83

Chinese. The smaller cities and towns of the state were repeating the earlier history of San Francisco, and had now begun to develop their Chinese quarters with the attendant evils. Many of them passed ordinances for mitigating these evils. As in the case of San Francisco, the more oppressive of these were declared unconstitutional by the courts. In a number of the smaller towns where there was great unanimity of feeling, the inhabitants took matters in their own hands; they expelled the Chinese and gave them a rough notice not to return.84 Some of these places have continued to enforce this local exclusion policy to the present time.

No doubt whatever economic evils may have resulted from the presence of the Chinese were greatly exaggerated in the public mind by the long-continued agitation, which had been necessary to secure the passage of the laws restricting immigration. The press and public speakers had explained fully to the remotest settlement just what harm could or would result from the presence of the Chinese, and there was a universal disposition to charge them with whatever economic evils vexed the times.

The presidential elections of 1880 and 1884 had conclusively demonstrated that the Chinese issue determined the electoral vote of California, and possibly of Nevada. As the strength of the two great national political parties was so nearly equal at this time, the Pacific Coast states held the balance of power. The desire to make political capital of the Chinese legislation is clearly shown in the debates on the law of 1888; the question. as to which party had been most zealous in the promotion of the exclusion laws called forth much more heated arguments than did the merits of the bill under consideration.85 The political platforms of this period all expressed a strong desire to meet the popular demand for this class of legislation, and a

83 Ex parte Fiske, 72 Cal. 125, 129. Ex parte Kuback, 85 Cal. 275. Bulletin, February 16, 1886.

84 Among the places taking such action were Eureka, Truckee, Redding, Santa Cruz, Bloomfield, Boulder Creek, Nicolaus, in California; Tacoma in Washington. Seattle attempted it, but was restrained by Federal troops.

85 Congressional Record, XIX, p. 7296.

disposition to hurry such measures through just before election. is also quite noticeable.

THE EXCLUSION LAWS OF 1888.

Congress was allowed no respite in the matter of Chinese exclusion. Numerous bills were introduced in 1886 and 1887. The people of the Pacific Coast were disposed to agree with Senator Mitchell of Oregon who claimed that his bill which provided for an absolute exclusion of the Chinese laborers was the only solution of the problem. This bill passed the Senate but was defeated in the House. Once more action was deferred pending the negotiation of a treaty with China. There was much delay in the ratification of this treaty, and as the time for the next presidential election approached Congress became very impatient.

Both parties were anxious to meet the indignant demands of the people of the Pacific States that something be done to stop the wholesale evasion of the Chinese exclusion laws. Without waiting for the ratification of the treaty, a law was passed September 13, 1888, which embodied the provisions of the proposed treaty, and was to take effect when it was accepted.86 This law provided that no Chinese laborer in the United States should be permitted after having left, to return thereto, except under the following conditions: If he have a lawful wife, parent, or child in the United States, or property to the amount of one thousand dollars, or debts of like amount due him and pending settlement. A Chinamar claiming this right of return must apply to the Collector of Customs a month before leaving, and must give a description of his family or property, and permit the Collector to make a full description of his person. These descriptions were to be filed at the Custom House, and a certificate issued containing the filing number, but no descriptions, thus making its transfer more difficult. The right to return must be exercised within one year. In case of sickness an extension of the time could be had by application to the con

86 Act of September 13, 1888, 25 Statutes at Large, Ch. 1015, pp. 476

sular representative of the Chinese Government stationed in the United States at the port of departure.87

As the treaty which this law was intended to put in execution was never ratified, there was some uncertainty about the validity of the law. In the First Supplement of the Revised Statutes,88 and in a circular of May, 1892, issued from the Treasury Department, it was held that the act never went into effect on account of the failure of the treaty. But the decisions of the courts and the opinions of the Attorney-General have held that parts of the act are not dependent on the treaty and have a field of action. The Act of 1902 in extending the action of laws. then in force, included the sections of this act which had been held operative by the courts.90

The government of China was not satisfied with the treaty, and wished further consideration of some of its provisions. Since the law of September 13 had been made dependent on the treaty, there was great uncertainty in its application. As the Chinese were pouring into the United States at the rate of two thousand a month, and the people of the Pacific States were becoming very impatient, the representatives of both political parties in Congress were eager to amend the exclusion laws. without reference to the treaty, particularly as the time for the next presidential election was approaching. The law of October 1, 1888, repudiated all former agreements permitting the return of laborers who had left the country. No more certificates of return were to be issued and those previously issued were declared void.91

The courts fully sustained the validity of this refusal to recognize the certificates issued under the earlier treaties and

87 Convention with China, December 8, 1894, Art. II, provides that the Chinese consul at the part of departure shall perform this duty. 21 Op. Atty. Gen. 357. 23 Op. Atty. Gen. 545, 582.

