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States from the full operation of the act, is a palpable begging of the whole question that was at issue in the Winslow controversy. Such, certainly, was not its intention unless, as to that matter, the two are inconsistent. If it be true that, as to the offense for which a surrendered criminal may be tried, the treaty implies what the act expressly declares, then there is no inconsistency between them on this point, and, hence, no reason why the act should not in this respect apply to the treaty. The guaranty which the one requires simply secures beforehand the immunity which the other implies. Lord Derby, as we think, correctly claimed that the treaty and the act are identical in this respect.

Indeed, the special act passed by Parliament soon after the treaty was negotiated, and the act of Congress of August 12th, 1848, and also the supplementary act passed by Congress in 1869, clearly imply the doctrine which the English act of 1870 expressly asserts. In the first two of these acts provision is made for the delivery of a fugitive criminal, in order that he may "be tried for the crime of which such person shall be so accused." Both acts, in precisely the same words, specify such a trial as the end or object of the delivery. So, also, the act of 1869 describes the trial contemplated by the delivery, as having reference to "the crimes or offenses specified in the warrant of extradition." This legislation implies a construction of the treaty which the English act of 1870 puts into express and positive terms. It names the offense for which the trial is to be had, as being the one of which the person has been accused, or as the one "specified in the warrant of extradition." It does not give the remotest hint of any other trial, and, hence, by what it says and by what it does not say, implies that the party is to be tried only for the crime "proved by the facts on which the surrender is grounded," which is the express doctrine of the English act of 1870.

Judge Benedict, in The United States v. Lawrence, 13 Blatchf. C. C. R. 295, after remarking that "the British act of 1870" has no authority as a law in the United States, proceeded to say: "It would appear that the English courts incline to the opinion that the act of 1870 has no effect in England, even, to limit the operation of the treaty of 1842," which, as he held in that case, allows the trial of an extradited person for any offense, whether it is or is not the one for which the surrender was made. As proof of this statement, he quotes the following words of the Lord Chief Justice of the Queen's Bench in Ex parte Bouvier: "I see plainly what was the intention of the legislature that is to say, it was intended, while getting rid of the statutes by which the treaties were confirmed, to save the existing treaties in their full integrity and force."

The case of Bouvier, who was demanded by the French Government in 1872, arose under the treaty of Great Britain with France, and had no relation

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to that of 1842 with the United States. The important question, as Mr. Clarke observes in his Treatise on Extradition, sec. ed., p. 149, came before the Court of the Queen's Bench, "whether the effect of the Extradition Act of 1870 had not been to render the treaty with France entirely inoperative." The relation of the act to the treaty of 1842 with the United States was not under consideration at all, and no opinion was expressed as to whether it did or did not in England "limit the operation of the treaty of 1842."

So far, moreover, as the opinion that was expressed had any thing to do with the effect of the English act in England, Judge Benedict was entirely mistaken as to its character. Bouvier was before the court on a writ of habeas corpus; and it was urged by his counsel that he should be discharged, because, as was alleged, there was no law in France to prevent "his trial for an offense other than that for which the rendition was demanded." The counsel for the Crown, in reply to this position, presented the affidavit of M. Adolphe Moreau, the officially appointed counsel to the French embassy in London, to the effect that "it is a principle of French and international law, that the individual whose extradition has been granted can only be prosecuted and tried for the very crime for which his extradition has been obtained." This affidavit, says Mr. Clarke. "was accepted by the court as decisive of the question;" and accordingly the court "remanded the prisoner to custody, holding that provision was made by the French law that he should be tried only for the offense for which extradition was asked." Clarke on Extradition, sec. ed., pp. 149-152. The remanding of Bouvier to custody was on the assurance by an affidavit, which the court accepted as "decisive of the question," that under the law of France he would be tried only for the offense for which his extradition had been obtained. This is exactly the doctrine of the English act of 1870, and the facts clearly show that the court treated the act as operative in England with reference to the treaty with France.

