Chew Heong v. United States:

Chinese Exclusion and the Federal Courts

by

Lucy Salyer

University of New Hampshire

Prepared for inclusion in the project

Federal Trials and Great Debates in United States History

Federal Judicial Center

Federal Judicial History Offi ce

2006

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of 

the judicial branch of the United States government.” The views expressed are those of the 

author and not necessarily those of the Federal Judicial Center.
Blank page included for double-sided printing.
Chinese Exclusion and the Federal Courts

iii

Contents

Chew Heong v. United States: A Short Narrative, 1 

The Chinese Exclusion Act of 1882, 1

Chinese resistance to the exclusion laws, 2

Contesting exclusion in the federal courts, 3

The Chinese Exclusion Act of 1884 and the case of Chew Heong, 4

Chew Heong before the Supreme Court of the United States, 6

The aftermath of Chew Heong, 6

The legacy of exclusion, 8

The Federal Courts and their Jurisdiction, 9

The U.S. Circuit Court for the District of California, 9

Supreme Court of the United States, 10

The Judicial Process: A Chronology, 11 

Legal Questions before the Federal Courts, 13

Did the 1884 amendment to the Chinese Exclusion Act, which specifi ed that certifi cates 

of residence were the “only evidence permissible” to prove a right to reenter the 

United States, apply to Chew Heong and others who left the United States before the 

certifi cates were available? 13

In interpreting the Chinese Exclusion Acts of 1882 and 1884, what authority should the 

courts give to the 1880 treaty between China and the United States? 14

What had the federal courts decided in related cases? 15

Chinese civil rights, 15

Other Chinese exclusion laws cases, 17

Lawyers’ Arguments and Strategies, 20

Attorneys for Chew Heong, 20

The government’s attorneys, 20

Biographies, 22

Judges, 22 

Stephen J. Field, 22

John Marshall Harlan, 24

Ogden Hoffman, 25

George Myron Sabin, 26

Lorenzo Sawyer, 27

Parties in the case, 28

Chew Heong, 28

The Chinese consul in San Francisco, 30

Chinese Six Companies (Zhonghua Huiguan), 30

William H. Sears, 31

Attorneys, 32

Frederick A. Bee, 32
Chinese Exclusion and the Federal Courts

iv

Harvey Brown, 33

Carroll Cook, 33

William Hoff Cook, 34

Samuel Greeley Hilborn, 34

William A. Maury, 35

Thomas D. Riordan, 35

Media and Public Debates, 36

Historical Documents, 38

Government documents, 38

Angell Treaty of 1880, 38

Chinese Exclusion Act of 1882, 39

Chinese Exclusion Act of 1884, 40 

Chinese Exclusion Act of 1888, 42

Habeas corpus petition of Chew Heong, 43

Laborer’s return certifi cate: Chae Chan Ping, 44

Collector of customs’ investigation of Chinese immigrants, 46

Opinion of Justice Stephen J. Field in the U.S. Circuit Court for the District of 

California, In re Cheen Hong, 48

Dissenting opinion of Judge Lorenzo Sawyer, In re Cheen Hong, 50

Opinion of Justice John Marshall Harlan in the Supreme Court of the United States 

(excerpt), Chew Heong v. United States, 51

Dissenting opinion of Justice Stephen J. Field in the Supreme Court of the United 

States (Excerpt), Chew Heong v. United States, 53

Political cartoons from The Wasp, 55

“Judge Righteous Judgment,” 56

“There’s Millions in It,” 58

“The Restriction Act Knocked Out,” 59

Newspapers and public opinion, 61

“The Evasion Act,” 61 

“Chinamen Without Certifi cates Must Stay Away,” 62

“Mr. Justice Field on the Restriction Act,” 63

Federal offi cials on Chinese immigration and litigation, 64

Judge Lorenzo Sawyer on the Supreme Court’s decision in Chew Heong, 64

Judge Lorenzo Sawyer on the “Chinese question,” ca. 1890, 65

Judge Ogden Hoffman’s appeal to Congress for relief from Chinese litigation, 1888, 66

A U.S. Attorney on enforcement of the Chinese exclusion laws, 1888, 68

Chinese perspectives on exclusion, 71

Poem by Chinese immigrant detained at Angel Island, 71

“The Chinese Must Stay,” by Yan Phou Lee, 72

Select Bibliography and Resources, 75
Chinese Exclusion and the Federal Courts

1

Chew Heong v. United States: A Short 

Narrative 

On September 27, 1884, the U.S. Circuit Court in San Francisco convened to hear the 

case of Chew Heong, a Chinese laborer petitioning to be readmitted into the United 

States. Like many of the so-called “Chinese habeas corpus” cases, Chew Heong v. 

United States attracted considerable public attention. Chinese spectators crowded into 

the courtroom and the hallways, and the local press covered the hearings in detail. 

Both sides—the Chinese immigrant Chew Heong and the U.S. government—were 

represented by a bevy of well-known lawyers. As the Supreme Court justice serving 

the Ninth Circuit, Stephen J. Field had arrived from Washington, D.C., to preside over 

the hearing, and he sat on the bench with U.S. Circuit Court Judge Lorenzo Sawyer. 

U.S. District Court Judges Ogden Hoffman and George Sabin, who presided over 

many similar hearings, sat in the unusual capacity of “consulting judges.” 

 Chew Heong attracted public attention less because of the constitutional and legal 

issues it raised than because it refl ected the broader struggle over Chinese immigration 

to the United States in the nineteenth century. In 1882, the Congress had adopted 

the Chinese Exclusion Act—the most restrictive immigration policy the country had 

known to that point. The heated debate over Chinese immigration embroiled the 

federal courts in the infl ammatory issue, as Chinese mounted a sophisticated and 

often successful litigation strategy to defeat the harshest aspects of the exclusion law. 

Federal judges struggled to reconcile the anti-Chinese policies and sentiment with 

the requirements of other law, including U.S. treaty obligations with China and the 

Fourteenth Amendment’s guarantee of due process and equal protection. The Chew 

Heong case thus provides fascinating insight into the Chinese strategic use of litigation in the federal courts and the often diffi cult role of the federal courts in enforcing 

federal policies in times of political turmoil.

The Chinese Exclusion Act of 1882

In 1882, Congress adopted the fi rst Chinese Exclusion Act and, in doing so, took a 

giant step away from its previous “open door” immigration policy. The act forbade 

the immigration of Chinese laborers for ten years. It marked the beginning of the 

U.S. government’s embrace of restrictive immigration policies and highlighted the 

different treatment immigrants received depending on their race and nationality. The 

act was not the fi rst to target Chinese for discriminatory treatment. Congress had 

passed the Page Act in 1875, prohibiting the immigration of Asian contract laborers 

and Asian women suspected of prostitution—a clause that was interpreted broadly to 

prevent the immigration of Chinese women and the formation of Chinese-American 

families. Even earlier, beginning with the Chinese immigration to California during 
Chinese Exclusion and the Federal Courts

2

the Gold Rush, towns and states on the West Coast had devised numerous laws to 

deprive Chinese of their livelihoods, to segregate them in schools and neighborhoods, 

and generally to make their lives in the United States so miserable that they would 

leave. But the Chinese Exclusion Act of 1882 raised anti-Chinese fervor to the level 

of federal policy. Congress endorsed exclusionists’ arguments that American workers 

could not compete with Chinese and that Chinese were fundamentally different as a 

race, unable to assimilate and posing a danger to American institutions and culture. 

In passing the Exclusion Act, Congress rejected the spirit behind the 1868 Burlingame 

Treaty with China that declared a person had an “inherent and unalienable right to 

change his home and allegiance.” 

Chinese resistance to the exclusion laws

When Congress passed the 1882 law, many anti-Chinese forces celebrated, believing 

their fi ght to force Chinese out of the United States had fi nally succeeded. Within 

a year, however, their hopes turned to frustration as they renamed the Chinese Exclusion Act, the “Chinese Evasion Act.” Chinese in the United States did not meekly 

accept their exclusion from the United States. The Chinese immigrant community 

had a strong internal organizational network that provided an institutional basis for 

their resistance to the policy. The Chinese Six Companies, known to Chinese as the 

Zhonghua Huiguan, was composed of leaders from different huiguan or district associations to which all Chinese immigrants belonged depending upon their region 

of origin. The Chinese consulate in San Francisco was the offi cial representative of 

the Chinese government. Both the Chinese Six Companies and the Chinese consulate 

provided crucial leadership and fi nancial support for the fi ght against discriminatory 

treatment of Chinese immigrants.

 When the Exclusion Act was passed, the Chinese organizations turned naturally 

to the federal courts in California to test the act’s reach. Litigation had been one of 

the few avenues open to Chinese immigrants to resist discriminatory actions in the 

nineteenth century. Few Chinese managed to become American citizens because of 

U.S. law reserving naturalization to those who were “white” or of African descent. 

Lacking political power, Chinese found that the Burlingame Treaty of 1868, which 

guaranteed Chinese residents “the same privileges, immunities, and exemptions” 

extended to natives of other countries, and the Fourteenth Amendment, which 

prohibited states from denying any person due process or equal protection of the 

laws, to be potent weapons in the federal courts. Federal judges struck down many 

of the discriminatory state laws on the grounds that they violated the treaty rights 

of the Chinese or their right to equal protection under the Fourteenth Amendment. 

Litigation proved so fruitful that the Chinese Six Companies and Chinese consulate 

kept American attorneys on retainers to represent them whenever the need should 

arise. When exclusion went into effect, attorneys for the Chinese were kept busy as 

Chinese arriving at ports sought to prove their right to enter the United States.
Chinese Exclusion and the Federal Courts

3

Contesting exclusion in the federal courts

The litigation regarding the 1882 act resulted from disagreements over the reach of 

the new exclusion law and how it would be enforced. The law had been passed only 

after the United States obtained a new treaty with China in 1880. In the Angell Treaty, 

China agreed that the United States could limit, though not absolutely prohibit, the 

immigration of Chinese laborers. The treaty specifi ed that Chinese laborers already 

residing in the United States remained free to come and go as before. Furthermore, 

the law did not apply to nonlaborers, such as merchants, students, professionals, 

and diplomats. The 1882 act conformed to the treaty in restricting new immigration only of Chinese laborers for a period of ten years. While detailed, the law could 

not anticipate the various circumstances that would arise, and Chinese, federal administrators, and the federal courts soon became enmeshed in bitter confl icts over 

individual cases.

 A crucial disagreement arose over what evidence Chinese needed to prove their 

right to enter the United States. The 1882 law provided a system to identify Chinese 

who remained exempt from exclusion. Resident Chinese laborers, for example, received a certifi cate of identity—known as a “return” certifi cate—before they left the 

United States and presented the certifi cate for readmission upon their return. Chinese merchants and other nonlaborers were to obtain certifi cates from the Chinese 

government verifying their occupations, physical descriptions, and exemption from 

exclusion. These so-called “section 6 certifi cates” were to constitute “prima facie evidence” that a Chinese immigrant was exempt from exclusion, and these certifi cates 

provided the foundation for the Chinese right to enter, though the collector of the 

port could still deny entry based on contradictory evidence. 

 Problems soon arose when many Chinese entitled to enter the United States did 

not have the required certifi cates. Some resident Chinese laborers, for example, had 

left the United States before the certifi cates became available. Chinese merchants 

arrived in the United States from ports outside China and did not have the section 

6 certifi cates required to establish their exemption. The collector of the port at San 

Francisco, a political appointee responsible for enforcing the exclusion laws, insisted 

upon strict compliance with the law and denied entry to Chinese without the required 

certifi cates. At a time when political parties vied for the anti-Chinese vote and local 

newspapers covered every aspect of the law’s enforcement, the collector of the port 

(also called the collector of customs) felt pressure to demonstrate his offi ce’s dedication to exclusion. If denied entry, Chinese often fi led writs of habeas corpus in federal 

court, arguing that they were being detained illegally on board ship and denied their 

right to land.

 The habeas corpus cases pitted the collector of the port against the federal judges 

and put the federal courts in a bind. All of the federal judges—Judge Ogden Hoffman 

in the district court, Judge Lorenzo Sawyer in the circuit court, and Justice Stephen 
Chinese Exclusion and the Federal Courts

4

Field as circuit justice—professed support for the exclusion policy. But the judges 

also believed that the treaty, as the United States’ explicit promise to the Chinese 

government, must be upheld to preserve the nation’s honor. Further, the Constitution 

mandated that treaties and federal statutes were both the “supreme law of the land.” 

Whenever possible, the judges argued, legislation should be interpreted to conform to 

the nation’s treaties. The collector, in the opinion of the judges, had disregarded the 

treaty in his zealous requirement for certifi cates in all cases. In a succession of cases, 

federal judges ruled that the Exclusion Act had to be interpreted reasonably and in 

accordance with the Treaty of 1880. The collector could not require certifi cates as the 

only evidence of admission if they had been impossible or unreasonably diffi cult to 

obtain. The federal courts allowed “parol evidence,” that is oral testimony, or written 

records to establish Chinese petitioners’ right to land.

 The result of the courts’ rulings, critics argued, was the creation of a “habeas corpus 

mill” as Chinese fl ocked to the federal courts to challenge the collector’s decisions 

denying them entry. The test cases, carefully selected by attorneys for Chinese, had 

widespread effects; one case could establish the law governing hundreds of Chinese 

in the same circumstances. Local newspapers and the collector of the port denounced 

the courts for creating gaping loopholes in the exclusion law and accused Chinese 

of widespread perjury and fraud in concocting testimony before the courts. Of the 

2,652 Chinese allowed to land in the fi rst fourteen months after the act’s passage, the 

collector claimed that one third were admitted under the court’s rulings and often 

without proper documentation. While attempting to defl ect public criticism of their 

rulings, the federal judges also struggled to keep up with the demanding pace of the 

exclusion litigation. In his opinion in In re Chow Goo Pooi, Judge Hoffman complained 

that he had 190 Chinese habeas corpus cases on his docket and had been unable to 

make a dent in them, despite weeks of hearings and night sessions. All other work in 

the court had come to a near halt.

The Chinese Exclusion Act of 1884 and the case of Chew 

Heong

Frustrated by the failure of the 1882 act to meet their expectations, exclusionists in 

Congress amended the law in 1884 in an attempt to close the perceived loopholes. 

The 1884 law specifi ed that the return certifi cates were to be “the only evidence 

permissible” of a Chinese laborer’s right to enter the United States. All eyes were on 

the federal courts in San Francisco to see how the judges would respond to this new 

provision. The potential consequences for Chinese were signifi cant. Attorney Thomas 

Riordan estimated that approximately 12,000 Chinese resident laborers had left the 

United States before the certifi cates had become available and would lose their right 

to return if the act was strictly enforced.
Chinese Exclusion and the Federal Courts

5

 The 1884 act soon came before an unusual panel of four judges in the circuit 

court for a hearing in the case of Chew Heong, selected by the Chinese consul’s attorney, Thomas Riordan, as the test case. Chew Heong had come to the United States 

sometime before November 1880, when the Angell Treaty went into effect, but had 

left San Francisco for Honolulu in June 1881, before the Exclusion Act was passed 

and before return certifi cates became available. He returned to San Francisco on 

September 22, 1884, and applied for admission as a prior resident. Within fi ve days, 

Chew Heong appeared before Justice Stephen J. Field sitting in the U.S. Circuit Court 

for the District of California. The importance of the case for both sides was evident in 

the array of lawyers present. Chinese vice consul Frederick Bee, and lawyers Thomas 

Riordan, W.H. Cook, Harvey Brown, and Lyman Mowry appeared on behalf of Chew 

Heong. The government was represented by U.S. Attorney Samuel Greeley Hilborn, 

his assistant Carroll Cook, and the surveyor and deputy surveyor of the Port of San 

Francisco.

 Although Field had issued earlier decisions asserting the importance of upholding 

the laborers’ treaty rights of free migration, he now abruptly changed his mind, citing 

both the clear language of the law and the intent of Congress to forestall resort to the 

courts. Field declared that the 1884 statute clearly allowed entry only to laborers who 

had return certifi cates. If the law worked hardships for men like Chew Heong, it was 

up to the legislature or the executive, not the courts, to remedy the situation. Field 

had clearly run out of patience with the Chinese habeas corpus cases that had fl ooded 

the federal courts and that may have foiled his presidential ambitions. During Chew 

Heong’s hearing, Field rhetorically questioned attorney Riordan: “. . . what shall the 

Courts do with [the Chinese laborers]? Can it give each one of them a separate trial? 

Can it let each of them produce evidence of former residence? No; it was because 

the Courts were overcrowded that the second Act was passed. . . . Besides, Congress 

never supposed that Chinamen intended to go back to China and stay several years. 

If they do not come back at once they should not be allowed to come at all.”

 The three other judges on the panel, Sawyer, Hoffman, and Sabin, disagreed 

with Field. As the judges who heard the bulk of the Chinese cases, they shared his 

concern about their crushing caseloads, but they continued to uphold the authority 

of the 1880 treaty and interpreted the 1884 act in light of their earlier precedents. 

The clause making return certifi cates the only acceptable evidence applied only to 

Chinese laborers who left after the certifi cates were available, they argued. The law 

could not require the impossible and nor should it be allowed to defeat the treaty 

rights of laborers like Chew Heong. Resident Chinese laborers who left before the 

certifi cates were available should still be allowed to prove prior residence through 

other evidence.
Chinese Exclusion and the Federal Courts

6

Chew Heong before the Supreme Court of the United 

States

The law provided that the opinion of the presiding justice prevailed in the circuit 

court, although a divided opinion could be appealed to the Supreme Court, and 

Chew Heong fi led an appeal. Field’s decision was approved in the court of popular 

opinion as one San Francisco newspaper declared that the decision showed “how 

unjustly the people of California have judged Mr. Justice Field with reference to the 

Chinese question.” But when the Supreme Court heard the case, Field found himself 

reversed in a 7–2 decision.

 Justice John Marshall Harlan, writing for the majority, began by stressing the importance of treaties in securing commerce and trust among nations. Harlan refused 

to believe that Congress intended to “disregard the plighted faith of the government” 

so recently pledged in the 1880 treaty. Unless Congress clearly and unmistakably expressed its intent to violate the treaty, the Court was obliged under the Constitution 

and rules of construction to try to reconcile the statute with the treaty. This could 

easily be done, said Harlan. Echoing Sawyer’s dissenting opinion in the circuit court, 

Harlan thought it clear that Chew Heong did not have to present a certifi cate if it 

had been impossible for him to obtain one.

 Field rendered a bitter dissent, joined by Justice Joseph P. Bradley, accusing the 

majority of willfully misreading the clear language of the statute and ignoring the 

intent of Congress. He reminded the majority of the strong sentiment behind the 

exclusion policy among “all classes . . . from the whole Pacifi c Coast” who “saw . . . 

the certainty, at no distant day, that from the unnumbered millions on the opposite 

shores of the Pacifi c, vast hordes [of Chinese] would pour in upon us, overrunning 

our coast and controlling its institutions.” Field acknowledged the authority of treaties but stressed they were no more binding than federal statutes. Congress clearly 

intended in the act of 1884 to close a door opened by the federal courts in their earlier 

decisions. It was the duty of the Supreme Court, he admonished, to be “the servant 

of the law, bound to obey, not to evade or make it.” Field ended with a dire prediction that “all the bitterness which has heretofore existed on the Pacifi c Coast on the 

subject of the immigration of Chinese laborers will be renewed and intensifi ed, and 

our courts there will be crowded with applicants to land.”

The aftermath of Chew Heong

If Field failed to sway his Supreme Court brethren, he was right that the battle over 

Chinese exclusion would intensify after Chew Heong. On the day after the circuit 

court’s decision in Chew Heong, Field authored another opinion—this time unanimous—holding that children born in the United States of Chinese parents were 

American citizens and exempt from the exclusion law. This decision, as well as the 
Chinese Exclusion and the Federal Courts

7

Chew Heong opinion, provided another opening for Chinese and expanded litigation 

in the federal courts as both Chinese claiming birthright citizenship and laborers 

asserting prior residency sought to establish their right to enter the United States. 

The federal courts’ caseload continued to mushroom until, by the end of the 1880s, 

over 7,000 habeas corpus petitions had been fi led just in the U.S. district court for 

California. The courts innovated by appointing examiners and referees to assist 

with the petitions in expedited hearings, but they still strained to keep up. In 1888, 

Judge Hoffman complained “it would be hard to convince one who has never been 

in these Courts how great is the physical distress and mental strain caused by a day’s 

conscientious attention to these Chinese cases.” 

 The federal judges received little sympathy from the local press, which continued 

to blame the courts for unnecessarily frustrating the enforcement of Chinese exclusion. The U.S. attorney general fi elded complaints that, because of the federal courts’ 

intervention, the exclusion acts had made no impact in reducing Chinese immigration. The U.S. attorney at San Francisco, Samuel Hilborn, reported that the people 

in California had lost respect for the courts because of the “unseemly spectacle” of 

the courts devoting a large part of their time to the Chinese cases. The federal courts’ 

jurisdiction over the Chinese exclusion and general immigration cases would be 

gradually curtailed by statute and Supreme Court decisions.

