Case of the Chinese Merchant

Citation13 F. 605
CourtD. California
Decision Date05 September 1882
PartiesCASE OF THE CHINESE MERCHANT. In re LOW YAM CHOW.

McAllister & Bergin, for petitioner.

Milton Andros, for respondent.

Philip Teare, Dist. Atty., for collector of port.

Before FIELD, Justice, and HOFFMAN, D.J.

FIELD Justice.

The petitioner is a subject of the emperor of China, and alleges that he is restrained of his liberty on board of the American steamship City of Rio de Janeiro, in the port of San Francisco, by its captain, in contravention of the constitution and the treaty between the United States and his country. He states in his petition in substance as follows: That he is a Chinese merchant by occupation, and not a Chinese laborer; that he was such merchant in Peru for about 10 years; that upon the breaking out of the war between that country and Chili he left Peru and established himself at Panama, in the republic of New Granada; that for the last five years he has also been a member of the firm of Chow Kee & Co., merchants in San Francisco; that on the thirty-first day of July last he took passage at Panama on the steam-ship which arrived at the port of San Francisco on the seventeenth of August, and that its captain refuses to allow him to land, but detains him on board of the vessel under the claim that his landing in the United States is prohibited by the act of congress of May 6 1882, 'to execute certain treaty stipulations relating to Chinese;' that such claim is unfounded; that the petitioner has been a merchant by occupation for the last 12 years, and has never been a laborer within the meaning of the treaty. He therefore prays that a writ of habeas corpus be issued to the captain to produce him, and that he be discharged from his arrest. The writ being issued, the captain makes a return admitting the detention of the petitioner, and justifying it under the act of congress.

On the hearing, proof was received, against the objection of counsel, of the truth of the petitioner's averment that he is a merchant by occupation, and has been such for years either in Peru or at Panama. No attempt to impeach this evidence was made.

Two questions are thus presented for determination: (1) Whether Chinese merchants, who resided, on the passage of the act of congress, in other countries than China, on arriving on a vessel in a port of the United States, are required to produce certificates of the Chinese government establishing their character as merchants, as a condition of their being allowed to land; (2) whether their character as such merchants can be established by parol proof. For a correct solution of these questions some reference must be had to the treaties between China and this country: In the fifth article of the one concluded in July, 1868, generally known as 'the Burlingame treaty,' the contracting parties declare that 'they recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from the one country to the other, for purposes of curiosity, of trade, or as permanent residents. ' In its sixth article they declare that 'citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities, or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation; and reciprocally, Chinese subjects visiting or residing in the United States shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence as may be enjoyed by the citizens or subjects of the most favored nation.'

While these articles remained in full force no legislation by congress looking to a suspension of or restriction upon the immigration of Chinese, engaged in any lawful occupation, was possible without a breach of faith towards China. And yet it was discovered that the physical characteristics and habits of the Chinese prevented their assimilation with our people. Conflicts between them and our people, disturbing to the peace of the country, followed as a matter of course, and were of frequent occurrence. Chinese laborers, including in that designation not merely those engaged in manual labor, but those skilled in some art or trade, in a special manner interfered in many ways with the industries and business of this state. Their frugal habits, the absence of families, their ability to live in narrow quarters without apparent injury to health, their contentment with small gains and the simplest fare, gave them great advantages in the struggle with our laborers and mechanics, who always and properly seek something more from their labors than sufficient for a bare livelihood, and must have and should have something for the comforts of a home and the education of their children. A restriction upon the immigration of such laborers was therefore felt throughout this state to be necessary, if we would prevent the degradation of labor and preserve all the benefits of our civilization. Through the urgent and constantly-repeated appeals from the Pacific coast, the government of the United States was induced to make application to the government of China for a modification of the treaty of 1868; and the supplementary treaty of November, 1880, was the result. The first article of this treaty provides that 'whenever, in the opinion of the government of the United States, the coming of Chinese laborers to the United States, or their residence therein, affects or threatens to affect the interests of that country, or to endanger the good order of the said country, or of any locality within the territory thereof, the government of China agrees that the government of the United States may regulate, limit, or suspend such coming or residence, but may not absolutely prohibit it;' declaring at the same time that 'the limitation or suspension shall be reasonable, and shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitations. ' The second article further declares that 'Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body or household servants, and Chinese laborers who are now in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation.'

The act of May 6, 1882, was framed in supposed conformity with the provisions of this supplementary treaty. In the inhibitions which it imposes upon the immigration of Chinese there is no purpose expressed in terms to go beyond the limitations prescribed by the treaty. And we will not assume, in the absence of plain language to the contrary, that congress intended to disregard the obligations of the original treaty of 1868, which remains in full force except as modified by the supplementary treaty of 1880. This latter treaty only authorizes suspensive or restrictive legislation with respect to the importation of Chinese laborers. It provides, in express terms, as seen above, that the limitation or suspension shall apply only to them, 'other classes not being included in the limitations.'

