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Ah Toy v. Musgrove. A copy of the report of the arguments and judgment in the case of Ah Toy v. Musgrove - Supreme Court of Victoria.
- Melbourne, Government Printer 1888. Foolscap, excellent in a modern plain wrapper; 164pp. A quick dash through Quick and Garran's Annotated Constitution reinforces the sense of the momentous that surrounds this case. Toy v. Musgrove appears again and again cited as a "great" and "celebrated" case. Chung Teong Toy, a thwarted Chinese immigrant who arrived in Melbourne on the Afghan in April 1888, brought his case - backed by the Chinese Residents Association - against Musgrove, the Collector of Customs, for refusing to accept payment of the poll-tax of ten pounds demanded from Chinese immigrants. Without getting too bogged down in details Musgrove's defence was that he had been ordered to refuse entry to all the Chinese on the Afghan. The Supreme Court found - four judgments to two - in favour of the plaintiff and ruled that the Colony did not have the right to exclude aliens. One of the Justices - Justice Williams - was reluctant to concur; it left the colony "in this most unpleasant and invidious position", unable to prevent "the scum or desperadoes of alien nations from landing . whenever it may suit them." This of course was unacceptable and an appeal was made to the Privy Council. In the meantime the colonies used quarantine regulations to exclude Chinese immigrants where they could and quietly let in some handfuls where they couldn't do otherwise. Amongst the outrage and furor the suggestion was made that the authorities knew they were acting illegally; a sardonic Melbourne journalist wrote, "But isn't it a curious thing that our authorities should have been induced to go to illegal lengths under the spur of excitement and public clamour. I am told privately that at the time they were warned by council that they were exceeding the limits of their constitutional prerogative, but they felt so sure of having the public at their back that they took the risk. And now an opium-smoking, yellow-skinned Mongolian has given them a lesson they (or rather the country) will have to pay for to a pretty tune." (from the Traralgon Record, 14 Sept 1888). The appeal to the Privy Council not only succeeded in 1891 but, as I understand it, fortified the bastion of government immunity by refusing to accept that an alien "can, in an action in a British court, compel the decision of such matters as these, involving delicate and difficult constitutional questions affecting the respective rights of the Crown and Parliament, and the relations of this country to her self-governing colonies." It should be noted here that I came across this quote not by reading the Privy Council decision but reading the summary of 'Fong Yue Ting v. United States' in the US Supreme Court in 1893. Saddest from this distance is that, reading of the activities of the Chinese Residents Assocation, it appeared to many that progress was made: the short-lived victories of this case and the grudging admission of those handfuls of Chinese immigrants seemed a great step forward. Of course all colonial governments doubled their efforts and collectively triumphed with the White Australia Policy come federation. What I can't find among the thousands of words written about this case is what happened to Chung Teong Toy. Trove finds three copies of this, two dated a century wrong.
      [Bookseller: Richard Neylon]
Last Found On: 2016-03-16           Check availability:      AbeBooks    

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