 While Chinese continued to resort to the federal courts for protection, exclusionists turned again to Congress and to vigilante action in their determination to force 

Chinese out of the United States. Anti-Chinese violence crested throughout the West 

in 1885 and 1886, with the worst incident being the Rock Springs, Wyoming, massacre in which twenty-eight Chinese were killed and hundreds more fl ed for their 

lives. In 1888, Congress passed the most stringent exclusion act thus far, the Scott 

Act, which explicitly rejected the 1880 treaty, cancelled all return certifi cates, and 

stipulated that once Chinese laborers left the United States, they could never return. 

While the 1882 act forbade Chinese immigration for ten years, the 1888 act made 

the exclusion policy permanent.

 When Chae Chan Ping, armed with his return certifi cate, petitioned U.S. Circuit 

Court Judge Lorenzo Sawyer for entry after the act’s passage, he found his way barred. 

Sawyer conceded that there was no doubt that Congress had reneged on the treaty and, 

given the evident confl ict between the act of 1888 and the treaty, the federal statute 

must govern as the most recent expression of its will. Justice Field had the satisfaction 

of writing the opinion for the unanimous Supreme Court decision upholding the act 

of 1888. His dissent in Chew Heong now became the basis for a landmark decision 

that granted sweeping power to Congress to deny entry to any aliens it chose.
Chinese Exclusion and the Federal Courts

8

The legacy of exclusion

The battle over exclusion was not over, despite Field’s resounding decision in Chae 

Chan Ping v. United States in 1889. Buoyed by their successes in cases like Chew Heong, 

Chinese in the United States continued to see the federal courts as potential allies, 

however reluctant. They and their attorneys persistently and creatively employed 

litigation to keep the gates of the United States ajar. They forced federal judges to 

consider the extent of government power and the reach of due process for aliens 

and citizens alike at a time when public opinion cared little for immigrants’ rights. 

The tenure of federal judges was constitutionally protected, but the judges were not 

insulated from the local communities in which they lived and worked. Distressed by 

vocal public criticism of the courts’ decisions, Judge Sawyer expressed the hope that, 

in the long term, the judges’ adherence to the law and treaties would be vindicated. 

Most immediately, the federal courts’ decisions resulted in a determined campaign 

in Congress to remove federal court jurisdiction over Chinese exclusion and general 

immigration cases, which, by 1905, had largely succeeded.
Chinese Exclusion and the Federal Courts

9

The Federal Courts and Their Jurisdiction

The U.S. Circuit Court for the District of California

The case of Chew Heong was fi rst heard in the U.S. Circuit Court for the District 

of California. The U.S. circuit courts had served since 1789 as one of the two types 

of trial courts in the federal judiciary and were convened regularly in most judicial 

districts. Circuit courts had jurisdiction over all suits above a certain monetary value, 

most federal crimes, and suits between citizens of different states (so-called diversity 

jurisdiction). In 1875, Congress signifi cantly expanded the jurisdiction of the circuit 

courts, giving them authority to hear any case involving a “federal question,” that is, 

concerning a federal statute, the Constitution, or a treaty. District courts had jurisdiction over admiralty cases, suits of a lesser monetary value, and all noncapital crimes. 

The circuit courts had appellate jurisdiction over some decisions of the district courts, 

although all appellate jurisdiction would be transferred to the U.S. circuit courts of 

appeals when they were established in 1891. Congress abolished the old circuit courts 

in 1911 and transferred their remaining jurisdiction to the district courts.

 Before 1869, circuit courts had no judges of their own but were convened by the 

district judge and the Supreme Court justice assigned to the geographical circuit in 

which the districts were organized. Congress in 1869 provided for the appointment 

of circuit judges to serve on the circuit courts within each of the nine geographical 

circuits. Circuit courts could also be convened by the circuit’s Supreme Court justice 

or the district judge or by a panel of two of the authorized judges. Lorenzo Sawyer 

became the circuit court judge in California and the rest of the Ninth Circuit soon 

after the act’s passage. 

 As in several other Chinese habeas cases, the usual two-judge panel hearing the 

case of Chew Heong was expanded to include Judge Ogden Hoffman of the California 

district court and Judge George M. Sabin of the Nevada district court, who served 

as “consulting judges” along with Justice Field and Judge Sawyer. Sabin, like Judge 

Matthew Deady of the District of Oregon, frequently assisted the California federal 

courts in processing the overwhelming number of habeas cases brought in response 

to the Chinese exclusion acts.

 Habeas corpus petitions could be fi led in either district or circuit courts, and 

both types of courts in California routinely granted petitions for habeas corpus in 

Chinese exclusion cases. The courts proceeded to hear the cases de novo, that is, they 

heard evidence and came to their own decision upon the Chinese immigrant’s right 

to land, independent of the collector of the port’s fi ndings. Eventually, however, the 

Department of Justice and immigration offi cials mounted a systematic campaign to 

curb federal courts’ jurisdiction over immigration cases and, by 1905, had succeeded 

in limiting the federal courts’ review to questions of law and procedure.
Chinese Exclusion and the Federal Courts

10

Supreme Court of the United States

The Supreme Court of the United States stood at the top of the federal judicial 

hierarchy. The Constitution granted the high court limited “original jurisdiction” 

to hear and decide certain fi rst-time cases. Primarily, however, the Supreme Court 

heard appeals from the federal circuit courts as well as the state supreme courts. The 

Constitution also granted Congress wide authority to determine the jurisdiction of 

the Supreme Court. In 1884, when Chew Heong came before it, the Supreme Court 

considered two types of appeals from the federal courts. When a party seeking appeal fi led a “writ of error” and the Court found that it had jurisdiction over the case, 

the Court was obliged to hear the appeal. In other cases, the Court had discretion to 

decide whether to decide the appeal, and, if it chose to proceed, it would issue a “writ 

of certiorari.” Today, almost all of the appeals are heard on writs of certiorari as the 

Court’s discretion over which appeals to take has vastly expanded. 

 In 1884, the Supreme Court’s jurisdiction to hear appeals in habeas corpus cases 

was limited. The act of 1867 had expanded the federal courts’ power to issue habeas 

corpus petitions to any person confi ned illegally, in violation of the Constitution or 

federal laws, and allowed appeals to the Supreme Court if the lower court denied 

the writ. The Congress, fearing that its Reconstruction reforms would be invalidated 

by the Supreme Court in appeals of habeas corpus decisions, took away the Court’s 

appellate jurisdiction in habeas corpus cases a year later. In 1885, the Supreme Court 

would fi nally regain the power to review decisions in habeas corpus cases.

 While the Supreme Court’s jurisdiction over habeas corpus was still limited in 

1884, some habeas corpus cases did come before it through other procedural means. 

The government’s appeal in Chew Heong was brought by a writ of error. By law, if 

the circuit court judges disagreed in their opinions, either party could appeal to the 

Supreme Court by obtaining a “certifi cate of division of opinion” from the lower 

court. Given the division of opinion in the circuit court, with the presiding circuit 

court justice denying the writ and Judge Sawyer believing it should be issued, the 

Supreme Court had jurisdiction to hear the appeal. 
Chinese Exclusion and the Federal Courts

11

The Judicial Process: A Chronology 

September 25, 1884

Chew Heong, through his attorneys William Hoff Cook and Thomas D. Riordan, 

fi led a petition for a writ of habeas corpus in the U.S. Circuit Court of California. The 

petition asked the court to determine if Captain Hayward, master of the steamship 

Mariposa, had unlawfully detained Chew Heong on board the ship and refused to 

allow him to land in San Francisco.

 Circuit Court Judge Lorenzo Sawyer issued the writ of habeas corpus on the same 

day and ordered Captain Hayward to produce “the body of said Chew Heong” on 

September 26 for a hearing to determine whether he was illegally imprisoned.

September 26, 1884

Captain Hayward of the Mariposa fi led a return to the writ, confi rming that he had 

Chew Heong in custody under orders of the collector of the port at San Francisco. 

U.S. Attorney Samuel G. Hilborn, who assumed direction of the government’s case, 

fi led anintervention, claiming that the public had a substantial interest in the proceedings, which he was obligated to protect. The intervention was a common procedure 

in such cases since the federal government, not the master of the steamship, was the 

true party, represented by the federal collector of the port.

 On the same day, both parties fi led an “Agreed Statement of Facts,” allowing the 

court to focus on the question of the type of proof required of Chinese to be exempt 

from the exclusion law.

 The full panel of the circuit court conducted the hearing in Chew Heong’s 

case. 

September 29, 1884

Justice Field issued his decision, holding that Chew Heong was not entitled to land 

in the United States unless he had the required certifi cate. Lorenzo Sawyer, with 

consulting judges Hoffman and Sabin, dissented, but Field’s decision prevailed since 

he was the presiding Supreme Court justice.

 Justice Field discharged the writ of habeas corpus, meaning the court had completed its review of the alleged illegal imprisonment. He remanded Chew Heong to 

Captain Hayward’s custody for return to Honolulu, the port of origin for his trip to 

San Francisco.

 Because of the dissenting opinions of the other judges, the court issued a certifi cate of a division of opinion, which allowed Chew Heong’s attorneys to appeal 

Field’s decision to the Supreme Court.
Chinese Exclusion and the Federal Courts

12

September 30, 1884

The circuit court issued a stay of its previous order remanding Chew Heong to Captain Hayward’s custody, to allow Chew Heong to remain in the United States while 

his appeal was decided by the Supreme Court. The court also allowed Chew Heong 

to be released on bail during the appeal, allowing him to leave the ship. 

October 1, 1884 

Attorneys for Chew Heong fi led a writ of error for review by the Supreme Court, 

arguing that the circuit court was mistaken in its interpretation of the 1884 law.

October 30, 1884 

The case was argued before the Supreme Court. The Court used its discretion to 

advance the case on the docket, responding to the government’s request to have a 

determinative ruling on the reach of the new law as soon as possible.

December 8, 1884 

In a 7–2 decision, the Supreme Court overruled Justice Field’s decision in the circuit 

court. Justice John Marshall Harlan wrote the majority opinion and Justices Field 

and Bradley dissented. Chew Heong was free to stay in the United States.
Chinese Exclusion and the Federal Courts

13

Legal Questions Before the Federal Courts

Did the 1884 amendment to the Chinese Exclusion Act, 

which specifi ed that certifi cates of residence were the “only 

evidence permissible” to prove a right to reenter the United 

States, apply to Chew Heong and others who left the 

United States before the certifi cates were available?

No, said the majority in the Supreme Court, thus overruling the decision of Justice 

Stephen J. Field in the U.S. Circuit Court for the District of California.

 The Chinese Exclusion Act of 1882 established a system of identifi cation to help 

the collector of customs decide which Chinese qualifi ed for the exemptions specifi ed 

in the act. According to the statute, Chinese laborers already residing in the United 

States had to obtain “return certifi cates” from the collector of customs before leaving the United States for travel. The Chinese laborers were to present the certifi cates 

upon their return to the United States to prove they were prior residents and eligible 

to reenter. But the return certifi cates had not been issued until after the passage of 

the 1882 act. Chew Heong had left before the act was passed and thus could not 

have obtained a certifi cate to prove his right of reentry. The U.S. district and circuit 

courts had allowed resident Chinese laborers in such cases to present other evidence 

to establish their right to reenter, but Congress, in an 1884 amendment to the act, 

specifi ed that the return certifi cates were to be “the only permissible evidence to 

establish his right of re-entry.” The case of Chew Heong presented the courts with 

the question of whether the 1884 amendment applied to resident Chinese laborers 

who had been unable to obtain certifi cates.

 Although Justice Field in earlier cases had upheld the right of Chinese laborers 

to present other evidence, he now held in the U.S. Circuit Court at San Francisco 

that the language of the 1884 act clearly applied to Chew Heong and other laborers 

in the same situation. Field focused on the “direct language” of the law, which he 

argued made no exceptions for laborers like Chew Heong. He also stressed the intent 

of Congress to close the gap in the law opened up by the federal courts’ previous 

interpretations of the Exclusion Act that had resulted in the courts being fl ooded by 

Chinese habeas corpus cases. Field cited public opinion as well, noting that the general 

public had become impatient with judicial interference in the exclusion policy, and 

he admonished judges to enforce the clear congressional intent to make the exclusion 

law more restrictive.

 Judge Lorenzo Sawyer dissented from Field’s opinion in the circuit court, stressing 

the importance of interpreting the 1882 and 1884 acts in light of the 1880 treaty with 
Chinese Exclusion and the Federal Courts

14

China that clearly protected the right of Chew Heong and other resident laborers 

to come and go at will. Sawyer pointed out that the Chinese Exclusion Acts of 1882 

and 1884 explicitly stated their purpose was to fulfi ll the treaty, not to abrogate it. 

Emphasizing that the honor of the nation was at stake, Sawyer argued that the statute should be construed, if at all possible, to conform to the treaty unless Congress 

explicitly declared its intention to negate the treaty. Since no such intent was evident, 

Sawyer believed that Chew Heong should be allowed to present other evidence to 

establish his prior residency. 

 The Supreme Court overruled Field’s circuit court decision, adopting the reasoning laid out in Sawyer’s dissent. Justice John Marshall Harlan, writing for the 

majority, asserted that legislation, whenever possible, should be interpreted to conform to treaties. Harlan also cited the maxims that laws should not be interpreted as 

applying retroactively and that a law could not require evidence that was impossible 

to obtain. 

 Justice Field delivered a lengthy and passionate dissent, reiterating that the plain 

language of the law made certifi cates the only permissible evidence for all Chinese 

residents. Field argued further that the treaty and the Exclusion Act, in exempting 

resident Chinese laborers, were intended to allow temporary visits abroad, but did 

not grant those such as Chew Heong, who resided only briefl y in the United States, 

an unrestricted right to come and go at will.

In interpreting the Chinese Exclusion Acts of 1882 and 

1884, what authority should the courts give to the 1880 

treaty between China and the United States?

In the “Supremacy Clause” in Article VI, the U.S. Constitution specifi es that “This 

Constitution, and the Laws of the United States which shall be made in Pursuance 

thereof; and all Treaties made, or which shall be made, under the Authority of the 

United States, shall be the supreme Law of the Land.” Thus, treaties and federal statutes were seen as binding law. 

 In litigation arising under the Chinese exclusion laws, judges initially tried to 

interpret the statutes to conform to the relevant treaties. The Angell Treaty of 1880 

specifi ed that the United States could restrict, but not absolutely prohibit, the immigration of Chinese laborers and could pass legislation that was “necessary to enforce” 

the restriction. The treaty reiterated that Chinese subjects would have “most favored 

nation” status, meaning that they would retain the rights and privileges accorded by 

the United States to the citizens of the most favored nation. The treaty also specifi ed 

that neither Chinese laborers residing in the United States at the time the treaty was 

signed, nor nonlaborers, would be subject to immigration restriction.
Chinese Exclusion and the Federal Courts

15

 Chew Heong prevailed, in large part, because the Supreme Court majority believed 

the courts must interpret statutes to conform to the treaty. Drawing on a doctrine 

established by the Supreme Court in 1804 and on decisions in previous Chinese exclusion cases, Justice Harlan declared that, whenever possible, judges should respect 

the legal authority of treaties as the Constitution explicitly made treaties part of the 

“supreme law of the land.” Justice Harlan also argued that something more was at 

stake: “the honor of the government and people of the United States.” While protecting the honor of the government in upholding its “plighted faith” was not strictly a 

legal consideration, judges in California’s federal courts repeatedly used such language 

when they made their controversial decisions tempering the harshest aspects of the 

exclusion laws to conform to the treaty. The nation had made an agreement with 

China and, these judges believed, compromising the nation’s honor by imposing a 

more stringent exclusion of Chinese than the treaty allowed was, in Judge Sawyer’s 

words, “a price too high to be paid, without absolute necessity.”1

 Field’s decision in the circuit court and his dissent in the Supreme Court relied 

on another line of cases that argued for the “later-in-time” rule. Justice Benjamin 

Curtis, in a circuit court case of 1855 (Taylor v. Morton, 23 F. 784, C.C.D. Mass 1855), 

asserted that if statutes and treaties confl icted, judges should follow the one most 

recently adopted. Thus, if the Exclusion Acts of 1882 and 1884 confl ict with the treaty, 

the statutes would trump the treaty since they were the most recent legal authority. 

While Field’s position would not prevail in Chew Heong, it would gain sway in the 

Chinese Exclusion Case of 1889.

What had the federal courts decided in related cases?

Chinese civil rights

Long before the decision in Chew Heong, Chinese had resorted to the federal courts 

to challenge discriminatory state legislation. These cases established certain legal 

principles that set the stage for Chew Heong. Most importantly, federal courts had 

recognized that Chinese residents had rights, both under treaties between the United 

States and China and under the Fourteenth Amendment Equal Protection Clause, 

which states could not violate. The Chinese success not only set valuable legal precedents, but also encouraged Chinese to turn to the federal courts again when the 

Chinese Exclusion Acts were passed. Litigation, they had learned, could be a valuable 

strategy, especially for those without viable political recourse. The cases also made 

the federal courts unpopular among certain groups on the West Coast, even before 

the “habeas corpus” cases involving Chinese exclusion, as they were seen as the allies 

of Chinese and the corporations that hired them. Of the early Chinese civil rights 

litigation, the most important included:

1. In re Cheen Hong, 21 F. 791, 808 (1884).
Chinese Exclusion and the Federal Courts

16

In re Ah Fong (1874) and Chy Lung v. Freeman (1875) 

In the 1870s, anti-Chinese sentiment began to fl ourish in California, leading the 

California legislature in 1874 to pass an immigration law requiring that steamships 

post a $500 bond for the landing of any “lewd or debauched woman.” While the 

statute spoke generally, it aimed particularly to prevent the immigration of Chinese 

prostitutes, and the state commissioner of immigration refused to land twenty-two 

Chinese women whom he believed to be “lewd or debauched.” In In re Ah Fong, the 

California Supreme Court upheld the law as a valid exercise of the state’s “police 

power” to protect public safety and order, but Justice Field in the U.S. circuit court 

for California found the law unconstitutional. He held that Congress, not the states, 

had authority to regulate commerce between the United States and other nations, and 

that authority extended to immigration. More importantly for later Chinese litigation, Field found the law violated the Burlingame Treaty of 1868, in which Chinese 

were explicitly granted the right of free migration and all of the rights and privileges 

of subjects of other nations. He also ruled it violated the Fourteenth Amendment, 

which stated “no state . . . shall deny any person equal protection of the laws.” Field 

ruled that the Equal Protection Clause applied to all people in the United States, 

citizens and foreign residents alike. Since the California law singled out Chinese, it 

treated them unequally and thus trampled on both treaty and constitutional rights. 

The Supreme Court agreed with Field’s decision when, in a separate appeal of the 

California Supreme Court’s decision in Chy Lung v. Freeman, it held the California 

law unconstitutional on the grounds that Congress had exclusive power to regulate 

foreign commerce and immigration. The cases were important in establishing the 

importance of the treaties and the Fourteenth Amendment as barriers to discrimination against Chinese.

Ho Ah Kow v. Nunan

In addition to its attempts to bar Chinese immigration, California passed several laws 

to harass Chinese residents and discourage their presence. This was especially true 

in the late 1870s when the Workingman’s Party rose to prominence under the slogan 

“The Chinese Must Go!” In 1876, the California legislature passed the “cubic air law,” 

specifying the size of living quarters for every tenant: lodgings had to provide at least 

500 cubic feet of air for each adult. Justifi ed as a measure to prevent overcrowding 

and unsanitary living conditions, the act again targeted Chinese who often lived in 

cramped quarters. When arrested for violating the law, Chinese chose to resist the law 

by refusing to pay the fi ne, thereby fi lling the local jails. The San Francisco Board of 

Supervisors responded with the “queue ordinance” specifying that all prisoners should 

have their hair cut to one inch from the scalp. Again, though the law was general in 

its language, the obvious intent was to demean Chinese men as they wore their hair 

in a long braid or “queue,” and cutting it was seen as an act of disgrace. When Ho Ah 
Chinese Exclusion and the Federal Courts

17

Kow protested against such treatment, Justice Field struck down the queue ordinance 

as, among other things, a violation of the Fourteenth Amendment’s Equal Protection 

Clause. While expressing sympathy for anti-Chinese views, Field condemned the law 

for singling out Chinese in what was obviously a “hostile and spiteful” action. Field’s 

decision sparked anger and derision in the local press, which usually portrayed him 

as pro-Chinese, despite his repeated statements that he understood and supported 

calls to restrict Chinese immigration.

In re Tiburcio Parrott

Californians amended their constitution in 1879 and included several provisions 

targeting both Chinese and big business, linking the two groups as undesirable forces 

responsible for the oppression of the working man. Article XIX of the new constitution 

forbade corporations from hiring Chinese, refl ecting the views that Chinese laborers competed unfairly with white American labor by stealing their jobs and driving 

down wages. Tiburcio Parrott, the president of a quicksilver mining company, was 

prosecuted for hiring Chinese workers, and he fi led a writ of habeas corpus before 

the U.S. circuit court in San Francisco, challenging his incarceration under the law. 

