History of the Federal Judiciary

History of the Federal Judiciary

  Chew Heong v. United States: Chinese Exclusion and the Federal Courts
Learn about the case — historical background and documents

A Short Narrative

On September 27, 1884, the U.S. Circuit Court in San Francisco convened to hear the case of Chew Heong, a Chinese laborer petitioning to be readmitted into the United States. Like many of the so-called “Chinese habeas corpus” cases, Chew Heong v. United States attracted considerable public attention. Chinese spectators crowded into the courtroom and the hallways, and the local press covered the hearings in detail. Both sides—the Chinese immigrant Chew Heong and the U.S. government—were represented by a bevy of well-known lawyers. As the Supreme Court justice serving the Ninth Circuit, Stephen J. Field had arrived from Washington, D.C., to preside over the hearing, and he sat on the bench with U.S. Circuit Court Judge Lorenzo Sawyer. U.S. District Court Judges Ogden Hoffman and George Sabin, who presided over many similar hearings, sat in the unusual capacity of “consulting judges.”

Chew Heong attracted public attention less because of the constitutional and legal issues it raised than because it reflected the broader struggle over Chinese immigration to the United States in the nineteenth century. In 1882, the Congress had adopted the Chinese Exclusion Act—the most restrictive immigration policy the country had known to that point. The heated debate over Chinese immigration embroiled the federal courts in the inflammatory issue, as Chinese mounted a sophisticated and often successful litigation strategy to defeat the harshest aspects of the exclusion law. Federal judges struggled to reconcile the anti-Chinese policies and sentiment with the requirements of other law, including U.S. treaty obligations with China and the Fourteenth Amendment’s guarantee of due process and equal protection. The Chew Heong case thus provides fascinating insight into the Chinese strategic use of litigation in the federal courts and the often difficult role of the federal courts in enforcing federal policies in times of political turmoil.

The Chinese Exclusion Act of 1882

In 1882, Congress adopted the first Chinese Exclusion Act and, in doing so, took a giant step away from its previous “open door” immigration policy. The act forbade the immigration of Chinese laborers for ten years. It marked the beginning of the U.S. government’s embrace of restrictive immigration policies and highlighted the different treatment immigrants received depending on their race and nationality. The act was not the first to target Chinese for discriminatory treatment. Congress had passed the Page Act in 1875, prohibiting the immigration of Asian contract laborers and Asian women suspected of prostitution—a clause that was interpreted broadly to prevent the immigration of Chinese women and the formation of Chinese-American families. Even earlier, beginning with the Chinese immigration to California during the Gold Rush, towns and states on the West Coast had devised numerous laws to deprive Chinese of their livelihoods, to segregate them in schools and neighborhoods, and generally to make their lives in the United States so miserable that they would leave. But the Chinese Exclusion Act of 1882 raised anti-Chinese fervor to the level of federal policy. Congress endorsed exclusionists’ arguments that American workers could not compete with Chinese and that Chinese were fundamentally different as a race, unable to assimilate and posing a danger to American institutions and culture. In passing the Exclusion Act, Congress rejected the spirit behind the 1868 Burlingame Treaty with China that declared a person had an “inherent and unalienable right to change his home and allegiance.”

Chinese resistance to the exclusion laws

When Congress passed the 1882 law, many anti-Chinese forces celebrated, believing their fight to force Chinese out of the United States had finally succeeded. Within a year, however, their hopes turned to frustration as they renamed the Chinese Exclusion Act, the “Chinese Evasion Act.” Chinese in the United States did not meekly accept their exclusion from the United States. The Chinese immigrant community had a strong internal organizational network that provided an institutional basis for their resistance to the policy. The Chinese Six Companies, known to Chinese as the Zhonghua Huiguan, was composed of leaders from different huiguan or district associations to which all Chinese immigrants belonged depending upon their region of origin. The Chinese consulate in San Francisco was the official representative of the Chinese government. Both the Chinese Six Companies and the Chinese consulate provided crucial leadership and financial support for the fight against discriminatory treatment of Chinese immigrants.

