It is by no means clear that the petitioner would not have found the officer having his certificate, had proper enquiry been made. His willingness to depart without effort for that purpose tends to create a suspicion as to his conduct. But assuming that there was no purpose to facilitate the use of the certificate by another, whilst he retained the tag, no relief can be afforded him on this application. The restriction act of May 6, 1882, suspended after ninety days from its passage, and for the period of ten years from its date, the right of Chinese laborers to come to the United States, or, if already come, to remain unless they were within the United States on the seventeenth of November, 1880, or should come before the expiration of ninety days after the passage of the act. For the purpose of identifying the laborers in the United States on the seventeenth of November, or coming within the ninety days mentioned, and in order to furnish them with proper evidence to depart from and return to the United States, the act provided that a certificate as already described, after registration of the particulars mentioned, should be issued to the laborer; and the amendatory act of 1884 declares that "said certificate shall be the only evidence permissible to establish his right of re-entry." This declaration is as applicable to the certificate issued under the act of 1882, as to that issued under the act of 1884. In the face of its clear and emphatic direction nothing can be taken as an equivalent or substitute for the certificate. It matters not that the petitioner was entitled to have a certificate from the collector. If he has not got it, the court cannot help him. That is the "only evidence permissible," says the statute, and the court has no power to dispense with its requirement in any case, however great its hardship. The court is itself but the servant of the law, and equally bound with others to follow and obey it. If the collector refuses to the Chinese laborer any rights to which, under the restriction act, he is entitled, he should apply to the superior of the collector at Washington, the head of the treasury department, for proper instructions to him. The court has no supervising jurisdiction over the manner in which he discharges his duty.

The writ must therefore be discharged and the petitioner be remanded. If, as stated by counsel, the vessel on which the petitioner arrived has left the port of San Francisco since his arrival, the marshal can place him on any other vessel of the steamship company when it is about to depart for China, to be deported, and for the expenses attending the charge of the party and his removal, the company will be liable: Act of 1884, sec. 12. The acts of congress, both original and amendatory, contemplate that parties unlawfully bringing here laborers prohibited from landing, shall take them back to the country from which they are brought, or at least beyond the jurisdiction of the United States, and the steamship company cannot escape from this duty by the departure of the vessel on which they are brought, or any change in its officers or management.

Writ dismissed and petitioner remanded.

SAWYER, CIRCUIT JUDGE. On the argument of this case before myself and the district judge, we were both satisfied, that the petitioner was not entitled to land on the presentation to the deputy collector of his preliminary white tag, delivered to him at the custom house, as evidence of his right to the proper certificate, accompanied by the explanation given of his failure to produce the certificate required by the act, and the other evidence, satisfactory, if admissible, produced of his residence in San Francisco at the date of the treaty of November 17, 1880; and we were prepared to decide, that he must be remanded to the custody of the master of the steamship on which he arrived, to be retransported to China, whence he

came.

We held in the case of Leong Yick Dew, 2 West Coast Rep., 83, that under the act of 1882, in force, at the date of his departure, the prescribed certificate is the only evidence upon which a Chinese laborer, to whom the provisions of section 4 are applicable, can be permitted to land. The same ruling was made by the district judge in the case of hong Toon, 3 W. C. Rep., 597. Under the amendatory act of 1884, if that act were applicable, the certificate prescribed in section 4 of the act, is, in express terms, made the only evidence upon which a Chinese laborer, to whom the provisions of that section are applicable, is authorized to be landed. The language is not open to any other possible construction. Such was the view, generally expressed, taken by us in the case of Ah Quan: 21 Fed. Rep., 182.

