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.
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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.
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      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
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      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
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      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
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      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
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      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
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      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":
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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
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      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
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      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