commerce is different or less because they are paid through retention of advance partial payments made under definite contracts negotiated by them. Nor can we accept the theory that an expressed purpose to prevent possible frauds is enough to justify legislation which really interferes with the free flow of legitimate interstate commerce. See Shafer v. Farmers Grain Co., 268 U. S. 189. The decree of the court below must be reversed. The cause will be remanded to the District Court for further proceedings in harmony with this opinion. Reversed. CHEUNG SUM SHEE ET AL. v. NAGLE, COMMISSIONER OF IMMIGRATION. ON CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 769. Argued April 17, 20, 1925.-Decided May 25, 1925. 1. Alien Chinese wives and minor children, of Chinese merchants lawfully domiciled in the United States, are not mandatorily excluded from admission by the Immigration Act of 1924, which provides that "no alien ineligible to citizenship shall be admitted to the United States unless such alien is . . . not an immigrant, as defined in Section 3", and in that section classifies as a nonimmigrant "an alien entitled to enter the United States solely to carry on trade under and in pursuance of the provisions of a present existing treaty of commerce and navigation." P. 344. 2. Such wives and children were guaranteed the right of entry by the Treaty of 1880. United States v. Mrs. Gue Lim, 176 U. S. 459. Id. 3. The Act of 1924 should be construed with a view to preserving this treaty right; and the legislative history and general terms of the act permit this. P. 345. 4. Such aliens, being in effect specified by the act itself as "nonimmigrants", are not barred by § 5, which declares that an alien not particularly specified in the act as a non-quota immigrant or non-immigrant shall not be admitted as such "by reason of rela 336 Argument for Appellee. tionship to any individual who is so specified or by reason of being excepted from the operation of any other law regulating or forbidding immigration." P. 346. QUESTION Certified by the Circuit Court of Appeals, arising on the review of a decision of the District Court, (2 Fed. (2d) 995,) which refused relief by habeas corpus to Chinese aliens held for deportation by the immigration authorities. Mr. Frederick D. McKenney and Mr. George A. McGowan, with whom Messrs. John L. McNab, Jackson H. Ralston, Roger O'Donnell, George W. Hott, W. J. Peters, M. Walton Henry, J. P. Fallon, O. P. Stidger, W. G. Becktell, and Gaston Straus were on the brief, for appellants. Mr. Assistant Attorney General Donovan, with whom the Solicitor General was on the brief, for appellee. There is a difference of opinion between the two departments of the Government which are directly concerned with the administration of the Act. The Department of Labor is of opinion that the Act requires the exclusion of these appellants. The Department of State is of opinion that the Act and the Treaty together require their admission. In view of the importance of this case, counsel for the Government feel it their duty to submit reasons in support of both opinions. Accordingly, in their brief is set forth the reasoning in support of the exclusion theory maintained by the Department of Labor; in an appendix, the opposing arguments of the State Department, as embodied in a memorandum prepared by the Solicitor for that Department. The appellants are clearly "aliens ineligible to citizenship." They are therefore excluded by § 13(c) of the Act, unless they can establish their right to enter as "treaty merchants" under § 3(6). Section 3(6) grants Argument for Appellee. 268 U.S. admission to "an alien entitled to enter the United States solely to carry on trade under and in pursuance of the provisions of a present existing treaty of commerce and navigation." Can it be said that the wife or the minor child of a merchant comes here" solely to carry on trade "? The agent of a merchant is not himself entitled to enter as a merchant. Tulsidas v. Insular Collector, 262 U. S. 258. And this Court in the Gue Lim Case did not hold that the wife of a merchant was entitled to enter "solely to carry on trade," but merely decided that she was entitled to enter solely to reside with her husband, as she then had the right to do. The purpose of § 3(6) was to take away that right by granting the right of entry only to actual merchants, and not, as formerly, to merchants and their families. Any other construction would deprive the section of its meaning. At the time when the Gue Lim decision was rendered, no statutory definition existed of the term "merchant"; and the Court accordingly construed the language of the treaty as including both merchants and their families. The Court might have decided the Gue Lim Case differently had § 3(6) then been in