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Captives of Law: Judicial Enforcement of the Chinese Exclusion Laws, 1891-1905 Author(s): Lucy Salyer Source: The Journal of American History, Vol. 76, No. 1 (Jun., 1989), pp. 91-117 Published by: Organization of American Historians Stable URL: http://www.jstor.org/stable/1908345 Accessed: 23-08-2014 22:47 UTC

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Captives of Law:

Judicial Enforcement of the Chinese

Exclusion Laws, 1891-1905

Lucy Salyer

The Gaelic sailed into San Francisco harbor onJune 11, 1892, completing a routine voyage from Hong Kong. As usual, the ship carried several Chinese passengers. Yeap Shee was journeying to the United States to join her husband, Young Ah Chew, a merchant in San Francisco. Another traveler, Fong Yot Hing, had been born in San Francisco in 1875 but had left to live in China when only six years old. Now, at the behest of his older brother, he was returning to his birthplace in Chinatown to learn the family's goldsmithing business. A third passenger, Fong Sam Toy, was coming back to his general merchandising firm after a visit to China to get married.

When the so-called Chinese inspectors from the Chinese Bureau of the Office of the Collector of Customs boarded the ship, it became clear that the journey of Yeap Shee, Fong Yot Hing, and Fong Sam Toy was not yet over. It would end only after a protracted struggle involving the federal courts. Those passengers, like all other Chinese coming to the United States, had to surmount obstacles created by the federal Chinese exclusion laws to prove they had a right to enter. Though the collector of customs, as supervisor of the Chinese Bureau, allowed several Chinese passengers on the Gaelic to land, he refused entry to other passengers, including those three. Rather than accept their exclusion, however, Yeap Shee, Fong Yot Hing, and Fong Sam Toy chose to challenge the collector's decision by petitioning the local federal district court for writs of habeas corpus. It was a wise strategy; District Court Judge William W. Morrow ordered the collector to allow all three to enter and reside in the United States.'

Lucy E. Salyer recently received her Ph.D. in jurisprudence and social policy from the University of California, Berkeley, and is now an assistant professor of history at the University of New Hampshire. This essay received the Louis Pelzer Memorial Award for 1988.

I am deeply grateful for the comments and criticisms of my colleagues in the Jurisprudence and Social Policy Program and in the History Department at the University of California, Berkeley. Special thanks are due to my adviser, Harry N. Scheiber, and to Sucheng Chan, Marianne Constable, Pete Daniel, Robert Gordon, Martin Shapiro, Susan Sterett, and David Thelen. Financial assistance for photographs was provided by the United States District Court for the Northern District of California Historical Society.

I In re Yeap Shee, no. 10357, 1892, U.S. District Court for the Northern District of California, Admiralty Casefiles, RG 21 (National Archives, San Francisco Branch, San Bruno, Cal.); In re Fong Yot Hing, no. 10360, 1892, ibid.; In re Fong Sam Toy, no. 10361, 1892, ibid.

91

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92 The Journal of American History

Their victory in court was not unusual. Since the passage of the Chinese Exclusion Act in 1882, Chinese had turned repeatedly to the federal district and circuit courts, especially in northern California where the vast majority of Chinese landed. By 1890, Chinese had filed in the federal courts at San Francisco a total of 7,080 peti- tions to challenge the collector's decisions to deny them entry and had won reversals in approximately 85 to 90 percent of the cases.2 In the eyes of the public and ad- ministrative officials, the courts made effective enforcement of the Chinese exclusion laws impossible.

This Chinese success story runs counter to traditional assumptions about the his- tory of immigrants and courts. Immigration law scholars such as Peter H. Schuck argue that since 1891 courts have rarely intervened in immigration policy, treating the decisions of the immigration agency with unusual deference. The portrayal of a judiciary passive toward non-Chinese immigrants seems true. In 1891 Congress curtailed immigrants' access to the federal courts by making the decisions of the newly created federal immigration office final. In 1892 the United States Supreme Court sanctioned the power of Congress to forbid judicial review, declaring, "It is not within the province of the judiciary to order that foreigners . . . shall be per- mitted to enter."3

Drawing on the unpublished records of cases filed between 1891 and 1905 in the federal district and circuit courts for the Northern District of California, this article reevaluates the relationship between federal courts and immigrants in order to ex- plain why the Chinese prevailed in court so often.4 The Chinese differed from other immigrants in their response to efforts to keep them out of the United States. Im- migrants (primarily European) arriving between 1891 and 1910 at Ellis Island, New York, filed only 273 habeas corpus petitions in the local federal courts to challenge

2 In 1891, 97% of Chinese entering the United States came through San Francisco; by 1901, 64% came through the port. See U.S. Department of the Treasury, Annual Report of the Secretary of the Treasury for Fiscal Year Ended 1891 (Washington, 1891), 865; U.S. Department of Commerce and Labor, Annual Report of the Commissioner- General of Immigration for Fiscal Year Ended 1901 (Washington, 1901), 49. Christian G. Fritz, "San Francisco's First Federal Court: Ogden Hoffman and the Northern District of California, 1851-1891" (Ph.D. diss., University of California, Berkeley, 1987), 721n105; U.S. Congress, Select Committee on Immigration and Naturalization, Chi- nese Immigration, 51 Cong., 2 sess., March 2, 1891, p. 412; Hudson N. Janisch, "The Chinese, the Courts, and the Constitution: A Study of the Legal Issues Raised by Chinese Immigration to the United States, 1850-1902" (J.S.D. diss., University of Chicago Law School, 1971), 678-79.

3 Peter H. Schuck, "The Transformation of Immigration Law," Columbia Law Review, 84 (Jan. 1984), 1-90; Act of March 3, 1891, 26 Stat. 1084, sec. 8; Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892).

4 From 1891 to 1911, both the district and circuit courts were federal trial courts. Petitioners could file for writs of habeas corpus in either court, but they almost always filed in the district court. I obtained data on both courts from two sources. From the courts' docket books, I recorded the disposition (as well as other basic information) for all the Chinese habeas corpus cases (2,657) filed between 1891 and 1905. From these cases, I drew a random sample of 392, choosing 10% or 5 cases, whichever was larger, from each year for an in-depth review of the case files. The files often included the transcripts of the court hearings and the notes and transcripts from the immigra- tion agency's investigation. For the district court docket books, see Admiralty Dockets, vol. 14-18, U.S. District Court for the Northern District of California, 1891-1905 (Archives Room, U.S. District Court, San Francisco, Cal.). For the circuit court docket books, see Common Law and Equity Register, U.S. Circuit Court for the Northern District of California, ibid. For the district court casefiles, see U.S. District Court for the Northern District of California, Admiralty Casefiles. For the circuit court casefiles, see U.S. Circuit Court for the Northern District of California, Common Law and Equity Casefiles, RG 21 (National Archives, San Francisco Branch).

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Courts and the Chinese Exclusion Laws 93

their rejection by immigration officers. In a similar period, between 1891 and 1905, Chinese in San Francisco filed 2,657 habeas corpus petitions. Approximately sixty thousand Chinese applied for admission to the United States between 1891 and 1905 while almost six million non-Chinese came to the United States during that period. Thus Chinese arriving on the West Coast filed petitions at a much higher rate than Europeans arriving on the East Coast.5

The greater activity on the part of Chinese reflects differences in the laws gov- erning their admission and perhaps in the immigrant communities as well. The Chi- nese exclusion laws subjected Chinese to much harsher restrictions and excluded them in much greater proportions than the laws governing the admission of non- Chinese immigrants. Under the Chinese exclusion laws, the percentage of Chinese denied entry between 1894 and 1901 varied from a low of 5 percent in 1898 to a high of 34 percent in 1901. In contrast, the Bureau of Immigration during the same period never rejected more than 1.3 percent of non-Chinese applicants. Given their greater ease of entry and the 1891 law making the decisions of immigration officials final in their cases, non-Chinese immigrants probably had less reason to appeal to the courts. Ironically, Chinese retained the right of judicial review after the courts had been closed to other immigrants. The Chinese-American community, drawn together by traditional social ties and by the need to protect itself from the discrimi- nation Chinese encountered in America, provided the resources and impetus for the habeas corpus litigation. Chinese took advantage of the opportunity for judicial review and proved to be tenacious and sophisticated litigators.6

The litigants' determination and skill alone did not secure their victory, however. The fate of their cases rested with the federal courts. Fortunately for the Chinese, the courts proved to be an especially receptive forum.

