tates; but no such improvement shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made.

"Sec. 39. No patent hereafter issued out of the land office shall impair or affect the rights of riparian proprietors, as explained and declared in the two sections next preceding this section, and no patent shall hereafter issue for land covered by navigable waters."

The plaintiff contends that the entire title in the land below high tide, with the right to improve and build upon the same, remained in the state after the adoption of the constitution; that by the statute of 1862 the title to such land, at the place in question, or at least the exclusive right of building thereon, was vested in the plaintiff; and that the title or right so acquired by him was his private property, which, by the fifth amendment of the constitution, could not be taken by the United States for the erection and maintenance of a lighthouse for the public use, without just compensation.

*The United States, on the other hand, assert, and the court below has held, that the United States, upon the adoption of the constitution, acquired the paramount right to the use of this submerged land for a lighthouse, without making any compensation therefor; and that any title or right conferred on the plaintiff by the subsequent statute of the state was necessarily subject to this paramount right of the United States.

the possession has been acquired and maintained under a different or adverse title, or where it is tortious, and makes the defendant a trespasser. Lloyd v. Hough, 1 How. 153, 159; Carpenter v. U. S., 17 Wall. 489, 493.

In Langford v. U. S. it was accordingly adjudged that, when an officer of the United States took and held possession of land of ag private citizen, under a claim that it*be-* longed to the government, the United States could not be charged upon an implied obligation to pay for its use and occupation.

It has since been held that if the United States appropriate to a public use land which they admit to be private property, they may be held, as upon an implied contract, to pay its value to the owner. U. S. v. Great Falls Manuf'g Co., 112 U. S. 645, 5 Sup. Ct. Rep. 306, and Id., 124 U. S. 581, 8 Sup. Ct. Rep. 631. It has likewise been held that the United States may be sued in the court of claims for the use of a patent for an invention, the plaintiff's right in which they have acknowledged. Hollister V. Manufacturing Co., 113 U. S. 59, 5 Sup. Ct. Rep. 717; U. S. v. Palmer, 128 U. S. 262, 9 Sup. Ct. Rep. 104. But in each of these cases the title of the plaintiff was admitted, and in none of them was any doubt thrown upon the correctness of the decision in Langford's Case. See Schillinger v. U. S., 24 Ct. Cl. 278.

The case at bar is governed by Langford's Case. It was not alleged in this petition nor admitted in the plea, that the United States had ever in any way acknowledged any right of property in the plaintiff as against the United States. The plaintiff asserted a title in the land in question, with the exclusive right of building thereon, and claimed damages of the United States for the use and occupation of the land for a

The whole effect of the act of March 3, 1887, (chapter 359,) under which this suit was brought, was to give the circuit and district courts of the United States jurisdiction, concurrently with the court of claims, of suits to recover damages against the United States in cases not sounding in tort. U. S. v. Jones, 131 U. S. 1, 16, 18, 9 Sup. Ct. Rep. 669.

The United States cannot be sued in their own courts without their consent, and have never permitted themselves to be sued in any court for torts committed in their name by their officers. Nor can the settled distinction in this respect between contract and tort be evaded by framing the claim as upon an implied contract. Gibbons v. U. S., 8 Wall. 269, 274; Langford v. U. S., 101 U. S. 341, 346; U. S. v. Jones, above cited.

An action in the nature of assumpsit for the use and occupation of real estate will never lie where there has been no relation of contract between the parties, and where

and precisely pleaded that the land was submerged under the waters of Chesapeake bay, one of the navigable waters of the United States; and that the United States, "under the law, for the purpose of a lighthouse, has a paramount right to its use as against the plaintiff or any other person;" and the plaintiff demurred to this plea. The circuit court, instead of rendering judgment for the United States upon the demurrer, should have dismissed the suit for want of jurisdiction.

Judgment reversed, and case remanded to the circuit court, with directions to dismiss it for want of jurisdiction.

use without just compensation," a compact or contract of the highest degree of obligation is thereby established between the American people of the one part and each and every citizen of the other part. In and by that constitutional provision every citizen agrees that his property may be taken for public use whenever the nation, through its legislative department, demands it; and the United States agree that, when the property of the citizen is so taken, just compensation shall be made.

Whenever a case arises in which that constitutional provision is invoked, two questions present themselves: First, is the property dealt with the private property of the party claiming it? and, secondly, has it been taken by the United States for public use?