When the Exclusion Act was passed, the Chinese organizations turned naturally to the federal courts in California to test the act’s reach. Litigation had been one of the few avenues open to Chinese immigrants to resist discriminatory actions in the nineteenth century. Few Chinese managed to become American citizens because of U.S. law reserving naturalization to those who were “white” or of African descent. Lacking political power, Chinese found that the Burlingame Treaty of 1868, which guaranteed Chinese residents “the same privileges, immunities, and exemptions” extended to natives of other countries, and the Fourteenth Amendment, which prohibited states from denying any person due process or equal protection of the laws, to be potent weapons in the federal courts. Federal judges struck down many of the discriminatory state laws on the grounds that they violated the treaty rights of the Chinese or their right to equal protection under the Fourteenth Amendment. Litigation proved so fruitful that the Chinese Six Companies and Chinese consulate kept American attorneys on retainers to represent them whenever the need should arise. When exclusion went into effect, attorneys for the Chinese were kept busy as Chinese arriving at ports sought to prove their right to enter the United States.

Contesting exclusion in the federal courts

The litigation regarding the 1882 act resulted from disagreements over the reach of the new exclusion law and how it would be enforced. The law had been passed only after the United States obtained a new treaty with China in 1880. In the Angell Treaty, China agreed that the United States could limit, though not absolutely prohibit, the immigration of Chinese laborers. The treaty specified that Chinese laborers already residing in the United States remained free to come and go as before. Furthermore, the law did not apply to nonlaborers, such as merchants, students, professionals, and diplomats. The 1882 act conformed to the treaty in restricting new immigration only of Chinese laborers for a period of ten years. While detailed, the law could not anticipate the various circumstances that would arise, and Chinese, federal administrators, and the federal courts soon became enmeshed in bitter conflicts over individual cases.

A crucial disagreement arose over what evidence Chinese needed to prove their right to enter the United States. The 1882 law provided a system to identify Chinese who remained exempt from exclusion. Resident Chinese laborers, for example, received a certificate of identity—known as a “return” certificate—before they left the United States and presented the certificate for readmission upon their return. Chinese merchants and other nonlaborers were to obtain certificates from the Chinese government verifying their occupations, physical descriptions, and exemption from exclusion. These so-called “section 6 certificates” were to constitute “prima facie evidence” that a Chinese immigrant was exempt from exclusion, and these certificates provided the foundation for the Chinese right to enter, though the collector of the port could still deny entry based on contradictory evidence.

Problems soon arose when many Chinese entitled to enter the United States did not have the required certificates. Some resident Chinese laborers, for example, had left the United States before the certificates became available. Chinese merchants arrived in the United States from ports outside China and did not have the section 6 certificates required to establish their exemption. The collector of the port at San Francisco, a political appointee responsible for enforcing the exclusion laws, insisted upon strict compliance with the law and denied entry to Chinese without the required certificates. At a time when political parties vied for the anti-Chinese vote and local newspapers covered every aspect of the law’s enforcement, the collector of the port (also called the collector of customs) felt pressure to demonstrate his office’s dedication to exclusion. If denied entry, Chinese often filed writs of habeas corpus in federal court, arguing that they were being detained illegally on board ship and denied their right to land.

The habeas corpus cases pitted the collector of the port against the federal judges and put the federal courts in a bind. All of the federal judges—Judge Ogden Hoffman in the district court, Judge Lorenzo Sawyer in the circuit court, and Justice Stephen Field as circuit justice—professed support for the exclusion policy. But the judges also believed that the treaty, as the United States’ explicit promise to the Chinese government, must be upheld to preserve the nation’s honor. Further, the Constitution mandated that treaties and federal statutes were both the “supreme law of the land.” Whenever possible, the judges argued, legislation should be interpreted to conform to the nation’s treaties. The collector, in the opinion of the judges, had disregarded the treaty in his zealous requirement for certificates in all cases. In a succession of cases, federal judges ruled that the Exclusion Act had to be interpreted reasonably and in accordance with the Treaty of 1880. The collector could not require certificates as the only evidence of admission if they had been impossible or unreasonably difficult to obtain. The federal courts allowed “parol evidence,” that is oral testimony, or written records to establish Chinese petitioners’ right to land.

The result of the courts’ rulings, critics argued, was the creation of a “habeas corpus mill” as Chinese flocked to the federal courts to challenge the collector’s decisions denying them entry. The test cases, carefully selected by attorneys for Chinese, had widespread effects; one case could establish the law governing hundreds of Chinese in the same circumstances. Local newspapers and the collector of the port denounced the courts for creating gaping loopholes in the exclusion law and accused Chinese of widespread perjury and fraud in concocting testimony before the courts. Of the 2,652 Chinese allowed to land in the first fourteen months after the act’s passage, the collector claimed that one third were admitted under the court’s rulings and often without proper documentation. While attempting to deflect public criticism of their rulings, the federal judges also struggled to keep up with the demanding pace of the exclusion litigation. In his opinion in
In re Chow Goo Pooi, Judge Hoffman complained that he had 190 Chinese habeas corpus cases on his docket and had been unable to make a dent in them, despite weeks of hearings and night sessions. All other work in the court had come to a near halt.

