RICHARD P. COLE AND GABRIEL J. CHIN

FIELD REVIEW

Emerging from the Margins of Historical Consciousness: Chinese Immigrants and the History of American Law

I. The Significance of the Legal History of Chinese Immigrants

During the past generation legal histories of Chinese immigrants who came to America during the second half of the nineteenth century have reshaped our view of their significance for the history of American law. The preceding three generations of professional legal historians perceived the legal experience of Chinese immigrants as marginal to the history of American law and wrote no histories about it. Those who did write about Chinese immigrants viewed them as the passive and nonassimilating victims of harsh and discriminatory laws. Though Chinese immigrants continue to occupy "at best an obscure niche in the historical consciousness of the average educated American," ¹ important recent legal studies demonstrate that they are now firmly within the mainstream of scholarly study. These studies have dramatically recast the historical role of Chinese immigrants, portraying them as actors helping to shape their own history and as contributors to the development of American legal culture.
1

      Four generations of histories of Chinese immigrants provide the basis for the central inquiries of this paper. What was the significance of Chinese legal advocacy for the development of American law? Why did it take so long for legal historians to recognize the importance of studying the legal history of Chinese immigrants? How was it that they finally came to appreciate its significance? How should scholars continue to study Chinese immigrants and, more generally, to study the development of American law, as we enter the twenty-first century?
2

      The original view that Chinese immigrants did not contribute to American legal culture seemed to be justified by the outlines of their historical experience in America. The first Chinese immigrants came to California in 1849 seeking gold. During the second half of the nineteenth century an estimated two hundred thousand Chinese immigrated to the United States, mostly to California and other western states. The population of Chinese immigrants in American grew steadily from 1850 to 1880. By 1880 their number had grown to about 105,000 persons. The population of Chinese may have reached as many as 135,000 persons on the eve of the passage of the first federal law specifically excluding Chinese immigrants in 1882. In certain areas of the American West, Chinese immigrants constituted a substantial part of the population. ² They were part of a Chinese diaspora, which, during the century from 1840 to 1940, scattered two and a half million emigrants throughout the world. ³
3

      Nevertheless, almost from the moment they arrived in California, and almost wherever they went, Chinese immigrants encountered hostility and persecution. It began in the mining camps. They, as well as other foreign miners, became the targets of personal violence, including "crimes of arson, assault, robbery, burglary, kidnaping, and murder." Many laws also discriminated against Chinese immigrants. For example, early legislation placed burdensome licensing fees and taxes upon foreign miners that their native-born counterparts were not obligated to pay. Numerous accounts survive of tax collectors resorting to violence and extortion to collect fees from immigrant miners. ⁴
4

      An infamous example of discriminatory lawmaking was the 1854 decision of the California Supreme Court in People v. Hall. ⁵ In it the court excluded the testimony of Chinese witnesses in the prosecution of a white defendant accused of murder. It did so by equating Chinese to Native Americans in a statute that prohibited the latter, as well as black and mulatto persons, from testifying against white persons in criminal proceedings. Judge Hugh Murray, who was a Know Nothing in his politics, justified his interpretation of the statute upon several grounds, including a dubious ethnology. Murray asserted that from the time that Columbus had believed that he had discovered "an island in the China Sea ... the American Indians and the Mongolian, or Asiatic, were regarded as the same type of human species." In an equally dubious example of statutory interpretation, Murray also defined "black" as a generic word, intended to exclude all but Caucasians. ⁶
5

      By the last quarter of the nineteenth century Chinese immigrants became the object of what some historians have called "the driving out." ⁷ They suffered from escalating violence and discriminatory laws that became a defining characteristic of their experience in America. While violence committed upon Chinese immigrants ebbed and flowed, ⁸ state and local laws increasingly placed an array of restrictions upon their economic, social, political, educational, cultural, and religious activities. ⁹ The California Constitution of 1879 and even more so the constitutional convention debates provide striking examples of anti-Chinese sentiment in legal discourse. ¹⁰
6

      This burgeoning body of state law discriminating against Chinese immigrants was part of a larger corpus of laws affecting all immigrants dating back to the colonial period. ¹¹ In spite of the tradition of state regulation of immigration, as early as 1874 Judge Stephen J. Field stated from a federal court bench that those who wished to drive out the Chinese must turn to the federal government, "where lay the whole power over this subject." ¹² Opponents of the Chinese took Field's advice. Congress began to elaborate the classical structure of federal immigration law in 1875. In that year it passed legislation that became known as the Page Act. This aimed at keeping "coolie" labor from coming to America and also proscribed the entry of criminals, prostitutes, idiots, lunatics, convicts, and "persons likely to become a public charge." ¹³ After extracting a modification of the Burlingame Treaty of 1868, which had provided protections for Chinese immigration, ¹⁴ in 1882 Congress overwhelmingly passed a landmark statute, the Chinese Exclusion Act. It was the first federal law ever to exclude a group on the basis of race. It "suspended" the immigration of Chinese laborers for a period of ten years and affirmed that no court, state or federal, "shall admit Chinese to citizenship." It also authorized the issuance of certificates to laborers already in the United States. ¹⁵
7

      Congress soon passed a series of statutes that made it increasingly difficult for Chinese to come or return to the United States. ¹⁶ In 1892, with the 1882 act expiring, Congress passed the Geary Act. In addition to extending all existing restrictions upon Chinese immigration, it shifted to Chinese aliens the burden to "establish by affirmative proof" their right to remain in America. To do so, an immigrant had to register with the collector of revenue within one year of the Act's passage. It also provided for a summary deportation proceeding. ¹⁷ In 1902 the prohibition upon the immigration of Chinese laborers became permanent. ¹⁸ By 1917, faced with growing numbers of Japanese immigrants to America and the beginning of Indian immigration, Congress imposed a blanket prohibition on immigration from the so-called "Asiatic Barred Zone," which covered most of continental Asia. ¹⁹ The process of immigration restriction culminated in the Immigration Act of 1924, which created the national origins quota system. By linking immigration to the right of naturalization, which had been denied to nonwhite immigrants by a federal law adopted in 1790, ²⁰ the Act assured that virtually no Asians could immigrate to America. ²¹
8

      The new body of federal immigration law, supplemented by a continuing stream of personal violence and discriminatory state and local laws, had a devastating impact upon Chinese immigrants. The population of the Chinese community in America dwindled to under ninety thousand persons by 1900 and to almost sixty thousand by 1920. ²² The period from the last quarter of the nineteenth century until well into the twentieth century was one of great suffering for Chinese immigrants in America. ²³ It began upon their arrival in San Francisco when government officials detained them at "the Shed." Its physical conditions were grossly inhumane, ²⁴ and immigrants detained there were treated like criminals. The Reverend Ira Condit described how "merchants, laborers, are all alike penned up like a flock of sheep, in a wharf-shed, for many days, and often weeks, at their own expense, and are denied all communications with their own people." He described the detained immigrant as "imprisoned as a criminal [who] has committed no crime" and viewed as guilty until he "can prove his innocence." Reverend Condit concluded: "The law thus treats the Chinese as no other nation under the sun is treated." ²⁵ Furthermore, the deportation of aspiring Chinese immigrants sometimes had tragic consequences. ²⁶
9

      Nor was life easy for those Chinese who managed to enter the United States. Most encountered hostility, including the destruction of Chinese enterprises, and even entire industries like fishing. ²⁷ To escape persecution and find work, many retreated to the confines of Chinatowns, while others migrated eastward across the continent. Still others, even some who had persevered through years of hard labor and indignities, at last became disheartened and returned to China. ²⁸ The following poem that survives from the early twentieth century suggests how harsh and discriminatory laws brought sorrow to the lives of Chinese immigrants. ²⁹
10

American law, more ferocious than tigers
Many are the people jailed inside wooden walls
Detained, interrogated, tortured
Like birds plunged into an open trap
Had I only known such difficulty in passing the Golden Gate ...
I regret my journey here

But one of the central ironies of American legal history is that the vanquished have left their mark upon it. In spite of the downward cycle of the historical experience of Chinese immigrants, during the late nineteenth and early twentieth centuries they contributed to two revolutionary developments in American law—the recasting of federal-state relations and the rise of the administrative state. These changes were shaped in part through the legal advocacy of the Chinese themselves. They organized and financed their legal advocacy through hui kuan, literally "meeting halls" that became known as companies. They were formed by immigrants with geographic and linguistic ties to each other and operated as general mutual aid societies. ³⁰
11

      Much of the legal advocacy of Chinese immigrants was based upon a new body of civil rights laws passed during the decade following the Civil War. Though their specific goal may have been to liberate the Freedmen, some of the new laws seemed clearly to protect all minorities, including the Chinese. Notable was section 16 of the Civil Rights Act of 1870. It assured a number of rights to "all persons." ³¹ But the most important basis for the Chinese legal advocacy would be the Fourteenth Amendment. Chinese immigrants scored some major victories under this amendment, the most important being the Yick Wo v. Hopkins decision in 1886. ³² In it, the Supreme Court struck down San Francisco ordinances mandating that new laundries be built of brick or stone and that existing wooden ones obtain a permit to continue operation. It found them violative of Yick Wo's equal protection rights under this amendment.
12

      Chinese legal advocacy under the Fourteenth Amendment, however, had checkered results. ³³ The structure of legal discourse that emerged during the late nineteenth century provided several ways to deny Chinese civil rights claims. Important provisions of the new body of law, like the privileges and immunities clause of the Fourteenth Amendment, conferred rights only upon citizens, a status that persons of Chinese descent could not acquire except by birth on American soil. ³⁴ Further, the judiciary did not apply the new body of law to legislation that limited associational rights, or that indirectly limited political rights. ³⁵ Still, Chinese immigrants had contributed to a constitutional transformation of federal-state relations that would contribute to the expansion of individual rights, especially during the twentieth century.
13

      Chinese immigrants played a more central part in a second revolution in American government that began during the late nineteenth century. It endowed the federal government with broad and exclusive powers to make law regulating immigration. In two landmark cases involving Chinese litigants decided in 1889 and 1893, ³⁶ the Supreme Court conferred sweeping and exclusive powers upon the federal government to make laws regulating all matters related to immigration. ³⁷ Congress established a bureaucracy to implement the new body of law. It became an important part of the rise of the administrative state that revolutionized lawmaking in twentieth-century America. ³⁸ Administrative lawmaking violated a number of the original principles of the federal Constitution, including limited government, the nondelegation of government powers, the president as the head of the executive, the separation of powers, and an independent judiciary. ³⁹ Of all forms of administrative lawmaking, immigration law represented the most extreme departure from traditional American constitutional norms. ⁴⁰ Chinese legal advocacy could not thwart the development of administrative lawmaking. But it laid a foundation for a democratic critique that would ultimately circumscribe its arbitrariness.
14

      The study of legal history in America by persons with academic training in graduate school began during the latter decades of the nineteenth century. Yet three generations of legal historians ignored the history of Chinese immigrants. In Part 2 we suggest how the classical approach to the study of American legal history led to this remarkable oversight.
15

      Although legal historians overlooked Chinese immigrants, others did write about their historical experience. They were not professional historians, for the latter, like legal historians, considered Chinese immigrants too insignificant to warrant their attention. ⁴¹ Part 2 shows how the histories of Chinese immigrants during this long period reinforced the view of their insignificance to American legal history. Law was so central to the experience of Chinese immigrants in America that even writers without legal training who studied these immigrants were compelled to account for it. But they almost uniformly adopted a stereotype of Chinese immigrants as merely the passive and nonassimilating victims of oppression.
16

      The view of Chinese immigrants as victims in turn led earlier writers to ponder the sources of anti-Chinese sentiment. Specifically, was racism or labor conflict the wellspring of anti-Chinese sentiment? This issue continues to shape studies of the legal experience of Chinese immigrants. A final reason for reviewing this early period is that it included the first work by a legal scholar that squarely addressed the legal experience of Chinese immigrants, primarily with federal immigration law. ⁴²
17

      Part 3 reviews the creative outpouring of studies of the legal history of Chinese immigrants during the past generation. It also suggests reasons for the emergence of these studies and why they transcended the limitations of both old methods of historical study and of stereotypes of Chinese immigrants. Serious attention to the legal history of Chinese immigrants began in 1971 with the publication of a monumental study by a graduate student in law, now a distinguished Canadian legal scholar, Hudson Janisch. ⁴³ During the 1980s there was a spate of articles and chapters of books that described particular facets of the legal experience of Chinese immigrants. ⁴⁴ By the 1990s entire books devoted to their legal history began to appear. ⁴⁵ They include the recent publication of Charles McClain's study, In Search of Equality, in 1994. It considers the struggle of Chinese immigrants in California against discriminatory laws during the last half of the nineteenth century. Just a year later Lucy Salyer published Laws Harsh as Tigers, ⁴⁶ detailing the development of federal law excluding Chinese immigrants and its administration, from the late nineteenth century until 1924. Today, studies of the legal history of Chinese immigrants appear regularly in scholarly journals. ⁴⁷
18

