Comparative Perspectives: Asian Immigrants in Canada and Australia

1. Comparative Perspectives:Asian Immigrants in Canada and Australia Asian Americans and the Law Dr. Steiner

2. Chinese Populationin British Columbia • British Columbia has a “gold rush” in the late 1850s and 1860s • Chinese population initially peaks at about 4,000 in 1860 and is around 1,500 in 1870 • Chinese was about 15 to 40 percent of fluctuating white population • By early 1920s, more than 20,000 Chinese lived in British Columbia (in early 1880s were more 20% of the white population; but less than 6% in 1921)

5. Victoria British Colonist,July 6, 1861 • We have plenty of room for many thousands of Chinamen. And notwithstanding they may not bring their wives with them to settle permanently in the country, nor build school-houses, churches, or acquire our language, but continue to live and work among themselves, yet there can be no shadow of a doubt but their industry enables them to add very largely to our own revenues.

6. A. Allan, 1870 • There are few claims at present working on the creek bed but what few these are, are entirely worked by Chinamen while dozens of white men are loafing around on the point of starvation. It makes my very blood boil to see these d__d heathen enjoying the comforts of life while poor white men have to go many a day with an empty stomach. It is an uncontroverted fact that the Chinamen are a curse to any country they inhabit and the blight they have caused by their presence here is every day more apparent.

10. Workingmen’s Protective Association (Victoria 1878) • Advocated “the mutual protection of the working classes of British Columbia against the great influx of Chinese” • Required members to pledge they would “neither aid nor abet or patronise Chinamen in any way what ever or patronise those employing them” • Promised to “use all legitimate means for their expulsion from the country”

22. Tangling with our statesmen’s brains— Cutting down our workmen’s gains— Found in every nook and spot Where a dollar’s to be got; Furnishing a fruitful theme, O’er which demagogues may scream; Figuring in every jail, The zero of the social scale; Quick to dodge his taxes payment, Strange in language, strange in raiment. A problem at present—in future to be Perhaps, something worse—is the Heathen Chinee • Poem read at Mechanics Institute, Victoria, B.C. (Dec. 1881)

23. Senate Debates, Government of Canada, 1886 • The main objection to the Chinese is that they are not of our race and cannot become a part of ourselves. We cannot build up a homogenous people in Canada with races of that description, a population totally alien to ours.

24. C. Sivertz, Victoria Trades and Labor Council, 1906 • The people of India, in common with all Asiatic races, are reared and nurtured in and under the influence of civilization and environments that seem to be, in principle, totally opposed to the civilization and environments under which we of the Western civilization are born and reared. In practice they are certainly are found to be both unwilling and incapable of assimilating with the people of the western races who have settled and developed this country. . . .

25. R.G. MacBeth,Chinese and Japanese, 1910 • In addition, it ought to be said, that the Japanese, while remaining here in large measure unassimilated, are more vain and aggressive. They are not content to do the lower an, in some senses, the more menial work as the Chinese are: they will not be hewers of wood and drawers of water; they push themselves into every avenue of business, and at the present time, for instance, they have practically pushed white men out of extensive fishing industry of British Columbia.

26. Chinese Taxation Act (1878) • British Columbia passed a Chinese Taxation Act, which assessed a quarterly tax on every Chinese resident over the age of 12. • The act was apparently based upon similar legislation from Queensland, Australia • Violating the act could result in heavy fines, seizure of property, and imprisonment • Chinese struck throughout Victoria, merchants refused to sell to whites, vegetable peddlers stopped making their rounds, domestic servants left their employers’ homes

27. Tai Sing v. Maguire (1878)John Hamilton Gray, J. • Chinese merchants who had property seized challenged the act in court • The issue before Judge Gray was the constitutionality of the act

28. What California case is found to be analogous? • In arriving at a conclusion, I have been materially assisted by a leading decision in the Supreme Court of the State of California (Lin Sing v. Washburn, 20, California Reports, 534), in which the facts and points raised are almost identical with those in the case now before this Court, except that in the California case the Act of the Legislature boldly and openly avowed its object, viz., “to protect free white labour against competition with Chinese coolie labour, and discourage the immigration of Chinese into the State of California.”

29. Lin Sing v. Washburn, 20 Cal. 534 (1862) • The act cannot be maintained as a police regulation. This branch of the police power has been surrendered to the federal government as a part of the power to regulate commerce; and its exercise by a State is incompatible with the authority of the government.

30. Lin Sing v. Washburn, 20 Cal. 534 (1862) • The question of the power of the States to exclude obnoxious persons, such as paupers and fugitives from justice, is not involved; for it does not appear that the Chinese as a class are of that description; nor does the act pretend to deal with them as such. They are not by the act denied a residence in the State, but are taxed for the privilege of residing here, without reference to their condition or character. • The Chinese may be taxed as other residents; but they cannot be set apart as special subjects of taxation, and be compelled to contribute to the revenue of the State in their character of foreigners.

31. How is the constitutional framework of British Columbia different from that of California? • In the United States all powers not specifically conceded by the several States to the Federal Government were still to remain with the several States. In Canada, on the contrary, all powers not specifically conceded by the Imperial Parliament, in the proposed Constitution, to the separate Provinces were to remain with the Federal Government. The source of power was exactly reversed.

32. Does that difference between B.C. and California make the California case a stronger or weaker precedent? • In every way, therefore, in the legal aspect of the case, both as to the original inherent power, and the less distinctive and marked concession, the position of California was stronger than that of British Columbia, while the latter is relieved from all conflict on the question of concurrent jurisdiction by the express terms of the Federal compact of the Dominion.

