[193] Nor is it possible to concede that personal service of notice of the application for a discharge is required. Proceedings in bankruptcy are, generally speaking, in the nature of proceedings in rem, as Mr. Justice Grier remarked in Shawhan v. Wherritt, 7 How. 643, 12 L. ed. 854. And in New Lamp Chimney Co. v. Ansonia Brass & Copper Co. 91 U. S. 662, 23 L. ed. 339, it was ruled that a decree adjudg ing a corporation bankrupt is in the nature of a decree in rem as respects the status of the corporation. Creditors are bound by the proceedings in distribution on notice by publication and mail, and when jurisdiction has attached and been exercised to that extent, the court has jurisdiction to decree discharge, if sufficient opportunity to show 3. 4. act of 1888 (25 Stat. at L. 476, chap. 1015), and 3 of the act of 1892, while the act of March 3, 1901, § 1 (31 Stat. at L. 1093, chap. 845), expressly authorizes the district attorney to designate the commissioner before whom a Chinese person may be brought. The mere assertion of citizenship cannot deprive a United States commissioner of his statutory jurisdiction to adjudge a Chinese person to be unlawfully within the United States unless he "shall establish by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States." A re-examination of the facts bearing upon the question whether a Chinese person is unlawfully in the United States, which was decided in the affirmative by a United States commissioner and by a judge of the district court on appeal from the commissioner's decision, will not be entered upon by the Supreme Court on appeal, although such appeal was taken under the act of March 3, 1891, § 5, on the ground that the construction of a treaty with China was drawn in question, and the Supreme Court has, therefore, jurisdiction to dispose of the entire case. [No. 525.] 2, 1902. APPEAL from the District Court of the United States for the Northern District of New York to review a judgment which af firmed a judgment of a commissioner of the United States for the Northern District of New York ordering the deportation of a Chinese laborer. Affirmed. cause to the contrary is afforded, on notice Argued March 13, T4, 1902. Decided June Judgment affirmed. *CHIN BAK KAN. Appt., v. UNITED STATES. (See S. C. Reporter's ed. 193 201.) Aliens-Chinese exclusion-jurisdiction of 1. A lack in the complaint of positive aver- 2. Statement by Mr. Chief Justice Fuller: Complaint under oath was duly made before a commissioner of the United States for the northern district of New York. charging "that Chin Bak Kan did, on or about the 13th day of March, 1901, at Burke in said district, knowingly and wrongfully come from Canada, in the province of Quebec, into the northern district of New York, to wit: into Burke in the county of Franklin and state of New York, in the United States. he, the said Chin Bak Kan. being then and there a Chinese person and laborer, and a person prohibited by the laws of the United States of America from being and remaining in the United States, and he, the said Chin Bak Kan, then and there being such Chinese person as aforesaid, was then and there found unlawfully in the United States at Burke aforesaid, in violation of the acts of the Congress in such case made and provided." The provision in the Chinese exclusion act A warrant for the apprehension of Chin of 1892, § 6 (27 Stat. at L. 25, chap. 60), Bak Kan was issued March 13, 1901, and that Chinese laborers without certificates may be "taken before a United States judge." he was arrested and brought before the comis satisfied by a proceeding before a "justice, missioner. He was informed of the charge judge, or commissioner," which are the words against him, advised that he would be perused in § 12 of the act of 1882 (22 Stat. at mitted to make a statement without or with L. 58, chap. 126), § 12 of the act of 1884 oath, or to refuse to make any statement or (23 Stat. at L. 115, chap. 220), § 13 of the to answer any question put to him, and[194] NOTE--On direct review, in United States was entitled to reasonable time to send Supreme Court, of circuit and district court for counsel and procure the attendance judgments and decrces-see note to Gwin v. of witnesses. He pleaded not guilty to United States, ante, p. 741. the charge, "but admitted that he had just 186 U. S. 1 It constitutes an unauthorized delegation of judicial power. United States v. Rider, 50 Fed. 406; United States v. Keokuk & H. Bridge Co. 45 Fed. 178. Compare Rider v. United States, 178 U. S. 251, 44 L. ed. 1057, 20 Sup. Ct. Rep. 838. Such course is contrary to due process of law. come into the United States." He was ed. 436, note; Kilbourn v. Thompson, 103 thereafter represented by counsel. Subse- U. S. 168, 26 L. ed. 377; Interstate Comquently a hearing and trial was commenced merce Commission v. Brimson, 154 U. S. before the commissioner who issued the 447, 38 L. ed. 1047, 4 Inters. Com. Rep. 