Judges Ogden Hoffman and Lorenzo Sawyer struck down the law as a clear violation 

of the Burlingame Treaty, which provided Chinese residents with all of the “privileges, 

immunities and exemptions” extended to other foreigners. Since treaties, under the 

Constitution, were part of the “supreme law of the land,” state acts that confl icted 

with them were not valid. Judge Sawyer also held the law violated the Fourteenth 

Amendment’s Equal Protection Clause, following Justice Field’s reasoning in Ho Ah 

Kow that the clause protected all persons, not just citizens, from discriminatory treatment. Corporations had the right to hire whomever they wished, ruled the court, and 

Chinese residents had the right to pursue any lawful occupation. This interpretation 

of the Equal Protection Clause would gain the approval of the Supreme Court in Yick 

Wo v. Hopkins, decided in 1885, a year after the Chew Heong case.

Other Chinese exclusion laws cases

Case of the Chinese Cabin Waiter

This was the fi rst case to be litigated in response to the Chinese Exclusion Act of 1882. 

Ah Sing was a Chinese seaman who had lived in California at the time the 1880 treaty 

was signed but had left to serve on board a ship before the Exclusion Act was passed. 

The collector of customs at San Francisco refused to allow Ah Sing and other Chinese 

crewmen to dock, arguing that they did not have the return certifi cates required under 

the Exclusion Act. Justice Field ruled the collector’s actions were unreasonable and 

illegal. Field held that since the Chinese seamen had been aboard a ship sailing under 

the American fl ag, they had never left American territory. More importantly, Field 
Chinese Exclusion and the Federal Courts

18

insisted that the treaty with China must be respected. Field warned that the collector’s 

zealous enforcement of the law not only threatened amicable relations with China, 

but also could lead to the repeal of the Exclusion Act as unjust and too harsh. 

In re Low Yam Chow, The Case of the Chinese Merchant

Low Yam Chow was a Chinese merchant who had lived in San Francisco and applied 

for reentry in 1882 after a voyage to Panama. The collector denied him entry because 

he did not have the required “section 6” certifi cate from the Chinese government, 

identifying him as a Chinese merchant exempt from the Chinese Exclusion Act. Low 

Yam Chow protested that the requirement was unreasonable, as he would have to 

travel to China to obtain the certifi cate. Justice Field agreed, emphasizing the explicit 

guarantee in the 1880 treaty with China that Chinese merchants could continue to 

come to the United States. The purpose of the act, Field noted, was to restrict the 

immigration of Chinese laborers; the government desired to improve, not hamper, 

commerce with China. While Chinese merchants traveling from China should have 

section 6 certifi cates, Justice Field ruled it was only fair that merchants already in 

the United States or traveling from other foreign ports be allowed to establish their 

merchant status with other evidence.

United States v. Douglas and In re Ah Lung

These two confl icting decisions concerned the questions: Who was “Chinese” under 

the Chinese Exclusion Act? Did the act restrict only those who were subjects of China? 

Or did it also exclude any person of Chinese descent who came from other countries? 

The U.S. circuit court in Massachusetts held that Ah Shong, a laborer from Hong 

Kong (a possession of Great Britain), did not fall under the Chinese Exclusion Act 

because he was a subject of Great Britain, not China. The court reasoned that the act 

sought to execute the treaty between China and the United States, and could not be 

extended to subjects of nations who had not been parties of the treaty. Justice Field 

in the U.S. circuit court in California sharply disagreed in the case of Pong Ah Lung, 

another laborer from Hong Kong. Field emphasized that Ah Lung was “a Chinese by 

race, language and color,” and that Congress had intended to enact a racial exclusion, 

aiming at all Chinese laborers, regardless of their country of origin. No treaty with 

European nations to allow Chinese exclusion had been necessary, said Field, because 

they were not likely to care about the exclusion policy, sharing the United States’ antipathy for the Chinese. The confl icting opinions in these cases contributed to support 

for the 1884 amendment of the Exclusion Act, which specifi ed that exclusion applied 

to all “Chinese” laborers, whether or not they were subjects of China.
Chinese Exclusion and the Federal Courts

19

In re Chin Ah On

This case was closest to Chew Heong in the facts and legal issues it presented. Chin Ah 

On and several other petitioners were Chinese laborers who had lived in the United 

States at the time of the 1880 treaty, but left for China before the 1882 act was passed. 

They applied for admission based on their prior residence, but did not have “return 

certifi cates” as required under the act because they had left before the certifi cates 

became available. Judge Ogden Hoffman held that they could be admitted using 

other evidence. The collector’s insistence that they present return certifi cates was 

unreasonable and violated the rights of the resident laborers under the 1880 treaty. 

Unless Congress had clearly specifi ed its intent to negate the treaty, said Hoffman, 

the court must interpret the statute to conform to the treaty.

 The Chin Ah On case led to an upsurge in habeas corpus petitions, as a growing 

number of Chinese claimed to be prior residents who had left before the Exclusion Act 

was in place. The court’s decision contributed to public dissatisfaction in California 

with the judges’ decisions and increased support for an amendment that would close 

the “loopholes” in the 1882 act.
Chinese Exclusion and the Federal Courts

20

Lawyers’ Arguments and Strategies

Attorneys for Chew Heong

The attorneys for Chew Heong, led by Thomas Riordan, argued that the Exclusion 

Act of 1884 did not override the previous judicial decisions allowing exempt Chinese 

to present other evidence when it proved impossible for them to obtain the required 

certifi cate. Riordan emphasized that not only the federal courts but also the Secretary 

of the Treasury had consistently ruled that a rigid interpretation of the requirement 

for a certifi cate violated the Treaty of 1880 and basic principles of justice. The law 

could not require the impossible, Riordan said. In his appeal to the Supreme Court, 

Riordan quoted Justice Stephen Field’s earlier opinions about the need to abide by 

the treaty and to interpret laws reasonably.

 If precedent and the treaty were in his favor, Riordan had a bit more diffi culty in 

confronting congressional intent and the language of the law, both of which appeared 

to lend support to the government’s case. Riordan emphasized that Congress had 

not expressly overruled the federal courts’ decisions nor had it intended to nullify 

the 1880 treaty. In fact, Riordan emphasized, the statute’s supporters had explicitly 

affi rmed their support of the treaty. Riordan relied on a close and rather technical 

reading of the 1884 law to avoid the language regarding certifi cates as the “only 

evidence permissible” to establish prior residence with a close and rather technical 

reading of the law’s wording. He argued the law acknowledged two classes of exempt 

laborers, those who had lived in the United States at the time of the treaty but had 

no certifi cates and those who were prior residents and had return certifi cates. The 

clause making the certifi cate the only acceptable evidence only applied to the latter, 

he argued.

The government’s attorneys

U.S. Attorney Samuel Hilborn before the circuit court and Assistant Attorney General William A. Maury before the Supreme Court downplayed the importance of 

the Treaty of 1880. If two interpretations of a statute were possible, the government 

conceded that judges should choose the one that conformed to the treaty, but in this 

case, argued Maury, only one interpretation was possible. Both the plain language 

of the statute of 1884 and the purpose of the law indicated that Congress intended 

to apply the certifi cate requirement to all Chinese laborers. In recommending the 

bill, the congressional committee insisted that the country needed more stringent 

procedures to combat widespread evasion of the law and the congestion of the courts’ 

dockets with the Chinese habeas corpus cases. The fi nal wording of the act was clear 

and explicit, argued Maury, allowing no other reasonable interpretation: every Chi-
Chinese Exclusion and the Federal Courts

21

nese laborer must have a certifi cate, regardless of the circumstances. The law might 

work a hardship for certain individuals, conceded Maury, but it was not up to the 

courts to alleviate that problem. So, too, the law might violate the treaty, but that did 

not make it any less binding. Maury believed the law could be interpreted to be in 

harmony with the treaty but insisted that if the 1884 law confl icted with the treaty, 

the statute must be upheld as the most recent indication of the will of the sovereign 

legislature. The government portrayed the circuit and district court judges who dissented from Field’s opinion as “carried away by . . . sentiment” and unduly swayed by 

a “misguided solicitude for the honor of the Government.” While seeming to express 

admiration for the “noble manner in which [the judges] stand up for these Chinese 

against an infl amed public opinion,” the government attorneys left no doubt that the 

judges’ concerns were ill placed as “the alien has no constitutional right to set foot 

on our shore except on the terms Congress has prescribed.” It was the country, not 

the Chinese, that the courts should protect.
Chinese Exclusion and the Federal Courts

22

Biographies

Judges 

Stephen J. Field (1816–1899)

Born in Haddam, Connecticut, Field studied 

law in the offi ce of his brother, David Dudley 

Field, a prominent New York attorney and 

legal reformer. As a young lawyer, Stephen 

Field joined the rush to the California mines 

in 1849, quickly becoming the alcalde (mayor 

and judge) of Marysville, California, and 

establishing a reputation for his legal skill as 

well as his forceful and often irascible character. After a brief stint in the state legislature, 

he was elected to the California Supreme 

Court in 1857 where, as chief justice, he took 

a leading and occasionally controversial role 

in adapting the common and civil law to the 

unique needs of California’s mining frontier. 

President Abraham Lincoln appointed Field 

to the Supreme Court of the United States 

in 1863. Field was a Democrat but the Republican administration welcomed him as 

a supporter of the Union and as a needed 

representative of the growing western region. 

Stephen J. Field served until 1897, the longest 

tenure of any Supreme Court justice in the 

nineteenth century, and sat on the Court in 

an era in which it struggled to come to terms 

with the signifi cance of the Civil War, Reconstruction, and rapid industrialization.

 Justice Field became particularly infl uential for his interpretations of the Fourteenth Amendment, ratifi ed in 1868. Drawing on natural rights theories, Jacksonian 

beliefs in limited government and free labor, and laissez-faire economics, Field viewed 

the Fourteenth Amendment as a broad protection of individual liberty from undue 

government interference. He relied on the amendment to strike down government 

regulations, such as the federal income tax, that he believed interfered too much with 

private enterprise, sought to redistribute wealth, or created what he thought were 

Justice Stephen J. Field

Brady-Handy Photograph Collection, 

Library of Congress, Prints and Photographs 

Division [reproduction number 

LC-DIG-cwpbh-00821].
Chinese Exclusion and the Federal Courts

23

special privileges or class legislation. By the early twentieth century, the Supreme 

Court had embraced much of his Fourteenth Amendment jurisprudence.

 Field also pioneered an expansive interpretation of the Fourteenth Amendment’s 

“Equal Protection Clause,” especially in cases involving local and state legislation 

discriminating against Chinese in his adopted state of California. He ruled that the 

amendment, in specifying that “no state shall . . . deny any person . . . the equal protection of the laws,” protected from discrimination anyone living in the United States, 

not just citizens. Yet, he did not believe the Equal Protection Clause shielded African 

Americans from infringements of political and social rights, seeing the Fourteenth 

Amendment’s protections as limited to “civil rights,” such as the right to own property, 

to pursue an occupation, and to sue in court.

 Justice Field served as the circuit justice for the Ninth Circuit, which then encompassed California, Oregon, and Nevada. Field was supremely confi dent of his 

own opinions and could be impatient and even petty when others disagreed with 

him. While the relationship among the judges was often congenial, tensions arose 

in cases like Chew Heong when the other federal judges failed to follow the lead of 

Field. Field’s opinions and forceful character also put him at odds with the general 

public, as his decisions were not always popular or well understood.

 Field cared deeply about his public image because he harbored presidential ambitions. He campaigned for the Democratic Party nomination in 1880 and again in 

1884—an unusual step for a sitting Supreme Court justice that raised questions about 

the political motivations of his decisions. His decisions earned him the reputation, 

whether deserved or not, of being a friend of large corporations and the Chinese, 

a reputation that foiled his political career. The California State Democratic Party 

explicitly rejected him as a potential candidate in July 1884.

 While Field claimed he would never change a word of what he had written in the 

Chinese cases, Field began to take a more hard-line approach to the Chinese exclusion 

cases, most evident in his decision in Chew Heong. It may be that Field, so thoroughly 

spurned by the California Democratic Party for his Chinese decisions, decided to 

heed the political winds despite his previous declarations that he would never let 

politics determine his judicial opinions. In his opinion, Field explicitly referred to 

the public’s impatience with the federal judiciary’s handling of the Chinese cases and 

urged his colleagues to bow to legislative will. Field’s new interpretation may also 

have stemmed from his own frustration with the diffi culty of enforcing the Chinese 

Exclusion Acts and the burgeoning caseload they had created for his circuit. 

 Field would not always rule against Chinese. On the same day that Chew Heong

was decided, he handed down his decision in another controversial case, In re Look 

Tin Sing, holding that children born of Chinese parents living in the United States 

were American citizens—a decision that would have enormous consequences in 

allowing the Chinese-American community to grow slowly and in providing an exception to the exclusion laws. So, too, Field would generally continue to rule in favor 
Chinese Exclusion and the Federal Courts

24

of Chinese residents complaining of violations of constitutional rights while living 

in the United States. But when it came to the congressional right to exclude Chinese 

from entering the United States, Field would uphold the exclusion laws as broadly as 

possible, culminating with his landmark decision in Chae Chan Ping v. United States

in 1889. 

John Marshall Harlan (1833–1911)

John Marshall Harlan served as a justice 

of the Supreme Court of the United States 

from 1877 until his death in 1911, one of 

the longest tenures of any justice. Born in 

1833 to a Kentucky slave-owning family, 

Harlan initially supported both slavery and 

a strong national government. Harlan sided 

with the Union during the Civil War, and, 

though he originally opposed emancipation, 

he became a fervent defender of both broad 

national power and civil rights as protected 

by the Thirteenth, Fourteenth, and Fifteenth 

Amendments. He came to view the Reconstruction Amendments as the fl owering of 

the nation’s unique commitment to legal 

equality embodied in the Declaration of 

Independence and the Constitution.

 Harlan’s devotion to nationalism and 

civil equality was not always shared by his 

brethren on the Supreme Court, and he 

earned the nickname of “The Great Dissenter” because of the number of passionate 

dissents he wrote in landmark cases involving such issues as the income tax, antitrust laws, the status of the insular territories, 

and the civil rights of African Americans. His most famous dissent came in Plessy 

v. Ferguson, in which the majority upheld racial segregation laws on railroads as 

constitutional. In his dissent, Harlan rendered his best-remembered line that “our 

constitution is color-blind” and predicted, correctly, that the decision would be “as 

pernicious as the decision . . . in the Dred Scott case.” 

 Harlan was more ambivalent about the place of Chinese in the American republic. 

While he argued that the nation had an obligation to extend rights to African Americans, Harlan shared many of his contemporaries’ views of Chinese as a distinct and 

foreign race who would not assimilate. In 1898, for example, Harlan joined Chief 

Justice John Marshall Harlan

Brady-Handy Photograph Collection, 

Library of Congress, Prints and Photographs 

Division [reproduction number 

LC-DIG-cwpbh-04615].
Chinese Exclusion and the Federal Courts

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Justice Melville Fuller in a dissent from the Supreme Court’s decision in Wong Kim 

Ark, ruling that the children born in the United States to Chinese residents were U.S. 

citizens. Harlan and Fuller rejected that conclusion, in part on the ground that the 

children of Chinese, “a distinct race and religion, remaining strangers in the land,” 

could become citizens by mere “accident of birth.” But, in other cases such as Chew 

Heong, Harlan’s primary concern to support national power and honor prevailed. 

Writing for the majority in Chew Heong, Harlan asserted that the nation, to be credible in foreign affairs, must abide by the promises it made in treaties. Any legislation, 

such as the Chinese Exclusion Act, should be interpreted whenever possible to agree 

with the treaties binding the country. Harlan also supported the federal criminal 

prosecution of white vigilantes in Nicolaus, California, who forcibly expelled fortysix Chinese in the middle of the night. Dissenting from the majority of the Court, 

which held that there was no national law allowing the prosecution of individuals 

in such cases, Harlan argued that the civil rights legislation passed in the wake of 

Reconstruction should be construed broadly to allow the national government to 

punish such acts. 

Ogden Hoffman (1822–1891)

Ogden Hoffman served as U.S. district court judge in California from 1851–1891, 

making him one of the longest serving trial court judges in American history. In 

pursuing a legal career, he followed a family tradition. He was born in 1822 in New 

York to a well-known family of distinguished lawyers and political leaders. His father 

earned a reputation as a criminal trial lawyer and served as the U.S. attorney for the 

Southern District of New York. Hoffman earned degrees at Columbia University and 

Harvard Law School and then, like his colleagues Justice Stephen Field and Judge 

Lorenzo Sawyer, struck out for the Gold Rush of California, arriving in San Francisco 

in May 1850. Within a year, he had received an appointment from President Millard 

Fillmore to the new U.S. District Court for the Northern District of California. Only 

29 years old and a bachelor at the time, he would devote the remainder of his life to 

the bench. The court was both literally and fi guratively his family; he appointed his 

half-brother, Southard Hoffman, to serve as the clerk of the court.

 In his forty-year tenure on the bench, Judge Hoffman handled many contentious 

issues as California developed from a frontier outpost to an established state with 

diverse economic and political interests. Hoffman’s court devoted a great deal of time 

to admiralty cases and the controversial land litigation arising from the Mexican 

land grants. By the 1880s, litigation involving Chinese immigrants became the most 

time-consuming and bitterly fought cases coming before Judge Hoffman.

 Like the other federal judges in the Ninth Circuit, Judge Hoffman supported the 

Chinese exclusion policy and shared the prevailing negative views of Chinese. Yet, he 

consistently upheld the right of individual Chinese to obtain writs of habeas corpus 
Chinese Exclusion and the Federal Courts

26

challenging their exclusion and believed strongly that the Treaty of 1880 constrained 

what Congress and the courts could do. He upheld the rights of resident Chinese 

laborers and Chinese merchants to prove their exemption from the exclusion laws by 

presenting parol evidence, if they had been unable to obtain the certifi cates required 

by law. Hoffman’s approach brought him into confl ict with Justice Field, who by the 

time of Chew Heong, viewed the treaty as no more binding than congressional statutes. Throughout their association on the bench, Hoffman and Field’s relationship 

was often tense, as they remained divided by political party, personality, personal 

ambition, and judicial style. The Chinese habeas corpus cases only served to weaken 

a fragile working relationship. Hoffman also endured scathing public criticism for his 

decisions in the Chinese cases. In more than one judicial opinion and in the press, he 

tried to justify his decisions and to show he had no option as a judge but to uphold 

the law. Hoffman frequently complained about the crushing workload and called for 

relief from the “intolerable nuisance” of the Chinese cases, arguing they clogged the 

courts and taxed the judges’ health. But he did not believe such action should come 

at the expense of dishonoring the nation’s treaty obligations with China.

George Myron Sabin (1833–1890)

George Sabin was judge of the U.S. District Court in Nevada between 1882 and 1890. 

Born in Ohio in 1833, Sabin graduated from Western Reserve College and practiced 

law in Wisconsin until the outbreak of the Civil War. He served in the armed services 

for the duration of the war, achieving the rank of U.S. Army colonel and sitting as 

the Judge Advocate of the Military District of Vicksburg. In 1868, Sabin headed for 

Nevada where he established a lucrative private law practice, fi rst in Treasure Hill 

(1868–1872), then in Pioche (1872–1877), and Eureka (1877–1881). He continued 

to serve in a military capacity as well, fi lling the position of commanding offi cer of 

the Second Brigade of the Nevada National Guard. He never married.

 In 1882, Sabin was appointed by President Chester A. Arthur to the U.S. District 

Court in Nevada where he served until his death. He hesitated to accept the appointment to the bench, discouraged by the low salary. He reported he could make at least 

twice, and sometimes four times as much, in his private legal practice. Yet, Sabin 

expressed great satisfaction with his career as a judge, enjoying the types of cases 

he heard and the quality of the lawyers who appeared before him. As a judge in the 

Ninth Circuit, Sabin was often called by circuit judge Lorenzo Sawyer to assist with 

the tremendous number of habeas cases in the District of California. Sabin came to 

San Francisco to hear cases several times a year, staying for as long as two months 

each visit. There he would sit in both the U.S. district court and the U.S. circuit court. 

Sabin shared the views of Hoffman and Sawyer in the Chew Heong case, believing 

the exclusion acts had to be interpreted to conform to the treaty with China.
Chinese Exclusion and the Federal Courts

27

Lorenzo Sawyer (1820–1891)

Lorenzo Sawyer was born in Le Roy, New York. After receiving degrees at Western 

Reserve and Hamilton Colleges, he studied law with Noah H. Swayne, a future Supreme Court justice. Like the other judges in the Ninth Circuit, Sawyer joined the 

migration of fortune seekers sparked by the Gold Rush, arriving in California by the 

overland route in July 1850. His career as a miner was short-lived as his legal services 

proved to be more lucrative and in demand in the growing frontier communities. 

After establishing a law practice in Nevada City, he left to become the city attorney in 

San Francisco in 1854. In 1862, Sawyer accepted a nomination by Republican Governor Leland Stanford as judge of the Twelfth Judicial District in California and was 

elected to the California Supreme Court a year later. In 1868, he became the court’s 

chief justice. In 1870, he arrived at the pinnacle of his judicial career when President 

Ulysses S. Grant appointed him to the newly established circuit judgeship for the 

Ninth Circuit. He would serve in that judgeship until his death.

