Tuesday, October 3, 2006
Page 7
PERSPECTIVES (Column)
California Lieutenant Governor Defends Federal Anti-Chinese Law in U.S. High Court
By ROGER M. GRACE
Twelfth in a Series
STEPHEN M. WHITE, Los Angeles County’s 17th district attorney, is remembered today not for his role as a prosecutor, but as a statesman, a United States senator of presidential caliber. But just as records of some district attorneys in this county who came before him are soiled by pro-slavery stances they took before and during the Civil War, it must be borne in mind that White was, in years after his term as DA, a proponent of severe anti-Chinese measures.
White co-authored a brief filed in the United States Supreme Court during its October, 1888 term arguing the constitutionality of new legislation which sucked from the 1882 Chinese Exclusion Act what traces of fair play it contained. Of course, where a lawyer merely puts forth the legal position of a client (here, the State of California) as to the validity of a law, it’s legal advocacy…not personal espousal of the sentiment behind the legislation.
Yet, the legal services of White, then California’s lieutenant governor, were hardly engaged without regard to what his own views were on the issue. Those views were expressed at various times, including June 6, 1888 when, as temporary chairman of the Democratic National Convention in Chicago, he lauded efforts of the national Democratic administration aimed at “excluding the Mongolian from our shores.”
During the period when White served in the U.S. Senate, from March 4, 1893 to March 3, 1899, he made it clear where he stood: against letting any more Chinese laborers set foot in this country and in favor of subjecting those already here to regulations imposed on no others.
Anti-Chinese sentiment in California in the latter part of the 19th Century was rampant. Talk in the streets, talk from platforms, words in writing...on posters and in editorials…were brutal and venomous.
There was a need generally perceived on the part of the enfranchised citizens (adult males) to block further immigration of “Chinamen,” and some even called for banishing those already within the state’s borders to their native land.
(Chinese who were not born in the U.S. could not vote; they did not qualify for citizenship.)
It was not so much that the Chinese were viewed as “different,” not having blended into the mainstream of the populace, but they were competitors with white men for jobs. As explained in the 1889 Supreme Court opinion in Chan Ping v. U.S., 130 U.S. 581, the case in which a brief co-authored by White was filed:
The discovery of gold in California in 1848, as is well known, was followed by a large immigration thither from all parts of the world, attracted not only by the hope of gain from the mines, but from the great prices paid for all kinds of labor. The news of the discovery penetrated China, and laborers came from there in great numbers, a few with their own means, but by far the greater number under contract with employers, for whose benefit they worked. These laborers readily secured employment, and, as domestic servants, and in various kinds of outdoor work, proved to be exceedingly useful. For some years little opposition was made to them, except when they sought to work in the mines, but, as their numbers increased, they began to engage in various mechanical pursuits and trades, and thus came in competition with our artisans and mechanics, as well as our laborers in the field. The competition steadily increased as the laborers came in crowds on each steamer that arrived from China, or Hong Kong, an adjacent English port. They were generally industrious and frugal. Not being accompanied by families, except in rare instances, their expenses were small; and they were content with the simplest fare, such as would not suffice for our laborers and artisans. The competition between them and our people was for this reason altogether in their favor, and the consequent irritation, proportionately deep and bitter, was followed, in many cases, by open conflicts, to the great disturbance of the public peace.
Peter Burnett, the first governor of California after (and immediately before) it gained statehood, puts forth the case for exclusion of Chinese laborers in his 1880 book, “Recollections and Opinions of an Old Pioneer”:
“Born and nursed in poverty, and early trained in the severe schools of unremitting toil and extreme economy, the Chinaman is more than a match for the white man in the struggle for existence. The white man can do as much work, and as skillfully, as the Chinaman; but he can not live so cheaply. It would require many centuries of inexorable training to bring the white man down to the low level of the Chinese mode of living. Were Chinamen permitted to settle in our country at their pleasure, and were they granted all the rights and privileges of the whites, and the laws were then impartially and efficiently administered, so that the two races would stand precisely and practically equal in all respects, in one century the Chinese would own all the property on this coast. This result they would accomplish by their greater numbers and superior economy.”
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From an 1885 issue of "Wasp," a San Francisco magazine. |
In California, the Democratic Party (and with less adamancy the Republican Party) sought action to block Chinese laborers from grabbing jobs from the white work force. It was with especial fervor that the short-lived Workingman’s Party, which nominated White’s father for governor in 1879, called for elimination of competition from the Chinese.
Against that backdrop, legislation was passed by Congress in 1879 barring immigration from China. President Rutherford B. Hayes vetoed it on the ground that it contravened an 1868 treaty with China under which the two nations recognized “the mutual advantage of the free migration and emigration of their citizens and subjects, respectively for purposes of curiosity, of trade, or as permanent residents.”
The Hayes Administration proceeded to secure Chinas assent on Nov. 17, 1880 to amendments to that treaty spelling out that the U.S. might “suspend” immigration of Chinese laborers, but specifying that those Chinese “who are now in the United States, shall be allowed to go and come of their own free will and accord.”
