United States v. Pin Kwan

• Decision Date: 28 February 1900
• Docket Number: 94.
• Citation: 100 F. 609
• Parties: UNITED STATES v. PIN KWAN.
• Court: U.S. Court of Appeals — Second Circuit

100 F. 609

UNITED STATES v. PIN KWAN.

No. 94.

United States Court of Appeals, Second Circuit.

February 28, 1900

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

On March 17, 1899, complaint was duly made under oath charging that Pin Kwan on October 27, 1897, 'did unlawfully come into the United States from the empire of China, the said Pin Kwan being then and there a Chinese person and laborer, and not being a merchant or diplomat or other officer of the Chinese or any other government, and without producing the certificate required of Chinese persons seeking to enter the United States, and that he is not entitled to be or remain within the United States. ' There is no contention that there was any error in the procedure followed by the United States commissioner, which appears to be that prescribed in section 12 of the act of 1882, as amended by the act of July 5, 1884 (23 Stat. 115), and in section 13 of the act of September 13, 1888 (25 Stat. 476).

A brief history of the treaties with China dealing with the question of immigration into the United States, and of the legislation subsequent thereto, will be found in U.S. v. Ah Fawn (D.C.) 57 F. 591. It will not be necessary to examine into the details of the several exclusion acts. Five years before defendant's entry into this country, congress had passed the act of May 5, 1892 (27 Stat. 25), the first section of which provides that:

'All laws now in force prohibiting and regulating the coming into this country of Chinese persons and persons of Chinese descent are hereby continued in force for a period of ten years from the passage of this act.' Among the laws then in force were these: The act of May 6 1882 (22 Stat. 58), as amended by the act of July 5, 1884 (23 Stat. 115), section 1 of which provided that:

'From and after the passage of this act, and until the expiration of ten years next after the passage of this act, the coming of Chinese laborers to the United States * * * is hereby suspended, and during such suspension it shall not be lawful for any Chinese laborer to come from any foreign port or place, or having so come to remain within the United States.'

The treaty with China of November 17, 1880 (22 Stat. 826), provided in article 2:

'Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and 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,' etc.

The sixth section of the act of 1882, as amended by the act of 1884, supra, provided:

'That in order to the faithful execution of the provisions of this act, every Chinese person, other than a laborer, who may be entitled by said treaty or this act to come within the United States, and who shall be about to come to the United States, shall obtain the permission of and be identified as so entitled by the Chinese government, or of such other foreign government of which at the time such Chinese person shall be a subject, in each case to be evidenced by a certificate issued by such government, which certificate shall be in the English language, and shall show such permission, with the name of the permitted person in his or her proper signature, and which certificate shall state the individual, family, and tribal name in full, title or official rank, if any, the age, height and all physical peculiarities, former and present occupation or profession, when and where and how long pursued, and place of residence of the person to whom the certificate is issued, and that such person is entitled by this act to come within the United States. If the person so applying shall be a merchant said certificate shall, in addition to the above requirements, state the nature, character, and estimated value of the business carried on by him prior to and at the time of his application as aforesaid: provided, that nothing in this act nor in said treaty shall be construed as embracing within the meaning of the word 'merchant,' hucksters, peddlers, or those engaged in taking, drying, or otherwise preserving shell or other fish. * * * '

After providing for a vise of said certificate by a diplomatic or consular representative of the United States at the port or place of departure, the section concludes as follows:

'Such certificate vised as aforesaid shall be prima facie evidence of the facts set forth therein, and shall be produced to the collector of customs of the port in the district in the United States at which the person named therein shall arrive and afterwards produced to the proper authorities of the United States whenever lawfully demanded, and shall be the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States; but said certificate may be controverted and the facts therein stated disproved by the United States authorities.'

Section 15 of the said act of 1882, as amended by the act of 1884, provided:

'That the provisions of this act shall apply to all subjects of China and Chinese, whether subjects of China or any foreign power; and the words Chinese laborers, wherever used in this act shall be construed to mean both skilled and...