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§ 211. “Immigration.”

INTERNATIONAL ASPECT.—It is a recognised canon of international law and intercourse that every sovereign State has a paramount right to exclude from its borders all elements of foreign population which, for any reason, might retard its prosperity or be detrimental to the moral and physical health of its people. (Per Mr. Grover Cleveland, President of the United States of America; message to Congress re Chinese Exclusion Bill, 1st Oct., 1888.)

POLITICAL ASPECT.—Referring to the same subject from an ethnical and political point of view, Dr. Burgess says:—

“Let us suppose the case of a great colonial empire. Its life will depend, of course, upon the intensest nationality in that part of its territory which is the nucleus of the entire organization. It cannot suffer national conflicts to make this their battle ground. The reigning nationality is in perfect right, and pursues, from a scientific point of view, an unassailable policy, when it insists, with unflinching determination, upon ethnical homogeneity here. It should realize this, of course, through the peaceable means of influence and education, if possible. When, however, these shall have been exhausted in vain, then force is justifiable. A State is not only following a sound public policy, but one which is ethnically obligatory upon it, when it protects its nationality against the deleterious influences of foreign immigration. Every State has, of course, a duty to the world. It must contribute its just share to the civilization of the world. In order to discharge this duty, it must open itself, as freely as is consistent with the maintenance of its own existence and just interests, to commerce and intercourse, ingress and egress; but it is under no obligation to the world to go beyond these limits. It cannot be demanded of a State that it sacrifice itself to some higher good. It cannot fulfil its mission in that way. It represents itself the highest good. It is the highest entity. The world has as yet no organization into which a State may merge its existence. The world is as yet only an idea. It can give no passports which a State is bound to accept. The duty of a State to the world is a duty of which the State itself is the highest interpreter. The highest duty of a State is to preserve its own existence, its own healthful growth and development. So long as foreign immigration contributes to these, it is sound policy not only to permit, but to cultivate it. On the other hand, when the national language, customs, and institutions begin to be endangered by immigration, then the time has come for the State to close the gateways partly or wholly, as the case may require, and give itself time to educate the incomers into ethnical harmony with the fundamental principles of its own individual life. It is a most dangerous and reprehensible piece of demagogism to demand that a State shall suffer injury to its own national existence through an unlimited right of ingress; and it is an unendurable piece of deception, conscious or unconscious, when the claim is made from the standpoint of a superior humanity.” (Political Sci. I. pp. 42–3.)




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LEGAL POINT OF VIEW.—The legal aspect of the subject of political control over immigration was dealt with by the Privy Council in the celebrated case of Chun Teong Toy v. Musgrove (1891), App. Cas., 272, on appeal from the Supreme Court of Victoria, in which it was held that an alien has no legal right, enforceable by action, to enter British territory.

“Their Lordships would observe that the facts appearing on the record raise, quite apart from the statutes referred to, a grave question as to the plaintiff's right to maintain the action. He can only do so if he can establish that an alien has a legal right, enforceable by action, to enter British territory. No authority exists for the proposition that an alien has any such right. Circumstances may occur in which the refusal to permit an alien to land might be such an interference with international comity as would properly give rise to diplomatic remonstrance from the country of which he was a native, but it is quite another thing to assert that an alien excluded from any part of Her Majesty's dominions by the executive government there, can maintain an action in a British Court, and raise such questions as were argued before their Lordships on the present appeal—whether the proper officer for giving or refusing access to the country has been duly authorized by his own colonial government, whether the colonial government has received sufficient delegated authority from the Crown to exercise the authority which the Crown had a right to exercise through the colonial government if properly communicated to it, and whether the Crown has the right without Parliamentary authority to exclude an alien. Their Lordships cannot assent to the proposition that an alien refused permission to enter British territory can, in an action in a British Court, compel the decision of such matters as these, involving delicate and difficult constitutional questions affecting the respective rights of the Crown and Parliament, and the relations of this country to her self-governing colonies. When once it is admitted that there is no absolute and unqualified right of action on behalf of an alien refused admission to British territory, their Lordships are of opinion that it would be impossible upon the facts which the demurrer admits for an alien to maintain an action. Their Lordships, therefore, do not think it would be right on the present appeal to express any opinion upon the question which was elaborately discussed in the very learned judgments delivered in the Court below—viz., what rights the executive government of Victoria has, under the constitution conferred upon it, derived from the Crown. It involves important considerations and points of nicety which could only be properly discussed when the several interests concerned were represented, and which may never become of practical importance.” (1891, App. Cas. 282.)

