Comparative Perspectives: Asian Immigrants in Canada and Australia

Comparative Perspectives:Comparative Perspectives:Asian Immigrants in Canada Asian Immigrants in Canada

and Australiaand Australia

Asian Americans and the LawAsian Americans and the Law

Dr. SteinerDr. Steiner

Chinese PopulationChinese Populationin British Columbiain British Columbia

British Columbia has a “gold rush” in the late British Columbia has a “gold rush” in the late 1850s and 1860s1850s and 1860sChinese population initially peaks at about 4,000 Chinese population initially peaks at about 4,000 in 1860 and is around 1,500 in 1870in 1860 and is around 1,500 in 1870Chinese was about 15 to 40 percent of Chinese was about 15 to 40 percent of fluctuating white populationfluctuating white populationBy early 1920s, more than 20,000 Chinese lived By early 1920s, more than 20,000 Chinese lived in British Columbia (in early 1880s were more in British Columbia (in early 1880s were more 20% of the white population; but less than 6% in 20% of the white population; but less than 6% in 1921) 1921)

Victoria Victoria British ColonistBritish Colonist,,July 6, 1861July 6, 1861

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

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

Workingmen’s Protective Workingmen’s Protective Association (Victoria 1878)Association (Victoria 1878)

Advocated “the mutual protection of the Advocated “the mutual protection of the working classes of British Columbia working classes of British Columbia against the great influx of Chinese”against the great influx of Chinese”Required members to pledge they would Required members to pledge they would “neither aid nor abet or patronise “neither aid nor abet or patronise Chinamen in any way what ever or Chinamen in any way what ever or patronise those employing them”patronise those employing them”Promised to “use all legitimate means for Promised to “use all legitimate means for their expulsion from the country”their expulsion from the country”

Tangling with our statesmen’s brains—Tangling with our statesmen’s brains—Cutting down our workmen’s gains—Cutting down our workmen’s gains—Found in every nook and spotFound in every nook and spotWhere a dollar’s to be got;Where a dollar’s to be got;Furnishing a fruitful theme,Furnishing a fruitful theme,O’er which demagogues may scream;O’er which demagogues may scream;Figuring in every jail,Figuring in every jail,The zero of the social scale;The zero of the social scale;Quick to dodge his taxes payment,Quick to dodge his taxes payment,Strange in language, strange in raiment.Strange in language, strange in raiment.A problem at present—in future to beA problem at present—in future to bePerhaps, something worse—is the Heathen ChineePerhaps, something worse—is the Heathen Chinee

Poem read at Mechanics Institute, Victoria, B.C. (Dec. 1881)Poem read at Mechanics Institute, Victoria, B.C. (Dec. 1881)

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

C. Sivertz, Victoria Trades and C. Sivertz, Victoria Trades and Labor Council, 1906Labor Council, 1906

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

R.G. MacBeth,R.G. MacBeth, Chinese and JapaneseChinese and Japanese, 1910, 1910

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

Chinese Taxation Act Chinese Taxation Act (1878)(1878)British Columbia passed a Chinese Taxation British Columbia passed a Chinese Taxation Act, which assessed a quarterly tax on every Act, which assessed a quarterly tax on every Chinese resident over the age of 12. Chinese resident over the age of 12.

The act was apparently based upon similar The act was apparently based upon similar legislation from Queensland, Australialegislation from Queensland, Australia

Violating the act could result in heavy fines, Violating the act could result in heavy fines, seizure of property, and imprisonmentseizure of property, and imprisonment

Chinese struck throughout Victoria, merchants Chinese struck throughout Victoria, merchants refused to sell to whites, vegetable peddlers refused to sell to whites, vegetable peddlers stopped making their rounds, domestic servants stopped making their rounds, domestic servants left their employers’ homesleft their employers’ homes

Tai Sing v. MaguireTai Sing v. Maguire (1878) (1878)John Hamilton Gray, J.John Hamilton Gray, J.