The petitioner in this case, was, undoubtedly, entitled to his certificate, but he was negligent in not procuring it. It was his own fault that he departed without it. At all events, whether he was negligent or not, the law prescribes this certificate, as the only evidence of his right to en-enter the country, and we are not authorized to dispense with it on the grounds set up, or any other. If he did not obtain his certificate, it was not the fault of the law. The certificate is made by the statute, the only admissible evidence of a right to re-enter the United States. If, from his own failure to pursue the mode prescribed by the statute, and reasonable regulations made by the collector for the purpose of facilitating the performance of the duties imposed upon him by law in relation to departing Chinese, a party fails to obtain the prescribed certificate; or, if for any reason, the oflicers appointed to execute the law, either rightfully, or wrongfully, refuse to furnish the certificate, this affords no ground for the courts to dispense with it. No dispensing power has been conferred upon the Courts, The fault is not with the law, in such cases, but with the party himself, or in the administration of the law by the duly appointed officers, and the remedy, in either case, is not to be found in any dispensing power in the courts. The courts must administer the law as they find it, however severe in its requirements, and they are not authoriged to amend, or abrogate it. If the law works hardship in particular cases, the remedy must be sought elsewhere. While this was our view, the question is one of interna

tional importance, and there being no appeal to the supreme court, where such questions should be determined, and a justice of that court having jurisdiction to determine the question in the circuit court, being daily expected, we deemed it but just, and proper, that the question should be reargued and resubmitted for our joint consideration and decision. Our own views, it was thought, might possibly be modified by consultation and further discussion, or in case of a difference of opinion, the questions involved of so great importance might then be brought before the highest tribunal of the land, on a certificate of opposition of opinion, and thus be, authoritatively, and, finally, determined. Upon such further argument and consideration, we are fully confirmed in the correctness of the conclusion before reached, and we, therefore, concur in the order remanding the petitioner.

It has been suggested that the steamship has departed, and the question has arisen, and been fully argued, as to what shall be done with the petitioner in that case. Sec. 9 of the act requires the collector of the port, or his deputy, to go on board steamships from foreign ports, having on board Chinese passengers, examine such passengers, and compare the required certificates produced with his list, and with the passengers. And it then, provides, that, "No passenger shall be allowed to land in the United States from such vessel in violation of law. They are to remain on the vessel, to be carried away from the country, and the master, who should permit, or aid and abet, the unlawful landing of one of such persons, would be guilty of the offense created by the statute.

In obedience to the determination of the collector, in this case, the master refused to permit the petitioner to land, and this detention being claimed to be unlawful, a writ of habeas corpus was sued out to have the question as to whether the detention is lawful, or unlawful, judicially determined. This is a right which the law of the land gives him. The number of this class of cases is such, that it is found impossible, in practice, to determine all the cases before the departure of the steamer, and it becomes necessary, in such cases, to take the petitioner into the custody of the court, otherwise, he would be carried beyond its jurisdiction pending the proceeding, and his petition be thus rendered of no avail. When the body is produced in court, the petitioner is for the time being in the custody of the law, and he can be, temporarily, committed to the custody of the party producing him, if deemed safe to do so, or committed to the custody of the marshal, or admitted to bail, until the lawfulness of the detention can be inquired into, and determined. In such case when the steamer is about to, regularly, depart, on its regularly appointed voyage, and a party so confined is produced on a writ of habeas corpus and admitted to bail, or committed to the custody of the marshal, pending the investigation, although, actually, on shore, he is only, provisionally, so, and he has not in contemplation of law been landed, but, only, held in the custody of the law till it can be determined whether or not he is entitled to land. When that ques

tion has been determined against the petitioner, I have no doubt of the power of the court, to remand him on board the ship to the custody of the master, whether it be the same master, or another, who has in the meantime taken his place; and if the ship has departed pending the proceeding, that the petitioner can be detained by the marshal, by order of the court, till the return of the ship, to be then placed on board by the marshal, in the custody of the master; and that it is the duty of the master to receive him, and not, thereafter, to permit him to land. In such case the party has only been, provisionally, taken from the ship, out of the custody of the master, who detains him in his character, as master, controling the ship; and not in his individual, personal, character. He is taken into the custody of the law, solely, for the purpose of securing his discharge in case his detention proves to be unlawful. He has not, in contemplation of law, been landed at all. He is still under control.