For further discussion of the right of the Crown to exclude aliens, see an article on “Alien Legislation and the Prerogative of the Crown,” by T. C. Haycraft, Law Quarterly Review, 1894, p. 165; and an article in the Weekly Notes (N.S.W.), 26 Sept., 1891.

RESTRICTIVE IMMIGRATION LAWS.—In 1855 the Legislative Council of the newly erected colony of Victoria led the way in the passage of a number of laws intended to restrict Chinese immigration, which commenced in 1854, when the fame of the gold diggings of Victoria began to attract thousands of Chinamen to that colony. The Victorian Council passed a bill, which was assented to by the Governor, “to make provision for certain immigrants.” The substance of the law was that no ship should bring to a Victorian port more passengers, being Chinese immigrants, than in the proportion of one person to every ten tons of the tonnage of such ship, under a penalty of £10 for each passenger in excess of such proportion. On the arrival of a ship in any port of Victoria, with Chinese immigrants on board, the master was required to pay to the Collector of Customs a tax of £10 for every such immigrant. The money so collected was to be invested by the Government to form a fund for the relief, support, and maintenance of such immigrants. Provision was made for the registration of such immigrants, on their arrival in any district or place to which they proceeded. This and other immigration laws were consolidated in 1865.

Similar legislation was adopted in New South Wales in 1861. Her Majesty was not advised to disallow any of these Acts, although the Colonial Secretary remonstrated, and declared “that exceptional legislation, intended to exclude from and part of Her Majesty's dominions the subjects of a State at peace with Her Majesty, is highly objectionable in principle.” (Lord Carnarvon's Despatch to Governor Cairns, 27th March, 1877.) Those Acts were subsequently repealed, to the satisfaction, it is said, of


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Her Majesty's Government; but they were eventually succeeded by legislation of a more drastic character adopted in all the Australian Colonies, in order to repel the Chinese invasion.

In 1876 the Queensland Parliament passed a bill to amend the Gold Fields Act of 1874, so far as it related to Asiatic and African aliens, and to demand an increased license fee from such aliens, with a view to discouraging excessive immigration. Governor Cairns considered that this bill was one of an extraordinary nature, which might possibly involve a breach of national comity by restraining Chinese immigration into Queensland, and that as such it was contrary to the treaty of Tien-Tsin and the Convention of Pekin of 24th October, 1860. Accordingly he reserved the bill for the signification of Her Majesty's pleasure. The Queensland Ministry protested against the reservation, and in a minute to the Governor expressed the opinion that it was of the utmost importance that the authority of the Colonial legislatures to pass laws upon all subjects whatever which they might think necessary for the good government of the colony should be recognized and upheld, and that no other limit to that power should be admitted, than that which was imposed by the royal instructions to the Governor. They thought that to go beyond those instructions, or to allow the unusual character of proposed legislation, not forbidden by them, as a sufficient ground for not giving immediate effect to the wish of the legislature, would be of serious consequence to the independence and freedom of Parliament. (Todd's Parl. Gov. in Col. 2nd ed. p. 188)

In a despatch, dated 26th March, 1877, Earl Carnarvon expressed his approval of the Governor's conduct, and of the reasons which had actuated him. For these and other reasons, although he was most unwilling even to appear to infringe upon the privileges of self-government enjoyed by the inhabitants of Queensland—he had been unable to advise the Queen that this bill should receive the royal assent in its present shape.