Chinese merchants who had Chinese merchants who had property seized challenged property seized challenged the act in court the act in court

The issue before Judge Gray The issue before Judge Gray was the constitutionality of was the constitutionality of the actthe act

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

Lin Sing v. WashburnLin Sing v. Washburn, 20 Cal. 534 (1862), 20 Cal. 534 (1862)

The act cannot be maintained as a police The act cannot be maintained as a police regulation. This branch of the police power regulation. This branch of the police power has been surrendered to the federal has been surrendered to the federal government as a part of the power to government as a part of the power to regulate commerce; and its exercise by a regulate commerce; and its exercise by a State is incompatible with the authority of State is incompatible with the authority of the government.the government.

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

How is the constitutional framework of British

Columbia different from that of California?

In the United States all powers not In the United States all powers not specifically conceded by the several specifically conceded by the several States to the Federal Government were States to the Federal Government were still to remain with the several States. In still to remain with the several States. In Canada, on the contrary, all powers not Canada, on the contrary, all powers not specifically conceded by the Imperial specifically conceded by the Imperial Parliament, in the proposed Constitution, Parliament, in the proposed Constitution, to the separate Provinces were to remain to the separate Provinces were to remain with the Federal Government. The source with the Federal Government. The source of power was exactly reversed. of power was exactly reversed.

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 In every way, therefore, in the legal aspect of the case, both as to the original inherent of the case, both as to the original inherent power, and the less distinctive and marked power, and the less distinctive and marked concession, the position of California was concession, the position of California was stronger than that of British Columbia, stronger than that of British Columbia, while the latter is relieved from all conflict while the latter is relieved from all conflict on the question of concurrent jurisdiction on the question of concurrent jurisdiction by the express terms of the Federal by the express terms of the Federal compact of the Dominion.compact of the Dominion.

Holding of the court?Holding of the court?

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

Victoria Victoria Standard, Standard, Oct. 1878Oct. 1878

The Chinese are triumphant, the nasty heathen bandThe Chinese are triumphant, the nasty heathen bandCan now roam unmolested o’er this bright golden landCan now roam unmolested o’er this bright golden landAnd Victorians may be sure that at no very distant dayAnd Victorians may be sure that at no very distant dayThe Chinese flag will wave on the [Legislative] The Chinese flag will wave on the [Legislative] buildings o’er The [James] Bay.buildings o’er The [James] Bay.

An Act to prevent Chinese from An Act to prevent Chinese from acquiring Crown Lands (1884)acquiring Crown Lands (1884)

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

An Act to prevent Chinese from An Act to prevent Chinese from acquiring Crown Lands (1884)acquiring Crown Lands (1884)

The term Chinaman in this Act shall The term Chinaman in this Act shall mean any native of the Chinese Empire mean any native of the Chinese Empire or its dependents, and shall include any or its dependents, and shall include any persons of the Chinese race.persons of the Chinese race.

An Act to prevent the Immigration An Act to prevent the Immigration of Chinese (1884)of Chinese (1884)

The word “Chinese” in this Act shall mean The word “Chinese” in this Act shall mean and include any native of China and its and include any native of China and its dependencies, or of any islands in the dependencies, or of any islands in the Chinese Seas, not born of British parents, Chinese Seas, not born of British parents, or any person born of Chinese parents.or any person born of Chinese parents.

An Act to prevent the Immigration An Act to prevent the Immigration of Chinese (1884)of Chinese (1884)

It shall be unlawful for any Chinese to It shall be unlawful for any Chinese to come into the Province of British come into the Province of British Columbia, or any part thereof. Any Columbia, or any part thereof. Any Chinese who hereafter shall come into Chinese who hereafter shall come into British Columbia, shall forfeit and pay the British Columbia, shall forfeit and pay the sum of fifty dollars. . . .sum of fifty dollars. . . .

Head TaxHead TaxIn 1884, tax was $50 under B.C. statuteIn 1884, tax was $50 under B.C. statute

In 1885 federal Restriction Act, $50 tax In 1885 federal Restriction Act, $50 tax imposedimposed

In 1895, the legislature increased the tax In 1895, the legislature increased the tax to $100to $100

In 1903, the tax was increased to $500In 1903, the tax was increased to $500

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

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

Section 3: $10 annual tax on all Chinese Section 3: $10 annual tax on all Chinese over the age of fourteen yearsover the age of fourteen years

Section 14: Chinese had to pay $15 Section 14: Chinese had to pay $15 instead of $5 for a miner’s certificateinstead of $5 for a miner’s certificate

Regina v. Wing ChongRegina v. Wing Chong (1885) (1885)Henry Pellew Crease, J.Henry Pellew Crease, J.