 Judge Sawyer presided over a number of controversial cases arising in California, 

including the famous “Mining Debris” trial that pitted two of the state’s largest industries—hydraulic mining and agriculture—against one another. Sawyer encountered the most heated public opposition to his decisions in Chinese civil rights and 

exclusion cases. Soon after arriving in California, Sawyer expressed his admiration 

of Chinese immigrants, describing them as industrious, dignifi ed, and curious about 

American institutions. As chief justice of the California Supreme Court, Sawyer 

narrowed a state law forbidding Chinese testimony in criminal cases, fi nding it a 

violation of the Due Process Clause of the Fourteenth Amendment. Once on the 

federal bench, Sawyer continued to check state and federal laws that discriminated 

against Chinese when he believed they violated treaty rights granted to Chinese, the 

Fourteenth Amendment’s guarantees of due process and equal protection, or the 

supremacy of the national government. He concurred in Field’s opinions in striking 

down discriminatory laundry regulations and the so-called “queue ordinance” and 

went further than Field in insisting that the Exclusion Acts of 1882 and 1884 had to 

be interpreted to conform to the Treaty of 1880.

 Sawyer wrote a dissenting opinion in the circuit court decision in Chew Heong, 

emphasizing that the court must protect the national honor by enforcing the agreements the country made with other nations. When Congress amended the Exclusion 

Act in 1888, explicitly denying the right of resident Chinese laborers to return to the 

United States and thus rejecting the terms of the treaty, Judge Sawyer felt compelled 

to uphold the new Exclusion Act. If a treaty and a statute were in direct confl ict, he 

argued, the most recently adopted law prevailed as the latest expression of the nation’s 

sovereign will. So, too, by 1890, it seems that Judge Sawyer had begun to share the 

anti-Chinese sentiment of other Californians. In contrast to his admiration of the 

Chinese in 1850, forty years later he suggested that Chinese immigration had been 

a mistake, given what he perceived to be their vast racial differences.
Chinese Exclusion and the Federal Courts

28

 Judge Sawyer faced scathing public criticism for his decisions in the Chinese 

cases. He was lampooned in the political cartoons of the day and even targeted for a 

foiled assassination attempt by a fringe group in the “Anti-Coolie” Club that aimed to 

eradicate Chinese from California. His close personal and professional ties to railroad 

magnate Leland Stanford prompted allegations that his pro-Chinese decisions were 

motivated by economic interests; even in 1890, when Sawyer expressed doubts about 

Chinese immigration, he praised their contributions to American industry and their 

signal contributions to the building of the railroads.

 Sawyer’s personal papers and judicial decisions reveal a man whose opinions 

were driven also by what he thought the treaties with China and the Fourteenth 

Amendment’s Due Process and Equal Protection Clauses required. In letters to Judge 

Matthew Deady, Sawyer expressed frustration with the public outcry over the judges’ 

Chinese decisions, but took refuge in an ultimate vindication of their actions, saying, 

“I guess time will bring us out about right.”

Parties in the case

Chew Heong

The historical sources tell us very little about Chew Heong, the petitioner in the case. 

Even his true name is uncertain. The District Court case fi les give it alternately as 

Cheen Heong and the newspapers referred to him as Chin Yeong. The court records 

reveal only that he was a laborer who came to the United States sometime before 

November 17, 1880, the date the Angell Treaty of 1880 went into operation. As a 

Chinese laborer residing in California on that date, he was entitled by the treaty, as 

he would be by the Chinese Exclusion Act of 1882, to remain in the country and to 

return if he chose to travel to other countries. Chew Heong left San Francisco on June 

18, 1881, for Honolulu, then part of the Kingdom of Hawaii, where he remained for 

over three years. On September 22, 1884, he returned to San Francisco on the steamship Mariposa but was denied entrance by the collector of the port because he did 

not have a return certifi cate verifying that he was a resident laborer. Chew Heong’s 

name became known largely from a twist of historical fate: the Chinese vice consul 

in San Francisco selected his as a representative case to test the application of the new 

1884 act to an estimated 12,000 Chinese laborers who left the United States before 

the return certifi cates became available. 

 Lacking specifi c information on Chew Heong, the best one can offer is a “collective 

biography,” sketching the general characteristics and experiences of Chinese laborers 

living in the United States in the period. Most male laborers came from agricultural 

regions in the southern province of Guangdong in China, the most cosmopolitan 

and market-oriented region in the country. As population and political turmoil in-
Chinese Exclusion and the Federal Courts

29

creased in the region, many young men sought to improve their families’ economic 

position by emigrating to the United States and other destinations. They landed in 

San Francisco to fi ll a variety of jobs, from mining and railroad construction in the 

1850s and 1860s to manufacturing and service industries in the 1870s and 1880s. By 

1870, Chinese comprised 25% of California’s wage-earning workforce. While Chinese 

laborers’ wages remained among the lowest of California workers, the money they 

sent home to China often allowed their families a modicum of fi nancial security 

and provided vital funds to sustain their native communities. Young men, like Chew 

Heong, might also strike out for Hawaii where they could easily fi nd unskilled jobs 

on the booming sugar plantations. In 1881, when Chew Heong left for Honolulu, 

an unprecedented number of Chinese arrived in Hawaii in search of work. Most 

Chinese laborers left the demanding plantation jobs after their contracts had expired 

and sought better-paying and less-harsh work elsewhere. 

 Once the exclusion policy was adopted and anti-Chinese sentiment in the United 

States crested, the position of Chinese laborers became more precarious. Illegal immigration remained the only option for those who wished to come to the United States 

in search of broader economic opportunities. For those like Chew Heong who retained 

the legal right to remain in the United States, their movements became increasingly 

regulated by law. After 1888, Chinese laborers who left the United States could not 

return, unless they had property worth $1,000 or a wife or child in the United States; 

but their Chinese wives or children could not legally immigrate to the United States. 

Such laws created a “bachelor society” dominated by Chinese men forced either to 

remain single or to endure long separation from their families in China unless they 

were willing to risk illegal immigration. In 1892, Chinese laborers with the legal right 

to remain in the United States were required to register with the U.S. government or 

else face deportation. Just as the laws constricted their physical movement, Chinese 

laborers had fewer economic options after the 1880s as Chinese manufacturers faced 

stiff competition and boycotts from American competitors. By the turn of the century, Chinese laborers worked increasingly in American Chinatowns in laundries, 

restaurants, or stores, in the homes of white Americans as domestic servants, and in 

the agricultural fi elds as farm workers in the state’s interior.

 The fi nal fate of Chew Heong is unknown but the federal census records from 

1910 provide one possible clue. In the census, a 48-year-old man by the name of Chew 

Heong is listed as living on Roberts Island in the San Joaquin Delta and working with 

seven Chinese partners on a farm. Typically, Chinese obtained “developmental leases” 

from large land corporations, doing the hard work of cultivating reclaimed delta land. 

Chew Heong reported immigrating to the United States in 1880 when he was about 

18. All of his partners were single and middle-aged, typical of the “bachelor society.” 

Most, including Chew Heong, said they could read, write, and speak English, abilities 

probably picked up by their long residence in the United States. While one cannot 

be certain that he was the same man who gained brief notoriety in the test case of 
Chinese Exclusion and the Federal Courts

30

1884, the census provides an entirely plausible story of Chew Heong’s life trajectory, 

in keeping with the life histories of Chinese laborers of the era.

The Chinese consul in San Francisco

In 1878, the Chinese government created a consulate in San Francisco in response to 

repeated requests of Chinese in that city for an offi cial agency to protect them from 

growing hostility in California and to provide leadership for the Chinese-American 

community. The Chinese consul did not always share the perspectives of Chinese 

immigrants, but he did exercise signifi cant political power in the immigrant communities. For example, the consulate attempted to mediate internal confl icts within 

San Francisco’s Chinatown and also sought to improve social services by, for example, building a Chinese hospital in the city. The Chinese consul also proved to be 

an ardent advocate of Chinese rights, protesting eloquently against discriminatory 

laws and demanding investigations and reparations when Chinese became victims 

of violent white mobs.

 Along with the Chinese Six Companies, the Chinese consul played a key role in 

developing the litigation strategy to challenge discriminatory laws, including the 

exclusion policy, and providing the funding for the legal battles. Anticipating the 

importance of good legal advice, the consulate hired an American lawyer, Frederick 

A. Bee, to serve as vice consul. The consulate also kept other attorneys on retainer, 

including Thomas Riordan, one of Chew Heong’s lawyers, to represent Chinese when 

the need arose. With the surge in anti-Chinese legislation by the 1880s, that need 

arose frequently. Through its American attorneys, the Chinese consulate challenged, 

among other acts, the segregation of Chinese children in San Francisco schools, laws 

prohibiting Chinese from working in particular jobs, and the stringent enforcement 

of the exclusion laws adopted by the collector of the port. In 1884, the consulate 

sponsored the test case in Chew Heong, seeing it as crucial to determining the rights 

of approximately 12,000 Chinese laborers under the Angell Treaty of 1880. 

Chinese Six Companies (Zhonghua Huiguan)

The Zhonghua Huiguan, known to white Americans as the Chinese Six Companies, 

was a key organization for Chinese Americans in the nineteenth century, made up 

of representatives from smaller huiguan or district associations. Chinese immigrants 

joined one of several huiguan, depending on the region they came from in China. 

Each huiguan had its own building and staff and provided an array of social and 

economic services for Chinese immigrants. Huiguan could help their members 

fi nd jobs and mediate internal disputes as well as provide a social outlet in an often 

hostile environment. Members paid dues to support a wide range of social services 

such as medical care, support for the indigent, and funeral expenses. Huiguan allotted a portion of the dues to retain the services of American lawyers in immigration 
Chinese Exclusion and the Federal Courts

31

and other civil and criminal cases. The huiguan were led by Chinese scholars, from 

the members’ home districts, who had successfully mastered the civil service exams 

traditionally required of administrators.

 Each huiguan sent its president to serve on the central governing body, the Chinese Six Companies, also known in English as the Chinese Consolidated Benevolent 

Association. The Chinese Six Companies performed many of the same benevolent 

services offered by the individual huiguan but also allowed for unifi ed action among 

the Chinese. The organization became the best known advocate of Chinese immigrants in the United States and played an important role in defending Chinese from 

discriminatory practices and legislation. It hired American attorneys—often very 

distinguished and able lawyers—to represent Chinese in state and federal courts. 

When Congress passed the Geary Act of 1892, requiring all Chinese laborers in the 

United States to register with the government or face deportation, the Chinese Six 

Companies organized a campaign of massive noncompliance that ended only after 

the Supreme Court upheld the act’s constitutionality. The Chinese Six Companies, 

in conjunction with the Chinese consulate, were instrumental in providing the organizational network and the leadership to develop the litigation strategy that led to 

such cases as Chew Heong.

William H. Sears

William Sears was the collector of the port at San Francisco, responsible for overseeing 

the enforcement of the Chinese exclusion laws when Chew Heong’s case came before 

the federal courts. Sears was born in Portland, Connecticut, in 1830 and arrived in 

California in 1851. For several years he was involved in the mining business before 

moving to San Francisco in 1865 and becoming a lawyer. A staunch Republican, 

Sears served several terms in the state assembly and the state senate, where he was a 

leading proponent of a bill to repeal a state law that prohibited African Americans 

from testifying in court. The California Supreme Court had ruled that the law also 

applied to Asians.

 President Chester Arthur appointed Sears as collector of the port at San Francisco 

on May 15, 1884, shortly before the Act of 1884 was adopted. The position of collector was one of the most lucrative and desirable political appointments in the federal 

government. The collector operated in the public eye, and the local newspapers saw 

the collector’s policies as indicative of the presidential administration’s effectiveness. 

Thus, in the anti-Chinese environment of California in the 1880s, the collectors had a 

stake in proving themselves and the administration as a whole as fervent supporters 

of restriction. Sears followed the precedent of the earlier collector by adopting a strict 

interpretation of the law, to the point that the federal judges accused the collectors 

of being unreasonably zealous in their rigid enforcement.
Chinese Exclusion and the Federal Courts

32

 Sears served less than two years as collector, losing his position to John Hager 

when the Democratic President Grover Cleveland took offi ce in 1885. Sears became 

collector of internal revenue in San Francisco in 1890 and served in that position 

until his death on February 27, 1891. 

Attorneys

Frederick A. Bee

Frederick Bee was a lawyer appointed by the Chinese government to serve as viceconsul in the Chinese consulate in San Francisco in 1878. He was born in New York 

around 1825 and came to California’s gold fi elds to seek his fortune, fi rst in mining 

and then as a merchant. The entrepreneurial Bee became involved with efforts to 

establish a transcontinental telegraph line and the Pony Express. After the opening of 

the Civil War, President Abraham Lincoln appointed Bee to be the provost marshal of 

the Central and Northern Districts of California. At the end of the war, he resumed 

his entrepreneurial activities, including involvement in the construction of the San 

Francisco and Northern Pacifi c Railroad.

 Bee’s association with Chinese immigrants began as early as 1855 when he defended Chinese miners who were being harassed by white neighbors in El Dorado 

County. In 1876, he took on a more offi cial role as a public advocate of Chinese immigrants. In response to a request by Senator Oliver P. Morton, serving as chair of a 

congressional committee appointed to investigate Chinese immigration in 1876, Bee 

agreed to serve as the attorney for the Chinese Six Companies when the committee 

held hearings in San Francisco. Two years later, he accepted the position as vice consul 

for the Chinese government and worked for the consulate until his death in 1892.

 As an offi cer in the Chinese consulate, Bee served as an intermediary between 

the Chinese immigrant community and American society. Bee acted in an offi cial 

capacity to represent Chinese interests before the U.S. government, appearing before 

congressional committees, writing letters to offi cials, and investigating and demanding 

reparations for anti-Chinese violence. He was also a publicist for the Chinese, seeking through newspaper interviews and public letters to educate the American public 

about Chinese immigrants and refute popular racial stereotypes. As an attorney, he 

played an important role in the litigation sponsored by Chinese organizations. He 

probably helped to select the test cases brought in response to the Chinese Exclusion 

Act and to fi nd other attorneys to represent the petitioners. He frequently appeared 

in federal court in important Chinese cases and was one of the several lawyers present at Chew Heong’s hearing. 
Chinese Exclusion and the Federal Courts

33

Harvey Brown

Harvey Brown was one of several attorneys appearing on behalf of Chew Heong, 

though he represented the interests of the Oriental and Occidental Steamship 

Company and the Southern Pacifi c Railroad Company. The Oriental and Occidental Steamship Company owned the Mariposa, the ship that Chew Heong sailed on 

from Honolulu. When Chew Heong fi led his petition for a writ of habeas corpus, 

he named the ship’s master as the one detaining him illegally. Hence, the steamship 

company had a lawyer representing its interests. But the company was more an ally 

than an adversary of the Chinese. The petitions typically alleged that the master of 

the ship detained Chinese illegally, but that was a technical matter, as the steamship 

companies were required by law to keep Chinese on board and return them to their 

port of origin if the collector denied them entry. The real adversary in the Chinese 

habeas corpus cases was the collector of the port, represented by the U.S. attorney. As 

commercial enterprises making their money from the trans-Pacifi c passenger traffi c, the steamship companies clearly had a stake in keeping the gates to the United 

States open. Brown appeared in the Chew Heong and other Chinese exclusion cases to 

argue on behalf of a liberal interpretation of the law and preserve, as far as possible, 

continued Chinese immigration.

 Brown was born in July 1824 in New York. He served as district attorney for San 

Francisco, resigning from that position in 1861. Brown appears to have had a long 

association with Leland Stanford, railroad magnate and former governor of California. The steamship company and the railroads were closely connected. The Oriental 

and Occidental Steamship Company was formed in 1874 by the Central Pacifi c and 

Union Pacifi c Railroad companies. Stanford was president of the Central Pacifi c 

and later of the Southern Pacifi c Railroad, which Harvey Brown represented as an 

attorney. Brown’s connection with Stanford became a family affair. In 1880, his son, 

Harvey, Jr., worked as a clerk for the railroad, and his youngest son was named Leland 

Stanford Brown. Brown’s appearance on behalf of Chinese in the exclusion cases no 

doubt fueled exclusionists’ accusations of the close connections between the large 

railroads and Chinese immigration.

Carroll Cook

Carroll Cook was the fi rst assistant U.S. attorney in San Francisco between 1883 and 

1886. He helped U.S. Attorney Samuel Hilborn represent the government’s case in 

Chew Heong and in many other Chinese habeas corpus cases. His brother, William 

Hoff Cook, was one of several attorneys hired on behalf of Chew Heong, making the 

two adversaries, at least for a short while.

 Carroll Cook came from a distinguished family of lawyers. His father, Elisha 

Cook, came to San Francisco in 1850 and established a thriving practice and an ex-
Chinese Exclusion and the Federal Courts

34

cellent reputation in criminal law. Carroll was the eldest son, born in San Francisco 

in January 1855, and he followed in his father’s footsteps by developing a specialty 

in criminal law. After serving four years as assistant U.S. attorney, Cook went on to 

be elected as a judge of the Superior Court of San Francisco, serving a six-year term 

(1896–1903). 

 While in the 1880s, Cook opposed Chinese habeas corpus petitions in his position 

as assistant U.S. attorney. Twenty years later he became an advocate for the ChineseAmerican community. The Chinese consul general and the Chinese Consolidated 

Benevolent Association (or Chinese Six Companies) hired Cook to be their attorney. 

They paid him a monthly fee to represent Chinese in immigration, civil, and criminal 

cases whenever the need arose. Several attorneys who had represented the government in the U.S. Attorneys’ offi ce later used the expertise they developed on behalf 

of their Chinese clients.

William Hoff Cook

William Hoff Cook was one of several attorneys hired to represent Chew Heong. The 

case pitted him against his older brother, Carroll Cook, who argued the government’s 

case as the assistant U.S. attorney. William Hoff Cook was born in San Francisco in 

1860, making him only twenty-four years old at the time of the Chew Heong case. 

His father, Elisha Cook, was a prominent criminal law attorney who established a 

lucrative practice. It is unclear how Cook came to work as an attorney for the Chinese. It is possible that he worked in a legal practice with Thomas D. Riordan, one 

of the other established attorneys in the case. Cook later represented the city of San 

Francisco as an attorney and carried on a general legal practice.

Samuel Greeley Hilborn

Samuel Hilborn was appointed by President Chester A. Arthur to be the U.S. attorney 

for the Northern District of California in San Francisco between 1883 and 1886. He 

was intimately involved in the litigation over the Chinese exclusion cases. He led 

the government’s fi ght in the Chew Heong case to require that all Chinese resident 

laborers must present return certifi cates. 

 Hilborn was born in Minot, Maine, in 1835 and graduated from Tufts College in 

Massachusetts in 1859. He moved in 1861 to Vallejo, California, where he established 

a private law practice and also served in a number of offi cial capacities, from city 

trustee to county supervisor. A Republican, he was elected to the California state senate 

in 1875–1876 and 1877–1878 and was a member of the state constitutional convention of 1878. He opposed the new constitution, which would run into signifi cant 

legal diffi culties in litigation before the federal courts. After his term as U.S. attorney 
Chinese Exclusion and the Federal Courts

35

ended, Hilborn went on to serve as a member of the U.S. House of Representatives 

from 1892 to 1894 and again from 1895 until his death in 1899. 

William A. Maury

William Maury was the assistant attorney general who represented the government 

in the Supreme Court hearing of the Chew Heong case. Maury was the son-in-law 

of Commodore Matthew Fontaine Maury, a famous American pioneer in oceanography and meteorology, who left his position as the head of the United States Naval 

Observatory to become a commander in the Confederate Navy when the Civil War 

broke out. Maury shared his father-in-law’s southern sympathies and served as a 

judge advocate in the Confederate Army. He was fi rst appointed as assistant U.S. 

attorney general by President Chester Arthur, to whom he was distantly related by 

marriage. Soon after his appointment, the New York Times characterized Maury as 

“a pronounced Bourbon Democrat of aristocratic birth and surroundings.” Maury 

evidently had higher aspirations, but his primary appointment remained as the assistant attorney general, which position he retained through the Arthur, Cleveland, 

and Harrison administrations. After his service in the Department of Justice, Maury 

was appointed as a member of the Spanish Treaty Commission in 1901 and also 

served as a faculty member at Columbian College, later renamed George Washington 

University. He died on June 15, 1918, in Washington, D.C.

Thomas D. Riordan

Thomas Riordan was a California native, born in San Francisco in 1855. He graduated from St. Ignatius College with high honors at the age of nineteen and read law. 

Riordan’s legal mentor was Benjamin S. Brooks, a prominent member of the San 

Francisco bar who had become an advocate for the Chinese. When, in 1876, a special 

congressional committee visited San Francisco to investigate Chinese immigration 

to the United States, Brooks volunteered his services as a lawyer to help represent the 

Chinese community. In 1877, Brooks published a pamphlet, The Chinese in California, 

defending Chinese immigrants against rising anti-Chinese sentiments. It was during 

this period that Riordan studied law under Brooks’ tutelage and, after being admitted 

to the state and federal bar in 1879, Riordan soon became an attorney for the Chinese 

consul and the Chinese Six Companies in San Francisco. Hired on retainer, Riordan 

represented many Chinese in immigration cases and in civil and criminal matters. 

