Case of Former Residence by A Chinese Laborer, 21 F. 791
中国劳工前住所案，21 F. 791

Core Terms  核心条款

Opinion  意见

 [*791]  Before FIELD, Justice, SAWYER, SABIN, and HOFFMAN, JJ.
[*791] 在 FIELD 大法官、SAWYER 大法官、SABIN 大法官和 HOFFMAN 大法官面前。

FIELD, Justice. The facts of this case differ from those in the Case of the Chinese Laborer with an Unused Tag, ante, 701, recently decided, in this particular: that the laborer there left the United States, after the passage of the act of 1882, without a certificate enabling him to return, relying upon a tag entitling him to such a certificate, but which he had not obtained, while the laborer here left before the passage of the restriction act, and of course before any certificate was required. It appears, from the agreed statement of facts, that the petitioner is a laborer of the Chinese race, and a subject of the emperior of China; that he resided within the United States on the seventeenth of November, 1880, and continued his residence until June, 1881, when he departed for Honolulu, in the Hawaiian Kingdom, where he remained until September of the present year, (1884,) and then returned to the port of San Francisco, and, of course, without any certificate under the act [**2]  of 1882, or that of 1884, as none could be issued to him while out of the country; and he now seeks to land by virtue of his residence here on the seventeenth of November, 1880, contending that the acts of 1882 and 1884 except Chinese laborers in like situation from the necessity of presenting any certificate, inasmuch as it would be impossible to obtain one.
FIELD 大法官。本案的事实与最近裁定的《带有未使用标签的中国劳工案》（前文，第 701 页）有所不同，具体在于：该案中的劳工在 1882 年法案通过后离开美国，未持有允许其返回的证书，而是依赖一张赋予他获得该证书权利的标签，但他并未取得该证书；而本案中的劳工则是在限制法案通过之前离开，当然也在任何证书要求之前离开。 根据双方同意的事实陈述，申请人是一名华人工人，属于中国皇帝的臣民；他于 1880 年 11 月 17 日居住在美国境内，并持续居住直到 1881 年 6 月，随后前往夏威夷王国的檀香山，在那里停留至本年（1884 年）9 月，然后返回旧金山港口，当然没有根据 1882 年或 1884 年法案获得任何证书，因为他在国外期间无法获得证书；他现在寻求凭借 1880 年 11 月 17 日的居住权入境，主张 1882 年和 1884 年法案豁免了类似情况的华人工人提交任何证书的必要性，因为获得证书是不可能的。

My associate, the circuit judge, sustains the contention of the petitioner, and in a written opinion has presented his construction of the act with his usual elaboration and learning. The district judge of this disctrict and the district judge of the district of Nevada concur with him. It is, therefore, with much diffidence that I venture to express my dissent from their conclusions. The restriction act of 1882 in its first section declares that, after 90 days from its passage, and for the period of 10 years from its date, the coming  [*792]  of Chinese laborers to the United States is suspended, and that it shall be unlawful for any such laborer to come, or, having come after the 90 days, to remain within the United States. The second section makes it a misdemeanor punishable by fine, to which imprisonment may be added,  [**3]  for the master of any vessel knowingly to bring within the United States from a foreign port and land any such Chinese laborer. The third section then provides that the two sections mentioned shall not apply to Chinese laborers who were in the United States on the seventeenth of November, 1880, or who came within 90 days after the passage of the act, "who shall produce to such master before going on board such vessel, and shall produce to the collector of the port in the United States as which such vessel shall arrive, the evidence hereinafter in this act required of his being one of the laborers in this section mentioned;" nor shall they apply to the case of a master of a vessel coming within the jurisdiction of the United States by reason of stress of weather, or touching at any port of the United States on its voyage to a foreign port, -- the laborers brought to depart with the vessel.
我的同事，巡回法官，支持请愿人的主张，并在一份书面意见中以他一贯的详尽和学识阐述了对该法案的解释。本地区的地区法官和内华达地区的地区法官也同意他的观点。因此，我怀着极大的谨慎表达我对他们结论的异议。1882 年限制法案的第一条规定，自该法案通过之日起 90 天后，并在其生效日期起 10 年内，禁止中国劳工进入美国，任何此类劳工在 90 天后进入或留在美国均属非法。第二条规定，任何船长明知将中国劳工从外国港口带入美国并登陆，均构成轻罪，处以罚款，并可附加监禁处罚。 第三部分规定，上述两部分不适用于 1880 年 11 月 17 日已在美国的中国劳工，或在该法案通过后 90 天内抵达的中国劳工，“这些劳工在登船前应向船主出示本法案后文要求的证明，证明其为本节所述的劳工之一；并应向该船抵达的美国港口的海关官员出示该证明”；也不适用于因恶劣天气进入美国管辖区的船只船主，或在前往外国港口途中停靠美国任何港口的船只船主——这些劳工随船离开。

What, then, is the evidence which must thus be produced to the master in the foreign port, and to the collector at the port of the United States, by the laborers thus within the exception mentioned? The fourth section answers this. It declares that, for the purpose of identifying those [**4]  laborers, -- that is, those who were here on the seventeenth of November, 1880, or came within the 90 days mentioned, -- and to furnish them with "the proper evidence" of their right to go from and come to the United States, the "collector of customs of the district from which any such Chinese laborer shall depart from the United States, shall, in person or by deputy, go on board such vessel having on board any such Chinese laborer, and cleared or about to sail from his district for a foreign port, and on such vessel make a list of all such Chinese laborers, to be entered in registry books to be kept for that purpose, with a statement of the age, occupation, last place of residence, and of physical marks or peculiarities of each one necessary to his identification; and each laborer thus departing shall be entitled from the collector, or his deputy, to a certificate containing such particulars corresponding with the registry as may serve to identify him. "The certificate herein provided for," says the section, "shall entitle the Chinese laborer, to whom the same is issued, to return and to re-enter the United States upon producing and delivering the same to the collector of customs [**5]  of the district at which such Chinese laborer shall seek to re-enter."
那么，必须向外国港口的船主以及美国港口的征收官出示什么样的证据，才能证明这些劳工属于上述例外情况呢？第四条对此作出了回答。 它声明，为了识别那些[**4]劳工——即 1880 年 11 月 17 日当日在此，或在提及的 90 天内到达的劳工——并为他们提供“适当的证据”以证明他们有权离开和返回美国，“任何此类中国劳工离开美国的地区的海关征收员，应亲自或委派代理人，登上载有此类中国劳工的船只，该船已从其辖区清关或即将启航前往外国港口，并在该船上制作所有此类中国劳工的名单，登记在为此目的保管的登记簿中，附有每个人的年龄、职业、最后居住地以及识别其身份所必需的身体特征或特殊标记的说明；每位离开的劳工应有权从征收员或其代理人处获得一份包含与登记簿相符的详细信息的证书，以便识别其身份。 “本条款所提供的证书，”该条款指出，“应使获得该证书的华工有权凭此证书返回并重新进入美国，向其寻求重新入境的地区海关征收员出示并交付该证书。”