It deserves to be noted also that the words of the Lord Chief Justice, as quoted by Judge Benedict, have nothing to do with the specific question whether the English act of 1870 and the treaty of 1842 are consistent with each other, and hence nothing to do with the question whether the act has effect or not in England with reference to that treaty. What he says is that Parliament, by the exception as to any thing in the act inconsistent with the treaties referred to, intended "to save existing treaties in their full integrity and force." There is no doubt of this; yet it does not follow that he regarded "the treaty of 1842" as coming within the exception because inconsistent with the act of 1870, and hence regarded the act as having "no effect in England" in respect to that treaty.

quirement that the committing magistrate "shall inform such criminal that he will not be surrendered until after the expiration of fifteen days, and that he has a right to apply for a writ of habeas corpus." The object of these provisions is to secure to the person accused a reasonable opportunity to have the

On this point he expressed no opinion. For aught that appears in the words quoted, he may have agreed with Lord Derby as to the construction of "the treaty of 1842," and as to the entire consistency of the English act of 1870 with it. Supposing the two to be consistent, then, of course, the act would not limit the operation of the treaty in Eng-legality of the proceedings tested before a court land, or anywhere else, not because the latter is excepted from the application of the former, but because there is no inconsistency between them. Judge Benedict, however, assuming an inconsistency, sought on this ground to exclude the treaty from the application of the act as to the question which he was discussing, and thereby retain the treaty in full force with his understanding of its operation, supporting his opinion by quoting the words of the Lord Chief Justice in the case of Bouvier, which, as we have seen, neither contain the opinion nor hold any relation to it whatever. The Judge was certainly very unfortunate in the case which he cited, as well as in the words which he quoted.

prior to his actual surrender, and to be discharged from imprisonment in the event that the proceedings shall be held to be illegal. The protection thus afforded is meant to be remedial as against any hasty or improper action on the part of the Govern


There are three other provisions, all of them found in the third section of the English act, which, though not involved in the Winslow controversy, deserve a brief mention, since they operate as restrictions upon the surrender of fugitive criminals. The first declares that "a fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded is one of a political character, or if he prove to the satisfaction of the police magistrate or the court before whom he is brought | on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offense of a political character." The design of this provision is to guard against any surrender for what are called political offenses, which, though not always expressly excluded in extradition treaties, are, nevertheless, according to the settled policy of Great Britain and most of the nations of Europe, regarded as non-extraditable.

The second provision declares that "a fugitive criminal who has been accused of some offense within English jurisdiction, not being the offense for which his surrender is asked, or is undergoing sentence under any conviction in the United Kingdom, shall not be surrendered until after he has been discharged, whether by acquittal or on expiration of his sentence or otherwise." This simply postpones the delivery in the cases specified until the purposes of English jurisdiction shall have been completed.

The third provision declares that "a fugitive criminal shall not be surrendered until the expiration of fifteen days from the date of his being committed to prison to await his surrender.". This in the eleventh section of the act is supplemented by a re

The other provisions of the English act call for no comment, since they relate to matters of purely domestic procedure, and involve no internationa questions in respect to the construction and applica

tion of British extradition treaties.


FORNIA, APRIL 29, 1878.


A native of China, of the Mongolian race, is not entitled to become a citizen of the United States under the Revised Statutes as amended in 1875. Rev. Stat., § 2,169, amendment, R. S., p. 1,435.

A Mongolian is not a "white person" within the meaning of the term as used in the naturalization laws of the United States.

PETITION for naturalization. The facts appear in

the opinion.

SAWYER, J. Ah Yup, a native and citizen of the Empire of China, of the Mongolian race, presented a petition in writing, praying that he be permitted to make proof of the facts alleged, and upon satisfactory proof being made, and his making the oath required in such cases, he be admitted as a citizen of the United States.