A Chinese resident of A Chinese resident of Victoria was fined by a Victoria was fined by a magistrate for not having magistrate for not having the license required under the license required under the Act to regulate the the Act to regulate the Chinese population of Chinese population of British Columbia British Columbia

The “petitio principii”The “petitio principii”

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

An Act to regulate the Chinese An Act to regulate the Chinese population of British Columbiapopulation of British Columbia

Section 23 criticizes the statute for what shortcoming?

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

What is the framework of governance and why is it important for the court’s conclusions?

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

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

Why, according to sections 46-47, does the court

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

Why, according to sections 46-47, does the court

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

If left undisturbed, what might this statute lead to?

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

Regina v. Mee WahRegina v. Mee Wah (1886) (1886)(Matthew Baillie Begbie, J.)(unreported)(Matthew Baillie Begbie, J.)(unreported)

City of Victoria bylaw extended municipal power City of Victoria bylaw extended municipal power to include “licensing and regulating wash-houses to include “licensing and regulating wash-houses and laundries” and to impose a license fee of up and laundries” and to impose a license fee of up to $75 every six months.to $75 every six months.

Bylaw challenged by Chinese laundry operator.Bylaw challenged by Chinese laundry operator.

Begbie found city charging differential license Begbie found city charging differential license fee probably outside limits of province’s fee probably outside limits of province’s jurisdiction and definitely unconstitutional jurisdiction and definitely unconstitutional because it discriminated against a particular because it discriminated against a particular class of personsclass of persons

Regina v. Mee WahRegina v. Mee WahBegbie cited four decisions from federal Begbie cited four decisions from federal circuit courts in California and Oregon, and circuit courts in California and Oregon, and quoted Field’s decision in the “Queue quoted Field’s decision in the “Queue case.”case.”

Begbie concluded that the laundry bylaw Begbie concluded that the laundry bylaw was intended “to compel [the Chinese] to was intended “to compel [the Chinese] to remove certain industries from the city or remove certain industries from the city or themselves from the Province.”themselves from the Province.”

Regina v. Gold Comm’rRegina v. Gold Comm’r (1886) (1886)John Foster McCreight, J.John Foster McCreight, J.

Whether section 14 of Whether section 14 of the “Chinese Regulation the “Chinese Regulation Act, 1884”—which Act, 1884”—which requires a $15 fee for a requires a $15 fee for a miner’s certificate from miner’s certificate from Chinese when everyone Chinese when everyone else pays $5—is else pays $5—is constitutional.constitutional.

How does the court distinguish the Field dissent?

““But the very different origin of the But the very different origin of the respective Dominion and Provincial respective Dominion and Provincial powers, under the B. N. America Act, 1867, powers, under the B. N. America Act, 1867, are, of course, known to all, and have often are, of course, known to all, and have often been referred to by Judges as essential to been referred to by Judges as essential to be borne in mind when a question arises be borne in mind when a question arises between Dominion and Provincial between Dominion and Provincial jurisdiction.”jurisdiction.”

How does the court distinguish the Field dissent?

If The People v. Naglee and Mr. Justice If The People v. Naglee and Mr. Justice Field's dissenting opinion in Lin Sing v. Field's dissenting opinion in Lin Sing v. Washburn proceeded on any other Washburn proceeded on any other principle than what appears from the principle than what appears from the above quotation, then we can only say we above quotation, then we can only say we prefer the judgments of the majority of the prefer the judgments of the majority of the Judges in that particular case.Judges in that particular case.

Regina v. VictoriaRegina v. Victoria (1886) (1886) Matthew Baillie Begbie, J. Matthew Baillie Begbie, J.

