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Undoubtedly the influx of the Chinese into California and the other States on the Pacific slope was wholly uncontemplated by the negotiators of the treaty, and the subsequent satisfactory adjustment of all differences in regard to such immigration with the Celestial Empire, shows that the Chinese Government did not desire, nor did it expect, that general permission should be given to empty entire provinces of their most undesirable and lowest class of laborers into this country. · All that the Chinese Government desired or asked in regard to iminigration was that their merchants, traders and scholars should be allowed the same access to our shores that they afforded to our merchants, travelers, scholars and missionaries; all of these points were very satisfactorily settled by the treaty of 1894, and the United States was relieved from even any imputation of breaking faith with another nation by wilfully violating treaty stipulations.

$ 337. This chapter devoted to State Legislation and treaty rights. The effect of congressional action upon the treaties with China will be considered in a succeeding chap

We will refer in this chapter only to the attempts made by the States in their individual capacities to check the evil of immigration; the numerous Chinese Treatment Cases in which State statutes were held void demonstrates beyond peradventure the legal proposition which has already been stated, that no matter what grievance any State may have in regard to any international matter, it can obtain relief only through the Central Government, and that it not only has no power to deal with the foreign nation interested, but it has no power to legislate within its own territory in any way which affects a foreign power, or citizens of a foreign power at peace, and having treaty relations, with the United States, so far as such legislation violates in any manner whatever any existing treaty stipulations or provisions.

$ 338. Anti-Chinese legislation in Pacific Coast States. -The Chinese immigration into California commenced in relative effect of treaty stipulations 8 Treaty of 1894. See U. S. Treaand State laws. The relative effect ties in Force, edition, 1899, p. 122. of treaty stipulations and the anti-29 U. S. Stat. at L. 1210. Chinese Congressional legislation is treated separately in § 378, post, chap. XII.

the latter sixties or early seventies while the Pacific Railroads were being built and there was a great demand for cheap labor.

At first the few ship loads of Chinamen that were landed in the Pacific ports facilitated the more rapid and economical construction of those great iron links between the East and the West; so far from menacing the welfare of the Pacific slope, this Chinese element materially assisted its development; when, however, instead of arriving in occasional hundreds, they began to pour in by thousands every month, the Chinese question assumed far different, and very dangerous, conditions; there can be no doubt that the final action taken by Congress in response to the demand of the Pacific States was wise and prudent and that the exclusion of the lower class of Chinamen was beneficial, not only to the Pacific slope, but to the whole community. Prior, however, to Congressional action, the States took the matter into their own hands and attempted, by local legislation, without the sanction of Congress, to discriminate against Chinamen; in doing this the legislators did not reckon upon the far-reaching strength of the second clause of Article VI of the Constitution, which makes treaties made by the United States the supreme law of the land and binding upon the judges in every State, “anything in the Constitution or laws of any

State to the contrary, notwithstanding." $ 339. Interference of Federal judiciary to protect treaty rights of aliens.-As soon, therefore, as these anti-Chinese laws were passed questions were raised in the State and Federal Courts as to their validity ; in almost every instance the strong power of the Federal Judiciary had to be exercised in declaring these laws to be null and void ; the jurisdiction existed because they were in conflict with treaty provisions, which, under the Constitution, were paramount and protected the subjects of the Chinese Emperor, notwithstanding the effort of the States to deprive them of rights which the United States Government, alone, could control.

No attempt will be made to enumerate all of the antiChinese laws passed by the Pacific States; a few instances will be given of the most important cases in which the conflict of State statutes and Federal statutes was raised, and reference will be made in the notes to other decisions in similar cases.

$ 340. Oregon statute prohibiting employment of Chinese laborers declared void.-In order to prevent the employment of Chinese labor to as great an extent as possible, the State of Oregon passed a law prohibiting the employment of Chinese laborers on public works. An attempt was made under this statute to enjoin a contractor from employing Chinese labor. Judge Deady, of the United States District Court, held" that “the United States court had jurisdiction under the treaties between the United States and China of 1858 and 1868; that until abrogated or modified these treaties were the supreme law of the land and that the courts were bound to enforce them.” In regard to the right to labor while in this country, he declared, that the right to come and reside given by the treaty necessarily implied the right to live and to labor for a living, and that so far as the State was concerned, Chinese subjects had a right to enjoy all the privileges here of the most favored nation. In regard to State interference with treaty rights, the opin

“ So far as this court and the case before it is concerned, the treaty furnishes the law, and with that treaty no state or municipal corporation thereof can interfere. Admit the wedge of State interference ever so little, and there is nothing to prevent its being driven home and destroying the treaty and overriding the treaty-making power altogether. But it is not necessary to consider further this feature of the case, because, this demurrer must be sustained upon other grounds.

