Court does

not consider the treaty itself and consequently can

not authoritatively conclude whether there is a con-

flict between the treaty and the statute. If such a

conflict exists or if it is suspected, it is the primary

duty of the Court to see whether the two can be

reconciled. To fail in this duty is to assume that

Congress intended to violate the treaty, whereas, as

has been noted, the Supreme Court has repeatedly

stated the principle that the presumption is in

favor of the treaty and emphatically in its favor.

But here there is no conflict ; the treaty gives a right

and the statute recognizes and confirms the right.

It is believed that the Court could not have rea-

soned as it did if it had grasped the significance

of the Supreme Court’s interpretation of the

Chinese treaty in the Gue Lim case. The Supreme

Court did not inject the wives and children of mer-

chants into the treaty; it found that these persons

were already within the treaty. Once the treaty

has been authoritatively interpreted—that is, when

it is known what the treaty means, what is its scope,

what persons are included within its terms—this

question is settled. It is no longer pertinent to in-

quire what reasoning was employed by the Su-

preme Court in reaching its decision. The ele-

ment of relationship was, of course, considered by

the Supreme Court in deciding what the treaty

meant—for what purposes the contracting parties

concluded such a convention. But relationship

was merely an element of interpretation and not

the basis of the right. The contracting parties

conferred the right by concluding a treaty which

permitted an international merchant to reside in-

definitely in this country with his family. When

the question first arose, the meaning of the treaty

was not apparent. The Supreme Court inter-

preted the treaty and found that the contracting

parties had given to the wives and children, as we

as to the merchants themselves, a right to enter

and reside. It is no longer necessary to ask why

the wives and children are in the treaty ; it is neces-

sary only to realize that they are within its scope.

Although this point has already been discussed in

this memorandum, it may be useful to repeat that

Section 3(6), under a proper interpretation, is

seen to specify that wives and children of mer-

chants are nonimmigrants. They are nonimmi-

grants because Congress intended by this subdivi-

sion to classify as such ‘‘ any alien ’’ who, in the

interests of international trade, had, under our

treaties of commerce and navigation, a right to

enter. Since such wives and children were given

that right by treaty they are included within the

provisions of Section 3(6), and therefore Section

5 is inapplicable by its very terms, since it refers

only to aliens not particularly specified in the Act.

It may be noted that the Court, unlike the De-

partment of Labor, docs not discuss the wording

of Section 3(6) in this conneetion, but on the con-

trary says in another place [2 F. (2nd) 995, 997]:

It is admitted by the respondent that it

[the rule laid down in United States v. Mrs.

Gue Lim, 176 U. S. 459, admitting wives and

children under the old Act] would be appli-

cable in this case were it not that the Immi-

gration Act of 1924 contains provisions

which effectually preclude its further ob-

servance, namely, Section 5 and subdivision

The question then resolves itself into the inquiry

whether these persons have a right under the treaty.

An affirmative answer to this inquiry has already

been made.

SUMMARY

By way of summary, the following points are

emphasized :

First. For reasons which are hereinabove set

forth, and which have had the support of the

Supreme Court of the United States, the wives and

minor children of alien merchants entering the

United States for purposes of trade and commerce

under a present existing treaty of the United States

are themselves clothed with a treaty right to enter.

Second. If such wives and minor children are

clothed with a treaty right to enter, it must be pre-

sumed that Congress had no desire to impair that

right.

Third. The evidence is abundant and convincing

that Congress itself not only had no desire to cur-

tail that treaty right, but also deliberately under-

took to respect the treaty right to enter of all who

were clothed therewith.

Fourth. Inasmuch as the wives and minor chil-

dren of alien merchants possess by treaty a right

to enter, they fall within the reasonable scope of

Section 3 (6) of the Act, and consequently remain

unaffected by any provisions of Section 5 thereof.

CONCLUSION

In conclusion, emphasis must again be laid on_

the seriousness of the situation which would de-

velop, if, in addition to the restrictions upon immi- '

gration which Congress had the right to impose, ’

it should be found that Congress by its legislation ~

had violated a treaty right heretofore sustained by

the Supreme Court of the United States to the a

prejudice of the rights of foreign traders and of

urged that there is no provision of the Act which

compels us to face such a situation. 4

CHARLES CHENEY HYDE,

Solicitor for the Department of State.

Fresruary 18, 1925. E

Approved by the Secretary of State, February |

19, 1925.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.