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Guarding the Golden Door
The Golden Door Closes and Opens, 1882-1965
The Beginnings of Immigration Restriction, 1882-1917
In the beginning Congress created the Chinese Exclusion Act. Like much of what Congress has done about immigration since then, it was conceived in ignorance, was falsely presented to the public, and had consequences undreamt of by its creators. That May 1882 statute, which has long been treated as a minor if somewhat disreputable incident, can now be seen as a nodal point in the history of American immigration policy. It marked the moment when the golden doorway of admission to the United States began to narrow and initiated a thirty-nine-year period of successive exclusions of certain kinds of immigrants, 1882-1921, followed by twenty-two years, 1921-43, when statutes and administrative actions set narrowing numerical limits for those immigrants who had not otherwise been excluded. During those years a federal bureaucracy was created to control immigration and immigrants, a bureaucracy whose initial raison d'etre was to keep out first Chinese and then others who were deemed to be inferior.
The most comprehensive historical work on American immigration policy posits a different periodization, distinguishing between "the development of a regulatory system" in 1883-1913 and a period that went "from regulation to restriction" in 1913-29.1 This seems to me to make a false distinction: in fact each narrowing of the grounds of admission to the United States made subsequent narrowings easier. The same would be true in reverse, when restrictions were progressively relaxed from 1943 on. In the decades following World War II, even as the immigration laws and regulationswere loosened and made less discriminatory, the second generation of immigration historians tended to assume that immigration would never again be a major factor in American life. From a vantage point at the beginning of the twenty-first century, however, it now appears that the period of intense restriction, which eventually resulted in very small numbers of immigrants, was a temporary rather than a permanent alteration in a general pattern.
The clearest way to demonstrate the apparent continuity of immigration patterns in modern American history is to examine the percentage of foreign-born residents in the country, whom the census began to count only in 1850 vis-à-vis the gross number of immigrants admitted. The data show that between 1860 and 1920, a period when almost every aspect of American life was transformed, the incidence of immigrants in the American population was remarkably stable: in seven successive censuses, about one American in seven was foreign-born, the actual percentages varying only between 13.2 and 14.7 percent. The total number of resident immigrants grew steadily from 1850 to 1930, but their incidence in the population began to decline in 1910 and hit a low of 4.7 percent--less than one American in twenty--in 1970. This was well after immigration had begun to grow again, but the drop in incidence continued due to the high mortality among foreign-born because so many were old and so few immigrants had arrived in the previous four decades.a Because of depression, war, and immigration policy, fewer immigrants came to the United States between 1931 and 1971--7.3 million--than had arrived in the single decade 1901-10, even though the population in 1970 was more than twice as large as that in 1910. Since 1970 the number and incidence of immigrants have risen, but that incidence is still well below traditional levels. The commonly held perception that America is receiving an unprecedented proportion of immigrants is false.
What has changed, however, have been American attitudes toward immigration and immigrants. One issue that this book explores is the dualistic attitude that most Americans have developed toward immigration and immigrants, on the one hand reveling in the nation's immigrant past and on the other rejecting much of its immigrant present.
That the United States, along with a number of other "settler societies," is a nation of immigrants goes almost without saying.2 Despite this, most historians do not accord either immigration or immigration policy the attention these topics deserve, and the space allocated to them in most textbooks is both cursory and spasmodic. Most still maintain the old invidious distinction between the earlier "colonists" and the later "immigrants."
The founding fathers knew that continued immigration was vital to help fill their largely empty new nation. Thomas Jefferson's list of complaints against King George III in the Declaration of Independence included the charge that the king had "endeavored to prevent the population of these States ... obstructing the laws for the naturalization of foreigners [and] refusing to pass others to encourage their migration hither." Eleven years later the authors of the Constitution clearly had immigration in mind when they provided that Congress should "establish a uniform rule of naturalization" (Article I, Section 8) and made immigrants eligible for all federal offices save president and vice president. They also protected the foreign slave trade, a major source of immigration, by prohibiting interference with it for twenty years (Article 1, Section 9). When that period expired, Congress, at President Jefferson's invitation, promptly made that trade illegal, but did not interfere with either the domestic slave trade or slavery itself. The approximately 50,000 slaves smuggled into the United States after 1808 became the first illegal immigrants.
President George Washington and all his successors through John Tyler took it as a given that continued immigration was vital for the health of the nation. While none made as blunt a declaration as the nineteenth-century Argentine statesman Juan Bautista Alberdi, who insisted that "to govern isto populate," their endorsements were unambiguous. Washington, addressing an association of Irish immigrants just after the battle of Yorktown, said:
The bosom of America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions, whom we shall welcome to participate in all of our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.3
The anti-immigrant legislation of the John Adams administration in the late 1790s--the infamous Alien and Sedition Acts--was not so much an effort to restrict immigration as a desperate but vain attempt to keep Federalism in power and Jeffersonians out. Federalists generally opposed only those immigrants who they thought might vote for Jefferson. Apart from that episode, a pro-immigrant consensus long prevailed, a consensus well described in President John Tyler's 1841 message to Congress: "We hold out to the people of other countries an invitation to come and settle among us as members of our rapidly growing family."4
Thus for the first sixty years, and beyond, immigration and naturalization laws were minimal. Congress quickly enacted a 1790 statute specifying that naturalization was restricted to "free white persons."5 The obvious intention was to bar the naturalization of blacks and indentured servants. (The French constitution of 1789 had similarly barred the suffrage of persons "in livery.") This naturalization act, as amended, was used later to bar the immigration of Asians, but there is no evidence that Congress had Asians in mind in 1790, and, in fact, a number of Asians were naturalized in the middle decades of the nineteenth century, at least one of them at the behest of the federal government.6 And the first statute dealing directly with free immigration was not enacted until 1819, when Congress ordered, as part of a statute dealing with import duties, that every vessel entering an American port deliver a manifest of passengers being landed to the collector of customs for that distriet.7 No other immigration statutes were enacted until after the Civil War.