The petition stated all the qualifications required by the statute to entitle the petitioner to be naturalized, provided the statute authorizes the naturalization of a native of China of the Mongolian race. The petition was presented by B. S. Brooks, a counselor of this court. This being the first application made by a native Chinaman for naturalization, the members of the bar were requested by the court to make such suggestions amici curiæ as occurred to them upon either side of the question; whereupon S. Heydenfeldt, Jr.,

argued the case very fully in opposition to the applica

tion. Suggestions were also made by other members of the bar present.

The only question is, whether the statute authorizes the naturalization of a native of China of the Mongo

lian race.

In all the acts of Congress relating to the naturalization of aliens, from that of April 14, 1802, down to the Revised Statutes, the language has been "that any alien, being a free white person, may be admitted to become a citizen," etc. After the adoption of the thirteenth and fourteenth amendments to the National Constitution - the former prohibiting slavery and the latter declaring who shall be citizens - Congress, in the act of July 14, 1870, amending the naturalization laws, added the following provision:

"That the naturalization laws are hereby extended to aliens of African nativity and to persons of African descent." 16 Stat. 256, § 7.

Upon the revision of the statutes the revisers, probably inadvertently, as Congress did not contemplate a change in the laws in force, omitted the words "white persons," section 2,165 of the Revised Statutes being the section conferring the right reading: "An alien may be admitted to become a citizen," etc. The provision relating to Africans of the act of 1870 is carried into the Revised Statutes in a separate section, which reads as follows:

"The provisions of this title shall apply to aliens of African nativity and to persons of African descent." $ 2,169. This section was amended by the "Act to correct errors and to supply omissions in the Revised Statutes of the United States," of February 18, 1875, so as to read: "The provisions of this title shall apply to aliens, being free white persons, and to aliens of African nativity, and to persons of African descent." (Rev. Stat., p. 1, 435; 18 Stat. 318), and so the statute now stands.

First. Is a person of the Mongolian race a person " within the meaning of the statute?

Second. Do those provisions exclude all but white persons and persons of African nativity or African descent?

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Words in a statute, other than technical terms, should be taken in their ordinary sense. The words "white person," as well argued by petitioner's counsel, taken in a strict literal sense, constitute a very indefinite description of a class of persons, where none can be said to be literally white, and those called white may be found of every shade, from the lightest blonde to the most swarthy brunette. But these words, in this country at least, have undoubtedly acquired a well-settled meaning in common popular speech, and they are constantly used in the sense so acquired in the literature of the country, as well as in common parlance. As ordinarily used anywhere in the United States one would scarcely fail to understand the party employing the words “a white person" would intend a person of the Caucasian race. In speaking of the various classifications of races, Webster, in his dictionary, says: "The common classification is that of Blumenbach, who makes five. First, the Caucasian, or white race to which belong the greater part of the European nations and those of Western Asia; second, the Mongolian, or yellow race, occupying Tartary, China, Japan, etc.; third, the Ethiopian, or negro (black) race, occupying all Africa, except the North; fourth, the American, or red race, containing the Indians of North and South America; and fifth, the Malay, or brown race, and occupying the islands of the Indian Archipelago," etc. This division was adopted from Buffon, with some changes in names, and is founded on the combined characteristics of complexion, hair and skull. Linnæus makes four divisions, founded on the color of the skin: First, European, whitish; second, American, coppery; third, Asiatic, tawny; and fourth, African, black. Cuvier makes three Caucasian, Mongol, negro. Others make many more, but none include the white or Caucasian with the Mongolian or yellow race; and none of those classifications, recognizing color as one of the distinguishing characteristics, include the Mongolian in the white or whitish race. § 22, New American Cyclopedia," title "Ethnology." Neither in popular language, in literature, nor in