The Chinese Exclusion Act of 1884 and the case of
Chew Heong

Frustrated by the failure of the 1882 act to meet their expectations, exclusionists in Congress amended the law in 1884 in an attempt to close the perceived loopholes. The 1884 law specified that the return certificates were to be “the only evidence permissible” of a Chinese laborer’s right to enter the United States. All eyes were on the federal courts in San Francisco to see how the judges would respond to this new provision. The potential consequences for Chinese were significant. Attorney Thomas Riordan estimated that approximately 12,000 Chinese resident laborers had left the United States before the certificates had become available and would lose their right to return if the act was strictly enforced.

The 1884 act soon came before an unusual panel of four judges in the circuit court for a hearing in the case of Chew Heong, selected by the Chinese consul’s attorney, Thomas Riordan, as the test case. Chew Heong had come to the United States sometime before November 1880, when the Angell Treaty went into effect, but had left San Francisco for Honolulu in June 1881, before the Exclusion Act was passed and before return certificates became available. He returned to San Francisco on September 22, 1884, and applied for admission as a prior resident. Within five days, Chew Heong appeared before Justice Stephen J. Field sitting in the U.S. Circuit Court for the District of California. The importance of the case for both sides was evident in the array of lawyers present. Chinese vice consul Frederick Bee, and lawyers Thomas Riordan, W.H. Cook, Harvey Brown, and Lyman Mowry appeared on behalf of Chew Heong. The government was represented by U.S. Attorney Samuel Greeley Hilborn, his assistant Carroll Cook, and the surveyor and deputy surveyor of the Port of San Francisco.

Although Field had issued earlier decisions asserting the importance of upholding the laborers’ treaty rights of free migration, he now abruptly changed his mind, citing both the clear language of the law and the intent of Congress to forestall resort to the courts. Field declared that the 1884 statute clearly allowed entry only to laborers who had return certificates. If the law worked hardships for men like Chew Heong, it was up to the legislature or the executive, not the courts, to remedy the situation. Field had clearly run out of patience with the Chinese habeas corpus cases that had flooded the federal courts and that may have foiled his presidential ambitions. During Chew Heong’s hearing, Field rhetorically questioned attorney Riordan: “. . . what shall the Courts do with [the Chinese laborers]? Can it give each one of them a separate trial? Can it let each of them produce evidence of former residence? No; it was because the Courts were overcrowded that the second Act was passed. . . . Besides, Congress never supposed that Chinamen intended to go back to China and stay several years. If they do not come back at once they should not be allowed to come at all.”

The three other judges on the panel, Sawyer, Hoffman, and Sabin, disagreed with Field. As the judges who heard the bulk of the Chinese cases, they shared his concern about their crushing caseloads, but they continued to uphold the authority of the 1880 treaty and interpreted the 1884 act in light of their earlier precedents. The clause making return certificates the only acceptable evidence applied only to Chinese laborers who left after the certificates were available, they argued. The law could not require the impossible and nor should it be allowed to defeat the treaty rights of laborers like Chew Heong. Resident Chinese laborers who left before the certificates were available should still be allowed to prove prior residence through other evidence.

Chew Heong before the Supreme Court of the United States

The law provided that the opinion of the presiding justice prevailed in the circuit court, although a divided opinion could be appealed to the Supreme Court, and Chew Heong filed an appeal. Field’s decision was approved in the court of popular opinion as one San Francisco newspaper declared that the decision showed “how unjustly the people of California have judged Mr. Justice Field with reference to the Chinese question.” But when the Supreme Court heard the case, Field found himself reversed in a 7–2 decision.

Justice John Marshall Harlan, writing for the majority, began by stressing the importance of treaties in securing commerce and trust among nations. Harlan refused to believe that Congress intended to “disregard the plighted faith of the government” so recently pledged in the 1880 treaty. Unless Congress clearly and unmistakably expressed its intent to violate the treaty, the Court was obliged under the Constitution and rules of construction to try to reconcile the statute with the treaty. This could easily be done, said Harlan. Echoing Sawyer’s dissenting opinion in the circuit court, Harlan thought it clear that Chew Heong did not have to present a certificate if it had been impossible for him to obtain one.