The political elites' positive consensus about immigration and absence of legislative regulation does not mean that immigration was universally popular. Many Americans had long held hostile feelings toward immigrants in general and certain types of immigrants in particular--a position that has come to be known as nativism. The historian John Higham, its premier explicator, has defined it as "intense opposition to an internal minority on thegrounds of its foreign (i.e., 'un-American') connections."8 I will use the word more broadly to describe persons, organizations, and movements that oppose immigration or the amount of immigration on whatever grounds, and I shall use it often in the plural.b
American nativisms are older than the United States. For example, early in the eighteenth century a Boston mob tried to prevent the landing of Protestant Irish and later in the century that transplanted Bostonian Benjamin Franklin published one of the first nativist tracts. His Observations Concerning the Increase of Mankind (1751) had as its main target the burgeoning German immigration in Pennsylvania, but also demonstrated a broad, if to us curious, racism.
Why should the Palatine boors be suffered to swarm into our Settlements, and by herding together establish their Language and Manners to the Exclusion of ours? Why should Pennsylvania, founded by the English, become a Colony of Aliens, who will shortly be so numerous as to Germanize us instead of us Anglifying them, and will never adopt our Language or Customs, any more than they can acquire our Complexion.
Franklin's comments are typical of American complaints against immigrants irrespective of time and place: they have bad habits ("Palatine boors"); they are clannish ("herding together"); they don't speak English ("their Language"); and they are going to take over ("Germanize us instead of our Anglifying them"). These are the arguments used against Italians, Jews, and others a hundred years ago, and may be heard today against "Mexicans, Latinos, Hispanics, etc." The targets have changed, but the complaints remain largely the same. Their gravamen is simply this: they are not like us.
Franklin went on to demonstrate the degree to which notions of race are relative rather than absolute. He noted that the number of "purely white People in the World is proportionately very small," but his notion of who was white was strangely narrow. Most Europeans were not white but, according to him, "swarthy": in this category he mentioned Spaniards, Ital-ians,French, Russians, Swedes, and Germans except for the Saxons, "who with the English, make the principal Body of White People on the Face of the Earth."
Finally, Franklin proposed an explicitly racist immigration policy: "Why Increase the Sons of Africa, by Planting them in America, where we have so fair an Opportunity, by excluding all Blacks and Tawneys, of increasing the lovely White and Red?"9 Yet, although Franklin can justly be called a founding father of American nativism, he was a father with no intellectual children. And it should be noted that this theme does not recur in Franklin's writings and that the forty-five-year-old American had not yet been abroad when he wrote these sentences. In his old age he encouraged immigration from the European continent.c
No concerted anti-immigrant movement developed in America until almost a century later. But when many thousands of desperately poor Catholic Irish immigrants began arriving at East Coast ports in the mid-1840s, many of them fleeing the consequences of the terrible potato famine that killed more than a million Irish, the pro-immigration consensus was weakened. (Many of the immigrants had been subsidized to emigrate by Irish landlords and the British government.) In reaction, Massachusetts and New York passed laws taxing and otherwise impeding immigrants. These were appealed to the Supreme Court, which struck them down in the Passenger Cases of 1849, ruling that: 1) although the Constitution said nothing about immigration directly, it was clearly "foreign commerce," which the Constitution explicitly reserved to Congress; and 2) Congress's jurisdiction was preemptive so that even in the absence of any federal legislation, state governments could not regulate immigration.10
Immigration had been growing very quickly in the antebellum decades. In the 1830s, 600,000 came, 1.7 million arrived in the 1840s, and 2.6 million in the 1850s, which amounted to a 433 percent increase over two decades. About a third of the immigrants were Irish, almost all of them Catholic, and another third were German, a large segment of whom were Catholics. Irish immigrants went largely to the northeastern United States, many entering through Boston and New York, with a substantial minority entering via Canada. Almost all Irish settled in cities as far south as Baltimore and as far west as Cincinnati: large numbers of them moved into newurban occupations such as policemen, firemen, and horse-car drivers, as well as unskilled labor. Unlike the Irish, almost no Germans settled in New England; most entered through New York, which supplanted Philadelphia as the chief immigrant port in the 1820s. German settlement in the East was concentrated between New York and Baltimore, but a growing minority settled within the area between St. Louis, Cincinnati, and Milwaukee, which scholars have called the "German Triangle." Many Germans came seeking farms and found them, while large numbers were skilled craftsmen.
The frustration of Protestant nativist groups over the increasing immigration and the growing crisis over slavery were the preconditions for the first anti-immigrant mass movement in American history. In the 1830s and 1840s violent anti-Catholic riots occurred, primarily in New England and Philadelphia: in 1834, just outside Boston, a mob burned down an Ursuline convent; and in Philadelphia during the 1840s a number of mobs attacked Catholic churches. No organization accepted responsibility, as we say today, but by the early 1850s a new political movement had been born, directed largely against immigrants.