If the property to be affected is not that of the claimant, of course his appeal to the constitutional protection will be vain. But it is equally plain that the question of title is not one to be decided by the party claimant, or by the legislative or executive departments of the United States. That is a judicial question. Accordingly if, in a given case, it is either admitted or proposed to be shown that the property concerned belongs to a party before a court having jurisdiction to deal with the subject, then the only question that remains is whether such property has been taken by the United States for public use. In such a case the United States cannot, by a plea denying the plaintiff's title, make it the duty of the court to dismiss the plaintiff's suit. Such a denial cannot be treated, in face of the constitutional compact, as an exercise of sovereign power, whereby the right of the citizen to assert his property rights is forbidden, but it merely raises a judicial issue, to be determined by the court.

If the court shall determine that the property in question is the private property of the claimant, then the second question comes up,-whether the United States have taken it for public use.

*If it shall appear that, in point of fact, the United States have not taken the plaintiff's property for public use, and that all that the plaintiff has to complain of is that some persons, known or unknown, but claiming to be officers or agents of the United States, have committed a trespass upon his property, and it does not appear that the acts complained of were in pursuance of any law of the United States, or that they have been ratified by the United States, by takIng possession of and occupying the property for public use, then the plaintiff's case will fall within the doctrine of Langford v. U. 'S., 101 U. S. 341, and must be treated as an attempt, under the assumption of an implied contract, to make the government responsible for the unauthorized acts of its officers, those acts being themselves torts.

But if it shall be shown or be admitted that the United States, by law, either au

thorized their agents to appropriate the property of the plaintiff, or have ratified the action of their agents by taking possession of the property and subjecting it to public use, then the constitutional duty of the court is to pronounce judgment for the plaintiff, and to award him just compensation.

These views do not overlook the wellsettled doctrine that unless and until congress shall, by adequate legislation, provide a legal remedy, private rights against the government may be in abeyance. But when congress, in obedience to the behest of the constitution, has provided such a remedy, then there is no legal obstacle to the plaintiff's recovery. That congress has provided such a remedy is seen in the act of March 3, 1887, (chapter 359,) whereby it is enacted that the court of claims, and, concurrently, the district and circuit courts of the United States, "shall have jurisdiction to hear and determine all claims founded upon the constitution of the United States or any law of congress, except for pensions, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, if* the United States were suable."

This legislation perhaps originated in the regret expressed by this court in Langford's Case, that "congress has made no provision by general law for ascertaining and paying this just compensation." That was a suit brought in the court of claims, under section. 1059 of the Revised Statutes, in which there is no remedy provided for claims founded upon the constitution of the United States, and was, in the language of the court, the case of "an unequivocal tort."

The later case of U. S. v. Great FallsManufacturing Co., 112 U. S. 656, 5 Sup. Ct. Rep. 306, is, in some respects, like the present one. It was there held that it was clear"that these property rights have been held and used by the agents of the United States, under the sanction of legislative enactments by congress; for the appropriation of money specifically for the construction of the dam. from the Maryland shore to Conn's island. was, all the circumstances considered, equivalent to an express direction by the legislative and executive branches of the govern ment to take this particular property for the public objects contemplated by the scheme for supplying the capital of the nation with wholesome water. The making of the improvements necessarily involves the taking of the property; and if, for the want of formal proceedings for its condemnation to public use, the claimant was entitled, at the beginning of the work, to have the agentsof the government enjoined from prosecut

ing it until provision was made for securing in some way payment of the compensation required by the constitution,-upon which question we express no opinion,-there is no sound reason why the claimant might not waive that right, and, electing to regard the action of the government as a taking under its sovereign right of ancient domain, demand just compensation. In that view we are of opinion that the United States, having, by their agents, proceeding under the authority of an act of congress, taken the property of the claimant for public use, are under an obligation imposed by the constitution to make compensation. The law will imply a promise to make the required compensation where property, to which the government asserts no title, is taken pursuant to an act of congress, as private property to be applied for public use. Such an implication being consistent with the constitutional duty of the government, as well as with common justice, the claimant's cause of action is one that arises out of implied contract, within the meaning of the statute which confers jurisdiction upon the court or claims of actions founded upon any contract, express or implied, with the government of the United States.'"