That the federal courts were so favorable to the Chinese is surprising given the backgrounds of the judges and the national political and social climate. A bla- tant racism pervaded the nation and crept into federal judicial decisions. Black Americans in the 1890s, for example, discovered the federal courts to be unrespon- sive and, in fact, damaging, to their fight against discriminatory laws. In California

5 For habeas corpus cases brought by immigrants in New York, see Equity Docket, U.S. District Court for the Southern District of New York, 1897-1910, RG 21 (National Archives, New York Branch, Bayonne, N. J.); Habeas Corpus Docket, U.S. Circuit Court for the Southern District of New York, 1891-1906, ibid. For such cases brought by Chinese, see sources cited in note 4, above. For immigration figures, see U.S. Department of Treasury, Annual Report of the Secretary of the Treasury on the State of the Finances for the Year 1894 (Washington, 1894), 958-59; Annual Report of the Secretary of the Treasury on the State of the Finances for the Year 1895 (Washington, 1896), 715-16; Annual Report of the Secretary of the Treasury on the State of the Finances for the Year 1896 (Washington, 1897), 798-99; Annual Report of the Secretary of the Treasury on the State of the Finances for the Year 1897 (Washington, 1897), LIII; Annual Report of the Secretary of the Treasury on the State of the Finances for the Year 1898 (Washington, 1898), LVI; Annual Report of the Secretary of the Treasury on the State of the Finances for the Fiscal Year EndedJune 30, 1899 (Washington, 1900), LI; U.S. Department of Treasury, Annual Report of the Commissioner-General of Immigration for the Fiscal Year Endedjune 30, 1901 (Washington, 1901), 49; and U.S. Immigration Commission, Statistical Review of Immigration, 1820-1910 (Washington, 1911), 38-42.

6 In addition to the sources cited in note 5, above, see U.S. Immigration Commission, Statistical Review of Immigration, 1820-1910, table 42, p. 367. The immigration laws governing non-Chinese excluded certain classes of people, including by 1891, prostitutes, convicts, lunatics, and those unable to care for themselves. The Chinese exclusion laws made much more sweeping restrictions, excluding all Chinese laborers. E. P. Hutchinson, Legislative History of American Immigration Policy, 1798-1965 (Philadelphia, 1981), 405-42.

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94 The Journal of American History

Chinese encountered intense hostility from white Americans, who since the 1850s had vented their racism in discriminatory legislation, boycotts, and extralegal in- timidation and violence. As a congressman, William W. Morrow, who as judge of the District Court for the Northern District of California freed the Gaelic pas- sengers, had spearheaded California's campaign for more stringent Chinese exclu- sion laws. Other future federal court judges for the same district, Joseph McKenna and John De Haven, were also strong proponents of Chinese exclusion and other nativist legislation in congressional debates.7

While the judges agreed with and attempted to facilitate the public policy of excluding Chinese, they were, in a sense, "captured" by law. When judges took the bench, they entered into an institution that had particular procedural rules and practices rooted in Anglo-American common law tradition. Two procedures of the federal trial courts -the writ of habeas corpus and judicial evidentiary rules -were especially important to the success of Chinese. Because of the institutional norms that required them to treat cases individually and to apply general principles in de- cision making, the judges felt obligated to extend those practices to both Chinese and non-Chinese litigants.

By examining how institutional norms and practices influenced judicial decision making, I hope to expand the prevailing understanding of the nature of courts at the turn of the century. Traditionally, scholars studying courts of that period, such as Arnold M. Paul, Benjamin R. Twiss, Louis B. Boudin, and William E Swindler, have focused on the Supreme Court and its decisions regarding social and economic regulations. Writing in the legal realist tradition, such scholars, discarding the no- tion that judges simply identify and apply law in a neutral manner, highlighted the political nature of judicial decisions. They portrayed the Court as a bastion of conservatism, clinging to narrow conceptions of government power to defeat local and national economic legislation while protecting certain business interests. Until recently, that interpretation has dominated the history of courts during the Progres- sive Era. Recent studies have begun to modify the realists' interpretation of that era, revealing that the Supreme Court was not always a bulwark against Progressive re- forms and that principle, as well as politics, guided the justices' decisions. Others have broadened the study of courts to include state appellate and county criminal courts.8

7 For the federal courts response to black Americans' challenges to discrimination, see C. Vann Woodward, The Strange Career ofJim Crow (New York, 1974), 70-72. William W. Morrow served as district court judge for the Northern District of California between 1891 and 1897. He served on the circuit court for the same district between 1897 and 1923. John De Haven sat on the district court bench between 1897 and 1913, and Joseph McKenna served as circuit court judge from 1892 until 1897, when he was appointed to the United States Supreme Court. See Dictionary of American Biography, s.v. "Morrow, William W."; ibid., s.v. "McKenna, Joseph"; and on De Haven, J. Edward Johnson, History of the Supreme CourtJustices of California (2 vols., San Francisco, 1963), I, 175-77.

8 For the legal realist tradition, see Arnold M. Paul, The Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (Ithaca, 1960); Benjamin R. Twiss, Lawyers and the Constitution: How Laissez-Faire Came to the Supreme Court (Princeton, 1942); Louis B. Boudin, Government by Judiciary (New York, 1932); and William F. Swindler, Court and Constitution in the Twentieth Century (3 vols., Indianapolis, 1969-1974). For newer studies of the Supreme Court, see John E. Semonche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890-1920 (Westport, 1978); Charles W. McCurdy, "Justice Field and the Jurisprudence of

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Courts and the Chinese Exclusion Laws 95

William W. Morrow was U.S. District judge (1891-1897) and U.S. Circuit Judge (1897-1929) for the Northern District of California.

Courtesy US. District Court, San Francisco, California.

This article focuses on federal trial courts, rather than on appellate federal and state courts, and adopts an institutional perspective, paying close attention to judges' actions, as well as to their words. Such an approach does not mean returning to a notion that judges "discover" law nor does it discard the argument that judges' political orientation influences their decisions. Federal judges in northern Cali- fornia allowed their personal anti-Chinese biases to affect their treatment of Chinese litigants. An institutional approach, however, adds a different dimension to the study of courts by suggesting that judges inherit traditions that may constrain their actions.9

Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897," Journal of American History, 61 (March 1975), 970-1005. On state and county courts, see Melvin I. Urofsky, "State Courts and Protective Legislation during the Progressive Era: A Reevaluation," ibid., 63 (June 1985), 63-91, esp. 63-87; Lawrence M. Friedman and Robert V. Percival, The Roots ofjustice. Crime and Punishment in Alameda County, California, 1870-1910 (Chapel Hill, 1981).

9 My thesis is consistent with the findings of Christian G. Fritz and Hudson N. Janisch, who examine the Chi- nese habeas corpus cases for different periods and with an approach different from mine. Both focus on the impor- tant substantive legal decisions made by the California federal courts in Chinese cases. My study concentrates on the court's procedures in handling the run-of-the-mill Chinese cases, which allows an in-depth analysis of institu- tional practices. Fritz, "San Francisco's First Federal Court," 377-423; Janisch, "The Chinese, the Courts, and the Constitution," 476-519, 654-762, 931-1045.

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96 The Journal of American History

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Courts and the Chinese Exclusion Laws 97

Federal trial courts played a major and surprising part in the drama of Chinese im- migrants partly because of the body of special laws applied to the Chinese and the administrative structure established to implement those laws in the 1880s. The Chi- nese were the earliest targets of restrictionist fervor. The United States gained a con- cession from China in an 1880 amendment to the Burlingame Treaty of 1868, per- mitting the United States to limit, though not absolutely to prohibit, the future immigration of Chinese laborers whenever American officials judged that such im- migration "affects or threatens to affect the interests of that country, or to endanger the good order of the said country." The restriction applied only to Chinese laborers who had not yet immigrated to the United States.