      It is now time to recognize the achievements of the past generation of legal histories of Chinese immigrants. They include providing a more precise and professional description of the legal experience of Chinese immigrants. McClain and Salyer's studies, for example, represent state-of-the-art scholarship on their respective subjects. Their work, along with other recent studies, has also fundamentally reshaped the legal history of Chinese immigrants. At last scholars broke though long-standing stereotypes of a passive and nonassimilating people and portrayed Chinese immigrants as actors in their own history and as important contributors to the history of American law. The measure of this achievement is shown by the fact that legal history usually lags behind advances in historical analysis and interpretation. ⁴⁸ In recounting Chinese legal advocacy, however, legal histories have been in the forefront of scholarship reshaping the history of Chinese immigrants. ⁴⁹
19

      This leads to Part 4. Recent legal histories of the Chinese provide a promising model for the further study of these immigrants. They also encourage scholars to study the contributions made by other groups to the development of American law. More generally, a number of the legal histories of Chinese immigrants transcend the dominant intellectualism in the writing of American legal history and provide a model for studying law in its human and social contexts.
20

II. Interpretive Legacies of Three Generations of Histories

Chinese immigrants and their adversaries left a long trail of records of their legal conflicts. In proportion to their small population Chinese immigrants filed an amazing number of lawsuits. ⁵⁰ Some of these records have been used by legal scholars throughout the twentieth century. ⁵¹ Yet, in what McClain characterizes as "a mystery," ⁵² three generations of legal historians ignored the legal history of Chinese immigrants in America. Why?
21

      A partial explanation for this enormous oversight is that during the earliest period when professional legal scholars began to write history, the legal experience of Chinese immigrants was still in the process of unfolding. But the main answer is that the study of the legal history of Chinese immigrants was a casualty of what Robert Gordon called the common law tradition and, in an earlier generation, Daniel Boorstin called doctrinal legal history. ⁵³
22

      What was it about the sources and methods of histories of the common law tradition that led legal historians to overlook the Chinese legal experience? The first professional American legal history grew out of the environment, and reflected some of the most basic assumptions, of the new legal education pioneered by Christopher Columbus Langdell at the Harvard Law School during the 1870s. Langdell believed that private law, regulating relations among citizens, was of much greater significance than public law, which adjusted the relationship between the state and its citizens. For a short time Harvard offered no courses on constitutional law. Instead, Langdell devoted his own scholarly energies to the study of common law, and particularly contract law. Though Chinese immigrants were involved in many private law claims, ⁵⁴ the paradigmatic case was a challenge to an oppressive state statute, local ordinance, or administrative decision by a writ of habeas corpus that claimed a violation of rights based upon a federal treaty, statute, or the Constitution. ⁵⁵
23

      Langdell also viewed law as a science and believed that the materials of that science could be found in printed books—that is, reports of appellate court opinions. In accordance with this view, expositors of the common law tradition considered appellate court opinions as the virtually exclusive source of common law lawmaking. Like Langdell in his casebook on contract law, they were interested in the occasional articulation of important legal doctrine by insightful judges, not in the overall impact of a mass of habeas corpus claims. In addition, they viewed most statutes (save for a few like the Statute of Frauds that became basic to common law doctrine) as legal ephemera injected into the organic body of common law. Treaties were even less important sources for these legal historians. Not only were they mere pieces of law, but of public law. ⁵⁶
24

      But even had the sources of histories of the common law tradition not been so confined, early legal historians still would not have considered the legal history of Chinese immigrants to be sufficiently important to merit study. As classically illustrated by The Common Law (1881), a collection of lectures on legal history delivered by Langdell's most famous student, Oliver Wendell Holmes, ⁵⁷ historians of the common law tradition attempted to trace the evolution of contemporary doctrines of the common law from their origins in the Teutonic forests to the present day. ⁵⁸ The history of the common law tradition was a winners' history, recounting for judges and practicing lawyers the development of orthodox legal doctrines. Holmes proffered an extreme view of this approach, stating: "I shall use the history of our law so far as it is necessary to explain a conception or to interpret a rule, but no further." ⁵⁹ As Gordon points out, the focus upon the development of orthodox legal doctrine by histories of the common law tradition was ethnocentric, allowing no room for the study of diverse legal cultures. For example, James Coolidge Carter, who popularized Savigny's organic historicism in America, advised historians to study the habits and customs of a people, "and those previously declared rules which have sprung out of previous similar inquiries." ⁶⁰ In the concrete, this amounted to studies tracing the development of Anglo-American law in colonial America. ⁶¹
25

      From any perspective, then, history of the common law tradition left no room for studying the legal history of Chinese immigrants. Rather than a broad approach to the development of American law, its goal was to trace the historical progression of important contemporary doctrines of an English body of law through the reading of appellate court opinions. Jurisprudence of the late nineteenth and early twentieth centuries reinforced the doctrinal and disengaged character of common law legal history. This was the classic period of formalistic jurisprudence in American history. It provided a highly internalized account of the evolution of legal doctrine that stood above the fray of such historical struggles as that of the Chinese immigrants to establish their legal status in America. Again legal historians reflected the prevailing jurisprudence by not venturing beyond the study of legal doctrine. As Gordon aptly stated, they almost always stayed within the law-box. ⁶²
26

      By the 1930s, however, realism was replacing formalism as the preeminent American jurisprudence. It challenged the fundamental assumptions of the common law tradition. In its more extreme form, it characterized as mythological the belief that legal doctrine existed and ridiculed the distinction between public and private law. Even in a more moderate form, it did not countenance the study of law disengaged from its human and sociological context. ⁶³ If realists were right that it was important for legal scholars to study the lawmaking of police courts, then legal historians could now take seriously the habeas corpus petitions of Chinese immigrants claiming deprivations of constitutional rights.
27

      Yet the rise of realism did not immediately undermine the influence of the common law tradition. To the contrary, this tradition has evinced a remarkable ability to shape the writing of American legal history. Legal historians continued to trace the development of important legal doctrine through the study of appellate court opinions. Until the 1960s histories of American law, with some notable exceptions, ⁶⁴ remained focused upon colonial American law. The remarkable vitality of the common law tradition has been a foundational feature shaping the historiography of the legal experience of Chinese immigrants.
28

Nineteenth-Century Writings about Chinese Immigrants

It was left to lay writers, then, to recount the historical experience of Chinese immigrants in America, including the legal controversies that it generated. During the late nineteenth century these writers were not professional scholars, but partisans trying to influence the treatment of Chinese immigrants by shaping public opinion concerning them. A number of the partisans, most of whom were clergy, defended the Chinese, ⁶⁵ while others relentlessly attacked these immigrants. Several of the adversarial works, published during the early years of the 1880s, were the apocalyptic accounts of paranoid authors foretelling the Chinese conquest of America by the twentieth century. ⁶⁶
29

      Partisan literature does not present a consistent account of the relationship between Chinese immigrants and American law. Their defenders perceived Chinese immigrants as victims, portraying them as the targets of violence and discriminatory laws. For example, the Reverend William Speer recounted ill treatment that Chinese miners had received and, with reference to People v. Hall, complained of the inability of Chinese witnesses to testify against white persons. In The Chinaman as We See Him, which was the most stylistically modern work of the partisan literature, Reverend Condit empathized with the righteous indignation felt by Chinese immigrants over the "great injustice" the legal system imposed upon them. ⁶⁷
30

      In contrast, opponents of Chinese immigrants portrayed them as destructive of American legal culture. At several points James Whitney compared them to swarms of "insidious ants," which if left unchecked would destroy American civilization. ⁶⁸ Whitney implored: "If our Christian civilization, if our enlightenment, if our free forms of government, if our prosperity and power as a people, are to be preserved ... the Chinese must be expelled from our borders at any hazard, and at any cost." ⁶⁹ P. W. Dooner agreed. According to him, the destruction of American legal culture was a priority for Chinese immigrants. Reflecting a widely held view that Chinese law was simple and communal, ⁷⁰ he asserted: "The Common Law system of jurisprudence was by far too subtle in its distinctions, and too nice in its discriminations, to dispense the quality of justice ... necessary to the regulation of Asiatic society." ⁷¹
31

      Isolated passages of the partisan literature suggest, however, that Chinese immigrants adeptly used legal institutions in their struggle to establish themselves in America. Reverend Speer observed how quickly the Chinese had grasped the importance of American law from their contacts with native citizens. He reported that one of the regular uses of funds by the Chinese Six Companies of San Francisco was to support litigation. ⁷² He also reprinted a remonstrance prepared by the Chinese of San Francisco to send to Congress. Its authors expressed a profound disappointment concerning American legal institutions. While Chinese immigrants had "been told of the excellence of the institutions of your honorable country," they had come to the view that "Causes at law are not judged according to what is true or false; the strongest faction is counted to have truth." ⁷³ Most surprising, in spite of his view that Chinese law was primitive, Dooner created a fictional court case begun by the Chinese to obtain the right to become citizens. In this lawsuit, "over one hundred of the ablest Counsel, from all parts of the Union," represented the Chinese. Since they enjoyed the advantage of the full support of the Chinese government, as well as, "to all intents and purposes," that of the federal government, Dooner concluded that the outcome of the trial "could hardly have been doubted." ⁷⁴
32

      Such passages in the partisan literature provide early insights into Chinese legal advocacy. But they are isolated and offset by contradictory passages, sometimes in the same work, suggesting that Chinese immigrants did not assimilate to American culture. More significant, perhaps, was that the literature was too partisan, and in the case of the apocalyptic literature too surreal to alert scholars to the phenomenon of Chinese legal advocacy.
33

Second Generation Histories

When compared to the first generation of writings about Chinese immigrants, those published during the second generation, roughly between 1910-1940, present a patchwork of continuity and change. Though scholars now began to study Chinese immigrants, most of them still were not professional historians. A number of these writers continued to try to shape, and sometimes actually had some impact upon, American treatment of the Chinese. ⁷⁵ Writers of the second generation devoted more attention to the legal experience of Chinese immigrants than had their predecessors. Some of the studies were responses to lawmaking that their authors perceived to be unfair. Nevertheless, when it came to assessing the impact of these immigrants upon American legal culture, these later writers remained captives of the prevailing stereotypes of Chinese passivity and failure to assimilate.
34

      Two of the most important of these works provide bookends for the period. Mary Roberts Coolidge published her lengthy study of Chinese immigrants in 1909, ⁷⁶ and Elmer Sandmeyer his shorter one exactly thirty years later. ⁷⁷ In between there were a number of studies of Chinese immigrants, notably those sponsored by the Institute of Social and Religious Research. ⁷⁸ Coolidge and Sandmeyer's books embody the important themes of research on Chinese immigrants during this period.
35

      Scholars of this generation uniformly protested against the persecutions suffered by Chinese immigrants. Coolidge's book was most notable in attracting the attention of the public, and also that of lawmakers, to their plight. ⁷⁹ In attempting to convince Americans to ameliorate the legal status of Chinese immigrants, Coolidge debunked the persistent charges that the Chinese were cheap laborers harmful to other working people or the American economy and that they were irrevocably opposed to assimilating. ⁸⁰ In the concluding chapter of her long study Coolidge called for legal reforms: "The remedies for the impolitic and unjust treatment of the Chinese in the United States ... are obviously, a reasonable administration of the laws in force by non-partisan officials, and the modification of the law to harmonize strictly with whatever treaty may be negotiated." Coolidge remained optimistic that "the first step toward practical repentance" had been taken by recognizing that American law and practice violated treaty obligations. In the closing paragraph of her book Coolidge waxed prophetic. She warned that remorse for prior wrongs was not enough. If Americans did not turn away from their evil treatment of Chinese immigrants, "Injustice in the guise of discrimination ... will not fail to bring retribution in the degradation of those who practice it." ⁸¹
36

      Professional historians who protested against anti-Chinese agitation, however, did not all do so from the same perspective. Coolidge identified government officials, journalists, and laborers as the oppressors of Chinese immigrants. Rowdy elements had cowed more respectable citizens into silent acquiescence to anti-Chinese activities. ⁸² In contrast is a study published by Lucille Eaves just one year after Coolidge's, in 1910. Eaves began by acknowledging "a sympathetic interest in the long struggle of the working people of California to obtain legal protection, and to win a full share in those economic advantages afforded by the rich natural resources." Nevertheless, just as much as Coolidge, she railed against "the innumerable anti-Chinese measures ... many of which are crude, and ... if not actually unconstitutional, are at variance with American traditions." ⁸³ Especially in light of her sympathy for labor, Eaves's protest against the awful persecution visited upon Chinese immigrants reverberates across the twentieth century in pure tones.
37