545, warrant. That officer having been taken 14 Sup. Ct. Rep. 1125. sick, the hearing was continued and concluded before another commissioner, who found and adjudged upon the evidence as follows: "I now hereby find and adjudge that the said Chin Bak Kan is a Chinese person and laborer, that he is not a diplomatic or other officer of the Chinese or any other government, and unlawfully entered the United States, as charged in said complaint. And I further adjudge him, said Chin Bak Kan, guilty of not being lawfully entitled to be or remain in the United States. I further find and adjudge that he, said Chin Bak Kan, came from the Empire of China, but he has not made it appear to me that he was a subject or citizen of some other country than China. And I hereby order and adjudge said Chin Bak Kan to be immediately removed from the United States to the Empire of China. A certified copy of this judgment shall be the process upon which said removal of said Chin Bak Kan shall be made from the United States to the Empire of China. And said process shall be executed by the Hon. C. D. MacDougall, United States marshal for said district." United States v. Claflin, 97 U. S. 546. 24 L. ed. 1082. It is not consistent with the theory of our government that the legislature should, after having defined an offense as an infamous crime, find the fact of guilt and adjudge the punishment by one of its own agents. Wong Wing v. United States, 163 U. S. 228, 41 L. ed. 140, 16 Sup. Ct. Rep. 977. Such course is inconsistent with the fundamental principles of our government, by which executive and judicial powers are separated. Hayburn's Case, 2 Dall. 409, note, 1 L. Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383. And makes the prosecuting officer in some measure a judge in his own case. Cooley, Const. Lim. 5th ed. pp. 410-413; 6 Am. & Eng. Enc. Law, 2d ed. p. 1054. Chinese persons born in the United States are citizens of the United States. United States v. Wong Kim Ark, 169 U. S. 649, 42 L. ed. 899, 18 Sup. Ct. Rep. 456. Persons claiming American citizenship cannot have their rights passed upon or violated by the application of such principles. which are applicable only to aliens. Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1016. The laws applicable at the time of the arrest and trial of these defendants, even if they be regarded as aliens, required a complaint on oath, and not mere information and belief, as a prerequisite to the commissioner's taking jurisdiction. Wong Wing v. United States, 163 U. S. 229, 41 L. ed. 140, 16 Sup. Ct. Rep. 977; United States v. Long Hop, 55 Fed. 58. Complaints on information and belief alone, stating no sources or grounds of information or belief, are insufficient to confer jurisdiction. Rice v. Ames, 180 U. S. 371, 45 L. ed. 577. 21 Sup. Ct. Rep. 406; Ex parte Hart, 28 L. R. A. 801, 11 ̊C. C. A. 165, 25 U. S. App. 22, 63 Fed. 249; Ex parte Lane, 6 Fed. 34: United States v. Turcaud, 20 Fed. 621: United States v. Sapinkow, 90 Fed. 654. The commissioner had no jurisdiction over appellants because of their claim of American citizenship. United States v. Yee Mun Sang, 93 Fed. 365; Re Look Tin Sing, 10 Sawy. 353, 21 Fed. 905; Re Yung Sing Hee, 36 Fed. 437; Ex parte Chin King, 35 Fed. 354; Re Tom Yum, 64 Fed. 485; Gee Fook Sing v. United States, 1 C. C. A. 211, 7 U. S. App. 27, 49 Fed. 146; Re Di Simone, 108 Fed. 942. United States commissioners are not "judges in the constitutional sense." Rice v. Ames, 180 U. S. 371, 45 L. ed. 577, 21 Sup. Ct. Rep. 406: Todd v. United States, 158 U. S. 278, 39 L. ed. 982, 15 Sup. Ct. Rep. 889. And are not vested with any part of the judicial power of the United States. Robertson v. Baldwin, 165 U. S. 275, 41 L. ed. 715, 17 Sup. Ct. Rep. 326; Martin v. Hunter, 1 Wheat. 304, 4 L. ed. 97: Chisholm v. Georgia, 2 Dall. 419, 1 L. ed. 440. The deportation procedure in Chinese ex clusion cases has not been sustained as an Re Gin Fung, 89 Fed. 153; United States exercise of judicial power, but as a constitutional method of dealing with conceded aliens, whose rights might have been left to the determination of purely executive offi cers. Re Chow Goo Pooi, 9 Sawy. 606, 25 Fed. 77; Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1016; Lem Moon Sing v. United States, 158 U. S. 538, 39 L. ed. 1082, 15 Sup. Ct. Rep. 967; Li Sing v. United States, 180 U. S. 486, 45 L. ed. 634, 21 Sup. Ct. Rep. 449; United States v. Hom Hing, 48 Fed. 635; Wong Wing v. United States, 163 U. S. 228, 41 L. ed. 140, 16 Sup. Ct. Rep. 977. The commissioner's right to punish for contempt committed before him has been denied, because he exercises none of the judicial' power of the United States, under the Constitution. Re Mason, 43 Fed. 510; Ex parte Perkins, 29 Fed. 909; Ex parte Doll, 7 Phila. 