$ 341. California's constitution of 1879; anti-Chinese provisions declared void.-In California the anti-Chinese agitators went further; the constitution adopted in 1879, among other things, prohibited corporations from employing Chinese labor and authorized the enactment of all legislation necessary to enforce the provision; statutes were accordingly passed making such employment a misdemeanor; one Tirburcio Parrott was arrested for violating one of these statutes; he sued out a writ of habeas corpus in the United $ 340.

U. S. Cir. Ct. 1879, 5 Sawyer, 566. 1 Baker vs. City of Portland, See p. 570, Fed. Cas. 777, DEADY, J.

ion says:

States courts, on the ground that the provision of the State constitution and acts passed thereunder were void, because they were in violation of the provisions of the treaty of 1868 with China; in a long and able opinion, Mr. Justice Sawyer reviewed the whole treaty-making power of the United States, holding that the laws violated treaty provisions, and he discharged the petitioner.

In the course of the opinion, after citing Article VI of the Constitution of the United States, he says:

“There can be no mistaking the significance, or effect of these plain, concise, emphatic provisions. The states have surrendered the treaty-making power to the general government, and vested it in the president and senate; and when duly exercised by the president and senate, the treaty resulting is the supreme law of the land, to wbich not only state laws, but state constitutions, are in express terms subordinated.” Citing from Ware vs. Hylton, he continues: “It is the declared duty of the state judges to determine any constitution or laws of any state contrary to that treaty, or any other made under the authority of the United States, null and void. National or federal judges are bound by duty and oath to the same conduct.” 1

$ 342. California anti-Chinese statutes declared void.In the case of Chy Lung vs. Freeman' the United States Supreme Court held that a statute of California ostensibly


§ 341.

lations in Chinese treaty as dis1 In re Tirburcio Parrott, U. S. criminating against Chinese and Cir. Ct. Cal. 1880; 6 Sawyer, 349. in favor of other aliens. See p. 369, HOFFMAN, SAWYER, JJ. In United States vs. Quong Woo, $ 342.

U. S. Cir. Ct. Cal. 1882, 13 Fed. Rep. 1 Chy Lung vs. Freeman, U. S. 229, 7 Sawyer, 526, FIELD, J., which Sup. Ct. 1875, 92 U. S. 275, MIL- was one of the Chinese Laundry

Cases an ordinance making it unSee also In re Ah Fong, U. S. lawful to establish and carry on Cir. Ct. Cal. 1874, 3 Sawyer, 144, laundries within certain limits FIELD, J.

without having obtained the conInre Ah Chong, U.S. Cir. Ct. Cal. sent of the Board of Supervisors, 1880, 6 Sawyer, 451, SAWYER, J. which should only be based upon State law prohibiting aliens, who recommendations of not less than could not be naturalized, from twelve citizens and taxpayers in fishing in public waters held void the block in which the laundry was because in contravention of stipu- to be established, was held void

passed to prevent lewd and debauched women from foreign countries landing in ports of the States, although apparently general in its terms, was, in reality, aimed at all Chinese women, and that it was void because it extended far beyond the necessities of State control of commerce and thereby invaded the right of Congress to regulate commerce with foreign nations.

One of the most interesting cases in this respect was the famous Queue case which involved the validity of an ordinance of the City of San Francisco providing that every person imprisoned in the county jail upon a criminal judgment should immediately, upon arrival at the jail, have his hair clipped to the uniform length of one inch from the scalp; as can readily be seen, this was not a regulation for care of convicts, but the action of a municipal corporation aimed directly at a particular class, although the ordinance was clothed in language which apparently veiled the actual intent.?

$ 343. Justice Field's opinion in the Chinese Queue Case ; 1879.-The case was argued before Mr. Justice Field, sitting as Circuit Judge at San Francisco, in 1879. He decided that the ordinance was invalid and unconstitutional under the provisions of the Fourteenth Amendment, because it was aimed at, and applied to, a particular class of persons, thereby denying to them equal protection under the laws; he also held, that as the legislation was aimed at a class of aliens it was void because it violated the treaty stipulations with China.

In deciding this point the learned Justice said:

“We are aware of the general feeling-amounting to positive hostility-prevailing in California against the Chinese, which would prevent their further immigration hither and expel from the state those already here. Their dissimilarity in physical characteristics, in language, manners and religion would seem, from past experience, to prevent the possibility and improper as repugnant to the ground that the matters involved provisions with the treaty with are within the police power of the China.

But see 8 344 and also cases col- 2 Ho Ah Kow v. Nunan, U. S. lated under 88 356–337, post, of this Cir. Ct. Cala., 1879, 5 Sawyer, 552, chapter, in which laws and ordi- FIELD, J. See next section for exDances have been sustained on the 'tract from opinion.


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