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

Legal Questions Before the Federal Courts

Did the 1884 amendment to the Chinese Exclusion Act, which specified that certificates of residence were the “only evidence permissible” to prove a right to reenter the United States, apply to Chew Heong and others who left the United States before the certificates were available?

No, said the majority in the Supreme Court, thus overruling the decision of Justice Stephen J. Field in the U.S. Circuit Court for the District of California.

The Chinese Exclusion Act of 1882 established a system of identification to help the collector of customs decide which Chinese qualified for the exemptions specified in the act. According to the statute, Chinese laborers already residing in the United States had to obtain “return certificates” from the collector of customs before leaving the United States for travel. The Chinese laborers were to present the certificates upon their return to the United States to prove they were prior residents and eligible to reenter. But the return certificates had not been issued until after the passage of the 1882 act. Chew Heong had left before the act was passed and thus could not have obtained a certificate to prove his right of reentry. The U.S. district and circuit courts had allowed resident Chinese laborers in such cases to present other evidence to establish their right to reenter, but Congress, in an 1884 amendment to the act, specified that the return certificates were to be “the only permissible evidence to establish his right of re-entry.” The case of Chew Heong presented the courts with the question of whether the 1884 amendment applied to resident Chinese laborers who had been unable to obtain certificates.

Although Justice Field in earlier cases had upheld the right of Chinese laborers to present other evidence, he now held in the U.S. Circuit Court at San Francisco that the language of the 1884 act clearly applied to Chew Heong and other laborers in the same situation. Field focused on the “direct language” of the law, which he argued made no exceptions for laborers like Chew Heong. He also stressed the intent of Congress to close the gap in the law opened up by the federal courts’ previous interpretations of the Exclusion Act that had resulted in the courts being flooded by Chinese habeas corpus cases. Field cited public opinion as well, noting that the general public had become impatient with judicial interference in the exclusion policy, and he admonished judges to enforce the clear congressional intent to make the exclusion law more restrictive.

Judge Lorenzo Sawyer dissented from Field’s opinion in the circuit court, stressing the importance of interpreting the 1882 and 1884 acts in light of the 1880 treaty with China that clearly protected the right of Chew Heong and other resident laborers to come and go at will. Sawyer pointed out that the Chinese Exclusion Acts of 1882 and 1884 explicitly stated their purpose was to fulfill the treaty, not to abrogate it. Emphasizing that the honor of the nation was at stake, Sawyer argued that the statute should be construed, if at all possible, to conform to the treaty unless Congress explicitly declared its intention to negate the treaty. Since no such intent was evident, Sawyer believed that Chew Heong should be allowed to present other evidence to establish his prior residency.

The Supreme Court overruled Field’s circuit court decision, adopting the reasoning laid out in Sawyer’s dissent. Justice John Marshall Harlan, writing for the majority, asserted that legislation, whenever possible, should be interpreted to conform to treaties. Harlan also cited the maxims that laws should not be interpreted as applying retroactively and that a law could not require evidence that was impossible to obtain.

Justice Field delivered a lengthy and passionate dissent, reiterating that the plain language of the law made certificates the
only permissible evidence for all Chinese residents. Field argued further that the treaty and the Exclusion Act, in exempting resident Chinese laborers, were intended to allow temporary visits abroad, but did not grant those such as Chew Heong, who resided only briefly in the United States, an unrestricted right to come and go at will.

In interpreting the Chinese Exclusion Acts of 1882 and 1884, what authority should the courts give to the 1880 treaty between China and the United States?

In the “Supremacy Clause” in Article VI, the U.S. Constitution specifies that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Thus, treaties
and federal statutes were seen as binding law.

In litigation arising under the Chinese exclusion laws, judges initially tried to interpret the statutes to conform to the relevant treaties. The Angell Treaty of 1880 specified that the United States could restrict, but not absolutely prohibit, the immigration of Chinese laborers and could pass legislation that was “necessary to enforce” the restriction. The treaty reiterated that Chinese subjects would have “most favored nation” status, meaning that they would retain the rights and privileges accorded by the United States to the citizens of the most favored nation. The treaty also specified that neither Chinese laborers residing in the United States at the time the treaty was signed, nor nonlaborers, would be subject to immigration restriction.

Chew Heong prevailed, in large part, because the Supreme Court majority believed the courts must interpret statutes to conform to the treaty. Drawing on a doctrine established by the Supreme Court in 1804 and on decisions in previous Chinese exclusion cases, Justice Harlan declared that, whenever possible, judges should respect the legal authority of treaties as the Constitution explicitly made treaties part of the “supreme law of the land.” Justice Harlan also argued that something more was at stake: “the honor of the government and people of the United States.” While protecting the honor of the government in upholding its “plighted faith” was not strictly a legal consideration, judges in California’s federal courts repeatedly used such language when they made their controversial decisions tempering the harshest aspects of the exclusion laws to conform to the treaty. The nation had made an agreement with China and, these judges believed, compromising the nation’s honor by imposing a more stringent exclusion of Chinese than the treaty allowed was, in Judge Sawyer’s words, “a price too high to be paid, without absolute necessity.” [
In re Cheen Hong, 21 F. 791, 808 (1884).]