The Council for the city of The Council for the city of Victoria “ordered the Collector to Victoria “ordered the Collector to issue no pawnbroking licence to issue no pawnbroking licence to any Chinaman”any Chinaman”

A mandamus was requested A mandamus was requested

The Power of PrecedentThe Power of PrecedentThe first of these contentions has already been The first of these contentions has already been before this Court, and has, I think, been entirely before this Court, and has, I think, been entirely denied by several Judges now on the bench. In denied by several Judges now on the bench. In the first place by Mr. Justice Gray in Tai Sing v. the first place by Mr. Justice Gray in Tai Sing v. Macguire, (1 B.C.R. pt.i. 101, 1878); by Mr. Macguire, (1 B.C.R. pt.i. 101, 1878); by Mr. Justice Crease in Wing Fong's case (1 B.C.R. Justice Crease in Wing Fong's case (1 B.C.R. pt.ii. 150, 1885); and by myself in Mee Wah's pt.ii. 150, 1885); and by myself in Mee Wah's case (not reported). These decisions have never case (not reported). These decisions have never been appealed, and I do not feel at liberty to been appealed, and I do not feel at liberty to disregard them. I must therefore, assume that no disregard them. I must therefore, assume that no such authority exists in the Provincial such authority exists in the Provincial Legislature, and therefore it is impossible that Legislature, and therefore it is impossible that they could have delegated it, or conferred it on they could have delegated it, or conferred it on the Council. the Council.

What else supports the court’s conclusion?

Prima facie, every person living under the Prima facie, every person living under the protection of British law has a right at once to protection of British law has a right at once to exercise his industry and ability in any trade or exercise his industry and ability in any trade or calling he may select. The only instances in which calling he may select. The only instances in which some antecedent certificates of fitness or some antecedent certificates of fitness or qualification is required are, I think, liquor dealers, qualification is required are, I think, liquor dealers, medical men, and barristers and solicitors…. If the medical men, and barristers and solicitors…. If the Council is to have an absolute discretion to refuse a Council is to have an absolute discretion to refuse a licence to any person applying, on the ground of licence to any person applying, on the ground of what they choose to allege as unfitness, then half a what they choose to allege as unfitness, then half a dozen tradesmen may secure themselves an entire dozen tradesmen may secure themselves an entire monopoly of their respective trades throughout the monopoly of their respective trades throughout the municipality, by simply voting that in their opinion municipality, by simply voting that in their opinion each proposing competitor is an unfit person.each proposing competitor is an unfit person.

“Race jealousy” in a French colonyIt is not uninteresting to note the uniformity with which It is not uninteresting to note the uniformity with which the same events result from the same principles, the same events result from the same principles, although in very different parts of the world. Victoria although in very different parts of the world. Victoria does not possess a monopoly of race jealousy. In the does not possess a monopoly of race jealousy. In the French colony of Cayenne, the Town Council recently French colony of Cayenne, the Town Council recently handicapped the superior capacities of the Chinaman handicapped the superior capacities of the Chinaman by imposing on merchants of that empire an extra tax by imposing on merchants of that empire an extra tax of $300 per annum, deeming it also expedient to of $300 per annum, deeming it also expedient to handicap English and German traders by a surtax of handicap English and German traders by a surtax of $200 on them. But on the appeal to the courts at $200 on them. But on the appeal to the courts at Paris, all these impositions were declared null on the Paris, all these impositions were declared null on the very same principles as those on which the Courts very same principles as those on which the Courts here insisted when they decided the cases above here insisted when they decided the cases above referred to, viz., as being infringements at once of referred to, viz., as being infringements at once of personal liberty, and of the equality of all men before personal liberty, and of the equality of all men before the law, and also negation of international rights.the law, and also negation of international rights.

Canadian Judges and American PrecedentCanadian Judges and American Precedent

Lack of existing precedent in English and Lack of existing precedent in English and Canadian lawCanadian law– English judges didn’t address this type of an English judges didn’t address this type of an

issue in context of federal systemissue in context of federal system– Canada only had been a federation since Canada only had been a federation since

18671867– California courts—both state and federal—California courts—both state and federal—

had considerable experiencehad considerable experienceJohn McLaren, The Early British Columbia Judges, John McLaren, The Early British Columbia Judges, the Rule of Law, and the “Chinese Question”the Rule of Law, and the “Chinese Question”

Canadian Judges and American PrecedentCanadian Judges and American Precedent

Ideological SimilaritiesIdeological Similarities– Judges had similar beliefs about the role of Judges had similar beliefs about the role of

judiciary in constitutional systemjudiciary in constitutional system– Judges like Field and Sawyer were Judges like Field and Sawyer were

Republicans who believed in a strong national Republicans who believed in a strong national government; Canadian judges also believed in government; Canadian judges also believed in having the dominant power in federal hands to having the dominant power in federal hands to curb the excesses of provincial legislaturescurb the excesses of provincial legislatures