595, Fed. Cas. No. 3,968. Compare United States v. Schumann, 2 Abb. U. S. 523, Fed. Cas. No. 16,235. Every proposed Chinese witness is himself subject to arrest and liable to be deported without cause, if he meets with government disfavor, so that the Chinese inspectors maintain a reign of terror among the Chinese, inconsistent with giving honest government evidence in these cases, and bound to elicit false testimony. This is not due process of law. Wong Wing v. United States, 163 U. S. 228, 41 L. ed. 140, 16 Sup. Ct. Rep. 977; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780. 18 Sup. Ct. Rep. 383. The question of citizenship being a jurisdictional one, this court is not bound by any finding against it that may be spelled out of the record. Re Mayfield, 141 U. S. 107, 35 L. ed. 635, 11 Sup. Ct. Rep. 939; Re Cuddy, 131 U. S. 280, 33 L. ed. 154, 9 Sup. Ct. Rep. 703; Er parte Farley, 40 Fed. 66. Even on appeal in habeas corpus proceedings, the lower court cannot make conclusive findings of fact on jurisdictional questions, shutting out review of the facts. Johnson v. Sayre, 158 U. S. 109, 39 L. ed. 914, 15 Sup. Ct. Rep. 773. In fact there is no finding in the record on this material question in issue, and its absence nullifies the order of deportation. Saltonstall v. Birtwell, 150 U. S. 417, 37 L. ed. 1128, 14 Sup. Ct. Rep. 169. Under § 3 of the act of 1892, even if a Chinese person was rejected, his right to remain here was to be determined by affirmative evidence in judicial proceedings, independently of any action by the collector. Li Sing v. United States, 180 U. S. 486, 45 L. ed. 634, 21 Sup. Ct. Rep. 449; United States v. Chin Fee, 94 Fed. 828; United States v. Wong Chung, 92 Fed. 141. The record shows that an appeal to the Secretary of the Treasury was taken from the action of the collector. Such determination by the collector, thus superseded, is not binding on the courts. v. Wong Chung, 92 Fed. 141; Re Monaco, 86 Fed. 117. See Passavant V. United States. 148 U. S. 214, 37 L. ed. 426, 13 Sup. Ct. Rep. 572. 'The intent to effect a repeal, by treaty, of a prior statute, can more lightly be inferred than the converse case, because the treaty involves the element of international faith, in addition to mere legislation; and in construing a statute claimed to be inconsistent with a treaty, the canon of constructionof finding unmistakably expressed legislative intent to violate treaty faith-must be applied. Geofroy v. Riggs, 133 U. S. 258, 33 L. ed. 642, 10 Sup. Ct. Rep. 295. Assistant Attorney General Hoyt argued the cause and filed a brief for appellee: Formal defects in the proceedings do not invalidate the statute, or the jurisdiction, or proceedings thereunder. Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1016; Chow Loy v. United States, 50 C. C. A. 279, 112 Fed. 354. The situation on this appeal is analogous to habeas corpus proceedings, in which, on original application, the only question is whether the proceedings complained of were wholly void, or whether there was no legal authority for the action resulting in the petitioner's detention. Re McKenzie, 180 U. S. 536, 45 L. ed. 657, 21 Sup. Ct. Rep. 468. In such cases the revision in the appellate court goes to the authority of the lower tribunal and the legality of its action, but does not pass upon the facts, or review the proceedings below when duly authorized. Benson v. McMahon, 127 U. S. 457, 32 L. ed. 234, 8 Sup. Ct. Rep. 1240; Re Cortes, 136 U. S. 330, sub nom. Cortes v. Jacobus, 34 L. ed. 464, 10 Sup. Ct. Rep. 1031; Nishimura Ekiu v. United States, 142 U. S. 651, 35 L. ed. 1146, 12 Sup. Ct. Rep. 336: Re Lennon, 150 U. S. 393, 37 L. ed. 1120, 14 Sup. Ct. Rep. 123, 166 U. S. 548, 41 L. ed. erts, 177 U. S. 496, 44 L. ed. 861, 20 Sup. 1110, 17 Sup. Ct. Rep. 658; Carter v. RobCt. Rep. 713; Carter v. McClaughry, 183 U. S. 365, ante, 236, 22 Sup. Ct. Rep. 181. Uncontradicted evidence of interested witnesses to an improbable fact does not require judgment to be rendered accordingly. Quock Ting v. United States, 140 U. S. 417, 35 L. ed. 501, 11 Sup. Ct. Rep. 733, 851; United States v. Leung Quong, 111 Fed. 1007; Re Jew Wong Loy, 91 Fed. 240. See also Gee Fook Sing v. United States, 1 C. C. A. 211, 7 U. S. App. 27, 49 Fed. 146; United States v. Lee Pon, 94 Fed. 827; Re Louie You, 97 Fed. 580. A United States commissioner is a quasi judicial officer. Re Kaine, 14 How. 103, 14 L. ed. 345; United States v. Jones, 134 U. S. 483, 33 L. ed. 1007. 