If she was not an alien immigrant within the intent and meaning of the act of Congress entitled 'An Act in Amendment to the Various Acts Relative to Immigration and the Importation of Aliens under Contract or Agreement to Perform Labor,' approved March 3, 1891 (26 Stat. at L. 1084, chap. 551, U. S. Comp. Stat. 1901, pp. 1294, 1296), the commissioner had no power to detain or deport her, and the final order of the circuit court must be reversed.
The act referred to contains these provisions:
The treaty ceding Porto Rico to the United States was ratified by the Senate February 6, 1899; Congress passed an act to carry out its obligations March 2, 1899 (30 Stat. at L. 993, chap. 376), and the ratifications were exchanged and the treaty proclaimed April 11, 1899 (30 Stat. at L. 1754). Then followed the act entitled 'An Act Temporarily to Provide Revenues and a Civil Government for Porto Rico, and for Other Purposes,' approved April 12, 1900. 31 Stat. at L. 77, chap. 191. The treaty provided: [192 U.S. 1, 9] 'Article II.
By the Constitution of the Spanish monarchy and the Spanish Civil Code, in force in Porto Rico when the treaty was proclaimed, persons born in Spanish territory were declared to be Spaniards, but Porto Ricans who were not natives of the Peninsula, remaining in Porto Rico, could not, according to the terms of the treaty, elect to retain their allegiance to Spain. By the cession their allegiance became due to the United [192 U.S. 1, 10] States, which was in possession and had assumed the government, and they became entitled to its protection. The nationality of the island became American instead of Spanish, and, by the treaty, Peninsulars, not deciding to preserve their allegiance to Spain, were to be 'held to have renounced it, and to have adopted the nationality of the territory in which they may reside.'
Thereupon Congress passed the act of April 12, 1900. That act created a civil government for Porto Rico, with a governor, secretary, attorney general, and other officers, appointed by the President, by and with the advice and consent of the Senate, who, together with five other persons, likewise so appointed and confirmed, were constituted an executive council, at least five of whom should be 'native inhabitants of Porto Rico;' and local legislative powers were vested in a legislative assembly, consisting of the executive council and a house of delegates to be elected.
The attorney general, the treasurer, the auditor, the commissioner of the interior, the commissioner of education were to make report through the governor to the Attorney General of the United States, the Secretary of the Treasury of the United States, and so on, to be transmitted to Congress; and all laws enacted by the legislative assembly were to be reported to Congress, which reserved the power to annul the same.
Courts were provided for, and, among other things, Porto Rico was constituted a judicial district, with a district judge, attorney, and marshal, to be appointed by the President for the term of four years. The district court was to be called the district court of the United States for Porto Rico, and to possess, in addition to the ordinary jurisdiction of district courts of the United States, jurisdiction of all cases cognizant in the circuit courts of the United States. And writs of error and appeals might be brought and taken from and to the Supreme Court of the United States.
Provision was also made for the election of a commissioner to the United States, to be paid a salary by the United States, [192 U.S. 1, 11] but no person was eligible to such election 'who is not a bona fide citizen of Porto Rico, who is not thirty years of age, and who does not read and write the English language.'
By 9 regulations were to be made 'for the nationalization of all vessels owned by the inhabitants of Porto Rico;' by 14 the statutes of the United States were generally put in force in the island; by 16 judicial process was to run in the name of the President of the United States.
By 7 the inhabitants of Porto Rico, who were Spanish subjects on the day the treaty was proclaimed, including Spaniards of the Peninsula who had not elected to preserve their allegiance to the Spanish Crown, were to be deemed citizens of Porto Rico, and they and citizens of the United States residing in Porto Rico were constituted a body politic under the name of The People of Porto Rico.1 [192 U.S. 1, 12] Gonzales was a native inhabitant of Porto Rico and a Spanish subject, though not of the Peninsula, when the cession transferred her allegiance to the United States, and she was a citizen of Porto Rico under the act. And there was nothing expressed in the act, nor reasonably to be implied therefrom, to indicate the intention of Congress that citizens of Porto Rico should be considered as aliens, and the right of free access denied to them.
