These are appeals from judgments of the United States district court confirming decisions of a commissioner, and adjudging that the appellants be removed from the United States to China. Chin Bak Kan v. United States, 186 U.S. 193, 46 L. ed. 1121, 22 Sup. Ct. Rep. 891. The commissioner decided that each of the appellants was a Chinese laborer found without certificate of residence, as required by law, within the United States, and was not entitled to remain within the United States. The facts may be summed up as follows: The appellants were arrested in July, 1902, when working in laundries, they all having failed to produce certificates of residence when called upon to do so by the Chinese inspector. At the hearing before the commissioner they offered testimony of witnesses other than Chinese that they were residents of the United States on May 5, 1892. Ah How and Chu Do put in evidence that they were not laborers. Yung Lee offered evidence of illness, which he contended made him unable to procure his certificate. Chu Do offered parol evidence that he was born in the United States, and therefore was a citizen, and also that he was a minor during the time allowed by the statute for obtaining a certificate. Lew Guey offered similar evidence and a certificate of another United States commissioner of a hearing before him and an adjudication that Lew Guey had the right to remain in the United States by reason of being a citizen thereof. The United States offered no evidence beyond the facts stated above.
The ground of appeal common to all the cases is that §§ 3 and 6 of the act of May 5, 1892, 27 Stat. at L. 25, chap. 60, (U.S.C.omp. Stat. 1901, p. 1319), have been repealed. By § 3 any Chinese person arrested under the provisions of the act shall be adjudged to be unlawfully within the United States unless he shall establish by affirmative proof, to the satisfaction of the judge or commissioner, his right to remain. Of course, if the burden of proof was on the appellants, the commissioner and judge might not be satisfied by the affirmative evidence produced. We are not asked to review the finding of fact. See Fong Yue Ting v. United States, 149 U.S. 698, 714, 715, 37 L. ed. 905, 913, 13 Sup. Ct. Rep. 1016. But it is argued that this section is done away with by § 1 of the act of April 29, 1902, chap. 641, 32 Stat. at L. 176, continuing all laws then in force, 'so far as the same are not inconsistent with treaty obligations.' It is said that the section is inconsistent with article 4 of the treaty of December 8, 1894, 28 Stat. at L. 1210, agreeing that Chinese laborers, or Chinese of any other class, either permanently or temporarily residing in the United States, shall have, for the protection of their persons and property, all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens. It is pointed out that the treaty of 1894 with Japan [29 Stat. at L. 848] and the treaty of 1859 with Paraguay [12 Stat. at L. 1087] give the rights and privileges of native citizens to the subjects of those countries in access to the courts and in the defense of their rights, and it is said that the law as to the burden of proof cuts down those privileges and rights. The section has been upheld, however, by this court, since the treaty, and after the passage of the act. Chin Bak Kan v. United States, 186 U.S. 193, 200, 46 L. ed. 1121, 1125, 22 Sup. Ct. Rep. 891; United States v. Lee Yen Tai, 185 U.S. 213, 46 L. ed 878, 22 Sup. Ct. Rep. 629. It is not repealed by the laws of 1902. The clause of the treaty had a different object, and in view of the difficulties encountered in such an investigation, it could not have been supposed to promise that special measures theretofore taken should not be continued in force for the purpose of ascertaining the very question whether the laborers were lawfully residing in the United States or not. See Fong Yue Ting v. United States, 149 U.S. 698, 730, 37 L. ed. 905, 919, 13 Sup. Ct. Rep. 1016. But it is enough to say that the treaty itself, in article 5, expressly refers to the act of 1892 as amended by the act of 1893, and states that the Chinese government will not object to the enforcement of those acts.