10 Sup. Ct. Rep. 515; United States v. Allred, 155 U. S. 591, 39 L. ed. 273, 15 Sup. Ct. Rep. 231. A United States commissioner is a "United States judge" within the meaning | tling such Chinese person to come into the of 6 of the act of 1892. Re Wong Fock, 81 Fed. 558. Mr. Chief Justice Fuller delivered the opinion of the court: By § 1 of the act of May 6, 1882 (22 Stat. [195 at L. 58, chap. 126), it was provided that from and after the expiration of ninety days, and until the expiration of ten years, the coming of Chinese laborers to the United States should be suspended, and during such suspension it was made unlawful for any Chinese laborer to come, or, having come after the expiration of said ninety days, to remain within the United States. United States, who may not have been permitted to land from any vessel by reason of any of the provisions of this act." By 1 of the act of May 5, 1892 (27 Stat. at L. 25, chap. 60), it was provided: "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 the period of ten years from the passage of this act." Sections 2, 3, and 6 were as follows: "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 By 4 provision was made for certificates United States, shall be removed from the to be granted to such Chinese as were enti-United States to China, unless he or they tled, under the treaty of November 17, 1880, shall make it appear to the justice, judge, to go from, or come to, the United States, or commissioner before whom he or they are of their free will and accord, in order to tried that he or they are subjects or citizens identify them. 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. The 12th section of the act was as follows: "That no Chinese person shall be permitted to enter the United States by land without producing to the proper officer of customs the certificate in this act required of Chinese persons seeking to land from a vessel. And any Chinese person found unlawfully within the United States shall be caused to be removed therefrom to the country from whence "Sec. 3. That any Chinese person or perhe came, by direction of the President of the son of Chinese descent arrested under the United States, and at the cost of the United provisions of this act or the acts hereby exStates, after being brought before some jus- tended shall be adjudged to be unlawfully tice, judge, or commissioner of a court of the within the United States unless such person United States, and found to be one not law-shall establish, by affirmative proof, to the fully entitled to be or remain in the United States." satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States." This section was amended by the act of July 5, 1884 (23 Stat. at L. 115, chap. 220), "Sec. 6. And it shall be the duty of all so as to read as follows: "That no Chinese Chinese laborers within the limits of the person shall be permitted to enter the United United States, at the time of the passage of States by land without producing to the this act, and who are entitled to remain in proper officer of customs the certificate in the United States, to apply to the collector this act required of Chinese persons seeking of internal revenue of their respective "dis- 197 to land from a vessel. And any Chinese per-tricts. within one year after the passage of son found unlawfully within the United this act, for a certificate of residence, and States shall be caused to be removed there any Chinese laborer, within the limits of the from to the country from whence he came, United States, who shall neglect, fail, or reand at the cost of the United States, after fuse to comply with the provisions of this being brought before some justice, judge, or act, or who, after one year from the passage commissioner of a court of the United States hereof, shall be found within the jurisdieand found to be one not lawfully entitled to tion of the United States without such cerbe or to remain in the United States; and tificate of residence, shall be deemed and adin all such cases the person who brought or judged to be unlawfully within the United aided in bringing such person to the United States, and may be arrested, by any United States shall be liable to the government of States customs official, collector of internal the United States for all necessary expenses revenue or his deputies, United States marincurred in such investigation and removal; shal or his deputies, and taken before a and all peace officers of the several states 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 and territories of the United States are hereby invested with the same authority as [196ja marshal or *United States marshal in ref. erence to carrying out the provisions of this act or the act of which this is amendatory, as a marshal or deputy marshal of the United States, and shall be entitled to like compensation, to be audited and paid by the same officers. And the United States shall pay all costs and charges for the maintenance and return of any Chinese person having the certificate prescribed by law as enti certificate, it shall be granted upon his pay- | ing 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.' Section 6 was amended by the act of November 3, 1893 (28 Stat. at L. 7, chap. 14). Article 1 of the treaty with China, proclaimed November 8, 1894 (28 Stat. at L. 1210), was: "The high contracting parties agree that for a period of ten years, beginning with the date of the exchange of the ratifications of this convention, the coming, except under the conditions hereinafter specified, of Chinese laborers to the United