He not only led the legal team representing Chew Heong, but also argued several of 

the landmark Chinese exclusion and civil rights cases before the federal courts and 

on appeal to the Supreme Court, including the Chinese Exclusion Case of 1889 and 

Fong Yue Ting v. United States in 1892. Riordan died in San Francisco in 1905. 
Chinese Exclusion and the Federal Courts

36

Media and Public Debates

In all of its proceedings regarding Chinese residents, the federal courts in San Francisco operated under close public scrutiny. Chinese immigration remained one of the 

most volatile political issues in the late nineteenth century, and both political parties 

competed to demonstrate their zeal to confront the perceived problem. Newspapers 

covered in detail court cases involving Chinese, refl ecting in their stories and editorial 

columns their political perspectives. Political cartoonists were particularly blunt and 

powerful, using caricature and visual allusions to make more pointed criticisms of 

the courts’ decisions. By 1887, a special agent from the Department of Justice warned 

that “Very grave charges are brought against Judge Sawyer and U.S. Attorney J.T. 

Carey, in connection with proceedings in these habeas corpus cases, by the Press of 

San Francisco, and by H.H. Scott, Deputy Collector of Customs . . . Two coordinate 

branches of Government are engaged in a hostile confl ict, with the people and the 

press on the side against the courts, accusing them openly of all manner of bargain, 

intrigue and corruption, which threaten to do away with their usefulness and bring 

the administration into ridicule, contempt and utter disregard.”

 Even with the constitutional protections of tenure and salary, federal judges were 

affected by the scathing criticism they endured. They and other government offi cials 

worried that the Chinese exclusion cases undermined popular respect for the courts. 

Judge Field warned his fellow judges in the Chew Heong case, for example, that “oftentimes, . . . there is a sense of impatience in the public mind with judicial offi cers 

for not announcing the law to be what the community at the time wishes it should 

be. And nowhere has this feeling been more manifested than in California, and on 

no subject with more intensity than that which touches the immigration of Chinese 

laborers.” Most newspapers hesitated to accuse the judges of outright corruption, but 

frequently portrayed the courts as the weak dupes of the Chinese, unable to prevent 

their courts from being used to circumvent the exclusion policy. Judges also had their 

own reputations to consider and, in their private correspondence and their public 

judicial decisions, expressed their frustration that their decisions were misunderstood 

and deliberately misrepresented in the press.

 In various ways, the judges sought to respond to the unjust criticism and defend 

their actions, though they did not abandon their unpopular interpretations of the 

exclusion law. The one exception may be Justice Stephen Field. Field, perhaps, had 

suffered the most severe consequences for his decisions in Chinese exclusion and 

civil rights cases. Field had wanted to be President but his judicial opinions regarding railroad regulation and the Chinese engendered bitter public opposition to his 

candidacy. As the political campaign for President gained force in the spring of 1884, 

Field defended his record in the Chinese cases, predicting “one of these days our good 

people will see their error and they will do me full justice. . . . They will then admit 

that a just judge could not ignore the law or treaties, or the Constitution, however 
Chinese Exclusion and the Federal Courts

37

offensive and detested the persons protected by them may have been.” Soon thereafter, the Democratic Party of California explicitly repudiated Field as a potential 

candidate. By September, when Chew Heong’s case came before the circuit court, 

Field’s interpretation of the law had shifted. Whether Field, in deciding against Chew 

Heong, responded to bitter public condemnation of the court is diffi cult to know, 

but he received more favorable reviews in the press thereafter. 

 The other judges coped with public criticism in other ways. Judge Ogden Hoffman lobbied congressional representatives and senators for legislative reforms that 

would keep the unpopular cases out of his court. He also used judicial opinions, most 

notably in In re Tung Yeong, to explain and justify his decisions. The judges continued 

to profess their support for Chinese exclusion and, frequently, their dislike of Chinese 

immigrants, but reiterated the need to respect treaties and legal precedent. Judge 

Sawyer found the Supreme Court’s decision in Chew Heong particularly gratifying in 

light of the unfavorable public opinion. In a letter to Judge Matthew Deady, Sawyer 

wrote “it is some consolation, after all the lying, abuse, threatening of impeachment, 

etc. as to our construction of the Chinese Restriction Act, and the grand glorifi cation 

of brother Field for coming out here and so easily, promptly, and thoroughly setting 

down on us and setting us right on that subject, to fi nd that we are not so widely out 

of our senses after all.” He expressed the hope that “I guess time will bring us out 

about right.”
Chinese Exclusion and the Federal Courts

38

Historical Documents

Government documents

Angell Treaty of 1880

In the 1870s, the growing anti-Chinese movement led to demands to limit Chinese 

immigration to the United States. The California legislature passed a law in 1874 

requiring a $500 bond for the landing of any “lewd or debauched women,” a measure aimed specifi cally at Chinese immigrant women. State efforts to restrict immigration ended when the Supreme Court ruled that the regulation of immigration 

was a federal, not a state, concern. The federal government took some steps to restrict Chinese immigration with the Page Act of 1875, forbidding the entry of Asian 

contract laborers, prostitutes, and felons. More sweeping limits remained diffi cult 

to achieve because the Burlingame Treaty of 1868 between China and the United 

States explicitly recognized the right of free migration. The Fifteen Passenger Act of 

1879, which required that ships carry no more than fi fteen Chinese passengers to the 

United States at a time, was vetoed by President Rutherford Hayes on the grounds 

that it violated the treaty.

 To placate his critics, Hayes sent a commission led by James Angell to China to 

negotiate a new treaty to allow restrictions on Chinese immigration. On November 

17, 1880, the new treaty was signed at Peking. As the excerpts reprinted here reveal, the treaty allowed for the regulation—but not the total exclusion—of Chinese 

immigration. Furthermore, the treaty specifi cally limited proposed restrictions to 

Chinese laborers who had never been in the United States. Laborers who lived in the 

United States before the treaty was signed and all other Chinese were to be allowed 

to migrate freely, as before. The Angell Treaty also reaffi rmed the “most favored nation” status of Chinese residing in the United States, originally extended to Chinese 

in the Burlingame Treaty. Congress soon used its new power to restrict Chinese immigration, but the treaty would continue to limit the scope of exclusion, especially 

as it was interpreted by the courts.

 [Document Source: U.S. Statutes at Large 22 (1881): 826.]

 

Th e Angell Treaty of 1880 

Article I.

 Whenever in the opinion of the Government of the United States, the coming of 

Chinese laborers to the United States, or their residence therein, aff ects or threatens to 

aff ect the interests of that country, or to endanger the good order of the said country 

or of any locality within the territory thereof, the Government of China agrees that 

the Government of the United States may regulate, limit, or suspend such coming 
Chinese Exclusion and the Federal Courts

39

or residence, but may not absolutely prohibit it. Th e limitation or suspension shall 

be reasonable and shall apply only to Chinese who may go to the United States as 

laborers, other classes not being included in the limitations. Legislation taken in 

regard to Chinese laborers will be of such a character only as is necessary to enforce 

the regulation, limitation, or suspension of immigration, and immigrants shall not 

be subject to personal maltreatment or abuse.

Article II.

 Chinese subjects, whether proceeding to the United States as teachers, students, 

merchants or from curiosity, together with their body and household servants, and 

Chinese laborers who are now in the United States shall be allowed to go and come 

of their own free will and accord, and shall be accorded all the rights, privileges, 

immunities, and exemptions which are accorded to the citizens and subjects of the 

most favored nation.

Chinese Exclusion Act of 1882

Congress soon took advantage of its new power to limit Chinese immigration. The 

Chinese Exclusion Act of 1882 prohibited the immigration of Chinese laborers for 

ten years. The act did not apply to Chinese laborers who resided in the United States 

at the time of enactment or arrived within 90 days after passage of the law, nor did 

it apply to Chinese who were not laborers. Sections 3 and 6 of the act established 

a system of identifi cation for Chinese exempt from the act, specifying that Chinese 

laborers leaving the United States obtain what came to be known as a “return certifi cate” from the collector of the port. Other Chinese had to secure a certifi cate from 

the Chinese government explaining why they were exempt from the law. Chinese 

immigration fell sharply, but exclusionists remained frustrated by the success some 

Chinese had in using the exemptions in the law to gain entry into the United States 

and sought further legislation to tighten restriction.

 [Document Source: U.S. Statutes at Large 22 (1882): 58.]

 

 An act to execute certain treaty stipulations relating to Chinese.

 Whereas, in the opinion of the Government of the United States the coming of 

Chinese laborers to this country endangers the good order of certain localities within 

the territory thereof: Th erefore,

Be it enacted by the Senate and House of Representatives of the United States of America 

in Congress assembled, Th at from and after the expiration of ninety days after the 

passage of this act, and until the expiration of ten years next after the passage of this 

act, the coming of Chinese laborers to the United States be, and the same is hereby, 

suspended; . . . 
Chinese Exclusion and the Federal Courts

40

 SEC. 3. Th at the two foregoing sections shall not apply to Chinese laborers who 

were in the United States on the seventeenth day of November, eighteen hundred 

and eighty, or who shall have come into the same before the expiration of ninety 

days next after the passage of this act. . . .

 SEC. 4. Th at for the purpose of properly identifying Chinese laborers who were 

in the United States on the seventeenth day of November, eighteen hundred and 

eighty, or who shall have come into the same before the expiration of ninety days next 

after the passage of this act, and in order to furnish them with the proper evidence 

of their right to go from and come to the United States of their free will and accord, 

as provided by the treaty between the United States and China . . . the collector of 

customs of the district from which any such Chinese laborer shall depart from the 

United States shall, in person or by deputy, go on board each vessel having on board 

any such Chinese laborer and cleared or about to sail from his district for a foreign 

port, and on such vessel make a list of all such Chinese laborers, which shall be entered in registry-books to be kept for that purpose, in which shall be stated the name, 

age, occupation, last place of residence, physical marks or peculiarities, and all facts 

necessary for the identifi cation of each of such Chinese laborers, which books shall 

be safely kept in the custom-house; and every such Chinese laborer so departing 

from the United States shall be entitled to, and shall receive, . . . a certifi cate, signed 

by the collector or his deputy . . . in such form as the Secretary of the Treasury shall 

prescribe. . . . Th e certifi cate herein provided for shall entitle the Chinese laborer to 

whom the same is issued to return to and re-enter the United States upon producing 

and delivering the same to the collector of customs. . . . 

 SEC. 6. . . . Every Chinese person other than a laborer who may be entitled by 

said treaty and this act to come within the United States, and who shall be about to 

come to the United States, shall be identifi ed as so entitled by the Chinese Government in each case, such identity to be evidenced by a certifi cate issued under the 

authority of said government, which certifi cate shall be in the English language or 

. . . accompanied by a translation into English, stating such right to come, and which 

certifi cate shall state the name, title, or offi cial rank, if any, the age, height, and all 

physical peculiarities, former and present occupation or profession, and place of residence in China. . . . Such certifi cate shall be prima-facie evidence of the fact set forth 

therein, and shall be produced to the collector of customs, or his deputy, of the port 

in the district in the United States at which the person named therein shall arrive.

Chinese Exclusion Act of 1884 

In 1884, Congress amended the 1882 exclusion law, acting primarily in response to 

the litigation in the Chinese habeas corpus decisions. Chinese routinely appealed to 

the federal courts when denied entry by the collector of customs. Following the 1882 
Chinese Exclusion and the Federal Courts

41

Exclusion Act, federal courts allowed exempt Chinese who had not been able to obtain certifi cates to establish their right to enter through other written evidence and 

“parol evidence,” that is, oral testimony. Federal courts had differed on the question 

whether the Exclusion Act applied only to Chinese subjects or to all of Chinese descent who lived in any country. The defi nition of who, exactly, was a “laborer” was 

another contentious issue. Were skilled workers excluded, or only unskilled workers? 

Was a peddler a merchant and exempt from the law or a laborer to be excluded? 

 In the opinion of the House of Representatives Committee on Foreign Affairs, 

the law needed to be changed to prevent “the manifold evasions” of the original act 

that had been accomplished through judicial interpretation and Chinese fraud. A 

minority of congressmen opposed the 1884 act, arguing that Chinese exclusion had 

been a success as was evident in the signifi cant decline in the number of Chinese 

who applied for entry at U.S. ports. The charges of fraud and evasion of the law were 

based on “suspicion and guess-work,” said the opponents, but the bill passed easily.

 The 1884 law set out the requirements for the certifi cates and the defi nitions of 

exempt Chinese in much more detail and gave the U.S. consuls in China new responsibilities for enforcing the exclusion law. The “return certifi cates” of prior residents and the “section 6” certifi cates of other exempt Chinese would now include 

more information to assist in the identifi cation of Chinese. Most important for the 

Chew Heong case, the certifi cates were to be the “only evidence permissible” to establish an individual’s right to enter.

 [Document Source: U.S. Statutes at Large 23 (1884): 115.]

 

 An act to amend an act entitled “An act to execute certain treaty stipulations 

relating to Chinese approved May sixth eighteen hundred and eighty-two.”

 SEC. 4. . . . Th e certifi cate herein provided for shall entitle the Chinese laborer to 

whom the same is issued to return to and re-enter the United States upon producing and delivering the same to the collector of customs of the district at which such 

Chinese laborer shall seek to re-enter, and said certifi cate shall be the only evidence 

permissible to establish his right of re-entry; and upon delivering of such certifi cate 

by such Chinese laborer to the collector of customs at the time of re-entry in the 

United States, said collector shall cause the same to be fi led in the custom-house 

and duly canceled. 

 SEC. 6. . . . Every Chinese person, other than a laborer, who may be entitled by 

the said treaty or this act to come within the United States, and who shall be about 

to come to the United States, shall obtain the permission of and be identifi ed as so 

entitled by the Chinese government, or of such other foreign Government of which 

at the time such Chinese person shall be a subject, in each case to be evidenced by 

a certifi cate issued by such Government . . . . If the person so applying for a certifi cate shall be a merchant, said certifi cate shall . . . state the nature, character, and 

estimated value of the business carried on by him prior to and at the time of his 
Chinese Exclusion and the Federal Courts

42

application as aforesaid: Provided, Th at nothing in this act nor in said treaty shall 

be construed as embracing within the meaning of the word “merchant,” hucksters, 

peddlers, or those engaged in taking, drying, or otherwise preserving shell or other 

fi sh for home consumption or exportation. If the certifi cate be sought for the purpose of travel for curiosity, it shall also state whether the applicant intends to pass 

through or travel within the United States, together with his fi nancial standing in 

the country from which such certifi cate is desired. Th e certifi cate provided for in this 

act, and the identity of the person named therein shall, before such person goes on 

board any vessel to proceed to the United States, be vised by the indorsement of the 

diplomatic representatives of the United States in the foreign country from which 

said certifi cate issues, or of the consular representation of the United States at the 

port or place from which the person named in the certifi cate is about to depart; and 

such diplomatic representative or consular representative . . . is hereby empowered . 

. . to examine into the truth of the statements set forth in said certifi cate, and if he 

shall fi nd . . . that said or any of the statements therein contained are untrue it shall 

be his duty to refuse to indorse the same. Such certifi cate vised . . . shall be the sole 

evidence permissible on the part of the person so producing the same to establish a 

right of entry into the United States; but said certifi cate may be controverted and 

the facts therein stated disproved by the United States authorities. 

 SEC. 15. Th at the provisions of this act shall apply to all subjects of China and 

Chinese, whether subjects of China or any other foreign power; and the words “Chinese laborers,” wherever used in this act, shall be construed to mean both skilled and 

unskilled laborers and Chinese employed in mining.

Chinese Exclusion Act of 1888

By 1886, both the Chinese and the U.S. governments were unhappy with the exclusion policy, though for different reasons. The Chinese government was particularly 

frustrated by the growing violence against Chinese in the 1880s, culminating in the 

1885 “Rock Springs Massacre” in Wyoming in which twenty-eight Chinese laborers were killed. Frustrated by the unwillingness of the U.S. government to protect 

Chinese subjects and to provide compensation for the victims of anti-Chinese mobs, 

the Chinese government approached the U.S. Department of State with a proposal 

for a new treaty. China would agree to greater restrictions on Chinese immigration 

in exchange for the American government’s promise to provide better security for 

Chinese living in the United States. The administration of Grover Cleveland, under 

growing pressure from exclusionists and judges alike to make the exclusion laws 

more effective and stringent, entered into extensive negotiations with China, resulting in a new treaty which forbade the immigration of all Chinese laborers for twenty 

years, including prior residents unless they had parents, wives, or children living in 

the United States or property or debts worth at least $1,000.
Chinese Exclusion and the Federal Courts

43

 The treaty was never ratifi ed, however, as the Chinese government balked 

when mass rallies and newspaper articles bitterly condemned the new restrictions. 

Congress, frustrated and angry, passed an even more stringent law in October 1888 

known as the Scott Act, which clearly violated the 1880 treaty. Under the new law, 

no Chinese laborers could enter the United States, regardless of prior residence. The 

residence certifi cates were declared void, and the exclusion of Chinese laborers was 

made without time limit. The policy would remain in place, with some amendments, until 1943.

 [Document Source: U.S. Statutes at Large 25 (1888): 504.]

 

 An act a supplement to an act entitled “An act to execute certain treaty stipulations relating to Chinese,” approved the sixth day of May eighteen hundred and 

eighty-two. 

 . . . it shall be unlawful for any chinese laborer who shall at any time heretofore 

have been, or who may now or hereafter be, a resident within the United States, 

and who shall have departed, or shall depart, therefrom, and shall not have returned 

before the passage of this act, to return to, or remain in, the United States.

 SEC. 2. Th at no certifi cates of identity . . . shall hereafter be issued; and every 

certifi cate heretofore issued in pursuance thereof, is hereby declared void and of 

no eff ect, and the chinese laborer claiming admission by virtue thereof shall not be 

permitted to enter the United States.

Habeas corpus petition of Chew Heong

The habeas corpus petition of Chew Heong reveals how common such cases had 

become in the federal courts in San Francisco. Standardized forms were printed 

to accommodate the hundreds of petitions fi led. A friend or relative would fi le the 

petition on behalf of the Chinese immigrant seeking entry into the United States. 

The master of the steamship would be named as the offending party, restraining 

the immigrant of his or her liberty. But the real opposing party was the collector of 

customs who had denied the immigrant entry. In the hearing before the court, the 

U.S. attorney would appear on behalf of the government.

 [Document Source: Habeas corpus petition of Chew Heong, U.S Circuit 

Court of the District of California, File 3472, RG 21, National Archives and 

Records Administration, San Bruno, Cal.] 

 
Chinese Exclusion and the Federal Courts

44

 Laborer’s return certifi cate: Chae Chan Ping

The return certifi cate lay at the heart of the dispute in the Chew Heong case. It 

was one of several types of documents devised by the U.S. government to identify 

Chinese who were exempt from the exclusion laws. The return certifi cate verifi ed 

that a Chinese laborer had resided in the United States before the exclusion policy 

was adopted and provided identifying information. The resident laborer who left 

the United States for travel abroad presented the certifi cate to the collector of the 
Chinese Exclusion and the Federal Courts

45

port upon returning to the United States. For those, like Chew Heong, who left before the certifi cates became available, the federal courts ruled these Chinese could 

present other evidence to establish that they had lived in the United States and had 

a right to reenter. Others used forged or transferred certifi cates to gain illegal entry.

 Frustrated by both continued legal and illegal immigration by Chinese, Congress 

in the Scott Act of 1888 forbade the further entry of any Chinese laborers and declared all return certifi cates void and of no legal use. Chae Chan Ping, already en 

route to the United States when the Scott Act was passed, fell subject to the new law. 

His return certifi cate was declared null and void and his appeal to the Supreme 

Court failed in the landmark case Chae Chan Ping v. United States (also known as 

The Chinese Exclusion Case, 130 U.S. 581 [1889]).

 [Document Source: In re Chae Chan Ping, No. 10100, October 11, 1888, U.S. 

Circuit Court for the Northern District of California, Records of the District 

Courts of the Untied States, RG 21, National Archives, Pacifi c Coast Region, San 

Bruno, Cal.]

 
Chinese Exclusion and the Federal Courts

46

Collector of customs’ investigation of Chinese immigrants

The collector of customs was responsible for enforcing the Chinese exclusion laws at 

each port. With hundreds of Chinese applying for admission as exempt from exclusion, the collector struggled to develop investigatory procedures and documents to 

determine who should be admitted and to provide a system to track immigrants as 

they came and went. The early forms, such as that used in 1883 for Mrs. Lee Poy, 

the wife of a Chinese merchant, were fairly simple and standardized. As time went 

on, the investigations became lengthier and more complex as government offi cials 

sought to catch fraudulent cases by fi nding confl icts in the interviews of applicants 

and their witnesses. In this case, Mrs. Lee Poy was admitted, even though she did 

not have a certifi cate verifying prior residence. She benefi ted from her husband’s 

status as a merchant and from the assistance of Frederick Bee, American attorney 

and Chinese consul, who appeared on her behalf and personally identifi ed her. The 

case illustrates the importance of lawyers and the Chinese consul in interceding on 

behalf of Chinese immigrants.