During the session of 1877 the Queensland Legislature passed another Act to regulate the immigration of Chinese and to prevent them from becoming a charge on the colony. A poll tax of £10 was imposed on every Chinese immigrant, to be refunded to him if he left the colony within three years without having committed any criminal offence, and without having received charitable relief from any public institution. This Act was not disallowed. The Act of 1877, amended by another Act passed in 1878, was found insufficient to restrict the objectionable immigration. In 1884 the Act of 1877 was amended by reducing the number of Chinese passengers that might be brought into Queensland waters to one for every fifty tons of registered tonnage, by increasing the sum payable on arrival to £30, and by repealing the provision for the repayment of the poll-tax on departure within three years. “The effect of the law of 1884 has been that the number of Chinese arriving in Queensland by sea has been in each year somewhat less than the number of those departing. The easy means of transit by land between the various Australian colonies, however, renders it impossible to exercise any effective control over their migration across the borders of the colonies.” (Todd's Parl. Gov. in Col. 2nd ed. p. 191.)

In 1879 an Anti-Chinese Influx Bill, containing prohibitions and restrictions similar to those of the Queensland law then in force, was passed by the Legislative Assembly of New South Wales, but rejected by the Legislative Council. In 1881 a similar bill was re-introduced and passed by both Houses. In the same year the Parliament of Victoria again resorted to legislation in order to arrest the influx of Chinese. Vessels were not allowed to introduce into any Victorian port more than one Chinaman per 100 tons of tonnage, and a poll-tax of £10 was imposed on each immigrant on his landing. In April, 1888, a Chinaman, Chun Teeong Toy, arrived in the port of Melbourne on board the British ship Afghan. The Collector of Customs considered that the Afghan had brought a larger number of Chinese than was allowed by law; he refused to allow any of them to land, or to accept the poll-tax of £10 each. Chun Teeong Toy brought an action against the Collector in the Supreme Court of Victoria, which decided that the action of the


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Government in preventing the landing of Chinese prepared to pay the prescribed poll-tax was illegal. The Victorian Government appealed from this decision to the Privy Council, which reversed the judgment of the Victorian Court, and held (1) that the Collector of Customs was under no legal obligation to accept payment, whether tendered by the master on behalf of any such immigrants, or tendered by or for any individual immigrant; (2) that, apart from the Act, an alien has not a legal right, enforceable by action, to enter British territory. (Chun Teeong Toy v, Musgrove [1891], App. Cas. 272.)

An intercolonial Conference was held in June, 1888, at which the Governments of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia were represented. The Chinese immigration question was considered, and the following resolutions were adopted as embodying the views of the majority of the colonies:—

  • (1.) That in the opinion of this Conference the further restriction of Chinese immigration is essential to the welfare of the people of Australasia.
  • (2.) That this Conference is of opinion that the desired restriction can best be secured through diplomatic action of the Imperial Government and by uniform Australasian legislation.
  • (3.) That this Conference resolves to consider a joint representation to the Imperial Government for the purpose of obtaining the desired diplomatic action.
  • (4.) That this Conference is of opinion that the desired Australasian legislation should contain the following provisions:—
    • (a) That it shall apply to all Chinese, with specified exceptions.
    • (b) That the restriction should be by limitation of the number of Chinese which any vessel may bring into any Australasian port, to one passenger to every 500 tons of the ship's burthen.
    • (c) That the passage of the Chinese from one colony to another, without the consent of the colony which they enter, be made a misdemeanour.

Some of the colonies at once adopted legislation in accordance with the resolutions arrived at. In Victoria an Act was passed providing that no vessel should enter any Victorian port having on board more than one Chinaman for every 500 tons of the tonnage of such vessel. Any Chinese who should enter Victoria by land, without first obtaining a permit in writing from some person to be appointed by the Governor in Council, was declared guilty of an offence against the Act, and made liable on conviction to a penalty of not less than £5 nor more than £20, and also, upon the warrant of the Commissioner of Trade and Customs, to be removed or deported to the colony from whence he came. (Chinese Immigration Restriction Act, 1888, sec. 9.)