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scientific nomenclature do we ordinarily, if ever, find the words "white person" used in a sense so comprehensive as to include an individual of the Mongolian race. Yet, in all, color, notwithstanding its indefiniteness as a word of description, is made an important factor in the laws adopted for the determination and classification of the races. I am not aware that the term "white persons," as used in the statute, as they have stood from 1802 till the late revision, was ever supposed to include a Mongolian, while I find nothing in the history of the country, in common or scientific usage, or in legislative proceedings, to indicate that Congress intended to include in the term "white person any other than an individual of the Caucasian race. I do not find much in the proceedings of Congress to show that it was universally understood in that body, in its recent legislation, that it excluded Mongolians. At the time of the amendment, in 1870, extending the naturalization laws to the African race, Mr. Sumuer made repeated and strenuous efforts to strike the word "white" from the naturalization laws, or to accomplish the same object by other language. It was opposed on the sole ground that the effect would be to authorize the admission of Chinese to citizenship. Every senator who spoke upon the subject assumed that they were then excluded by the term "white person," and that the amendment would admit them, and the amendment was advocated on the one hand and opposed on the other upon that single idea. Senator Morton, in the course of the discussion, said: "This amendment involves the whole Chinese problem. *** The country has just awakened to the question and to the enormous magnitude of the question involving a possible immigration of many millions; involving another civilization; involving labor problems that no intellect can solve without study and time. Are you now prepared to settle the Chinese problem, thus in advance inviting that immigration?" Congressional Globe, part 6, 1869–70, p. 5,122. Senator Sumner replied: "Senators undertake to disturb us in our judgment by reminding us of the possibility of large numbers swarming from China; but the answer to all this is very obvious and very simple. If the Chinese come here they will come for citizenship or merely for labor. If they come for citizenship then in this desire do they give a pledge of loyalty to our institutions. And where is the peril in such vows? They are peaceful and industrious. How can their citizenship be the occasion of solicitude?" Id., p. 5,155.

Many other senators spoke pro and con on the question, this being the point of the contest. Id., pp. 5,121 to 5,177. It was finally defeated, and the amend- . ment cited, extending the right of naturalization to the African only, was adopted. It is clear from these proceedings that Congress retained the word "white" in the naturalization laws for the sole purpose of excluding the Chinese from the right of naturalization. Again, when it was found that the term "white person "had been omitted in the Revised Statutes, it was restored by the act passed "to correct errors and to supply omissions" in the Revised Statutes before cited. Upon reporting this bill, Mr. Poland, chairman of the committee, explained the various amendments correcting errors, and upon the amendment to insert the words, "being free white persons," said: "The original naturalization laws only extended to free white persons." "A very few years since (in 1870) Mr. Sumner, of Massachusetts, then in the Senate,

a ** *

moved to strike out the word 'white' from the naturalization laws, and it was objected to on the ground that that would authorize the naturalization of that class of Asiatic immigrants that are so plentiful on the Pacific coast. After considerable debate, instead of striking out the word white,' it was provided that the naturalization laws should extend to the Africans and persons of African descent." After explaining the omission in the Revised Statutes he adds: "The member of our committee who had this chapter on the naturalization laws to examine as a sub-committee failed to notice this change in the law, or it would have been brought before the house when the revision was adopted." Congressional Record, vol. 3, part 2, session 1875, p. 1,081.

Upon this report the amendment was made as it now stands in the statute. Thus, whatever latitudinarian construction might otherwise be given to the term "white person," it is entirely clear that Congress intended by this legislation to exclude Mongolians from the right of naturalization. I am, therefore, of the opinion that a native of China, of the Mongolian race, is not a white person within the meaning of the act of Congress.

The second question is answered in the discussion of the first. The amendment is intended to limit the operation of the provision as it then stood in the Revised Statutes. It would have been more appropriately inserted in section 2,165 than where it is found (in section 2,169). But the purpose is clear. It was certainly intended to have some operation, or it would not have been adopted. The purpose undoubtedly was to restore the law to the condition in which it stood before the revision, and to exclude the Chinese. It was intended to exclude some classes, and as all white aliens and those of the African race are entitled to naturalization under the words, it is difficult to perceive whom it could exclude unless it be the Chinese. It follows that the petition must be denied, and it is so ordered.

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"a coupon, which was due and past maturity, for thirty dollars, which said coupon was cut from a bond of the State of Virginia, issued under the provisions of the act of Assembly passed March 30th, 1871, commonly known as the Funding Bill;" and the sum of twentytwo dollars and five cents, in money, that being the amount of costs.