It has been suggested that the master might refuse to receive him after his departure, and subsequent return to port. So he might refuse to receive him before his departure. But in either event, as the petitioner has been only, provisionally, in the custody of the law, and not landed in contemplation of law, such refusal would, in my judgment, constitute an aiding and abetting, or permitting the landing of a person not lawfully entitled to enter the United States, within the meaning of the provisions of sections 1, and 2, of the restriction act; and, both the master, so aiding and abetting, or per mitting the unlawful landing, and the ship, under his command, would incur the penalties denounced by sections 10, 11 and 12, of said act. The vessel-the instrument, or the res-employed in unlawfully bringing the party into the United States, as well as its master, is held responsible, as a participant in the unlawful act. In case it is made to appear by the return of the marshal, that the vessel has departed, I have no doubt of the authority of the court, under the provisions of section 12, of the act, by its writ, or order, to empower the marshal to remove the petitioner remanded, to the country, whence he came, by any other vessel conveniently available for the purpose, at the expense of the United States, as being a person "found to be one not lawfully entitled to be, or remain, in the United States." The direction contained in the statute, "" cause to be removed," involves the power to use the necessary means to accomplish the required object. We so, substantially, held in Chon Goo Pooi: 1 W. C. Rep., 535. And the district judge, also, so held in the case of Chin Ah Sooey: 3 W. C. Rep., 603. This power, existing in the court, I can perceive no good reason why the order remanding the petitioner may not, in the first instance, be in the alternative, commanding the marshal to return him to the custody of the master of the vessel on which he came; and in case it shall be found by the marshal that the vessel has gone, that he place him on board on the return of the vessel, or on the direction of the court, that he remove him to the country whence he came, upon any other vessel, conveniently available for the purpose, at the expense of the

United States, to be afterwards recovered from the parties liable therefor under the statute.

In my judgment, the petitioner must be remanded, and in case it shall prove to be impracticable to return him on board the vessel on which he came, by reason of the departure, and probable non-return of the vessel at an early day, that the marshal be directed to return him to China, whence he came, on some other vessel, available for the purpose, at the expense of the United States, which expense may be recovered, under section 12, from the parties responsibe for bringing him hither.

THE CASE OF THE CHINESE WIFE.

[IN RE AH MOY, ON HABEAS CORPUS.]

September 22, 1884.

CHINESE RESTRICTION ACT-WIFE OF LABORER--CERTIFICATE.-The wife of a Chinese laborer, who left China after the restriction act of 1884 went into operation, cannot enter the United States without furnishing the certificate required by section 6 of that act. She cannot enter upon the certificate of her husband authorizing his entry.

CHINESE LABORER'S WIFE.-The wife of a Chinese laborer, she being herself a Chinese laborer, in fact, who has never before been in the United States, cannot now lawfully enter the United States on her own personal right, under the provisions of the restriction act; nor can she be introduced by the husband, who is himself entitled to enter, upon any right pertaining to him, under the provisions of the treaty, and the said restriction act.-SAWYER, J. STATES OF WIFE.-A Chinese wife, who was not a Chinese laborer, in fact, prio: to her marriage, upon her marriage, takes the status of the husband, as one of a class whose entry into the United States is prohibited by the restriction act, and she cannot lawfully enter.SAWYER, J.

APPLICATION for a writ of habeas corpus

Before FIELD, Circuit Justice, SAWYER, Circuit Judge, and HoFFMAN and SABIN, District Judges.

T. D. Riordan and L. 1. Mowry, for the petitioner.

S. G. Hilborn and Carroll Cook, for the United States.

FIELD, Circuit Justice.-Too Cheong is a Chinese laborer and resided in the United States November 17, 1880, and until September, 1883, when he made a visit to China. Whilst there he married a Chinese woman, who, from her appearance in Court, must be a mere child. He returned in September of the present year, bringing his wife with him. Before his departure he obtained from the collector of the port the necessary certificate to enable him to return to the United States. It, however, gave him no authority to bring another person with him. The fiction of the law as to the unity of the two spouses does not apply under the restriction act. As a distinct person she must be regarded, and, therefore, must furnish the certificate required, either by section 4 or by section 6 of the act of 1884.

It is contended by the district attorney that the status of the petitioner is that of her husband, and, therefore, she must be regarded