In about 1895 danger began to be apprehended from the increasing immigration of Indians, Afghans, and other Asiatics, many of whom were British subjects. At an intercolonial Conference held at Sydney in March, 1896, at which all the Australian colonies except Western Australia were represented, it was unanimously resolved that the provisions of the Chinese Immigration Restriction Acts should be extended to all coloured races. During 1896, accordingly, Coloured Races Restriction Bills were passed in New South Wales, South Australia, and Tasmania, and an Asiatic Restriction Bill in New Zealand. These Bills were reserved for the signification of the Queen's pleasure, but did not receive Her Majesty's assent. The presence of the Australian Premiers at the Jubilee celebrations in London in 1897 afforded Mr. Chamberlain an opportunity of explaining the views of the Imperial Government as to this kind of legislation. He expressed entire sympathy with the determination of the Australian colonies to prevent the influx of people who were alien in civilization, in religion, and in customs, and who interfered with the legitimate rights of the existing labouring population. Such an


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influx must be prevented at all hazards; but he asked the Premiers to remember the traditions of the Empire, which make no distinctions of race or colour, and pointed out that the exclusion of all Her Majesty's Indian subjects, or even of all Asiatics, would be so offensive to those people that it would be most painful to Her Majesty to sanction it. He therefore urged them to base their prohibitive legislation, not upon race or colour, but upon the really objectionable characteristics of the immigrants legislated against; and he instanced, as a type of legislation which the Imperial Government would think satisfactory, the Immigration Restriction Act of 1897 recently passed in Natal—a measure which was being found adequate in that colony to meet the same evil.

The Natal Act defined six classes of “prohibited immigrants.” The first and most important class consisted of persons who, when asked to do so by an authorized officer, should fail to “write out and sign, in the characters of any language of Europe” an exemption application in the prescribed form. The other classes of “prohibited immigrants” were:—(2) Paupers, or persons likely to become a public charge; (3) idiots or insane persons; (4) persons suffering from a loathsome or contagious disease; (5) persons convicted within two years of a crime involving moral turpitude, and not being merely a political offence; (6) prostitutes, and persons living on the prostitution of others. Subject to certain exemptions and exceptions, the immigration of a “prohibited immigrant” was forbidden; any immigrant contravening the Act was made liable to removal from the colony, and upon conviction to be sentenced to six months' imprisonment; which imprisonment should cease for the deportation of the offender, or if he should find sureties for his departure within one month. Masters and owners of vessels illegally landing immigrants were made liable to heavy penalties.

Accordingly a Bill, almost identical with the Natal Act, was introduced in the Legislative Assembly of New South Wales. It was amended in the Council by the omission of all the classes of “prohibited immigrants” except the first—which was relied on as the real safeguard against the immigration of Asiatic and other coloured races. In this form it became law, as the Immigration Restriction Act, 1897. In Victoria a similar Bill was introduced, but failed to pass owing to disagreement between the two Houses. In Western Australia in 1897, in Tasmania in 1898, and in New Zealand in 1899, Immigration Restriction Acts, almost identical with the Natal Act, were passed.

IMMIGRATION IN CANADA.—In Canada, the Dominion and the Provinces have concurrent power to legislate concerning immigration, but any law of a Province with respect to that subject is void if it be repugnant to Dominion Legislation. In 1878 the Provincial legislatures of British Columbia passed an Act “to provide for the better collection of Provincial taxes from Chinese.” It required every Chinaman, above the age of 12 years, to take out a quarterly license, for which he had to pay ten dollars in advance. This license fee was to be in lieu of the ordinary taxation payable by the people generally for public purposes. Any Chinaman failing to take out the license was liable to a severe penalty. Nominally a tax Act, it was in reality, like the first anti-Chinese Act passed in Queensland, intended to restrict Chinese immigration. An action was commenced in the Supreme Court of British Columbia to test its validity. The judgment of the Court was delivered by Mr. Justice Gray, who held that the Act was beyond the power of the Provincial legislature; that it was at variance with the treaty obligations of Great Britain and China; that it related to a matter affecting trade and commerce, which belonged to the Dominion Parliament; and that therefore it was unconstitutional and void. This Act was afterwards disallowed by the Governor-General in Council, who considered it inadvisable to permit an Act which had been pronounced ultra rires to remain on the statute book. (Todd's Parl. Gov. in Col. 2nd ed. pp. 194 and 557.)

Undiscouraged by the failure of its first attempt to grapple with the Chinese problem, the legislature of British Columbia, in 1884, passed another Act regulating the Chinese


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population of the Province. In 1885 Wing Chong, a Chinaman, was convicted and fined before a magistrate for not having a license under the Act of 1884. He obtained a writ of certiorari for the removal of the case to the Supreme Court of British Columbia; and Crease, J., one of the Judges of that Court, quashed the conviction on the ground, inter alia, that the Act was ultra vires the legislature of the Province. It appears that there could be no appeal from this decision to the full Court; but on the ground of the great public importance of the question, special leave to appeal to the Privy Council was asked for and granted. The appeal, however, was not prosecuted. (Reg. v. Wing Chong, 1 Brit. Columb. Rep., Part ii., p. 150; Wheeler, C.C. 122.)