The city sergeant refused to receive the coupon tendered, in payment of the fine imposed by the court. And thereupon Clarke applied to this court for a writ of habeas corpus, and insists upon his right to pay the fine assessed against him by the Hustings Court in a coupon of a bond of the State; and that upon such payment, with the costs of prosecution, he is entitled to his discharge from further imprisonment.

This record, therefore, presents for our consideration the simple question, Whether a fine imposed for a violation of law can be discharged in coupons, or whether it can only be demanded and paid in money?

This is the same question which was elaborately argued at the January term of this court in the case of Tyler v. Taylor. That case was argued upon a petition for a writ of mandamus, to the court, to compel the auditor of public accounts to receive from the sergeant of the city of Richmond, certain coupons which had been received by him, in payment of a fine imposed on one Mayo, for a criminal offense.

In that case, this court unanimously held, that the writ of mandamus could not be issued against the auditor of public accounts, because he was not the public officer whose duty it was, under the law, to receive fines collected by the city sergeant, and declaring that this court could only exercise its extraordinary jurisdiction by way of mandamus, to compel a public officer to discharge a duty which the law imposed on him, and not on another. And inasmuch as the city treasurer, and not the auditor of public accounts, was the public officer whose duty it was to receive all fines collected by the city sergeant, the rule was discharged and the case dismissed, without deciding the question on its merits.

In that case it was said, and is here repeated: "This court is always ready and willing to decide, to the best of its ability, all questions, however important or difficult, or however they may affect public or private interests, which are properly brought before it, no matter how great or far-reaching may be the responsiBut the bilities it must assume in such decision. court is not willing, nor is it any part of its judicial function, to decide questions outside of the case before it, and thus constitute itself a moot court to determine abstract questions."

The question argued in the case of Tyler v. Taylor did not arise upon the pleadings in the cause, and the court did not (for the reasons stated in its opinion) feel called upon to decide an abstract question. But the same question now does arise properly, upon the record in this case, and the court is now prepared to meet the question and assume all the responsibilities which may be attached to the decision, however it may affect individual or public rights, private or political questions.

But the question we have to determine (however it is sought to be connected with questions which are the subject, unhappily, of political agitation) is purely a legal question, to be determined upon well-defined legal principles, and the rules of construction universally recognized as applicable to the statute law. It

all depends upon the true construction to be given to the second section of the act approved March 30th, 1871, entitled "An act to provide for the funding and payment of the public debt." This section, after declaring that the owners of any of the bonds, stocks or interest certificates heretofore issued by this State * * * may fund two-thirds of the amount of the * * * in six per centum coupon or registered bonds of this State, etc., contains the following provision: "The bouds shall be made payable to order or bearer, and the coupons to bearer, at the treasury of the State, and bonds payable to order may be exchanged for bonds payable to bearer, and registered bonds may be exchanged for coupon bonds, or vice versa, at the option of the owner. The coupons shall be payable semiannually, and receivable at and after maturity for all taxes, debts, dues and demands due the State, which shall be so expressed on their face." The only question, then, we have to determine is, whether fines imposed for a violation of law are included within the terms of the statute? I say this is the only question we have to determine, because the question of the constitutionality of the act above referred to, known as the Funding Act, has already been determined by this court. The case of Antoni v. Wright, 22 Gratt., settles this question. The same argument against its constitutionality made in this case was urged in that. I refer to that case and adopt its principles and reasoning as a clear and conclusive exposition of the law, and am of opinion that this decision of the court declaring the constitutionality of the act of March 30th, 1871, and declaring that any act of the Legislature in conflict with the provisions of that act, so far as it may "forbid the collecting officers of the State to receive in payment of taxes and other demands of the State any thing else than gold or silver coin, United States treasury notes, or notes of the national banks of the United States," must be held to be an act "impairing the obligation of a contract," and therefore unconstitutional and void. This decision of Antoni v. Wright was recognized and re-affirmed in Wise v. Rogers' Adm'r, and Maury v. Wright, 24 Gratt., and must now be held to be the settled law of this State. It is not necessary, therefore, and indeed it would be a vain and useless task, to attempt to go over again the reasons which govern this court in coming to the conclusion there reached, and firmly adhered to ever since. I can only say for myself, that after a careful consideration of all the views which have been presented on this question, the opinion of Judge Bouldin, in Antoni v. Wright, is a lucid, able and conclusive exposition of the law-is one based upon judicial logic and fortified by judicial authority, which makes it impregnable against every assault which may be made upon it. Adopting, therefore, the principles and reasoning in the case of Antoni v. Wright, we are left in this case to a simple and very narrow inquiry-and that is, Are fines imposed for a violation of law included in the purview of the statute? One of the principal and universally adopted rules of construction of statutes is, that in the construction of statutes the rule of interpretation is, in respect to the intention of the Legislature, that where the language is explicit, the courts are bound to seek for the intention, in the words of the act itself, and they are not at liberty to suppose, or to hold, that the Legislature intended any thing❘ different from what their language imports. Potter's Dwarris on Statutes, p. 146. Words in a statute are never to be considered as unmeaning and surplusage,