Now, what is the meaning of these provisions? It is not, as I read them, that the Chinese laborer in the United States on the seventeenth of November, 1880, -- the date of the supplementary treaty, -- or who came within 90 days after the passage of the act, -- that is, before it took effect, -- shall be subsequently permitted -- that is, after the act had taken effect -- to come without any certificate, for the act  [*793]  makes no exceptions of persons by whom it must be obtained. It means, in my judgment, that those laborers, if still in the United States when the act takes effect, and desirous to leave and yet return again, shall be permitted to do so upon obtaining the prescribed certificate. The production of that certificate is the only protection of the master of the vessel against criminal prosecution for bringing and landing those laborers after the expiration of 90 days from the passage of the act; it is the only evidence which the act requires to be furnished by them, and its production is the essential condition prescribed for their landing. The act, interpreted according to its direct [**6]  language, necessarily excludes in its operation those who left the country before the act took effect. If this construction works any hardship, it is for congress to change the act. The court has no dispensing power over its provisions. Its duty is to construe and declare the law, not to evade or make it. Oftentimes, indeed, there is a sense of impatience in the public mind with judicial officers for not announcing the law to be what the community at the time wishes it should be. And nowhere has this feeling been more manifested than in California, and on no subject with more intensity than that which touches the immigration of Chinese laborers; but it often does great injustice to officers anxious to perform their whole duty. While I differ from my associates in the construction of the restriction act, I can bear testimony to the great solicitude manifested by them to reach a right conclusion. If, as already stated, the law works any hardship, it is for congress to change it. With that body it rests, under the constitution, to determine what foreigners shall be permitted to come to the United States and on what conditions to remain.
那么，这些条款的含义是什么？据我理解，并不是说 1880 年 11 月 17 日——补充条约签订之日——在美国的中国劳工，或者在该法案通过后 90 天内——即在其生效前——进入美国的人，之后——即该法案生效后——可以无需任何证明而入境，因为该法案并未对必须取得证明的人作出例外。依我看，这意味着那些劳工如果在该法案生效时仍在美国，且希望离开后再返回，必须取得规定的证明方可获准这样做。出示该证明是船主避免因在法案通过后 90 天期限届满后仍带入并登陆这些劳工而被刑事起诉的唯一保障；这是法案要求他们提供的唯一证据，且其出示是允许他们登陆的必要条件。 该法案根据其直接的[**6]语言解释，必然排除在法案生效前离开该国的人。如果这种解释带来任何困难，应由国会修改该法案。法院无权免除其条款的适用。法院的职责是解释和宣告法律，而非规避或制定法律。事实上，公众常常对司法官员未能宣布法律为当时社会所期望的样子感到不耐烦。在加利福尼亚，这种情绪表现得尤为明显，尤其是在涉及华工移民的问题上；但这常常对那些努力履行全部职责的官员造成极大不公。虽然我在对限制法案的解释上与同僚意见不同，但我可以证明他们为达成正确结论所表现出的极大关切。如前所述，如果法律带来任何困难，应由国会加以修改。 根据宪法，决定允许哪些外国人来美国以及在什么条件下可以停留，权力属于该机构。

The provisions of the amendatory act of [**7]  1884 seem to me to remove any doubt as to the necessity of the certificate, if any existed under the act of 1882, for the admission of any Chinese laborers, who may have left the country before the passage of the original act. Under the construction adopted in this circuit, parol evidence had been allowed in a multitude of cases where previous residence was alleged; and the district and circuit courts were blocked up by them, to the great delay of their general business and the inconvenience of suitors. This circumstance, and the suspicious character, in many instances, of the testimony produced, from the loose notions entertained by the witnesses as to the obligation of an oath, created a general expression of a desire for further legislation placing some restriction upon the evidence which should be received. This desire led to the passage of the amendatory act; and by that it is declared that the certificate which the laborer must obtain "shall be the only evidence permissible to establish his right of re-entry" into the United States. This declaration applies to the certificate issued under either act. By it the door is effectually closed to all parol evidence. Nothing [**8]  can take the place of the certificate or dispense with  [*794]  it. As was said in the Case of the Unused Tag, "if the collector refuses to the Chinese laborer any rights to which, under the restriction act, he is entitled, he should apply to the superior of the collector at Washington, the head of the treasury department, for proper instructions to him. The court has no supervising jurisdiction over the manner in which he discharges his duty."
1884 年修正法案的规定在我看来消除了任何关于证书必要性的疑问，如果 1882 年法案下对此存在疑问的话，证书是任何可能在原法案通过前离开该国的中国劳工入境的必要条件。根据本巡回区采用的解释，在许多声称有先前居住的案件中，口头证据被允许；地区和巡回法院因此被大量此类案件堵塞，严重延误了其一般业务并给诉讼人带来不便。这一情况，以及许多证人对宣誓义务持宽松态度所导致的证词在许多情况下的可疑性质，引发了普遍希望通过进一步立法对可接受的证据加以限制的呼声。这一愿望促成了修正法案的通过；该法案声明，劳工必须获得的证书“应为唯一允许用以证明其重新进入美国权利的证据”。此声明适用于根据任一法案签发的证书。 由此，门对所有口头证据有效关闭。没有任何东西[**8]可以取代证书或免除其必要性[*794]。正如《未使用标签案》中所说，“如果征收员拒绝给予中国劳工根据限制法案应享有的任何权利，他应向位于华盛顿的征收员上级、财政部负责人申请适当指示。法院无权监督其履行职责的方式。”

Writ discharged, and petitioner remanded.
令状解除，申请人被还押。

Dissent  异议

SAWYER, J., dissenting. 1 The petitioner, a Chinese laborer, who was residing in the United States on the seventeenth day of November, 1880, left San Francisco for Honolulu, in the Hawaiian Islands, on June 18, 1881, before the passage of the Chinese restriction act of May 6, 1882, and, consequently, without the certificate prescribed by section 4 of that act. He remained at Honolulu till September 15, 1884, when he embarked for San Francisco, in the state of California, at which port he arrived September 22, 1884. He now claims the right to re-enter the United States, and to land from the steamship on which he came, upon other satisfactory evidence of his former [**9]  residence and departure, without producing the certificate prescribed by section 4 of the act, either as it originally stood or as amended by the act of July 5, 1884. The question is whether, under the restriction act and the treaty with China, he is entitled to land, upon other satisfactory proof of his former residence, without producing the certificate prescribed, -- no such certificate being required at the time he left the United States, and it not being possible, under the acts of congress since passed, to obtain one. In other words, are the provisions of section 4 of said Chinese restriction act, as amended on July 5, 1884, applicable to Chinese laborers who resided in the United States on November 17, 1880, who afterwards departed from the United States before the passage of said act of May 6, 1882, and who did not return till September 22, 1884, after the passage of the amendatory act of July 5, 1884? or are the provisions of said section 4 only applicable to such Chinese laborers as departed after its passage, and who had an opportunity to procure the certificate required by it?
SAWYER 法官，持异议意见。1 申请人是一名华工，于 1880 年 11 月 17 日居住在美国，1881 年 6 月 18 日离开旧金山前往夏威夷群岛的檀香山，时间早于 1882 年 5 月 6 日通过的华人限制法案，因此未持有该法案第四条规定的证书。他一直留在檀香山，直到 1884 年 9 月 15 日启程返回加利福尼亚州旧金山，并于 1884 年 9 月 22 日抵达该港口。他现在主张有权重新进入美国，并从所乘蒸汽船上登陆，凭借其他令人满意的其先前居住和离境的证据，而无需出示该法案第四条规定的证书，无论是原始版本还是 1884 年 7 月 5 日修正后的版本。 问题在于，根据限制法案和与中国的条约，他是否有权在提供其他令人满意的前居住地证明的情况下获得土地，而无需出示规定的证书——因为他离开美国时并不要求提供此类证书，且根据国会此后通过的法案也无法获得该证书。换句话说，1884 年 7 月 5 日修订的上述中国限制法案第 4 条的规定，是否适用于 1880 年 11 月 17 日居住在美国、之后在 1882 年 5 月 6 日该法案通过前离开美国、并于 1884 年 7 月 5 日修订法案通过后直到 1884 年 9 月 22 日才返回的中国劳工？还是说该第 4 条的规定仅适用于该法案通过后离开美国且有机会取得所需证书的中国劳工？