[Other] Chinese subjects, whether proceeding to the United States as teachers, stu- dents, merchants or from curiosity, . . . and Chinese laborers who are now in the United States shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation.10

Congress proceeded to curtail Chinese immigration to the United States in a se- ries of acts in 1882, 1884, and 1888, jointly known as the Chinese exclusion laws. Only Chinese who were not laborers (including merchants, students, and travelers) and those who had been born in the United States and thus were American citizens were allowed to enter. Chinese laborers residing in California before 1880 were al- lowed to remain; once they left the United States, however, they could not return.1" The latter provision clearly contravened the 1880 treaty with China, and in the 1894 treaty, China succeeded in gaining an exception to this rule. A Chinese laborer could leave and return to the United States if he had a "lawful wife, child, or parent" living in the United States, or if he had at least one thousand dollars worth of property or of debts owed him. The statutes did not address explicitly the admissibility of Chinese women and children. The lower federal courts ruled in the 1880s that Chi- nese women and children would be allowed to enter if they were native-born Amer- ican citizens. The Supreme Court in 1901 clarified the admissibility of others, holding that the status of the wife and child followed that of the husband. Thus, if the Chinese exclusion laws exempted the husband, the wife and child could also enter. Finally, the laws denied all Chinese the privilege of becoming naturalized United States citizens. Thus, by 1891 the Chinese had the dubious distinction of being the only immigrant group to be specifically excluded from the United States and to be denied the privilege of naturalization.12

10 Treaty between the United States and China concerning Immigration, Nov. 17, 1880, art. I, 22 Stat. 826; Ibid., art. II.

11 Act of May 6, 1882, 22 Stat. 58; Act of July 5, 1884, 23 Stat. 115; Act of Sept. 13, 1888, 25 Stat. 476; Act of Oct. 1, 1888, 25 Stat. 504. Though Chinese could not become naturalized citizens, the Ninth Circuit in 1884 had recognized the citizenship of Chinese born in the United States. See In re Look Tin Sing, 21 25.6 905 (C.C.D. Cal. 1884).

12 Convention between the United States of America and the Empire of China concerning Emigration, March 17, 1894, 28 Stat. 1210; In re Look Tin Sing, 21 F. 905; Exparte Chin King, 35 F. 354 (C.C.D. Or. 1888); United States v. Mrs. Gue Lim, 176 U.S. 459 (1900).

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98 The Journal of American History

When Morrow took the bench as district court judge in 1891, public worries about the Chinese had momentarily subsided and the prospects for a vigorous enforce- ment of the Chinese exclusion laws appeared promising. The deaths ofJudge Ogden Hoffman of the district court and Judge Lorenzo Sawyer of the circuit court in 1891 brought a close to the first era of the northern district court's history. Californians had a new federal court staffed with judges - Morrow in the district court and McKenna in the circuit court -who had demonstrated their loyalty to anti-Chinese forces in Congress. Furthermore, a new collector, Timothy Phelps, had been ap- pointed to enforce the laws regulating Chinese immigration. Several people realized that the tension between the courts and the local administration in the 1880s had resulted in part from the overly rigid interpretation of the laws adopted by Phelps's zealous predecessor, John Hager.13 With a new, more cautious collector and the new judges, a less combative relationship in the enforcement of the Chinese exclusion laws seemed possible.

By 1891 a new national consensus about the acceptability of exclusion had also developed. The Supreme Court had upheld the constitutionality of the Exclusion Act in 1889. When Congress considered amendments to the exclusion laws in 1892, Sen. William M. Stewart of Nevada claimed: "There was a time when there was great diversity of opinion on the question of Chinese immigration to this country, but I think there is practically none now. The American people are now convinced that the Chinese can not be incorporated among our citizens, can not be amalgamated, can not be absorbed, but that they will remain a distinct element."'14

Stephen Chase Houghton, a United States commissioner appointed to assist the circuit court with the Chinese habeas corpus cases, commented in 1890 that the Chi- nese litigation was "really practically over." Because of the success of the legislation restricting Chinese immigration, explained Houghton, the number of Chinese en- tering the United States had declined and, consequently, very few cases came before the courts anymore.15 Yet the courts' involvement was not over by any means. Be- tween 1891 and 1905, the district and circuit courts in San Francisco heard 2,657 Chinese habeas corpus cases. And the courts, according to many observers, con- tinued to frustrate the purposes of the Chinese exclusion laws.

That Chinese continued to have access to the courts was an ironic consequence of the administrative structure instituted by the Immigration Act of 1891. The act specifically omitted Chinese from its reach and, in effect, established a dual system of administration, one for the Chinese and another for all other immigrants. The collectors of customs in the various ports remained responsible for enforcing the laws regulating Chinese immigration, while the newly created office of the superin- tendent of immigration administered the laws governing non-Chinese immigrants.

13 Select Committee on Immigration and Naturalization, Chinese Immigration, 332-33, 344. 14 Chae Chan Ping v. United States, 130 U.S. 581 (1889); Congressional Record, 52 Cong., 1 sess., Apr. 23,

1892, p. 3559. I5 Select Committee on Immigration and Naturalization, Chinese Immigration, 323. Stephen Chase Houghton

served as referee for the federal courts underJudge Ogden Hoffman, hearing admiralty and Chinese habeas corpus cases until 1892.

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Courts and the Chinese Exclusion Laws 99

It was not until 1903 that the Chinese came under the aegis of that office, the Bureau of Immigration, and became subject to the immigration laws. As a consequence, the 1891 act's prohibition on judicial review of administrative decisions to deny im- migrants entry did not apply to Chinese immigrants, and they could use the federal courts to challenge such administrative decisions.16

The Chinese in northern California put the opportunity for judicial review to good use. By the time the Chinese restriction laws were passed, Chinese had already proved themselves determined and skillful litigators in their challenges to other dis- criminatory laws before the federal courts.17 The success of Chinese in the courts in those matters showed Chinese immigrants how to use the legal system to challenge the decisions of the collector.

Chinese arriving in San Francisco from Kwangtung Province in southeastern China found a network of family and service associations led by members of the elite merchant class. Each Chinese in California belonged to one of several family associations based loosely on lineage. Someone from the family association -an uncle or a distant cousin, for example-would meet the newcomer and help him or her with any immigration difficulties, hiring an attorney if necessary. Once landed, the immigrant could rely on his or her clan to provide aid in getting settled.18

In addition to the family organizations, Chinese also belonged to district associa- tions (or huiguan), depending on the regions they came from in China. The district associations played an important role in their members' lives. The associations often provided Chinese immigrants with money for their passage to the United States in exchange for the newcomers' labor for a specified time. Once Chinese arrived in the United States, the associations helped their members find employment, housing, and medical care and lent them money if necessary.19

Chinese immigrants might also belong to a third type of organization -a secret society (or tong). In China the secret societies, being associated with political rebel- lions and crime, had a subversive character. Similarly, Chinese joined tongs in the United States both to oppose the local merchant leadership and to profit from the organizations' gambling, opium, and prostitution enterprises. The secret societies also provided many of the same services -lodging, medical care, and dispute settlement -as the family and district associations.20

16 Act of March 3, 1891, 26 Stat. 1084. 17 See Charles J. McClain, Jr., "The Chinese Struggle for Civil Rights in Nineteenth-Century America: The

First Phase, 1850-1870," California Law Review, 72 (July 1984), 529-68; Janisch, "The Chinese, the Courts, and the Constitution," 296-314, 374-98, 581-653; Fritz, "San Francisco's First Federal Court," 343-77; Ralph James Mooney, "Matthew Deady and the Federal Judicial Response to Racism in the Early West," Oregon Law Review, 63 (no. 4, 1984), 561-644;John R. Wunder, "The Chinese and the Courts in the Pacific Northwest: Justice Denied?" Pacific Historical Review, 52 (May 1893), 191-211.

18 Victor B. Nee and Brett de Bary Nee, Long Time Californ'. A Documentary Study of an American Chinatown (New York, 1973), 64-65; Select Committee on Immigration and Naturalization, Chinese Immigra- tion, 398.

19 Stanford M. Lyman, "Conflict and the Web of Group Affiliation in San Francisco's Chinatown, 1850-1910," Pacific Historical Review, 43 (Nov. 1974), 473-99, esp. 482; Nee and Nee, Long Time Californ' 67.