The Know-Nothings, as contemporary opponents and later historians called them, were members of a secret Protestant fraternal organization, the Order of the Star-Spangled Banner, whose members had to be native-born white Protestants who took an oath to "[resist] the insidious policy of the Church of Rome, and all other foreign influences against the institutions of our country, by placing in all offices in the gift of the people, whether by election or by appointment, none but native-born Protestant citizens." Members of the Order were instructed to reply "I know nothing" to any questions about the organization.
It had a meteoric rise, growing from just forty-three members to more than a million in a little over two years. A million white males represented almost one-eighth of the nation's potential electorate (in 1852 just some 6 million men voted for president). It is therefore no surprise that anti-immigrant candidates did well in the elections of 1854 and 1855, electing eight governors, more than a hundred congressmen, the mayors of Boston, Philadelphia, and Chicago, and thousands of other local officials. Many states enacted anti-immigrant statutes in this period. In Massachusetts, for example, naturalized citizens were denied the vote until two years after they became citizens, an act that particularly outraged Abraham Lincoln. The movement's national agenda included lengthening the period required fornaturalization from five to fourteen years, various proposals to limit immigration, and a constitutional amendment barring foreign-born citizens from holding any public office.11
Emboldened by its electoral success, the Order formed the American Party and in 1856 ran ex-President Millard Fillmore for president on a platform that ignored the slavery issue but included anti-immigrant planks. Fillmore got more than 800,000 votes, some 20 percent of the electorate, but carried only the state of Maryland. The American Party collapsed and, by 1860, so had the Know-Nothing movement. The Civil War years, in which immigrant soldiers fought for both the Union and the Confederacy, often in ethnic regiments or smaller units, ended, for a time, the anti-immigrant furor. The Know-Nothings did not achieve any of their agenda, but they serve as an exemplar of one kind of anti-immigrant movement: one whose major objection to immigrants is their religion.
The depression-scarred 1890s saw a minor reprise of organized anti-Catholicism. The short-lived American Protective Association, founded in Iowa in 1887 by a still-obscure man named Henry Bowers, had its greatest appeal in the rural Midwest and the Pacific Northwest. Its political agenda was similar to that of the Know-Nothings, but it had little national impact and faded with the return of relative prosperity around 1900.12 Yet, religious prejudices against Catholics and Jews continued to be an important element of many subsequent anti-immigrant movements, though never again at their core. In the post-Civil War years that core was provided first by race and then by ethnicity.
The adoption of the Fourteenth Amendment in the summer of 1868 with its unambiguous initial sentence--"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside"--established, for the first time, a national citizenship and made citizens of former slaves who had been born in the United States, and left those who had been born in Africa or the West Indies ineligible to citizenship.13 Quite logically, Congress took up the question of amending the naturalization law, basically unchanged since 1790, which still limited eligibility to "free white persons."14
Had Congress amended the naturalization statute in 1866 it might well have simply dropped "white" as well as "free" from the new statute, but events in 1868, 1869, and early 1870 brought the issue of Chinese immigration into national prominence. This, along with the turmoil of Reconstructionhelped to focus anti-immigrant sentiments on race rather than religion.15
Chinese had begun to immigrate to California and the American West in significant numbers in the 1850s. They came like thousands of others from Europe, Latin America, and the rest of the United States, seeking gold. Almost all came from the area around Canton and were young men seeking "riches": consular reports indicated that for many the goal was to return with $400 and that by mid-decade some had already achieved it. In the tradition of previous Chinese migrants within Asia, they called themselves "guests": since the Chinese characters for California also mean "gold mountain," those in California were "gan sam hack" or gold mountain guests. Students of immigration usually call such immigrants "sojourners" and note that there have been numerous sojourners among immigrants to America since the seventeenth century.
The census of 1870 recorded more than 60,000 Chinese, three-quarters of them in California and almost all of them men. As late as 1867, California Republicans were still willing to pass a resolution "in favor of voluntary immigration ... from whatever nationality it may come," but after losing the gubernatorial election in that year, partially because their opponents had labeled them as pro-Chinese, they vied with other parties in the virulence of their anti-Chinese expressions.16
The following year the Senate ratified the Burlingame Treaty with China, which recognized "the inherent and inalienable right of man to change his home and allegiance" and "the mutual advantage of ... free migration," although the treaty specified that "nothing contained herein shall be held to confer naturalization ... upon the subjects of China in the United States."17
The completion of the Union-Central Pacific Railroad at Promontory Point, Utah, in May 1869, threw some 10,000 Chinese railroad builders onto the California labor market and pushed the Chinese immigration issue to the top of western workingmen's political agenda. Although there had been legal and extra-legal discrimination against Chinese almost as soon as the first immigrants got off the boat, the major phase of the anti-Chinese movement in California dates from that time. In the same month the golden spike was driven, Henry George, a radical reformer and economic theorist, raised, perhaps for the first time anywhere, the bogus specter of the invasion of the United States by an Asian army, what came tobe called the Yellow Peril. In a front-page article in the New York Tribune, the "prophet of San Francisco" warned that:
The 60,000 or 100,000 Mongolians on our Western coast are the thin edge of the wedge which has for its base the 500,000,000 of Eastern Asia ... The Chinaman can live where stronger than he would starve. Give him fair play and this quality enables him to drive out stronger races ... [Unless Chinese immigration is checked] the youngest home of the nations must in its early manhood follow the path and meet the doom of Babylon, Nineveh and Rome ... Here plain to the eye of him who chooses to see are the dragon's teeth [which will] spring up armed men marshaled for civil war. Shall we prohibit their sowing while there is still time or shall we wait until they are firmly embedded, and then try to pluck them up?18
In the South many had a different reaction. Faced with the problems of reinserting the freedmen into the Southern labor system, some Southern businessmen and planters fantasized that indentured Chinese labor might allow them to set up a new system of slavery. They tried to disguise their efforts as a kind of missionary enterprise, arguing that by bringing Chinese to America they would be
falling in with the apparent leanings of Providence, and while we avail ourselves of the physical assistance these pagans are capable of affording us, endeavor at the same time to bring to bear upon them the elevating and saving influence of our holy religion, so that when those coming among us shall return to their own country, they may carry back with them and disseminate the good seed which is here sown, and the New World shall thus in a double sense become the regenerator of the Old.19
With the help of the Dutch-born labor contractor Cornelius Koopmanschap (1828-82), perhaps a thousand or so Chinese laborers were sent from the West Coast to the South in the early 1870s, the largest group of whom worked on the Alabama and Chattanooga Railroad. Although Chinese workers were never a significant factor in the Southern economy, the discussions of this scheme in the press helped make Americans more aware of the Chinese question.20
Against this background of growing hostility and attention to the issue of Chinese in America the Massachusetts radical Republican senator, Charles Sumner, in an April 1870 speech delivered just after the ratification of the Fifteenth Amendment, announced his intention to go one step further onthe road to true democracy and ensure that the word white was eliminated from the naturalization laws. This drew a reaction from Frank Pixley, a San Francisco lawyer and Republican politician (later notorious as an anti-Chinese demagogue). Though he supported the Fifteenth Amendment and African American suffrage in California, he opposed naturalization and citizenship for Chinese. "This is not the question of the African whom our forefathers brought here and who had generations of ancestors born upon the soil," Pixley wrote Sumner. "This is a question of bringing a new-people here, and are we not planting the seeds of an evil which may develop to our great and permanent injury?" Pixley admitted that "as a class Chinese are intelligent," and he believed, erroneously, that all of them - could read and write and were mere sojourners who did "not acquire lands or real property," also that among "the multitudes of Chinese women in our state there is not a wife or virtuous female in their number."21
Such criticism did not faze Sumner and he may not have answered Pixley, but the San Francisco attorney's letter prefigured the debate that took place in the Senate that summer. The issue of color-blind naturalization was not a new one. Sumner had introduced bills removing the word "white" from the naturalization statutes in 1868 and 1869, but neither had come to a vote and the issue of Chinese naturalization had not been raised. His chance to force the issue came in July 1870, when the Senate had under consideration two similar bills "to amend the Naturalization Laws and to punish crimes against the same." Their object was to prevent election frauds perpetrated by unnaturalized or illegally naturalized voters--who presumably voted Democratic. On July 2 Sumner moved to add, as a new section of one of them, the text of a bill he had previously introduced that would strike out the word "white" wherever it appeared in acts of Congress relating to naturalization, "so that in naturalization there shall be no distinction of race or color."
In his brief remarks that day he spoke of the denial of rights to African Americans and made no direct mention of Chinese, although a number of Republican senators, including William M. Stewart of Nevada and George Henry Williams of Oregon, raised the specter of hordes of incoming Chinese and massive Chinese suffrage. Williams, an Oregon Republican, moved a further amendment: "Provided, that nothing in this Act shall be construed to authorize the naturalization of persons born in the Chinese Empire." When Oliver P. Morton (R-IN) remarked that "the whole Chinese problem" was involved and called for caution and reflection, Sumnercountered that it "simply opens the question of the Declaration of Independence." Thus was the issue of Chinese naturalization--and behind that of Chinese immigration--joined for the first time in Congress.
Sumner rose to the occasion. In the ensuing debate, conducted on the Fourth of July, Sumner made his defense of Chinese naturalization.
Senators undertake to disturb us ... by reminding us of the possibility of large numbers swarming from China; but the answer to all this is very obvious and very simple. If the Chinese come here, they will come for citizenship or merely for labor. If they come for citizenship, then in this desire do they give a pledge of loyalty to our institutions; and where is the peril in such vows? They are peaceful and industrious; how can their citizenship be the occasion of solicitude?
As was his wont, Sumner made direct and personal replies to the arguments of his opponents. After reading aloud from the Gospel of St. Matthew's account of Peter's triple denial of Jesus of Nazareth, Sumner analogized that "thrice has a Senator [Stewart of Nevada] on this floor denied these great principles of the Declaration of Independence. The time may come when he will weep bitterly."
In answer to Williams of Oregon, who had argued that color-blind naturalization would give "millions of heathens and pagans power to control our institutions," Sumner answered, "Fearlessly we may go forward and welcome all corners, for there can be no harm here; the heathens and pagans do not exist whose coming can disturb our institutions. Worse than any heathen or pagan abroad are those in our midst who are false to our institutions." Later he insisted that the "peril" to the "Republic" existed only "in imagination; it is illusion, not a reality."