 [**10]  I have no doubt that the act and the amendatory act took effect as laws of the United States from the date of their passage, and, no doubt, that the certificate prescribed by section 4 is the only evidence of a right to re-enter the country, as to all Chinese laborers to whom it is applicable, or who are within the purview of its provisions. On these points I have no doubt; but construing the act upon a consideration of all its provisions, and in view of and in subordination to the provisions of the treaty, it is very clear to my mind that congress did not intend to make the provisions of section 4 applicable, and that they do not apply, to those Chinese laborers who were in the  [*795]  country on November 17, 1880, and who subsequently left the United States before the passage of the original act, and who could not possibly have obtained the prescribed certificate, and as to whom the collector could not perform the prescribed conditions imposed upon him. The act purports to be an act "to execute certain treaty stipulations with China," -- not to abrogate them.
[**10] 我毫不怀疑该法案及其修正案自通过之日起即作为美国法律生效，并且毫无疑问，第 4 条规定的证书是所有适用该条款的中国劳工或处于其规定范围内的中国劳工重新入境的唯一凭证。对此我毫无疑问；但综合考虑该法案的所有条款，并结合且服从条约的规定，我非常清楚国会并不打算使第 4 条的规定适用于 1880 年 11 月 17 日已在[*795]境内且在原法案通过前离开美国、且不可能获得规定证书的中国劳工，且对这些劳工，征收官无法履行对其施加的规定条件。该法案声称是“为执行与中国的某些条约条款”的法案——而非废止这些条款。

It is scrupulously framed so as not, in express terms, to conflict with the provisions of the treaty. If [**11]  it be held to take away any rights secured by the treaty, it must be done by construction, and by far-fetched and overstrained implications, -- not because of any direct, express provision to that effect. The treaty and the act must, if possible, be so construed that they can stand together. The treaty with China authorized the government of the United States to "regulate, limit, or suspend" the coming of "Chinese laborers" to, or residence in, the United States. But it provided that "the limitation or suspension shall be reasonable, and shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitation." And it was further expressly provided that "legislation taken in regard to Chinese laborers will be of such character only as is necessary to enforce the regulation, limitation, or suspension of immigration." It is still further provided that "Chinese laborers who are now in the United States (at the date of the treaty, November 17, 1880) shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded [**12]  to the citizens and subjects of the most favored nation." The restriction act must be construed with reference to the provisions of the treaty. Section 1 of the act, as amended in 1884, suspends the coming of Chinese laborers for 10 years, and provides that during said suspension "it shall not be lawful for any Chinese laborer to come from any foreign port or place, or, having so come, to remain in the United States." Section 2 makes it an offense for the master of any vessel to land, attempt to land, or permit to be landed, any Chinese laborer from any foreign port or place. But section 3 provides that "the two foregoing sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, 1880, or who shall have come into the same before the expiration of ninety days next after the passage of the act, * * * nor shall said section apply to Chinese laborers who shall produce to such master before going on board such vessel, and shall produce to the collector of the port in the United States, at which such vessel shall arrive, the evidence hereinafter in this act required of his being one of the laborers in the section mentioned." Two [**13]  classes are here plainly indicated, to which the prohibitory provisions "shall not apply;" or rather one whole class, and a subdivission of the class. The first is general, embracing all "Chinese laborers" "who were in the United States on the seventeenth day of November, 1880;" and, secondly, "nor shall said sections apply to Chinese  [*796]  laborers who shall produce * * * the evidence hereinafter in this act required of his being one of the laborers in this section mentioned." They shall neither apply to the one class, containing all, "nor" to the sub-class, who shall procure and produce the prescribed certificate. Who constitute the sub-class referred to, who are required to produce the evidence hereinafter required? Plainly, those who depart after the passage of the act, and who procure, or who can procure, under the law, the certificate required in section 4, which can only be obtained by those subsequently departing. In the original act the language was, "shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, 1880, * * * and who shall produce" the evidence prescribed. The significant change was made [**14]  by dropping the "and," and adopting in its place, "nor shall said sections apply to Chinese laborers who produce," etc. This is, clearly, distinguishing between the two classes, or the two divisions of the one class, -- those laborers to whom the preceding sections do not apply, who had already departed; and those who should thereafter depart, and who, upon departing, must procure the certificate provided for in section 4. Before the amendment there was some little plausibility in claiming that none were exempt from securing the certificate, but there appears to me to be none since the amendment. Under the act as it originally stood, we held in Leong Yick Dew, 19 FED. REP. 490, that the provisions of section 4, relating to the certificate, did not apply to those who had departed before the passage of the act, and who could not possibly procure the certificate; and with that decision I am still entirely satisfied. A fortiori, under the act as amended these provisions are inapplicable.
该条款被谨慎地制定，以避免在明文上与条约的规定发生冲突。如果[**11]它被认为剥夺了条约所保障的任何权利，必须通过解释，以及牵强附会和过度延伸的含义来实现——而不是因为有任何直接、明确的规定。条约和该法案必须在可能的情况下被解释为能够共存。与中国的条约授权美国政府“规范、限制或暂停”“中国劳工”来美或在美居住。 但规定“限制或暂停应当合理，并且仅适用于可能作为劳工前往美国的华人，其他类别不包括在限制之内。”并且进一步明确规定“关于华人工人的立法仅应具有执行移民的规章、限制或暂停所必需的性质。”还进一步规定“在条约签订之日（1880 年 11 月 17 日）现居美国的华人工人，应被允许自由往来，并享有最惠国公民和臣民所享有的所有权利、特权、豁免和免除。”限制法案必须结合条约条款进行解释。 1884 年修订的该法案第 1 条暂停华工入境 10 年，并规定在此期间“任何华工不得从任何外国港口或地点入境，或即使已入境，也不得留在美国。”第 2 条规定，任何船长若将华工从任何外国港口或地点登陆、试图登陆或允许登陆，均属违法行为。 但第 3 条规定：“前两条款不适用于 1880 年 11 月 17 日已在美国的中国劳工，或在该法案通过后九十天内进入美国的中国劳工，* * * 也不适用于那些在登船前向其雇主出示证据，并向该船抵达的美国港口的海关官员出示本法案后文所要求的证明其为上述条款中劳工的中国劳工。”这里明确指出了两类[**13]，禁止性条款“不适用于”这两类；或者说是一整个类别及该类别的一个子分类。 第一条是一般性的，涵盖所有“1880 年 11 月 17 日当日在美国的华工”；第二条是“该条款亦不适用于那些能够出示本法后文所要求的证据，证明其属于本条所述华工的华工。”这些条款既不适用于包含所有人的第一类，也不适用于能够取得并出示规定证书的子类。谁构成所指的子类，谁需要出示后文所要求的证据？显然，是那些在法案通过后离境，并根据法律能够取得第 4 条所要求证书的人，该证书只能由随后离境者获得。原法案中的措辞是，“不适用于 1880 年 11 月 17 日当日在美国的华工，* * * 并且能够出示”所规定的证据。重要的变化是[**14]去掉了“并且”，改为“该条款亦不适用于能够出示”证据的华工，等等。 这显然是在区分两类人，或者说同一类人的两个分支——那些前面条款不适用的、已经离开的劳工；以及那些之后离开的人，他们在离开时必须取得第四条规定的证书。修正前，声称没有人免于取得证书还有一定的合理性，但在修正后，我认为这种说法已不存在。根据最初的法案，我们在 Leong Yick Dew 案（19 FED. REP. 490）中裁定，第四条关于证书的规定不适用于那些在法案通过前已离开且不可能取得证书的人；我对该裁决仍完全认可。更何况，根据修正后的法案，这些规定更不适用。

