The petitioner for the writ of habeas corpus
arrived at the port of Manila from China on or about the 3rd day of May, 1915, claiming the right to enter the Philippine Islands as a citizen thereof by reason of being the illegitimate son of a Filipino woman. He was refused admission by the immigration inspector who boarded the ship on which he arrived at the port of Manila and was held by him for examination by a board of special inquiry. His right to enter was subsequently inquired into by a board of special inquiry composed of two immigration inspectors and a stenographer employed in the Bureau of Customs, which, after hearing the testimony of witness, denied the petitioner landing on the ground that he was not entitled thereto under the Chinese Exclusion Laws. An appeal was duly taken from this decision to the Insular Collector of Customs, who affirmed it. Application was then made to the Court of First Instance for a writ of habeas corpus
, which was denied on the ground that there had been no abuse of discretion by the board of special inquiry and that there was no error of law prejudicial to petitioner’s rights. This appeal is from that judgment.
The first error assigned by appellant is that "the court erred when it overruled appellant’s motion to strike from the files the return of respondent to the order to show cause why the writ should not issue."cralaw virtua1aw library
The return to the writ which was directed to the Insular Collector of Customs, in whose custody the petitioner was, was not made or signed by him but by the Attorney-General. (Secs. 527 (b) and 536, Code of Civil Procedure.) This question has already been decided by this court adversely to the contention of appellant and it needs no further discussion. (Lee Jua v. Collector of Customs, 32 Phil. Rep., 24.)
Under this assignment of error appellant also argues that the return as filed by the Attorney-General is fatally defective in that it does not petition;" that it does not contain the matters required by statute to appear in returns to writs of habeas corpus
, section 538 (b) of the Code of Civil Procedure requiring the person who makes the return to the writ to set forth in full the facts concerning certain matters therein mentioned, none of which appear in the return of the Attorney-General.
The return certainly states the facts sufficiently to show that the petitioner was properly restrained. It sets forth in full a history of the case, alleging that the petitioner was a Chinese laborer showing absolutely no right to enter the Philippine Islands, that he was refused admission after a hearing before the proper authorities under and by virtue of the Chinese Exclusion Laws, and that he is detained by the customs officials for deportation.
As to the matters which petitioner alleges the return must contain, section 538 of the Code of Civil Procedure provides:jgc:chanrobles.com.ph
"What Shall be Stated in the Return of the Writ. — When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner in found, shall state, in writing, to the court or judge before whom the writ was returnable, plainly and unequivocally:jgc:chanrobles.com.ph
"1. Whether he has or has not the party in his custody or power, or under restraint;
"2. If he has the party in his custody or power, or under restraint, he shall set forth, at large, the authority and the true and whole cause of such imprisonment and restraint, with a copy of the writ, warrant, execution, or other process, if any, upon which the party is detained;
"3. If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, he shall state particularly to whom, at what time, for what cause, and by what authority such transfer was made."cralaw virtua1aw library
It is clearly stated in the return that the petitioner is in the custody of the Insular Collector of Customs, who sets forth at large the authority for and the true and whole cause of such imprisonment and restraint. No copy of the writ, warrant, execution or other process by which petitioner is detained appears in the return for the reason that no writ, warrant, execution or other process exists. The petitioner sought to enter the Philippine Islands and was detained by the customs authorities in whose hands he still remains.
The second error assigned is based on the fact that three witnesses whose testimony the petitioner desired to present to the board of special inquiry could not be secured in time to appear before the board; that these witnesses were in the Court of First Instance during the hearing on the application for the writ of habeas corpus
for the purpose of giving their testimony relative to the right of the petitioner to enter the Philippine Islands; and that the court refused to hear their testimony, although it was duly offered by petitioner. The refusal of the court to hear these witnesses is the basis of the second assignment of error.