      Writers of this generation devoted much attention to identifying the sources of anti-Chinese sentiment. The earlier partisan literature had been mixed on this issue. Literature attacking the Chinese fostered negative stereotypes. They raised the specter of racism as a basis for the persistent opposition that Chinese immigrants encountered in America. ⁸⁴ Some of the writers who defended the Chinese immigrants also identified a deep racism faced by them. ⁸⁵ But other writers suggested that Chinese immigrants had become caught in the dramatic upswing of conflict between management and labor that occurred in late nineteenth-century America. ⁸⁶ Whitney portrayed Chinese immigrants as coolies, virtual slave laborers who were taking away jobs from American workers and bread from the mouths of American women and children. ⁸⁷ Those espousing this version of class conflict frequently coupled it with a racist view of Chinese laborers. ⁸⁸
38

      Coolidge and Sandmeyer also recognized that racism constituted a source of anti-Chinese sentiment. ⁸⁹ But, like most writers of their generation, both emphasized the importance of economics in shaping it. ⁹⁰ Sandmeyer in particular stressed that the taproot of anti-Chinese xenophobia was labor competition. ⁹¹ He argued that as economic conditions worsened during the 1870s, anti-Chinese labor sentiment hardened. Henry George was influential in crystallizing labor's argument against Chinese immigrants. It asserted that the Chinese were cheap laborers who did not create jobs or wealth but took jobs away from others. George warned that Chinese immigration would "make the rich richer and the poor poorer ... make nabobs and princes of our capitalists, and crush our working class into the dust." ⁹² Reflecting this view, the credo of the Workingman's Party of late nineteenth-century California, repeated again and again by its leaders, was "The Chinese must go." ⁹³
39

      Coolidge also recognized that economics was an important source of anti-Chinese sentiment. This is clear from her argument that xenophobic sentiment did not surface immediately upon the arrival of Chinese immigrants. At first, in what Coolidge called "The Period of Favor," Californians viewed Chinese immigrants as good citizens: "Perhaps the citizens of no other nation are more quiet and more valuable. They seem to live under our laws as if born and bred under them, and have already commenced an expression of their preference by applying for citizenship by filing their intention in our courts." They had come to an American West that in the nineteenth century was developing new communities and needed infusions of labor. In such an environment, Coolidge observed, "race antipathy was subordinated to industrial necessity, and in a heterogeneous community, where every Caucasian expected to be a miner or a speculator, the ... Chinese could find room and something more than toleration." But even Coolidge recognized that the "period of favor" was short-lived and that the relations of the races deteriorated as communities became more settled and resources became more scarce. ⁹⁴
40

      Though W. E. B. DuBois had already identified the importance of race in American history, this generation of studies of Chinese immigrants reflected the emphasis of Progressive historians upon the force of material elements. Charles Beard's history of the federal Constitution, published in 1913, was particularly influential in suggesting the primacy of economic and class interests in American history. ⁹⁵ The emphasis upon economic forces led writers of this generation to overlook the question of why nonwhite laborers, like the Chinese, were the particular object of labor strife.
41

      Whatever their rendition of the etiology of xenophobic lawmaking, writers of this period continued to accept the stereotype of Chinese immigrants as its passive victims. For example, in 1922 Robert Glass Cleland asserted that the Chinese "suffered with helpless stoicism whatever indignities were thrust upon them." ⁹⁶ Coolidge's book again is illustrative. It demonstrated sophistication in emphasizing the importance of administrative lawmaking in the history of discriminations suffered by Chinese immigrants. But when it turned to the reaction of the Chinese to their oppression, it lapsed into a facile acceptance of the stereotype of passivity. In a revealing passage, Coolidge suggested that "the whole theory of American law and justice was foreign" to Chinese immigrants because they came from a culture in which they were "accustomed to settle difficulties by arbitration and to accept and give compensation for injuries." She also noted that American legal proceedings were in an unfamiliar language and asserted that Chinese immigrants thought judges in local courts were hostile to them. ⁹⁷ The inability of scholars during this period to disengage themselves from the old stereotype of Chinese passivity demonstrates how their unfamiliarity with legal materials severely damaged the fidelity of their account of the historical experience of Chinese immigrants.
42

Third-Generation Histories

Finally, during the early years of the third generation of writings about Chinese immigrants, there appeared an account of their experiences written by a noted legal scholar. ⁹⁸ The Alien and the Asiatic in American Law (1946), written by Milton Konvitz, analyzed the American law of immigration and alienage with an emphasis on Chinese and other Asian immigrants. ⁹⁹
43

      Konvitz's book is in the mold of a traditional study of legal doctrine. Individual chapters address such issues as the government's right to exclude or expel aliens, aliens' right to become or remain citizens, and whether aliens could exercise such privileges as owning land, working, using natural resources, attending schools, and marrying. In the initial chapter Konvitz organized his review of laws excluding aliens, beginning with the Chinese Exclusion Act, around themes of constitutional law, namely, the distribution of powers between the federal and state governments. Konvitz not only described the development of the law of alienage, he suggested its reform. Chapter by chapter he pointed out the inadequacies of the law, either because it was out of step with contemporary legal changes or because it advanced negative cultural practices and values. ¹⁰⁰ On the title page of his book, Konvitz, perhaps referring to an old view that Chinese immigrants had been mere sojourners in America, scolded those who had been inhospitable to them by citing Leviticus: "And if a stranger sojourns with thee in your land, ye shall not vex him. But ... thou shall love him as thyself."
44

      How are we to account for the appearance of this singular, and remarkably ground-breaking, legal study of Chinese and other Asian immigrants? As suggested by its concern for the rights of aliens, it had roots in Konvitz's own constitutional and civil rights activism. ¹⁰¹ His idealistic concern for aliens also had a historical context. The experience of World War II, including Nazi racism and the American internment of persons of Japanese ancestry, had sensitized American intellectuals to the harsh treatment that American law accorded to aliens, including Asians. In 1943 the law at last allowed Chinese immigrants to naturalize. ¹⁰² And by now legal scholars were well acquainted with the tenets of the jurisprudence of realism.
45

      Despite the publication of Konvitz's study, and the further softening of restrictions upon immigration, ¹⁰³ during the next two decades historians, legal or otherwise, paid little attention to the history of Chinese Americans. Their disinterest may be related to the emphasis in postwar culture upon consensus in a homogeneous community. ¹⁰⁴
46

      The theme of community consensus is important to an odd book, published by Gunther Barth in 1964, that revisited the history of the Chinese during the first two decades of their immigration, from 1850 to 1870. ¹⁰⁵ One of Barth's central concepts, the Chinese immigrant as a sojourner, had a long lineage in the historiography of Chinese immigrants. But while Konvitz had used this view as the basis for criticizing the American law of alienage, Barth used it to help explain the Chinese historical experience in America. Chinese immigrants had come to America with a vision that had shaped "the relationships between Chinese and Americans for decades." They had hoped to accumulate enough money to allow them to return to China and live in ease. But the reality for most of them was a poverty that had "turned the mass of sojourners into indentured emigrants," making them "docile subjects of bosses and headmen" who clung tenaciously to the "tenets of their culture." Singular among all immigrants to America, according to Barth, the Chinese resisted efforts to assimilate. Their intransigence "raised up specters ... of slave labor, political despotism, filth, and immorality.... These images impressed themselves firmly on Americans and determined their reaction toward the Chinese." ¹⁰⁶ Americans reacted by passing discriminatory laws intended either to expel these immigrants, or at least to submerge their unfamiliar ways, and absorb the Chinese into American culture. Motivated by "concepts of America's destiny and Christian charity," Barth pictured Americans philanthropically reaching out to the Chinese in ways that eventually would lead to their acculturation. ¹⁰⁷
47

      Later historians have rejected central themes of Barth's history. He had adopted an old paradigm for the collision of different cultures in the West. As described by Patricia Nelson Limerick, it cast Americans as the injured innocent even when they were the aggressors. ¹⁰⁸ Succeeding histories would establish that the older view of Chinese immigrants as mere sojourners was overdrawn. ¹⁰⁹ Most also reject Barth's portrayal of white Americans as treating the Chinese benignly. ¹¹⁰ The flaws in his work may in part be attributed to its timing. It was published just one year before Congress passed a landmark statute that transformed the American law of immigration ¹¹¹ and just on the cusp of the civil rights movement of the 1960s.
48

      In spite of its anachronistic character, Barth's theme of community consensus resonated with his contemporaries. ¹¹² During the 1960s this theme combined with historians' growing interest in the role of ideology in American history, ¹¹³ and the emerging civil rights movement that stimulated scholarly interest in the history of race, ¹¹⁴ to provide the bases for a reinterpretation of the forces shaping the history of Chinese immigrants in America. Historians now began to assert that racism distilled in stereotypes, rather than economic competition, had been a mainspring of the persecutions, including discriminatory laws, suffered by Chinese immigrants.
49

      Most representative of this important change was Stuart Creighton Miller's 1969 study of American images of the Chinese. ¹¹⁵ In contrast to Sandmeyer's study of the preceding generation, Miller argued that a racism that had deep historical roots, predating the arrival of Chinese immigrants in America, was critical to understanding their history. He traced the lineage of western anti-Chinese sentiment by outlining three phases in the development of European images of China. While earlier views had been positive, ¹¹⁶ by the last half of the eighteenth century there emerged, especially in England, a negative image of the Chinese as a barbarous, swarming people. This was fortified by three groups of Americans—merchants, diplomats, and missionaries—who were frustrated in their contacts with Chinese culture. ¹¹⁷ Once Chinese immigrants began to arrive in America, nativists, drawing support from contemporary "science," claimed that the Chinese were biologically inferior. Miller also cited criticisms of the Chinese by leaders influential in the formation of public opinion. They included Ralph Waldo Emerson's broad dislike of Chinese culture; Horace Greeley's fear that "the rivulet of Chinese sojourners would become a Niagara"; and John Quincy Adams's defense of the British position in the Opium Wars. ¹¹⁸
50

       Alexander Saxton's study of labor and the anti-Chinese movement in California, published just three years after Miller's, provided further evidence of the importance of racism to anti-Chinese activity. It argued that Americans thought Chinese laborers violated major tenets of Jacksonian ideology, which were based upon the racist premise of white superiority. Doctrines of free soil and Manifest Destiny were gaining strength just as the first Chinese immigrants began to arrive in California in the late 1840s. ¹¹⁹
51

      The view that racism was the critical factor in understanding the Chinese experience has had a profound influence upon histories of these immigrants during the past generation. (This does not mean, however, that historians have abandoned labor strife as another important element.) It has required several revisions of the earlier historiography. There could not have been, as Coolidge had claimed, any real "period of favor" enjoyed by Chinese immigrants in America. ¹²⁰ Further, restrictive federal immigration legislation was not merely the result, as Sandmeyer had argued, of an intensive regional and class advocacy. Instead, Miller concluded that a composite of negative American images of the Chinese was a "most crucial factor in the success of the anti-Chinese movement on the national level." The existence of these negative images made Congress an easy mark for labor advocates from the West. ¹²¹ Finally, sensitivity to the power of racism in shaping the history of Chinese immigrants led the past generation of historians, in accord with Barth, to recognize that the clash of Chinese immigrants and Americans was more than a struggle over finite resources. At stake was the nature of American community and culture. ¹²²
52

      Recognition of the importance of racism to the history of Chinese immigrants by the late 1960s did not, however, undermine the continuing vitality of the image of Chinese passivity, "a one-sided image of victimization unrelieved by any analytical accounts of the organization of activity or associational creativity of the Asian victims." ¹²³ True, a few scholars, namely Carl B. Swisher and Konvitz, had pointed out Chinese legal victories. ¹²⁴ But as late as 1966 Roger Daniels could still observe: "Other immigrant groups were celebrated for what they had accomplished. Orientals were important for what was done to them." ¹²⁵ Three generations of writers seemed almost uniformly to suggest that Chinese immigrants, like a sudden sandstorm that blows silently through the desert at night, had come and gone without leaving a trace upon the landscape of American law.
53

III. Recovering Contributions of Chinese Immigrants to American Law

The civil rights movement not only contributed to Chinese-American historiography by suggesting racism as a critical feature of the experience of Chinese immigrants. It also provided the tumultuous background against which legal historians finally broke through the powerful view of Chinese immigrants as passive and nonassimilating victims.
54

      Like many breakthroughs, the circumstances leading to this one were serendipitous. Hudson Janisch was a J.S.D. student at the University of Chicago Law School in the mid-1960s. Chicago was seething with community activity, emanating from civil rights activism and the War on Poverty. Janisch's background also suggests why he was unusually well suited to take a fresh look at the legal history of Chinese immigrants. As a South African émigré opposed to apartheid, Janisch could be expected to approach racial and cultural stereotypes with skepticism. Moreover, as a sojourner himself (he left the United States for a distinguished academic career in Canada in the early 1970s), he was free of any perspectives and prejudices that might infect scholars who spend their entire lives in the United States.
55

      Janisch's background, his exposure to civil rights activism, and his own alertness converged in a critical incident that occurred in a constitutional law class taught by Philip Kurland. ¹²⁶ The class was studying Yick Wo v. Hopkins. Janisch raised his hand and asked why a Chinese laundry owner had begun one of the major cases of the late nineteenth century to interpret the Fourteenth Amendment. It was his pursuit of an answer to this question, and Kurland's support of his scholarly efforts for five years, that would at last open up for scholars one of the significant fields of contemporary study in American legal history.
56