But the provisions of section 4, ex vi termini, apply, and they can only apply, to those Chinese laborers who depart after the passage of the amendatory act; they cannot possibly [**15]  be applied to those who have already departed. They relate to and provide for future action in obtaining and producing certificates; they have no relation to the past. Some entitled to return have already gone, and some may go hereafter; and it is provided that the latter shall procure the certificates, the provision necessarily having reference to the latter. It is provided, in section 4, "that for the purpose of properly identifying Chinese laborers who were in the United States on the seventeenth day of November, 1880, * * * and in order to furnish them with the proper evidence of their right to go from and come to the United States, as provided in said act and treaty, * * * the collector of customs of the district from which any such Chinese laborer shall depart from the United States shall * * * go on board each vessel having on board any such Chinese laborer, and cleared or about to sail from his district for a foreign port, and on such vessel make a list of all such Chinese laborers, which shall be entered on registry books, * * * in which shall be stated 'the names, description,  [*797]  physical marks, etc., and every Chinese laborer  [**16]  so departing from the United States shall be entitled to and shall receive, * * * from the collector, * * * at the time such list is taken, a certificate.' * * * The certificate herein provided for shall entitle the Chinese laborer to whom the same is issued to return and re-enter the United States upon producing and delivering the same to the collector of customs, * * * and said certificate shall be the only evidence permissible to establish his right of re-entry." Ex vi termini, all those provisions apply, and can only apply, to those of the class who depart after the passage of the act. The future tense is used throughout the section, and the acts to be performed can only be performed in the future; and "said certificate," which shall be the only evidence permissible to establish a right of re-entry, is the certificate provided for in the first part of the same section, to be issued to future departing laborers. And those who receive it, and only those who can receive it, are the ones to produce it, as the only permissible evidence of their right to return. No certificate is provided for those already gone before the passage of the  [**17]  act, and there is no requirement that they shall produce one. Nothing is said as to what the evidence of a right to re-enter shall be for those not provided for in this section. No practical form of evidence other than that recognized by the ordinary law of evidence could be provided for them, and none was attempted to be provided. As to those who had a right to return, -- under the provisions of the treaty, and under the express provisions of the first clause of section 3 of this amended act, in language similar to that of the treaty, in regard to whom no specific evidence is provided, -- the ordinary rules of evidence as to competency must apply, for no others are prescribed. That congress could not have intended to require the collector to go on board vessels already departed, and before their departure issue certificates to Chinese laborers who were already gone and safely landed in China, must be manifest.
但第 4 条的规定，按其字面含义，仅适用于在修正法案通过后离境的华工；不可能适用于那些已经离境的人。该条款涉及并规定了未来获取和出示证书的行为，与过去无关。一些有权返回的人已经离开，另一些可能以后离开；规定要求后者必须取得证书，该规定必然是针对后者的。 第四条规定，“为了正确识别 1880 年 11 月 17 日当日在美国的华工，* * * 并为了向他们提供根据该法案和条约规定的进出美国的合法凭证，* * * 任何华工离开美国的海关区的海关征收员应当* * * 登上载有该华工并已清关或即将从其辖区驶往外国港口的每艘船只，在该船上制作所有此类华工的名单，并将其登记在登记簿上，* * * 其中应载明‘姓名、描述、[*797] 体貌特征等’，每位离开美国的华工[**16]均有权并应当在名单制作时从征收员处* * * 领取一份证书。”* * * 本条所规定的证书应使持证华工有权凭此证书向海关征收员出示并交付后返回并重新进入美国，* * * 该证书应为唯一可接受的证明其重新入境权利的证据。” 根据条文含义，所有这些规定适用于且仅适用于该法案通过后离境的该类人员。 本节中始终使用将来时，所要执行的行为只能在将来进行；“所述证书”是本节第一部分规定的证书，是唯一允许用来确立重新进入权利的证据，将发给未来离开的劳工。只有那些收到证书的人，且仅限于他们，才能出示该证书，作为其返回权利的唯一合法证据。对于在[**17]法案通过前已离开的人，没有规定证书，也不要求他们出示证书。对于本节未规定的人员，其重新进入权利的证据没有说明。除普通证据法认可的证据形式外，没有为他们提供其他实际证据形式，也未尝试提供。 关于那些有权返回的人——根据条约的规定，以及根据本修正法案第 3 节第一款的明确规定，语言与条约相似，对于没有提供具体证据的人——必须适用普通的证据能力规则，因为没有规定其他规则。国会不可能意图要求征收员去已经离港的船只上，并在其离港前向已经离开并安全抵达中国的华工发放证书，这一点必须显而易见。

In Leong Yick Dew, 19 FED. REP. 493-496, three judges sitting and concurring in the decision, we said:
在 Leong Yick Dew 案，19 联邦报告 493-496 页，三位法官共同参与并一致同意判决，我们说：

"Congress could not possibly have intended to require that class of Chinese laborers to procure the required certificate where it was a physical [**18]  impossibility for them to obtain it; and it is impossible for me to believe, under the circumstances, that congress intended to arbitrarily exclude that class in direct violation of the express terms of the treaty protecting them. Congress had declined to enact any such legislation as is contained in the restriction act while the Burlingame treaty was in force, for the reason that it would be an act of bad faith on the part of the United States towards China, and a direct violation of the solemn stipulations of the treaty between the two governments. The United States went to the trouble and expense, and incurred the delay, of sending a special mission, composed of three distinguished gentlemen, to China, for the express purpose of procuring a modification of the Burlingame treaty, in order to enable the United States to adopt the legislation now in question, without committing an act of bad faith towards China, and without violating the treaty stipulations between the two nations. A treaty was made with the modification sought by us, which was ratified by, and apparently satisfactory to, both nations. And the modified treaty, in  [*798]  express and the most explicit terms,  [**19]  protected the class in question in their right to remain in the United States, or 'to go and come of their own free will and accord,' and also provided that they 'shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nations.'
国会不可能意图要求那类中国劳工必须取得所需的证书，而当时他们实际上不可能获得该证书；在这种情况下，我无法相信国会意图任意排除该类劳工，直接违反保护他们的条约的明确条款。国会在《伯灵格姆条约》有效期间拒绝通过《限制法案》中包含的任何此类立法，原因是这将是美国对中国的不诚信行为，也是两国政府之间条约庄严条款的直接违反。美国费心费力，花费时间和费用，派遣由三位杰出绅士组成的特别使团前往中国，明确目的是为了促成《伯灵格姆条约》的修改，使美国能够通过现行争议中的立法，而不对中国不诚信，也不违反两国之间的条约条款。 我们所寻求的修改内容达成了一项条约，该条约已由双方国家批准，并显然令双方满意。修改后的条约在[*798]明确且最明确的条款中，[**19]保护了相关群体在美国境内居留的权利，或“自由意愿和同意下的来去自由”，并且还规定他们“应享有最惠国公民和臣民所享有的所有权利、特权、豁免和免税待遇。”

