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

Published online by Cambridge University Press:  28 October 2011

Richard P. Cole  and
Gabriel J. Chin
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Law and History Review , Volume 17 , Issue 2 , Summer 1999 , pp. 325 - 364
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Copyright © the American Society for Legal History, Inc. 1999

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References

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

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. Takaki, Ronald, Strangers From a Different Shore: A History of Asian Americans (Boston: Little, Brown, 1989), 79Google Scholar.

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

4. McClain, In Search of Equality, 12-13; Wunder, John, “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. McLaren, John, Foster, Hamar, and Orloff, Chet (Pasadena: Ninth Judicial Circuit Historical Society, 1992), 212–36Google Scholar; John Wunder and Clare V. McKanna, Jr., “The Chinese in California: A Torturous Legal Relationship,” 1995 Year-book of the California Supreme Court Historical Society, 195-214.

5. 4 Cal. 399 (1854).

6. On People v. Hall, see Wunder and McKanna, “The Chinese in California.” A year after Murray wrote the court's opinion in People v. Hall he maintained his seat on the California Supreme Court bench by running as a candidate of the Know Nothing party. Uelmen, Gerald, “The Know Nothing Justices of the California Supreme Court,” Western Legal History 2 (1989): 89–106Google Scholar.

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

8. Chan, Sucheng, “European and Asian Immigration into the United States in Comparative Perspective, 1820s to 1920s,” in Immigration Reconsidered: History, Sociology, and Politics, ed. Yans-McLaughlin, Virginia (New York: Oxford University Press, 1990), 37–75Google Scholar. 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), 48–52Google Scholar; and Wunder, “Anti-Chinese Violence.” See also Chan, This Bittersweet Soil, 39-40, 57, 88, 283, 370-81; and Nee and Nee, Longtime Californ’, 33-38, 54-56.

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

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

11. Neuman, Gerald, “The Lost Century of Immigration Law (1776-1875),” Columbia Law Review 93 (1993): 1833–1901CrossRefGoogle Scholar.

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

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

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

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

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

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

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

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

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

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

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

23. “Introduction,” Entry Denied, ed. Chan.

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

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

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

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

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

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

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

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

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

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

34. In re Look Tin Sing, 21 F. 905 (C.C.D. Cal. 1884). In 1870 Senator Charles Sumner tried, but failed, to make citizenship by naturalization available to Chinese immigrants. Declaring that “All men are created equal and… have a right to equal political power in the country,” he proposed to strike the word “white” from the naturalization law of 1790. In light of his reliance upon principles of the Declaration of Independence it seemed only fitting to Sumner that Congress debated his amendment on the fourth of July. Congress, however, extended the right to naturalize only to “aliens of African descent or nativity.” Act of July 12, 1870, ch. 251, 16 Stat. 230, 250. Act of July 14, 1870, ch. 254, 16 Stat. 254 (1870).

This law did not expressly disable Chinese immigrants from naturalizing. In 1875, when federal statutes were codified for the first time, the codifiers, probably by inadvertence, left out the phrase “being a free white person” from the naturalization law. This encouraged several Chinese immigrants to petition for naturalization. But Judge Lorenzo Sawyer denied the petitions, and in 1876 Congress reinserted the limiting phrase deleted by the codifiers a year earlier. McClain, In Search of Equality, 70-73.

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

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

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

38. Pound, Roscoe, “Justice According to Law,” Columbia Law Review 13 (1913): 696–713CrossRefGoogle Scholar.

39. Lawson, Gary, “The Rise and Rise of the Administrative State,” Harvard Law Review 107 (1994): 1231–54CrossRefGoogle Scholar.

