prohibit the bringing in of immigrants-persons who come into this country with the intention of remaining, of fixing a residence here, and who are calculated to become a charge. upon the country, or who are unfit, on account of moral character, previous conviction of crime, or disease, to be admitted as citizens. Nothing in the scope of the statutes seems to contemplate, or can be rationally held to contemplate, the prohibition of the bringing within the country by vessels of their crews engaged under contracts made out of the country, to labor on the vessels while approaching and while in the ports of this country, and to sail again with the vessels from this country."

He says, moreover:

"A consideration of the whole legislation on the subject of alien immigration, of the circumstances surrounding its enactment, and of the unjust results which would follow from giving such meaning to it as is here claimed for it, makes it unreasonable to believe that Congress intended to include a case like the present one. My opinion is that these statutes do not contemplate the exclusion of the crews of vessels which lawfully trade to our ports, and that they do not, in spirit or in letter, apply to seamen engaged in their calling, whose home is the sea, and who are here to-day and gone to-morrow; who come on a vessel into the United States with no purpose to reside therein, but with the intention when they come of leaving again on that or some other vessel for the port of shipment or some other foreign port in the course of her trade. To hold that these statutes apply to aliens comprising the bona fide crews of vessels engaged in commerce between the United States and foreign countries. would lead to great injustice to such vessels, oppression to their crews, and serious consequences to commerce.”

Previous to this decision of Judge Toulmin, the Treasury Department had ruled, in the case of the crew of the Lancashire (Treas. Dec. 21724), that alien seamen could, under exceptional circumstances, come within the operation of the immigration statutes. In that case a foreign vessel came to Mobile for docking and more complete repair. Besides her ordinary crew she had engaged a large number of additional men at nominal wages, and who, in shipping, "stipulated for

discharge here in the United States." In discussing the decision of your Department Judge Toulman said that these additional seamen—

"were plainly immigrants, and properly treated as such, and, therefore, properly deported under the ruling of the Secretary, and this, not because bona fide crews of ships fall under the immigration laws, but because they were not a bona fide crew of the ship."

Were I at liberty to disregard this authoritative interpretation of the immigration statutes, I would yet feel constrained to say that the reasoning of Judge Toulmin seems to me entirely sound, and that it would be injurious to our commerce, and, therefore, to the public interests, to hold broadly and without exception that seamen as a class are within the purview of the immigration statutes. It is true that Congress has not excepted them from the express language of these statutes, but in the practical administration of these laws they have always been excepted, and their inclusion in the class of alien immigrants would lead to consequences so destructive to legitimate commerce that such inclusion can fairly be regarded as beyond the intention of Congress.

It is important, however, to remember that the salutary immigration statutes can not be defeated by intending immigrants shipping as sailors. Judge Toulmin recognized this in the decision referred to by expressly approving the ruling of your Department in the case of the Lancashire. Aliens who become seamen on vessels for the purpose of securing an entrance into this country free from the barriers of the immigration statutes are none the less alien immigrants, and can be treated as such. In my judgment it is not important whether the master of the vessel who ships them was in collusion with them, or knew of their purpose to escape. Only such seamen are excepted from the class of passengers upon whom the head money tax is imposed, and from the class of alien immigrants, as are seamen in good faith and have no intention by reason of their passage to this country to leave the ship and make entry into this country. In the practical administration of the law it may be difficult

to determine whether such seamen have secured their discharge from the vessel, or have deserted from it on their arrival at an American port for the purpose of obtaining such entry. They may have escaped or deserted only for the purpose of shipping on another vessel which is outward bound, and with no intention of abandoning their seafaring occupation. To prevent a violation of the immigration laws in the manner indicated is a question of practical administration as to which it is not possible to lay down legal principles, and the character of which is beyond the province of this Department to determine. As my predecessor, Attorney-General Griggs, pointed out in an opinion rendered you on May 8, 1899 (22 Opin., 460), the authority given you by sections 2 and 3 of the immigration law of 1882, to "establish such regulations and rules and issue from time to time such instructions not inconsistent with law as he shall deem best calculated to protect the United States and immigrants into the United States from fraud and loss, and for carrying out the provisions of this act," shows that, "by these and other provisions of law it is made clear that Congress, aware of the practical impossibity of establishing in advance by inflexible orders of its own all the rules and methods that so indefinite and complex a business, entangled as it was with that of carrying passengers, would demand, intended to vest in the Secretary power to make and apply such as would from time to time be shown by experience to be necessary and convenient."