existence. It was inserted at the request of the Secretary of State, for the purpose of safeguarding treaty rights, but in its final form is very different from the provision which the Secretary originally suggested; and it is possible that the effect of the alteration is to exclude the wives and children of merchants. Whatever might have been the result had Congress enacted, totidem verbis, either of the Secretary's suggestions, it is submitted that the case must be judged upon the law as it is written. The Committee Report indicates that Congress intended to "tie the exemptions to those persons properly exempted and entitled to enter the United States solely to carry on trade under and in pursuance of all existing treaties of commerce and navigation." The effect of § 3(6), as actually passed by Congress, may be to deny the right of 336 Argument for Appellee. entry to all who do not come here "solely to carry on trade." In opposition to this view counsel cite the case of Anderson v. Watt, 138 U. S. 694, 706, and other cases holding that the domicil of the husband is the domicil of the wife, and that the identity of the wife is, in a sense, merged in that of the husband. But has not this theory lost much of its force since the enactment of the Act of September 22, 1922, c. 411, 42 Stat. 1021, under which the citizenship of the wife no longer follows that of the husband? And the Immigration Acts often operate to prevent husband and wife from residing together in this country. Yet this Court, when appealed to on the ground of hardship, has declined to interfere. Commisisoner of Immigration v. Gottlieb, 265 U. S. 310; Chung Fook v. White, 264 U. S. 443; Yee Won v. White, 256 U. S. 399. In the next place § 5 of the Act provides "An alien who is not particularly specified in this Act as a non-quota immigrant or a non-immigrant shall not be admitted as a non-quota immigrant or a non-immigrant by reason of relationship to any individual who is so specified or by reason of being excepted from the operation of any other law regulating or forbidding immigration." It may well be that the appellants have no right of entry in and of themselves; their right of entry is dependent, not upon their own status, but upon that of their husbands or fathers. And if that is so, then they are excluded by the operation of § 5. Congress has been careful to grant admission to the families of Chinese government officials § 3(1), and to the families of Chinese clergymen or professors §§ 4(d), 13(c) (2); and from this fact it may be inferred that Congress did not intend to grant admission to the families of Chinese merchants, according to the maxim expressio unius. Lapina v. Williams, 232 U. S. 78, 92; United States v. Goldenberg, 168 U. S. 95, 103. It is conceded that a strong presumption exists in favor of maintaining treaty rights. The right of these appellants Views of Department of State. 268 U. S. to enter this country is a right conferred, if not by the letter of the treaty, at least by the treaty as interpreted by this Court. But it is submitted that even treaty rights. can not prevail against the language of the Immigration Act of 1924. And under §§ 5 and 13(c) of that Act, it is doubtful whether these appellants can enter. Such is the contention of the Department of Labor; but this Court should also consider the careful and wellreasoned opinion of the Solicitor for the Department of State, before answering the question. The following is excerpted from a memorandum by Hon. Charles Cheney Hyde, Solicitor for the State Department, which was appended to the brief of appellee: Wives and minor children of alien merchants entering the United States for purposes of trade and commerce under a present existing treaty of the United States are themselves clothed with a treaty right to enter. The courts of the United States, when interpreting the treaties of their country, act on the assumption that it was the design of the contracting parties not to contravene principles of morality and fairness, Ubeda v. Zialcita, 226 U. S. 452, 454; that their agreement should be interpreted "in a spirit of uberrima fides, and in a manner to carry out its manifest purpose," Tucker v. Alexandroff, 183 U. S. 424, 437; and that its terms should be liberally construed, Asakura v. Seattle, 265 U. S. 332, 342; Haunstein v. Lynham, 100 U. S. 483; Geofroy v. Riggs, 133 U. S. 258; Tucker v. Alexandroff, supra. The commercial treaties of the United States providing for the entrance and residence of nationals of one contracting party into the territories of the other for the purposes of trade have not made mention of the wives and minor children of such individuals. It seems to have been taken for granted that there is such unity of interest in the individual family that the head thereof, if given |