The act of congress declares in its first section that after the expiration of 90 days from its passage, and for the period of 10 years, 'the coming of Chinese laborers to the United States' is suspended, and that during such suspension 'it shall not be lawful for any laborer to come, or, having so come after the expiration of said 90 days, to remain within the United States. ' And its second section makes it a misdemeanor, punishable by fine and imprisonment, for the master of any vessel to knowingly bring within the United States on such vessel, and land or permit to be landed, any Chinese laborer from any foreign port or place.

The third section excepts from these provisions Chinese laborers who were in the United States on the seventeenth of November, 1880, or who shall have come before the expiration of 90 days from the passage of the act, and shall produce to the master of the vessel and the collector of the port certain prescribed certificates of identification, containing the name, age, occupation, last place of business, and physical marks or peculiarities of the laborer.

The act, conforming to the supplementary treaty, is aimed against the immigration of Chinese laborers-- not others. The sixth section which is supposed to cover the present case, was not intended to prohibit the coming to the United States of other classes of persons, but to prevent, by a prescribed mode of proof, the evasion of the prohibition against the coming of laborers. Its language is as follows: 'That in order to the faithful execution of articles 1 and 2 of the treaty in this act before mentioned, every Chinese person other than a laborer, who may be entitled by said treaty and this act to come within the United States, and who shall be about to come to the United States, shall be identified as so entitled by the Chinese government in such case, such identity to be evidenced by a certificate issued under the authority of said government, which certificate shall be in the English language, or (if not in the English language) accompanied by a translation into English, stating such right to come, and which certificate shall state the name, title, or official rank, if any, the age, height, and all physical peculiarities, former and present occupation or profession, and place of residence in China of the person to whom the certificate is issued, and that such person is entitled,...

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8 cases
  • Magana-Pizano v. I.N.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 1, 1998
    ... ... challenges the BIA's interpretation of AEDPA section 440(d) and its applicability to his case. We cannot reach the merits, however, because of new limitations that Congress has placed on our ... Shortly thereafter, in May, 1882, Congress passed the Chinese Exclusion Act, 22 Stat 58, which forbade the immigration of Chinese laborers for ten years ... ...
  • Ogden City v. Hamer
    • United States
    • Utah Supreme Court
    • December 21, 1895
    ... ... as we have seen, antecedent to the statutes, and rests in the ... necessity of the case ... "But ... that it is within the power of the government thus to provide ... a means ... one." Endlich on Int. of Stat. § 264 and note; Case ... of Chinese Laborers, 13 F. 291; Chinese Merchant, 13 F. 605 ... "We ... must adopt the sense of ... ...
  • United States v. Chee
    • United States
    • Arizona Supreme Court
    • March 22, 1907
    ... ... District. Edward Kent, Judge. Affirmed ... Quong ... Chee, a Chinese person, came from China to the United States ... in the year 1871, and from that time until 1891 as a ... merchant in Phoenix, Arizona. In 1880 he returned to China, ... and stayed there ten months, re-entering ... business in Globe, Arizona, when arrested upon the complaint ... in this case." Defendant then rested, and the United ... States then read in evidence depositions that had been ... ...
  • Taylor v. United States
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 16, 1907
    ... ... presumed to know the meaning of words and the rules of ... grammar. ' As in that case ( U.S. v. Goldenberg, ... 168 U.S. 95, 18 Sup.Ct. 3, 42 L.Ed. 394), so in this, the ... language ... seaman was thus engaged temporarily on shore about the ... ship's business. Where a Chinese exclusion act made it a ... misdemeanor for the master of a vessel 'to land or permit ... to be ... conclusion. U.S. v. Terra Cotta Vases (C.C.) 18 F ... 508; Case of Chinese Merchant, 13 F. 605; Carlisle v ... U.S., 16 Wall. 153, 21 L.Ed. 426 ... Section ... 2 is ... ...
  • Request a trial to view additional results
1 books & journal articles
  • THE IMAGINARY IMMIGRATION CLAUSE.
    • United States
    • Michigan Law Review Vol. 120 No. 7, May 2022
    • May 1, 2022
    ...13 Cong. Rec. app. 54-55 (1882)(statement of Rep. Tucker); 13 Cong. Rec. 3,408-09 (1882)(statement of Sen. Edmunds); In re Low Yam Chow, 13 F. 605, 607-11 (Field, Circuit Justice, C.C.D. Cal. (342.) Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882)(repealed 1943); see H.R. Rep. No. 47-1017......

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