33. Holding of the court? • Looking at the British Columbia Act in the light of these authorities, we find, in the first place, it goes far beyond the California Act, in Lin Sing v. Washburn, declared to be unconstitutional. It is not a licence to do business; it can barely be called a licence of residence; it is more simply a three months' permit of existence in British Columbia.

34. Victoria Standard, Oct. 1878 The Chinese are triumphant, the nasty heathen band Can now roam unmolested o’er this bright golden land And Victorians may be sure that at no very distant day The Chinese flag will wave on the [Legislative] buildings o’er The [James] Bay.

35. An Act to prevent Chinese from acquiring Crown Lands (1884) • It shall not be lawful for a Commissioner . . . or any other person, to issue a pre-emption record of any Crown land, or sell any portion therof, to any Chinese, nor grant authority under the said Act to any Chinese to record or divert any water from the natural channel of any stream, lake or river in this Province.

36. An Act to prevent Chinese from acquiring Crown Lands (1884) • The term Chinaman in this Act shall mean any native of the Chinese Empire or its dependents, and shall include any persons of the Chinese race.

37. An Act to prevent the Immigration of Chinese (1884) • The word “Chinese” in this Act shall mean and include any native of China and its dependencies, or of any islands in the Chinese Seas, not born of British parents, or any person born of Chinese parents.

38. An Act to prevent the Immigration of Chinese (1884) • It shall be unlawful for any Chinese to come into the Province of British Columbia, or any part thereof. Any Chinese who hereafter shall come into British Columbia, shall forfeit and pay the sum of fifty dollars. . . .

39. Head Tax • In 1884, tax was $50 under B.C. statute • In 1885 federal Restriction Act, $50 tax imposed • In 1895, the legislature increased the tax to $100 • In 1903, the tax was increased to $500

40. An Act to regulate the Chinese population of British Columbia (1884)

41. An Act to regulate the Chinese population of British Columbia (1884) • Section 3: $10 annual tax on all Chinese over the age of fourteen years • Section 14: Chinese had to pay $15 instead of $5 for a miner’s certificate

42. Regina v. Wing Chong (1885)Henry Pellew Crease, J. • A Chinese resident of Victoria was fined by a magistrate for not having the license required under the Act to regulate the Chinese population of British Columbia

43. The “petitio principii” • It starts with a recital, in itself a petitioprincipii—not apparently the result of any public enquiry—which charges them with being not law-abiding, dissimilar in habits and occupation to the whites—useless in emergencies, habitual desecrators of grave-yards, unsuited to our laws, and of habits subversive of the community.

44. An Act to regulate the Chinese population of British Columbia

45. Section 23 criticizes the statute for what shortcoming? • It isn’t based upon “innocent until proven guilty.” • Section 27 places in the hand of the local executive the construction from time to time of further rules and regulations to enforce the Act, and a fitting summary to such a premiss in section 28 reverses all the old law of England and one of the most cherished and priceless safeguards of the freedom from oppression won for us by our forefathers—that no one shall be deemed guilty until he has been proved so—throws on the defendant, white or yellow, the burden of proving that he is exempt from the operation of its arbitrary provisions.

46. What is the framework of governance and why is it important for the court’s conclusions? • Neither she nor any other of the Provinces possess any other powers of legislation than are conferred by that Act. If British Columbia, or any other Province, in its legislation, goes beyond that Act and in excess of its provisions, that moment, and to the extent of such transgression, it ceases to be law. Therefore, in dealing with this question, our constitutional Act must be kept in view throughout, as the measure by which we must continually gauge the legality or illegality of the provisions of the local statute under consideration.

47. According to section 34, what is the purpose of the Act to Regulate the Chinese Population of British Columbia? • On applying to the preamble, we find that it looks like a bill of indictment as against a race not suited to live among a civilized nation, and certainly does not prepare one for legislation which would encourage or tolerate their settlement in the country. Indeed, the first lines of the preamble sound an alarm at the multitude of people coming in, who are of the repulsive habits described in the last part of the preamble, and prepares one for measures which should have a tendency to abate that alarm by deterrent influences and enactments which should have the effect of materially lessening the number of such undesirable visitors.

48. Why, according to sections 46-47, does the court pay special attention to California cases? • The reports of the higher California courts are of great authority for us on all Chinese questions, for there have been efforts for years past to restrict Chinese immigration in California, and the matter has been constantly before the superior courts there, and the judges there (if we may take the reports as correct) are more than ordinarily skilled in laying down the law correctly in constitutional points of that nature. Indeed, there is no other country which has such experience generally in constitutional law as applicable to a federation of states.

49. Why, according to sections 46-47, does the court pay special attention to California cases? • Of course, in all the observations I make I recognize the now well-known distinction between the relations of a State of the Union to the Federal Government, and our relation as a Province to the Dominion. Still both Federal Governments have reserved to themselves the regulation of trade and commerce and naturalization and aliens; so the analogy is so close as to become almost a direct authority.

50. If left undisturbed, what might this statute lead to? • In other words, every Chinese is guilty until proved innocent – a provision which fills one conversant with subjects with alarm; for if such a law can be tolerated as against Chinese, the precedent is set, and in time of any popular outcry can easily be acted on for putting any other foreigners or even special classes among ourselves, as coloured people, or French, Italians, Americans, or Germans, under equally the same law.