– These judges shared conservatism, suspicion These judges shared conservatism, suspicion of popular democracy, and a commitment to of popular democracy, and a commitment to economic liberalism economic liberalism

John McLaren, The Early British Columbia Judges, John McLaren, The Early British Columbia Judges, the Rule of Law, and the “Chinese Question”the Rule of Law, and the “Chinese Question”

Vancouver Riot, 1907Vancouver Riot, 1907

Nine thousand marched Nine thousand marched in Asiatic Exclusion in Asiatic Exclusion League sponsored League sponsored parade complete with parade complete with banners proclaiming banners proclaiming “Stand for a White “Stand for a White Canada”Canada”

Protest meeting with Protest meeting with speeches followed by a speeches followed by a march through Chinatownmarch through Chinatown

That march turned violent That march turned violent with considerable with considerable property damageproperty damage

Toward ExclusionToward ExclusionPublic Meeting, Kelowna, 1920Public Meeting, Kelowna, 1920The ownership of land in B.C. by The ownership of land in B.C. by Japanese and Chinese is continually Japanese and Chinese is continually increasing, and constitutes a peril to our increasing, and constitutes a peril to our ideal of a white British Columbia, as it is ideal of a white British Columbia, as it is impossible for Japanese and Chinese to impossible for Japanese and Chinese to become assimilated as Canadian citizens. become assimilated as Canadian citizens.

An Act respecting Chinese An Act respecting Chinese Immigration sec. 2 (1923)Immigration sec. 2 (1923)

““Chinese Immigrant”.Chinese Immigrant”.

(e) “Chinese Immigrant” means any (e) “Chinese Immigrant” means any person of Chinese origin or descent person of Chinese origin or descent entering Canada for the purpose of entering Canada for the purpose of acquiring Canadian domicileacquiring Canadian domicile


The entry to or landing in Canada of persons The entry to or landing in Canada of persons of Chinese origins or descent irrespective of of Chinese origins or descent irrespective of allegiance or citizenship is confined to the allegiance or citizenship is confined to the following classes:following classes:– (a) Members of diplomatic corps(a) Members of diplomatic corps– (b) Children born in Canada of parents of Chinese (b) Children born in Canada of parents of Chinese

race or descentrace or descent– (c)(1) Merchants(c)(1) Merchants– (c)(2) Students(c)(2) Students


No person of Chinese origin or descent No person of Chinese origin or descent other than the classes mentioned in other than the classes mentioned in paragraphs (a) and (b) of section five and paragraphs (a) and (b) of section five and sections twenty-three and twenty-four of sections twenty-three and twenty-four of this Act shall be permitted to enter or land this Act shall be permitted to enter or land in Canada elsewhere than at the ports of in Canada elsewhere than at the ports of Vancouver and Victoria. Vancouver and Victoria.


The Controller shall deliver The Controller shall deliver to each Chinese Immigrant to each Chinese Immigrant who has been permitted to who has been permitted to land in or enter Canada a land in or enter Canada a certificate containing a certificate containing a description and photograph description and photograph of each individualof each individual

Charles E. Hope,Charles E. Hope,

White Canada Association, 1931White Canada Association, 1931 Can an Oriental ever be assimilated by Can an Oriental ever be assimilated by absorption into the Canadian race and nation? absorption into the Canadian race and nation? We must remember we are trying to evolve a We must remember we are trying to evolve a Canadian race as well as a Canadian nation and Canadian race as well as a Canadian nation and no nation can ever arrive at a peaceful and no nation can ever arrive at a peaceful and homogenous condition of stability if it contains homogenous condition of stability if it contains two entirely separate races so widely different as two entirely separate races so widely different as the Eastern Asiatic and the Western European—the Eastern Asiatic and the Western European—on other words, the Oriental and white races—on other words, the Oriental and white races—which will never come together by absorption which will never come together by absorption methods voluntarily. . . . methods voluntarily. . . .

Charles E. Hope,Charles E. Hope,

White Canada Association, 1931White Canada Association, 1931

Alien and unabsorbable races should be Alien and unabsorbable races should be welcomed to Canada for international welcomed to Canada for international trade and cultural purposes, but for trade and cultural purposes, but for internal trade and settlement to the internal trade and settlement to the displacement of the white race—never! displacement of the white race—never!