On what had become the Chinese issue--no other Asian group was mentioned--Sumner did not prevail. In a confusing parliamentary situation, his amendment was first rejected, then accepted, then reconsidered, and twice again rejected, on votes of 30-14 and 26-12. But Sumner's struggle for African naturalization did bear fruit. An amendment by an Ohio-born Republican from Alabama, the former brevet major general of Ohio Volunteers Willard Warner, to extend naturalization to "aliens of African nativity and to persons of African descent" was narrowly adopted by votes of 21-20 and 20-17. A motion by Lyman Trumbull (R-IL) to extend naturalization "to persons born in the Chinese Empire," was defeated 31-9, and the amended bill passed, 33-8, with Sumner voting in the affirmative.22 Forthe next seventy-three years Chinese and other Asians were the only persons genetically ineligible to American citizenship, and some Asians remained ineligible until 1952 when the McCarran-Walter Act made the naturalization statutes color-blind.
Thus most Reconstruction Era Republicans took the position that the Californian Pixley had: that naturalization rights should be accorded to Africans and foreign-born African Americans, but not to Chinese. Frederick Douglass, on the other hand, understood that an important principle had been defeated: the great African American leader congratulated Sumner for being "in the right place on the Chinese question. As usual you are in the van, the country in the rear."23 Sumner's brief fight for Chinese rights was quickly forgotten by contemporaries and many historian. d
In 1870 the census counted 63,000 Chinese in the country and in 1880 found 105,000. In that year more than 70 percent of all American Chinese lived in California and a mere 3 percent lived in all the territory east of Denver. Males outnumbered females by a little more than twenty to one.
Originally drawn to the mines of the Sierra Nevadas, Chinese were - driven from them by the violence of white miners and deliberate discrimination by the state of California, which levied a heavy foreign-miners tax collected almost exclusively from Chinese. They were largely employed in humble occupations, although a significant number were merchants and other entrepreneurs. But even as Sumner spoke on the ninety-fourth anniversary of the Declaration, an event in the western part of his home state was helping to stimulate anti-Chinese activity in the eastern United States.
On June 13, 1870, in North Adams, Massachusetts, seventy-five Chinese workmen brought from San Francisco under three-year contracts arrived on a train and were escorted by thirty policemen to the shoemaking factory of Calvin T. Sampson. He had brought them in to replace his striking shoemakers, members of the Knights of St. Crispin, the shoemakers union, then America's largest trade union.24 Although Chinese labor never became a significant factor in Eastern industrial labor--only two other instances are known--the incident had significant repercussions. In August the National Labor Union, the first national labor federation of the post-Civil War period, changed its policy about immigration. The previous year its convention had resolved that "voluntary Chinese emigrants oughtto enjoy the protection of the laws like other citizens." Now, with Crispin and California delegates in attendance, it resolved that"the presence in our country of Chinese laborers in large numbers is an evil ... and should be prevented by legislation."25
For the labor movement this was a Rubicon: from then until the very end of the twentieth century its basic stance was anti-immigrant, and although most of its leaders and its academic apologists claim that the opposition was based completely on economic grounds, racism was a major factor. By the early twentieth century not only business unionists like Samuel Gompers but also socialists like Morris Hillquit and Victor Berger were virulent opponents of Asian immigration: the latter insisted that the United States and Canada must remain "White Men's countries."26
Yet, despite the efforts of Western congressmen--often with border states and Southern allies--to erect legislative barriers to Chinese immigration, Congress was reluctant to do so. In his 1874 annual message, President Ulysses S. Grant weighed in against the Chinese, claiming that the "great proportion" of Chinese were involuntary contract laborers--and thus illegal immigrants--and that an even worse evil were Chinese women, almost none of whom "perform any honorable labor, but ... are brought for shameful purposes." He went on to say that "if this evil practice can be legislated against" it would be his "pleasure" to enforce it.27
The next year, 1875, Congress passed the so-called Page Act--for Horace F. Page (1833-90) then a first-term California Republican congressman. It created two classes of illegal immigrants--persons under sentence for crimes other than political and women "imported for purposes of prostitution" and made the importation of "any subject of China, Japan, or any Oriental country" without their consent a felony. Rhetorical sections of the statute and remarks made during the congressional debate made it clear that the bill was really aimed at Chinese women.e Though historians have long treated it as an ineffective legislative way station on the road to exclusion, recent scholarship focusing on the act's administration has shown that it was, in fact, an effective inhibition on the immigration of Chinese women.28
The same Congress that passed the Page Act also authorized a joint congressional committee to investigate Chinese immigration; this took testi-monyin the Palace Hotel in San Francisco just before and after the presidential election of 1876. By that time both national political party platforms inveighed against the Chinese, the Republicans a little tentatively--it is "the immediate duty of Congress to investigate the effects of the immigration and importation of Mongolians"--while the Democrats unreservedly denounced "the policy which tolerates the revival of the coolie-trade in Mongolian women held for immoral purposes, and Mongolian men to perform servile labor."29
The majority report of the joint congressional committee claimed that the Pacific Coast had to become "either American or Mongolian," and insisting that there was "not sufficient brain capacity in the Chinese race to furnish motive power for self-government" and that "there is no Aryan or European race which is not far superior to the Chinese." It urged the president to get the Burlingame Treaty modified and Congress to legislate against "Asiatic immigration."30 The report was presented to Congress while it was settling the disputed election of 1876, so no immediate action was taken. After much debate the next session of Congress, just before it went out of existence, passed the so-called fifteen passenger bill which barred any vessel from bringing more than fifteen Chinese immigrants. A sticking point was the existing Burlingame Treaty, which some wanted to override totally while others wanted to wait for a diplomatic renegotiation. The bill also instructed the president to notify the Chinese that portions of the treaty were abrogated, which passage of the bill would have accomplished.