It does not follow that because aliens are seamen that they are free from such examination and inspection as you have either required or may hereafter require by regulation. By the immigration statutes Congress intended to exclude certain classes of undesirable immigrants from entrance into this country, and the law should be interpreted so as to effectuate this object.

As was said by Attorney-General Miller, in an opinion given your Department December 29, 1890 (19 Opin., 706):

"The power of Congress to prescribe the conditions under which foreigners may enter this country is plenary, because it has the power of absolutely excluding them (Chinese

Exclusion cases, 130 U. S., 531). The existence of such a power implies the ancillary power of detaining all persons, whether they are citizens of the United States or not, a reasonable length of time until their citizenship may be established."

By similar reasoning it is in your power to make such examination and take such precaution as may be reasonably necessary to prevent any alien immigrant, whether he be a sailor or not, from entering this country in the sense that all immigrants enter it. As I have said, an alien immigrant, who is of the prohibited classes referred to in the immigra tion statutes, does not escape their operation because he ships as a seaman. If he ships as such seaman in good faith and comes cum animo revertendi he is not within the prohibited class, because his entry into our ports is only of a temporary character, and is tolerated from considerations of convenience and the necessities of commerce. If, however, it be shown to your satisfaction that such alien has shipped to this country simply as a convenient means to make entry here or to avoid the operation of the immigration statutes, then he becomes subject to their operation as fully as any other alien immigrant, and if within the prohibited class, can be deported. Thus a convict, a polygamist, or a person with a contagious disease can not obtain entrance to this country, exempt from the salutary provisions which exclude others of his class, simply because he has shipped as a seaman. The power to exclude an alien immigrant who comes to this country as a seamen carries with it the right to detain and examine all seamen of a given vessel if, in your judgment, the execution of the immigration statutes requires it.

The question, therefore, is necessarily one of practical administration, and has been committed by Congress to your sound judgment and discretion.

I have used the expression "make entry" advisedly, in order to distinguish the entry into this country of those des ignated in general terms as "alien immigrants" from the temporary presence of alien sailors who have arrived here in the pursuit of their calling and are awaiting their departure. In a literal sense the latter have entered the

country, but it is obvious that when they seek admission here of a temporary character only, and as a necessary incident of their calling, they do not enter this country in the sense with which alien immigrants pass our territorial boundaries.

With these general observations, let me refer to the particular case upon which you submit your request for an opinion. In the case of the British steamship Columbia it appears that some eight alien seamen of that vessel, after deserting her, libeled her for unpaid wages, and thereupon, in order to sail, the representatives of the owners of the ship paid to the attorneys for the members of said crew the amount due them for wages. They were never regularly discharged. This meager statement of fact does not show whether the sailors in question came to this country in pursuit of their calling as seamen in good faith and without any purpose of entering this country as immigrants. They may have left the ship by reason of dissatisfaction, and with the intention of again shipping as seamen on the first outward ship and without any purpose of abandoning their calling. It is not my duty, and I could not determine this question of good faith or intention from the meager facts submitted to me. I am satisfied, however, that it is within your power to detain and examine such alien seamen, and to deport them, if you are satisfied that they intend to remain within this country. You are not obliged to remain inactive when so easy an entrance through our immigration barrier is being effected.

Replying to the inquiry in your letter of April 2, 1901, I think the liability of these alien seamen to pay the head money under the act of August 3, 1882, depends upon the same question of intention, and must be dealt with accordingly as a matter of fact to be decided in accordance with the evidence of each particular case. If they shipped as seamen as a convenient method of securing passage to this country, and for the purpose of entering therein as other alien immigrants, then they are passengers and subject to the capitation tax. But if they shipped with the intention in good faith to continue their occupation as seamen, and