20 Lyman, "Conflict and the Web of Group Affiliation," 484-90.

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100 The Journal of American History

The Chinese Consolidated Benevolent Association, more commonly known to white Americans as the Chinese Six Companies, acted as the local governing unit in San Francisco's Chinatown. The original purpose of the association, composed of representatives from all the district associations, was to arbitrate disputes within the Chinese community. Eventually, however, the Chinese Six Companies took on a broader role as advocate of the Chinese community in the white world. The or- ganization kept an attorney on retainer to contest anti-Chinese legislation and practices.21

Experienced white attorneys were willing to represent Chinese in the habeas corpus cases before the federal courts. Indeed, one of the complaints against the Chinese was that they hired the best legal talent. The Chinese immigration cases became a new specialty; although other attorneys tried to compete with them for this profitable business, a small group of six to eight attorneys handled practically all such cases before the district court. Attorneys could make between seventy-five and one hundred dollars per case, according to estimates sent to the United States attorney-general. Drawn by the profitability of the work and the expertise they had developed in the field, United States district attorneys who had appeared before the district court defending the collector's decisions to exclude Chinese often worked on the side of the Chinese after their terms in office ended. The Chinese litigants' ability to obtain representation was a key to their success in the federal courts.22

With the support of their community and attorneys, Chinese people brought their cases to the district court on writs of habeas corpus, claiming that they were being held on ships illegally because the collector refused them their right to land in the United States. In such cases the customs inspectors of the Chinese Bureau, a subdivision of the customs office, had already investigated the Chinese applicants on board and had made recommendations as to whether they fell under the Chinese exclusion laws and should be landed or deported. The collector usually accepted the recommendation of the inspector. Chinese who were denied landing could then appeal to the secretary of the treasury (as could non-Chinese under the 1891 act), but instead almost all went directly to court to challenge the collector's decisions.

When a Chinese man or woman petitioned the federal courts at San Francisco for a writ of habeas corpus, the judges felt bound to issue the writ and to hear the case. The fact that the case came before the court on a writ of habeas corpus had special significance. Literally, habeas corpus means "you have the body." A writ of habeas corpus requires the person detaining the petitioner to demonstrate to the court that the confinement is lawful. For the judges of the court, the writ of habeas corpus had an honored place in Anglo-American jurisprudence; it evoked the basic

21 Gunther Barth, Bitter Strength: A History of the Chinese in the United States, 1850-1870 (Cambridge, Mass., 1964), 79-102; Nee and Nee, Long Time Californ' 65-66. On the Six Companies' retaining of attorneys, see Alta California, The Alta California Commercial Edition (San Francisco, 1889), 23, 32; and Who's Who on the Pacific Coast (1913), s.v. "Stidger, Oliver Perry."

22 For the complaints, see, for example, Oscar Greenhalge to Walter Chance, March 11, 1899, Central Office Subject Correspondence, 52730/84, Records of the Immigration and Naturalization Service, RG 85 (National Ar- chives). On fees, see Leigh Chalmers to Attorney-General, Dec. 5, 1887, Letters Received, 980/84, Records of the Department of Justice, RG 60, ibid.; and Janisch, "The Chinese, the Courts, and the Constitution," 678.

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Courts and the Chinese Exclusion Laws 101

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W***.tMs The Chinese habeas corpus cases were so numerous and routine that

_1 _E~~~~~~~~~~~~~~E

attorneys for the Chinese developed standard petitions like this one. Courtesy National Archives, San Francisco Branch.

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102 The Journal of American History

principle of the liberty of the individual from the arbitrary acts of government. The Constitution forbade Congress to suspend the privilege of habeas corpus, except in "Cases of Rebellion or Invasion." And the privilege was not limited to citizens. Reconstruction legislation in 1867 expanded the privilege of habeas corpus, giving the federal courts broad powers to issue such writs in cases in which persons (not just citizens) were held in violation of the United States Constitution, laws, or treaties. When Chinese Inspector S. J. Ruddell suggested to the congressional Sub- committee on Immigration in 1890 that the problem of Chinese immigration could be solved by taking away the privilege of habeas corpus from the Chinese, Sen. Watson C. Squire of Washington wryly queried: "That would be a little inimical to the spirit of the Constitution?"23

The district court underJudge Hoffman had upheld the right of the Chinese to habeas corpus in an 1888 case, In rejung Ah Lung. In that case the collector of San Francisco, furious at the intervention of the courts, argued that the Chinese were not entitled to the writ of habeas corpus. Judge Hoffman indignantly rejected the collector's arguments, declaring: "The petitioner is a free man, under our flag, and within the protection of our laws." Hoffman went on to celebrate the historic writ: "Such an abrogation of the writ of habeas corpus, which has always been considered among English-speaking peoples the most sacred monument of personal freedom, must be unmistakably declared by congress before any court could venture to with- hold its benefits from any human being, no matter what his race or color."24

More apologetic spokesmen for the court emphasized that it had no choice but to issue the writs. Anxious to deflect the virulent public criticism of the court, United States commissioner for the court, Stephen Houghton, explained that "the courts are utterly powerless, under the law, to do different from what they have done. The Revised Statutes provide that, upon a proper application being made, all parties, except in certain excepted cases, and these cases don't come within the exception, are absolutely entitled to the writ of habeas corpus."25

Thus, when a petition was filed, the judges of the district and circuit courts invari- ably issued a writ of habeas corpus, which entitled the petitioner to a hearing in court as to whether he or she should be admitted into the United States. Although the historic writ of liberty got Chinese into the court, the proceedings before the court fell short of the due process celebrated in Anglo-American jurisprudence. The proceedings in the habeas corpus cases were "novel and strange," as United States AttorneyJohn P. Carey put it in 1890. "There is no criminal that has ever been sub- jected by order of court to things the Chinese have been subjected to in the enforce- ment of these acts," he said.26 Initially, Carey explained, the Chinese person was im-

23 Black's Law Dictionary, s.v. "habeas corpus"; U.S. Const., art. I, sec. 9; William F. Duker, A Constitutional History of Habeas Corpus (Westport, 1980), 189-94; Select Committee on Immigration and Naturalization, Chi- nese Immigration, 277.

24 In re Jung Ah Lung, 25 F. 141, 142-43 (N.D. Cal. 1885), afd, United States v. Jung Ah Lung, 124 U.S. 621 (1888). On the case, see Janisch, "The Chinese, the Courts, and the Constitution," 673-78; and Fritz, "San Francisco's First Federal Court," 37-38.

25 Select Committee on Immigration and Naturalization, Chinese Immigration, 345. Houghton was referring to 13 Rev. Stat. sec. 755 (1878).

26 Ibid., 364.

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Courts and the Chinese Exclusion Laws 103

mediately brought before the United States attorney for an examination, without his attorney. Carey's staff took down his statement and then released him on bail. The United States attorney could introduce and use the statement against the Chi- nese petitioner in court.

Judge Hoffman, who had authorized the procedure, had realized that such an extrajudicial proceeding would probably not stand if challenged. David Fisher, ex- aminer for the Department ofJustice, reported to the attorney-general that 'Judge Hoffman endeavored to impress very deeply on my mind the fact that he believed this 'Star Chamber' proceeding . .. to be absolutely necessary for the successful car- rying out of the provisions of the Restriction Act. He does not attempt, nor seek to defend the proceeding as a legal one, but he thinks that, so long as the Chinamen do not raise the question of the legality of the thing, the Government ought not to, but, to the contrary, ought to give it its sanction and encouragement."27

Hoffman and the United States attorney felt the special procedure was a necessary abrogation of due process that enabled the court to get at the truth of the cases. The usual court procedures did not work, government officials thought, for two reasons. One was the lack of documentation for the claims made by the Chinese. For example, petitioners claiming to be born in the United States and exempt from the Chinese exclusion laws had no birth certificates to prove their allegations of citizenship. Nor did laborers have proof of prior residence to establish their exemp- tion from the exclusion acts of 1882 and 1884. They had only witnesses, usually Chi- nese, to verify their claims.

That led to the second problem for the officials. It was widely believed, especially by exclusionists, that the Chinese and their witnesses lied in the proceedings. "They are all liars and have no regard for an oath so that there is no reliance to be placed in anything they say," complained Carey to the attorney-general in 1888. Commis- sioner Houghton agreed: "the Chinamen are very adroit people; they are not scru- pulous people at all in these matters; even the men who have good cases will swear to lies if they think the lies will help the cases on." Thus the collector and the United States attorney habitually cross-examined petitioners and their witnesses in great de- tail, trying to find discrepancies in their stories that would jeopardize their claims.28

Though it appears that the United States attorney had dropped the preliminary examination by the 1890s, the procedure employed by the court continued to be somewhat "novel and strange." In the 1880s the district and circuit courts had estab- lished a special system to handle the overwhelming number of Chinese cases coming before them. To free the judges to attend to the other business of the courts, the judges prescribed that the Chinese cases were to be referred to a United States com- missioner, who would try the case de novo. That is, the commissioner would come to his own decision about the right of the petitioner to land, independent of the collector's ruling. E. H. Heacock succeeded Houghton as United States commis-

27 David Fisher to Attorney-General, March 16, 1886, Letters Received, 980/84, Records of the Department of Justice.

28 John P. Carey to Attorney-General, Sept. 7, 1888, ibid.; Select Committee on Immigration and Naturaliza- tion, Chinese Immigration, 344.