Rutherford B. Hayes responded with a reasoned veto message that accepted the desirability of stemming Chinese immigration. He argued that the Chinese manifested "all the traits of race, religion, manners, and customs, habitations, mode of life, segregation here, and the keeping up of the ties of their original home ... [which] stamp them as strangers and sojourners, and not as incorporated elements of our national life."31 But, he insisted, there was no emergency to justify unilateral abrogation of the treaty, which could have disastrous consequences both for American merchants and for missionaries in China. He promised that there would be a renegotiation of the treaty.
Somewhat protracted diplomatic renegotiations of the treaty were completed by the end of 1880, and the new treaty was ratified and proclaimed in October 1881. It gave the United States, unilaterally, the rights to "regulate, limit, or suspend" the "coming or residence" of Chinese laborers, butit allowed Chinese subjects "proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers now in the United States to go and come of their own free will and accord."32
The subsequent session of Congress passed a bill suspending the immigration of Chinese laborers for twenty years. President Chester A. Arthur vetoed it, arguing that "It may be that the great and paramount interest of protecting our labor from Asiatic competition may justify us in a permanent adoption of this policy; but it is wiser in the first place to make a shorter experiment, with a view hereafter of maintaining only such features as time and experience may command.33 Congress responded by re-passing the bill with a ten-year suspension, and Arthur signed it into law on May 6, 1882.34
This law prohibited the entry of Chinese laborers--defined as "both skilled and unskilled laborers and Chinese employed in mining"--after August 4, 1882, and it provided that any Chinese who was in the country on November 17, 1880, the effective date of the Sino-American Treaty, or had come between that date and August 4, 1882, had the right to leave and return. American certificates would be issued, free of charge, to any Chinese who left the United States and wished to return. Every Chinese, other than a laborer, had to have a certificate of identification supplied by the Chinese government either in English or with an English translation. The law, as opposed to the treaty, did not spell out who was entitled to enter the United States, although it did specify that diplomats and other officials of the Chinese government doing government business and their body and household servants were admissible. Fines for bringing Chinese in illegally could run as high as $1,000 per individual, and vessels landing Chinese illegally were liable to seizure and condemnation.
Thus, what is commonly called the Chinese Exclusion Act--its proper title is "To Execute Certain Treaty Stipulations Relating to Chinese"--became law. The typical textbook gives it only a sentence or two, but it merits a much more extensive treatment. Viewed from the perspective of the early twenty-first century, the Exclusion Act is clearly the pivot on which all American immigration policy turned, the hinge on which Emma Lazarus's "Golden Door" began to swing toward a closed position. It initiated an era of steadily increasing restrictions on immigration of all kinds that lasted until 1943, when, under special circumstances, the Chinese exclusion laws were repealed.
The enforcement of Chinese exclusion was problematic from the beginning.The federal government had no immigration bureaucracy and its enforcement fell first to customs officials. The Chinese American community, which had successfully applied to the state and federal courts for protection from various discriminatory state statutes and municipal ordinances, now appealed to the federal courts for protection from this federal law. The courts upheld the principle of exclusion but did rule that, as the law was written, it affected only Chinese coming from China and that Chinese entering from anywhere else--for practical purposes this meant Canada, Cuba, or Mexico--were not affected by it. In 1884 the original act was amended to bar the entry of any Chinese person except as otherwise authorized. Other problems involved the efficacy of the new certificates, which, despite identifying photographs, were sometimes used for entry by persons other than those to whom they were issued. (Fingerprinting did not come into use for another few decades.)35
Meanwhile, although the Chinese American population was beginning a long period of decline, anti-Chinese agitation and violence continued throughout the West: some of the worst outrages, such as the Rock Springs, Wyoming, massacre of 1885, followed rather than preceded the exclusion act. A new treaty with China was negotiated in 1888 that would have extended the bars against Chinese laborers for twenty years, with an extension of an additional twenty years if neither side renounced the treaty. But in the ratification process the Senate added several conditions, one of which would have cancelled all the outstanding return certificates. This China refused to accept, and the treaty was never in effect.
Congress then passed the so-called Scott Act, named for Representative William L. Scott of Pennsylvania, who was also Grover Cleveland's campaign manager, which unilaterally cancelled the certificates although the treaty prescribing them was still in effect.36 Unlike Hayes, who had been punctilious about treaty obligations, President Cleveland signed it into law a little more than a month before the 1888 election. He took the unusual step of justifying his doing so in a message that failed to mention the certificates. He did note that some of the provisions of the act had been agreed to by the Chinese government and supported his position by asserting that the "experiment of blending the social habits and mutual race idiosyncrasies of the Chinese laboring classes with those of the great body of the - people of the United States [has] proved by the experience of twenty years ... in every sense unwise, impolitic, and injurious to both nations."37
Attorneys for Chinese interests challenged the Scott Act in federal court because it was a clear violation of the 1881 treaty, but the courts upheld the government in the Chinese Exclusion Case and established the rule of law that in case of conflict between acts of Congress and treaties, which were each the law of the land, whichever came later should prevail.38
In May 1892, as the original term of exclusion was about to expire, Congress passed the Geary Act, which extended exclusion for another ten years and placed harsh and unprecedented restrictions upon Chinese persons living in the United States. Reversing the normal presumption, it stated that "any Chinese person or person of Chinese descent" was deemed to be in the country illegally unless he or she could demonstrate otherwise. It also denied the right of bail to Chinese aliens in habeas corpus proceedings, and required all Chinese in the United States to get a certificate of residence, a kind of internal passport, within a year (that is by May 1893) or be deported.39
Chinese American organizations so mobilized their community that only a little over a tenth of the Chinese in the United States registered, a remarkable act of passive resistance. Actively the community leadership, perhaps aided by the Chinese government, employed three prominent constitutional lawyers to challenge the law. The case was expedited directly to the Supreme Court immediately after the registration deadline ran out. At the time the case was heard, in May 1893, only some 13,000 Chinese had registered, and more than 90,000 had not. The nominal plaintiffs were three alien Chinese laborers who had been residents of New York City since before the first exclusion act and had been ordered deported for lack of a certificate. Two, Fong Yue Ting and Wong Quan, had refused to register. The third, Lee Joe, tried to register but was denied a certificate because his witnesses were Chinese and the law required "at least one credible witness other than Chinese" to attest to prior residence.