We are of the opinion that the court did not err in denying the request of petitioner to reopen the case and try the cause anew. It has been repeatedly held by the Supreme Court that a Court of First Instance acquires no jurisdiction and therefore has no power to interfere with the custody of the Insular Collector of Customs in cases of this character, until it has been clearly shown by the petitioner that the board of special inquiry, in excluding the petitioner from the Philippine islands, acted on a wrong principle of law and in violation of law or that it abused or exceeded its authority. Until one of these conditions precedent is shown the Court of First Instance can do nothing but dismiss the application for the writ. In this case the court expressly finds that the board of special inquiry did not exceed its authority or proceed on a wrong principle of law and in violation of law but that it acted entirely within its powers and that the courts was unauthorized to do more than dismiss the application. Inasmuch as we are in agreement with the lower court in that finding we do not deem it necessary to go into the question whether it has authority to take testimony on applications of this character and, if so, when and under what circumstances. (Chin Low v. U.S., 208 U.S., 208.)
The third error assigned is that "the court erred when it found the board which heard the matter at the custom house to be a legal board and lawfully qualified to hear and determine the right of Que Quay to enter the Philippine Islands." This matter has been before this court so often, and each time has been decided adversely to this contention, that we deem it unnecessary to discuss the question.
The fourth error assigned is that the court was wrong "when it found that there was any legal evidence upon which the conclusion of the board could be lawfully based."cralaw virtua1aw library
Under this assignment appellant states that "at the hearing before the board of special inquiry two witnesses other than Que Quay and his mother, Hilaria Que Quay and Hilaria Santa, and identified both of them. It is to be noted that the mother has lived in China for about thirty-four years, as shown by her testimony, and that she speaks Chinese. In fact, her testimony at the customhouse was given in Chinese, as she had been so long a resident of China that she had practically forgotten her native Filipino dialect." Basing himself on these facts counsel for appellant argues:jgc:chanrobles.com.ph
"In opposition to all the positive testimony submitted before the board at the custom house, the board, without in any manner saying that they did not believe it, or giving any reason why they thought it should be disbelieved, set up their own opinion that from the appearance of Que Quay he was a full-blooded Chinaman, and that he did not resemble his mother, for which reason it was held he is to be deemed a person other than the person he represented himself to be, and therefore, said board refused him the right to land in the Philippine Islands.
"It is respectfully submitted that ’appearance are deceitful’ and that it is exceedingly difficult for anyone to say positively from appearances alone, except in very exceptional cases, whether a person is Chinese or Filipino."cralaw virtua1aw library
The board of special inquiry, after hearing all the evidence and bearing in mind the fact that the appellant came direct from a Chinese port, was born in China and had lived there 29 years or more, and, considering his personal appearance, language, dress, manner, and deportment, found that he did not "appear to be a Chinese-Filipino mestizo, but a full-blooded Chinaman." On that evidence and the declarations of the witnesses for the alien the board also found:jgc:chanrobles.com.ph
"The board does not believe that Que Quay is the son of Hilaria Santa; but even if he were, the board does not believe he would be entitled to admission to the Philippine Islands. He states that he had no intention of coming here until three or four years ago and his alleged mother states that she had no intention of bringing him here until six years ago, when he was twenty-three years old. He is twenty-nine years old now and is a Chinese laborer, born in China, and had no intention of coming to the Philippine Islands until he was over twenty-nine years of age.