"It is expressly stipulated in the supplementary treaty 'that the legislation in regard to Chinese laborers will be of such character only as is necessary to enforce the regulation, limitation or suspension of emigration,' and that 'the limitation, or suspension shall be reasonable.' Conceding the legislation requiring Chinese laborers departing from the United States after the passage of the act in question, and having an opportunity to do so, to procure and produce the required certificate to be 'necessary' and 'reasonable,' still such a requirement, as to those who departed after the date of the treaty, and before the passage of the act, or before it was practicable or possible to obtain the certificate, could neither be necessary nor reasonable. If congress then intended by this act to make this provision, requiring the prescribed certificates, applicable to those [**20]  Chinese laborers who were in the United States at the date of the treaty, and who left before the passage of the act of May 6, 1882, -- before it was possible to obtain the certificate, -- or intended to altogether exclude those already departed, then it was the deliberate intention of congress to act in bad faith towards the government of China, and to violate the solemn obligations of the very treaty it had taken so much pains to obtain, in order to enable it to honorably legislate at all upon the subject. Why take all this trouble to negotiate a treaty, if it was intended, at last, to flatly disregard it, and legislate in direct violation of its most solemn and vital stipulations? Congress might, with just as much propriety, have ignored and disregarded the Burlingame as the supplemental treaty. There would be just as much propriety in wholly repudiating the treaty, as to repudiate it in this vital part, which the Chinese government took care to have inserted. It would be to the last degree absurd, under the circumstances, to suppose for a moment that congress intended to make the provisions of sections 3 and 4, relating to certificates, applicable to the class of Chinese laborers [**21]  referred to. We cannot attribute to congress a deliberate intention to commit any such act of bad faith, without provisions manifesting such a purpose, far more explicit than any found in the act. It would be disrespectful to that body, if not absolutely indecent, to attribute to it such an act of bad faith.
补充条约中明确规定，“关于华工的立法仅限于执行移民的规章、限制或暂停所必需的性质”，并且“限制或暂停应当合理”。即使承认在相关法案通过后，要求离开美国的华工有机会取得并出示所需证书是“必要的”和“合理的”，但对于那些在条约生效日期之后、法案通过之前或尚无法获得证书之前离开的人来说，这样的要求既不必要也不合理。 如果国会当时通过这项法案，意图使这一规定——要求提供规定的证书——适用于那些在条约签订之日已在美国境内、但在 1882 年 5 月 6 日法案通过之前离境的[**20]中国劳工——在当时还无法获得证书——或者意图完全排除那些已离境者，那么国会就是故意对中国政府采取不诚信的态度，违反了它费尽心思才促成的条约中庄严的义务，以便能够体面地立法处理此事。既然如此，为什么要费尽心思去谈判一项条约，如果最终打算公然无视它，立法时直接违反其最庄严和最重要的条款？国会完全可以像无视补充条约一样无视伯灵格姆条约。完全否认条约与否认条约中中国政府特别要求加入的这一重要部分，其合理性是一样的。 在这种情况下，假设国会打算将第 3 和第 4 条款中关于证书的规定适用于所提及的华工阶层，是极其荒谬的。我们不能认为国会有故意实施任何此类不诚信行为的意图，除非有比该法案中任何条款更明确显示此目的的规定。将此类不诚信行为归咎于国会，不仅是不尊重该机构，甚至是极不体面的。

"Again, the same section which requires the certificate gives to the departing Chinese laborer an absolute, indefeasible right, without cost or expense, to have the certificate, in order that he may be able to produce it as evidence of his right to re-enter the United States. The necessity to produce it, and the right to have it, in order that he may produce it, are correlative conditions. The one provision is the complement of the other: they are reciprocal and must go together. The obligation to produce the certificate presupposes the practicability, or at least the possibility, of procuring it in order that it may be produced. The two provisions go together and form but one legal conception. The obligation to produce, and the right and ability to obtain it, are dependent, and not independent, conditions. One is the counterpart of the other, and it is not to [**22]  be supposed that congress would have adopted one branch of the proposition without the other, otherwise it would have distincty done so in terms. If, then, it is impossible to comply with the condition, the impossible condition must be regarded as not intended as to this class of laborers; or, if intended, it must be void. The law requires nothing impossible, -- lex non cogit impossibilia; Bouv. Law Dict. 'Maxims;' Broom, Max. 242; and lex non intendit aliquid impossibile, (Bouv. Law Dict.,) -- the law intends not anything impossible, -- are among the most venerable maxims of the law. In a statute, 'no text imposing obligations  [*799]  is understood to demand impossible things.' Sedg. St. Law, 191. 'Provisions in acts of parliament are to be expounded according to the ordinary sense of the words, unless such construction would lead to some unreasonable result, or be inconsistent with or contrary to the declared or implied intention of the framer of the law, in which case the grammatical sense of the words may be modified, restricted, or extended to meet the plain policy and provision of the act.' Dwar. St. 582. The rule is to construe the words 'in their ordinary sense,  [**23]  unless it would lead to obscurity or manifest injustice, and if it should so vary them as to avoid that which certainly could not have been the intention of the legislature, we must put a reasonable construction upon the words.' Id. 587. See Donaldson v. Wood, 22 Wend. 399; Lake Shore Ry. Co. v. Roach, 80 N.Y. 339.
同样，要求出示证书的同一条款赋予离境的中国劳工绝对且不可撤销的权利，无需任何费用或开支，即有权获得该证书，以便他能够将其作为重新进入美国权利的证据。出示证书的必要性与拥有证书的权利是相互关联的条件。一个条款是另一个的补充：它们是相互的，必须同时存在。出示证书的义务预设了获得证书的可行性，或至少是可能性，以便能够出示。两项规定相辅相成，构成一个法律概念。出示义务与获得权利和能力是相互依赖的条件，而非独立的条件。一个是另一个的对应部分，不应假设国会会采纳命题的一部分而不采纳另一部分，否则国会会明确用语言表达出来。 如果因此无法遵守该条件，则该不可能的条件必须视为对这类劳工不适用；或者，如果适用，则该条件无效。法律不要求不可能的事情——lex non cogit impossibilia；Bouv. 法律词典“格言”；Broom，格言 242；以及 lex non intendit aliquid impossibile，（Bouv. 法律词典）——法律不意图任何不可能的事情——这些都是法律中最古老的格言之一。在一项法规中，“没有任何条文被理解为要求不可能的事情。”Sedg. 立法法，191。“议会法案中的条款应根据词语的普通含义进行解释，除非这种解释会导致某些不合理的结果，或与法律制定者的明示或暗示意图不符或相悖，在这种情况下，可以修改、限制或扩展词语的语法含义，以符合该法案的明确政策和规定。”Dwar. 立法法，582。 规则是将“词语按其普通含义解释，[**23] 除非这样做会导致含糊不清或明显的不公正，如果必须因此改变词义以避免立法机关肯定不可能有的意图，我们必须对词语作出合理的解释。” 同上，第 587 页。参见 Donaldson v. Wood, 22 Wend. 399；Lake Shore Ry. Co. v. Roach, 80 N.Y. 339。

