United States v. Hung Chang

• Decision Date: 17 December 1903
• Citation: 126 F. 400
• Parties: UNITED STATES v. HUNG CHANG.
• Court: U.S. District Court — Northern District of Ohio

126 F. 400

UNITED STATES v. HUNG CHANG.

United States District Court, N.D. Ohio.

December 17, 1903

John J Sullivan, U.S. Atty.

Vessey Davis & Manak, for defendant.

WING District Judge.

On the 3d day of October of this year one Hung Chang was arrested upon a warrant issued by John H. Simpson, United States Commissioner for the Northern District of Ohio, the basis for such warrant being the affidavit of Thomas P. H. O'Neill 'that, on or about the 3d day of October, A.D. 1903, at Cleveland, Cuyahoga county, Ohio, in said district, Hung Chang, in violation of section 13 of the act of September 13 1888, of the Revised Statutes of the United States, was being a Chinese person, found unlawfully within the boundaries of the United States of America, against the peace and dignity of the United States, and contrary to the form of the statute in such case made and provided. ' Hung Chang was immediately arrested, and confined in the county jail until the 26th day of October, 1903, at which time he was found by the commissioner to be unlawfully within the United States; and thereupon an order was made by the commissioner for the removal of the said Hung Chang from the United States to China. On October 31, 1903, appeal was taken from this conviction to the judge of the District Court for the Northern District of Ohio.

Section 13, Act Sept. 13, 1888 (25 Stat. 479) c. 1015 (U.S. Comp. St. 1901, p. 1317)), provides, among other things, as follows:

'That any Chinese person, or person of Chinese descent, found unlawfully in the United States, or its territories, may be arrested upon a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States, * * * and when convicted, upon a hearing, and found and adjudged to be one not lawfully entitled to be or remain in the United States, such person shall be removed from the United States to the country whence he came. * * * A certified copy of the judgment shall be the process upon which said removal shall be made, and it may be executed by the marshal of the district, or any officer having authority of a marshal under the provisions of this section.'

The hearing on this appeal is de novo, since there is no provision of law that it shall be heard upon the testimony taken before the commissioner.

The third section of the act of May 5, 1892 (27 Stat. 25, c. 60 (U.S. Comp. St. 1901, p. 1320)), provides:

'That any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully within the United States unless such person shall establish by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States.' It has been urged that under the provisions of this section the burden of proof in this proceeding is upon the person arrested to show his right to remain in the United States; that is to say, if no proof is offered, either by the United States or by the person arrested, judgment of deportation to China must follow as a matter of course. It will be observed that the section referred to only applies in terms to 'any Chinese person or person of Chinese descent. ' I hold, therefore, that the burden of proving that the person arrested is a Chinese person or a person of Chinese descent is upon the United States, before any burden is cast upon the person arrested to show his right to remain in the United States. The mere fact of arrest can never be considered as proof of guilt of the person arrested, or of the truthfulness of the charge made, or any part thereof. If Congress had intended to provide for so great a departure from the immemorial usages of the Anglo-Saxon law, the act would have read that 'any person arrested under the provisions of this * * * shall be adjudged to be unlawfully within the United States. ' Such legislation would plainly be in contravention of articles 5 and 6 of the amendments to the Constitution of the United States.

Under the provisions of the section referred to, it is plain that any person within the boundaries of the United States may in fact be arrested according to the uncontrolled wish or whim of an affiant or the officer charged with the execution of the warrant, whether such person be a Chinese person or not. The act is potentially operative against every one included within the meaning of the word 'person,' as used in the organic law. I cannot attribute to the national Legislature the purpose of enacting a law the enforcement of which would result in deporting to China any citizen of the United States without proof other than the affidavit for arrest.

The next question that arises is as to how this burden shall be sustained by the government, and what character of proof is adapted to establish the affirmative of the issue tendered. The phrases 'Chinese person' and 'person of Chinese descent' are nowhere defined in any of the acts relating to this subject, except that section 15 of the act of May 6, 1882, as amended in 1884 (Act July 5, 1884, c. 220, 23 Stat. 118 (U.S. Comp. St. 1901, p. 1311)), provides that the provisions of this act shall apply to 'all subjects of China and Chinese, whether subjects of China or any other foreign power'; and section 3 of the act of September 13, 1888 (25 Stat. 476, c. 1015 (U.S. Comp. St. 1901, p. 1313)), provides 'that the provisions of this act shall apply to all persons of the Chinese race, whether subjects of China or other foreign power, excepting Chinese diplomatic or consular officers and their attendants.' It is intimated, then, by the section last referred to, that the person charged under the act must be shown to be of the Chinese race, as distinguished from any other race.

The human family is divided into races, as the animal of the brute kingdom are divided into species, and various names have been given by various people to these races and species according to the methods of distinction adopted by each. Sometimes the names given to the various races are derived from the geography of the original habitat of such race, and sometimes according to the supposed tribal origin; as, for example, the 'Anglo-Saxon race,' and the 'African race.' We must assume, from the terms used in the act, that there is some difference existing between a person of the 'Chinese race' and persons of other races. In what those differences consist, and as to how racial distinctions manifest themselves, are matters of peculiar knowledge. This knowledge can only be acquired by study and observation and reading the works of those who have made study and observation, and a practice of such knowledge by making comparisons between the race to be distinguished and others most similar thereto. By such studies and experiences one may come to be so expert that his opinions, when applied to a specific case, will have a convincing, proving force. The opinion of one without this experience and learning amounts only to idle conjecture. We recognize this distinction in questions relating to zoology, ornithology, ichthyology, entomology, and bacteriology. In this proceeding the making of a distinction arising in the science of anthropology is involved, and the liberty, and perhaps the life, of a human being is at stake. I have therefore held that the opinion of a witness proffered...