"The board decides that Que Quay is a Chinese person coming here without the certificate required by law and he is therefore refused landing."cralaw virtua1aw library
The Supreme Court has frequent held that, if there is any evidence to support the decision of the board the application for the writ will be denied, as there can be no abuse of discretion and no legal error on the part of the board, so far as a question of fact is concerned, where there is any evidence to sustain its decision. To raise a question of fact in Chinese exclusion cases it is not absolutely essential that the Government present witnesses and that their testimony be taken in opposition to that offered by the immigrant. There are other kinds of evidence, entirely competent and material, besides that obtained by the production of witnesses. We have that the person of a Chinese alien seeking admission into the Philippine Islands is evidence in an investigation by the board of special inquiry to determine his right to enter and such board may take his appearance into consideration to determine, or assist in the attempt to determine, his age; and a finding that an applicant is not a minor based on such appearance is not without evidence to support it. (Tan Beko v. Collector of Customs, 26 Phil. Rep., 254.) We said in that case that a board of special inquiry, in an investigation relative to the right of a person of Chinese descent to enter the Philippine Islands, may take his appearance into consideration not only for the purpose of determining, or to assist in determining, his age, but also for the purpose of determining the credibility of the witnesses who testified as to his age. In that case the immigrant claimed a right to enter on the ground that he was the minor son of a resident Chinese merchant. The board refused him landing on the ground that he was not a minor. The only evidence before the board on which that finding could in anywise be based was his person and appearance. The same principle, in our judgment, applies to the case before us. It is a matter of every-day life for men to distinguish between races and nationalities by appearance, dress, language, manner and deportment. We entertain no doubt that the board of special inquiry, in deciding whether or not an alien is a person of Chinese descent, may take into consideration his appearance, language, dress, manner and deportment, and the fact that he came directly here from a Chinese port; and, if the board is satisfied from all or any of these sources that the immigrant is a Chinese person belonging to the class excluded from the Philippine Islands, a finding to that effect is not without evidence to support it. The argument of counsel that appearances are deceitful is not convincing for the reason that it does not attack the principle which permits appearance, characteristics, language, dress, manner and deportment to be used as evidence of race or nationality. Counsel would not contend that a board of special inquiry, or a court for that matter, would not be justified in holding that a native of Ethiopia of pure blood, who was personally present before the board or the court and whose personal appearance, characteristics, manner, dress, language and deportment were carefully observed by the board of special inquiry or the court, was not a person of Chinese, Japanese or English descent, or that he did not belong to the Caucasian race. The determination by the aid of such evidence that an Ethiopian is not a person of Chinese descent differs from the determination by the same method that a given individual coming from a Chinese port and attempting to enter the Philippine Islands is a person of Chinese descent or is a pure-blooded Chinese and not a mixture of Chinese and Filipino, only in degree. The two determinations are essentially the same. It is, perhaps, easier in the first case than in the second; but it is, nevertheless, the same kind of a determination and is based on the same kind of evidence. Unless the customs authorities are permitted, in some degree at least, to draw inferences and deductions from and base conclusions on that class of evidence, they will be at the mercy, in the majority of cases, of Chinese who seek to enter the Philippine Islands. The evidence which they give as to their origin and birth is almost exclusively within their control, is substantially impossible of direct refutation, and, if it is the only evidence admissible, will, the great majority of instances, conclude the case against the Government. (Sy Joc Lieng v. Sy Quia, 16 Phil. Rep., 137.)
But we are of the opinion that this question has already been settled by this court not only substantially in the Tan Beko case but also expressly in the case of De la Cruz v. Collector of Customs (26 Phil. Rep., 270). De la Cruz came to the Philippine Islands from China and asked permission to land, alleging that he was born in the city of Manila. The board of special inquiry found that the alien was not born in this country, and refused him landing, basing its opinion on the personal appearance, characteristics and language of the alien, together with the fact that he came direct from a Chinese port. The testimony of the witnesses for the applicant for admission was contradictory, some of them admitting, subsequent to the hearing, that they had declared falsely. The Supreme Court in that case held that the finding of the board of special inquiry that the applicant was not born in the city of Manila, but, on the contrary, that he was a Chinese person or person of Chinese descent born in China, and that he showed no right top enter the Philippine Islands, which finding was based simply on his personal appearance, language, and characteristics, and on the fact that he came direct from a Chinese port, was not without evidence to sustain it and that, in making that finding on that evidence, the board did not exceed its authority but acted in compliance with law. We held in substances:jgc:chanrobles.com.ph
"The board of special inquiry, in determining the right of an alien to enter the Philippine Islands, may take into consideration his personal appearance, characteristics, language, customs, dress, and the fact that he came direct from a Chinese port as evidence tending to show that he was born in China and is a Chinese alien; and such evidence is not necessarily overcome by the testimony of witnesses that he was born in the Philippine Islands where, on subsequent hearings, some of the witnesses who so testified at the first hearing returned and admitted that such testimony was false, and where it appears from the evidence and circumstances that there was probably an attempt to obtain the entry of the applicant into the Philippine Islands by fraudulent methods and by the manufacturing of false testimony."cralaw virtua1aw library
As his fifth assignment of error appellant claims that "the court erred when it did not find the decision of the board and of the Insular Collector of Customs on appeal therefrom to have been based upon an erroneous interpretation of the law, and , therefore, null and void.