Educational DiscriminationEducational DiscriminationIn 1922, the Victoria In 1922, the Victoria School Board designated School Board designated one school for Chinese one school for Chinese students. students. The Chinese then The Chinese then boycotted the school; not boycotted the school; not one Chinese student one Chinese student ever attended. ever attended. Local CBA helped set up Local CBA helped set up alternative school.alternative school.School Board caved the School Board caved the next year and Chinese next year and Chinese students were allowed to students were allowed to enroll anywhere they enroll anywhere they wanted. wanted.

Chinese in Colony of Victoria, Chinese in Colony of Victoria, AustraliaAustralia

Gold rush in 1851Gold rush in 1851

By 1854, 3500 Chinese in By 1854, 3500 Chinese in VictoriaVictoria

White miners begin White miners begin demanding “driving the demanding “driving the Chinese population off Chinese population off the Bendingo goldfields”the Bendingo goldfields”

In 1857, 500 white miners In 1857, 500 white miners forcibly expulsed 2000 forcibly expulsed 2000 Chinese miners Chinese miners

Act to make provision for certain Act to make provision for certain immigrants (June 1855)immigrants (June 1855)

Limited landing of immigrants who were Limited landing of immigrants who were adult male natives of China, or born of adult male natives of China, or born of Chinese of Chinese parents, to one for Chinese of Chinese parents, to one for every 10 tons of the vessel’s tonnageevery 10 tons of the vessel’s tonnage

Entry tax of £10 Entry tax of £10

Act to regulate the residence of Act to regulate the residence of Chinese population (Nov. 1857)Chinese population (Nov. 1857)

All male Chinese aliens and their sons over All male Chinese aliens and their sons over twelve years old had to produce a receipt for twelve years old had to produce a receipt for their entry taxtheir entry taxThey also had to purchase an additional They also had to purchase an additional residence license for £1 every two monthsresidence license for £1 every two months

By 1860 4000 Chinese had been fined for By 1860 4000 Chinese had been fined for nonpayment and 2000 imprisoned for not paying nonpayment and 2000 imprisoned for not paying finefineChinese population starts to decline in Victoria Chinese population starts to decline in Victoria

Chinese Immigrants Regulation and Chinese Immigrants Regulation and Restriction Act (Nov. 1861)Restriction Act (Nov. 1861)Colony of New South WalesColony of New South Wales

Restricted landing to one adult male Restricted landing to one adult male Chinese per 10 tons of ships’ tonnageChinese per 10 tons of ships’ tonnage

Required £10 fee for entry by sea or landRequired £10 fee for entry by sea or land

Levied annual residence tax of £4Levied annual residence tax of £4

Denied naturalization (no right to vote or Denied naturalization (no right to vote or own property) own property)

Aliens Bill (May 1861)Aliens Bill (May 1861)Colony of QueenslandColony of Queensland

Neither “Asiatic” nor African alien could Neither “Asiatic” nor African alien could naturalize unless he had resided for three naturalize unless he had resided for three years in the colony and had his wife years in the colony and had his wife resident with himresident with him

White Australia Policy:White Australia Policy:Immigration Restriction Act of 1901Immigration Restriction Act of 1901

Dictation test designed to keep out Chinese and Dictation test designed to keep out Chinese and other non-whites other non-whites – Prohibited entry of “any person who when asked to do Prohibited entry of “any person who when asked to do

so by an officer fails to write out at dictation and sign so by an officer fails to write out at dictation and sign in the presence of the officer a passage of fifty words in the presence of the officer a passage of fifty words in length in an European language directed by the in length in an European language directed by the officer”officer”

The dictation test was effective in blocking entry The dictation test was effective in blocking entry because the officer could pick any European because the officer could pick any European languagelanguage– Between 1902 and 1903, 46 people passed the test Between 1902 and 1903, 46 people passed the test

out of 805 out of 805 – Between 1904 and 1909, only six out of 554 passed Between 1904 and 1909, only six out of 554 passed – Nobody passed the dictation test after 1909 Nobody passed the dictation test after 1909

Comparative Perspectives: Asian Immigrants in Canada and Australia

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