Counsel for the government contends that the test of Gonzales' rights was citizenship of the United States, and not alienage. We do not think so, and, on the contrary, are of opinion that, if Gonzales were not an alien within the act of 1891, the order below was erroneous.
Conceding to counsel that the general terms 'alien,' 'citizen,' 'subject,' are not absolutely inclusive, or completely comprehensive, and that, therefore, neither of the numerous definitions of the term 'alien' is necessarily controlling, we, nevertheless, cannot concede, in view of the language of the treaty and of the act of April 12, 1900, that the word 'alien,' as used in the act of 1891, embraces the citizens of Porto Rico.
We are not required to discuss the power of Congress in the premises; or the contention of Gonzales' counsel that the cession of Porto Rico accomplished the naturalization of its people; or that of Commissioner Degetau, in his excellent argument as amicus curioe, that a citizen of Porto Rico, under the act of 1900, is necessarily a citizen of the United States. The question is the narrow one whether Gonzales was an alien within the meaning of that term as used in the act of 1891
3 U. S. Comp. St. Supp. 1903, p. 170. [192 U.S. 1, 13] The act excludes from admission into the United States, 'in accordance with the existing acts regulating immigration other than those concerning Chinese laborers,' certain classes of 'aliens' or 'alien immigrants' arriving at any place within the United States, in respect of all of whom it is required that the commanding officer and agents of the vessel by which they come shall report the name, nationality, last residence and destination before any are landed.
The decisions of the inspection officers adverse to the right to land are made final unless an appeal is taken to the Superintendent of Immigration, whose action is subject to review by the Secretary of the Treasury; and all aliens who unlawfully come into the United States in violation of law shall be immediately, if practicable, sent back, or may be returned as by law provided.
We think it clear that the act relates to foreigners as respects this country, to persons owing allegiance to a foreign government, and citizens or subjects thereof; and that citizens of Porto Rico, whose permanent allegiance is due to the United States; who live in the peace of the dominion of the United States; the organic law of whose domicil was enacted by the United States, and is enforced through officials sworn to support the Constitution of the United States,-are not 'aliens,' and upon their arrival by water at the ports of our mainland are not 'alien immigrants,' within the intent and meaning of the act of 1891.
Indeed, instead of the immigration laws operating externally and adversely to the citizens of Porto Rico, they were themselves put in force and effect there by 14 of the act of April 12, 1900, as the Secretary of the Treasury was advised by the acting Attorney General, July 15, 1902, in respect of the act 'to Regulate Immigration,' approved August 3, 1882 (22 Stat. at L. 214, chap. 376, U. S. Comp. Stat. 1901, p. 1288); 24 Ops. Atty. Gen. 86. The act provided for the collection of 'a duty of 50 cents for each and every passenger, not a citizen of the United States, who shall come by steam or sail vessel from a foreign port to any port within the United [192 U.S. 1, 14] States. . . . The money thus collected shall be paid into the United States Treasury, and shall constitute a fund to be called the immigrant fund, and shall be used, under the direction of the Secretary of the Treasury, to defray the expense of regulating immigration under this act . . . .'
By 2 inspection was provided for, 'and if, on such examination, there shall be found among such passengers any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge, they shall report the same in writing to the collector of such port, and such persons shall not be permitted to land.'
The department held that the duty collected in Porto Rican ports should be accounted for and credited to the 'immigrant fund,' as is done with collections upon alien passengers arriving at ports in the United States.
