United States v. Jamieson

185 F. 165 | S.D.N.Y. | 1911

HAND, District Judge (after stating the facts as above).

Two questions are raised: First, whether a seaman or member of the crew of a vessel are within the section quoted; and, second, whether the indictment is adequate in its terms. It must be conceded in the first place that there is no statute absolutely excluding any Chinaman from the United States except a laborer. Act May 6, 1882, c. 126, 22 Stat. 58 (U. S. Comp. St. 1901, p. 1305), specifically refers to laborers only; and, though the act of September 13, 1888, was unquestionably broadly comprehensive of all Chinese persons, sections 1 and 15 admittedly never went into effect, and it is very doubtful whether sections 2, 3, and 4 ever did either. Sections 5 to 14, inclusive, all of which have been from time to time re-enacted, are administrative sections, and do not exclude any new classes. On the other hand, under section 6 of the act of 1882, originally as well as when amended by Act July 5, 1884, c. 220, 23 Stat. 116 (U. S. Comp. St. 1901, p. 1307), a Chinese person, not a laborer, was also excluded, who did not obtain the certificate from the Chinese government provided for in that section. Section 2 of the act of 1888, if it be in force, is of the same character. It makes little difference whether or not a person so conditionally excluded is said to belong to excluded classes, for the fact is that lie cannot get in, and it may perhaps be that section 9 now under consideration covers the case of one bringing in such a person. Upon that question !' do not mean to decide, because it is, I think, unnecessary. It may be assumed to be the law, and I shall so assume it. Act Nov. 3, 1893, c. 14, § 1, 38 Stat. 7 (U. S. Comp. St. 1901, p. 1321), retains the use of the word “laborer,” although it includes within that term certain occupations not within the colloquial meaning of she term. The convention of December 7, 1894 (28 Stat. 1210), also repeated the word, as have Act April 29, 1902, c. 641, 32 Stat. 176 (U. S. Comp. St. Supp. 1909, p. 473), and Act April 27, 1904, c. 1630, 33 Stat. 428 (U. S. Comp. St. Supp. 1909, p. 473). It is true that the title of the act of May 5, 1892, c. 60, 27 Stat. 25 (U. S. Comp. St. 1901, p. 1319), is broader, using the word, “person's,” and there is some language in the case of U. S. v. Chu Chec, 93 Fed. 797, 803, 35 C. C. A. 613, which might justify the conclusion that the excluded classes are larger than those of laborers; but if it be understood that the only absolutely excluded classes are laborers, and that others are excluded only conditionally on not producing a certificate, the language of the title and of the opinion is reconciled with the terms of the statutes themselves.

There seems to be no doubt on authority that a seaman is not a laborer. This has been held in a number of the decisions (Re Ah Kee [D. C.] 22 Fed. 519; Re Monean [C. C.] 14 Fed. 44; Re Jam [D. C.] 101 Fed. 989); and it accords with the reasonable usage of words. A sailor does manual labor, but he is certainly not, under ordinary parlance, a laborer, either skilled or unskilled. Congress in Act 1893, § 2, recognized the word as not covering all those who do manual labor by specifically including certain occupations such as fishing, which are of the same kind as seafaring. I have no doubt on principle that a seaman is not included in the term. The purpose of the act was to prevent the entry of those who by their different standard of living should depress the wages in America of those who can least resist such competition. Of course, a nice economic speculation might suggest the same reason for applying the act to American seamen, but unhappily there are not many such anyway, and, besides, the act would not then be coterminous with its purposes, because most seamen coming here are on foreign ships and do not compete with our countrymen. Therefore I hold that under the act of 1882, and the subsequent acts, a seaman is not a laborer and so absolutely excluded.

Coming now to the penal provision in question, it is clear that section 9 of the act of 1888 only made penal the landing of Chinamen excluded by law, either absolutely, or conditionally. It is true that the words have literally a broader significance, but they would have been essential as an effective administrative measure, had the expected ratification of the treaty occurred. In that case all Chinamen would have been excluded, except those mentioned in section 2 of the act, and the language of section 9 would have been necessary to cover the importation of any kind of Chinamen whatever, I cannot think it possible that Congress meant to punish as a crime the bringing- in and landing of a person not excluded when he came here. It is quite true that all persons not laborers are provisionally excluded except such as may not fall within section 6 of the acts of 1882 and 1884, but if there be a case, as I think this is, which is neither conditionally nor absolutely excluded, it would be absurd to suppose that the statute meant to make that a crime, for the statute is certainly only- directed against aiding and abetting an illegal entry. Its history and setting- leave no doubt of that. If, therefore, a seaman be not a laborer, and if it be conceded that section 9 applies to bringing in any one conditionally-excluded under section 6 of the act of 1882 and 1884, or section 2 of the act of 1888, assuming that that section ever became law, then the question comes down to this: Is a seaman required to obtain a certificate under section 6 of the acts of 1882 and 1884 or section 2 of the act of 1888, in order to go on shore when his ship touches at an American port? If those sections do not cover his case, there is no section which excludes him. Of course, I do not mean that the entry of a laborer under the guise of a seaman would not exclude him, or that his permanent severance from any ship would not change his character. I am assuming the case of a bona fide seaman, the member of a crew. If section 6 of that act does not apply, such a man is not excluded, for there is no law to exclude him. Now, I think that a reasonable interpretation of that section will satisfy any fair man that it could not have been intended to apply to seamen whose ships might touch at a port in the United States during a voyage, whether that port was the terminus or not. It is perhaps difficult to point out any specific language, for the conclusion depends more upon ■ the section as a whole, construed with a just sense of its setting and its purposes. The practical difficulties of such an absurd requirement when applied ,to all ships of any nation shipping Chinese seamen require one of two alternatives — either that they are excluded altogether, or are not contemplated in the statute at all. If it be necessary to single out a word from the act, I should say that such a person was not one who was “about to come to the United States,” and that the words mean, “comfe with the intention of’ remaining” at least for a period of time. Therefore I do not think that a Chinese seaman is within the meaning of section 9.

However, even if this were true, the indictment is faulty. In Taylor v. U. S., 207 U. S. 120, 28 Sup. Ct. 53, 52 L. Ed. 130, the Supreme Court said that “bringing into the United States” meant bringing with intent to leave. That was under the immigration acts, but the words there used were apparently taken from the act of 1882, and, in any case, they ought to have the same construction here as there. It is 'true that another alternative ground of decision was suggested in that case, .but the language of the. opinion is certainly strong enough not to be disregarded except by the court itself. It must be held to be the law, therefore, that the intent to leave is included in the terms “bringing” as used in this statute. If so, it is a.specific intent, and must be alleged in an indictment like any other specific intent which is the ingredient of a crime.

. Again, if the theory be that the seaman, though not a laborer, .was conditionally excluded, because he had no certificate, that fact should be stated. Qua seaman he is not excluded; qua Chinaman he is conditionally excluded, but the conditions are not in form provisos to a general excluding act. They are formally a part of the excluding clause itself. That is the usual test for conditions which must be negatived.

Demurrer sustained and indictment quashed.