 [Document Source: Arrival Investigation Case Files, 1884–1944, 9-3-85/S.S. 

City of Peking/Lee Poy (Mrs.), Records of the Immigration and Naturalization 

Service, RG 85, San Francisco District, National Archives, Pacifi c Coast Region, 

San Bruno, Cal.]

 
Chinese Exclusion and the Federal Courts

47
Chinese Exclusion and the Federal Courts

48

Opinion of Justice Stephen J. Field in the U.S. Circuit Court for the 

District of California, In re Cheen Hong

The U.S. Circuit Court for the Ninth Circuit considered the reach of the new 1884 

amendment to the Chinese Exclusion Act in the case of Chew Heong. The crucial 

issue for the court was whether the 1884 law’s requirement that a certifi cate of residence was the only permissible evidence to establish prior residence, and thus exemption from the exclusion law, applied to Chinese who left the United States before 

the certifi cates became available. Until the Chew Heong case, the federal judges had 

agreed that Chinese resident laborers in such cases should be allowed to use other 

evidence to prove their right to enter. Now, the judges sharply disagreed. Justice 

Field changed his position, holding that the judges should abide by the explicit language of the law, requiring all Chinese laborers to present a certifi cate of residence, 

even if it worked hardships in particular cases. Judges Sawyer, Hoffman, and Sabin 

continued to insist that the law must be interpreted in accordance with the Treaty 

of 1880, which protected the right of Chinese laborers already residing in the United 

States to come and go at will.

 [Document Source: 21 Federal Reporter 791 (Sept. 29, 1884).]

 

 My associate, the circuit judge, sustains the contention of the petitioner, and in a 

written opinion has presented his construction of the act with his usual elaboration 

and learning. Th e district judge of this district and the district judge of the district 

of Nevada concur with him. It is, therefore, with much diffi dence that I venture to 

express my dissent from their conclusions. . . . Th e third section [of the Chinese 

Exclusion Act] then provides that the two sections mentioned shall not apply to 

Chinese laborers who were in the United States on the seventeenth of November, 

1880, or who came within 90 days after the passage of the act, “who shall produce 

to such master before going on board such vessel, and shall produce to the collector of 

the port in the United States at which such vessel shall arrive, the evidence hereinafter 

in this act required of his being one of the laborers in this section mentioned;” . . . 

 What, then, is the evidence which must thus be produced to the master in the 

foreign port, and to the collector at the port of the United States, by the laborers 

thus within the exception mentioned? Th e fourth section answers this. It declares 

that, for the purpose of identifying those laborers,—that is, those who were here on 

the seventeenth of November, 1880, or came within the 90 days mentioned,—and 

to furnish them with “the proper evidence” of their right to go from and come to 

the United States . . . each laborer departing thus [from the United States] shall be 

entitled from the collector, or his deputy, to a certifi cate containing such particulars 

corresponding with the registry as may serve to identify him. “Th e certifi cate herein 

provided for,” says the section, “shall entitle the Chinese laborer, to whom the same 

is issued, to return and to re-enter the United States upon producing and delivering 
Chinese Exclusion and the Federal Courts

49

the same to the collector of customs of the district at which such Chinese laborer 

shall seek to re-enter.”

 Now, what is the meaning of these provisions? It is not, as I read them, that the 

Chinese laborer in the United States on the seventeenth of November, 1880,—the 

date of the supplementary treaty,—or who came within 90 days after the passage 

of the act,—that is, before it took eff ect,—shall be subsequently permitted—that 

is, after the act had taken eff ect—to come without any certifi cate, for the act makes 

no exceptions of persons by whom it must be obtained. It means, in my judgment, 

that those laborers, if still in the United States when the act takes eff ect, and desirous to 

leave and yet return again, shall be permitted to do so upon obtaining the prescribed 

certifi cate. . . . Th e act, interpreted according to its direct language, necessarily excludes in its operation those who left the country before the act took eff ect. If this 

construction works any hardship, it is for congress to change the act. Th e court has no 

dispensing power over its provisions. Its duty is to construe and declare the law, not 

to evade or make it. Oftentimes, indeed, there is a sense of impatience in the public 

mind with judicial offi cers for not announcing the law to be what the community at 

the time wishes it should be. And nowhere has this feeling been more manifested 

than in California, and on no subject with more intensity than that which touches the 

immigration of Chinese laborers; but it often does great injustice to offi cers anxious 

to perform their whole duty. . . .

 Th e provisions of the amendatory act of 1884 seem to me to remove any doubt as 

to the necessity of the certifi cate, if any existed under the act of 1882, for the admission of any Chinese laborers, who may have left the country before the passage of the 

original act. Under the construction adopted in this circuit, parol evidence had been 

allowed in a multitude of cases where previous residence was alleged; and the district 

and circuit courts were blocked up by them, to the great delay of their general business 

and the inconvenience of suitors. Th is circumstance, and the suspicious character, in 

many instances, of the testimony produced, from the loose notions entertained by 

the witnesses as to the obligation of an oath, created a general expression of a desire 

for further legislation placing some restriction upon the evidence which should be 

received. Th is desire led to the passage of the amendatory act; and by that it is declared that the certifi cate which the laborer must obtain “shall be the only evidence 

permissible to establish his right of re-entry” into the United States. Th is declaration 

applies to the certifi cate issued under either act. By it the door is eff ectually closed 

to all parol evidence. Nothing can take the place of the certifi cate or dispense with 

it. . . .

 Writ discharged, and petitioner remanded.
Chinese Exclusion and the Federal Courts

50

Dissenting opinion of Judge Lorenzo Sawyer, In re Cheen Hong

[Document Source: 21 Federal Reporter 791 (Sept. 29, 1884).]

 

 Sawyer, J., dissenting.

 (Hoff man and Sabin, JJ., who sat as consulting judges, concurred in the dissenting opinion of the circuit judge.) . . .

 . . . It is very clear to my mind that congress did not intend to make the provisions 

of section 4 applicable, and that they do not apply, to those Chinese laborers who 

were in the country on November 17, 1880, and who subsequently left the United 

States before the passage of the original act, and who could not possibly have obtained 

the prescribed certifi cate . . . . Th e act purports to be an act “to execute certain treaty 

stipulations with China,”—not to abrogate them.

 It is scrupulously framed so as not, in express terms, to confl ict with the provisions of the treaty. If it be held to take away any rights secured by the treaty, it must 

be done by construction, and by far-fetched and overstrained implications,—not 

because of any direct, express provision to that eff ect. Th e treaty and the act must, if 

possible, be so construed that they can stand together. Th e treaty with China authorized the government of the United States to “regulate, limit, or suspend” the coming 

of “Chinese laborers” to, or residence in, the United States. But it provided that “the 

limitation or suspension shall be reasonable, and shall apply only to Chinese who may 

go to the United States as laborers, other classes not being included in the limitation.” And 

it was further expressly provided that “legislation taken in regard to Chinese laborers 

will be of such character only as is necessary to enforce the regulation, limitation, or suspension of immigration.” It is still further provided that “Chinese laborers who are now in 

the United States (at the date of the treaty, November 17, 1880) shall be allowed to go 

and come of their own free will and accord, and shall be accorded all the rights, privileges, 

immunities, and exemptions which are accorded to the citizens and subjects of the 

most favored nation.” Th e restriction act must be construed with reference to the 

provisions of the treaty. . . . 

 If it had been the intention to violate the specifi c terms of the treaty which 

secured the right to those Chinese laborers who were in the United States at the 

date of the treaty “to go and come of their own free will and accord,” by excluding 

from returning all those who departed for temporary purposes upon the faith of the 

treaty prior to the passage of the act of 1882, congress would certainly have acted 

in a manly way, and expressed that intention boldly, openly, and by plain and direct 

language which could not be misunderstood . . . .

 For the reasons stated I am satisfi ed that the provisions respecting certifi cates in 

section 4 of the amended act have no application whatever to these Chinese laborers 
Chinese Exclusion and the Federal Courts

51

who were residing in the United States on November 17, 1880, and who afterwards 

departed prior to May 6, 1882; that they were not intended by the act in question to 

be excluded from the country for want of such certifi cate, or on any other grounds; 

and that such Chinese laborers are entitled to re-enter the United States upon their 

return, upon other satisfactory evidence, without producing the certifi cate prescribed 

by said section. . . . 

 Th e construction I have given to this law not only reconciles the legislation with 

the observance of the plighted faith of the nation, but it carries out and eff ectuates 

the object of the treaty and the law. Th e evil to be remedied was the continued, unrestricted immigration of Chinese laborers. . . . Th is object, the law in its practical 

operation, has been attained. Not only has there been no accession to the number of 

the Chinese in this country, but the statistics of the custom-house show that, during the 28 months which have elapsed since the passage, the number of departures 

exceed the number of arrivals by 12,000. Not only, therefore, has the number of the 

Chinese on this coast not increased, but it has been diminishing (after making due 

allowance for those who may have clandestinely crossed the northern boundary 

of the United States) at the rate which ought to satisfy the sturdiest opponent of 

this class of laborers,—a rate which could not be largely increased without serious 

disturbance to the industries of this coast. But, even if this were not so, there is a 

price too high to be paid, without absolute necessity, in any case, for the exclusion 

of Chinese laborers, and that price is the national honor. And especially, when, as I 

have shown, the plighted faith of the nation may be kept without impairing the effectiveness and satisfactory operation of the law. By the construction here adopted, 

also, the treaty and the law are in harmony; and the various provisions of the act are 

consistent and in accord with each other. But, on the construction insisted upon by 

the United States attorney and sanctioned by the presiding justice, the treaty and 

the law confl ict, and various provisions of the restriction act itself are inharmonious 

and inconsistent with each other.

 I therefore dissent from the decision of the presiding justice, and from the order 

remanding petitioner. 

Opinion of Justice John Marshall Harlan in the Supreme Court of the 

United States (excerpt), Chew Heong v. United States

Chew Heong’s attorneys were able to appeal the case to the Supreme Court based 

on a “certifi cate of division in opinion” because the judges in the U.S. circuit court 

disagreed in the case. On appeal, the Supreme Court reversed the circuit court’s decision. Justice John Marshall Harlan adopted the reasoning of the dissenting circuit 

court judge, Lorenzo Sawyer. The act of 1884 should be interpreted to protect the 

rights of resident Chinese laborers, as guaranteed in the Treaty of 1880. Thus, the 

1884 requirement for certifi cates of residence only applied to Chinese laborers who 
Chinese Exclusion and the Federal Courts

52

were in the United States when the certifi cates began to be issued. Not surprisingly, 

Justice Field, the author of the circuit court opinion under review, dissented bitterly 

in the Supreme Court, on both legal and policy grounds.

 [Document Source: Chew Heong v. United States, 112 U.S. Supreme Court 

Reports 536 (1884).]

 

 When the act of 1882 was passed, Congress was aware of the obligation this 

Government had recently assumed, by solemn Treaty, to accord to a certain class 

of Chinese laborers the privilege of going from and coming to this country at their 

pleasure. Did it intend, within less than a year after the ratifi cation of the Treaty and 

without so declaring in unmistakable terms, to withdraw that privilege by the general 

words of the 1st and 2nd sections of that Act? Did it intend to do what would be inconsistent with the inviolable fi delity with which, according to the established rules 

of international law, the stipulations of treaties should be observed? Th ese questions 

must receive a negative answer. Th e presumption must be indulged that the broad 

language of these sections was intended to apply to those Chinese laborers whose 

coming to this country might, consistently with the Treaty, be reasonably regulated, 

limited or suspended, and not to those who, by the express words of the same Treaty, 

were entitled to go and come of their own free will, and enjoy such privileges and 

immunities as were accorded to the citizens and subjects of the most favored nation. 

. . .

 [Th e fourth] section [of the act of 1882] was amended by the Act of 1884 so 

as to require that the list made by the collector or his deputy, and entered in the 

registry books kept for that purpose, as well as the certifi cate issued by the collector 

to any Chinese laborer about to depart by vessel, should show (what the original act 

did not require) his individual, family and tribal name in full, and when and where 

his occupation was followed. It was further amended so as to provide, in terms, that 

the certifi cate furnished to such laborer by the collector “shall be the only evidence 

permissible to establish his right of reentry.”

 In that section, as in the 3d, a certain class of Chinese laborers is described, 

as those who were here on the 17th of November, 1880. Why was that date fi xed, 

unless for the purpose of giving eff ect to the article of the Treaty, which secured to 

Chinese laborers, who were in this country on that particular day, the same freedom, 

in respect of travel and intercourse, that was accorded to the citizens and subjects 

of the most favored Nation? Congress certainly did not overlook, much less intend 

to ignore, the stipulations of the Treaty, or question their scope or eff ect; for the 4th 

section, referring to Chinese laborers who were here on the 17th day of November, 

1880, expressly recognizes the fact that the Treaty of that date gave them “the right 

to go from and come to the United States.” . . .

 Th e supposition should not be indulged that Congress, while professing to 

faithfully execute treaty stipulations, and recognizing the fact that they secured to a 
Chinese Exclusion and the Federal Courts

53

certain class the “right to go from and come to the United States,” intended to make 

its protection depend upon the performance of conditions which it was physically 

impossible to perform . . . . What injustice could be more marked than, by legislative enactment, to recognize the existence of a right, by treaty, to come within the 

limits of the United States and, at the same time, to prescribe, as the only evidence 

permissible to establish it, the possession of a collector’s certifi cate, that could not 

possibly have been obtained by the person to whom the right belongs? . . . 

 Th e entire argument in support of the judgment below proceeds upon the erroneous assumption that Congress intended to exclude all Chinese laborers of every 

class who were not in the United States at the time of the passage of the Act of 1882, 

including those who, like the plaintiff in error, were here when the last Treaty was 

concluded, but were absent at the date of the passage of that Act. We have stated the 

main reasons which, in our opinion, forbid that interpretation of the Act of Congress. 

To these may be added the further one, that the courts uniformly refuse to give to 

statutes a retrospective operation, whereby rights previously vested are injuriously 

aff ected, unless compelled to do so by language so clear and positive as to leave no 

room to doubt that such was the intention of the Legislature. . . .

 In accordance with these views, it is adjudged that the plaintiff in error is entitled to enter and remain in the United States. Th e fi rst of the certifi ed questions is, 

therefore, answered in the negative, and the second and third in the affi rmative. 

 Th e judgment is reversed and the cause remanded for further proceedings not inconsistent 

with this opinion.

Dissenting opinion of Justice Stephen J. Field in the Supreme Court of 

the United States (excerpt), Chew Heong v. United States

 [Document Source: Chew Heong v. United States, 112 U.S. Supreme Court 

Reports 536 (1884).]

 

 . . . Th e majority of this court . . . narrow the meaning of the act so as measurably to frustrate its intended operation. Whereas, if the Treaty as to such laborers 

be construed, as I think it should be, to apply to those then here who afterwards 

continue their residence in the country and who may, during such residence, desire 

to be temporarily absent, there is no confl ict between it and the Act of Congress. 

Both are then in perfect harmony, the imputation of bad faith is without a plausible 

pretext, and the citations in the opinion of the Circuit Judge and of this court, as to 

the necessity of construing Acts so as not to lead to injustice, oppression or absurd 

consequences, have no application. 

 Th e petitioner, a native of China and a laborer, though here when the Treaty of 

1880 was concluded, left the country in June, 1881, and was in the Hawaiian Islands 
Chinese Exclusion and the Federal Courts

54

over three years before he desired to return. Chinese laborers do not travel for pleasure, 

and during that time he had acquired a residence in those islands as fully as he ever 

had in the United States. But, according to the opinion of the court, this fact is of 

no signifi cance. He could reside there twenty years and then return, notwithstanding 

the Act of Congress. I cannot construe the Treaty as conferring any such unrestricted 

right or as applying to any other laborers than those who afterwards continued their 

residence here. . . .

 Before proceeding to examine in detail the Act of Congress in question, a few 

words may be said as to the causes which led to its enactment. Upon the acquisition 

of California and the discovery of gold, people from all parts of the world came to 

the country in great numbers, and among them Chinese laborers. Th ey found ready 

employment; they were industrious and docile, and generally peaceable. Th ey proved 

to be valuable domestic servants, and were useful in constructing roads, draining 

marshes, cultivating fi elds and, generally, wherever outdoor labor was required. For 

some time they excited little opposition, except when seeking to work in the mines. 

But as their numbers increased they began to engage in various trades and mechanical pursuits, and soon came into competition, not only with white laborers in the 

fi eld, but with white artisans and mechanics. Th ey interfered in many ways with the 

industries and business of the State. Very few of them had families, not one in fi ve 

hundred, and they had a wonderful capacity to live in narrow quarters without injury 

to their health, and were generally content with small gains and the simplest fare. Th ey 

were perfectly satisfi ed with what would hardly furnish a scanty subsistence to our 

laborers and artisans. Successful competition with them was, therefore, impossible, 

for our laborers are not content and never should be, with a bare livelihood for their 

work. Th ey demand something more, which will give them the comforts of a home, 

and enable them to support and educate their children. But this is not possible of 

attainment if they are obliged to compete with Chinese laborers and artisans under 

the conditions mentioned; and it so proved in California. Irritation and discontent 

naturally followed, and frequent confl icts between them and our people disturbed 

the peace of the community in many portions of the State. . . .

 . . . But, notwithstanding they [the Chinese] have remained among us a separate 

people, retaining their original peculiarities of dress, manners, habits and modes of 

living, which are as marked as their complexion and language. Th ey live by themselves; they constitute a distinct organization with the laws and customs which they 

brought from China. Our institutions have made no impression on them during the 

more than thirty years they have been in the country. Th ey have their own tribunals 

to which they voluntarily submit, and seek to live in a manner similar to that of 

China. Th ey do not and will not assimilate with our people; and their dying wish is 

that their bodies may be taken to China for burial. . . .

 . . . It is not surprising that there went up from the whole Pacifi c Coast an earnest 

appeal to Congress to restrain the further immigration of Chinese. It came, not only 
Chinese Exclusion and the Federal Courts

55

from that class who toil with their hands, and thus felt keenly the pressure of the 

competition with coolie labor, but from all classes. Th oughtful persons who were 

exempt from race prejudices saw, in the facilities of transportation between the two 

countries, the certainty, at no distant day, that, from the unnumbered millions on the 

opposite shores of the Pacifi c, vast hordes would pour in upon us, overrunning our 

coast and controlling its institutions. A restriction upon their further immigration 

was felt to be necessary, to prevent the degradation of white labor, and to preserve 

to ourselves the inestimable benefi ts of our Christian civilization. . . .

 Th e plain purport of the Act, as it seems to me, was to exclude all Chinese laborers 

except those who came at certain designated periods and continued their residence 

in the country, and, if they should leave and be desirous of returning, to require them 

to obtain a proper certifi cate of identifi cation. By this construction, all the provisions 

of the Act are made harmonious; without it, they are contradictory and absurd. . . .

 To obviate the diffi culties attending the enforcement of that Act from the causes 

stated, the amendatory Act of 1884 declared that the certifi cate which the laborer 

must obtain “shall be the only evidence permissible to establish his right of re-entry 

into the United States.” By it the door is eff ectually closed or would be closed but 

for the decision of the court in this case, to all parol evidence and the perjuries which 

have heretofore characterized its reception. But for this decision, nothing could take 

the place of the certifi cate or dispense with it; and I see only trouble resulting from 

the opposite conclusion. All the bitterness which has heretofore existed on the Pacifi c 

Coast on the subject of the immigration of Chinese laborers will be renewed and 

intensifi ed, and our courts there will be crowded with applicants to land, who never 

before saw our shores, and yet will produce a multitude of witnesses to establish their 

former residence, whose testimony cannot be refuted and yet cannot be rejected. I 

can only express the hope, in view of the diffi culty, if not impossibility, of enforcing 

the exclusion of Chinese laborers intended by the Act, if parol testimony from them 

is receivable, that Congress will, at an early day, speak on the subject in terms which 

will admit of no doubt as to their meaning.

Political cartoons from The Wasp

From The Bancroft Library, University of California, Berkeley

Political cartoons provided one of the most effective vehicles for the anti-Chinese 

movement. With an economy of words and powerful images, cartoons drew on 

popular caricatures and stereotypes to convey their messages. The Wasp, a weekly 

illustrated magazine published in San Francisco between 1876–1928, was particularly well known for its colorful satirical cartoons. As federal judges in San Francisco 
Chinese Exclusion and the Federal Courts

56

became involved in Chinese civil rights and exclusion cases, they became the targets 

of The Wasp’s cartoonists.

“Judge Righteous Judgment,” The Wasp, v. 4, August 1879–July 1880

Justice Stephen Field’s decision in Ho Ah Kow v. Nunan on July 7, 1879, sparked 

an angry reaction in the local press, as the cartoon suggests. The case involved San 

Francisco’s so-called “queue ordinance” that mandated all convicted prisoners in 

the local jail have their hair cut within one inch of their scalp. Although the ordinance did not specifi cally mention Chinese, Justice Field, sitting on the circuit court, 

admonished that everyone knew the San Francisco Board of Supervisors was targeting Chinese men who viewed the loss of their queues as deeply humiliating. He condemned the law as “hostile and spiteful” and struck it down as an unconstitutional 

discrimination. Field’s decision was crucial in broadening the interpretation of the 

Equal Protection Clause of the Fourteenth Amendment as he ruled that all persons, 

not just citizens, were entitled to equal protection of the laws. Furthermore, he held 

that laws that appeared to be neutral could be discriminatory in their enforcement 

and thus violate the Equal Protection Clause.