      Yick Wo provided Janisch with a striking example, not only of discriminatory lawmaking, but also of the successful efforts of Chinese legal advocacy to thwart it. When Yick Wo, who had owned a laundry for twenty-two years, was arrested for operating it without the required permit, his lawyers challenged the applicable ordinances as violating the equal protection clause of the Fourteenth Amendment. Though seeming to represent a valid exercise of the police power to protect public safety, the ordinances set out no standards for the granting or denial of permits. Yick Wo's lawyers argued that the ordinances had created this unbridled administrative discretion "for the purpose of discriminating against him and his countrymen, and ... [was] enforced so as to accomplish that result." ¹²⁷ They entered evidence showing that city officials almost invariably granted permits to Caucasian launderers, while denying them to those who were Chinese. ¹²⁸ In upholding Yick Wo's claim, the Court held that the "administration" of the statute was "so unequal and oppressive, as to amount to a practical denial by the State" of equal protection of the laws secured to the petitioner, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment. ¹²⁹
57

      Janisch elaborated upon themes suggested by Yick Wo in a study of over a thousand pages that in its scope is both broad and deep. It remains the only legal history encompassing both state and local laws, as well as federal immigration laws, applicable to Chinese immigrants. It is based upon a wide reading of statutes, cases, and administrative law records, as well as newspapers, compiled statistics, and secondary literature about Chinese immigrants and their culture. Janisch's dissertation is filled with intriguing detail. ¹³⁰ This monumental work provided later scholars with a foundation of information about the encounter of Chinese immigrants with laws made by all branches of government and at all of the levels of government in the American system of federalism. It also provided readers with historical context demonstrating the implications of harsh lawmaking upon the lives of Chinese immigrants. For example, Janisch did not stop with describing the background of People v. Hall. He demonstrated that the real life consequence of Chinese being ineligible to testify against whites was to make them vulnerable to victimization at the will of whites who learned that the Chinese had no legal recourse for crimes committed against them. ¹³¹
58

      Janisch also explained that virtually every aspect of the traditional view of the Chinese was, at least, less than the whole truth. The Chinese were not politically apathetic; he pointed out that many were eager to engage in political activity, when they were permitted to do so. Instead of being simply servile laborers and launderers, in the early years of Chinese immigration, they enjoyed a "relatively high diversification of employment," and many were active trade unionists. ¹³²
59

      Of preeminent importance in his debunking of old stereotypes was Janisch's detailed reconstruction of Chinese legal advocacy. For example, rather than being enslaved by tongs, Janisch insisted that the evidence showed that family and district groups were indeed mutual aid associations. Although the ineligibility of Chinese to become naturalized citizens effectively deprived the Chinese community of its own lawyers, the "Chinese themselves" took "determined steps ... to find protection in the courts." ¹³³ They did so by enlisting leading lawyers such as Joseph Choate, former California governor Henry Haight, and former assistant attorney general Joseph Hubley Ashton to protect themselves from hostile laws. The humbly named Chinese Washerman's Guild took no fewer than four cases to the United States Supreme Court between 1883 and 1886. ¹³⁴
60

      Janisch also recognized the struggle between, and the contrasting styles of lawmaking in, the administrative and judicial treatment of Chinese. While "federal judges favored restriction in theory, they were required to deal with individual cases which brought out the harshness and rank stupidity of trying to exclude but one racial group from the United States." Perhaps no finer example of sustained judicial independence and courage can be found in American history. Administrative officials, by contrast, were sometimes reluctant "to follow the decisions of the courts." Instead they were inclined to a "rigid and politically popular" approach to lawmaking—excluding on any pretext Chinese or even United States citizens of Chinese ancestry. By sharply narrowing the range of claims subject to judicial review of administrative lawmaking, immigration officials exercised a broad discretion to exclude Chinese immigration. ¹³⁵
61

      But even when they failed to overturn or mitigate harsh laws, Chinese legal advocacy contributed to the development of American legal culture. Though "the overriding impression is one of failure.... Yet for a time they (the Chinese) were successful, particularly in their struggle against state exclusion and local discrimination." According to Janisch, "Chinese immigrants were important contributors to legal history and constitutional development":
62

They brought about one of the leading cases on the Fourteenth Amendment and equal protection; required the courts to resolve the clash between treaty and federal legislation; placed beyond doubt the primacy of treaty protection over state legislation; and in their long struggle against the arbitrariness of immigration officials, brought new judicially enforced standards to this area of wide executive discretion. ¹³⁶

      Janisch's accounts of Chinese legal advocacy, and his recognition of the contributions of Chinese immigrants to American legal culture, represented a monumental breakthrough. Yet it did not immediately ignite interest in the study of the legal history of Chinese immigrants. Though Janisch's study has provided the framework for choices of research topics and themes for later studies, it is cited much less frequently than one would expect for so ground-breaking a work. A number of factors have combined to limit its influence. Some are personal; in every respect Janisch is an outsider to the profession of American legal historians. ¹³⁷ Further, his study has never been published, and it is so long that it discourages all but the hardiest from wading through it. Most important, perhaps, is that when Janisch's study was written, it was a work bereft of a paradigm. But the emergence of the new paradigm—of Chinese and other minorities as actors helping to shape American legal history—owes a huge debt to Janisch's pioneering study.
63

      At last, during the 1980s, scholars began to study the legal history of Chinese immigrants. Since then, articles and books exploring various aspects of this topic have appeared with increasing frequency. John Wunder's numerous and poignant studies recount the treatment that Chinese immigrants encountered throughout the American West. ¹³⁸ Another group of works considers the caseloads of particular courts, or individual judges, in the West. This includes one of James Mooney's series of definitive studies of the jurisprudence of Matthew Deady in Oregon. ¹³⁹ Studies by Linda Przybyszewski ¹⁴⁰ and Christian Fritz ¹⁴¹ bring to light the Chinese cases of Lorenzo Sawyer and Ogden Hoffman in California. There also have appeared studies of particular cases involving Chinese litigants ¹⁴² and of statutes regulating them and their administration. ¹⁴³ McClain and Salyer wrote articles along the way as they worked on their books that were published in the mid-1990s. ¹⁴⁴
64

      In addition to the serendipity surrounding Janisch's decision to focus his considerable intellectual talents upon the study of the legal history of Chinese immigrants, several structural factors help to account for the emergence of scholarly interest in this history. One has roots in American immigration law and sociology. In 1965 Congress eliminated the last statutes that reflected a special concern about the dangers of Asian immigration. Since then, large numbers of Chinese, Filipinos, and other Asians have immigrated to America. From less than one percent of the American population in 1965, Asian Americans now represent over three percent, and their numbers continue to grow rapidly. ¹⁴⁵ Moreover, although Asian Americans were in effect largely excluded from the actual practice of law until recently, ¹⁴⁶ today the geometric increase in the number of Asian-American lawyers has created an expanded pool of professionals interested in the place of Chinese Americans and other Asian Americans in America's legal system. ¹⁴⁷ As a result, the 1990s have witnessed an explosion of legal scholarship by and about Asian Americans. ¹⁴⁸
65

      Dramatic changes in the structure of the profession of legal historians, and in their methods, have also contributed to the rising interest of scholars in the history of Chinese immigrants. The number of legal historians today, and the volume of their scholarly output, far exceeds that of any prior generation. ¹⁴⁹ More important than the changing demography of the profession is that some of its members during the past generation have engaged in a new form of research. Rather than reading only appellate court opinions, these scholars have sifted through thousands of archival legal records. These include many documents left behind by Chinese immigrants and their opponents. ¹⁵⁰
66

      Why did legal historians at last transcend the narrow range of sources of the common law tradition and begin to engage in archival research during the 1970s? This is not entirely clear, but we suggest two related factors that encouraged some legal historians to venture beyond appellate court opinions. One, which inspired Janisch's study, was the interest of scholars by the 1960s in the plight of downtrodden groups. The other, emerging by the latter part of the decade, was the rise of interest in social history. It should not be overlooked, however, that by the 1980s historians had abandoned social history for the study of intellectual history, albeit with a new emphasis on its social moorings. ¹⁵¹
67

      By the 1970s a revival of interest in the legal history of the American West, where most Chinese immigrants settled, also increased scholarly attention to their experience. Unlike Janisch, most of those who have written legal histories of Chinese immigrants since 1980 either teach at law schools in the West or at least have engaged in graduate studies there. ¹⁵² By the 1960s a generation of attacks upon Frederick Jackson Turner's frontier thesis had reduced scholarly interest in western history. But during the past several decades western history, and legal history, has experienced a major revival. ¹⁵³ It is related to the emergence of a new paradigm for the history of the West. Popularized by the 1987 publication of Patricia Nelson Limerick's landmark synthesis of western history, ¹⁵⁴ it replaced the model of American innocence with one of conquest. When cultures collided, as they often did in the remarkably diverse West, conflicts ensued. Their almost invariable result was that American culture prevailed. Another theme of Limerick's study, however, is that the West's diverse minorities persisted, that they have had their own histories, and that they have made contributions to the development of American culture. ¹⁵⁵
68

      Legal histories since the 1980s have elaborated upon themes of Janisch's study in at least three directions. They have probed deeper into the nature and extent of Chinese legal advocacy, into the lawmaking of the federal judges who decided many of the Chinese cases (and the ideology that helped to shape it), and into the nature and administration of immigration law.
69

      Recent scholarship provides further insights into the advocacy of Chinese immigrants by uncovering examples of their civil disobedience. For example, Salyer's book, as well as an excellent article by Ellen Katz, ¹⁵⁶ details the organized refusal by Chinese immigrants to comply with the registration requirements of the Geary Act of 1892. Salyer also recounts the Chinese boycott of American goods in 1905 in response to United States v. Ju Toy, an unfavorable decision of the Supreme Court. ¹⁵⁷
70

      McClain's scholarship has illuminated the inner dynamics of Chinese legal advocacy. Despite the loss of irreplaceable records during fires and earthquakes, as well as from more routine causes, McClain uncovered new source materials for the study of Chinese legal advocacy. Organized by hui kuan, especially in San Francisco, it responded to "the hostility of natives" and "harsh dealing and oppression by the authorities." ¹⁵⁸ McClain's study also shows how this legal advocacy led to an expansion of the individual rights of Chinese and other aliens.
71

      In addition recent scholarship has reinterpreted the lawmaking of federal judges in the extensive Chinese litigation that they entertained. The judges receiving the greatest attention from legal historians are Lorenzo Sawyer, Ogden Hoffman, Matthew Deady, and above all, Stephen J. Field. He was influential not only in articulating the law related to the claims of Chinese immigrants but also in shaping late nineteenth-century constitutional jurisprudence. A recent trans-boundary study by John McLaren finds major parallels between the lawmaking of these judges and the lawmaking of judges in British Columbia when deciding cases involving Chinese immigrants. ¹⁵⁹
72

      Evidence suggests that personal motivations, both racial and economic, influenced the lawmaking of federal judges in Chinese cases. Justice Field provides an example of xenophobic sentiment. He expressed the view that Chinese immigrants were "strangers in America who had failed to assimilate to its civilization" and the wish that some way could be found to exclude them. ¹⁶⁰ Further, some of the judges had close personal ties to leading entrepreneurs of the period, and in the case of Field, presidential aspirations.
73

      Nevertheless, recent studies have emphasized the shaping influence of a constellation of ideas and values upon the decisions of federal judges in cases involving Chinese immigrants. These studies reflect the importance of the study of ideas in contemporary legal history. ¹⁶¹ Some scholars have concluded that the federal judges, in accordance with the conception of a restrained judicial role in common law and constitutional lawmaking, decided Chinese cases in accordance with the rule of law. ¹⁶²
74

      What was the nature of the jurisprudence of the Chinese cases in federal courts during the late nineteenth and early twentieth centuries? The opinions of Justice Field begin with an economic liberalism that was the stuff of laissez-faire. In his dissent in the Slaughterhouse Cases Field expressed the view that the Fourteenth Amendment embodied the principle that each person had a natural right "to pursue the ordinary avocations of life without other restraints than such as effects all others, and to enjoy them with the fruits of labor." Field's vote with the Court in the Yick Wo case is an important example of his protection of individual property rights. He insisted upon the right of everyone "to own property, to make, and enforce, contracts." Charles McCurdy demonstrated, however, that Field's jurisprudence allowed more room for government regulation pursuant to the police power than earlier studies had acknowledged. Field recognized only a limited band of individual civil rights that were exempt from legal regulation and a much wider band of political and social rights that had traditionally been vulnerable to legal restrictions based upon a number of factors, including one's race or status as an alien or citizen. Many of the cases that upheld laws restrictive of the rights of Chinese immigrants fell within the parameters of Field's domain of permissible government regulation. ¹⁶³
75

