of usages to explain and add to contracts, we find nothing repugnant to this policy, or to any settled rule of law, which should oblige us to reject absolutely the proof of such a usage. It is not so unreasonable as the usage in Savings Bank v. Ward, 100 U. S. 295, which purported to make an attorney contract with all the world for an indefinite period. But, on the other hand, we do find that the addition of an arbitrary authority to a person other than the principal, to receive a notice which is to annul the contract, should be proved by the most clear and unequivocal evidence, and be brought home to the actual knowledge of the plaintiff or defendant who is to be bound by it. The question, then, is whether the rejection of the evidence should require us to grant a new trial. The offer of proof may not have contained all that the defendantE: could have produced if the ruling had been less absolute in rejecting the usage. The fact, if it be one, that the plaintiff had once held a policy which was afterwards cancelled by notice to his brokers, would, in this connection, be highly important. It was not offered with this view, but it may be so used on a second trial. We think it fairer to open the case upon this question of agency, though upon this only; and it is so ordered.
UNITED STATES V.
(Circuit Court, D. Mas.achu8ett8. August 18, 1883.)
.. CUDIESE LAllORERS"-ACT OF lIIAY
6,1882. The term" Chinese lahorers," as used in the act of congress of ]lray 6, 1882, .. to execute the treat.\' stipulations relating to the Chinese" contained in the treaty of 1bG8, as modified by the treaty of 1880, must have the same signification as when used in the treaty, and must be held to mean the subjects of the government of China to which the provisions of the treaty relate; and the inhi. bitions of the act cannot be construed to exclude from our shores laborers who are Chinese by race and language, but who are not, amI never were, subjects of the emperor of China. or resident within his dominions.
Informatiou. elias. Almy, Jr., Asst. U. S. Atty., for the United States. Frank GOOdICill, for Douglas. Before LOWELL and NELSO:', JJ. NELso:" J. This is an information against the master of the British bark Eme, for bringing and landing within the port of Boston one Ah Shong, alleged to be a Chinese laborer, contrary to section 2 of the act of congress of May 6, 1882, which makes it a misdemeanor punishable by fine and imprisonment for the master of any vessel to "knowingly bring within the United States on such vessel, and to land or permit to be landed, any Chinese laborer from any foreign port or place."
UNITED STATES V. DOUGLAS.
The defendant has pleaded guilty to the information, subjed to the opinion of the court whether, upon certain facts which the parties agree to be true, and desire to submit to the court for determination in this form, the offense with which he is charged has been committed. The material facts, so far as they bear upon the point decided, are as follows: Ah Shong, the alleged Chinese laborer, is Chinese by race and language, as well as in appearance and dress; but he has never been a subject or li\'ed in the dominions of the emperor of China. He was born of Chinese parentage, in the island of Hong Kong, after its cession by China to Great Britain in 1842,1 and he is now, and has been from his birth, a subject of the queen of Great Britain. He was shipped by the master in December last at Manilla as a carpenter, under shipping articles by which he was to serve in that capacity until the return of the vessel to her port of discharge in the United Kingdom, the voyage not to exceEd two years. The vessel arrived in Boston on June 8th, with Ah Shang on board. On June 19th he left the vessel without leave of the master and came ashore, taking all his effects with him, and he has since refused to return on board the vessel. He was sub· sequently paid off and discharged. It is unnecessary to consider whether, upon these facts, the defendant can be said to have landed, or permitted to be landed, the man Ah Shong, for we are of opinion that upon another ground the defendant should be discharged. Another question is presented for our deter. mination, which is this: Whether, by the act of lIIay 6, 1882, congress intended to exclude from our shores laborltrs who are Chinese by race and language, but who are not and never were subjects of the emperor of China, or resident within his dominions. To arrive at the true construction of this act of congress it is necessary to refer to the treaties existing between this country and China at and previous to its passage. In the fifth article of the treaty of July 28, 1868, known as "the Burlingame treaty," the parties thereto declare that "they cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of free migration and emigration of their cit· izens and subjGcts, respectively, from the one country to the other for the purposes of curiosity, of trade, or as permanent residents." In the sixth article they agree that "citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities, and exemptions, in respect to travel or residence, as may be there enjoyed by the citizens or subjects of the most favored nation; and, reciprocally, Chinese subjects visiting or residing in the United States shall enjoy the same privileges, immunities, and exemption, in respect to travel or residence, as may there be enjoyed by the citiz.enf' o£ dubjects of the most favored nation." These provisions of the Burlingame treaty remained in force be1 IIcrtslet's
Treaties, vol. 6, p. 222.