In Huus v. New York & P. R. S. S. Co. 182 U.S. 392, 396 , 45 S. L. ed. 1146, 1151, 21 Sup. Ct. Rep. 827, 829, we held that, by 9 of the act of April 12, 1900, 'it was evidently intended, not only to nationalize all Porto Rican vessels as vessels of the United States, and to admit them to the benefits of their coasting trade, but to place Porto Rico substantially upon the coast of the United States, and vessels engaged in trade between that island and the continent, as engaged in the coasting trade.'
Again, in respect of 703 of the tariff act of July 24, 1897 (30 Stat. at L. 203, chap. 11),1 exempting 'works of art, the production of American artists residing temporarily abroad,' the Department of Justice held that Mr. Molinas, a native of Porto Rico, and an artist, temporarily living in Biarritz, France, and there on April 11, 1899, became, under 7 of the act of April 12, 1900, a citizen of Porto Rico, and as such an American artist entitled to the privileges of that paragraph. 24 Ops. Atty. Gen. 40.
The Attorney General, in his communication to the Secretary of the Treasury, among other things, said: 'It will be observed that 703, above quoted, does not mention citizenship, but uses the phrase 'American artists.' It is clearly not in- [192 U.S. 1, 15] conceivable for a man to be an American artist within the meaning of such a statute and yet not a citizen of the United States.' And after commenting on the effect of the temporary absence of Mr. Molinas at the time the treaty was proclaimed, the Attorney General concluded his opinion thus: 'But even in supposing that a native Porto Rican like Mr. Molinas, temporarily absent at the date of the treaty, has been unintentionally omitted from 7, he is undoubtedly one of those turned over to the United States by article 9 of the treaty to belong to our nationality. He is also clearly a Porto Rican; that is to say, a permanent inhabitant of that island, which was also turned over by Spain to the United States. As his country became a domestic country, and ceased to be a foreign country within the meaning of the tariff act above referred to, and has now been fully organized as a country of the United States by the Foraker act, it seems to me that he has become an American, notwithstanding such supposed omission.'
The Attorney General applied the ruling in De Lima v. Bidwell, 182 U.S. 1 , 45 L. ed. 1041, 21 Sup. Ct. Rep. 743, that 'with the ratification of the treaty of peace between the United States and Spain, April 11, 1899, the island of Porto Rico ceased to be a 'foreign country' within the meaning of the tariff laws.'
In that case we were all of opinion that the action was properly brought, because, as the question was whether the goods were imported at all, the case did not fall within the customs administrative act. 2 Re Fassett, 142 U.S. 479 , 35 L. ed. 1087, 12 Sup. Ct. Rep. 295.
And in the present case, as Gonzales did not come within the act of 1891, the commissioner had no jurisdiction to detain and deport her by deciding the mere question of law to the contrary; and she was not obliged to resort to the Superintendent or the Secretary.
Our conclusion is not affected by the provision in the sundry civil act of August 18, 1894 (28 Stat. at L. 372, 390, chap. 301, U. S. Comp. Stat. 1901, p. 1303), in relation to the finality of the decisions of the appropriate immigration or custom officers, or the similar provision in the act 'to Regulate the Immigration of Aliens into the United States,' [192 U.S. 1, 16] approved March 3, 1903 (32 Stat. at L. 1213, chap. 1012). The latter act was approved after the Gonzales litigation was moved, but it is worthy of notice that the words 'United States' as used in the title and throughout the act were required to be construed to mean 'the United States and any waters, territory, or other place now subject to the jurisdiction thereof.' 33. The definition indicates the view of Congress on the general subject.
Gonzales was not a passenger from a foreign port, and was a passenger 'from territory or other place' subject to the jurisdiction of the United States.
In order to dispose of the case in hand, we do not find it necessary to review the Chinese exclusion acts and the decisions of this court thereunder.
Final order reversed, and cause remanded with a direction to discharge Gonzales.
[ Footnote 1 ] Sections 7, 9, 14, and 16 were as follows:
[ Footnote 1 ] U. S. Comp. St. 1901, p. 1690.
[ Footnote 2 ] U. S. Comp. St. 1901, p. 1886.