States shall be absolutely prohibited." Article 2 provided: "The preceding ar[198]ticle shall not apply to the return to the United States of any registered Chinese laborer who has a lawful wife, child, or parent in the United States, or property therein of the value of $1,000, or debts of like amount due him and pending settlement. And no such Chinese laborer shall be permitted to enter the United States by land or sea without producing to the proper officer, of the customs the return certificate herein required." attorney of the district in which any Chinese. person may be arrested for being found unlawfully within the United States, or having unlawfully entered the United States, to designate the United States commissioner within such district before whom such Chinese person shall be taken for hearing. "Sec. 2. That a United States commissioner shall be entitled to receive a fee of five dollars for hearing and deciding a case arising under the Chinese exclusion laws. *"Sec. 3. That no warrant of arrest for vi-[199) olations of the Chinese exclusion laws shall be issued by the United States commissioners excepting upon the sworn complaint of a United States district attorney, assistant United States district attorney, collector, deputy collector, or inspector of customs, immigration inspector, United States marshal, or deputy United States marshal, or Chinese inspector, unless the issuing of such warrant of arrest shall first be approved or requested in writing by the United States district attorney of the district in which issued." The errors assigned may be grouped into those which presented the question of the effect of the treaty of 1894 by way of repeal, and these have been disposed of by our decision in United States v. Lee Yen Tai, 185 U. S. 213, ante, 878, 22 Sup. Ct. Rep. 629: those in respect of the assertion of citizenship and the action taken thereon; and certain objections of want of jurisdiction because of insufficiency of the complaint. The latter relate to lack of positive averment of the facts, and as to the official character of the person who made the complaint. The complaint was made by one Ketchum, and, although it was not therein stated, it appears from the official register of the govern ment that he was a Chinese inspector, and Article 5: "The government of the United States, having by an act of the Congress, approved May 5, 1892, as amended by an act approved November 3, 1893, required all Chinese laborers lawfully within the lim-as such authorized under the statute. its of the United States before the passage of the first-named act to be registered as in said acts provided, with a view of affording them better protection, the Chinese government will not object to the enforcement of such acts, and reciprocally the government of the United States recognizes the right of the government of China to enact and enforce similar laws or regulations for the registration, free of charge, of all laborers, skilled or unskilled (not merchants as defined by said acts of Congress), citizens of the United States in China, whether residing within or without the treaty ports." The charge was made on information and belief, but no objection was raised to the complaint on that ground, and we think the ruling in Fong Yue Ting v. United States, 149 U. S. 729, 37 L. ed. 918, 13 Sup. Ct. Rep. 1016, applies that defects in complaint or pleadings do not affect the authority of the commissioner or judge or the validity of the statute. In United States v. Lee Yen Tai, just decided (185 U. S. 213, ante, 878, 22 Sup. Ct. Rep. 629), the question was propounded to us by the circuit court of appeals for the second circuit on certificate: "Is § 12 of 'An Act to Execute Certain Treaty Stipulations Relating to the Chinese, Approved May 6, 1882,' as amended by § 3 of the amendatory act of July 5, 1884, repealed by the treaty or convention with China of December 8, 1894?" and that question we answered in the negative. The act of March 3, 1901 (31 Stat. at L. 1093, chap. 845), provides: "That it shall be lawful for the district Something is said in respect of want of jurisdiction in the commissioner because § G of the act of 1892 provides that Chinese laborers without certificates may be "taken before a United States judge;" but we concur in the views of the circuit court of appeals for the ninth circuit in Fong Mey Yuk v. United States, 113 Fed. 898, that the act is satisfied by proceeding before "a justice, judge, or commissioner." These are the words used in § 12 of the act of 1882; § 12 of the act of 1884; § 13 of the act of 1888; and § 3 of the act of 1892; while the 1st section *of the act of March 3, 1901, explicitly[200] authorizes the district attorney to designate the commissioner before whom the Chinese person may be brought. The words "United States judge," "judge" and "court," in § 6, seem to us to refer to the tribunal author'ized to deal with the subject, whether com |