tween th\ two countries until the conclusion of the supplementary treaty of November 17, 1880, concerning immigration. By the new treaty, the absolute right previously granted to all subjects of the Chinese government, with,1ut distinction of class, to immIgrate to and reside in this country, was materially modified and restricted. The first article of the new treaty provides that"'Whenever, in the opinion of the government of the United States, the coming of Chinese laborers to the United States, or their residence therein, aftects 01' threatens to affect the interests of that country, or to endanger the good order of the said country, or of any locality within the territory thereof, the government of China agrees that the govemment of the United Slates may regulate, limit, or suspeud such coming or resilience, but may not absLlu _,Iy prohihit it. 'fhe limitation or suspension shall be reasonahle, and shall apply only to Chinese who may go to the Unitecl States as laborers, other classes not being included in the limitations. Legislation taken in regard to Chinese laborers will be of such a character only as is necessary to enforce the regulation, limitation, or suspension of immigration, allli immigrants shall nut be subject to personal maltreatment or aUutie."
The I:econd article declares that"Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and householtl 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 acconlell all the rights, privileges, immunities, and exemptions which are accorded to the citizens and suujects of the most favored nation."
By the third article, this government guaranties against ill-treatment Chinese laborers, or Chinese of any other class, now either permanently or temporarily residing in the territory of the United States. The fourth and last article is as follows:
.. The high-contracting powers having agreed upon tlle foregoing articles, whenever the government of the United i::itates shall adopt legislatire measures in ar;cordunce therewith, such measurt.:l shall lJe communicateu to the goYernment of China. If the measures, as enacted, are found to work hardship ul'un the suhjects of China, the Chinese minister at Washington may bring the matter to the notice of the secretary of state of the United States, who will consider the subject with him; and the Chinese foreign office may also bring the matter to the notice vf the United States minister at Peking, and l'onsider the suuject with !lim, to the end that mutual anu unqualifieu benefit may result." .
As was said bv Ur. Justice chant,13 FED. REP. 607, the Burlingame treaty:
in The Case of the Chinese liferto the fifth and sixth articles of
"'Yhile these articles remained in ful: force no legislation by congress looking to a suspension of, or restriction upon, the immigration of Chinese, engageu in any lawful oClJupation, was possible without a lJreach of faith towards China."
