390 



IMMIGRATION, CHINESE. 



China," as is prescribed by section 6 of the Act 

 of Congress. After quoting this section, Jus- 

 tice Field says: "The certificate mentioned 

 in this section is evidently designed to facili- 

 tate proof by Chinese other than laborers com- 

 ing from China, and desiring to enter the 

 United States, that they are not within the 

 prohibited class. It is not required as a means 

 of restricting their coming. To hold that such 

 was its object, would be to impute to Congress 

 a purpose to disregard the stipulation of the 

 second article of the new treaty [November, 

 1880], that they should be ' allowed to go and 

 come of their own free-will and accord.' Nor 

 is it required, as a means of proving their char- 

 acter, from merchants and others not labor- 

 ers, domiciled out of China when the law was 

 passed, and coming here from such foreign ju- 

 risdiction. The particulars which the certifi- 

 cate must contain show that it was to be given 

 to those then residing there, for their place of 

 residence in China, is to be stated. Independ- 

 ently of this consideration, that Government 

 could not be expected to give, in its certificate, 

 the particulars mentioned of persons resident 

 some, perhaps, for many years out of its 

 jurisdiction. Neither the letter nor the spirit 

 of the act calls for a construction imputing to 

 Congress the exaction of a condition so unrea- 

 sonable. . . . Its purpose will be held to be, 

 what the treaty [of November, 1880] author- 

 ized, to put a restriction upon the immigration 

 of laborers, including those skilled in any trade 

 or art ; and not to interfere, by excluding Chi- 

 nese merchants, or putting unnecessary and 

 embarrassing restrictions upon their coming, 

 with the commercial relations between China 

 and this country. Commerce with China is of 

 the greatest value, and is constantly increasing. 

 And it should require something stronger than 

 vague inferences to justify a construction which 

 would not be in harmony with that treaty, and 

 which, would tend to lessen that commerce. It 

 would seem, however, from reports of the ac- 

 tion of certain officers of the Government 

 possessed cf more zeal than knowledge that 

 it is their purpose to bring this about, and thus 

 make the act as odious as possible. 



" We are of opinion that the section requir- 

 ing a certificate for Chinese merchants coming 

 tothe United States does not apply to those who 

 resided out of China on the passage of the Act 

 of Congress, and that proof of their occupa- 

 tion may be made by parol." 



CASE OF GEORGE MONCAN AND AH KEE. 

 In the case of George Moncan and Ah Kee (14 

 " Federal Reporter," 44), United States District 

 Judge Deady, of the Oregon District, held that 

 a Chinaman who had shipped as a seaman on 

 an American vessel, in a foreign port, before the 

 passage of the Act of Congress, and reached a 

 port of the United States after the act went 

 into force, had a right to enter the country and 

 remain; and he interpreted section 3 of the 

 act which excepts from its prohibitory provis- 

 ions a vessel "touching at any port of the 



United States on its voyage to any foreign port 

 or place; provided, that all Chinese laborers 

 brought on such vessel shall depart with the 

 vessel on leaving port." It appeared that Mon- 

 can had shipped as cook on the American ves- 

 sel Patrician, at London, in March, 1882, which 

 was before the passage of the act. The ves- 

 sel went to Yokohama, Japan, where, on Sep- 

 tember llth after the law went into effect 

 Moncan was made steward and Ah Kee was 

 taken on as cook. It then proceeded to Asto- 

 ria, Oregon, which port it reached in October, 

 and there took on a load of wheat for Europe. 

 Moncan and Kee, being forbidden to land, ap- 

 pealed to the court to define their rights. On 

 these facts the law Was interpreted by Judge 

 Deady as follows : 



Counsel for the Chinese contends : 1. That under 

 the circumstances the Patrician is a vessel " touching " 

 at a port of the United States "on its voyage" to a 

 foreign one, and therefore within the exception con- 

 tained in section 3 of the act ; and, 2. That the crew of 

 a vessel arriving at a port of the United States from a 

 foreign port or place, in the ordinary course of com- 

 merce and navigation, are not " laborers" within the 

 meaning of the act. 



When the Patrician entered the Columbia River, the 

 terminiis ad quem^ or place of termination of her voy- 

 age, was not definitely known. It might be either 'in 

 Europe or the United States ; and, so far as now- 

 known, it is in the former. But even so long as it 

 might be in either country, I think she ought to be 

 for the purpose of this act considered as on a voyage 

 to a foreign port. But it is certain that her port of 

 final destination was not Astoria, at which place she 

 merely called for orders. Nor had the voyage then 

 terminated as to the steward and cook, whose engage- 

 ments were for twenty-four months each from the 

 date of signing the articles, unless sooner discharged. 



The word "touching" is evidently used in the act 

 to signify the opposite of "staying." And it does 

 not apply to the case of a compulsory entrance on ac- 

 count of distress or stress of weather, for that is spe- 

 cifically provided for. A vessel does not ordinarily 

 touch at her home port, but remains there until a new 

 voyage is undertaken. But in course of a trading- 

 voyage, from England to Asia and back to Europe or 

 the United States, she may touch at many ports and 

 for many purposes. Calling at a port for orders is, in 

 my judgment, a plain case of "touching" at such 

 port ; and if, in pursuance of the order obtained, or 

 being there, the vessel remains long enough to take 

 in a cargo for a foreign port, I see no reason, under 

 the circumstances, for concluding that she is hence- 

 forth "staying" but not "touching" at such port. 

 Upon this view of the case, the Patrician has simply 

 touched at this port. Her stay here is only tempo- 

 rary and for an object necessary to enable her to pros- 

 ecute her voyage to a foreign port with profit to her 

 owners. Nor do I think that the Chinese members 

 of the crew of the Patrician are laborers within the 

 meaning of this act. True, their vocation is labor ; 

 but they are not brought here to remain and enter 

 into competition with the labor of the inhabitants of 

 the country. . . . 



It is not to be supposed for a moment that Congress 

 intended by the passage of this act to impede or crip- 

 ple commerce with China by_ prohibiting, in eft'ect, all 

 vessels engaged in the carrying-trade to and from the 

 United States, and particularly those on the Pacific 

 coast, from employing Chinese cooks, stewards, or 

 crews, when for any reason it is necessary or conven- 

 ient to do so ; for such would necessarily be the re- 

 sult of holding that the Chinese crew of a vessel com- 

 ing from a foreign port to one of the United States 