Field rendered a bitter dissent, joined by Justice Joseph P. Bradley, accusing the majority of willfully misreading the clear language of the statute and ignoring the intent of Congress. He reminded the majority of the strong sentiment behind the exclusion policy among “all classes . . . from the whole Pacific Coast” who “saw . . . the certainty, at no distant day, that from the unnumbered millions on the opposite shores of the Pacific, vast hordes [of Chinese] would pour in upon us, overrunning our coast and controlling its institutions.” Field acknowledged the authority of treaties but stressed they were no more binding than federal statutes. Congress clearly intended in the act of 1884 to close a door opened by the federal courts in their earlier decisions. It was the duty of the Supreme Court, he admonished, to be “the servant of the law, bound to obey, not to evade or make it.” Field ended with a dire prediction that “all the bitterness which has heretofore existed on the Pacific Coast on the subject of the immigration of Chinese laborers will be renewed and intensified, and our courts there will be crowded with applicants to land.”

The aftermath of
Chew Heong

If Field failed to sway his Supreme Court brethren, he was right that the battle over Chinese exclusion would intensify after
Chew Heong. On the day after the circuit court’s decision in Chew Heong, Field authored another opinion—this time unanimous—holding that children born in the United States of Chinese parents were American citizens and exempt from the exclusion law. This decision, as well as the Chew Heong opinion, provided another opening for Chinese and expanded litigation in the federal courts as both Chinese claiming birthright citizenship and laborers asserting prior residency sought to establish their right to enter the United States. The federal courts’ caseload continued to mushroom until, by the end of the 1880s, over 7,000 habeas corpus petitions had been filed just in the U.S. district court for California. The courts innovated by appointing examiners and referees to assist with the petitions in expedited hearings, but they still strained to keep up. In 1888, Judge Hoffman complained “it would be hard to convince one who has never been in these Courts how great is the physical distress and mental strain caused by a day’s conscientious attention to these Chinese cases.”

The federal judges received little sympathy from the local press, which continued to blame the courts for unnecessarily frustrating the enforcement of Chinese exclusion. The U.S. attorney general fielded complaints that, because of the federal courts’ intervention, the exclusion acts had made no impact in reducing Chinese immigration. The U.S. attorney at San Francisco, Samuel Hilborn, reported that the people in California had lost respect for the courts because of the “unseemly spectacle” of the courts devoting a large part of their time to the Chinese cases. The federal courts’ jurisdiction over the Chinese exclusion and general immigration cases would be gradually curtailed by statute and Supreme Court decisions.

While Chinese continued to resort to the federal courts for protection, exclusionists turned again to Congress and to vigilante action in their determination to force Chinese out of the United States. Anti-Chinese violence crested throughout the West in 1885 and 1886, with the worst incident being the Rock Springs, Wyoming, massacre in which twenty-eight Chinese were killed and hundreds more fled for their lives. In 1888, Congress passed the most stringent exclusion act thus far, the Scott Act, which explicitly rejected the 1880 treaty, cancelled all return certificates, and stipulated that once Chinese laborers left the United States, they could never return. While the 1882 act forbade Chinese immigration for ten years, the 1888 act made the exclusion policy permanent.

When Chae Chan Ping, armed with his return certificate, petitioned U.S. Circuit Court Judge Lorenzo Sawyer for entry after the act’s passage, he found his way barred. Sawyer conceded that there was no doubt that Congress had reneged on the treaty and, given the evident conflict between the act of 1888 and the treaty, the federal statute must govern as the most recent expression of its will. Justice Field had the satisfaction of writing the opinion for the unanimous Supreme Court decision upholding the act of 1888. His dissent in
Chew Heong now became the basis for a landmark decision that granted sweeping power to Congress to deny entry to any aliens it chose.

The legacy of exclusion

The battle over exclusion was not over, despite Field’s resounding decision in
Chae Chan Ping v. United States in 1889. Buoyed by their successes in cases like Chew Heong, Chinese in the United States continued to see the federal courts as potential allies, however reluctant. They and their attorneys persistently and creatively employed litigation to keep the gates of the United States ajar. They forced federal judges to consider the extent of government power and the reach of due process for aliens and citizens alike at a time when public opinion cared little for immigrants’ rights. The tenure of federal judges was constitutionally protected, but the judges were not insulated from the local communities in which they lived and worked. Distressed by vocal public criticism of the courts' decisions, Judge Sawyer expressed the hope that, in the long term, the judges’ adherence to the law and treaties would be vindicated. Most immediately, the federal courts’ decisions resulted in a determined campaign in Congress to remove federal court jurisdiction over Chinese exclusion and general immigration cases, which, by 1905, had largely succeeded.


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