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104 The Journal of American History

sioner for the courts and served as referee in the Chinese habeas corpus cases be- tween 1892 and 1910. As the referee, Heacock took testimony, made a finding of facts, and recommended that the court either discharge the petitioner, that is, allow him or her to enter the United States, or remand the petitioner to the custody of the collector for deportation.29

The customary trial procedures and rules of evidence were not applied strictly in the hearings before Commissioner Heacock. Though both the petitioner and the government were allowed to introduce evidence and to produce and cross-examine witnesses, the hearing was informal in many respects.30 The commissioner often took an active role in the hearing, requesting, for example, that the attorney for the petitioner obtain further witnesses when the commissioner was not satisfied with the testimony. More striking, however, is the type of evidence Heacock allowed. The district attorney, appearing for the collector, relied on intensive, detailed cross- examination to disprove the petitioner's claim that he was exempt from exclusion as either a merchant or a native-born citizen. In citizenship cases, for example, the petitioner typically claimed that he had been born in San Francisco but had left to live in China when quite young. To prove his claim, the petitioner would present witnesses who remembered his birth in the United States and who could identify the petitioner as the same person who was born here. The witnesses verifying his identity would claim that they had seen him in China with his family and thus could be sure he was the same person.

The district attorney, assuming that the claim was fraudulent and that the wit- nesses and the petitioner did not actually know each other, would subject them to questioning, often in incredible detail, about their visit in China. He would ask such questions as: How many steps were there out of the petitioner's back door? Where did the petitioner sit in the village schoolhouse? Did the petitioner's mother have bound feet? Who was present when the witness visited the petitioner's home? Did the petitioner accompany the witness to the door, or did he walk outside with him at the end of the visit? The questions were often about visits that had occurred several years earlier, and, not surprisingly, it was difficult to answer them with great accuracy. Furthermore, without the restrictions set by standard trial procedure, there seemed no limit to the type or number of questions the district attorney could ask. Practically any question was fair game.

In general, the petitioners' attorneys accepted the procedure, though attorneys new to the Chinese cases sometimes objected at first. When attorney Waldemar Tuska upset the usual routine of the hearings by objecting to each of the district attorney's questions as immaterial and irrelevant, Commissioner Heacock overruled almost every objection. He explained to the upstart that "in this class of cases the

29 The United States commissioners were given power to hear habeas corpus cases brought by Chinese im- migrants in 1888. Stephen Chase Houghton was appointed commissioner in the circuit court, Ward McAllister, Jr., commissioner in the district court. E. H. Heacock, appointed commissioner in 1892, heard such cases for both courts until 1910. Act of Sept. 13, 1888, 25 Stat. 476; Select Committee on Immigration and Naturalization, Chi- nese Immigration, 315, 342-43; San Francisco Examiner, March 18, 1910, p. 6.

30 The observations that follow were obtained from the transcripts of the hearings before the Commissioner Heacock, found in the district court case files, Admiralty Casefiles. See note 4 for details on methodology.

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Courts and the Chinese Exclusion Laws 105

examination is intended to be very full, and the questions are sometimes asked that are immaterial.'31

The court accepted this departure from normal procedure for the same reason that it had allowed the district attorney a preliminary examination of Chinese in the 1880s. That is, the judges and commissioners shared the belief that Chinese wit- nesses lied in the hearings. Commissioner Houghton explained the need to take tes- timony that might appear irrelevant: "It is difficult to get at the truth, particularly so for the reason that there have been so many of these cases running over a long period of time, and the Chinese have learned the routine thoroughly and they have drilled these men who come in here very thoroughly. . . . Now, in attacking the cases, the difficulty is this: If you cross-examine them on the lines they have testified about they are thoroughly fortified. You cannot catch them very well and therefore you must go into collateral matters."32

Although the type of evidence allowed in the hearings worked to the Chinese petitioner's disadvantage, Commissioner Heacock often decided in the petitioner's favor, largely because he adhered to the general principles of evidence in making his recommendation. Heacock's decisions hinged on the consistency of the tes- timony. If there were no discrepancies in the testimony, he followed the "general rule [that] positive testimony as to a particular fact, uncontradicted by any one, should control the decision of the court" and recommended the discharge of the petitioner.33 Often he was convinced of the veracity of the petitioner's claim. Some- times, however, he was more dubious but felt bound by the evidence.

Heacock abided by this general rule even though the United States Supreme Court had in 1890 suggested that a lesser standard could be adopted in the Chinese habeas corpus cases. In an appeal from the Circuit Court for the Northern District of California, the Supreme Court ruled in Quock Ting v. United States that the court could decide against the petitioner even though his testimony was uncon- tradicted. Justice Stephen Field reasoned that "there may be such an inherent im- probability in the statements of a witness as to induce the court or jury to disregard his evidence, even in the absence of any direct conflicting testimony," especially when the witness has a stake in the outcome of the case. In this case, the Court found the sixteen-year-old petitioner's testimony improbable because he was able to testify about the place of his birth (San Francisco) "with surprising particularity." The Court concluded that he could not have remembered those details on his own as he had not been in San Francisco since he was ten years old, and thus, that his tes- timony was "coached" and fraudulent.34

The Circuit Court of Appeals for the Ninth Circuit addressed the issue again in Wloey Ho v. United States in 1901 in an appeal from the District Court for the Northern District of California. The case was unusual because the judge, rather than

3' In re Wong Yen, no. 11359, 1897, U.S. District Court for the Northern District of California, Admiralty Casefiles.

32 Select Committee on Immigration and Naturalization, Chinese Immigration, 344. 33 Quock Ting v. United States, 140 U.S. 417, 420 (1891). 34 Ibid., 418, 420.

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106 The Journal of American History

Commissioner Heacock, had presided at the hearing. As a consequence, the hearing had taken on a different tone. Though well-known Chinese merchants gave positive, uncontradicted testimony that the petitioner was born in San Francisco, Judge De Haven impatiently refused to allow further testimony as to the reputation and credi- bility of the merchant witnesses and decided against the petitioner, saying:

It is not only a very reasonable presumption that a person of her descent coming to this country from China is a person born in China, but the statute makes it the duty of the Court to presume that she was born in China, and to require tes- timony that is entirely satisfactory to show that she is a native of this country. The Court need not be satisfied beyond a reasonable doubt, but must be satisfied that it is not being made an instrument for the evasion of these exclusion laws. ... I myself do not believe this testimony, and, not believing it, I do not think the Court should be required to found any judgement on it.

The circuit court of appeals upheld De Haven's decision. The court admitted that De Haven had not elaborated his reasons for disbelieving the testimony; thus the case came "nearer the border line, beyond which courts must not go." But the court held it could not "assume that the court below acted arbitrarily in refusing to believe the testimony of any witness." Before the appellate court reversed the judge, there would have to be clear evidence that the judge erred in some way.35

Despite those decisions, however, Heacock continued to make his recommenda- tions based on the general rule that positive, uncontradicted testimony required the release of the petitioner. If there were discrepancies, other factors, such as the seri- ousness of the discrepancies and the credibility of the witnesses, came into play. Heacock confronted the petitioner with the discrepancies and allowed him an op- portunity to resolve them. If the explanation did not completely resolve the dis- crepancy, Heacock might still discharge the petitioner, citing most often the "manner of testimony" or the "appearance of the witnesses" as reasons. The tes- timony of respectable members of the "merchant class" or of white witnesses often helped the petitioner's case as well.

Heacock's recommendations carried great weight in the final disposition of the case as the judge routinely confirmed his decisions. Either party could object to Hea- cock's findings and recommendation, and the judge would then review the tran- scripts of the commissioner's hearing. But the judge seldom reversed the commis- sioner, except in the few cases where the judge differed with Heacock on a matter of law. Occasionally, the judge referred the case back to Heacock, asking him to take

35 In re Woey Ho, no. 12099, 1900, U.S. District Court for the Northern District of California, Admiralty Casefiles; Woey Ho v. United States, 109 F. 888, 891 (9th Cir. 1901).

36 The rarity of such a reversal was highlighted in a newspaper article that noted (inaccurately), "This is the first time thatjudge Heacock's report in a Chinese case has been disaffirmed." See San Francisco Call, Feb. 3, 1898, p. 12.