This assignment is based on the claim (1) that Hilaria Santa was the mother of the appellant; (2) that the father of the appellant was a Chinese subject; (3) that the father and mother of appellant were not married and that, therefore, appellant was an illegitimate son; and (4) that an illegitimate son follows the citizenship of the mother.
As we have already seen, the board of special inquiry found, and the finding was based on evidence, that the appellant was not the son of Hilaria Santa and that finding is sufficient, if we desire to rest on that alone, to declare this assignment of error unfounded. But if all of the claims of appellant under this assignment were to be admitted, except that alleging that there was no marriage between the father and mother of appellant, the contention would still be groundless. It is admitted here that the alleged father and mother lived and cohabited together in China as husband and wife for a period of at least 34 years. In most countries, particularly in civilized countries, marital life and cohabitation for such a length of time would give rise to a presumption of marriage which would require clear and convincing proof to destroy. We are not informed by this record, or from any other source, what the Chinese law is on that subject; and, in the absence of proof to the contrary, we believe it incumbent on the courts of the Philippine Islands to assume that the law of China is the same on that subject as that of other nations, including our own; and that continuos marital relations and cohabitation between a man and a woman for a period of 34 years, resulting in the birth of a child, would create in China the presumption of a lawful marriage. (Code of Civil Procedure, section 334, par. 28; Sy Joc Lieng v. Sy Quia, 16 Phil. Rep., 137; same case, 228 U.S., 335.)
Moreover, the only evidence in this case as to the relations between appellant’s parents is given by the alleged mother, as follows:jgc:chanrobles.com.ph
"Q. What is your husband’s name? — A. Que Ham.
"Q. Are you married to him? — A. No; he is dead."cralaw virtua1aw library
This is the only evidence in the record on which the claim of the illegitimacy of petitioner is based. It is, as is seen at a glance, ambiguous, vague, and almost unintelligible; and it really cannot be determined from reading it whether the witness intended to convey the idea that she was not, at the moment she was testifying, married to Que Ham because he was then dead, or whether she meant to assert that she had never been married to him at any time. The more probable deduction from the questions and answers set forth is that the witness did not desire to convey the idea that she had never been married to Que Ham but rather that, in her reply to this question, she was under the impression that she could not truthfully swear that she was married to a man when, at the very time of her declaration, he was dead. There being no clear evidence offered to impeach the presumption of marriage, we must assume that the petitioner is legitimate.
But even conceding the facts as appellant claims them to be, still he is not entitled to enter the Philippine Islands. Having been born in China of a Chinese father and a Filipino mother, the most that can be urged is that the he was entitled, on arriving at his majority, to elect the country of which he desired to be a subject. Having remained in China for years after he arrived at his majority without any effort to claim Filipino citizenship, he is deemed to have waived it and to have assumed that of the country in which he was born and in which he had lived at all his life.
