United States v. Wong Dep Ken

• Decision Date: 31 July 1893
• Docket Number: 437.
• Citation: 57 F. 206
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. WONG DEP KEN.

57 F. 206

UNITED STATES v. WONG DEP KEN.

No. 437.

United States District Court, S.D. California.

July 31, 1893

George J. Denis, U.S. Atty.

A. B Hotchkiss, Thomas J. Riordan, and Francis J. Thomas, for defendant.

ROSS District Judge.

This is an appeal taken by the defendant, a Chinese person, from an order made by a court commissioner for this district directing that he be imprisoned at hard labor in the state prison at San Quentin, and thereafter deported to China. The proceedings before the commissioner were commenced by the filing with him of a verified complaint charging that, after the passage of the act of congress entitled 'An act to amend an act entitled 'An act to execute certain treaty stipulations relating to Chinese,'' approved May 6, 1882, (22 Stat. 58,) 'one Ming Lee Tue did come into the United States from a foreign place, and, having come, has remained within the United States; that the said Ming Lee Tue has been found, and now is, unlawfully within the United States; and that at all the times herein mentioned the said Ming Lee Tue was and is a Chinese laborer.'

Upon this complaint a warrant was issued by the commissioner, and the defendant, whose true name was found to be Wong Dep Ken having been apprehended, an examination of the charge was had before the commissioner, who, after examination, found him to be a Chinese person and a laborer by occupation, and who found and adjudged him to be unlawfully within the United States, and therefore ordered:

'First. That said Wong Dep Ken be imprisoned at hard labor for the period of two (2) days at the state's prison of the state of California, at San Quentin, in said state of California.

'Second. That thereafter said Wong Dep Ken be removed from the United States to China; and I order that said deportation of the said Wong Dep Ken be made from the port of San Francisco, within the limits of the northern district of California; and I further order that said Wong Dep Ken be, and he is hereby, committed to the United States marshal for the southern district of California for the purposes aforesaid.'

The appeal was taken by virtue of the thirteenth section of the act of congress entitled 'An act to prohibit the coming of Chinese laborers to the United States,' approved September 13, 1888, (25 Stat. 476.) A motion made on behalf of the government to dismiss the appeal was recently denied by the court, for reasons given in an opinion filed on June 30th last. 57 F. 203. The appeal is now for disposition upon its merits.

It appears from the record that the commissioner found from the evidence adduced before him that the defendant is a Chinese person, and a laborer by occupation; that defendant failed to establish, by affirmative proof, to the satisfaction of the commissioner, his lawful right to remain in the United States; and that he did not make it appear to the commissioner that he (defendant) is a subject or citizen of any other country than China. Based upon these facts, the judgment and order appealed from were given, and they rest for their support upon the provisions of the act of congress entitled 'An act to prohibit the coming of Chinese persons into the United States,' approved May 5, 1892, known as the 'Geary Act,' (Stat. 1891-92, p. 25.) The third section of that act is as follows:

'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.'

And its fourth section reads:

'That any such Chinese person or person of Chinese descent convicted and adjudged to be not lawfully entitled to be or remain in the United States shall be imprisoned at hard labor for a period of not exceeding one year, and thereafter removed from the United States, as hereinbefore provided.'

--That is to say, as provided by the second section of the act, which is as follows:

'That any Chinese person or person of Chinese descent, when convicted and adjudged under any of said laws to be not lawfully entitled to be or remain in the United States, shall be removed from the United States to China, unless he or they shall make it appear to the justice, judge, or commissioner before whom he or they are tried that he or they are subjects or citizens of some other country, in which case he or they shall be removed from the United States to such country: provided, that, in any case where such other country of which such Chinese person shall claim to be a citizen or subject shall demand any tax as a condition of the removal of such person to that country, he or she shall be removed to China.'

It will be observed that by the third section of the act of May 5, 1892, the burden of proof of his lawful right to remain in the United States is placed on the Chinese person or person of Chinese descent charged with being unlawfully in this country. No one questions the power of congress to prohibit the coming into this country of any class of foreigners deemed prejudicial to the interests of our people. Against the coming into the country of Chinese laborers, congress has been legislating for years. The reason for such legislation is an old story, and need not be repeated. But, notwithstanding the enactment upon the subject, the laws have been evaded in many ways. By false testimony and concocted evidence the courts have been imposed upon in cases almost without number, and by sea and land the prohibited class in large numbers have been smuggled into the country in one way or another. To prevent all of this, and give effect to its laws upon the subject, as far as possible, congress deemed it wise by the provision in question to put the burden of proof of his lawful right to remain in the United States on the Chinese person or person of Chinese descent charged with being unlawfully within their borders. To those not residents of and not familiar with the Pacific slope, and not so much subject to the evils intended to be guarded against by the exclusion acts, 'the lines laid down for their enforcement may,' as appropriately and well said by Judge Severens in the Case of Sing Lee, 54 F. 334, 'seem hard; and because such summary dealings with the rights of persons are out of the common order to which we are accustomed, and are liable to produce injustice in many cases on account of their summary expedition and the presumption against the prisoners, they may seem severe; but, if the power resides in congress to enact such provisions, the discretion whether it will do so rests in the lawmaking power, and the courts must presume it was exercised upon sufficient reasons.' In respect to the provision of the Geary act putting the burden of proof on those coming within the class thus interdicted, I agree with Judge Severens in the case cited, that there is not only nothing in it violative of the provisions of the constitution of the United States, but, for the reasons given by him, and in view of the circumstances already referred to and of others that may be suggested, that the provision in question is not unreasonable. He says:

'The person brought before the commissioner is one of a class which, by the terms of the statute, is obnoxious to its operation. That must appear before the general jurisdiction can be exercised, and since, generally, that class is interdicted, he can only escape the common lot upon its appearing that he is not within the general condemnation. The means of showing this are presumably in his own control. It would be extremely inconvenient, and probably in most instances impracticable, for the government to bring proof of the negative fact that the respondent is not within the exemption. Such circumstances are the basis of the rule of evidence which devolves the burden on the party who presumably has the best means of proving the fact; but, whatever the rule which by the common law would be applicable to trials, it cannot be affirmed that in such conditions the legislature cannot prescribe such a rule of evidence.'

That the expulsion from this country of a foreigner who came into it contrary to its laws, and who was thereby excluded, is not subjecting him to prosecution or punishment for crime, is clear. In the late case of Fong Yue Ting v. U. S., 13 S.Ct. 1016, the majority of the supreme court held that the subsequent expulsion of Chinese persons who came into the country by invitation of our government is not the prosecution or punishment of such persons for crime committed. A fortiori, the expulsion of such foreigners as entered the country contrary to and in the teeth of our laws is not to prosecute or punish them for crime committed. It results, I think, that the constitutional, statutory, and common-law provisions and rules in respect to criminal prosecutions have no application to the mere expulsion or deportation of such Chinese persons as came here contrary to and in violation of the laws of the United States.

But it by no means follows that the political right of the government to expel such persons embraces the right to confine them at hard labor in a penitentiary before deportation. If the imprisonment of a human being at hard labor in a penitentiary is not punishment, it is difficult to understand how anything short of the infliction of the death penalty is. It is not only punishment, but punishment infamous in its character, which, under the provisions of the constitution of the United States, can only be inflicted upon a person after his due conviction of crime pursuant to the forms and provisions of law.

'Infamous punishments,' said the supreme court...