      Recent literature concerning the jurisprudence of federal judges in cases involving Chinese litigants marks another major advance in our understanding of the legal history of Chinese immigrants. But important questions remain. One relates to the federal judges' conception of their role and the nature of the jurisprudence of the Chinese cases. In some respects it seems remarkably forward looking. Though the principle that no one should be disadvantaged, or privileged, in their participation in the free market by the intervention of government had roots in Jacksonian America, ¹⁶⁴ the influence of economic liberalism was rising during the late nineteenth century. Some of the major decisions favorable to Chinese litigants, like Yick Wo and Ho Ah Kow v. Nunan, also seem to foreshadow the realistic jurisprudence of the twentieth century. In these cases, the judges were unwilling to uphold laws that were discriminatory in practice merely because they were facially neutral. ¹⁶⁵ Further, when the judges struck down laws that they believed violated the equal protection rights of Chinese aliens, McClain argues that their lawmaking was similar to that of the famous Carolene Products case. In it the twentieth-century Supreme Court suggested that constitutional judicial review would afford special protection to disadvantaged minorities. ¹⁶⁶ But other scholars have concluded that the federal judges, in resisting the tide of popular sentiment in the Chinese cases, were backward looking. Their lawmaking exhibited a strong strain of elitist paternalism, almost aristocratic in character, that was politically and socially conservative. ¹⁶⁷
76

      Further, the conclusion that the Chinese cases represent an example of the rule of law is debatable. Did the federal judges always succeed in transcending personal friendships and anti-Chinese xenophobia, even in decisions harmful to the interest of Chinese litigants? Recall Reverend Speer's observation that the Chinese did not think so. How do the cases involving constitutional challenges to local or state laws in federal courts fit in with the lax federal court review of the discriminatory and discretionary immigration law that was developing during the same period? ¹⁶⁸
77

      Finally, Salyer's study has expanded our knowledge of the Chinese experience with immigration law and its administration. Several important themes run through her work. First, not only was immigration law discriminatory, but its administration was usually harsh in both its process and results. Second, the lawmaking involved in the administration of immigration law was critical to the downward cycle experienced by the Chinese community in America.
78

      Borrowing a term from Roscoe Pound, Salyer describes in rich detail the "executive justice" of immigrations officials. She juxtaposes it to the lawmaking of the judiciary. While the former were "captives of law," the latter were "captives of politics." ¹⁶⁹ Though Congress periodically revised the administrative structure for immigration matters, ¹⁷⁰ the lawmaking of immigration officials remained highly discretionary. To uncover fraud on the part of immigrants, and sometimes to secure a case against them prior to an immigration hearing, individual inspectors often engaged in minutely detailed investigations. As for the process of immigration hearings, Edgar Lee Masters and Clarence Darrow, who represented the English anarchist John Turner in one such proceeding, observed that no process was "more repugnant to the right of due process of law." ¹⁷¹
79

      Despite repeated challenges, judicial review of the lawmaking of immigration officials was restricted and for the most part ineffectual. The standard of review remained limited to decisions that were "manifestly unfair" or reflected a "manifest abuse of discretion." ¹⁷² It was difficult to obtain judicial review of immigration, and even deportation, decisions in federal courts. Further, these courts did not closely review the process of administrative hearings. They did not require that administrative hearings adhere to most of the procedural provisions of the Bill of Rights. ¹⁷³ Nor did they even consistently enforce the standard articulated by Justice Harlan in the Japanese Immigrant Case, that immigration proceedings could not violate fundamental principles of due process.
80

      At a number of points Salyer demonstrates the devastating impact that immigration lawmaking had upon the lives of individual Chinese. Though immigration officials acquired a reputation for incompetence early on, they generally implemented immigration laws with a harsh rigor. ¹⁷⁴ Salyer points out the special burden Chinese women bore under the laws. The law was particularly inhospitable to them: "[o]nly the wives and daughters of Chinese merchants or women born in the United States were allowed to land." Single women of any nationality "became automatic suspects" of being prostitutes, or were deemed "likely to become a public charge," and could be excluded from the country. Laws stripping American women of their citizenship upon their marriage to alien men also placed severe limits on the freedom of Asian-American women and men to marry and have families. ¹⁷⁵
81

      Salyer's study of immigration law and McClain's studies of California law have revealed an important irony. It was already suggested in earlier studies of Chinese immigrants by Janisch, Konvitz, Eaves, Coolidge, and even in some of the partisan literature. To exclude the Mongolian hordes, as they were sometimes called, American lawmakers themselves undermined the very principles that they accused the Chinese of subverting. Chief among them was the rule of law. ¹⁷⁶ In contrast to the view that the Chinese community was authoritarian, Chinese legal advocacy helped to define "limits on governmental authority and the rights of citizens and noncitizens." Chinese immigrants, then, "contributed far more to the ideals of democracy and republicanism upon which their adopted country was based than did their nativist antagonists." ¹⁷⁷ During the twentieth century this critique would finally help to shape legislative, judicial, and administrative lawmaking affecting the Chinese, and immigrants more generally. This was undoubtedly the greatest contribution of Chinese immigrants to American legal culture.
82

IV. The Promise of the Legal History of Chinese Immigrants

The achievements of the present generation of legal histories of Chinese immigrants provide the foundation for further studies. Discrete subjects that can benefit from scholarly attention include investigations of the internal law of Chinese communities; of state and local law outside of California, and especially the intensively mined history of Chinese in San Francisco; and of immigration law and its administration. Despite the decline of Chinese communities by the late nineteenth century, more studies of the historical experience of Chinese immigrants throughout the twentieth century seem warranted. ¹⁷⁸ The time is now also ripe for more encompassing studies that bring together elements of the legal history of Chinese immigrants and compare them to larger themes of American legal history. Scholars should continue to explore the contributions of Chinese immigrants to the revolutions in federal-state relations, and in administrative lawmaking, as well as to the interrelationship of these two important fields of lawmaking. The history of Chinese women in America seems promising for more comparative studies. ¹⁷⁹ Comparing the experience of Chinese immigrants to that of other immigrant groups and racial minorities deserves further attention. ¹⁸⁰
83

      The past generation of legal histories of the Chinese in America also has implications for studies beyond the confines of these immigrants. These histories demonstrate again that American law is not solely the product of Euro-American culture. They encourage scholars to investigate the contributions of other peoples to the development of American law. More broadly, beginning with Janisch's exhaustive study, recent investigations of Chinese immigrants demonstrate the gains that can be made by those who venture outside the confines of the narrow range of sources and formalistic methodology of the common law tradition. Much of the best recent legal history of Chinese immigrants places law and legal thought into their human and social contexts.
84

      While existing scholarship has laid the foundation for a bright future, we cannot take for granted a continuing commitment to multiculturalism or to richly contextualized studies of law. Though the ethnocentrism of the common law tradition is no longer in vogue, contemporary legal scholarship includes alarming expressions of impatience with diversity. ¹⁸¹ Further, the historiography of Chinese immigrants illustrates the remarkable vitality of the common law tradition. A variety of professional and institutional pressures and rewards reinforces the practice of a disengaged intellectualism. But legal historians inclined to gather from familiar vines should recall a preeminent lesson of the legal history of Chinese immigrants. Those who go forth and labor in new vineyards sometime return with a harvest that is exceedingly abundant.
85

Richard P. Cole is a professor of law at Western New England College School of Law. Gabriel J. Chin is an associate professor of law at the University of Cincinnati College of Law. They express their sincerest gratitude to their colleagues, Patricia Newcombe and Mary O'Brien, who helped them find and obtain materials for the article, and to all those who so insightfully commented upon drafts of it. These include: Dean Richard L. Aynes, David Bernstein, Elizabeth Chin, Paul Finkelman, James Gardner, James Gordon, Chris Iijima, Hudson Janisch, James Mooney, who commented upon several drafts of the article, Victor Romero, Scott Wong, and John Wunder. The guidance of Dr. Christopher Tomlins, editor of the Law and History Review, as well as the comments of the readers of this article, were most helpful. They also thank Milton Konvitz, now an emeritus professor, for the information he provided for this article.

Notes

      1. Charles McClain, In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth-Century America (Berkeley and Los Angeles: University of California Press, 1994),

      2. In 1870 Chinese immigrants constituted one-fourth of San Francisco's population and thirty percent of California's labor force. They constituted about one-tenth of the population of California and Montana. Ronald Takaki, Strangers From a Different Shore: A History of Asian Americans (Boston: Little, Brown, 1989), 79.

      3. Sucheng Chan, This Bittersweet Soil: The Chinese in California Agriculture, 1860-1910 (Berkeley and Los Angeles: University of California Press, 1986), 7-31.

      4. McClain, In Search of Equality, 12-13; John Wunder, "Anti-Chinese Violence in the American West, 1850-1910," in Law For the Elephant, Law For the Beaver: Essays in the Legal History of the North American West, ed. John McLaren, Hamar Foster, and Chet Orloff (Pasadena: Ninth Judicial Circuit Historical Society, 1992), 212-36; John Wunder and Clare V. McKanna, Jr., "The Chinese in California: A Torturous Legal Relationship," 1995 Yearbook of the California Supreme Court Historical Society, 195-21

      5. 4 Cal. 399 (1854).

      6. On People v. Hall, see Wunder and McKanna, "The Chinese in California." A year after Murray wrote the court's opinion in People v. Hall he maintained his seat on the California Supreme Court bench by running as a candidate of the Know Nothing party. Gerald Uelmen, "The Know Nothing Justices of the California Supreme Court," Western Legal History 2 (1989): 89-10

      7. Victor G. Nee and Brett de Bary Nee, Longtime Californ': A Documentary Study of an American Chinatown (New York: Pantheon Books, 1973), 52-56.

      8. Sucheng Chan, "European and Asian Immigration into the United States in Comparative Perspective, 1820s to 1920s," in Immigration Reconsidered: History, Sociology, and Politics, ed. Virginia Yans-McLaughlin (New York: Oxford University Press, 1990), 37-75. Chan discovered that 1876-1879, 1886, and 1893-1894 were years of particular violence against the Chinese in rural California. See Chan, Asian Americans: An Interpretive History (Boston: Twayne Publishers, 1991), 48-52; and Wunder, "Anti-Chinese Violence." See also Chan, This Bittersweet Soil, 39-40, 57, 88, 283, 370-81; and Nee and Nee, Longtime Californ', 33-38, 54-56.

      9. Notable examples included prohibitions upon interracial marriages; upon the disinterring of the remains of persons for burial in their home villages in China; upon male Chinese prisoners wearing a "queue," or long, braided hair; fees and taxes upon various forms of Chinese enterprises; restrictions upon landowning; and a variety of regulations that mandated school and residential segregation. McClain, In Search of Equality, 9-43.

      10. Though its final version deleted some of the most radical proposals proffered by delegates, it still contained a litany of prohibitions upon the Chinese and those who would employ them. A notorious provision stated that "No native of China, no idiot, insane person, or person convicted of an infamous crime" could serve as an "elector of the State." See McClain, In Search of Equality, 79-97; Sarah Sharp, "Social Criticism in California During the Gilded Age" (Ph.D. dissertation, University of California, San Diego, 1979); Gordon Bakken, "California's Constitutional Conventions Create our Courts," 1994 Yearbook of the California Supreme Court Historical Society, 33-54; and Harry Scheiber, "Race, Radicalism and Reform: Historical Perspective on the 1879 California Convention," Hastings Constitutional Law Quarterly 17 (1989-1990): 35-80.

      11. Gerald Neuman, "The Lost Century of Immigration Law (1776-1875)," Columbia Law Review 93 (1993): 1833-1901.

      12. In re Ah Fong, 1 F. Cas. 213, 217 (C.C.D. Cal. 1874) (no. 102).

      13. Act of March 3, 1875, ch. 141, 18 Stat. 477. Though the Act seems not to have slowed the immigration of male Chinese laborers, few Chinese women emigrated to America. See George Peffer, "Forbidden Families: Emigration Experiences and Chinese Women Under the Page Law, 1875-1882," Journal of American Ethnic History 6 (1986): 28-46; and Sucheng Chan, "The Exclusion of Chinese Women, 1870-1943," in Entry Denied: Exclusion and the Chinese Community in America, 1882-1943, ed. Sucheng Chan (Philadelphia: Temple University Press, 1991), 94-146. For a review of early immigration laws, see Shih-Shan Henry Tsai, The Chinese Experience in America (Bloomington: Indiana University Press, 1986), 56-81.

      14. The modification of the treaty allowed Congress, if it deemed Chinese immigration to threaten the national interest, to "regulate, limit, or suspend" but not "absolutely prohibit" the immigration of Chinese laborers. Treaty of November 17, 1880, 22 Stat. 868, T. S. no. 49.

      15. Act of May 6, 1882, ch. 126, 22 Stat. 58.

      16. A statute published in 1884 made it harder for laborers to establish a claim to return to the United States. In 1888 Congress passed what became known as the Scott Act, invalidating all return certificates issued to Chinese laborers under the 1882 and 1884 statutes.