The case of Muñoz v. Collector of Customs (20 Phil. Rep., 494) held that a person born in the Philippine islands was entitled to claim Philippine citizenship. (Roa v. Collector of Customs, 23 Phil. Rep., 315; Vaño v. Collector of Customs, 23 Phil. Rep., 480; Ang Eng Chong v. Collector of Customs, 23 Phil. Rep., 614; Chua Yu Seng v. Collector of Customs, R. G. No. 9896 1 filed March 23, 1915.) It also laid down the proposition that, although a person is born in the Philippine Islands, he may lose his Philippine citizenship by express or implied renunciation. Going to a foreign country and remaining there after attaining his majority for a number of years sufficient to indicate that he had no intention of returning to the land of his birth or of assuming the duties and obligations of citizenship therein are facts which are deemed sufficient to require the inference that he had abandoned his Philippine citizenship and had become a citizen of the country in which he attained his majority. In the case at bar the petitioner has the disadvantage of having been born in a foreign country and of never having been an inhabitant of the Philippine Islands. In the Lorenzo case (Lorenzo v. McCoy, 15 Phil. Rep., 559) the petitioner was born in the Philippine Islands, where he reminded until he was about 15 years old, when he went to China and lived there until he was 34 years of age, with apparently no intention of returning until the year before that in which he sought entry into the Philippine Islands. In that case we held that he had lost his citizenship in the Philippine Islands, the court saying that, to lose that right, an express renunciation was not necessary, it being inferable from circumstances; and that an absence from the country for 19 years without acts showing an intention to return was sufficient to require the inference that he had abandoned his Philippine citizenship. In the Muñoz case the intention of the petitioner to return to the Philippine Islands at the time he left them was admitted and his actual return was so soon after the attainment of his majority that there was no basis for the inference that he intended to abandon his Philippine citizenship and to become the subject of a foreign power.
It is thus clear that, although it be admitted, as is claimed, that the petitioner was illegitimate and that he, therefore, followed the citizenship of his mother, he, by his conduct, abandoned the right and privileges which his birth conferred and elected to become a subject of China.
The last error to which our attention is particularly called is put on the ground that, although the decision of the board of special inquiry was based, in part at least, on the personal appearance, characteristics, language, dress, manner, and deportment of the alleged alien, the case was decided by the Insular Collector of Customs on the appeal to him without his having seen the alleged alien and without therefore, having had an opportunity to decide for himself whether or not the facts with regard to the appearance, dress, language, manner and deportment of the alien were as found by the board of special inquiry in its decision. Counsel for appellant argues that the statute requires that the Insular Collector of Customs shall on appeal in cases of this kind base his decision on all of the evidence before the board of special inquiry; that the evidence before the board as to the appearance, language, dress, manner, and deportment of the alien was not susceptible of elevation to the Insular Collector of Customs and , therefore, was not a part of the record remitted by the board; that, as a necessary result, the Collector, in making his decision, did not have all of the evidence before him, and, accordingly, acted in violation of law. In other words, contends the appellant, the Insular collector of Customs did not decide the appeal on all the evidence in the case as required by the statute.
If this error is well assigned, then it will be necessary in the future either that witnesses, testify before the board as to the ethnological characteristics and personal appearance of the alleged alien, as well as to his language, dress, manner and deportment, or else the individual himself must be sent with the record to the insular Collector of Customs as an exhibit in the case.
We do not believe that it is necessary, under the Chinese Exclusion Laws, to produce witnesses to testify before the board of special inquiry as to the ethnological characteristics and personal appearance, dress, language, manner and deportment of an alleged alien whose right to enter is being determined by that board. The members of the board are themselves supposed to be experienced in determining nationality, race, and descent from personal appearance, language, dress, manner and deportment; and it would be rare that their judgment could be aided by the declaration of witnesses as to those matters. (Arthur v. Unkart, 96 U.S., 118.) We cannot think that it is incumbent on the Government to maintain a staff of expert witness, or to go to the trouble and expense of procuring them, to testify with respect to such matters. Its own officials, appointed to administer the Chinese Exclusion Laws, are presumably chosen with special reference to their fitness to determine nationality, race, and descent by reference to the evidence presented by the person himself; and we are not to assume that they are not thoroughly competent to deal at first hand with such evidence and from it to draw the proper conclusions. If they are not competent to do so, then they should be removed and competent persons substituted in their place.
