United States v. Ah Fawn

• Decision Date: 18 September 1893
• Docket Number: 487.
• Citation: 57 F. 591
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. AH FAWN.

57 F. 591

UNITED STATES v. AH FAWN.

No. 487.

United States District Court, S.D. California.

September 18, 1893

At Law. Proceedings by the United States for the deportation of Ah Fawn for violation of section 6 of the Geary act. Order for deportation granted.

CHINESE--DEPORTATION--WHO ARE LABORERS--TREATY OF 1880--CONSTRUCTION.

The words 'Chinese laborers,' as used in section 6 of the Geary act, (27 Stat. 25,) have the same meaning as in the treaty with China of 1880, (22 Stat. 826,) in which they are broad enough in their true meaning and intent to include Chinese gamblers and highbinders, since section 2 of the treaty by exclusion provides that no Chinese should be entitled to the benefit of the general provisions of the Burlingame treaty (16 Stat. 739) but those who come to the United States for purposes of teaching, study, mercantile transactions, travel, or curiosity.

George J. Denis, U.S. Atty.

A. B Hotchkiss and F. J. Thomas, for defendant.

ROSS District Judge.

The complaint in this case charges the defendant with a violation of the sixth section of the act of congress of May 5, 1892 commonly called the 'Geary Act.' It alleges that the defendant was at the time of the passage of the act a Chinese laborer within the limits of the United States, and entitled to remain therein, and that he failed to procure the certificate of residence required by its sixth section of all such resident Chinese laborers, and that he was found after one year from its passage without such certificate within the jurisdiction of the United States, and within this judicial district. The evidence in the case clearly shows that the defendant is, and has been for several years last past, a gambler, engaged in conducting games of chance in this city. In other cases submitted with the present one the evidence shows that the defendants, in addition to being gamblers belong to the criminal class commonly called 'highbinders.' The sixth section of the act in question applies alone to 'Chinese laborers within the limits of the United States at the time of the passage of this act, and who are entitled to remain in the United States.'

The question to be determined is, what is the true construction of the words 'Chinese laborers,' as here used by congress? Etymologically, a laborer is one who labors. In that broad sense, a practicing physician is a laborer, and a hard one, too. So, also, is the practicing lawyer. In that sense the professional journalist is a laborer; as is, also, every minister of the gospel. In the same sense every merchant is a laborer. But in neither speech nor writing is such the common or ordinary acceptation of the term 'laborer.' Worcester thus defines it: 'One who labors; one regularly employed at some hard work; a workman; an operative; often used of one who gets a livelihood at coarse, manual labor, as distinguished from an artisan or professional man.' And the definition given by Webster is to the same effect. Neither of these considerations furnishes, in my opinion, a true solution of the question. Undoubtedly a gambler is not a 'laborer,' in the ordinary and popular meaning of that term; nor is a 'highbinder,' whose avocation is understood to be the commission of any and every species of crime. In the act in question congress did not define the terms 'Chinese laborers' employed by it. To ascertain the true meaning of the words so used the purpose of the act must be considered. As its sixth section, providing, as it does, for the expulsion from this country of all Chinese laborers within it at the time of the passage of the act who should fail to comply with its provisions, whether they came here at the invitation of our government or otherwise, in its stringency went far beyond the provisions of the existing treaties between the two countries, it would be altogether unreasonable to hold that the words 'Chinese laborers' in that very section of the act were used in any narrower sense than were the same words in the treaty under which congress was legislating. It is pertinent and important, therefore, to inquire what is the scope of those words in that treaty.

Under the treaty of 1868, known as the 'Burlingame Treaty,' as construed in practice, the Chinese had the absolute right to come in any numbers to the United States. The trouble caused by the great influx of them induced the United States government to ask, through a commission composed of Messrs. James B. Angell, John F. Swift, and William Henry Trescot, that the Chinese government consent to such a modification of the Burlingame treaty as would enable it, without raising unpleasant questions of treaty construction, to regulate, limit, suspend, or prohibit Chinese immigration. Commissioners on the part of China were also appointed, and after the necessary preliminary negotiations the United States commissioners made to the Chinese commissioners the following proposition:

'To indicate more precisely the wishes of the United States, we suggest the following proposition for the consideration of the Chinese government:

'Article 1. The United States of America and the emperor of China recognize the mutual benefit which results from the proper intercourse of the citizens and subjects of all nations, and, in order to encourage such intercourse between the two countries, agree that citizens of the United States visiting or residing in China and subjects of China visiting or residing in the United States for the purpose of trade, travel, or temporary residence for the prosecution of teaching, study, or curiosity shall enjoy in the respective countries all the rights, privileges, immunities, and exemptions which are granted by either country to the citizens and subjects of the most favored nations.

'Art. 2. 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 interest of that country, or to endanger the good order of the said country, or of any locality within the territory thereof, the government of the United States may regulate, limit, suspend, or prohibit such coming or residence, after giving timely notice of such regulation, limitation, suspension, or prohibition to the government of China; and the words 'Chinese laborers' are herein used to signify all immigration other than that for teaching, trade, travel, study, and curiosity hereinbefore referred to and authorized and provided for in existing treaties.

'Art. 3. But it is distinctly understood between the contracting parties that all Chinese subjects who, under the faith of existing treaties, have gone into or are now residing in the United States, shall be guarantied all the protection, rights, immunities, and exemptions to which they are now entitled under the provision of said treaties.' Foreign Relations of the United States, 1881, p. 177.

On the 22d of October, 1880, the Chinese commissioners submitted to the commissioners of the United States a memorandum in reply, which, so far as it refers to article 2 of the proposition of the United States commissioners, is as follows:

'Section 2 declares that there are difficulties growing out of the immigration of Chinese laborers to the United States, and explains that the words 'Chinese laborers' are used to include all persons except such as go thither for the purpose of teaching, study, trade, travel, and curiosity. The separation of this class from the mass of the subjects of China in this manner is not in strict accord with the spirit of our treaties, and in practical operation would

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