There then came the Chinese Exclusion Act in 1882, a measure pushed for by California. The preamble recites that “in the opinion of the Government of the United States the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof,” and the body provides:
“...That from and after the expiration of ninety days next after the passage of this act [May 6, 1882], and until the expiration of ten years next after the passage of this act, the coming of Chinese laborers to the United States be, and the same is hereby, suspended; and during such suspension it shall not be lawful for any Chinese laborer to come, or, having so come after the expiration of said ninety days, to remain within the United States.”
Under the act, a Chinese laborer who was already here and who desired to leave the United States temporarily was “entitled” to receive, at no cost, a “certificate” with his description on it which would entitle him to reenter the U.S. Amendments two years later provided that “said certificate shall be the only evidence permissible to establish his right of re-entry.”
One of the many who obtained a certificate was Chae Chan Ping, who left San Francisco by steamer on June 2, 1887. After visiting his native land, he came back, disembarking a ship at San Francisco Harbor on Oct. 8, 1888. He presented his certificate, but a customs official denied him reentry. One week earlier, new legislation went into force declaring it to be “unlawful for any Chinese laborer who shall at any time heretofore have been, or who may now or hereafter be, a resident within the United States, and who shall have departed, or shall depart, therefrom, and shall not have returned before the passage of this act, to return to or remain the United States.” The enactment nullified reentry certificates such as that held by Ping.
Apparently under compunction by federal authorities, the captain confined Ping on his ship, and a writ of habeas corpus was sought on Ping’s behalf. It was denied on Oct. 15 by U.S. Circuit Judge Lorenzo Sawyer (a former chief justice of California), and that decision was appealed to the Supreme Court.
The Democrat White, then lieutenant governor of California, and John F. Swift, a Republican member of the state Assembly, co-authored the brief in support of the validity of the 1888 act. They disputed the notion that there was any constraint on Congress from acting as it did in 1888 on the basis of provisions in treaties with China or in the Chinese Exclusion Act of 1882 or amendments to it two years later. What they basically said was that the government had a sovereign prerogative to change its mind.
Their brief goes on to say:
“It
would be a curious and illogical adjudication of the law to hold that the alien
respondent Chae Chin Ping could, 
in spite of the act of Congress of
1888, land in the United States, in view of the fact, which it is futile to
deny, that the same Congress could have passed at the same decision an act requiring
him, in common with any or all other aliens, to depart with or without notice
or in a time given, or peremptorily, and to have him, as an alien, finally
thrust across the frontier and expelled, if necessary. The greater power must
surely include the lesser. If he could be sent away after coming, he can be
kept out.”
Ping left the U.S. in reliance on the express representation, in statutory form, that, by virtue of his certificate, he could gain re-entry—and there was no reason to suppose he would have left if the law did not provide such an assurance. From that, Ping’s lawyers fashioned a contract theory. The Swift/White brief responds that a contract requires consideration, and there was none…and there was no substitute for it, reasoning:
“We are...told that the United States invited him to go and he went, trusting that he might get back. Will someone tell us how it can be considered a ‘detriment’ to go home, whether on business or pleasure? Is the acceptance of an invitation to leave this country, coupled with a statement that the party leaving may return sufficient to deprive us of the power of excluding the alien who accepted the invitation, and whose presence we now deem contrary to the people’s welfare?
“Clearly, the certificate was never issued upon any such theory. It was issued, because the bad character of Ping’s countrymen made it necessary to provide a moderately certain means of identification.”
Brushing aside the contention that the act was ex post facto legislation, the brief responds: “No attempt is made to impose a punishment for an act not punishable at the time it was done.” If Ping had been allowed to land at a time it was not unlawful for him to do so, and his entry was rendered a criminal offense by subsequent legislation, the brief says, “the case might be different.”
The brief adds:
“It is inaccurate to say that appellant has been banished, he left voluntarily. It would be equally correct to declare that Chinese laborers, who were never outside of China, had been banished by Congress because the privilege of coming here has been denied them.”
The high court on May 13, 1889 held, in a unanimous decision, that the treaties with China which were countermanded by the 1888 legislation “were of no greater legal obligation than the act of congress” and that Congress was in no other respect inhibited from barring the return of Chinese laborers. The opinion was authored by Justice Stephen Field (a former member of the California Supreme Court).
“Whatever license…Chinese laborers may have obtained, previous to the act of October 1, 1888, to return to the United States after their departure, is held at the will of the government, revocable at any time, at its pleasure,” the opinion says, echoing the reasoning in the Swift/White brief. It adds:
“If…the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.”
The Chinese Exclusion Act was extended, then made permanent. It was not repealed until Dec. 17, 1943.
Next time, I’ll look at White’s stances on the “Chinese Question” while serving in the U.S. Senate, and the concern he did have for the welfare of the Chinese, as related by his great granddaughter.
Copyright 2006, Metropolitan News Company