      17. Act of May 5, 1892, ch. 60, 27 Stat. 25.

      18. It was amended and extended without limitation again in 1904. Ch. 1630, 33 Stat. 428 (1904).

      19. Act of Feb. 5, 1917, ch. 29 § 3, 39 Stat. 874, 876.

      20. Act of March 26, 1790, ch. 3, 1 Stat. 103.

      21. 43 Stat. 153, 168 (1924).

      22. Takaki, Strangers From a Different Shore, 79-80.

      23. "Introduction," Entry Denied, ed. Chan.

      24. The Shed was "a cheap, two-story wooden building ... where the odors of sewage and bilge are most offensive; unclean, at times overrun with vermin, and often inadequate to the numbers to be detained." Food provided to inmates was "poor" and their "conditions even more unsanitary than the police cells of the city." There was no attempt to segregate immigrants except by sex, and sometimes wives of merchants and their children were "imprisoned with women held as professional prostitutes." Mary Roberts Coolidge, Chinese Immigration (New York: Henry Holt, 1909), 299-300.

      25. Ira Condit, The Chinaman as We See Him (Chicago: Fleming H. Revell, 1900), 24.

      26. One such case involved the infant Lew Lin Gin, who was "ordered deported and who has been lost ever since." Coolidge, Chinese Immigration, 321-22.

      27. Arthur McEvoy, The Fisherman's Problem: Ecology and Law in California Fisheries (Cambridge: Cambridge University Press, 1986), 88-90.

      28. Nee and Nee, Longtime Californ', 60-122.

      29. Marlon K. Hom, Songs of Gold Mountain: Cantonese Rhymes from San Francisco Chinatown (Berkeley and Los Angeles: University of California Press, 1987), 48.

      30. McClain, In Search of Equality, 13-16.

      31. Civil Rights Act of 1870, ch. 114 § 16, 16 Stat. 140, 144 (1869-1870). The case for the applicability of section 16 to the Chinese was so strong that it may explain why, in 1872, California lawmakers revoked the law prohibiting Chinese from testifying in cases involving white persons. McClain, In Search of Equality, 38-40.

      32. 118 U.S. 356 (1886). McClain provides an excellent rendition of the entire history of the case. In Search of Equality, 115-25.

      33. For example, in two cases that preceded Yick Wo, the United States Supreme Court upheld a statute that prohibited the washing and ironing of clothes in a public laundry between the hours of 10 p.m. and 6 a.m. Barbier v. Connolly, 113 U.S. 27 (1885); and Soon Hing v. Crowley, 113 U.S. 703 (1885). William E. Nelson concluded from these three cases that the Court granted "legislatures broad discretion in regulating private rights" and that it would only strike down "egregiously unequal and arbitrary state action." Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge: Harvard University Press, 1988), 187-90.

      34. In re Look Tin Sing, 21 F. 905 (C.C.D. Cal. 1884). In 1870 Senator Charles Sumner tried, but failed, to make citizenship by naturalization available to Chinese immigrants. Declaring that "All men are created equal and ... have a right to equal political power in the country," he proposed to strike the word "white" from the naturalization law of 1790. In light of his reliance upon principles of the Declaration of Independence it seemed only fitting to Sumner that Congress debated his amendment on the fourth of July. Congress, however, extended the right to naturalize only to "aliens of African descent or nativity." Act of July 12, 1870, ch. 251, 16 Stat. 230, 250. Act of July 14, 1870, ch. 254, 16 Stat. 254 (1870).
            This law did not expressly disable Chinese immigrants from naturalizing. In 1875, when federal statutes were codified for the first time, the codifiers, probably by inadvertence, left out the phrase "being a free white person" from the naturalization law. This encouraged several Chinese immigrants to petition for naturalization. But Judge Lorenzo Sawyer denied the petitions, and in 1876 Congress reinserted the limiting phrase deleted by the codifiers a year earlier. McClain, In Search of Equality, 70-73.

      35. Scholars have commented extensively upon the late nineteenth-century classification of civil, political, and social rights. See, for instance, Reva Siegel, "Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action," Stanford Law Review 49 (1997): 1111-48.

      36. Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889); Fong Yue Ting v. United States, 149 U.S. 698 (1893).

      37. It grounded the hegemony of the federal government over matters related to immigration primarily upon a doctrine of inherent sovereignty. Nishimura Ekiu v. United States, 142 U.S. 651 (1892); Gabriel J. Chin, "Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration," UCLA Law Review 46 (1998): 1-74.

      38. Roscoe Pound, "Justice According to Law," Columbia Law Review 13 (1913): 696-713.

      39. Gary Lawson, "The Rise and Rise of the Administrative State," Harvard Law Review 107 (1994): 1231-54.

      40. Peter Schuck, "The Transformation of Immigration Law," Columbia Law Review 84 (1984): 1-90.

      41. Sucheng Chan, "Asian American Historiography," Pacific Historical Review 65 (1996): 363-99.

      42. Milton Konvitz, The Alien and the Asiatic in American Law (Ithaca: Cornell University Press, 1946).

      43. Hudson Janisch, "The Chinese, the Courts, and the Constitution: A Study of the Legal Issues Raised by Chinese Immigrants in the United States, 1850-1902" (J.S.D. dissertation, University of Chicago, 1971).

      44. These articles and chapters are reviewed and cited in Part 3.

      45. Bill Ong Hing, Making and Remaking Asian America through Immigration Policy, 1850-1990 (Stanford: Stanford University Press, 1993); and Hyung-Chan Kim, A Legal History of Asian-Americans, 1790-1990 (Westport, Conn.: Greenwood Press, 1994).

      46. Lucy Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995).

      47. Important examples include: Ellen Katz, "The Six Companies and the Geary Act: A Case Study in Nineteenth-Century Civil Disobedience and Civil Rights Litigation," Western Legal History 8 (1995): 227-71; Constance Backhouse, "The White Women's Labor Laws: Anti-Chinese Racism in Early Twentieth-Century Canada," Law and History Review 14 (1996): 315-68; John Hayakawa Torok, "Reconstruction and Racial Nativism: Chinese Immigrants and the Debates on the Thirteenth, Fourteenth, and Fifteenth Amendments and Civil Rights Laws," Asian Law Journal 3 (1997): 55-85.

      48. The historiography of republicanism is one example. It became popular among historians by the late 1960s and 1970s. But it was not until the 1980s that legal historians began widely to employ republicanism as a framework for studies of American law.

      49. Studies of Chinese immigrants by contemporary historians also portray them as important contributors to American economy and culture. Sucheng Chan's remarkable histories do so with passion and beauty. Chinese immigrants valiantly survived hard circumstances through several generations. In doing so, they left a legacy of "achievements" that she celebrates, dedicating her book "To the memory of Asian immigrants who made California so green." Chan, This Bittersweet Soil, dedication page. Of the Chinese she concludes, "The brevity of their venture, however, in no way reduces the measure of their achievements in the bittersweet soil in California." Ibid., 407.

      50. Christian Fritz counted over 7,000 cases involving Chinese litigants in the United States District Court for the Northern District of California in the decade between 1882 and 1891 alone. Fritz, Federal Justice in California: The Court of Ogden Hoffman, 1851-1891 (Lincoln: University of Nebraska Press, 1991). Fritz and Bakken found "tens of thousands of petitions for writs of habeas corpus" in their study of California legal history. Christian Fritz and Gordon Bakken, "California Legal History: A Bibliographic Essay," Southern California Quarterly 70 (1988): 203-22.

      51. An early example of a study of law relating to Chinese immigrants is E. Frank Dake, "The Chinaman Before the Supreme Court," The Albany Law Journal 67 (1905): 258-67. Scholars of constitutional and immigration law throughout the twentieth century have drawn upon cases involving Chinese immigrants.

      52. McClain, In Search of Equality, 3.

      53. Robert Gordon, "Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography," Law and Society Review 10 (1975-1976): 9-55; Daniel Boorstin, "Tradition and Method in Legal History," Harvard Law Review 54 (1941): 424-36.

      54. They included litigation involving contracts, bankruptcies, and the like. Fritz, Federal Justice in California.

      55. Christian Fritz, "A Nineteenth-Century 'Habeas Corpus Mill': The Chinese Before the Federal Courts in California," American Journal of Legal History 32 (1988): 347-72.

      56. Thomas Grey, "Langdell's Orthodoxy," University of Pittsburgh Law Review 45 (1983): 1-53; James Willard Hurst, The Growth of American Law: The Lawmakers (Boston: Little, Brown, 1950).

      57. Oliver Wendell Holmes, The Common Law (Boston: Little, Brown, 1881).

      58. A number of Gordon's articles address this theme. See also E. Donald Elliott, "The Evolutionary Tradition in Jurisprudence," Columbia Law Review 85 (1985): 38-94.

      59. Holmes, The Common Law, 2. Also illustrative of this view is the assertion of the legal anthropologist Henry Maine that the "chief purpose" of his study of ancient law "is to indicate some of the earliest ideas of mankind, as they are reflected in Ancient Law, and to point out the relation of these ideas to modern thought." Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (New York: Scribner, Armstrong, 1872). Gordon cites Maitland's incisive critique of this approach to the study of legal history: "The lawyer must be orthodox otherwise he is no lawyer; an orthodox history seems to me a contradiction in terms." Gordon, "The Common Law Tradition," 17. Boorstin correctly observed that this approach to legal history was really ahistorical. Boorstin, "Tradition and Method," 428-33.

      60. Quoted in Gordon, "The Common Law Tradition," 19-20.

      61. This focus of legal historians was classically represented by the publication of a collection of essays in the early years of the twentieth century: Select Essays in Anglo-American Legal History, ed. by the Association of American Law Schools (Boston: Little, Brown, 1907-1909).

      62. Gordon, "The Common Law Tradition," 9-12, 51-55. See also Grey, "Langdell's Orthodoxy," 10-11.

      63. See William W. Fisher III, Morton J. Horowitz, and Thomas A. Reed, eds., American Legal Realism (New York: Oxford University Press, 1993), 27-33.

      64. The exceptions include James Willard Hurst's studies of nineteenth-century Wisconsin law, which are reviewed in Gordon, "The Common Law Tradition."

      65. Reverend Otis Gibson, The Chinese in America (Cincinnati: Hitchcock and Walden, 1877); Reverend William Speer, The Oldest and Newest Empire: China and the United States (Chicago: National Publishing Co., 1870); Condit, The Chinaman as We See Him. A nonclerical defense of Chinese immigrants was George F. Seward, Chinese Immigration: Its Social and Economical Aspects (New York: Charles Scribner's Sons, 1881).

      66. Adversarial works included M. B. Starr, The Coming Struggle (San Francisco: Bacon, 1873); and James Whitney, The Chinese and the Chinese Question (New York: Tibbals Book Co., 1888). Apocalyptic works included Pierton W. Dooner, Last Days of the Republic (San Francisco: Alta Publishing House, 1880); and Robert Woltor, A Short and Truthful History of the Taking of Oregon and California by the Chinese in the Year A.D. 1899 (San Francisco: A. A. Bancroft, 1882).

      67. Condit, The Chinaman as We See Him, 11.

      68. "At first a few in number, like struggling ants they come, then more and more, by thousands and tens of thousands." Whitney added: "Silent and persistent as the white ants that destroy the strongest timbers while the householder sleeps, they go further and further; and when they have once settled there they remain." Whitney, The Chinese and the Chinese Question, 108, 137.

      69. Ibid., 198.

      70. For example, Roscoe Pound used Chinese law as a model of discretionary justice. Pound, "Justice According to Law."

      71. Dooner, Last Days of the Republic, 186, 216.

      72. Speer, The Oldest and Newest Empire, 566-67.

      73. Ibid., 572-73, 599.

      74. Dooner, Last Days of the Republic, 107.

      75. For example, the experience of boycotting American goods as a student in China in 1905, and of suffering indignities when he attempted to enter the United States in 1908, led Tien-Lu Li in 1916 to publish an account of Chinese immigrants that attempted to mediate the strife that divided them and their opponents. Tien-Lu Li, Congressional Policy of Chinese Immigration (Nashville: Publishing House of the Methodist Episcopal Church, South, 1916).

      76. Coolidge's study constituted 496 pages of text and had a long period of germination. She began it "during the excitement incident to the passage and enforcement of the Geary law in 1892 and 1893." Coolidge continued to work on it as part of a course on "Race Problems" at Stanford and completed it with the "assistance of the Carnegie Institute." Coolidge, Chinese Immigration, vii.

      77. Elmer Sandmeyer, The Anti-Chinese Movement in California (1939; reprint, Urbana: University of Illinois Press, 1973). Sandmeyer's book grew out of a dissertation that he completed at the University of Illinois in 1932. Ibid., 3.

      78. William G. Smith, The Second Generation Oriental in America (Honolulu: Hawaii BC, 1927); Eliot Mears, Resident Orientals on the American Pacific Coast (Chicago: University of Chicago Press, 1928); Emory Borgardus, Immigration and Race Attitudes (Boston: D.C. Heath, 1928); R. D. McKenzie, Oriental Exclusion: The Effect of American Immigration Laws, Regulations and Judicial Decisions Upon the Chinese and Japanese on the American Pacific Coast (Chicago: University of Chicago Press, 1928); William G. Smith, Americans in Progress: A Study of Our Citizens of Oriental Ancestry (Ann Arbor: University of Michigan Press, 1937).

