Chinese Exclusion Act

Explanation and Analysis of the Document

Background and Opening Section

To make possible the Chinese Exclusion Act of 1882 required Congress to bring into synch its legislation to exclude Chinese with treaty provisions between the nations. Treaties had to be changed to permit greater restriction on Chinese migration, and legislation to exclude the Chinese had to be tailored to match those changes. Only then could Congress successfully usher into law An Act to Execute Certain Treaty Stipulations relating to Chinese.

The Treaty of Tien-tsin, signed in 1858, had opened Chinese cities to U.S. diplomatic, trade, and Christian missionary efforts but gave few concessions to China in return. Negotiations to amend those arrangements, begun at China's behest, resulted in the Burlingame Treaty, negotiated and signed in 1868. Among its provisions was the assurance that “Chinese subjects visiting or residing in the United States shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence, as may there be enjoyed by the citizens or subjects of the most favored nation” (Article VI).

This provision, argued Representative Edwin Meade of New York in 1876 during U.S. House debates concerning Chinese exclusion, precluded Congress from passing “laws prohibiting or restricting Chinese immigration … without first obtaining the concurrence of the Chinese Government itself” (Miller, p. 217). While bills restricting Chinese immigration were introduced in that session of Congress and again during the next session (1877–1878), none passed. In 1879 Representative Albert Willis from Kentucky offered grounds to dispute the view that the Burlingame Treaty did not permit legislation to exclude Chinese. The power to make treaties was limited by certain “objects for which the Constitution was formed,” including “the general welfare, justice, domestic tranquility, and the blessings of liberty,” which, Willis argued, “cannot be taken from the people by any treaty however solemnly ratified.” Here and now, he said, “the presence of the Chinese endangers the peace and prosperity of our people” (Miller, 220).

Despite Willis's arguments to the contrary, existing treaty arrangements stood as a barrier to Chinese exclusion. Early in 1879 Congress passed the Fifteen Passenger Bill, constricting Chinese immigration by limiting the number of Chinese passengers permitted on board any ship making harbor in an American port. President Rutherford B. Hayes vetoed the bill, and Congress failed to override it. In his veto message, Hayes reasoned that this manner of inhibiting Chinese immigration was neither constitutionally proper nor politically sound. First, by offending the provision of the Burlingame Treaty that protected free immigration by Chinese to the United States the legislation made a new treaty; treaty making is a presidential and not a congressional power. Second, any change in the Burlingame Treaty that amended the Treaty of Tien-tsin, meant that China no longer would be obliged to supply protections to U.S. citizens in China ensured by the latter instrument.

President Hayes's veto of the Fifteen Passenger Bill, however, did not mean that he was against restricting Chinese immigration. His veto message to Congress expressly stated that provisions of the Burlingame Treaty might require change—meaning tighter restrictions on permission for Chinese to travel to and reside in the United States.

In very short order, the Angell Treaty, negotiated by the Hayes administration in the fall of 1880, supplied the means for Congress to restrict Chinese immigration. “Whenever in the opinion of the Government of the United States, the coming of Chinese laborers to the United States, or their residence therein, affects or threatens to affect the interests of that country or of any locality within the territory thereof,” reads Article I of the Angell Treaty, “the Government of China agrees that the Government of the United States may regulate, limit, or suspend such coming or residence, but may not absolutely prohibit it.” On a pedestal constructed of this provision the Congress sets squarely its Act to Execute Certain Treaty Stipulations relating to Chinese.

Tailored neatly to the Angell Treaty's precondition for limiting Chinese migration, the act's first sentence in the opening section reads: “Whereas 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.” The campaign to exclude Chinese began and was most vociferous on the West Coast, where the majority of Chinese laborers in the United States lived and worked. In 1876, at the request of congressmen from the West Coast states, members of a joint special congressional committee made a fact-finding visit to the West Coast. The committee's “Report on Chinese Immigration,” issued in 1877, provided fodder for the government to form an opinion, five years later, on the necessity to exclude Chinese from the United States.

According to the report, in the localities where Chinese lived and worked, they endangered public health and safety. “They live in filthy dwellings, upon poor food, crowded together in narrow quarters, disregarding health and fire ordinances.” Chinese laborers forced whites out of work and into economic ruin: “The Chinese have reduced wages to what would be starvation prices for white men and women, and engrossed so much of the labor in the various callings that there is a lack of employment for whites.” The report also contended that the presence of the Chinese threatened free government: “An indigestible mass in the community, distinct in language, pagan in religion, inferior in mental and moral qualities, and all peculiarities, is an undesirable element in a republic, but becomes especially so if political power is placed in its hands.” The solution “would seem to be that the laws should discourage the large influx of any class of population to whom the ballot cannot be safely confided” (Miller, pp. 212–213).