88 1 Sup. Rev. Stat. 625.

89 2 Sup. Rev. Stat. 141. Sections 2, 4, 15, declared invalid U. S. v. Long Hop (1892), 55 Fed. Rep. 58; Sec. 12 not binding, Li Sing v. U. S. (1901), 180 U. S. 486.

90 Sections 5, 6, 7, 8, 9, 10, 11, 13, and 14 were included. 32 Statutes at Large, 176.

91 Law of October 1, 1888, 25 Statutes at Large 504. President Cleveland's criticism of the act, Sen. Ex. Doc. 271-2-3, 50th Cong., 1st Sess, Serial No. 2514.

laws. Justice Field in his opinion said that the question of whether our government was justified in disregarding its agreements with other nations was not one for the determination of the courts. He held that the power of excluding foreigners, being an incident of sovereignty, belonged to the government of the United States as a part of those sovereign powers delegated by the Constitution, and the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, could not be granted away or restrained on behalf of any one. Whatever license the Chinese laborers had obtained previous to the act of 1888 to return to the United States after their departure, was held at the will of the government, revocable at its pleasure. He pointed out that the laborers in question were not citizens of the United States, but were aliens. That the government of the United States, through its legislative branch, can exclude aliens from its territory is a proposition which he did not think open to controversy."

92

The United States Census of 1890 showed that after eight years of strenuous efforts at exclusion there had been an actual increase in the Chinese population of the country of about two thousand. The Census of 1880 reported one hundred and five thousand Chinese residents, and that of 1890 found the number increased to one hundred and seven thousand.93 It was no longer possible to come direct to San Francisco, but new routes of entry were soon discovered. The thinly settled, poorly guarded Canadian and Mexican frontiers offered tempting opportunities for entering the forbidden land, and the Chinese soon developed a well-planned underground railroad for bringing in their countrymen. It has been impossible to prevent this comparatively small immigration, which continues to the present time.95

94

92 In re Chae Chan Ping (1888), 36 Fed. Rep. 431. Opinions and Papers of S. J. Field, Vol. III, Doc. 20.

93 The Census shows the Chinese population to have been as follows: 1880, 105,465; 1890, 107,475; 1900, 106,659.

94 Ralph, J., "Leak of Chinese into the United States" (through Canada), Harpers' Magazine, 82, 515. H. R. Rept. No. 255, 52d Cong., 1st Sess., Serial No. 3042.

95 San Francisco Chronicle, February 26, 1908, reports 26 brought to San Francisco for deportation.

RENEWAL OF THE EXCLUSION LAWS IN 1892.

The time was now approaching when the exclusion law of 1882 would expire. It was rumored that the Six Companies were collecting a large sum of money with which to fight its renewal. The whole country was once more aroused for another effort to insure the desired legislation.96 Meetings of workingmen were held, and petitions and memorials prepared for circulation throughout the country.

The uneasiness in California was so great that the state legislators ignored the many decisions declaring their lack of jurisdiction, and passed a drastic exclusion law. It provided that no Chinese person should be permitted to enter the state either by land or sea. Masters of vessels were not allowed to land them, and ticket agents must examine their certificates of residence before selling them any tickets. All the Chinese residents of the state were required to register, paying a fee of five dollars for their certificates. These fees and the heavy fines imposed for the violation of the law were expected to furnish a fund for its enforcement. This law must have been passed merely for the purpose of showing Congress what the people of California desired in the way of Chinese exclusion, for it hardly seems probable that the legislators were not aware of the fact that the state had no authority to enforce such a law. Of course this statute was promptly declared unconstitutional. The decision pointed out once more that "the power exercised belongs exclusively to the general government by virtue of its authority to regulate commerce." It was declared that the law was clearly in excess of the power of the state, as Congress had prescribed the conditions on which Chinese now here should be permitted to remain.98 The main features of this act of the state legislature corresponded with those of the bill which Senator Mitchell had introduced some six years before in the United States Senate. Many claimed that the policy of absolute exclusion which he advocated was the only solution

96 See the Call and other San Francisco papers, December 1, 4, 5, 1891. 97 Statutes of California, 1891, p. 186.

98 Ex parte Ah Cue, 101 Cal. 197; 35 Pac. 556.