Despite impressive briefs and arguments that convinced three justices, five justices supported the government and upheld the law. Justice Horace Gray, for the majority, held in the case of Fong Yue Ting v. United States that the three Chinese, like other resident aliens, were entitled
to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of persons and property, and to their civil and criminal responsibility [but insisted that the Constitution could not shield them ifCongress decided that] their removal is necessary or expedient for the public interest.
In a pale paraphrase of Taney's Dred Scott decision, Gray wrote that "it appears impossible to hold that a Chinese laborer acquired under any of the treaties or acts of Congress, any right, as a denizen or otherwise, to be and remain in this country, except by license, permission and sufferance of Congress."40 Although the particular case involved Chinese, the case was governing for unnaturalized immigrants. They were--and are--more or less at the mercy of Congress.
While some anti-Chinese enthusiasts on the West Coast expected mass deportations to ensue, nothing of the sort happened. Secretary of the Treasury John G. Carlisle estimated that mass removal of all 90,000 uncertified Chinese would cost the country at least $7.2 million: his annual budget for immigration enforcement was $25,000. Both he and Attorney General Richard Olney instructed their subordinates to refrain from taking action.41 At about the same time Secretary of State Walter Q. Gresham assured Yang Yu, the Chinese minister, that in its next session Congress would moderate the measure so that Chinese might register.42 Such an act was indeed passed in November 1893, giving Chinese six additional months to register.
Altogether about 105,000 Chinese eventually applied for and received certificates, so that they could not only remain in the United States but also could, once again, leave the country and return. But the 1893 act added new barriers for Chinese in exempt classes, particularly those whom the immigration service came to call "treaty merchants." For example, the law provided that any "Chinaman" trying to enter on the grounds that he was a returning merchant had to provide affidavits or other evidence from "two credible witnesses other than Chinese" that what he said was true.43
The annexation of the Hawaiian Islands in 1898 had extended the exclusion laws there where they affected a Chinese community that numbered 25,000 in 1900. As the time for the expiration of the 1892 act neared, Congress enacted a statute extending the existing legislation "until otherwise provided by law" and expanded its scope to all of the American empire that had been acquired largely in the Spanish-American War of 1898.44 It is instructive to note that this act was signed by President Theodore Roosevelt, who would later protest vehemently against anti-Japanese agitation.
The foregoing is no more than a capsule history of the Chinese Exclusion acts, but it is important to understand the many ways in which the act shaped not only the lives of Chinese Americans but also the culture of the organization that was, in large part, created to enforce it, the immigration service of the United States.
When the Chinese Exclusion Act was passed there were probably about 125,000 Chinese living and working in the United States. That number dropped steadily until it just exceeded 60,000 in the census of 1920. Then it began to rise slowly and had reached almost 78,000 in 1940, a bare majority of whom were recorded as U.S. citizens. Although a standard complaint against Chinese immigrants in the United States was that they failed to adapt to American conditions, the community had very quickly learned how to use American law and lawyers to protect their rights in state and federal courts. These lawyers were not usually hired by the individual defendants but by communal associations, particularly the so-called Six Companies, which evolved into the Chinese Community Benefit Association. Legal scholars have discovered more than 10,000 habeas corpus cases involving Chinese litigants in the state and federal courts in California alone.45 These cases helped to set the parameters of American immigration law and to establish the rights of all aliens. Chinese American community leaders had developed a great respect for the efficacy of the American legal system until it failed to protect them from the Geary Act in 1893. Although the community still took cases to court and Chinese Americans remained, on a per capita basis, the most persistent litagators in the United States, it increasingly resorted to illegal expedients to evade the law.
I will give two examples. Between the Sino-American Treaty of 1881 and the immigration act of 1924, Chinese merchants enjoyed a special status, for they could come and go as they wished, and they could bring family members to the United States to join them. Who was a "merchant"? The 1893 statute defined a merchant as "a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his name, and who during the time he claims to be engaged as a merchant, does not engage in the performance of any manual labor, except as is necessary in the conduct of such business as a merchant 46
One can find in the archives of the immigration service partnership agreements that show literally dozens of partners for rather small businesses that cannot have supported so many persons, even frugal Chinese immigrants.But the courts generally ruled, in the absence of evidence to the contrary, that all such partners were merchants with treaty rights. And these merchants could bring in wives, which increased the number of Chinese American women whose children, born in the United States, were native-born U.S. citizens with all the legal rights of citizenship thanks to the Fourteenth Amendment.