"'All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over the letter.' U.S. v. Kirby, 7 Wall. 486. 'In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect. * * * To require a heavy and almost impossible condition to the exercise of this right, with the alternative of payment of a small sum of money, is, in effect, to demand payment of that sum.' Henderson v. Mayor of New York, 92 U.S. 268. See, also, Brewer v. Blougher, 14 Pet. 198; U.S. v. Freeman, [**24]  3 How. 564. So in the case of the class of Chinese laborers now under consideration. To require them to produce a certificate as the only evidence of their right to land, when it was impossible or impracticable to procure it, would be, in effect, to absolutely and unconditionally exclude them. Yet it is manifestly the policy, intent, and reason of the law to carry out in good faith the stipulations of the treaty, that they 'shall be allowed to go and come of their own free will and accord;' and 'be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation.' We are, therefore, fully satisfied that those Chinese laborers who were in the United States on November 17, 1880, and left before the passage of the restriction act, and those, also, who came into the United States and departed therefrom between that date and May 6, 1882, are entitled to re-enter the United States upon satisfactory evidence other than the certificates provided for in said section 4."
“所有法律都应当得到合理的解释。一般性条款的适用应当有限制，以免导致不公正、压迫或荒谬的结果。因此，总是假定立法机关意图对其语言作出例外，以避免此类结果。在此类情况下，法律的理由应优先于文字。”——美国诉 Kirby 案，7 Wall. 486。“无论法规以何种语言制定，其目的必须通过其自然且合理的效果来确定。* * * 要求行使此权利必须满足一个沉重且几乎不可能的条件，或者选择支付一小笔钱，实际上就是要求支付这笔钱。”——Henderson 诉纽约市长案，92 U.S. 268。另见 Brewer 诉 Blougher 案，14 Pet. 198；美国诉 Freeman 案，[**24] 3 How. 564。对于目前讨论的这类中国劳工案件亦是如此。要求他们出示证书作为其土地权利的唯一证据，而当获取证书不可能或不切实际时，实际上就是绝对且无条件地将他们排除在外。 然而，法律的政策、意图和理由显然是善意地执行条约的规定，即他们“应被允许自由意愿和同意地来去”；并且“应享有最惠国公民和臣民所享有的所有权利、特权、豁免和免除。”因此，我们完全确信，那些在 1880 年 11 月 17 日之前在美国的中国劳工，并且在限制法案通过之前离开的人，以及那些在该日期与 1882 年 5 月 6 日之间进入美国并离开的人，只要提供除该第 4 条规定的证书以外的令人满意的证据，有权重新进入美国。

The foregoing was said with reference to the act of 1882 before its amendment, but it applies with even greater force to the act as amended [**25]  in 1884.

In Ah Quan's Case, arising under this act, as amended in 1884, after a further discussion of this point, as applicable to the act as amended, we stated our conclusion as follows, (21 FED. REP. 184:)

"To hold that congress intended to require the performance of the dependent obligation, on the part of the Chinese laborer, until the government has discharged its correlative and precedent duty and obligation, upon which his obligation rests, imposed by the act, by furnishing the certificate, and thereby rendering it possible for him to produce it, would be to attribute to congress a deliberate intent to enact a palpable and glaring absurdity, thereby violating one of the most venerable canons of statutory construction, that a statute must not be so construed as to lead to an absurd conclusion. We must conclude, therefore, in the absence of any express declaration to that effect, and of any reference whatever to those who had already departed, with a right, at the time of their departure, secured by express terms of the treaty, to return, that it was not intended to require the production of the certificate by those  [*800]  who departed from the country before it [**26]  was possible to obtain it. And, in the absence of any provision so declaring, that congress did not, in fact, intend to exclude such Chinese laborers as were in the country at the time mentioned, is clearly manifest, because it has said so in express terms in the provision of section 3, 'that the two foregoing sections [excluding Chinese laborers] shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, 1880,' etc. It is clear, from the necessities of the case, that this section is only applicable to those who departed after the passage of the act, and who had the opportunity to procure the certificate. To hold otherwise would be to render this clause, making the impossible certificate the only evidence as to those who had departed before the passage of the act, absolutely inconsistent with the clause of section 3 referred to, that the preceding sections 'shall not apply to Chinese laborers who were in the United States' at the designated period, and render that provision wholly nugatory, as well as to violate the treaty which the act proposes to execute and not to abrogate. The different provisions of the statute must be so construed,  [**27]  if possible, that they can stand together, and not so as to nullify each other. The clause of the amendment making the certificate the only evidence, as to those to whom it is applicable, of a right to re-enter the United States, only declares in express and explicit terms what we held the original act to mean, and in no way changes its effect in this particular as we had construed it.

"Our construction of the original act in Leong Yick Dew, 19 FED. REP. 491, was before congress at the time of the passage of the amendatory act. If it had been intended to make the amendment as to the prescribed certificate being the only evidence of a right to return applicable to those Chinese laborers who were in the country at the date of the treaty, and who departed after that date, and before it was possible to obtain the certificate required, as to whom we had before distinctly held it to be inapplicable, congress would certainly have amended the first clause of section 3 so as to read in substance as follows: 'The two preceding sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, 1880, etc., except as to those who departed  [**28]  from the United States after said seventeenth day of November, 1880, and before the passage of the act, or before it was possible to obtain such certificate.' This is, in effect, the way those who insist upon the production of such certificate by that class as the only evidence of their right to re-enter the United States must read it, in order to sustain their view, or the view that it was intended absolutely to exclude that class in violation of the treaty stipulations. Congress has not introduced any such exception, and we are not authorized to interpolate it into the act. To do so would be to legislate, not to construe. The action of congress in not introducing any exception of the kind indicated, but, on the contrary, so amending the act as to make the propriety of our construction more clearly manifest, in view of our well-known previous construction of the original act on this very point, is, in effect, an emphatic approval of that construction."

See, also, the case of Shong Toon, 21 FED. REP. 386, where this question is well discussed by HOFFMAN, district judge.

Another shade of the opposing views maintained by the United States attorney, but essentially the [**29]  same, has been suggested, which necessarily assumes that section 4 does not apply to those who departed prior to the passage of the act of 1882. It is that congress did not intend that any of these Chinese laborers who were in the country on November 17, 1880, who had departed before the passage of the act of 1882, or, in other words, who were not still in the country at that date, should return at all, and consequently that there was  [*801]  no need of requiring as to them the certificate prescribed by section 4 or any other. There is not one word in the act that directly declares or hints at such a purpose, and not one section, clause, or word from which an inference of such intent necessarily or naturally arises; nor does it necessarily or naturally arise upon the whole act taken together. On the contrary, the opposite intent, as we have seen, is expressed in precise and unmistakable language, that cannot be misunderstood, in that clause of section 3, which provides "that the two foregoing sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, 1880, or who shall come into the same before ninety days next after the [**30]  passage of the act to which this is amendatory." This language embraces every individual member of the class to which it refers, no matter whether he was in the country at the time of the passage of the act or not, and its force and effect cannot be limited except upon some vague, imaginary inference of a purpose not justified by anything found elsewhere in the act. The only supposed ground for the inference suggested, not already noticed, arises out of sections 5 and 12.