40. Schuck, Peter, “The Transformation of Immigration Law,” Columbia Law Review 84 (1984): 1–90CrossRefGoogle Scholar.

41. Chan, Sucheng, “Asian American Historiography,” Pacific Historical Review 65 (1996): 363–99CrossRefGoogle Scholar.

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

43. Janisch, Hudson, “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)Google Scholar.

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

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

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

47. Important examples include: Katz, Ellen, “The Six Companies and the Geary Act: A Case Study in Nineteenth-Century Civil Disobedience and Civil Rights Litigation,” Western Legal History 8 (1995): 227–71Google Scholar; Backhouse, Constance, “The White Women's Labor Laws: Anti-Chinese Racism in Early Twentieth-Century Canada,” Law and History Review 14 (1996): 315–68Google Scholar; Torok, John Hayakawa, “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): 55–85Google Scholar.

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

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

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

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

52. McClain, In Search of Equality, 3.

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

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

55. Fritz, Christian, “A Nineteenth-Century ‘Habeas Corpus Mill’: The Chinese Before the Federal Courts in California,” American Journal of Legal History 32 (1988): 347–72CrossRefGoogle Scholar.

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

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

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

59. Holmes, The Common Law, 2. Also illustrative of this view is the assertion of the legal anthropologist Henry Maine that the “chief purpose” of his study of ancient law “is to indicate some of the earliest ideas of mankind, as they are reflected in Ancient Law, and to point out the relation of these ideas to modern thought.” Maine, , Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (New York: Scribner, Armstrong, 1872)Google Scholar. 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 his-tory seems to me a contradiction in terms.” Gordon, “The Common Law Tradition,” 17. Boorstin correctly observed that this approach to legal history was really ahistorical. Boorstin, “Tradition and Method,” 428-33.

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

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

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

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

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

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

66. Adversarial works included Starr, M. B., The Coming Struggle (San Francisco: Bacon, 1873)Google Scholar; and Whitney, James, The Chinese and the Chinese Question (New York: Tibbals Book Co., 1888)Google Scholar. Apocalyptic works included Dooner, Pierton W., Last Days of the Republic (San Francisco: Alta Publishing House, 1880)Google Scholar; and Woltor, Robert, 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)Google Scholar.

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

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

69. Ibid., 198.

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

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

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

73. Ibid., 572-73, 599.

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

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

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

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

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

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

80. Coolidge, Chinese Immigration, part 3, “Competition and Assimilation.”

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

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

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

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

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

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

87. Whitney, The Chinese and the Chinese Question.

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

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

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

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

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

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

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

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

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

97. Coolidge, Chinese Immigration, 276.

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

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

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

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

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

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

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

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

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

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

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

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

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

111. Chin, Gabriel J., “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): 273Google Scholar, and the sources cited there.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

126. Professor Kurland died recently. See “In Memoriam Philip B. Kurland,” University of Chicago Law Review 64 (1997): 1–19Google Scholar.

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

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

129. 118 U.S. 373.

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

131. Ibid., 58-63.

132. Ibid., 537-38.

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

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

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

136. Ibid., iii-iv.

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

138. Wunder, John, “Law and the Chinese in Frontier Montana,” Montana 30, no. 3 (1980): 19–31Google Scholar; “The Courts and the Chinese in Frontier Idaho,” Idaho Yesterday 25 (1981): 21–32Google Scholar; “The Chinese and the Courts of the Pacific Northwest: Justice Denied,” Pacific Historical Review 52 (1983): 191–211Google Scholar; “Law and the Chinese on the Southwestern Frontier, 1850-1902,” Western Legal History 2 (1989): 139–58Google Scholar; “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): 305–18Google Scholar; “Anti-Chinese Violence.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

154. Limerick, Legacy of Conquest.

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

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

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

158. McClain, In Search of Equality, 11.

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

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

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

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

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

163. McCurdy, Charles, “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism,” Journal of American History 61 (1975): 970–1005Google Scholar; Joo, Thomas Wuil, “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): 353–88Google Scholar.

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

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

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

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

166. McClain, In Search of Equality, 281.

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

168. Schuck, “Transformation of Immigration Law.”

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

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

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

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

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

174. McKee, “The Chinese Must Go,” 45.

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

176. Ibid., 248.

177. Charles McClain and Laurene McClain, “The Chinese Contribution,” 22.

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

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

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

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