37John Wise to Barry Baldwin, March 13, 1896, Correspondence from the Collector to Other Federal Agencies and the General Public, Records of the Bureau of Customs, Port of San Francisco, RG 36 (National Archives, San Francisco Branch); U.S. Congress, House, Facts concerning the Enforcement of the Chinese-Exclusion Laws, 59 Cong., 1 sess., May 25, 1906, pp. 101-2.

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Courts and the Chinese Exclusion Laws 107

Table 1 Disposition of Habeas Corpus Cases Brought by Chinese

District Court Circuit Court

Dischargea Remandb Dismissalc Unknown Dischargea Remandb Dismissalc Unknown Year (%) (%) (%) (%) N (%/0) (%/0) (%) (%) N

1891 73 23 3 - 30 63 27 10 - 206 1892 88 9 3 - 153 68 29 3 - 71 1893 66 33 1 - 308 6 94 - - 17 1894 80 20 - - 207 - - - - 0

1895 75 25 - - 36 - - - - 0

1896 89 11 - - 35 - - - - 0

1897 60 40 - - 42 - - - - 0

1898 49 50 .4 - 261 50 50 - - 2 1899 46 53 .5 .5 182 - - - - 0 1900 46 52 1 .5 177 - - - - 0 1901 52 45 2 .6 162 57 43 - - 7 1902 63 36 .4 - 242 69 31 - - 16 1903 60 40 - - 295 61 39 - - 23 1904 60 40 - - 127 77 23 - - 26

1905 29 68 - 3 31 - 100 - 1

a Court finds that the petitioner should be allowed to enter the- United States, reversing the decision of the collector.

b Court upholds the collector's decision to exclude and remands the petitioner for deportation. c Court dismisses the petition because, for example, the petitioner dies before the case comes for a hearing.

SOURCES: Admiralty Dockets, vol. 14-18, U.S. District Court for the Northern District of California, 1891-1905 (Archives Room, U.S. District Court, San Francisco, Cal.); Common Law and Equity Register, U.S. Circuit Court for the Northern District of California, ibid.

further testimony and to make a recommendation on the new evidence. In general, however, the judge accepted the commissioner's findings, on the grounds that as the fact finder, the referee was in the best position to evaluate things that did not emerge clearly from the transcripts of hearings, such as the credibility of witnesses.

Chinese generally fared well in the proceedings before Heacock. Until the late 1890s, the commissioner overturned the collector's decision to deny entry in more than 80 percent of the cases. The rate of reversal reached a low of 46 percent in 1899, but otherwise it averaged well over 50 percent until 1905. (See table 1.)

Heacock's method of investigating cases was quite similar to the collector's: both relied on detailed examinations to reveal discrepancies. Yet, as the statistics in table 1 reveal, they frequently came to different conclusions. They differed, claimed the collector and his inspectors, because Chinese immigrants had time to perfect their fraudulent stories by the time they came before the commissioner. Collectors gave accounts of intercepted "coaching letters" and of disreputable attorneys who used their right of counsel to visit their clients and to instruct them on how to testify. CollectorJohn Wise prohibited the detained Chinese in San Francisco from speak- ing with their friends or attorneys but claimed he could not prevent the coaching

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108 The Journal of American History

altogether, particularly when the United States marshal took the Chinese from his custody to attend their hearings before the court.37

There is no doubt that some Chinese made fraudulent claims. When the United States enacted the Chinese exclusion laws, it forced the immigration of Chinese laborers underground. Peasant families in the impoverished Kwangtung Province in China relied heavily on the financial contributions of their kin working in the United States, as well as in other foreign countries. Consequently, many families continued to send their sons to the United States after the passage of the restriction acts, relying on false papers and clan members already in America to help them land. At least eight thousand Chinese have admitted that they originally entered the United States as "paper sons."38

But it is impossible to gauge the full extent of illegal entry by Chinese while the restriction laws were in force. The contemporary sources asserting that the vast majority of Chinese, if not all, were in the United States illegally are suspect for their bias. By the time Congress had passed the Chinese restriction acts, Chinese had already been stereotyped as deceitful, cunning, and dishonest.39 Americans looked to find confirmations of their beliefs that Chinese were corrupt and thus probably exaggerated the extent of fraud. Chinese might possess "coaching papers" as part of an attempt to enter illegally, though even Chinese eligible to enter the United States legally may have used such papers to prepare themselves for the rig- orous, detailed questioning by the immigration inspectors and the courts.

Despite the possibility of fraud, however, the difference between the collector's and the commissioner's results was not due simply to coaching. The high reversal rate reflected the different institutional orientation and practices of the court and the collector as well. Of particular importance was the evidentiary standard em- ployed by each.

Although Congress made some stipulations about the evidence Chinese had to present to prove their claims, the secretary of the treasury, as the central adminis- trator of the Chinese laws, and the local collector of customs had the discretion to require other evidence as well. In 1897 the secretary of the treasury required wives and children of merchants to obtain certificates from the Chinese government proving their status, whereas earlier they simply presented witnesses to testify to the fact. In cases in which Chinese alleged that they were born the United States, the secretary also required a higher standard of proof than the court. In contrast to the court's standard of uncontradicted testimony, the secretary instructed the collector that "in no case should the applicant be admitted . . . unless the Collector is fully satisfied and the evidence presented is reliable and justifies such admission." Thus

38 See, for example, Wong Yow's account of his entry as a "paper son" in Peter C. Y. Leung, "When a Haircut Was a Luxury: A Chinese Farm Laborer in the Sacramento Delta," California History, 64 (Summer 1985), 211-17, esp. 212-13. A 1957 law provided that a Chinese who had entered as a "paper son" could not be deported if he had a parent, spouse, or child who was a United States citizen or a permanent resident alien. Act of Sept. 11, 1957, 71 Stat. 639. In response to this act, 8,000 Chinese had by 1969 confessed that they were paper sons. Thomas W. Chinn, H. Mark Lai, and Philip P. Choy, eds., A History of the Chinese in California (San Francisco, 1969), 28.

39 Stuart Creighton Miller, The Unwelcome Immigrant: The American Image of the Chinese, 1785-1882 (Berkeley, 1969), 29-31.

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Courts and the Chinese Exclusion Laws 109

the collector could deny entry to a Chinese applicant if he thought his story fraudu- lent, even though the witnesses' testimony was without discrepancies. The collector of San Francisco imposed further burdens on Chinese in citizenship cases, often re- quiring the testimony of two white witnesses to prove an applicant's birth in the United States.40

Thus the administrators of the Chinese exclusion laws used more stringent stan- dards than the commissioner or the judges. Most Chinese, particularly those with Section 6 certificates from the Chinese government-attesting to their exemption from the exclusion laws as specified in Section 6 of the Chinese Exclusion Act of 1882-succeeded in entering the United States. But those without documenta- tion-wives and children of exempt Chinese, Chinese born in the United States, and merchants returning to their businesses in California-who relied solely on the testimony of witnesses to prove their claims often ended up in the federal court.

In the courts, Chinese found a much more receptive forum. The collector at Port Townsend, Washington, perceived the importance of judicial evidentiary standards to the success of Chinese in the courts.

The rules of evidence . . . which seem to have been adopted by the courts, are not such as are used by the collector, and as a result, most of the Chinamen are admitted.41

In addition to adhering to more favorable evidentiary standards, the court pro- vided Chinese with basic procedural protections that the collector did not, such as the right to representation by an attorney. Attorneys had legal and practical knowl- edge crucial to the success of their Chinese clients. Well-versed in American legal discourse, attorneys understood how to frame their arguments and how to present evidence in the most favorable light. An extensive working knowledge of the col- lector's admission procedures, gained either through repeated litigation in the Chi- nese habeas corpus cases or through previous employment as district attorneys for the federal government, supplemented the attorneys' legal expertise. In contrast, the lack of counsel in the administrative hearings before the collector worked to the disadvantage of Chinese. The secretary of the treasury explicitly forbade Chinese the right to counsel until after the collector had examined and decided to exclude the applicant. Without an attorney to steer the inexperienced applicant through the confusing and detailed questioning, the chances of damaging discrepancies creep- ing into the testimony greatly increased.42

The court drew much attention and criticism from those who thought its deci-

40 Special Deputy Collector to R. P. Schwerin, Jan. 5, 1897, Correspondence from the Collector to Other Federal Agencies and the General Public, vol. 3, Records of the Bureau of Customs, Port of San Francisco; U.S. Department of the Treasury, Laws, Treaty, and Regulations relating to the Exclusion of Chinese (Washington, 1902), paragraph 88, pp. 51-52 (emphasis added): Special Deputy Collector to Henry Hogan, Feb. 4, 1896, Correspondence from the Collector to the General Public, Records of the Bureau of Customs, San Francisco.