Section 5 provides "that any Chinese laborer mentioned in section 4 of this act, being in the United States, and desiring to depart from the United States by land," shall be entitled to demand and receive a certificate similar to those given to those departing by water, etc. The limitation is expressly restricted to the class provided for in section 4; that is, those, necessarily, who depart after the passage of the act. It is suggested that this clause, "being in the United States," indicates that it was only intended that those allowed to return are only such of those who were in the United States on November 17, 1880, as were still remaining in the United States at the date of the passage of the [**31]  act, and that the first clause of section 3 should read: "That the two foregoing sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, 1880, and who are still in the United States at the date of passage of this act." I do not draw any such inference from that clause of section 5, either taken alone or in connection with any other provisions of the act. Congress has not inserted in section 3 any such clause as "who are still in the United States at the date of the passage of this act," or any equivalent language. To insert such language would be to change the entire scope of the provision. As congress has not seen fit to insert words so largely limiting the number embraced in the language of section 3 as actually used, we certainly are not authorized to legislate and insert it. The inference I draw, on the contrary, is that in this section it appears by the express terms of the provision that it was only intended to require those who were in the country at the date of the passage of the act, and who could comply with the act, to procure the certificates and produce them on their return; or, in other words, it expressly [**32]  sanctions what I have endeavored to maintain  [*802]  the true construction of section 4 to be; that its provisions were only intended to be applicable to those who still remained in the country at the date of the passage of the act, and no provision at all is made as to what evidence those who departed before the passage of the act shall produce, and they are left to the usual evidence recognized as competent by the general laws of the land. This clause, as I think, confirms instead of opposes the view which I have adopted and endeavored to maintain. Neither the provisions of section 4 nor 5 apply to those who departed before the passage of the act, but are limited to those who were in the country at the date of its passage, and were, in fact, able to comply with its terms, and no other view can be sustained without incorporating into sections 3 and 4 language not used or authorized by congress, -- without further amending the act.

From the fact that section 4 prescribed a certain certificate to be procured and produced on return by those Chinese laborers who were in the country at the date of the treaty and departed after the passage of the act, and who could procure and [**33]  produce it; and from the fact that such parties are required to procure and produce said certificate -- the certificate issued to that class of Chinese laborers -- as the only permissible evidence of their right to return; and from the further fact that nothing is said as to what kind of evidence shall be produced by all those Chinese laborers who were residing in the country on November 17, 1880, and who left before May 6, 1882, and who, under the treaty, and under the express provision of the first clause of section 3 of the act itself, are entitled to return, -- it is sought to draw the inference that congress intended that those very Chinese laborers mentioned in the treaty, and the first clause of said section 3, as being entitled to return, who had departed before May 6, 1882, should not be permitted to return at all. I do not, myself, perceive how such an inference or conclusion can be drawn from such premises. There is nothing in the least respect inconsistent in the two ideas: (1) That those who had departed before the passage of the act of 1882, to whom it would be impracticable to apply any other rule as to the competency of evidence, or to require any other [**34]  kinds of evidence than those recognized by the general law of the land, should not be required to produce any other kind of evidence; and (2) the idea that those who departed after the passage of the act, and who could procure the more certain prescribed certificate, should be required to procure and produce such certificate. The conditions of the two classes are radically different, and different conditions require, or at least admit of, different treatment and different rules. The rules applicable to these two conditions in no way interfere with each other. They can stand, and, consistently, operate together; and the fact that congress has prescribed a certain certificate for parties entitled to re-enter the country, to whom they are, practically, applicable, under certain conditions in which they are found, affords no inference that congress, by so providing for such conditions and such  [*803]  parties, and saying nothing about another class, surrounded by different conditions, equally entitled to re-enter under the express provisions of the same act and treaty, to which class a requirement to produce a similar certificate cannot possibly be made practically applicable, were [**35]  intended by congress to be excluded altogether. Especially is no such inference afforded where the general rules of evidence applicable are practicable and effective as to such latter class. I am not aware that any statutory provision was ever held to be repealed, abrogated, nullified, or in any way rendered ineffectual by some other provision in the same act, saying nothing at all about it, in no way inconsistent with it, and practically or possibly applicable, only, to other parties and other conditions. I am not aware of any rule of statutory construction, justifying such an inference, not naturally arising out of the conditions, or such an implied abrogation of another express provision of an act. Section 3 expressly provides that "the two foregoing sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, 1880. * * * Nor shall said sections apply to Chinese laborers who shall produce" the certificate provided by section 4, for those to whom its provisions can be made applicable shall apply neither to one "nor" the other. What is the purpose or use of the first branch of this provision, if, because, congress [**36]  provided no kind of evidence other than that recognized by general provisions of law, and said nothing about the evidence as to them, it is to be inferred from the provisions for certain evidence for the second class that it was intended that all of the first class who departed before the passage of the act, and who were, therefore, not included in the second class, were to be altogether excluded, and those of the second class were, after all, the only ones intended to be permitted to re-enter the United States at all? Some effect must, certainly, be given to the first as well as to the second class of section 3. It is as clear and specific as the second, and cannot be misunderstood. It must stand, or be overruled and abrogated by an inference not necessarily or even naturally arising out of the conditions. But none can be given it, if it is to be inferred, from the provision of a specific class of evidence for the second class, that the first are to be altogether excluded. I confidently maintain that no such inference can be justified by any established rule of statutory construction, or without ignoring and utterly disregarding the unmistakable meaning of language, -- without [**37]  amending instead of construing it. It is the first time in my experience that an express, clear, and explicit provision of a statute has been claimed to have been annulled by a subsequent provision relating to another class of subjects, in no way referring to the clause claimed to be abrogated, and not in the slightest degree inconsistent with it.

Some support to the inference sought to be drawn from section 5 is also attempted to be drawn from the first clause of section 12, providing "that no Chinese person shall be permitted to enter the  [*804]  United States by land without producing to the proper officer of customs the certificate in this act required of Chinese persons seeking to land from a vessel." This is only the complement or counterpart of section 5 out of place. Although broad in its terms, it is evidently intended to refer only to the certificate provided for in section 5 to be issued to those departing by land after the passage of the act, like the provisions of section 4, applicable to those provided for in that section. The two provisions of sections 5 and 12 must be read together. It would seem to have been forgotten in draughting section 5, and [**38]  afterwards inserted out of place with other provisions not properly germane to it. Besides, by its express terms, it only applies to passengers who enter "by land," and cannot be extended beyond its terms. It can do little to support an inference that has no other basis whatever upon which to rest, and it certainly does not authorize us to interpolate a clause into section 3 greatly limiting its scope, and which congress itself did not enact.

The question directly presented in this case is whether a Chinese laborer who was in the United States at the date of the treaty, but departed therefrom before the passage of any law requiring him to procure a return certificate, must now, under the provisions of section 4 of the amended act of 1884, be denied the right to land, for failure to procure the certificate required by that section, or whether he can be permitted to land at all. But the construction of the amended act contended for by the United States attorney, and which seems to be adopted by the circuit justice, will not merely affect the rights of those alone who departed from the United States prior to the passage of the act of May 6, 1882. The language of the fourth section [**39]  of the act is deemed, by the circuit justice, so peremptory that it absolutely prohibits the landing of all laborers who shall fail to produce the certificate therein required, although such prohibition may be in clear violation of rights solemnly guarantied by the treaty of November 17, 1880. But, if such be the true construction to be given to the section in question, it will exclude from the United States those Chinese laborers who have departed after obtaining the certificate required by the act of 1882, for they, like those who departed before the passage of any law on the subject, will be unable to produce the certificate required by the amendatory act of 1884. The custom-house authorities have hitherto, and since the passage of the act of 1884, allowed Chinese passengers to land who produced certificates issued in conformity with the provisions of the act of 1882, on the ground that the faith of the nation was pledged to allow the return of those Chinese laborers who left the United States while the act of 1882 was in force, and who complied with its requirements.