 The newspapers were not impressed by such reasoning. The San Francisco 

Argonaut condemned the “sickly sentimentality” of the judges and found the concern 

for the “soulless heathen” “absurd” and “altogether ridiculous.” The Wasp’s cartoonist sarcastically dubbed Field, “Judge Righteous,” and dressed him in Chinese garb, 

replete with a queue. In “Judge Field’s Barber Shop,” Field reattaches the queue cut 

off the Chinese man by San Francisco sheriff Matthew Nunan. Such cartoons reinforced allegations that Field was pro-Chinese and helped to frustrate his ambitions 

to become the Democratic presidential candidate in 1880. 

 
Chinese Exclusion and the Federal Courts

57
Chinese Exclusion and the Federal Courts

58

“There’s Millions in It,” The Wasp, 1884

By 1884, when the U.S. circuit court heard the Chew Heong case, the local press 

often blamed federal judges for weakening the Chinese exclusion law. Here, Judge 

Lorenzo Sawyer is portrayed dumping Chinese out of his court by the barrel while 

California protests in vain. The caption, “There’s Millions in It,” suggests not only 

that millions of Chinese might succeed in evading exclusion because of Sawyer’s decisions but also alludes to occasional rumors that Sawyer was turning a handsome 

profi t from the “habeas corpus mill,” receiving bribes to allow Chinese to land. In a 

letter to Judge Matthew Deady of the U.S. District Court for Oregon on August 9, 

1884, Judge Sawyer characterized the newspapers’ reports of his Chinese decisions 

as “unmitigated lying” that sparked a “torrent of abuse founded on that lying.”

 
Chinese Exclusion and the Federal Courts

59

“The Restriction Act Knocked Out,” The Wasp, Aug. 15, 1885, pp. 8–9

After the Supreme Court’s decision in Chew Heong, exclusionists’ criticism of the 

federal courts increased and their frustration with the diffi culty of enforcing the exclusion law mounted. The cartoonist of “The Restriction Act Knocked Out” conveys 

in detail the inept efforts of various federal offi cials to prevent Chinese immigrants 

from landing through litigation. In this game, the Chinese are clearly winning. The 

Wasp (Aug. 15, 1885, p. 3) included the following detailed explanation of the cartoon for its readers.

 

In our double-page cartoon is an allegorical representation of one phase of the 

Chinese question. Representing a baseball game between the civic authorities and 

the Asiatics, we have Senator Miller pitching the ball (the Restriction Act) at the 

Chinaman on the home plate. Collector-of-Customs Sears stands behind and is 

earnestly determined to “catch him out.” Th e Mongol, however, defeats this purpose, 

for with his gnarled and misshapen “bat” of Perjury he negatives the eff orts of both 

pitcher and catcher and sends the ball “skywards” over the fence into the Supreme 

Court. Th is being out of the bounds, the Act is a “lost ball,” and will so remain until 

in the slowness of revolving years the Federal judiciary chooses to return it. United 

States Judge Sawyer acts as Referee between the parties, but owing to the sinuosities, 

bends and curves of the telescopic law through which he is compelled to look he has 

entirely lost sight of the ball. Surveyor-of-the-Port Morton, whose business it is to be 

the fi rst man on incoming ships and deny a landing to any Chinaman who has not a 

proper certifi cate, in this pictured game acts as “shortstop” and is frantic in his eff orts 

to cut short the ball in its aerial fl ight. But the Chinaman has sent it over his head. 

United States District-Attorney Hilborn fi nding that the Mongols have beaten the 

“pitcher,” the “catcher” and the “short-stop,” and are passing all the “bases,” in turn, 

puts himself in the way as the expositor of the law to prevent a “home-run,” but he 

fi nds himself toppled over and knocked out of line by a “habeas corpus,” which the 

almond-eyed stranger always applies as a last resort. Th us he makes the goal of a home 

landing, and an interminable line of his fellows under the intelligent “coaching” of 

Colonel Bee, their captain, awaits in turn the running of the “corners.” A Pacifi c Mail 

steamer is seen in the distance from which the “little brown men” are debounching 

[sic] in quantity. In the foreground of the picture are to be seen the “bats” used by the 

whites, while the knotty club of “False-Personation” indicates another of the means 

by which the Restriction Act is “knocked out of time.” Altogether the lesson of the 

hour is graphically set forth in this telling picture.
Chinese Exclusion and the Federal Courts

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Chinese Exclusion and the Federal Courts

61

Newspapers and public opinion

“The Evasion Act” 

The newspapers in San Francisco reported on the Chinese exclusion litigation in 

detail. Often they were quite critical, as is evident in the following article in which 

the reporter renamed the Exclusion Act “the Evasion Act,” to refl ect his dismay at 

the ability of Chinese immigrants to circumvent the law. Drawing on common stereotypes of Chinese, the reporter attributed the failure of the law to Chinese perjury 

and fraud and to unscrupulous, money-hungry lawyers.

 [Document Source: Daily Alta, December 18, 1883, p. 1, col. 4.]

 

Th e Evasion Act.

How the “Oceanic’s” “Traders” Are Seeking to Land.

 Th e benefi ciaries of the “Chinese Evasion Act,” or what might be called with 

propriety “An Act to perfect the art of lying among the Chinese and their white 

auxiliaries,” assembled yesterday in Judge Hoff man’s Court-room to the number 

of thirty-two. . . . About ten fairly reputable Chinamen and 200 odd highbinders 

congregated in the spectators’ lobby, every individual smell among them asserting 

itself in the boldest manner, and at the same time aiding to form a vast, stupendous 

aggregate of odor that caused the solemn-looking Federal Judge to gasp for air and 

vexed the olfactory nerves of the ancient bailiff . Busily engaged about the court-room 

were three attorneys who have an extensive practice among the Chinese, anxious to 

knock holes in the “Evasion Act,” though to hear at least one of these attorneys on 

the stump before the election of 1880 declare his willingness not only to sacrifi ce 

his private interests, but even to risk his life, to keep the Mongolian hordes from 

overrunning this fair land, one would have thought that no amount of fees could 

tempt him to assist a Chinaman to land.

Highbinder Infl uence

 By a wise arrangement these thirty-two heathens anxious to take advantage of the 

“Evasion Act” had been kept away from San Francisco Chinese brokers before being 

brought into the Court, but the instant they reached the United States building they 

were interviewed by as nice a set of Chinese highbinders as ever blackmailed Bartlett 

Alley or practiced perjury as a fi ne profession . . . To facilitate the Court proceedings 

the Chinese were divided into two lots, viz.: Th ose who had certifi cates from China 

and those who relied upon the beauties of the “Evasion Act” to put them through 

without even that slight formality. . . .
Chinese Exclusion and the Federal Courts

62

Pro-Chinese Attorneys

 Had made special pleas and complained of the hardship of their poor, poor 

clients being detained on board the Oceanic, District Attorney Hilborn rather more 

than insinuated that the whole proceedings as at present conducted were a howling 

farce, and for this reason: Th e bland-faced heathen, Moy Jim Mun, who judicially 

contorts Chinese patois into English, “as she is spoke” around Chinatown, is not only 

in the pay of the Chinese, but receives a fee of $5 for every Chinaman who gets the 

benefi t of the “Evasion Act.” It occurred to Mr. Hillborn that this was wrong, but 

Judge Hoff man thought otherwise, though he admitted that it would be as well to 

engage the Custom House interpreter. Th e suspicions of Mr. Hillborn were aroused 

from the fact that Moy is very friendly with all the highbinders around the Court, 

while the lately-skipped Government language torturer, Fon Sing, who assisted to 

expose fraudulent traders, was complimented by having a price set on his head by 

the highbinders’ society. After some discussion the alleged traders who have certifi -

cates were released on bail set at $1,000 each, while the others were sent back to the 

Oceanic in charge of the U. S. Marshall.

“Chinamen Without Certifi cates Must Stay Away” 

As one of the fi rst test cases of the 1884 law heard by Justice Field, presiding over the 

circuit court, Chew Heong’s habeas corpus hearing was followed closely in the local 

newspapers. The Daily Alta provided a detailed description of the proceedings on its 

front page, including the statements of the judges and attorneys. From its report, it 

appears that Field came to the hearing with his mind made up. His frustration with 

the Chinese habeas corpus cases is evident in his testy exchange with Chew Heong’s 

attorney, Thomas D. Riordan. Note that the newspaper refers to Chew Heong as 

“Chew Yeong.” Given the unfamiliarity of American offi cials with Chinese names, it 

was not unusual for Chinese names to be spelled several different ways which could 

later lead to confusion in subsequent investigations.

 [Document Source: Daily Alta, Sept. 27, 1884, p. 1, col. 3.]

 

 Justice Field—Th e law is perfectly plain. It says that the certifi cate shall be the 

only evidence. How many Chinamen will try to come in the same way?

 Mr. Riordan—About 12,000.

 Justice Field—And what shall the Courts do with them? Can it give each one of 

them a separate trial? Can it let each of them produce evidence of former residence? 

No; it was because the Courts were overcrowded that the second Act was passed. 

It was to relieve that pressure. Besides, Congress never supposed that Chinamen 

intended to go back to China and stay several years. If they do not come back at 
Chinese Exclusion and the Federal Courts

63

once they should not be allowed to come at all. We can’t have them going away and 

staying as long as they want to.

 Mr. Riordan—Th en I suppose, your Honor, it is no use arguing the case further.

 Justice Field—Not the least. My mind is made up on the matter. If there is any 

special hardship, there are other ways of remedying it. Bring the case to the notice 

of the Chinese Minister at Washington, let him present it to the Secretary of State, 

with the request that our Minister of China look into the matter and report it. Or, 

if you would prefer, appeal the case to the Supreme Court of the United States and 

have it settled there. I’ll prepare a written opinion for you by Monday. Is there any 

other case?

 Th ere was no other case, and the two other questions to be considered, whether a 

Chinaman born in this State is entitled to the privileges of citizenship, and whether 

Chinese refused a landing here shall be admitted to bail, were set for hearing today. 

 “Mr. Justice Field on the Restriction Act”

Justice Field had earlier agreed with the other federal judges that Chinese laborers returning to the United States did not have to present a certifi cate if it had 

been impossible to obtain one, but when he came to San Francisco in September 

1884 to preside over the circuit court, he arrived with an impatient resolve to bring 

an end to the “habeas corpus mill.” The several cases decided on September 22, 

1884, made clear Field’s determination to enforce the exclusion policy more strictly. 

Foreshadowing his decision in Chew Heong, Field, in the “Case of the Unused Tag,” 

sternly held “It matters not that the petitioner was entitled to have a certifi cate 

from the collector. If he has not got it, the court cannot help him. That is the ‘only 

evidence permissible’ says the statute, and the court has no power to dispense with 

that requirement.”

 In another case, Field appeared determined to prove wrong his detractors who referred to the “sickly sentimentality” of his earlier Chinese decisions. In the “Case of 

the Chinese Wife” (21 F. 785), Field held that the Chinese wives of resident Chinese 

laborers could not enter the United States without proper documentation from the 

Chinese government. While Field had earlier ruled that unreasonable requirements 

should be avoided in the enforcement of the exclusion laws, he expressed no discomfort at the hardships imposed by the possible separation of husband and wife. Such 

decisions earned him praise from the Daily Alta. Given the scathing condemnation 

of Field for his earlier rulings in Chinese cases, the Daily Alta’s editorial must have 

been gratifying for Field and may have been part of an attempt to rehabilitate his 

public image for political purposes.

 [Document Source: Daily Alta, Sept. 25, 1884, p. 4.]

 
Chinese Exclusion and the Federal Courts

64

Mr. Justice Field on the Restriction Act

These decisions show how unjustly the people of California have judged Mr. 

Justice Field with reference to the Chinese question. He rigorously nullified the 

wretched and abortive legislation of this State with reference to the Chinese, which 

developed itself in laundry ordinances, in laws forbidding the employment of the 

Chinese by corporations, and in ordinances providing for cutting off the queues of 

Chinamen. He maintained the inviolacy of a treaty of the Federal Government by a 

State. He suppressed the rebellion of a single State against the action of the Union 

of States in the exercise of the treaty-making power. While he was doing this he 

was active in suggesting the adoption of measures by the only power capable of 

dealing with the subject, with the view of relieving the State from the great curse of 

the Chinese invasion. It was he who drew up the plank in the Democratic National 

platform of 1880 with reference to the Chinese question. It was he who suggested 

to Senator Miller the idea of the Restriction Act. It is he who now finally construes 

it in the spirit and intent with which it was passed, thus securing to the people of 

the State of California the benefits for which the people have struggled so long, and 

which they have thus far failed to realize because of the inefficient and demagogic 

struggles of men who, claiming to be in the interest of the people upon this subject, 

have condemned the action of Justice Field with reference to it.

The people of California will now be compelled to acknowledge that the man 

whom they have abused is the man who has heaped blessings upon their head. It is 

so with all Mr. Justice Field’s decisions. He has never hesitated to stand up against 

the clamor and the prejudices of the hour. He trusts to the future for vindication. 

Federal officials on Chinese immigration and litigation

Judge Lorenzo Sawyer on the Supreme Court’s decision in Chew Heong

After learning that the Supreme Court overturned Justice Field’s circuit court decision in the Chew Heong case, Circuit Judge Lorenzo Sawyer wrote to his friend and 

colleague, Judge Matthew Deady of the U.S. District Court of Oregon, expressing his 

satisfaction that his view of the case had prevailed. As Sawyer’s letter reveals, Justice 

Field could be a difficult and, at times, domineering presence on the circuit court. 

Sawyer’s delight in the Supreme Court’s decision stemmed in part in its rejection of 

Field’s position and its affirmation of the other federal court judges’ interpretation 

in the case. Sawyer also suggests the impact of the negative public opinion on the 

judges. Finally, Sawyer reveals speculation about Justice Bradley’s dissent in Chew 

Heong, which reputedly had less to do with his legal views of the case than his desire 

to soothe Justice Field’s hurt feelings.

[Document Source: Lorenzo Sawyer to Matthew Deady, Dec. 22, 1884, Deady 

Papers, Oregon Historical Society.]

 
Chinese Exclusion and the Federal Courts

65

Yes, it is some consolation, after all the lying, abuse, threatening of impeachment, etc. 

as to our construction of the Chinese Restriction Act, and the grand glorifi cation 

of brother Field for coming out here and so easily, promptly, and thoroughly sitting 

down on us and setting us right on that subject, to fi nd that we are not so widely 

out of our senses after all. Under ordinary circumstances it would not be a matter 

of any special gratifi cation to fi nd ourselves in the right and brother Field in the 

wrong once in a while, but under the circumstances of the present case, there is really very substantial ground for feeling, at least, comfortable over the result. Riordan 

says that Justice Field really fought [illegible] himself with a great deal more zeal 

and bitterness than he had anticipated. And I see by some of the New York papers, 

that his opinion is characterized as “intemperate.” I received a note from a stranger 

to me, a professor in the University of Wisconsin commending me for maintaining 

the rights of the Chinese with courage and energy in opposition to a strong current 

of popular clamor. I guess time will bring us out about right. You do not seem to 

be aware that Justice Bradley dissented. Riordan has just returned, and he says the 

lawyers at Washington account for his dissent upon this principle. Th ey say he is a 

tender hearted good natured old gentleman who does not like to hurt his associates’ 

feelings, and acting on these generous impulses, when they fi nd it necessary to overrule 

or reverse a decision of some of his brethren, he occasionally dissents for the purpose 

of letting him down easy. And this happened to be one of those occasions. And if 

there ever was a case justifying that course, this, certainly, must be one. Otherwise 

under the conditions surrounding the case, the fall was liable to be heavy.

Judge Lorenzo Sawyer on the “Chinese question,” ca. 1890

While the federal judges in San Francisco came to decisions in the habeas corpus 

litigation that were often favorable to Chinese immigrants, they tended to share 

their contemporaries’ negative opinion and stereotypes of Chinese. Upon his arrival 

in California in 1850, Sawyer praised the industriousness and intelligence of the 

Chinese he found there. In an interview in 1890, however, he expressed regret that 

Chinese had ever been allowed to immigrate to the United States. He continued to 

praise the industry of Chinese laborers and argued that they had been crucial to 

California’s economic development, but he worried about a growing tendency of 

Chinese to stay in the United States and to bring their families. If he appreciated the 

economic value of a mobile Chinese labor force, Sawyer was alarmed by the prospect 

of a permanent Chinese community within the United States, citing indelible race 

differences as the source of his concern.

 [Document Source: Lorenzo Sawyer dictations on “Chinese Question,” BANC 

MSS C-D 321, Bancroft Library, University of California at Berkeley.]

 
Chinese Exclusion and the Federal Courts

66

 I do not think it at all desirable that the Chinese should come here permanently, 

but my objection is a very diff erent one from the popular objection. It is in the distinction of the races. It is a great misfortune to this Country that we have the negro in 

the Country. Th e chinese are vastly superior to the negro, but they are a race entirely 

diff erent from ours and never can assimilate and I don’t think it desirable that they 

should, and for that reason I don’t think it desirable that they should come here. I think 

we made a mistake when we opened our door of immigration to them. Th at is the 

fundamental basis of my ideas upon the subject, that is to say, the distinction of race. 

But when you come to drive them out suddenly, that is another question altogether. 

You cannot do that without destroying and breaking down our own industries. Th ere 

is scarcely an industry on this Coast that would not be ruined were we to drive these 

men out. Our fruit industry would be ruined and many of our manufacturers also. 

We are much further advanced in many of our industries than we should be, had it 

not been for the Chinese; but the cheap labor is no feature that concerns me at all. 

Th e steam engine is nothing but cheap labor and you might as well cry out against 

that on that account as against the Chinese. In my view this is not the objection; the 

objection is the dissimilarity of races, and so far as the mere labor is concerned it is 

a great advantage to the Country. What we complain of, what the public complain 

of is really a virtue, their industry their economy their frugality and perseverance. If 

they would never bring their women here and never multiply and we would never 

have more than we can make useful, their presence would always be an advantage 

to the State. It enables thousands to employ labor who would otherwise have to do 

their own work. It lifts a very large class to a position superior to what they would 

otherwise be able to attain, and so long as the Chinese don’t come here to stop, their 

labor is highly benefi cial to the whole community. Th ere are disadvantages about it, 

but the diffi culty is that they are beginning to get over this idea that they must go 

back and they begin to believe that they can be buried here without detriment to 

their future. Th en they will begin to multiply here and that is where the danger lies 

in my opinion. . . .

Judge Ogden Hoffman’s appeal to Congress for relief from Chinese 

litigation, 1888

The federal judges at San Francisco frequently complained about the impact of the 

Chinese habeas corpus cases upon their workload. Between 1882 and 1905, the federal district and circuit courts at San Francisco processed almost 10,000 Chinese 

habeas corpus cases. At times, the other business of the courts came to a standstill 

as judges worked long hours to clear their dockets of the exclusion cases. The judges 

developed strategies to expedite the cases, such as appointing a referee to hear testimony and make recommendations. They also asked Congress for relief, hoping 

that modifi cations of the treaty or legislation might reduce the volume of litiga-
Chinese Exclusion and the Federal Courts

67

tion. Judge Hoffman wrote Representative Charles N. Felton in January 1888 upon 

hearing of Congress’s intent to make the exclusion laws more stringent. Hoffman 

struggled with his belief that the nation should remain faithful to the treaty with 

China and his desire to escape from the crushing workload caused by the Chinese 

habeas corpus cases. Hoffman suggested a change in the law that was close to what 

Congress enacted in the Scott Act in October 1888. 

[Document Source: Ogden Hoffman to Representative Charles N. Felton, Jan. 

16, 1888, reprinted in Congressional Record, 50th Cong., 1st sess., p. 6569.]

 

My Dear Felton: The newspapers announce that you have introduced a bill for 

the abrogation of the treaty stipulations with China respecting Chinese immigration. 

You know the temper of Congress better than I do, but I have serious misgivings as to 

your ability to induce it to pass an act in open and avowed violation of the Burlingame 

and Swift treaties. It is surely not good statesmanship to forego what is practicable 

and attainable by attempting what be desirable but in fact is unattainable.

It is of paramount and indispensable importance that something should be done 

to relieve the courts of the intolerable nuisance and obstruction to their regular 

business caused by the Chinese cases. If they continue in the future as numerous as 

in the past, it is not too much to say that the constant service of one judge will be 

necessary to dispose of them.

Judge Sabin has been here on a summons of Judge Sawyer for one month almost exclusively engaged in trying Chinese habeas corpus cases. There still remain 

on the calendars of the two courts in the neighborhood of two hundred and fifty 

cases undisposed of. The steamers arrive tri-monthly, and it may be anticipated that 

they will continue to bring their usual complement of Chinese passengers, especially 

when news shall have reached China that a law forbidding their coming has been 

proposed, and may be passed, unless something is done speedily.

