IMMIGRATION, CHINESE. 



391 



are " laborers " within the meaning of the act. . . . 

 Of course a Chinese seaman, although allowed to 

 come into the ports of the United States as one of the 

 crew of a vessel from a foreign port, does not thereby 

 obtain the right to remain in the country and become 

 a laborer therein ; and if the master allows him to go 

 ashore permanently, the latter would be liable to re- 

 moval, and the former to the punishment prescribed 

 in section 2 of the act. But such seaman would have 

 the same right to be on the shore temporarily and not 

 otherwise employed than in the business of the vessel 

 during her stay in port, as those of other nationalities. 



As to Moncan, the court held that he had a 

 right not only to land, but to remain perma- 

 nently, for the reason that he had joined an 

 American ship prior to the passage of the act, 

 and remained on her until his arrival here. 

 This was in accordance with the view expressed 

 by Justice Field in the case of Ah Sing, 

 that " an American vessel is deemed to be a 

 part of the territory of the State within which 

 its home port is situated, and as such a part of 

 the territory of the United States ; the rights 

 of its crew are measured by the laws of the 

 State or nation, and their contracts are en- 

 forced by its tribunals." 



CASE OF Ho KING. It was held by Judge 

 Deady, in the case of Ho King (14 " Federal 

 Reporter," 724), that a Chinese -actor is not a 

 laborer, and is therefore entitled to enter the 

 United States on satisfactory evidence of his 

 professional character. "The term ' laborer,' " 

 said Judge Deady, u is used in the supplement- 

 ary treaty with China, of November 17, 1880, 

 and also of the act of May 6, 1882, by sec- 

 tion 15 of which it is made to include ' both 

 skilled and unskilled laborers,' in its popular 

 sense, and includes only persons who perform 

 physical labor for another for wages. It 

 does not, therefore, include an actor any more 

 than it does a merchant or teacher. . . . 

 Neither the treaty nor the act has in view the 

 protection of what are called the professional 

 or mercantile classes, or those engaged in mere 

 mental labor, from competition with the Chi- 

 nese. No grievance of this kind was ever com- 

 plained of, and the language of the remedy 

 provided plainly indicates that it was not con- 

 templated by either of the parties to the treaty, 

 or the Congress that passed the act." 



In this case Judge Deady further decided 

 that any Chinese non-laborer entitled to come 

 to this country may enter without the certifi- 

 cate prescribed by section 6 of the act, pro- 

 vided he gives satisfactory proof that he is not 

 a laborer, and a satisfactory explanation why 

 he has no certificate. On this point the court 

 said: 



In the case of Low Yam Chow [13 " Federal Eeport- 

 er," 605, also given above] it was held by Justices Field 

 and Hoffman that Chinese not laborers, who, at the 

 passage of the act, did not reside in China, were not 

 required to produce this certificate to prove they 

 were non-laborers prior to being allowed to land. 

 1 he reasoning by which this conclusion is reached, 

 would justify the conclusion that the certificate is not 

 absolutely necessary in any case. The non-laboring 

 classes of Chinese are still entitled by treaty stipulation 

 to come to and reside in the United States, and to en- 



joy all the " rights, privileges, immunities, and ex- 

 emptions" which may be accorded to "the citizens 

 and subjects of the most favored nation" (treaty of 

 November 17, 1880). 



If section 6 of the act of 1882 is construed to abso- 

 lutely require the production of the certificate therein 

 provided for, before a Chinaman who is not a laborer 

 can come within the United States, then it will oper- 

 ate as a serious restriction upon the right and privi- 

 lege given him by the treaty, because in this respect 

 no such condition or restriction is imposed upon the 

 subject of any other nation. Indeed : the fact of being 

 compelled to make proof of his condition or character 

 at all is a burden and inconvenience upon the Chinese 

 coming to the United States, which is not required of 

 any other immigrant or visitor coming to this coun- 

 try. But probably this much is unavoidable under 

 the circumstances, and must be submitted to as a ne- 

 cessary incident of the right of the United States, un- 

 der the amended treaty, to exclude from the country 

 Chinese laborers. . . . 



Eead, then, in the light of the treaty, and considered 

 as an aid rather than an impediment to its enforce- 

 ment, section 6 ought to be construed as a declaration 



tificate of the Chinese Government that the bearer is 

 not a laborer, and is prima fade entitled under the 

 treaty to come into the United States at pleasure; 

 but that, in the absence of such certificate, a China- 

 man claiming the right to enter and reside in the 

 United States must establish the fact that he is not a 

 laborer by evidence, as in ordinary cases of the ex parte 

 proof of a fact. 



But the non -production of a certificate, un- 

 less satisfactorily explained, may raise the pre- 

 sumption that the claimant is one of the pro- 

 hibited class. In the case under consideration, 

 Ho King explained that, when he left China, 

 it was his purpose to go to Honolulu, and that 

 he had no intention of coming to the United 

 States. This was considered by the court as a 

 satisfactory explanation of why he had no cer- 

 tificate. 



This view of the law was also taken by 

 Chief-Justice Greene, of Washington Territory, 

 in the case of Lee Yip, decided near the close 

 of 1882. 



TRANSIT OF CHINESE LABORERS. The impor- 

 tant question was raised during the year, but 

 was not brought before any court, whether 

 Chinese laborers are entitled to enter and pass 

 through the United States on their way from 

 one foreign country to another. It was repre- 

 sented that there were from 40,000 to 50,000 

 Chinese laborers in the West Indies whose 

 contracted term of service there was about to 

 expire, and who wanted to return to China 

 by way of the United States. On this ques- 

 tion Attorney- General Brewster gave two con- 

 flicting opinions. In the first, dated July 18th, 

 and given to Secretary Folger, he held that the 

 coming of all laborers to the United States was 

 prohibited by the act, whether they came to 

 remain or simply to pass through the country. 

 In the second, dated December 26th, and given 

 to Secretary of State Frelinghuysen, he held 

 that the prohibition of the act does not extend 

 to Chinese laborers desiring to cross the United 

 States from one foreign country to another. 

 " My first opinion on this subject," writes Mr. 