Having distinguished the case from that of Langford, the court proceeded to say: "In such a case it is difficult to perceive why the legal obligation of the United States to pay for what was thus taken pursuant to an act of congress is not quite as strong as it would have been had formal proceedings for condemnation been resorted to for that purpose. If the claimant makes no objection to the particular mode in which the property has been taken, but substantially denies it, by asserting, as is done in the petition in this case, that the government took the property for the public uses designated, we do not perceive that the court is under any duty to make the objection in order to relieve the United States from the obligation to make just compensation."

It will be noticed that this decision, in terms so applicable to the present case, was made before the act of March 3, 1887, in which, for the first time, an express remedy was given for "all claims founded upon the constitution of the United States," and in "respect to claims for which the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable."

In the present case, although no express proceedings have been instituted by the United States to condemn the property for public use, yet it is admitted in the pleas that the United States have taken possession of it for a public use or purpose; and by various acts of congress, of which we can

take judicial notice, large sums of money have been granted to construct and maintain the lighthouse on the site in question.

The opinion of the court seeks to withdraw the case from the operation of the constitution and the act of 1887, and to bring it within the decision of the Langford Case, by contending that, because the United States by their pleas deny the plaintiff's right to recover, the acts complained of are thereby shown to have been sheer torts, and therefore expressly exempted from judicial cognizance. I am unable to see the force of this reasoning. The statute having provided that all claims founded upon provisions of the constitution shall be enforceable, surely a district attorney of the United States cannot by a mere plea, not denying the plaintiff's title to his land, but claiming that the land is legally subject to a servitude in favor of the United States, which exonerates them from making compensation, deprive the plaintiff of his right under the statute to have his claim adjudicated. Can it be possible that, after congress, in recognition of the constitutional provision and of the repeated suggestions of this court, has provided a legal remedy, a subordipate legal functionary can by a plea, either of matter of fact or of law, defeat the beneficent purpose of congress, deprive the plaintiff of his remedy, and convert the United States, against their will, as expressed in the constitution and the act of congress, into a wrongdoer? I cannot accept the proposition that, by a plea putting the plaintiff upou proof of his claim, the United States thereby escape from their constitutional covenant, and nullify the statute which provides a remedy.

The question presented by the second plea in the court below is, no doubt, one of difficulty and importance, which, if and when it comes before this court, will demand sericonsideration; but that question is waived by the opinion of the court, and any discussion of it in this opinion would be out of place.

ous

I therefore have a right to assume that the property of the plaintiff below, though held subject to the right of eminent domain, is entitled to the protection of the constitution; that there is no kind of private property, whatever may be its nature or origin, that can be taken for public use without just compensation being made.

Hence it foliows that the court below orred in overruling*the demurrer to the second plea. I think the judgment of the court below should be reversed, and the cause be remanded to the circuit court to proceed therein in exercise of the jurisdiction conferred upon it in such ample terms by the act of March 3, 1887.

*605

*604

1. It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Nishimura Ekiu v. U. S., 12 Sup. Ct. Rep. 336, 142 U. S. 651; Chae Chan Ping v. U. S., 9 Sup. Ct. Rep. 623, 130 U. S. 581; Knox v. Lee, 12 Wall. 457,-followed.

2. The right of a nation to expel or deport foreigners who have not been naturalized or taken any steps towards becoming citizens of the country rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.

3. The political department of the federal government, through the constitutional grant to it of control over international relations, has authority to expel aliens who have taken no steps to become citizens, even though they are subjects of a friendly power, and have acquired a domicile in this country. Mr. Chief Justice Fuller, Mr. Justice Field, and Mr. Justice Brewer, dissenting.

4. Chinese laborers who came to this country after the making of the Chinese treaties of July 28, 1868, and November 17, 1880, (16 Stat. 740; 22 Stat. 826,) acquired no right thereunder, or under the acts of congress in relation to the Chinese, as denizens or otherwise, to remain in this country, except by the license, permission, and sufferance of congress, to be withdrawn whenever, in its opinion, the public welfare might require it. Mr. Chief Justice Fuller, Mr. Justice Field, and Mr. Justice Brewer, dissenting. Chae Chan Ping v. U. S., 9 Sup. Ct. Rep. 623, 130 U. S. 581, followed.