The opening section of the act concludes with the basic terms of such exclusion: that ninety days following passage of the act and for the next ten years, “the coming of Chinese laborers to the United States be … suspended.” The ten-year suspension period permitted the legislation to clear a final hurdle. After the Angell Treaty was enacted, Congress's first exclusion bill suspended the immigration of Chinese laborers for twenty years. On April 4, President Arthur vetoed the bill. His primary objection to the legislation was that the twenty-year suspension was too long, in view of the Angell Treaty's provision permitting the United States to regulate, limit, or suspend Chinese immigration but not to prohibit it.

Following an unsuccessful vote to override the veto, Congress rewrote the legislation to suspend entry of Chinese laborers for ten years. This shorter period met with presidential approval, and on May 6, 1882, Arthur signed into law the Chinese Exclusion Act of 1882. The act made race and national origin the basis to exclude someone from entering the United States. The ten-year time frame proved no barrier to making Chinese exclusion a more permanent fixture of U.S. policy. One decade following the act's passage, Congress extended Chinese exclusion for another ten-year period when it passed the Geary Act in 1892. In 1904 Congress extended the policy again, this time with no limit.

Section 2

This section makes the master of a vessel subject to criminal prosecution for bringing any Chinese laborer to land.

Section 3

To comply with the Burlingame Treaty (permitting Chinese subjects to travel to and reside in the United States) and the Angell Treaty (permitting the U.S. government to suspend but not prohibit Chinese laborers from coming to or residing in the United States), the Chinese Exclusion Act “shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, eighteen hundred and eighty,” the date the Angell Treaty was signed. Nor does the act apply to Chinese laborers “who shall have come into the same before the expiration of ninety days next after the passage of this act.” Thus, Chinese laborers already in the United States were not expelled by the act.

In an important way, however, their ability to continue residence in the United States was highly regulated. The act required any Chinese laborer who leaves the country to produce, upon his return, evidence proving prior residence “to the collector of the port in the United States at which such vessel shall arrive.” The collector was a U.S. customs official, and the scheme to identify laborers allowed to return was extremely complex.

Sections 4 and 5

In Sections 4 and 5, Congress sets forth regulations “for the purpose of properly identifying Chinese laborers … and in order to furnish them with the proper evidence of their right to go from and come to the United States of their free will and accord.” According to these sections, detailed information describing a laborer about to leave the country were to be recorded on a list prepared by the local collector of customs, and the laborer would receive a certificate from the collector. Upon return to the United States, the laborer would be required to produce that certificate, proving prior residence in the United States, “to the collector of customs of the district at which such Chinese laborer shall seek to re-enter.”

The procedural labyrinth described in Sections 4 and 5 resulted in disorganized, underfunded, and inconsistent application of the act. The Treasury Department, which supervised customs officials, did not readily provide prescriptions for its enforcement. Because they were so detailed, the duties described in these two sections severely overburdened customs offices in West Coast ports. Customs collectors, operating without centralized planning and procedures, exercised local preference and discretion and enforced the act inconsistently. Some customs offices were accused of improperly excluding Chinese laborers. At other ports allegations arose that some Chinese fraudulently entered the country. Federal court dockets on the West Coast filled with hearings to determine the status of Chinese trying to reenter the United States who were detained under the act.

Congress responded with legislation that tightened the act's enforcement. The Exclusion Law of 1884, amending the 1882 act, established additional requirements for the evidence that customs collectors had to record when Chinese laborers left the United States and then use later to determine legal reentry. More dramatically, in the Scott Act of 1888, Congress barred Chinese laborers who left the United States from reentering at all.

Section 6

Section 6 has the first reference to a “Chinese person other than a laborer who may be entitled by said treaty and this act to come within the United States.” To construct the classes of Chinese persons exempt from the Chinese Exclusion Act of 1882, and thus permitted to travel to and reside in the United States, requires reading Sections 6, 13, and 15 in light of the Angell Treaty.

Section 13 of the act exempts “diplomatic and other officers of the Chinese Government traveling upon the business of that government” and their personal and household servants. Section 15 construes the term “Chinese laborers” broadly “to mean both skilled and unskilled laborers and Chinese employed in mining.” This designation, though very inclusive, does not cover all Chinese who might visit the United States.