41 J. C. Saunders to the Secretary of the Treasury, Jan. 3, 1894, Letters Received, 980/84, Records of the Depart- ment of Justice.

42 Frederick S. Stratton to the Commissioner-General of Immigration, Dec. 20, 1900, Correspondence from the Collector to Other Federal Agencies and the General Public, Records of the Bureau of Customs, Port of San Francisco.

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110 The Journal of American History

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San Francisco Cal/protested, "Why should the Collector keep a force of men at work questioning and examining Chinese who come to this port if his work can be un- done by the courts?" Some charged that the federal courts, especially in New York and Vermont, deliberately released Chinese because they found the Chinese exclu- sion laws unjust. Others, such as Ed Rosenberg, Secretary of the San Francisco Labor

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Courts and the Chinese Exclusion Laws 111

Council, alleged that federal judges' political connections disposed them to rule in favor of the Chinese.

The great majority of Federal judges are appointed and advanced through the influence of the trusts and corporations of the country, and these trusts and corpo- rations ... want cheap and servile labor ... what more natural than the Federal judges should, wherever and whenever possible, further the interests of those who befriend them?43

Most critics, however, hesitated to accuse the court of being intentionally pro- Chinese. Rather, they excused the court's actions on the grounds that a court of law had no choice but to apply objective standards, regardless of the case involved. Such observers tended to portray the court as the "dupe" of the Chinese. They laid the blame on the Chinese and their attorneys who "imposed" upon the dignity of the court by appealing to Anglo-American common law traditions to which, critics seemed to suggest, Chinese had no legitimate claim. One United States senator complained, for example, that any Chinese trying to enter the United States "un- hesitatingly commits perjury, [and] is set free, by the 'sacred habeas corpus' writ (a process unknown in Asia)." In a similar vein, the attorney-general warned that "processes of the courts are being abused" by "disingenuous claims and fraudulent devices." Thus, to the anti-Chinese forces and the policy makers, the court, as an institution, appeared a weak and ineffective enforcer of the Chinese exclusion laws. Hampered by legal niceties and traditions, the judiciary seemed unable to protect itself or American society from the intrusion of Chinese.44

If "law," as represented by the courts, stood in the way of stringent enforcement of Chinese exclusion, the critics agreed that only one thing could improve the situa- tion: remove the courts' jurisdiction to review the Chinese cases and expand the dis- cretion of administrative officials.

Critics of the courts turned to Congress to obtain legislation, similar to the Im- migration Act of 1891, forbidding judicial review in Chinese cases. They attached a rider to the 1894 appropriations bill that achieved their purpose. The new law provided that "in every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of the Treasury.' '45

Judge Morrow was only too happy to comply with the law. He dismissed the ha- beas corpus petition of a Chinese merchant, Lem Moon Sing, on the grounds that

43 San Francisco Call, April. 13, 1894, p. 6. For examples of the charge that federal judges thought exclusion unjust, see ibid, Jan. 18, 1898, p. 6; and U.S. Department of Commerce and Labor, Annual Report of the Commissioner- General of Immigration to the Secretary of Commerce and Labor for the Fiscal Year EndedJune 30, 1904 (Washington, 1904), 137. San Francisco Call, Oct. 24, 1897, p. 16.

44 San Francisco Call, Sept. 26, 1902, p. 1; Charles Garter to Attorney-General, Oct. 25, 1893, Letters Received, 980/84, Records of the Department of Justice; Congressional Record, 52 Cong., 1 sess., April 21, 1892, p. 3480; Attorney-General to Judge George Washington Ray, Nov. 23, 1903, Letters Received, 9473/03, Records of the Department of Justice.

45 Act of Aug. 18, 1894, 28 Stat. 390.

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112 The Journal of American History

the district court no longer had authority to review such cases.46 The court immedi- ately felt the effect of the new law. The number of petitions filed dropped dramati- cally from 207 in 1894 to 36 in 1895 and remained at that low level for the next two years.

But the inactivity did not last long, as Chinese realized that one class of cases- those of Chinese claiming to be born in the United States-was still open to the review of the court. The courts of the northern district of California had long recog- nized the rights of native-born citizens of Chinese descent. In 1884 the circuit court had ruled that, although Chinese could not become naturalized, Chinese born in the United States of Chinese parents were United States citizens and thus not sub- ject to the Chinese exclusion laws since "no citizen can be excluded from this country except in punishment for crime." The Supreme Court in 1898 adopted the same position and confirmed the rights of Chinese born in the United States.47

Not long after his decision in Lem Moon Sing, Morrow held that the 1894 "finality clause" did not apply to cases in which the Chinese person claimed to be a United States citizen. The judge explained: "The determination of the question in the matter now before the court, viz. whether Tom Yum is a citizen, as he claims to be, or is an alien, is the very fact upon which the jurisdiction of the collector de- pends. If he is an alien, then the collector has undoubted and complete jurisdiction, but, if he is a citizen, the authority vested in him by the provision, in unmistakable terms, does not empower him to finally pass upon the latter's right to come into this country."48

The collector of San Francisco deplored Morrow's decision as frustrating the in- tent of the 1894 law and predicted that there would soon be "a great influx of young- sters from China" claiming to be born in the United States. The collector warned that "the old farce will be re-enacted of the Collector being merely the middle-man between the Chinese and the Courts, without power to enforce the laws of Con- gress." True to the collector's predictions, in 1898 Chinese again began to resort to the court in large numbers (261 petitions were filed that year), claiming that they were native-born citizens.49

Thus, the battle over court jurisdiction was not yet over. Over the next seven years, 1898-1905, the administrative officials tried several strategies to minimize the court's influence in the enforcement of the Chinese exclusion laws. Since the court's evidentiary practices accounted for the decisions favoring Chinese immigrants, one solution was to persuade the court to adopt more stringent evidentiary standards. That approach was not very successful. Congress did not respond to the secretary of the treasury's appeals for legislation requiring the testimony of non-Chinese wit- nesses in citizenship cases before the court. Furthermore, the court rejected argu-

46 In re Lem Moon Sing, 158 U.S. 538 (1895). 41 In re Look Tin Sing, 21 F. at 910-11; United States v. Wong Kim Ark, 169 U.S. 649-75 (1898). 48 In re Tom Yum, 64 F. 485, 490 (N.D. Cal. 1894). 49 Wise to Secretary of the Treasury, Nov. 17, 1894, Letters Received, 5306/94, Records of the Department of

Justice. For the petitions, see Admiralty Dockets, vol. 16, U.S. District Court for the Northern District of California.

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Courts and the Chinese Exclusion Laws 113

ments made by the United States attorney in San Francisco that the court should consider only evidence taken by the Chinese inspectors.50

If the courts would not change their decision-making practices, administrative officials believed that they could gain control over the enforcement of the Chinese exclusion laws only by challenging the power of the courts to hear the citizenship cases. Consequently, they embarked on a program to redefine the roles of the courts and administrative officials.

The first step toward success, officials thought, was to transfer administration of the Chinese exclusion laws to the Bureau of Immigration, headed by the commis- sioner-general of immigration. The Chinese Bureau was just one part of the Bureau of Customs. The customs collectors supervised large and diverse offices and, officials alleged, could not give the Chinese Bureau the attention and energy necessary to a stringent enforcement of the laws. Thus, in 1903 administration of the Chinese exclusion laws in San Francisco was transferred from the port's collector to the com- missioner of immigration there. The commissioner-general of immigration in Washington, D.C., assumed the general supervision of the laws, subject to the re- view of the secretary of commerce and labor.5"

This administrative change entrusted enforcement of the Chinese laws to the Bu- reau of Immigration, an agency accustomed to operating free from court scrutiny. Since the Act of 1891 making the decisions of the bureau on the admission of non- Chinese immigrants final. the district and circuit courts in the Southern District of New York with jurisdiction over Ellis Island had rarely intervened in non-Chinese immigration cases. One New York federal judge commented in 1896, "If the Com- missioners [of immigration] wish to order an alien drawn, quartered, and chucked overboard they could do so without interference." Given the bureau's tradition of agency autonomy, it seemed likely that the commissioner-general would resist judi- cial review of Chinese cases.52

With the administration of the Chinese laws under the strong hand of the commissioner-general, Bureau of Immigration officials turned their attention to les- sening the power of the courts. They began by insisting that Chinese applicants should exhaust the remedies available through administrative channels before taking their cases to court. Though the statutes provided that Chinese denied entry could take an appeal from the decision of the collector to the secretary of the treasury, and as of 1903 from the commissioner of immigration to the secretary of commerce and labor, Chinese applicants preferred to appeal directly to the court. In the fall of 1903, on the attorney-general's instructions, United States attorneys at all ports requested federal courts to dismiss the habeas corpus cases of Chinese petitioners who had not appealed to the secretary of commerce and labor.53

50 U.S. Secretary of the Treasury, Annual Report of the Secretary of the Treasury on the State of the Finances for the Year 1896 (Washington, 1897), 798; San Francisco Chronicle, Sept. 24, 1904, p. 5.