      79. Salyer, Laws Harsh as Tigers, 167-68.

      80. Coolidge, Chinese Immigration, part 3, "Competition and Assimilation."

      81. Already it was "wreaking itself upon California.... Lawlessness, class hatred, incapacity for cooperation—these have been ... the fruits of race discrimination." Ibid., 486, 495-96.

      82. Ibid., 98, 226. As we describe below, Coolidge's attitude was similar to that of a number of members of the federal judiciary who defended the Chinese during the same period.

      83. Lucille Eaves, A History of California Labor Legislation (Berkeley: The University Press, 1910), xi, 151.

      84. For example, in describing a fictional battle between Chinese and Americans, Robert Woltor wrote: "Just then a fiendish yell ... as if from a hundred savage tongues, stunned and made our men stagger." Woltor, A Short and Truthful History, 65.

      85. Reverend Condit believed that "the feeling" of white Americans was "more bitter and intolerant" of Chinese than of African Americans and that many "hardly look on a Chinaman as human." Condit, The Chinaman as We See Him, 21.

      86. Dooner, Last Days of the Republic, 31-32.

      87. Whitney, The Chinese and the Chinese Question.

      88. For example, one tract published by the "friends of the laboring classes" proclaimed that "a powerful combination of capital is systematically" bringing into "the most civilized portions of the world vast hordes of the debased, ignorant, and corrupt heathen races, to fill all positions of industry with servile laborers, to the practical exclusion of working citizens." Starr, The Coming Struggle, 7.

      89. Coolidge, for example, identified a fear of a tidal wave of immigrants that would overwhelm Americans. Coolidge, Chinese Immigration, 55-68, 129. In one passage she stated that, "Race antipathy ... accounts for the greater part of the bitter feelings of workingmen toward all Orientals." Ibid., 378. Coolidge also attributed race antipathy as a source of laws discriminating against Chinese immigrants, notably the prohibition against their naturalization. Ibid., 69-83.

      90. Each study of this period, of course, placed a somewhat different emphasis on the importance of labor strife and racism in the persecution of Chinese immigrants. For example, Eliot Mears stated: "The writer believes the misunderstandings are largely economic, but he is skeptical whether a four-legged table can be made to stand on only one leg. Without question, too, the economic prop has stood much of the strain that more properly should have fallen on the political support." Mears, Resident Orientals, 49. An important exception to the general rule is Borgardus, Immigration and Race Attitudes, a sociological study of the sources of racism, in both attitudes and conduct, aimed at immigrants.

      91. Sandmeyer observed: "The growth of organized labor has been very closely connected with the movement against Chinese immigration." Sandmeyer, The Anti-Chinese Movement, 40. Later he concluded: "Diverse motives entered into the opposition of Californians to the Chinese. Fundamental to all of them was the antagonism of race, reinforced by economic competition.... Race entered into the opposition on the ground of unequal competition in labor." Ibid., 109-10.

      92. Henry George, "Chinese Immigration," in Cyclopedia of Political Science, ed. J. Lalor (1883), 409-14; James Mooney, "Matthew Deady and the Federal Judicial Response to Racism in the Early West," Oregon Law Review 63 (1984): 561-637, 635.

      93. The Party's manifesto, published in 1876, stated that, "To an American death is preferable to a life on a par with a Chinaman.... Treason is better than to labor beside a Chinese slave." See, generally, Sandmeyer, Anti-Chinese Movement, 25-26, 31, 40; and Eaves, California Labor Legislation, 105, 115, 442.

      94. Coolidge, Chinese Immigration, 17, 21. R. D. McKenzie posited a frontier thesis interpretation to explain the favorable treatment received by the earliest Chinese immigrants in America. McKenzie, Oriental Exclusion, 28.

      95. Charles Beard, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1913).

      96. Robert Glass Cleland, A History of California: The American Period (New York: Macmillan, 1922), 416.

      97. Coolidge, Chinese Immigration, 276.

      98. The closest precedent for it was one chapter of a biography of Stephen J. Field, published in 1930, reviewing his opinions in major Chinese cases that he heard as a federal district judge and United States Supreme Court justice. Carl B. Swisher, Stephen J. Field, Craftsman of the Law (Hamden, Conn.: Archon Books, 1930).

      99. "It is intended that the reader, without needing to resort to other works (unless he is a specialist), shall get the rather full statement of the status of the alien and the American citizen of Asiatic ancestry under American constitutional law." Konvitz, The Alien and the Asiatic in American Law, vii.

      100. For example, Konvitz concluded his chapter on the right to became a citizen with a quotation by Earl G. Harrison, a former commissioner of the Immigration and Naturalization Bureau, suggesting that American law was more restrictive of the right of naturalization than that of any country in the world except for Nazi Germany. Konvitz added: "All will agree that this is not very desirable company." Konvitz, The Alien and the Asiatic in American Law, 81. He concluded the book with a critique of American internment of Japanese during World War II.

      101. During this period Konvitz was assistant general counsel for the NAACP and an attorney for the ACLU. He was also teaching courses at the New York University School of Law on civil rights law.

      102. They were also allowed an immigration quota of 105 per year. Nationality Act of 1940, § 303, 54 Stat. II 37, 1140.

      103. The McCarran-Walter Act of 1952 removed racial restrictions on naturalization for all Asians, and Asian countries were allowed small quotas, subject to a worldwide maximum of 2,000 immigrants of Asian ancestry per year. From the beginning, though, admission of refugees, war brides, scientists and technical experts, and others resulted in immigration far in excess of McCarran-Walter's nominal limits.

      104. See, for instance, Morton Horowitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992).

      105. Gunther Barth, Bitter Strength: A History of the Chinese in the United States, 1850-1870 (Cambridge: Harvard University Press, 1964). Since Barth was a student of Oscar Handlin, to whom he dedicated the book, his interest in immigration history is readily understandable.

      106. Barth, Bitter Strength, 1-2, 7, 157-58, 213-14.

      107. The California Alta of May 12, 1851, reported that Americans, infused with "the universal message of the American democratic creed," believed that the "China boys" would "yet vote at the same schools and bow to the same altar as our countrymen." Barth, Bitter Strength, 158.

      108. Patricia Nelson Limerick, The Legacy of Conquest: The Unbroken Past of the American West (New York: W. W. Norton, 1987), 35-54.

      109. Whatever their original intention in coming to America, the persistence rate of Chinese immigrants compares favorably with that of a number of other immigrant groups. Chan, "European and Asian Immigration," 38.

      110. Barth's position can be viewed as part of a mythology discussed in Richard White, It's Your Misfortune and None of My Own: A History of the American West (Norman: University of Oklahoma Press, 1991), 613-32.

      111. Gabriel J. Chin, "The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965," North Carolina Law Review 75 (1996): 273, and the sources cited there.

      112. Barth observed: "A running debate among Americans over the nature of their growing society was always in the background of the (Chinese and American) encounter." Barth, Bitter Strength, 131.

      113. Perry Miller's monumental studies of colonial New England theology were influential in making historians by the 1960s become aware of the power of ideas in American history. This is illustrated by the work of some of his leading students, namely Bernard Bailyn and Gordon Wood.

      114. This was exemplified by the publication of monumental studies of the history of African-American slavery, including those by Winthrop Jordan, David Brion Davis, and Eugene Genovese.

      115. Stuart Creighton Miller, The Unwelcome Immigrant: The American Image of the Chinese, 1785-1882 (Berkeley and Los Angeles: University of California Press, 1969).

      116. Beginning with Marco Polo, Europeans viewed China as an exotic land. By the last half of the seventeenth century this view was replaced by an idealistic image of Chinese culture cultivated by Jesuit missionaries. Miller, The Unwelcome Immigrant, 11-12.

      117. Merchants chafed under limitations imposed upon free trade; diplomats disliked the elaborate traditions of Chinese diplomacy; and missionaries were frustrated by Chinese resistance to conversion to Christianity. Miller, The Unwelcome Immigrant, chaps 2-4. These were the groups in America's population, however, whom Coolidge claimed most strongly supported Chinese immigrants.

      118. But late in life Emerson modified his position by coming to admire Confucius. Miller, The Unwelcome Immigrant, 16, 64, 95, 193.

      119. For example, Walt Whitman wrote in The Brooklyn Daily Eagle: "We hope that the United States will keep a fast grip on California. We have lofty views of the special destiny of our American Republic. It is for the interest of mankind that its power and territory should be extended—the further the better." Cited in Alexander Saxton, The Indispensable Enemy: Labor and the Anti-Chinese Movement in California (Berkeley and Los Angeles: University of California Press, 1971), 26.

      120. Rodman Paul concluded that by the mid-1850s Chinese immigrants had already experienced "passage into the status of a special race." Paul, "The Origins of the Chinese Issue in California, Mississippi Valley Historical Review 25 (1938): 181, 189, 196.

      121. Miller noted that the formation of these negative images of the Chinese in nineteenth-century America was fostered by the development of the first recognizably mass media in the United States. Miller, The Unwelcome Immigrant, chaps. 1, 6, 9.

      122. Miller argued that what Americans meant by the melting pot was that "The immigrant had to become a convert and shed his foreign, heathen ways." Ibid., 192. One example of the view that Chinese immigrants threatened the foundations of American community was provided by Senator Henry W. Corbett of Oregon during debates over the Fourteenth Amendment:

      With regard to the Chinese, they are a pagan nation. With the experience of the last few years on the
      Pacific Coast we have found that this class of people are not beneficial to the advancement of those
      Christian institutions that lie at the foundation of our Government.... Allow Chinese suffrage, and you
      will soon find established pagan institutions in our midst which may eventually supersede those Christian
      influences which have so long been the pride of our country.... I, for one, must object to granting the
      right of suffrage to a class of people which embraces a nation composed of perhaps four or six hundred
      million persons whocan come to our shores and supersede us in the establishment of institutions of their
      own, which may be detrimental to us, and finally overthrow our cherished system.

Nelson, The Fourteenth Amendment, 102. Judge Murray's opinion in People v. Hall, 4 Cal. 399 (1854), provides an early example in a legal text of the expression of racist sentiment linked to a concern for preserving an American community. Murray feared the social and political consequences of permitting Chinese to testify in cases involving white persons. He viewed the Chinese as "(a people) whose mendacity is proverbial, a race ... nature has marked as inferior." If they were admitted to the witness stand, they would soon be "at the polls, in the jury box, upon the bench, and in our legislative halls." One study of the nexus of community and legal culture in American history is Richard Cole, "Law and Community in the New Nation: Three Visions for Michigan," Southern California Interdisciplinary Law Journal 4 (1995): 161-252.

      123. Stanford Lyman, "Conflict and the Web of Group Affiliation in San Francisco's Chinatown, 1850-1910," Pacific Historical Review 43 (1974): 473, 474.

      124. Konvitz, The Alien and Asiatic in American Law; Swisher, Stephen J. Field.

      125. Roger Daniels, "Westerners from the East: Oriental Immigrants Reappraised," Pacific Historical Review 35 (1966): 373, 375.

      126. Professor Kurland died recently. See "In Memoriam Philip B. Kurland," University of Chicago Law Review 64 (1997): 1-19.

      127. They left laundrymen "to seek the haven of supervisorial consent without chart or compass to protect [them] against the sunken rocks of discrimination." McClain, In Search of Equality, 116.

      128. Attorneys for the Chinese entered evidence that while local officials had ordered two hundred Chinese laundries closed for violations of this ordinance, they had not closed eighty laundries that violated its provisions but whose owners were not Chinese.

      129. 118 U.S. 373.

      130. One example is the claim by a Nevada senator that a prohibition on voting discrimination was taken out of an early draft of the Fifteenth Amendment "so as to allow the exclusion of Chinese from its benefits." Janisch, "The Chinese, the Courts, and the Constitution," 183-84.

      131. Ibid., 58-63.

      132. Ibid., 537-38.

      133. Ibid., 1011, 1087. Describing Chinese participation in the lower civil and criminal courts, Janisch says, "[t]hey would avail themselves of any flaw in the law, and it was thought that some of the Chinese involved in this type of litigation '... are better acquainted with the intricacies and elasticity of our laws than many lawyers, and evidences of their astuteness are frequent.'" Ibid., 117 (quoting a contemporary newspaper account).

      134. Ibid., 581, 584. Ellen Katz describes how Americans vied for business as advocates for the Chinese. Katz, "The Six Companies and the Geary Act," 246.

      135. Janisch, "The Chinese, the Courts, and the Constitution," 496, 508, 684, 686. Janisch betrays his sympathy for those singled out for racial discrimination: "The real tragedy was that no one, and least of all the executive officers involved, was willing to recognize that if one group or nationality alone was singled out for exclusion at a time of virtually free immigration, there would, of course, be attempts made to accomplish illegally what every one else could do legally." Ibid., 1001-2.