Field’s decision in the circuit court and his dissent in the Supreme Court relied on another line of cases that argued for the “later-in-time” rule. Justice Benjamin Curtis, in a circuit court case of 1855 (
Taylor v. Morton, 23 F. 784, C.C.D. Mass 1855), asserted that if statutes and treaties conflicted, judges should follow the one most recently adopted. Thus, if the Exclusion Acts of 1882 and 1884 conflict with the treaty, the statutes would trump the treaty since they were the most recent legal authority. While Field’s position would not prevail in Chew Heong, it would gain sway in the Chinese Exclusion Case of 1889.

What had the federal courts decided in related cases?

Chinese civil rights

Long before the decision in
Chew Heong, Chinese had resorted to the federal courts to challenge discriminatory state legislation. These cases established certain legal principles that set the stage for Chew Heong. Most importantly, federal courts had recognized that Chinese residents had rights, both under treaties between the United States and China and under the Fourteenth Amendment Equal Protection Clause, which states could not violate. The Chinese success not only set valuable legal precedents, but also encouraged Chinese to turn to the federal courts again when the Chinese Exclusion Acts were passed. Litigation, they had learned, could be a valuable strategy, especially for those without viable political recourse. The cases also made the federal courts unpopular among certain groups on the West Coast, even before the “habeas corpus” cases involving Chinese exclusion, as they were seen as the allies of Chinese and the corporations that hired them. Of the early Chinese civil rights litigation, the most important included:

In re Ah Fong (1874) and Chy Lung v. Freeman (1875)

In the 1870s, anti-Chinese sentiment began to flourish in California, leading the California legislature in 1874 to pass an immigration law requiring that steamships post a $500 bond for the landing of any “lewd or debauched woman.” While the statute spoke generally, it aimed particularly to prevent the immigration of Chinese prostitutes, and the state commissioner of immigration refused to land twenty-two Chinese women whom he believed to be “lewd or debauched.” In
In re Ah Fong, the California Supreme Court upheld the law as a valid exercise of the state’s “police power” to protect public safety and order, but Justice Field in the U.S. circuit court for California found the law unconstitutional. He held that Congress, not the states, had authority to regulate commerce between the United States and other nations, and that authority extended to immigration. More importantly for later Chinese litigation, Field found the law violated the Burlingame Treaty of 1868, in which Chinese were explicitly granted the right of free migration and all of the rights and privileges of subjects of other nations. He also ruled it violated the Fourteenth Amendment, which stated “no state . . . shall deny any person equal protection of the laws.” Field ruled that the Equal Protection Clause applied to all people in the United States, citizens and foreign residents alike. Since the California law singled out Chinese, it treated them unequally and thus trampled on both treaty and constitutional rights. The Supreme Court agreed with Field’s decision when, in a separate appeal of the California Supreme Court’s decision in Chy Lung v. Freeman, it held the California law unconstitutional on the grounds that Congress had exclusive power to regulate foreign commerce and immigration. The cases were important in establishing the importance of the treaties and the Fourteenth Amendment as barriers to discrimination against Chinese.

Ho Ah Kow v. Nunan

In addition to its attempts to bar Chinese immigration, California passed several laws to harass Chinese residents and discourage their presence. This was especially true in the late 1870s when the Workingman’s Party rose to prominence under the slogan “The Chinese Must Go!” In 1876, the California legislature passed the “cubic air law,” specifying the size of living quarters for every tenant: lodgings had to provide at least 500 cubic feet of air for each adult. Justified as a measure to prevent overcrowding and unsanitary living conditions, the act again targeted Chinese who often lived in cramped quarters. When arrested for violating the law, Chinese chose to resist the law by refusing to pay the fine, thereby filling the local jails. The San Francisco Board of Supervisors responded with the “queue ordinance” specifying that all prisoners should have their hair cut to one inch from the scalp. Again, though the law was general in its language, the obvious intent was to demean Chinese men as they wore their hair in a long braid or “queue,” and cutting it was seen as an act of disgrace. When Ho Ah Kow protested against such treatment, Justice Field struck down the queue ordinance as, among other things, a violation of the Fourteenth Amendment’s Equal Protection Clause. While expressing sympathy for anti-Chinese views, Field condemned the law for singling out Chinese in what was obviously a “hostile and spiteful” action. Field’s decision sparked anger and derision in the local press, which usually portrayed him as pro-Chinese, despite his repeated statements that he understood and supported calls to restrict Chinese immigration.