I know not how courts can deal with this mass of business. . . . 

The prospect fills me with dismay and almost with despair. It appears to me if 

you even think you can succeed in inducing Congress to abrogate the treaty, it can 

only be done after preliminary negotiations with China, or at least after some notice 

to that Government of our intention to no longer be bound by our solemn treaty 

stipulations, and I need not remind you that Chinese negotiations once entered upon 

will postpone all prospects of relief for an almost indefinite period.

Judge Sawyer and myself have both pointed out some simple measures which I 

presume could be readily got through Congress, and which will effect the object we 

are so anxious to attain.

The first is to pass a law providing that after a reasonable notice, say of two or 

three months’ notice, the right to enter the country on ground of previous residence 

shall no longer be recognized. This simple act would at once dispose of perhaps 
Chinese Exclusion and the Federal Courts

68

three-quarters or more of the cases presented to us. I think there can be no objection to such a law on the ground of breach of public faith. When it goes into eff ect, 

even if passed at once, the Chinese will have had six years to exercise the privilege 

of returning on the ground of previous residence. . . . 

 If you could have attended court and listened to the hearing of any of these cases, 

you would have recognized how completely the court is at the mercy of Chinese 

testimony and how impossible it is to distinguish a genuine case from a fraudulent 

one. . . .

 I am deeply interested in the matter, and unless something is done I do not see 

how Judge Sawyer or myself can discharge the ordinary duties of our offi ce. Sickness 

and disability of any kind on the part of either of us for any length of time would 

produce an accumulation of cases on the calendar which would be simply appalling.

 I am authorized by Judge Sawyer to say that he entirely concurs in the foregoing 

suggestions.

 Very truly yours, 

 Ogden Hoff man

 A U.S. Attorney on enforcement of the Chinese exclusion laws, 1888

Offi cials responsible for enforcing the exclusion laws did not fi nd their job an easy 

one. Insuffi cient resources, overwhelming caseloads, and constant public scrutiny 

and criticism plagued not only the judges but also the U.S. district attorneys representing the collector of the port in the habeas corpus proceedings. Critics not only 

made their views known in the local newspapers, but also complained to federal authorities in Washington, D.C., and to their congressional representatives. In 

1890, for example, Seth Martin complained to the Attorney General, responsible 

for overseeing the legal proceedings related to Chinese exclusion, that “the manner 

that the exclusion act has been enforced by our court under the management of the 

regular force of United States District Attorneys has always been a source of great 

dissatisfaction to the people of this state.” The Exclusion Act, Martin concluded, had 

accomplished nothing because of the actions of the Department of Justice and the 

courts. 

 In the following letter, U.S. Attorney John T. Carey responds to a similar criticism, conveyed with a request for an explanation by his supervisor, the Attorney 

General. Carey began by describing the detailed procedures developed by local offi cials in their efforts to enforce the exclusion laws and catch those Chinese who 

sought to enter illegally. Some of these methods, such as the pretrial interrogation 

of Chinese immigrants by the U.S. attorney without the benefi t of representation, 

violated norms of due process but were justifi ed as necessary to root out illegal immigrants. Note the government’s reliance on the Chinese Six Companies’ records in 

enforcing the laws.
Chinese Exclusion and the Federal Courts

69

[Document Source: John T. Carey, U.S. Attorney, Northern District of 

California, to Attorney General, Sept. 7, 1888, Letters Received, File 980-84, 

Records of the Department of Justice, RG 60, National Archives and Records 

Administration.]

 

Sir:

 Th e only way to defeat fraudulent prior residents from entering is by exhaustive 

searching and ingenious cross-examinations. Th e Six Chinese Companies have books 

in which the dues of every member is entered. Every chinaman that leaves for his 

home country pays dues to his company. His name is entered, giving him credit for 

amount of his dues and showing the date he sails and the steamer by which he sailed. 

We have transcripts of these books and every time a chinaman is landed his name 

is marked Landed, giving date of landing and name in book canceled. Th ese books 

have been accepted as reliable and are used in the trial of all cases, prior residents as 

well as certifi cate cases. . . .

 Th e prior resident . . . is cross-examined as to his knowledge of the country, 

means of transportation and such matters as will test the truth of his statements. He 

is asked about the cities, towns, rivers, steamers, mountains, products of the localities he pretends to be familiar with, the climate, habits and customs of our people, 

our holidays, and how each is observed and all matters that will aid in any degree to 

determine the truth or falsity of his claim of right to land.

 Th ey are all liars and have no regard for an oath so that there is no reliance to be 

placed in anything they say. Each chinaman is subjected to an examination by the 

Collector fi rst. Th ese examinations are so stereotyped however that they are of little 

value and are but indiff erent safeguards against the learning the facts necessary to 

make his case a good one before it can be brought on for hearing.

 In order to prevent this as far as possible, when writs [of habeas corpus] issue 

they are brought directly to my offi ce, an examination is had here in such detail as 

to get his knowledge of the country and get his case as he then makes it before he 

has had an opportunity to see his countrymen here and be schooled in his lesson. 

Th is statement is taken down in shorthand and transcribed for use at the trial of his 

case. 

 I feel confi dent that there are Chinese in China and others that travel on the 

steamships, teaching those seeking to land, their statements of facts and drilling them 

upon every subject that they are likely to be interrogated about. I have endeavored 

to detect the persons engaged in this business, and, if possible, to expose the matter, 

but have not succeeded. . . . 

 With the outline of the methods adopted to prevent fraud you can to a degree 

at least appreciate the vast amount of labor bestowed upon these cases. . . . Th ere are 

frequently times when the entire force of the offi ce of necessity is compelled to drop 
Chinese Exclusion and the Federal Courts

70

everything else in order to handle the vast herds of these people dumped upon us at 

one time.

 For the past four months they have been coming over at the rate of from ten 

to twelve hundred per steamer. . . . Th ere are now something like forty fi ve hundred 

cases untried and we are trying at the rate of about ten cases per day. Th e infl ux has 

been so great that the habeas corpus cases completely clogged the Courts, so that 

public and private business pending in the Courts could not receive their attention. 

To relieve this condition of things, the Circuit Judge referred all habeas corpus cases 

to the Examiner for hearing and determination with the right of exception and a 

new hearing in the Court. Th e District Judge appointed a Referee to take and report 

the testimony with his recommendation in all Chinese Habeas Corpus cases. . . . 

 With the present force of assistants, interpreters, and short hand reporters, it will 

take about twenty four months to dispose of the cases on hand . . . .

 Th ere has been a great deal of complaint against the Judges of our Courts for 

admitting the Chinese to land by Habeas Corpus, but it is demagogical and not 

founded upon any reasonable, just or legal ground. Th ey are censured for granting 

writs, for letting them out on bail and for allowing them to remain in the country 

for months without trial. 

 [Th e Chinese] are entitled to writs under the decision of the Supreme Court. 

Th e Court is required as a matter of law to receive the evidence of Chinese and act 

upon it. It is impossible for [the judges] to try more than just so many cases per day 

. . . . If [the habeas corpus cases] accumulate as they do by the hundreds, faster than 

they can be tried, the Courts are not at fault, nor is my offi ce. But because of this 

accumulation and the law that permits it there is a feverish disposition on the part of 

those who are honestly opposed to the immigration of the Chinese to blame some 

one, it matters not who, and on the part of the demagogue and incendiary communist 

ever ready to get up a commotion, revolutionary in its bearing and demoralizing in 

its eff ects upon law and order and good government, to make a direct assault upon 

the integrity, honesty and faithfulness of those called upon to execute and administer 

the law.

 While I sometimes diff er with the conclusions reached by the Judges in passing upon these cases, I have no less confi dence in their purpose to do their whole 

duty, honestly and faithfully, than I have in those who for other objects than good 

government, would attempt to bring them into ridicule and contempt and destroy 

the faith of the people in our judiciary. . . . 

 I can assure you, sir, that nothing has been left undone that could be suggested 

to enforce the law, and that I will obey your injunctions in every way possible. . . . 

 Very Respectfully, 

 John T. Carey, United States Attorney
Chinese Exclusion and the Federal Courts

71

Chinese perspectives on exclusion 

Not surprisingly, many Chinese viewed exclusion and other discriminatory legislation as unfair. Some expressed their frustration in anonymous poems carved into 

the wooden walls of the detention barracks at Angel Island, the immigration station 

in San Francisco. Others, including Chinese diplomats, prominent merchants, and 

students educated in the United States, wrote articles in popular magazines and journals and gave speeches to middle and upper class Americans. They sought to remove 

cultural barriers between Chinese and Americans and expose the false stereotypes of 

Chinese that were used to justify exclusion.

Poem by Chinese immigrant detained at Angel Island

Between 1910 and 1940, approximately 175,000 Chinese immigrants entered the 

United States through Angel Island, the “Ellis Island of the West.” A small island 

in San Francisco Bay, Angel Island evokes unpleasant memories for many Chinese 

Americans who recall tense interrogations by offi cials and long detentions as their 

applications for admission were investigated. Some Chinese were detained for weeks 

and even months. Many of those confi ned at Angel Island carved poems about their 

experiences into the wooden walls of the barracks. 

 The poet “Xu” captures the hopes, sadness, frustration, and determination of 

many Chinese immigrants who left their native homes for the United States, the 

“land of the Flower Flag.” One of the fi rst obstacles encountered would be the exclusion laws, “laws harsh as tigers.”

[Document Source: From Island: Poetry and History of Chinese Immigrants on 

Angel Island, 1910–1940, edited by Him Mark Lai, Genny Lim, and Judy Yung. 

1980. Reprint. Seattle: University of Washington Press, 1991. Reprinted by permission of the University of Washington Press.]

 

Poem by One Named Xu from Xiangshan

Encouraging the Traveler

Just talk about going to the land of the

 Flower Flag and my countenance fi lls

 with happiness.

Not without hard work were 1,000 pieces of

 gold dug up and gathered together.

Th ere were words of farewell to the parents,

 but the throat choked up fi rst.

Th ere were many feelings, many tears fl owing

 face to face, when parting with the wife.
Chinese Exclusion and the Federal Courts

72

Waves big as mountains often astonished 

this traveller.

With laws harsh as tigers, I had a taste of all

 the barbarities.

Do not forget this day when you land ashore.

Push yourself ahead and do not be lazy 

or idle.

 “The Chinese Must Stay,” by Yan Phou Lee

During the exclusion fervor, some educated Chinese made impassioned pleas for 

more equitable treatment of Chinese immigrants. Yan Phou Lee was a Chinese student brought to the United States by the Chinese Educational Mission in Hartford, 

Connecticut. He graduated from Yale University and became a Christian. In the excerpt from “The Chinese Must Stay,” Yan Phou Lee calls upon Americans to live up 

to their liberal principles of equality and refutes common arguments made against 

Chinese to justify their exclusion. By the time he wrote, the stringent Scott Act had 

been passed and exclusion would remain America’s offi cial policy until 1943. In fact, 

the exclusion policy would be applied to all Asians by 1924. Appeals such as Yan 

Phou Lee’s were successful, however, in gaining some middle class American sympathy and support for ameliorating the harshest aspects of the exclusion policy.

 [Document Source: North American Review, 148 (April 1889): 476–83.]

 

“Th e Chinese Must Stay” by Yan Phou Lee

 No Nation can aff ord to let go its high ideals. Th e founders of the American 

Republic asserted the principle that all men are created equal, and made this fair 

land a refuge for the whole world. Its manifest destiny, therefore, is to be the teacher 

and leader of nations in liberty. Its supremacy should be maintained by good faith 

and righteous dealing, and not by the display of selfi shness and greed. . . . 

 How far this Republic has departed from its high ideal and reversed its traditionary policy may be seen in the laws passed against the Chinese.

 Chinese immigrants never claimed to be any better than farmers, traders, and 

artisans. If, on the one hand, they are not princes and nobles, on the other hand, they 

are not coolies and slaves. Th ey all came voluntarily, as their consular papers certifi ed, 

and their purpose in leaving their home and friends was to get honest work. Th ey 

were told that they could obtain higher wages in America than elsewhere, and that 

Americans were friendly to the Chinese and invited them to come. In this they were 

confi rmed by certain provisions of the treaties made between China and the United 

States, by which rights and privileges were mutually guaranteed to the citizens of 
Chinese Exclusion and the Federal Courts

73

either country residing in the other. No one can deny that the United States made 

all the advances, and that China came forth from her seclusion because she trusted 

in American honor and good faith.

 So long as the Chinese served their purposes and did not come into collision with 

the hoodlum element afterwards imported to California, the people of that State had 

nothing to complain of regarding them. Why should they, when, at one time, half 

the revenue of the State was raised out of the Chinese miners? But the time came 

when wages fell with the cost of living. Th e loafers became strong enough to have 

their votes sought after. Th eir wants were attended to. Th eir complaints became the 

motive power of political activity. So many took up the cry against the Chinese that 

it was declared that no party could succeed on the Pacifi c coast which did not adopt 

the hoodlums’ cause as its own. . . .

It has been urged:

 I. Th at the infl ux of Chinese is a standing menace to Republican institutions upon the 

Pacifi c coast and the existence there of Christian civilization.

 Th at is what I call a severe refl ection on Republican institutions and Christian 

civilization. Republican institutions have withstood the strain of 13,000,000 of the 

lower classes of Europe, among whom may be found Anarchists, Socialists, Communists, Nihilists, political assassins, and cut-throats; but they cannot endure the 

assaults of a few hundred thousands of the most peaceable and most easily-governed 

people in the world! . . . 

 IV. Th at the Chinese have displaced white laborers by low wages and cheap living, and 

that their presence discourages and retards white immigration to the Pacifi c States.

 Th is charge displays so little regard for truth and the principles of political 

economy that it seems like folly to attempt an answer. But please to remember that 

it was by the application of Chinese “cheap labor” to the building of railroads, the 

reclamation of swamp-lands, to mining, fruit-culture, and manufacturing, that an 

immense vista of employment was opened up for Caucasians, and that millions now 

are enabled to live in comfort and luxury where formerly adventurers and desperadoes disputed with wild beasts and wilder men for the possession of the land. Even 

when the Chinaman’s work is menial (and he does it because he must live, and is 

too honest to steal and too proud to go the almshouse), he is employed because of 

the scarcity of such laborers. . . . You may as well run down machinery as to sneer at 

Chinese cheap labor. Machines live on nothing at all; they have displaced millions 

of laborers; why not do away with machines? . . . 

 V. Th at the Chinese do not desire to become citizens of this country.

 Why should they? Where is the inducement? [Yan Phou Lee recited the laws discriminating against Chinese to argue they have not been encouraged to become citizens.] 

. . . Are you sure that the Chinese have no desire for the franchise? Some years ago, 
Chinese Exclusion and the Federal Courts

74

a number of those living in California, thinking that the reason why they were persecuted was because it was believed they cared nothing for American citizenship, 

made application for papers of naturalization. Th eir persecutors were alarmed and 

applied to Congress for assistance, and the California Constitution was amended so 

as to exclude them. . . .

 VII. Th e Chinese neither will have intercourse with Caucasians nor will assimilate 

with them.

 Yes, just think of it! As soon as the ship comes into harbor, a committee of the 

citizens gets on board to present the Chinaman with the freedom of the city (valued 

at $5). A big crowd gathers at the wharf to receive him with shouts of joy (and showers of stones). Th e aristocrats of the place fl ock to his hotel to pay their respects (and 

to take away things to remember him by). He is so feted and caressed by Caucasian 

society that it is a wonder his head is not turned (or twisted off ). . . .

 Such are the charges made against the Chinese. Such were the reasons for legislating against them;—and they still have their infl uence, as is shown by the utterances of labor organs; by the unreasoning prejudice against the Chinese which fi nds 

lodgment in the minds of the people; and by the periodical outbreaks and outrages 

perpetuated against them without arousing the public conscience.
Chinese Exclusion and the Federal Courts

75

Select Bibliography and Resources

Secondary sources

Chan, Sucheng. This Bittersweet Soil: Chinese in California Agriculture, 1860–1910. 

Berkeley: University of California Press, 1986.

Chen, Yong. Chinese San Francisco, 1850–1943: A Transpacifi c Community. Stanford, 

CA: Stanford University Press, 2000.

Choy, Phillip P., Lorraine Dong, and Marlon K. Hom, ed. Coming Man: 19th Century 

American Perceptions of the Chinese. Seattle: University of Washington Press, 

1995.

Fritz, Christian G. Federal Justice in California: the Court of Ogden Hoffman, 1851–

1891. Lincoln: University of Nebraska Press, 1991.

Hsu, Madeline Yuan-yin. Dreaming of Gold, Dreaming of Home: Transnationalism 

and Migration between the United States and Southern China, 1882–1943. Stanford, 

CA: Stanford University Press, 2000.

Janisch, Hudson N. “The Chinese, the Courts, and the Constitution: A Study of 

the Legal Issues Raised by Chinese Immigration, 1850–1902.” J.S.D. dissertation, 

University of Chicago Law School, 1971.

Kens, Paul. Justice Stephen J. Field: Shaping Liberty from the Gold Rush to the Gilded 

Age. Lawrence: University Press of Kansas, 1997.

Lai, Him Mark, Genny Lim, and Judy Yung. Island: Poetry and History of Chinese 

Immigrants on Angel Island 1910–1940. HOC DOI, 1980.

Lee, Erika. At America’s Gates: Chinese Immigration during the Exclusion Era, 1882–

1943. Chapel Hill: University of North Carolina Press, 2003. 

McClain, Charles J., Jr. In Search of Equality: The Chinese Struggle Against 

Discrimination in Nineteenth-Century America. Berkeley: University of California 

Press, 1994.

McCurdy, Charles W., “Stephen J. Field and the American Judicial Tradition,” in 

The Fields and the Law. San Francisco: Northern District Historical Society and 

Federal Bar Council, 1986.
Chinese Exclusion and the Federal Courts

76

McCurdy, Charles W. “Justice Field and the Jurisprudence of Government-Business 

Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897,” in 

Journal of American History 61 (March 1975): 970–1005.

Przybyszewski, Linda. The Republic according to John Marshall Harlan. Chapel Hill: 

University of North Carolina Press, 1999.

Przybyszewski, Linda. “Judge Lorenzo Sawyer and the Chinese: Civil Rights Decisions 

in the Ninth Circuit,” in Western Legal History 1 (1988): 23–56.

Salyer, Lucy. Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern 

Immigration Law. Chapel Hill: University of North Carolina Press, 1995.

Shuck, Oscar T. History of the Bench and Bar of California. Los Angeles: Commercial 

Printing House, 1901.

Swisher, Carl Brent. Stephen J. Field: Craftsman of the Law. Chicago: University of 

Chicago Press, 1930.

Court records and government documents

In re Cheen Heong, on Habeas Corpus, 21 Federal Reporter 791 (Sept. 29, 1884)

Chew Heong v. United States, 112 U.S. Supreme Court Reports 536 (1884)

Chinese Exclusion Cases, File 980-84, Letters Received, General Records of the 

Department of Justice, RG 60, National Archives and Records Administration 

Links

“The Chinese in California, 1850–1925,” Library of Congress, American Memory

A wide ranging collection of digitized primary sources, including pamphlets, correspondence, photographs, and cartoons, about Chinese immigration. 

http://memory.loc.gov/ammem/award99/cubhtml/cichome.html

Angel Island State Park, Immigration Station, San Francisco

Includes photographs and descriptions of the immigration station at Angel Island 

in San Francisco Bay. This was the major port of entry for Chinese immigrants, 

beginning in 1910.

http://www.angelisland.org/immigr02.html
Chinese Exclusion and the Federal Courts

77

Chinese Immigration Documents Online: Digitized Chinese Case fi les from the 

National Archives

Allows researchers on-line access to sample documents from investigations conducted by government offi cials of Chinese entering the United States during the 

exclusion period.

http://www.archives.gov/research/arc/topics/chinese immigration.html

Chinese Immigration Records in the National Archives

Describes the types of records relating to Chinese immigration available at the 

central and regional offi ces of the National Archives and Records Administration. 

Some of these records have been digitized and are available online.

http://www.archives.gov/genealogy/heritage/chinese-immigration.html
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Bernice B. Donald, U.S. District Court for the Western District of Tennessee

Judge Terence T. Evans, U.S. Court of Appeals for the Seventh Circuit

Magistrate Judge Karen Klein, U.S. District Court for the District of North Dakota

Judge James A. Parker, U.S. District Court for the District of New Mexico

Judge Stephen Raslavich, U.S. Bankruptcy Court for the Eastern District of Pennsylvania

Judge Sarah S. Vance, U.S. District Court for the Eastern District of Louisiana

Judge Karen J. Williams, U.S. Court of Appeals for the Fourth Circuit

Leonidas Ralph Mecham, Director of the Administrative Offi ce of the U.S. Courts

Director

Judge Barbara J. Rothstein

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. 

It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of 

the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also 

includes the director of the Administrative Offi ce of the U.S. Courts and seven judges elected 

by the Judicial Conference.

The organization of the Center refl ects its primary statutory mandates. The Education 

Division plans and produces education and training programs for judges and court staff, 

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Innovations & Development Offi ce and Communications Policy & Design Offi ce—in using 

print, broadcast, and on-line media to deliver education and training and to disseminate the 

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