The treaty itself was sufficient to secure the Chinese all the rights granted by it, and action by congress to that end was unneceosary. But effectually to limit or suspend the immigration into this
country of Chinese laborers, which we acquired the right to do nnder the new treaty, active legislative measures became indispensable; and this necessity was fully recognized in the treaty and provision made in regard to it. That the purpose of the act of May 6, 1882, was to supply these measures, there can be no doubt. An examination of its provisions will show very plainly that this was its onlyohject. With perhaps the exception of the fourteenth section, which prohibits the federal and state courts from admitting Chinesp. to citizenship, there is not a word in the act which indicates any other intent 01' purpose on the part of its framers. '1'he title of the act is "An act to execute certain treaty stipulations relating to Chinese;" and certainly there are no "treaty stipulations relating to Chinese" which congress could be called upon to execute, except those contained in the treaties with China. 'rhe first section of the act, after reciting, in the terms of the supplementary treaty, that "whereas, in the opinion of the government of the Unitcd States,he coming of Chincsc laborers to country cndangers the good order of ccrtain localities within the territory thereof,"
proceeds to enact, also, in the terms of the treaty, "that from and after the expiration of ninety days next after the passage of this act, and until the expiration of ten years next after the passage of this act, the coming of Chinese laborers to thc United States be, and the same is hereby, suspcnded; and during such suspension it shall not be lawful for any Chinese laborer to come, or, having so come after the expiration of said ninety days, to remain within the United States." The second section is the one upon which this information is framed. The third section provides that the two preceding sections shall not apply to Chinese laborers who were here on the seventeenth day of November, 1880, or who shall have come here before the expiration of 90 days after the passage of the act, and shall produce to the master of the vessel and the collector of the port certain prescribed certiJicates of identification. Sections 4 and 5 provide, "for the purpose of properly identifying 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 this act, and in order to furnish them with the proper evidence of their right to go from and eome to the United Stlltes of their
free will and accord, as provided by the treaty between the United Statcs and Chma,dated November ]7,1880," that lists shall be made and
kept at the custom-house, which shall contain the evidence of identification of all Chinese laborers departing from the United States by sea, and that corresponding certificates shall be furnished them, which shall entitle them to return to and re-enter the United States, upon producing and delivering the same to the collector of customs. Section 6 provides "that in order to the faithful execution of articles one and tzeo of the treaty in this act brfore mentioned," Chinese persons who b;y the ty were entitled to come to this country, shall be identified
, l!'EDEIUJ.. REPOI\TER.··
by ·certificates isr<l1ed by the Chinese government, which, among other things, shall state the "jimncr and present occupation or profession, and place of residence in China, (If the person to whom the certificate is issued." These provisions, as well as many others that
might be cited to the same effect, show conclusively that the act was passed to carry into effect the right acquired under the last treaty to exclude Chinese laborers who were subjects of the Chinese government. The same view is taken of the statute by the learned judges of the ninth circuit. In the case of The Chinese Jferchant, ubi supra, it is said by Mr. Justice FIELD that "the act of May 6, 1882, was framed in supposed conformity with the provisions of this supplementary treaty. In the inhibitions which it imposes upon the immigration of Chinese, there is no purpose expressed in terms to go beyond the limitations prescribed by the treaty." In the Case of George1\follcan, 14 FED. REP. 44, it is said by Judge DEADY that "this act was passed in pursuance of the treaty with China of November, 1880, supplementary to that of July 28, 1868," and that "it is not to be presumed that congress in the passage of this act intended to trench upon the treaty of 1868, as modified by that of 1880." See, also, In re A h Sing, 13 FED. REP. 286; In re AlL Tie, Id, 291; In re Ho King, 14 FED. REP. 724. The term "Chinese laborers," as used in the act, must, therefore, have the same signification as when used in the treaty, and must be held to mean the subjects of the government of China, to which the pr0visions of the treaty relate. For these reasons, we are of opinion that the inhibitions of the act are not to be construed as applying to perso:1s of the Chinese race who are not and never were subjects of or residents within the Chinese empire. As Ah Shong is a person of this description, it follow8 that the defendant cannot be guilty of a violation of section.2 of the act, and is therefore entitled to be discharged.
UNITED STATES V. HOWARD.
(Circuit (Jourf, D. Oregon.
August 15, 1883.) 2148
OF TIIE REVISED. STAT-
1:3ection 2148 of the Revised Statute" section 2 of the act of August 18, 1856, (11 St, 80,) is in legal effect a prolllbition ag:ain,t any person who has moved from the Indian country returning thereto, and the penalty therem provided for its violation may be enforced by indictment or information. 2, REMEDY EY 2124 OF TIlE REVISED ST.\,TUTES, Section 2124 of the Revised Statutes ought to be construed as only applicable to penalties imposed by the act of June 30, 1834, (4 Bt. 729,) of which it is a part; but if considered applical;le at all to section 2148, supra, as lJeing,included