In reality, however, it is not important, so far as this discussion is concerned, whether the officials charged with the administration of the Chinese Exclusion Laws are competent or whether they are able to draw proper conclusions from given evidence. The real question is: "Is the person of one who offers himself for admission into the Philippine Islands as a Chinese person or person of Chinese descent, i.e., his language, personal appearance, characteristics, features, dress, custom and manner, something which a board of special inquiry may take into consideration in deciding whether such person is of the whole or half blood, is below or above 21 years of age, is a laborer or a member of the higher class, is educated or uneducated, is from the north or south of China?" If so, then it is of no consequence whether such decision is weak or strong, conclusive or inconclusive. If it is evidence, the board may act on it; and a finding based thereon is not without evidence to support it. (Tan Beko v. Collector of Customs, supra; De la Cruz v. Collector of Customs, supra.)
Nor do we believe that the contention of counsel for appellant can be sustained that it is necessary in every appeal taken to the Collector of Customs in Chinese exclusion cases, from whatever part of the Philippine Islands, to send the alleged Chinese alien to Manila to wait there the inspection of the Collector when the appeal referred to comes before him for decision. We cannot think that the law requires the Government to do either of these things.
Ocular inspection by a court of the subject-matter in controversy is permitted by the law of the Philippine Islands in certain cases and the right of the court to inspect in other cases has been recognized by many decisions of the Supreme Court. In such cases, whether it be by a commission in condemnation proceedings, or by a judge of the land court in proceedings for the registration of title, or by the Court of First Instance in the location of boundary lines, an ocular inspection by the court or commission has frequently been made the basis of a judgment of the Supreme Court sustaining the decision of the trial court or commission. in such cases the lands inspected are not before the Supreme Court nor is the boundary line as seen by the trial court, or the lay of the ground, the natural contour, the location of trees and other natural objects, and all other indications which lead the court as a result of an ocular inspection to say that the land or the boundary line lies in one place instead of another—none of these things are before the Supreme Court when it renders its decision. Nevertheless, the judgment of the court based on these facts and circumstances is accepted and they are given their due weight in this court. Wounds, weapons, and localities are objects of frequent inspection by trial courts in criminal cases, yet none of these may be the appellate court. The personal appearance of an accused or a witness will many times tell a court whether he is testifying falsely or truly and will be an element in determining the sentence which will be imposed. Yet these facts may never come to the attention of the appellate court when the case is appealed by the accused. The rule requiring this court, in passing on a question of fact on which the trial court has based its decision, to give due weight and consideration to the fact that the trial court saw the witnesses when they testified and observed their manner on the stand, touches the same principles as the right and necessity of a board of special inquiry to take into consideration the language, personal appearance, and characteristics of an alleged Chinese alien seeking to enter the Philippine Islands, and permits the Collector of Customs to decide the case on appeal although he may never have seen the person from whose language, appearance, dress, manner and deportment the board of special inquiry drew important conclusions.
The judgment appealed from is affirmed, with costs against the Appellant
. So ordered.
, Torres, Johnson, and Araullo, JJ.
, in separate opinion:chanrob1es virtual 1aw library
I reserve my opinion as to the disposition of this case, and the various grounds on which it is based.
I wish to observe, however, that in cases of this character, I am satisfied that even if it be admitted that under a strict construction of the statute, a return by the Attorney-General on behalf of the Collector of Customs, which does not include a duly certified copy of the proceedings had before the Collector, is sufficient; nevertheless, in good practice, a certified copy of the proceedings, should be attached to the return in all such cases.
From the very nature of the proceedings, it seems to me that even if the duty be not expressly imposed upon the Attorney-General, he should, nevertheless, file a copy of the proceedings before the Collector with his return — partly because it will furnish the very best evidence of the true nature of the grounds upon which the petitioner is detained and deprived of his liberty; partly, because, although it impose no substantial burden on the Attorney-General or the Collector, who are always supplied with carbon copies of these proceedings, it very substantially aids the petitioner in securing the adjudication of his alleged right of freedom from detention; and the Attorney-General should be not less interested than counsel for the petitioner in procuring a full, fair and free adjudication of such an issue in any case where it is raised in good faith; and partly, because, as I understand it, the filing of a copy of the proceedings before the Collector with the return to the applicant for the writ, has been the quite uniform practice heretofore, and no good or sufficient reason suggests itself for the abandonment of so convenient and salutary a rule of procedure.