5. Chinese laborers residing in the United States are entitled, like all other aliens, so long as they are permitted by the government to remain in the country, to all the safeguards of the constitution, and to the protection of the laws in regard to their rights of person and of property, and to their civil and criminal responsibility; but, as they have taken no steps to become citizens, and are incapable of becoming such under the naturalization laws, they remain subject to the power of congress to order their expulsion or deportation whenever, in its judgment, such a measure is necessary or expedient for the public interest. Mr. Chief Justice Fuller, Mr. Justice Field, and Mr. Justice Brewer, dissenting.

6. The act of May 5, 1892, requires in section 6 that all Chinese laborers entitled to remain in this country shall within one year from the date of the act obtain from the collector of internal revenue of the districts in which they reside, free of cost, a certificate of residence, which shall be in the nature of a passport enabling him to go into all parts of the United States, and which shall be recorded in the office of the collector; and provides that Chinese laborers who neglect to obtain such certificates, or are found in the United States without then, "shall be deemed and adjudged to be unlawfully within the United States, and may be arrested by any customs official, collector of internal revenue or his deputies, United States marshal or his deputies, and taken before a United States judge." The act makes it the duty of the judge to order that such laborer be deported from the United States, "unless he

shall establish clearly, to the satisfaction of said judge, that by reason of accident, sickness, or other unavoidable cause he has been unable to procure his certificate, and to the satisfaction of the court, by at least one credible white witness, that he was a resident of the United States at the time of the passage of the act." Held, that the proceeding here provided for is in no proper sense a trial and sentence for crime, nor is the order of deportation a banishment in the technical sense, but the whole proceeding is merely a method of enforcing the return to his own country of an alien who fails to comply with the conditions prescribed for his continued residence here; and the provisions of the constitution requiring due process of law and trial by jury, and prohibiting unreasonable searches and seizures and cruel and unusual punishments, have no application. Mr. Chief Justice Fuller, Mr. Justice Field, and Mr. Justice Brewer, dissenting.

7. The provision which puts the burden of proof upon a Chinese laborer arrested for having no certificate, as well as the requirement of proof by one credible white witness that he was a resident of the United States at the time of the passage of the act, is within the acknowl edged power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence in the courts of its own government.

8. The provisions of an act of congress passed in the exercise of its constitutional authority must prevail even if they contravene the express stipulations of an earlier treaty.

Appeals from the circuit court of the United States in and for the southern district of New York. Affirmed.

Statement by Mr. Justice GRAY:

These were three writs of habeas corpus, granted by the circuit court of the United States for the southern district of New York. upon petitions of Chinese laborers arrested and held by the marshal of the district for not having certificates of residence, under section 6 of the act of May 5, 1892, c. 60, which is copied in the margin.1

'An act to prohibit the coming of Chinese persons into the United States.

Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that all laws now in force prohibiting and regulating the coming into this Country of Chinese persons and persons of Chinese descent are hereby continued in force for a period of ten years from the passage of this act.

Sec. 2. That any Chinese person or person of Chinese descent, when convicted and adjudged under any of said laws to be not lawfully entitled to be or remain in the United States, shall be removed from the United States to China, unless he or they shall make it appear to the justice, judge, or commissioner before whom he or they are tried that he or they are subjects or citizens of some other country, in which case he or they shall be removed from the United States to such country: provided, that in any case where such other country, of which such Chinese person shall claim to be a citizen or subject, shall demand any tax as a condition of the removal of such person to that country, he or she shall be removed to China.

Sec. 3. That any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully within the United States, unless such person shall estab lish, by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States.

Sec. 4. That any such Chinese person or per

*690

The rules and regulations made and prouulgated by the secretary of the treasury ander section 7 of that act prescribe* forms for applications for certificates of residence, for affidavits in support thereof, and for the certificates themselves; contain the pro

son of Chinese descent convicted and adjudged to be not lawfully entitled to be or remain in the United States shall be imprisoned at hard labor for a period of not exceeding one year, and thereafter removed from the United States, as hereinbefore provided.

Sec. 5. That after the passage of this act, on an application to any judge or court of the United States in the first instance for a writ of habeas corpus, by a Chinese person seeking to land in the United States, to whom that privilege has been denied, no bail shall be allowed, and such application shall be heard and determined promptly, without unnecessary delay.