But if the ruling of the presiding justice is to prevail, the certificate issued under the act of 1882 will,  [**40]  in my judgment, upon that construction, no longer be available, and all those Chinese who departed from the country during the two years or more from June 6, 1882, to  [*805]  July 5, 1884, relying upon the certificates issued by the collectors authorizing their returu, who have not already returned, must be excluded. It may be said that these certificates are similar in substance to those required by the act of 1884. This is, to a certain extent, true. But they are not identical. They differ in some essential particulars. The latter certificates, unlike those provided for by the act of 1882, are required to contain the statement of "the individual family and tribal name" (of the laborer) in full, and "his occupation when and where followed." The certificate is to be "issued in the name of the collector, and attested by his seal of office, * * * and said certificate shall be the only evidence permissible to establish his (the laborer's) right of re-entry." It will be seen that this certificate differs essentially from that provided for by the act of 1882, embracing other particulars not require under the original act; and, if the last clause I have quoted [**41]  is to be held to be applicable to all returning laborers who left the United States before the passage of any law on the subject of certificates, it must also be held to apply to all laborers who fail to produce the "said certificate" in that section described and require. I know not by what authority we can hold the law applicable to all returning laborers, and at the same time admit laborers who produce, not the certificate required by the existing law, but a certificate containing less, and which is essentially different, issued in conformity with a repealed and superseded law. If congress is to to be deemed to have violated or disregarded the stipulations of the treaty with China, it must also be deemed to have violated the implied pledge given in the law of 1882, that those who should leave the United States after fully complying with its provisions should be allowed to return. Those who received the certificates issued during a period of two years, under the act of 1882, and departed upon the faith of the law and the treaty, who have not yet returned, are no more excepted under the law, as amended in 1884, than are those who departed between the dates November 17,  [**42]  1880, and May 6, 1882, relying on the assurances of a right to return contained in the then existing treaty and laws; and they must also be excluded. If congress is capable of such acts of bad faith as are shown in the passage of the original and amendatory acts, upon the construction given them by the presiding justice, then it must be capable of repeating these acts of bad faith at each recurring session, and thereby annually cutting off a considerable portion of those who left with a right to return guarantied to them by both the treaty and the law in force, and there is nothing in the treaty, the law, or the good faith and honor of the nation, upon which these people can rest in security. If it had been the intention to violate the specific terms of the treaty which secured the right to those Chinese laborers who were in the United States at the date of the treaty "to go and come of their own free will and accord," by excluding from returning all those who departed for temporary purposes upon the faith of the treaty prior to the passage of the act of  [*806]  1882, congress would certainly have acted in a manly way, and expressed that intention boldly, openly, and by plain [**43]  and direct language which could not be misunderstood.

In the language of the district judge in Shong Toon's Case, supra: "Can it be contenided that any court should so construe this act -- if such construction could by possibility be avoided -- as to impute to congress, when legislating 'to execute certain treaty stipulations with China,' and while affecting to acknowledge rights secured by the plain language of the treaty, the intention to attach, by retrospective and essentially ex post facto legislation, conditions precedent to the exercise of that right which it was impossible to perform, and to enact that the non-performance of those conditions should forfeit the right? And this construction we are asked to give to a law which discloses a most scrupulous solicitude on the part of congress to avoid even the appearance of retrospective legislation; for it provides that the sections prohibiting the coming to the United States of Chinese laborers, not only shall not apply to Chinese laborers in the United States at the date of the treaty, but also to those who might come into the United States before the expiration of ninety days next after the date of the passage of the [**44]  law, thus protecting from its operation not merely Chinese laborers in transitu, but laborers who might leave China before the expiration of a period of time reasonably sufficient for notice of the law to reach that country. It appears to us very plain that, by adopting the construction contended for, we should, in effect, accuse congress of gross disingenuousness, or of utter disregard of a treaty stipulation, to the observance of which the national honor was pledged." In legislation respecting rights expressly secured by solemn stipulation in a treaty sought and obtained by ourselves, affecting the good faith and honor of the United States, I cannot imputed to Congress a purpose to --

"Palter in a double sense,

That keeps the word of promise to the ear,

And breaks it to the hope."

It is insisted, also, that it must be presumed that all who departed before May 6, 1882, have returned, and, at all events, they have now had a sufficient time to return, and ought not any longer to be permitted to return. If this were so, it could not affect the construction of the act. The act was as broad in its terms on the day of its passage as it is now; and it affected those who departed [**45]  the day before its passage, as well as those who left a year before. The act has made no distinction and no exception on the ground of lapse of time. It might as well be insisted that one who goes away with the proper certificate shall not return after the lapse of a year or two years, where the law prescribes no such limitation. Neither the treaty nor the law prescribed any limitation as to the time when those who departed before May 6, 1882, should return. It would doubtless be proper for congress to provide that both of those who departed  [*807]  without certificates before the passage of the act, and those who depart after its passage with certificates, shall exercise their right to return within some specified time, upon giving them a reasonable time to return after the passage of the act before it should be enforced against those already gone under the prior existing laws. Such a provision would doubtless be reasonable within the provisions of the treaty, and not in conflict with its provisions. But no such provision has been made, and the courts are not authorized to introduce one into the act. Nor, in the absence of such a provision, can lapse of time since the departure [**46]  with the vested rights under the treaty and laws, as they existed at the time of leaving, afford any aid in the construction of the act, as it was actually passed.

For the reasons stated I am satisfied that the provisions respecting certificates in section 4 of the amended act have no application whatever to these Chinese laborers who were residing in the United States on November 17, 1880, and who afterwards departed prior to May 6, 1882; that they were not intended by the act in question to be excluded from the country for want of such certificate, or on any other grounds; and that such Chinese laborers are entitled to re-enter the United States upon their return, upon other satisfactory evidence, without producing the certificate prescribed by said section.

There is no possible difficulty or inconsistency in applying the ordinary rules of evidence to those who departed prior to May 6, 1882, as to whom no specific evidence has been prescribed, and in insisting upon the certificate prescribed for those who departed after the restriction act, and to whom this restriction is practically applicable, without abrogating the right secured to them both by the treaty and section 3 of [**47]  the law. And I have no doubt that it was the intention of congress to limit the certificate prescribed by section 4 to the latter class, and leave the former to be governed by the ordinary rules of evidence. The construction I have given to this law not only reconciles the legislation with the observance of the plighted faith of the nation, but it carries out and effectuates the object of the treaty and the law. The evil to be remedied was the continued, unrestricted immigration of Chiness laborers. It was recognized that rights of those who were already here were secured by the Burlingame treaty and international law. No proposition for the expulsion, directly or indirectly, would have been made by the United States, or entertained by the Chinese government; nor, if made and admitted, would it have received the sanction of congress. Both the treaty and the law recognized these rights, and the legislation was directed solely against any further addition to the numbers of the Chinese then here, or who should come within 90 days after the passage of the act. This object, the law in its practical operation, has been attained. Not only has there been no accession to the number [**48]  of the Chinese in this country, but the statistics of the custom-house show that, during the 28 months which have elapsed since the passage, the number of departures  [*808]  exceed the number of arrivals by 12,000. Not only, therefore, has the number of the Chinese on this coast not increased, but it has been diminishing (after making due allowance for those who may have clandestinely crossed the northern boundary of the United States) at the rate which ought to satisfy the sturdiest opponent of this class of laborers, -- a rate which could not be largely increased without serious disturbance to the industries of this coast. But, even if this were not so, there is a price too high to be paid, without absolute necessity, in any case, for the exclusion of Chinese laborers, and that price is the national honor. And especially, when, as I have shown, the plighted faith of the nation may be kept without impairing the effectiveness and satisfactory operation of the law. By the construction here adopted, also, the treaty and the law are in harmony; and the various provisions of the act are consistent and in accord with each other. But, on the construction insisted upon by the United [**49]  States attorney and sanctioned by the presiding justice, the treaty and the law conflict, and various provisions of the restriction act itself are inharmonious and inconsistent with each other.

I therefore dissent from the decision of the presiding justice, and from the order remanding petitioner.