      136. Ibid., iii-iv.

      137. Not only did Janisch come from South Africa and then go to Canada, but he did not make legal history the focus of his academic career.

      138. John Wunder, "Law and the Chinese in Frontier Montana," Montana 30, no. 3 (1980): 19-31; "The Courts and the Chinese in Frontier Idaho," Idaho Yesterday 25 (1981): 21-32; "The Chinese and the Courts of the Pacific Northwest: Justice Denied," Pacific Historical Review 52 (1983): 191-211; "Law and the Chinese on the Southwestern Frontier, 1850-1902," Western Legal History 2 (1989): 139-58; "Territory of New Mexico v. Yee Shun: A Turning Point in Chinese Legal Relationships in the Trans-Mississippi West," New Mexico Historical Review 65 (1990): 305-18; "Anti-Chinese Violence."

      139. James Mooney, "Matthew Deady and the Federal Judicial Response to Racism."

      140. Linda C. A. Przybyszewski, "Judge Lorenzo Sawyer and the Chinese Civil Rights Decisions in the Ninth Circuit," Western Legal History 1 (1988): 23-56.

      141. Christian Fritz, "Judge Ogden Hoffman and the Northern District of California," Western Legal History 1 (1988): 99-110; "A Nineteenth-Century 'Habeas Corpus Mill.'" Fritz also wrote a book about Hoffman that contains a good deal of material on Chinese immigrant cases that came before him. Fritz, Federal Justice in California.

      142. R. R. Swartout, "In Defense of the West's Chinese: Denny's Brief for Li Hung-Chang," Oregon Historical Quarterly 83 (1982): 25-36; Dan Kaylor, "Orders That Wouldn't Wash: Historical Background of Yick Wo v. Hopkins," Lincoln Law Review 11 (1990): 205-10.

      143. Delber McKee, "'The Chinese Must Go!' Commissioner General Powderly and Chinese Immigration, 1897-1902," Pennsylvania History 44 (1977): 37-51; George Peffer, "Forbidden Families"; Brian Thornton, "Exceptions to the Rule: Chinese Merchants and the Exclusion Laws, 1890-1894," Pacific Northwest Forum 6 (1992): 50-59; Katz, "The Six Companies and the Geary Act."

      144. Charles McClain, "The Chinese Struggle for Civil Rights in Nineteenth-Century America: The First Phase, 1850-1870," California Law Review 72 (1984): 529-68; "The Chinese Struggle for Civil Rights in Nineteenth-Century America: The Unusual Case of Baldwin v. Franks," Law and History Review 3 (1985): 349-73; "Of Medicine, Race, and American Law: The Bubonic Plague Outbreak of 1900," Law and Social Inquiry 13 (1988): 447-513; Lucy Salyer, "Captives of Law: Judicial Enforcement of the Chinese Exclusion Law, 1891-1905," Journal of American History 76 (1989): 91-117.

      145. U.S. Bureau of the Census, Statistical Abstract of the United States, at 14 (116th ed. 1996) (table 12) (noting Asian-American population as of 1995 is 9,287,000). In 1960, there were just over a million Asian and Pacific Islanders in the United States. U.S. Dept. of Commerce, Bureau of the Census, 1960 Census of Population, v. 1, pt. 1, at 144 (table 44).

      146. As "aliens ineligible to citizenship" Asian immigrants were excluded from bar membership by many states. See, e.g., In re Hong Yen Chang, 24 P. 156, 157 (Cal. 1890); In re Takuji Yamashita, 70 P. 482, 483 (Wash. 1902).

      147. For example, in 1978-79, of 121,606 law students, 9,952 were nonwhite and 1,424 were Asian or Pacific Islander Americans. In 1995-96, the total number of law students had increased over 10 percent to 135,518. The number of nonwhite law students had increased over 250 percent to 25,554. The number of law students of Asian ancestry had increased over 500 percent to 7,719. ABA Section of Legal Education and Admissions to the Bar, A Review of Legal Education in the United States, Fall 1995 (1996), 67-70.

      148. Indeed, a recent issue of the Iowa Law Review (81 [1996]: 1467-1628) is devoted to comments by Asian-American law professors on a debate about the nature of Asian-American identity between two other Asian-American professors, Jim Chen at Minnesota and Robert Chang at California Western. That a major American law review would devote its pages to what could be characterized as an intramural Asian-American controversy nicely demonstrates the arrival of Asian Americans as a legitimate subject of serious legal academic inquiry.

      149. The Directory of Law School Teachers, 1970, compiled by the Association of American Law Schools (St. Paul: West Publishing, 1970), at pages 583-84, listed just slightly over one page of names of persons teaching legal history. It listed the names of only sixteen persons who had taught legal history for ten years or more, and only nineteen persons from six to ten years. At page 612 it also listed a small number of persons teaching Roman law. The Directory for 1996-1997 lists almost three full pages of legal history teachers at pages 1175-78.

      150. For example, the evidentiary base for Fritz's Federal Justice in California is the reading of thousands of cases and for Salyer's Laws Harsh as Tigers the intensive study of administrative records. McClain's In Search of Equality is remarkable in combining archival research and the reconstruction of legal doctrine. Though not a legal history, Sucheng Chan's This Bittersweet Soil represents a tour de force of archival research.

      151. As early as 1966 Gordon Wood urged the fusion of the intellectual and social history of the American Revolution. It is an idea that has had a wide impact upon intellectual historians, including those who are legal historians. William Fisher III, "Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History," Stanford Law Review 49 (1997): 1065-1110.

      152. Lucy Salyer is now a faculty member of an eastern university, but her book is based upon her dissertation written at the University of California at Berkeley. Ellen Katz is an exception to this rule, but she studied immigration law at Yale, a university that is strong in this subject and also in western studies.

      153. Evidence of this revival is the publication of a journal devoted exclusively to western legal history, beginning in 1987--Western Legal History: The Journal of the Ninth Judicial Circuit Historical Society. In addition, there are now two university series devoted to western legal history, one published by the University of Nebraska Press, edited by John Wunder, and one by the University of Oklahoma Press, edited by Gordon Bakken.

      154. Limerick, Legacy of Conquest.

      155. Limerick entitled part 1 of her book "The Conquerors." Part 2 is "The Conquerors Meet Their Match." The first chapter of the latter is titled "The Persistence of Natives." Here she observed that Euro-Americans cast Native Americans "as passive, acted on, pushed about by the more forceful white men. It is one of the recognitions of our times that the Indians have been as much actors as the acted on." Several paragraphs later she observed: "In thinking about American Indian history it has become essential to follow the policy of cautious street crossers. Remember to look both ways." Limerick, Legacy of Conquest, 179-81.

      156. Katz, "The Six Companies and the Geary Act"; Salyer, Laws Harsh as Tigers, 46-47.

      157. 198 U.S. 253 (1905). Salyer, Laws Harsh as Tigers, 139, 162-66.

      158. McClain, In Search of Equality, 11.

      159. John McLaren, "The British Columbia Judges, the Rule of Law, and the Chinese Question: The California and Oregon Connection," in Law for the Elephant, 237.

      160. See Chew Heong v. United States, 112 U.S. 536, 567 (1884), and Konvitz, The Alien and the Asiatic in American Law, 5-6. In Ho Ah Kow, Field stated: "And thoughtful persons, looking at the millions which crowd the opposite shores of the Pacific, and the possibility at no distant day of the pouring over in vast hordes among us giving rise to fierce antagonisms of race, hope that some way may be devised to prevent their further immigration." Ho Ah Kow v. Nunan, 12 Fed. Cas. 252, 256 (C.C.D. Cal. 1879).

      161. In legal history since the 1970s critical legal studies has been important, though not alone, in emphasizing the influence of ideology upon jurisprudence.

      162. In a critical passage of "The British Columbia Judges," McLaren stated:

      My thesis is that this limited conception of rights was molded by the judges' political and social conservatism,
      economic determinism, and also by how they felt at a more personal level about the "Chinese fact" and the place of
      the Chinese in their respective societies. It is also my contention that to an extent it represented an independent,
      intellectual, and moral exercise which derived from the judges' perception of the judicial role in the common-law
      tradition, and the demands which this made on the mind and conscience of each of them. (255)

      163. Charles McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism," Journal of American History 61 (1975): 970-1005; Thomas Wuil Joo, "New 'Conspiracy Theory' of the Fourteenth Amendment: Nineteenth-Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence," University of San Francisco Law Review 29 (1995): 353-88.

      164. As Andrew Jackson had stated in his message vetoing the recharter of the Second National Bank of the United States: "If government would confine itself to equal protection, and as heaven does its rain, showers its favors alike on the high and the low, the rich and the poor, it would be an unqualified economic blessing."

      165. Both the California and Supreme Court opinions in Yick Wo stressed that, even were an ordinance issued by San Francisco's board of supervisors "fair on its face and impartial in appearance," to apply it with "an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances," still constituted a "denial of equal justice." McClain, In Search of Equality, 124. In Ho Ah Kow v. Nunan, Justice Field, who heard the case on circuit, struck down a San Francisco ordinance allowing the cutting of the hair of prisoners. Field reasoned that it constituted special legislation. He continued:

      [We] cannot shut our eyes to matters of public notoriety and general cognizance. When we take our
      seats on the bench we are not struck with blindness ... where an ordinance, though general in its terms,
      only operates upon a special race, sect, or class, it being universally understood that it is to be enforced
      only against that race, sect, or class, we may justly conclude that it was the intention of the body
      adopting it that it should only have such operation, and treat it accordingly. (12 Fed. Cas. 252, 255
      [C.C.D. Cal. 1879])

Field concluded that the ordinance violated both the Fourteenth Amendment and section 16 of the Civil Rights Act of 1870. McClain, In Search of Equality, 73-76, 281.

      166. McClain, In Search of Equality, 281.

      167. McLaren, "The British Columbia Judges," 255. Matthew Deady expressed a distate for rednecks and "sand-lot politics." Mooney, "Matthew Deady and the Federal Judicial Response to Racism," 586, 633-36."

      168. Schuck, "Transformation of Immigration Law."

      169. Salyer, Laws Harsh as Tigers, 29-32, 85.

      170. To make decisions concerning individual immigrants, and to enforce them, Congress initially delegated authority to a disparate body of federal officials. By 1893, however, Congress restructured the authority to make decisions concerning immigrants. Local commissioners of immigration were to appoint three inspectors to a board of special inquiry. It was to decide all cases of deportation of immigrants, as well as cases of admission when they were not "clearly and beyond a doubt entitled to land." Salyer, Laws Harsh as Tigers, 141.

      171. Quoted in ibid., 142. At hearings, Chinese had no right to compel the attendance of witnesses, no right to refuse to testify against themselves, and were often denied the right to cross-examine adverse witnesses. Indeed, officials sometimes found it expedient to proceed solely on the basis of ex parte affidavits. Although allowed to retain counsel, regulations gave officials the discretion to decide at what stage of the investigation to afford that right. Ibid., 141, 185, 189.

      172. Immigrants could only obtain review by resort to the old common law writ of habeas corpus. Further, courts were only to review administrative decisions after those seeking review had exhausted all administrative remedies. Despite dicta by the most prestigious justice of the Supreme Court, Oliver Wendell Holmes, that once courts had reviewed administrative rulings they could not retry them, especially in alien claims courts, judges often remanded the case to immigration officials for a rehearing. Finally, given the volume of administrative decisions, they were not always reviewed by regular courts. Nevertheless, rates of reversals were high, sometimes in the range of eighty percent. Salyer, Laws Harsh as Tigers, 80 (table 3), 82 (table 4), 89 (table 5), 90 (table 6).

      173. Ibid., 216, 232-23. The Supreme Court held that a deportation proceeding was not the equivalent of a criminal proceeding and that deportation was not a criminal sanction. Nor did it amount to depriving a person of life, liberty, or property without due process of law. A most important rationale for not applying the full force of the Bill of Rights to immigration proceedings was the sweeping federal powers over immigration, based on the doctrine of inherent sovereignty. It created such strong governmental interests, and powers to implement them, that they cut deeply into countervailing claims of rights by aliens in immigration proceedings and even significantly into those of persons involved in deportation proceedings.

      174. McKee, "The Chinese Must Go," 45.

      175. Salyer, Laws Harsh as Tigers, 44, 147, 212.

      176. Ibid., 248.

      177. Charles McClain and Laurene McClain, "The Chinese Contribution," 22.

      178. Sucheng Chan reminds us that Chinese communities did not die. Chan, "Introduction," in Entry Denied, xii-xiii.

      179. The burgeoning study of Asian-American women is reviewed by Chan, "Asian-American Historiography," in Entry Denied, 392-94.

      180. John Wunder conceived of studying Chinese immigrants while listening to a talk delivered by Keir Nash on southern slavery.

      181. Francis J. Mootz III, "Between Truth and Provocation: Reclaiming Reason in American Legal Scholarship," Yale Journal of Law and Humanities 10 (1998): 605-46.

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