if a construction can be legitimately found which will give force to and preserve all the words in the act. The best rule by which to arrive at the meaning and intention of a law is to abide by the words which the law-maker has used. Dwarris, p. 179, note. Especially is this the case where the words used have no double or doubtful meaning, but are plain and explicit in their signification, for it is a rule of universal application that effect must be given to the words used by the Legislature where there is no uncertainty or ambiguity in their meaning.

Now, the words used in the act we are called upon to construe are as broad, explicit and comprehensive as any terms which could possibly be used. The act declares that "coupons shall be receivable at and after maturity, for all taxes, debts, dues and demands due the State." Is there any uncertainty or ambiguity in these terms? They all have a certain definite, explicit and technical meaning. We cannot discard any one of them as unmeaning and surplusage, but must, according to the rules of construction which bind the courts, give effect to all. We must suppose the Legislature knew the ordinary meaning and legal force of the words which they used. If the provision of the act had been that these coupons should be receivable "for all taxes and debts due the State," there might be some room for doubt whether fines were embraced - for although fines are recoverable by action of debt, and in a certain sense a fiue is a debt due the State, yet it might be said, with much force, if not conclusively, that the word debt refers to matters of contract, and that, therefore, a fine is not embraced in the meaning of the statute in the word debt. But the words "dues and demands" are added. Shall we give no effect to these words of explicit meaning? Can we take the liberty of striking these words out of the statute? If we can, then the courts may override the powers of the Legislature, and construe away any act it may pass. These words, "dues and demands," are not uncertain and ambiguous, but have a certain definit and explicit meaning,

The word "due " is defined by Webster to be "that which is owed," "that which custom, station or law requires to be paid," and by Worcester "that which any one has a right to demand, claim or possess,' "that which can justly be required." The word demand is a word of still larger significance and more comprehensive meaning. Indeed, Lord Coke says, the word "demand" is the largest word in law except "claim." In 2 Coke upon Littleton, 291, b, he says, "Demandum is a word of art, and in the understanding of the common law, is of so large an extent, as no other word in the law is, unless it be clamum, whereof Littleton maketh mention, section 445." Webster defines "demand" "the asking or seeking what is due or claimed to be due;" and Worcester, "a calling for a thing due or claimed to be due." No words of more explicit or broader signification could have been used than these two words "dues and demands." We cannot discard them, but must give them effect. Do they embrace fines? I am bound by every rule of construction to say they do. A fine is something "which the law requires to be paid" and that is the meaning of the word "dues." A fine is a thing "due or claimed to be due" to the State, a liability which the State has a right to enforce and demand, and that is the meaning of the word "demand."

I am, therefore, of opinion that fines are clearly embraced within the meaning and the very words of the

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