The decentralized and erratic nature of birth registration in the United States enabled some Chinese men in the 1890s to acquire citizenship fraudulently. And then in 1906 a natural catastrophe--the great San Francisco earthquake and fire--destroyed the city's vital statistics, which made it even easier for increasing numbers of young men to claim and secure U.S. citizenship. Among the rights that they could exercise was the right to leave the country and reenter with impunity. Although we speak of Chinese American society as a bachelor society--in 1910 the gender ratio was still larger than 14 to I--until after World War II probably most Chinese men in the United States were married, but their wives were in China unable to join them.47 Sociologists speak of such unions as "mutilated marriages": Chinese Americans call the female partners "living widows." Chinese men who had successfully established American citizenship could visit China and get married. Any resulting offspring were derivative American citizens who could enter the United States, although their mothers--aliens ineligible to citizenship--could not. Each visit to China by an adult male citizen created at least one "slot" in which he could have fathered a child. Some years after the birth should have occurred, a school-age boy or young man would join his "father."
An incredible percentage of the children thus putatively fathered were sons. Of course there were some Chinese men who brought their own sons into America. Others, however, brought in other men's sons, whom the community called "paper sons." There were also a few "paper daughters," but the vast majority of Chinese who entered as derivative citizens were male.48 There is no way of ascertaining how many paper sons and other illegal Chinese immigrants gained entry during the Exclusion Era, 1882-1943; we only know the official figure of almost 95,000 legal individual entries of alien Chinese during that era. Many of those were returning immigrants, and some of them reentered more than once. The entries average some 1,500 a year, which comes to about four every day over a sixty-year period. Averages can be misleading, of course: relatively few could enter after 1924 and in the 1930s the average was below 600 annually. Andone should note that the immigration of Chinese women was particularly affected by the 1924 law. Prior to its passage about 150 alien Chinese women had been entering annually--that is, 10 percent of the total. Between 1924 and 1930 there were none. A 1930 statute relaxed the ban and for the next decade about sixty women a year were able to enter.49 In a final demographic observation, it should be noted that in 1940, for the first time, the census recorded that a slight majority of Chinese in the continental United States were citizens--40,000 citizens and 37,000 aliens, but that includes an indeterminate number of "paper sons."
The discriminatory way in which Chinese were treated--today we would call it ethnic profiling--can be seen in the operating assumptions at the two chief immigrant inspection facilities: New York's Ellis Island, established in 1892, and San Francisco's Angel Island, established in 1910. The latter is sometimes called "the Ellis Island of the West," but that is a misnomer. Ellis Island, in its heyday, existed to facilitate immigration, and most of the people who passed through it did not even spend the night there. The medical examinations were largely perfunctory, except for those who had visible physical handicaps,50 and the rejection rate over most of its existence as a receiving station was in the neighborhood of 1 percent. Angel Island, on the other hand, existed to isolate and to impede the immigration of Chinese and, to a much lesser extent, Japanese and other Asians. Most Chinese applicants for admission were subjected to intense cross-examination; physical examinations were relatively thorough for all Chinese and included taking stool samples. Most of the recent literature about Angel Island stresses the difficulties and rejections, but even there rejection was a minority phenomenon. The currently available records do not permit precision, but perhaps 50,000 came in while perhaps 9,000 were barred, a rejection rate of about 18 percent.51
The experience of enforcing the Chinese exclusion laws was clearly a major influence in the formation of the immigration service's culture. Its officers were not fools: they came to understand very quickly that they faced a community conspiracy and that many of the Chinese people who came before them for admission were attempting to commit fraud. Most of them concluded that Chinese were "born liars" and could not be trusted under any circumstances. They seem not to have been able to understand that Chinese, whose business ethics were impeccable, found it perfectly acceptable to lie to them. As a result they tended to treat all Chinese entrants as if they were criminals.
It was relatively easy for these attitudes to shift from Chinese to other immigrants, particularly since a whole series of immigration commissioners drawn from the ranks of trade unions came to their posts with built-in prejudices against immigrants and persistently urged Congress to enact further restrictions. The actions of the federal courts further increased the power of immigration officials to make arbitrary decisions about who could and - could not enter the United States. In the words of Lucy Salyer:
The doctrines providing the foundation for immigration law arose out of struggles on the West Coast among Chinese immigrants, government officials, and federal judges over the enforcement of the Chinese exclusion laws. Though on the margins of society, Chinese immigrants in their resistance to exclusion laid claim to principles and practices--habeas corpus, due process, evidentiary rules, judicial review--that were at the heart of Anglo-American jurisprudence. Officials were faced with the choice of extending those core principles to Chinese, with the practical effect of undermining exclusionist aims and the symbolic effect of recognizing Chinese as functional, if not formal, members of the society with legitimate claims to its cherished legal heritage. Rejecting that option, government officials instead persuaded Congress and the Supreme Court that the nation's gates could be effectively guarded only if they were allowed full authority and discretion over immigration policy without interference from the federal courts. Ironically, in their efforts to secure the door against Chinese immigration, officials undermined the very principles they accused the Chinese of subverting. The immigration law resulting from this struggle stood at odds with one of the most esteemed Anglo-American legal principles--the rule of law.52
This contributed to create a bureaucracy unlike most other federal bureaucracies. While the Department of Agriculture spoke for farmers, the Department of Labor spoke for working people, and the Forest Service looked out for the trees, the immigration service, which became the Immigration and Naturalization Service (INS) in 1933, lobbied against the interests of legal immigrants, especially those of color and those who seemed to them un-American.
Copyright © 2004 by Roger Daniels