In re Tiburcio Parrott

Californians amended their constitution in 1879 and included several provisions targeting both Chinese and big business, linking the two groups as undesirable forces responsible for the oppression of the working man. Article XIX of the new constitution forbade corporations from hiring Chinese, reflecting the views that Chinese laborers competed unfairly with white American labor by stealing their jobs and driving down wages. Tiburcio Parrott, the president of a quicksilver mining company, was prosecuted for hiring Chinese workers, and he filed a writ of habeas corpus before the U.S. circuit court in San Francisco, challenging his incarceration under the law. Judges Ogden Hoffman and Lorenzo Sawyer struck down the law as a clear violation of the Burlingame Treaty, which provided Chinese residents with all of the “privileges, immunities and exemptions” extended to other foreigners. Since treaties, under the Constitution, were part of the “supreme law of the land,” state acts that conflicted with them were not valid. Judge Sawyer also held the law violated the Fourteenth Amendment’s Equal Protection Clause, following Justice Field’s reasoning in
Ho Ah Kow that the clause protected all persons, not just citizens, from discriminatory treatment. Corporations had the right to hire whomever they wished, ruled the court, and Chinese residents had the right to pursue any lawful occupation. This interpretation of the Equal Protection Clause would gain the approval of the Supreme Court in Yick Wo v. Hopkins, decided in 1885, a year after the Chew Heong case.

Other Chinese exclusion laws cases

Case of the Chinese Cabin Waiter

This was the first case to be litigated in response to the Chinese Exclusion Act of 1882. Ah Sing was a Chinese seaman who had lived in California at the time the 1880 treaty was signed but had left to serve on board a ship before the Exclusion Act was passed. The collector of customs at San Francisco refused to allow Ah Sing and other Chinese crewmen to dock, arguing that they did not have the return certificates required under the Exclusion Act. Justice Field ruled the collector’s actions were unreasonable and illegal. Field held that since the Chinese seamen had been aboard a ship sailing under the American flag, they had never left American territory. More importantly, Field insisted that the treaty with China must be respected. Field warned that the collector’s zealous enforcement of the law not only threatened amicable relations with China, but also could lead to the repeal of the Exclusion Act as unjust and too harsh.

In re Low Yam Chow
, The Case of the Chinese Merchant

Low Yam Chow was a Chinese merchant who had lived in San Francisco and applied for reentry in 1882 after a voyage to Panama. The collector denied him entry because he did not have the required “section 6” certificate from the Chinese government, identifying him as a Chinese merchant exempt from the Chinese Exclusion Act. Low Yam Chow protested that the requirement was unreasonable, as he would have to travel to China to obtain the certificate. Justice Field agreed, emphasizing the explicit guarantee in the 1880 treaty with China that Chinese merchants could continue to come to the United States. The purpose of the act, Field noted, was to restrict the immigration of Chinese laborers; the government desired to improve, not hamper, commerce with China. While Chinese merchants traveling from China should have section 6 certificates, Justice Field ruled it was only fair that merchants already in the United States or traveling from other foreign ports be allowed to establish their merchant status with other evidence.

United States v. Douglas
and In re Ah Lung

These two conflicting decisions concerned the questions: Who was “Chinese” under the Chinese Exclusion Act? Did the act restrict only those who were subjects of China? Or did it also exclude any person of Chinese descent who came from other countries? The U.S. circuit court in Massachusetts held that Ah Shong, a laborer from Hong Kong (a possession of Great Britain), did not fall under the Chinese Exclusion Act because he was a subject of Great Britain, not China. The court reasoned that the act sought to execute the treaty between China and the United States, and could not be extended to subjects of nations who had not been parties of the treaty. Justice Field in the U.S. circuit court in California sharply disagreed in the case of Pong Ah Lung, another laborer from Hong Kong. Field emphasized that Ah Lung was “a Chinese by race, language and color,” and that Congress had intended to enact a racial exclusion, aiming at all Chinese laborers, regardless of their country of origin. No treaty with European nations to allow Chinese exclusion had been necessary, said Field, because they were not likely to care about the exclusion policy, sharing the United States’ antipathy for the Chinese. The conflicting opinions in these cases contributed to support for the 1884 amendment of the Exclusion Act, which specified that exclusion applied to all “Chinese” laborers, whether or not they were subjects of China.

In re Chin Ah On

This case was closest to
Chew Heong in the facts and legal issues it presented. Chin Ah On and several other petitioners were Chinese laborers who had lived in the United States at the time of the 1880 treaty, but left for China before the 1882 act was passed. They applied for admission based on their prior residence, but did not have “return certificates” as required under the act because they had left before the certificates became available. Judge Ogden Hoffman held that they could be admitted using other evidence. The collector’s insistence that they present return certificates was unreasonable and violated the rights of the resident laborers under the 1880 treaty. Unless Congress had clearly specified its intent to negate the treaty, said Hoffman, the court must interpret the statute to conform to the treaty.

Chin Ah On case led to an upsurge in habeas corpus petitions, as a growing number of Chinese claimed to be prior residents who had left before the Exclusion Act was in place. The court’s decision contributed to public dissatisfaction in California with the judges’ decisions and increased support for an amendment that would close the “loopholes” in the 1882 act.


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