A higher class of Chinese is made exempt from the act by terms of the Angell Treaty, signed in 1880 and permitting the act's exclusion of laborers. Article II of that treaty allows “Chinese subjects, whether proceeding to the United States as teachers, students, merchants or from curiosity, together with their body and household servants” to freely travel to and from the United States. By not listing them in the act that excluded Chinese laborers, Congress kept this group of Chinese persons free of the act's reach. And by not listing merchants in the act, Congress protected profitable trade relations between the United States and China.

An individual could obtain a “Section 6 Certificate” from the Chinese government, which identified the holder as a member of an exempt class. Amid allegations that this status was being given to individuals not fitting the description, Congress included in its Exclusion Law of 1884 more specific requirements for awarding Section 6 certification.

Section 7

The act recognizes the value of a “Section 6 Certificate,” which exempted the holder from exclusion, by criminalizing fraudulent preparation or use of one. These were common practices.

Section 8

The attempt to use ship officials to help administer the complex set of requirements the act put into place did not work well. Employees of the shipping companies were not always informed of the many regulations imposed by Congress and likely had less interest and expertise in carrying them out than did customs officials.

Section 9

The act directs that upon arriving at port, but before passengers disembark, a customs official will board the ship and, using procedures previously described, identify any Chinese laborer excluded by the act. The customs official will instruct the master of the vessel to detain on board excluded laborers.

Many Chinese excluded under the act brought legal challenges, grounded in a strong and fundamental principle of U.S. law. Laborers excluded and detained on board might petition a federal court for a writ of habeas corpus, requiring the government to offer just grounds for their detainment. Federal courts took these petitions seriously. Many resulted in a court order to the collector to allow entry of the individual bringing the petition. This very active use of federal courts by Chinese to challenge their exclusion helped shape the act's enforcement, and the success of these legal efforts became an important, early chapter in the history of Asian Americans' struggle for rights in this system.

Sections 10 and 11

In Sections 10 and 11, Congress outlines additional penalties for persons, including non-Chinese, violating or failing to enforce the act. The act relies heavily on a complex system of evidence, registration, and certification (see Sections 4, 5, 6, 8, and 9) to identify and keep out of the U.S. those Chinese laborers the act excluded. Alongside these attempts to accomplish the act's aim through administrative procedures, however, Congress also wrote into the act criminal sanctions to be imposed against anyone eluding or violating these procedures. To appreciate these procedures in full force, read the attempts in Sections 10 and 11 to compel adherence to the act by punishing anyone failing to do so alongside other punishments described in Sections 2, 7, and 8.

Section 12

The hostility toward the Chinese that Congress expresses in the act is fully felt in this section. First, “no Chinese person shall be permitted to enter the United States by land without producing” in the proper way the required permission. A Chinese laborer wanting to come to the United States for the first time could not legally obtain permission. Returning Chinese laborers who qualified for the required permission confronted a complex and confusing system, one administrated with great inconsistency, created by the act to provide them their only legal means of reentry. Soon, even this road to reentry was closed. The Scott Act of 1888 barred reentry of Chinese laborers who had resided in the United States legally if they left the country.

Next, the act decrees that any Chinese person “found unlawfully within the United States” shall be removed. Zealous believers that Chinese laborers threatened the good order of the United States readily found empowerment in these words. Ten years later, stronger dictates were passed. The Geary Act of 1892 required any Chinese person residing in the United States who was arrested for violating the act to prove that he or she lived lawfully in the United States. In other words, the government was not required to prove guilt; rather, the individual had to prove innocence. The Geary Act also required Chinese laborers then living in the United States, and not barred by the 1882 act from residing in the United States, to apply to the government for a certificate that proved legal residence.

Section 13

The Treaty of Tien-tsin, signed in 1858, secured diplomatic relations with China. This section recognizes this treaty along with the practical necessity of permitting officials of the Chinese government to reside legally within the United States.

Section 14

The act expressly denies naturalized citizenship to all Chinese, not just laborers. The sentiment ran strong in Congress and in the nation that Chinese were not fit to be citizens.

By adding the instruction that “all laws in conflict with this act are hereby repealed,” Congress shows its determination to slam shut all doors on Chinese rights to naturalization. Statutes passed after the Civil War had extended naturalization rights, originally available only to whites, to persons of African descent. Congress's intent here is to make it very clear that Chinese cannot become naturalized citizens.

Not addressed in the act, and a subject litigated in the years following its passage, is the question of whether a person of Chinese descent born in the United States is a citizen.

Section 15

The broad construction expressly given in the term “Chinese laborers” demonstrates the long reach Congress intended the act to have. These laborers were the targets of hatred and hostility, and labor union leaders and white workers railed against them. Politicians and newspapers called for their exclusion. With the Chinese Exclusion Act of 1882, Congress responds to and these voices and makes them legitimate.