Yielding to the representations of the Provincial Government as to the necessity of central legislation, the Dominion Government at length appointed a royal commission to enquire and report on the question in all its bearings. As the result of this report the Parliament of the Dominion in 1885 passed an Act to restrict and regulate Chinese immigration into Canada, the principal features of which were:—(1) A poll tax of $50 on each Chinaman landing; (2) No vessel to carry more than one Chinaman to every 50 tons of its tonnage; (3) Every Chinaman wishing to leave Canada with the intention of returning, on giving notice of such intention at the port of departure and surrendering his certificate of entry or of residence, to receive, on payment of a fee of one dollar, a certificate of leave to depart and return. In 1891, there were about 109,127 Chinamen in Canada, of whom 8900 were located in British Columbia. (Todd. Id. p. 195.)

IMMIGRATION IN THE UNITED STATES OF AMERICA.—Congress has not been assigned express power to deal with immigration; nevertheless it has been held that the Government of the United States, through the action of its legislative department, can exclude aliens from its territory.

Jurisdiction over its own territory, to that extent, is an incident of every independent nation. It is a part of its independence, and one method whereby it is enabled to maintain its independence from control of another power. “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.” (Chief Justice Marshall in The Exchange v. McFaddon, 7 Cranch, 136, cited and approved in the Chinese Exclusion Case, 130 U.S. 604. Baker, Annot Const. p. 17.)

In the United States of America similar difficulties have been experienced in dealing with undesirable immigrants, such as Chinese, and there have been several conflicts between State laws and Federal laws with respect to that subject. In Ling Sing v. Washburn, 20 Calif. Rep 534, and in The People v. Raymond, 34 Calif. Rep. 492, legislation directed by the State of California against the Chinese was pronounced unconstitutional by the Supreme Court of that State. In the case of Baker v. The City of Portland (U.S.) L.T. 18 Oct., 1879, p. 403, the question arose as to the validity of an Act of the State legislature in prohibiting the employment of Chinese labourers on public works. The circuit court of the United States, in the Oregon district, pronounced the law unconstitutional on the ground that a treaty between the Federal Government and a foreign power was the supreme law of the land, which the courts were bound to enforce, and that an individual State could not so legislate as to interfere with the operation of a treaty or to limit the privileges guaranteed thereby. (Todd's Parl. Gov. in Col., 2nd ed. p. 196.)

In 1879 Congress passed an Act to discourage Chinese immigration, by restricting the number of Chinese which might be brought from China to the United States in a single voyage, to fifteen persons. The president, Mr. Rutherford B. Hayes, vetoed the bill, on the ground that it was repugnant to the terms of a treaty between the United States and China, and that the power of modifying treaties was not vested in Congress,


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but belonged to the Executive. In 1880 a new treaty was negotiated between the United States and China. By this treaty it was agreed that the United States Government should be allowed to regulate the admission of Chinese labourers at its discretion, but not to forbid it altogether. In March, 1888, a fourth treaty was entered into between the United States and China, which provided that thereafter no Chinese labourer should be entitled to enter the States. This, like other treaties, was subject to the ratification of the Senate. The Senate amended it by adding a proviso that Chinese labourers formerly resident in the United States should not be allowed to return thither whether they held certificates of former residence or not. The Chinese Government refused to accept this amended treaty. A bill was then brought into the House of Representatives containing a prohibition similar to that added to the treaty by the Senate. It was passed without a division, agreed to by the Senate, and ultimately assented to by the President on 1st October, 1888.

ASSISTED IMMIGRATION.—The Parliament will have power, not only to exclude undesirable aliens, but also to facilitate the introduction of industrious and respectable immigrants, likely to become workers, producers, and consumers within the Commonwealth. Assisted immigration, which at one time was the policy of most of the Australian colonies, has within the last few years been very sparingly resorted to.

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