Sec. 6. And it shall be the duty of all Chinese laborers within the limits of the United States at the time of the passage of this act, and who are entitled to remain in the United States, to apply to the collector of internal revenue of their respective districts, within one year after the passage of this act, for a certificate of residence; and any Chinese laborer within the limits of the United States, who shall neglect, fail, or refuse to comply with the provisions of this act, or who, after one year from the passage hereof, shall be found within the jurisdiction of the United States without such certificate of residence, shall be deemed and adjudged to be unlawfully within the United States, and may be arrested by any United States customs official, collector of internal revenue or his deputies, United States marshal or his deputies, and taken before a United States judge, whose duty it shall be to order that he be deported from the United States, as hereinbefore provided, unless he shall establish clearly, to the satisfaction of said judge, that by reason of accident, sickness, or other unavoidable cause he has been unable to procure his certificate, and to the satisfaction of the court, and by at least one credible white witness, that he was a resident of the United States at the time of the passage of this act; and if upon the hearing it shall appear that he is so entitled to a certificate, it shall be granted, upon his paying the cost. Should it appear that said Chinaman had procured a certificate which has been lost or destroyed, he shall be detained, and judgment suspended a reasonable time to enable him to procure a duplicate from the officer granting it: and in such cases the cost of said arrest and trial shall be in the discretion of the court. And any Chinese person other than a Chinese laborer, having a right to be and remain in the United States, desiring such certificate as evidence of such right, may apply for and receive the same without charge.

Sec. 7. That immediately after the passage of this act the secretary of the treasury shall make such rules and regulations as may be necessary for the efficient execution of this act, and shall prescribe the necessary forms and furnish the necessary blanks to enable collectors of internal revenue to issue the certificates required hereby, and make such provisions that certificates may be procured in localities convenient to the applicants. Such certificates shall be issued without charge to the applicant, and shall contain the name, age, local residence, and occupation of the applicant, and such other description of the applicant as shall be prescribed by the secretary of the treasury; and a duplicate thereof shall be filed in the office of the collector of internal revenue for the district within which such Chinaman makes application.

Sec. 8. That any person who shall knowingly

visions copied in the margin;' and also provide for recording duplicates of the certificates in the office of the collector of internal revenue.

The first petition alleged that the petitioner was a person of the Chinese race, born in China, and not a naturalized citizen of the United States; that in or before 1879 he came to the United States, with the intention of remaining and taking up his residence therein, and with no definite intention of returning to China, and had ever since been a permanent resident of the United States, and for more than a year last past had resided in the city, county, and state of New York, and within the second district for the collection of internal revenue in that state; that he had not, since the passage of the act of 1892, applied to the collector of internal revenue of that district for a

and falsely alter or substitute any name for the name written in such certificate, or forge such certificate, or knowingly utter any forged or fraudulent certificate, or falsely personate

any person named in such certificate, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not exceeding one thousand dollars, or imprisoned in the penitentiary for a term of not more than five years.

Sec. 9. The secretary of the treasury may authorize the payment of such compensation in the nature of fees to the collectors of internal revenue, for services performed under the provisions of this act, in addition to salaries now allowed by law, as he shall deem necessary, not exceeding the sum of one dollar for each certificate issued.

"Collectors of internal revenue will receive applications on the following form, at their own offices, from such Chinese as are conveniently located thereto, and will cause their deputies to proceed to the towns or cities in their respective divisions where any considerable number of Chinese are residing, for the purpose of receiving applications. No application will be received later than May 5, 1893.

Collectors and deputies will give such notice, through leading Chinese, or by notices posted in the Chinese quarter of the various localities, as will be sufficient to apprise all Chinese residing in their districts of their readiness to receive applications, and the time and place where they may be made. All applications received by deputies must be forwarded to the collector's office, from whose office all certificates of residence will be issued, and sent to the deputy for delivery.

The affidavit of at least one credible witness of good character to the fact of residence and lawful status within the United States must be furnished with every application. If the applicant is unable to furnish such witness satisfactory to the collector or his deputy, his application will be rejected, unless he shall furnish other proof of his right to remain in the United States, in which case the application, with the proofs presented, shall be forwarded to the commissioner of internal revenue for his decision. The witness must appear before the collector or his deputy, and be fully questioned in regard to his testimony before being sworn. In all cases of loss or destruction of original certificates of residence, where it can be established to the satisfaction of the collector of the district in which the certificate was issued that such loss or destruction was accidental. and without fault or negligence on the part of the applicant, a duplicate of the original may be issued under the same conditions that governed the original issue.