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

Law and History Review

Volumn 17, Issue 2, 1999, Pages 325-364

  Cole, Richard P ^a   Chin, Gabriel J ^b  

^a WESTERN NEW ENGLAND UNIVERSITY   (United States)

^b UNIVERSITY OF CINCINNATI   (United States)

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[No Author keywords available]

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EID: 85014174588     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/744016     Document Type: Review

References (161)

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), 1.
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, 195-214. 5.4 Cal. 399(1854).
5. 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 (\9$9): S9-\06.
6. Victor G. Nee and Brett de Bary Nee, Longtime Californ': A Documentary Study of an American Chinatown (New York: Pantheon Books, 1973), 52-56.
7. 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, 390, 57, 88, 283, 370-81; and Nee and Nee, Longtime Californ’, 33-38, 54-56.
8. 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.
9. Gerald Neuman, “The Lost Century of Immigration Law (1776-1875),” Columbia Law Review 93 (1993): 1833-1901.
10. In re Ah Fong, 1 F. Cas. 213, 217 (C.C.D. Cal. 1874) (no. 102).
11. 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.
12. Act of May 6, 1882, ch. 126, 22 Stat. 58.
13. 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.
14. Act of May 5, 1892, ch. 60, 27 Stat. 25.
15. It was amended and extended without limitation again in 1904. Ch. 1630, 33 Stat. 428 (1904).
16. Act of Feb. 5, 1917, ch. 29 § 3, 39 Stat. 874, 876.
17. Act of March 26, 1790, ch. 3, 1 Stat. 103. 21.43 Stat. 153, 168(1924).
18. Takaki, Strangers From a Different Shore, 79-80.
19. “Introduction,” Entry Denied, ed. Chan
20. Ira Condit, The Chinaman as We See Him (Chicago: Fleming H. Revell, 1900), 24.
21. 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.
22. Arthur McEvoy, The Fisherman's Problem: Ecology and Law in California Fisheries (Cambridge: Cambridge University Press, 1986), 88-90.
23. Nee and Nee, Longtime Californ’, 60-122.
24. Marlon K. Horn, Songs of Gold Mountain: Cantonese Rhymes from San Francisco Chinatown (Berkeley and Los Angeles: University of California Press, 1987), 48.
25. McClain, In Search of Equality, 13-16.
26. 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.
27. U.S. 356 (1886). McClain provides an excellent rendition of the entire history of the case. In Search of Equality, 115-25.
28. 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.
29. 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.
30. 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.
31. 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).
32. 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.
33. Roscoe Pound, “Justice According to Law,” Columbia Law Review 13 (1913): 696-713.
34. Gary Lawson, “The Rise and Rise of the Administrative State,” Harvard Law Review 107(1994): 1231-54.
35. Peter Schuck, “The Transformation of Immigration Law,” Columbia Law Review 84 (1984): 1-90.
36. Sucheng Chan, “Asian American Historiography,” Pacific Historical Review 65 (1996): 363-99.
37. Milton Konvitz, The Alien and the Asiatic in American Law (Ithaca: Cornell University Press, 1946).
38. 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).
39. These articles and chapters are reviewed and cited in Part 3.
40. 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).
41. Lucy Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995).
42. 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.
43. 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.
44. 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.” The historiography of republicanism is one example., 407.
45. 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 ofOgden 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.
46. 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.
47. McClain, In Search of Equality, 3.
48. 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.
49. They included litigation involving contracts, bankruptcies, and the like. Fritz, Federal Justice in California.
50. 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.
51. 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).
52. Oliver Wendell Holmes, The Common Law (Boston: Little, Brown, 1881).
53. 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.
54. 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.
55. Quoted in Gordon, “The Common Law Tradition,” 19-20.
56. 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).
57. Gordon, “The Common Law Tradition,” 9-12, 51-55. See also Grey, “Langdell's Orthodoxy,” 10-11.
58. See William W. Fisher III, Morton J. Horowitz, and Thomas A. Reed, eds., American Legal Realism (New York: Oxford University Press, 1993), 27-33.
59. The exceptions include James Willard Hurst's studies of nineteenth-century Wisconsin law, which are reviewed in Gordon. “The Common Law Tradition.”
60. 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).
61. 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).
62. Condit, The Chinaman as We See Him, 11.
63. The Chinaman as We See Him., 198.
64. Dooner, Last Days of the Republic, 186, 216.
65. Speer, The Oldest and Newest Empire, 566-67.
66. The Oldest and Newest Empire., 572-73, 599.
67. Dooner, Last Days of the Republic, 107.
68. 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).
69. 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.
70. 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. Coolidge's study constituted 496 pages of text and had a long period of germination., 3.
71. 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).
72. Salyer, Laws Harsh as Tigers, 167-68.
73. Coolidge, Chinese Immigration, part 3, “Competition and Assimilation.”
74. Already it was “wreaking itself upon California… Lawlessness, class hatred, incapacity for cooperation-these have been… the fruits of race discrimination.” Chinese Immigration., 486, 495-96.
75. Already it was “wreaking itself upon California… Lawlessness, class hatred, incapacity for cooperation-these have been… the fruits of race discrimination.”., 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.
76. Lucille Eaves, A History of California Labor Legislation (Berkeley: The University Press, 1910), xi, 151.
77. For example, in describing a fictional battle between Chinese and Americans, Robert Woltor wrote: “Just then a fiendish y e l l… as if from a hundred savage tongues, stunned and made our men stagger.” Woltor, A Short and Truthful History, 65.
78. 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.
79. Dooner, Last Days of the Republic, 31-32.
80. Whitney, The Chinese and the Chinese Question.
81. 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, 1.
