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Subject Area: Law
Topic: The American Revolution and Constitution

§ 58.: Prohibition of immigration.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 58.

Prohibition of immigration.—

Since the State owes no legal duty to a foreigner, and the foreigner has no legal right to a residence in a country of which he is not a citizen, a government may restrain and even absolutely prohibit immigration, if that should be the policy of the State. The policy of each State will vary with its needs. In this country, the need of immigration has been so great that we offer the greatest possible inducements to immigrants, to settle in our midst. So general and unrestricted has immigration been in the past, that a large class of our people have denied the right to refuse ingress to any foreigner, unless he is a criminal. As a sentiment, in conformity with the universal brotherhood of man, this position may be justified; but, as a living legal principle, it cannot be sustained. The government of a country must protect its own people at all hazards. Races are often too dissimilar to permit of their being brought into harmonious relations with each other under one government; and the presence in the same country of antagonistic races always engenders social and economical disturbances. If they are already citizens of the same country, as, for example, the negroes and the whites of the Southern States, there is no help for the evil but a gradual solution of the problem by self-adaptation to each other, or a voluntary exodus of the weaker race. But when an altogether dissimilar race seeks admission to the country, not being citizens, the State may properly refuse them the privilege of immigration. And this is the course adopted by the American government towards the Chinese who threaten to invade and take complete possession of the Pacific coast. After making due allowance for the exaggerations of the evil, there can be no doubt that the racial problem, involved in the Chinese immigration, was sufficiently serious to justify its prohibition. The economical problem, arising from a radical difference in the manners and mode of life of the Chinese, not to consider the charges of their moral depravity, threatened to disturb the industrial and social conditions of those States, to the great injury of the native population. It was even feared that the white population, not being able to subsist on the diet of the Chinese, and consequently being unable to work for as low wages, would be forced to leave the country; and as they moved eastward; the Chinese would take their place, until finally the whole country would swarm with the almond-eyed Asiatic. Self-preservation is the first law of nature, with States and societies, as with individuals. It can not be doubted that the act of Congress, which prohibited all future Chinese immigration, was within the constitutional powers of the United States.

A number of decisions have been rendered under the Chinese Exclusion Act, in all of which the constitutionality of the act has been sustained. In the case of In re Chae Chan Ping,1 the petitioner had been in this country and had departed prior to the enactment of the exclusion act, with a certificate of identification provided for by the prior law. The exclusion act expressly prohibits re-entry of such a person, who had not returned prior to the enactment of the exclusion act. The court say:—

“The certificate, it is urged, is a contract entered into between the United States and the petitioner in pursuance of the restriction act, which vests him with a right that cannot now be divested under the general principles of public justice, even though the constitutional provision against passing laws impairing the obligations of contracts is in terms only restrictive upon the States. We think this is not the correct view. There is no contract between the United States and individual Chinese laborers at all. The Chinese laborers obtain no rights under the acts of Congress beyond what is secured to them by the treaties. There is no consideration moving from them, individually or collectively, under the act of Congress, upon which a contract was founded. All the rights they have are derivative, namely, merely resting upon the stipulations of the treaty between the two governments, which are the contracting, and only contracting, parties. * * * The certificates are instruments of evidence, issued to afford convenient proof of the identity of the party entitled to enjoy the privileges secured by the treaties, and to prevent frauds, and they are so designated in the act. * * * To call these acts and certificates provided in pursuance thereof a contract would be an abuse of language. As between the two governments treaties are laws, and they confer rights and privileges as long as they are in force; and doubtless some rights accrue and become indefeasibly vested by covenants or stipulations that have ceased to be executory and have become fully executed, as in the case of title to property acquired thereunder. But we do not regard the privilege of going and coming from one country to another as one of this class of rights. The being here with the right of remaining is one thing, but voluntarily going away with a right at the time to return is quite another.”

In other cases,1 it was held that the Chinese Exclusion Act of Congress of 1892, was not unconstitutional, in that it provided that the person charged with the violation of the act is to be presumed guilty, i. e., of being unlawfully in this country, without the presentation of any evidence against him, until he established his innocence or right to be in this country by affirmative evidence. The reason which was assigned for justifying this departure from the common law in respect to the burden of proof in criminal cases, is that the facts which constitute a defense are peculiarly within the knowledge of the person charged.1

The United States government have also instituted police regulations for the purpose of preventing pauper immigration, and when an immigrant is without visible means of support, the steamship company which transported him is required to take him back. The purpose of these regulations itself suggests the reasons that might be advanced in justification of them, and, therefore, no statement of them is necessary.

[1]36 Fed. 431.

[1]In re Sing Lee, 54 Fed. 334, and In re Ching Jo, Id.

[1]But see, apparently, contra, as to what the act provides in respect to the burden of proof, United States v. Long Hop, 55 Fed. 58.