82. 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.” 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.”., 378. Coolidge also attributed race antipathy as a source of laws discriminating against Chinese immigrants, notably the prohibition against their naturalization. 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.”., 69-83.
83. 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.
84. Sandmeyer observed: “The growth of organized labor has been very closely connected with the movement against Chinese immigration.” Sandmeyer, The Anti-Chinese Movement
85. 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.” Sandmeyer observed: “The growth of organized labor has been very closely connected with the movement against Chinese immigration.”., 109-10.
86. 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.
87. 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.
88. 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.
89. Charles Beard, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1913).
90. Robert Glass Cleland, A History of California: The American Period (New York: Macmillan, 1922), 416.
91. Coolidge, Chinese Immigration, 276.
92. 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).
93. “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.
94. 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.
95. 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.
96. They were also allowed an immigration quota of 105 per year. Nationality Act of 1940, §303, 54 Stat. II 37, 1140.
97. 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.
98. See, for instance, Morton Horowitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992).
99. 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.
100. Barth, Bitter Strength, 1-2, 7, 157-58, 213-14.
101. 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.
102. Patricia Nelson Limerick, The Legacy of Conquest: The Unbroken Past of the American West (New York: W. W. Norton, 1987), 35-54.
103. 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.
104. 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.
105. 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.
106. 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.
107. 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. African-American slavery, including those by Winthrop Jordan, David Brion Davis, and Eugene Genovese.
108. Stuart Creighton Miller, The Unwelcome Immigrant: The American Image of the Chinese, 1785-1882 (Berkeley and Los Angeles: University of California Press, 1969).
109. 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.
110. 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.
111. But late in life Emerson modified his position by coming to admire Confucius. Miller, The Unwelcome Immigrant, 16, 64, 95, 193.
112. 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.
113. 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.
114. Stanford Lyman, “Conflict and the Web of Group Affiliation in San Francisco's Chinatown, 1850-1910,” Pacific Historical Review 43 (1974): 473, 474.
115. Konvitz, The Alien and Asiatic in American Law; Swisher, Stephen J. Field.
116. Roger Daniels, “Westerners from the East: Oriental Immigrants Reappraised,” Pacific Historical Review 35 (1966): 373, 375.
117. Professor Kurland died recently. See “In Memoriam Philip B. Kurland,” University of Chicago Law Review 64 (1997): 1-19.
118. 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.
119. 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.
120. 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.”., 58-63.
121. 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.”., 537-38.
122. 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.”., 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.'” 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.”., 117 (quoting a contemporary newspaper account).
123. 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.'”., 581, 584. Ellen Katz describes how Americans vied for business as advocates for the Chinese. Katz, “The Six Companies and the Geary Act,” 246.
124. 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.” Ellen Katz describes how Americans vied for business as advocates for the Chinese., 1001-2.
125. “The Chinese, the Courts, and the Constitution,”., iii-iv.
126. 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.
127. 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 Yesterday25 (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.”
128. James Mooney, “Matthew Deady and the Federal Judicial Response to Racism.”
129. Linda C. A. Przybyszewski, “Judge Lorenzo Sawyer and the Chinese Civil Rights Decisions in the Ninth Circuit,” Western Legal History 1 (1988): 23-56.
130. 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.
131. 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.
132. 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.”
133. 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.
134. 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).
135. 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).
136. 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.
137. 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.
138. 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.
139. 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.
140. 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.
141. 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.
142. Limerick, Legacy of Conquest.
143. 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.
144. Katz, “The Six Companies and the Geary Act”; Salyer, Laws Harsh as Tigers, 46-47.
145. U.S. 253 (1905). Salyer, Laws Harsh as Tigers, 139, 162-66.
146. McClain, In Search of Equality, 11.
147. 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.
148. 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).
149. 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.
150. McClain, In Search of Equality, 281.
151. 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.”
152. Schuck, “Transformation of Immigration Law.”
153. Salyer, Laws Harsh as Tigers, 29-32, 85.
154. McKee, “The Chinese Must Go,” 45.
155. Salyer, Laws Harsh as Tigers, 44, 147, 212.
156. Laws Harsh as Tigers., 248.
157. Charles McClain and Laurene McClain, “The Chinese Contribution,” 22.
158. Sucheng Chan reminds us that Chinese communities did not die. Chan, “Introduction,” in Entry Denied, xii-xiii.
159. The burgeoning study of Asian-American women is reviewed by Chan, “Asian-American Historiography,” in Entry Denied, 392-94.
160. John Wunder conceived of studying Chinese immigrants while listening to a talk delivered by Keir Nash on southern slavery.
161. Francis J. Mootz III, “Between Truth and Provocation: Reclaiming Reason in American Legal Scholarship,” Yale Journal of Law and Humanities 10 (1998): 605-6.