51 Act of Feb. 14, 1903, sec. 7, 32 Stat. 825. 52 Thomas M. Pitkin, Keepers of the Gate: A History of Ellis Island (New York, 1975), 23-24. 53 See, for example, Attorney-General to George B. Curtis, Oct. 8, 1903, Letters Received, 11547/00, Records

of the Department of Justice; and San Francisco Chronicle, Sept. 24, 1904, p. 5.

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114 The Journal of American History

A few months later, the attorney-general decided to push for a final resolution of the issue. He instructed the United States attorneys to challenge allhabeas corpus petitions on the grounds that the decision of the Bureau of Immigration to allow or deny entry, subject to the review of the secretary of commerce and labor, was final and conclusive whether or not the Chinese applicant purported to be a citizen.54 The attorney-general's argument struck at the heart of the debate; if it was accepted, the courts would no longer review the findings of the administrative officials.

A case from New York in 1904 gave the officials a significant, though not a total, victory. The Supreme Court in United States v. Sing Tuck addressed the issue of "exhaustion."Justice Oliver Wendell Holmes, writing for the majority, held that the applicant must go through "the preliminary sifting process provided by the statutes ... before the courts can be called upon," even if he claimed to be a citizen. Holmes refused to decide whether administrative officers had jurisdiction to decide a Chi- nese person's citizenship and argued that it did not matter to his decision.55

Justice DavidJ. Brewer, withJustice Rufus W. Peckham concurring, rendered an ardent dissent. He argued that the finality clause of the Act of 1894 applied only to aliens, not to citizens. He assailed the majority opinion for allowing an inspector of immigration, "a mere ministerial officer," the power to decide whether a citizen could enter the country. Brewer cut through the arguments of the majority to sug- gest that racial prejudice lay behind the willingness to subject Chinese-American citizens to such "harsh and arbitrary" proceedings.

Must an American citizen, seeking to return to this, his native land, be compelled to bring with him two witnesses to prove the place of his birth, or else be denied his right to return and all opportunity of establishing his citizenship in the courts of his country? No such rule is enforced against an American citizen of Anglo- Saxon descent, and if this be, as claimed, a government of laws, and not of men, I do not think it should be enforced against American citizens of Chinese descent. 56

Justice Holmes explicitly left open the question of what action a court could take after the applicant had exhausted his remedies within the agency. Riding high on his successes, the attorney-general was eager to have the remaining question about judicial review settled as quickly as possible, and he pressed District Attorney Mar- shall B. Woodworth in San Francisco to set up a test case. Woodworth chose the case of Ju Toy, a cook from Oakland, California, who, upon his return from a visit to China, claimed to be born and raised in the United States. The district court, finding the petitioner's evidence of citizenship exceptionally compelling, ordered that Ju Toy be allowed to enter the United States.57

54 Attorney-General to Marshall Woodworth, Dec. 22, 1903, Letters Received, 19482/03, Records of the Depart- ment of Justice.

55 United States v. Sing Tuck, 194 U.S. 161, 170 (1904). 56 Ibid., 171, 177, 178. 57 Attorney-General to Woodworth, Nov. 25, Nov. 28, 1904, Letters Received, 19482/03, Records of the Depart-

ment ofjustice; In reJu Toy, no. 13397, 1905, U.S. District Court for the Northern District of California, Admiralty Casefiles.

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Courts and the Chinese Exclusion Laws 115

In 1905 the government appealed the district court's decision to the Supreme Court in United States v. Ju Toy and received a favorable opinion. Justice Holmes, again writing for the majority, disposed of the rights of Chinese-American citizens in a few, brief pages. He held that the decision of the secretary of commerce and labor was final and conclusive even when the petitioner alleged citizenship. "Due process of law does not require a judicial trial" for citizens entering the United States, said Holmes. The courts should abide by the decision of the immigration officials and dismiss all petitions for habeas corpus except those alleging that officials acted unlawfully or abused their authority.58

Justice Brewer, again dissenting withJustice Peckham, protested that "such a de- cision . . . is appalling." Not only did the Court condone the Bureau of Immigra- tion's procedure, "a star chamber proceeding of the most stringent sort," but also, in allowing the bureau to deportJu Toy, it sanctioned the banishment by ministerial officers of an American "guilty of no crime." Such an action "strips him of all the rights which are given to a citizen."59

With theJu Toy opinion, the government succeeded in cutting off the access of the Chinese to the courts. The district court in northern California would no longer investigate the right of a petitioner to enter the United States. When Chinese peti- tioned for habeas corpus afterJu Toy, the court routinely dismissed the petitions on the grounds that the detentions were lawful.

The Supreme Court seemed to open a door for procedural review, however, even while it prohibited the lower courts from a substantive review of the Bureau of Im- migration's actions. In 1908 the Court held that the lower courts still had authority to ensure that the bureau maintained certain basic procedures and afforded aliens a fair hearing.60 The lower courts were then called upon to venture into novel legal territory, to decide what due process was required in the new administrative state. Chinese, quick to pursue the new line of review, argued that due process required the Bureau of Immigration to adopt more courtlike procedures. The federal courts in San Francisco, however, refused to impose judicial procedures on the bureau, generally allowing it to follow its own practices. Though the courts' unwillingness to intervene after 1908 stood in stark contrast to their earlier record, the courts' ac- tions were not necessarily inconsistent. Judges had felt obligated to follow the courts' institutional norms and practices when they had decided the right of Chinese to enter the United States, but they did not believe administrative officials were bound by the same rules. Judges perceived the functions of courts and agencies to be different and to require distinct procedures. Furthermore, the judges in San Fran- cisco had never been anxious to hear the Chinese habeas corpus cases and were prob- ably content to let the Bureau of Immigration assume responsibility for Chinese ex- clusion.

The courts' abdication in immigration policy made it more difficult for many

58 United States v. Ju Toy, 198 U.S. 253, 261-63 (1905). 59 Ibid., 269, 268, 279. 60 Chin Yow v. United States, 28 S. Ct. 201 (1908). For an example of cases involving procedural review, see

Low Wah Suey v. Backus, 225 U.S. 460 (1912).

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116 The Journal of American History

Chinese to enter the United States, though some found other ways to challenge or evade the bureau's decisions. Chinese learned how to meet the bureau's strict stan- dards for admission or bypassed the inspection process by entering illegally. Bureau of Immigration officials remained frustrated by the persistence of the Chinese, com- plaining at one point that the law regulating Chinese immigration was "probably the most difficult piece of legislation to enforce ever placed upon the statute books."61 But, they were quick to admit, enforcement was much easier without the courts' involvement.

In the end, then, Chinese became subject to the same administrative discretion as other immigrants. That they were able to challenge the discretion for so long, and with such success, is largely due to the organization and persistence of the Chi- nese and their attorneys. They continually brought their cases before the courts, and they fashioned their claims according to Anglo-American legal traditions that courts found difficult to refuse.

The courts' allegiance to those legal traditions in the Chinese habeas corpus cases illustrates the power of the idea of the rule of law in Anglo-American jurisprudence. As E. P Thompson asserts in Whigs and Hunters, "law" presupposes "standards of universality and equality" that can temper the effects of even the most discrimina- tory laws. But the courts' decisons cannot be adequately explained by such a general notion of the rule of law, for the judges clearly departed from legal norms at certain stages of the Chinese hearings. They broke some procedural rules, allowing the con- stitutionally questionable ex parte examination before the United States attorney and the "novel and strange" hearings before the commissioner. But when it came to other practices -the granting of habeas corpus petitions and the application of judicial evidentiary standards-the judges were less willing to deviate from legal tradition. That leaves the perplexing question of why the judges chose to draw the line where they did.62

The answer may be that the judges and the commissioner considered the doctrine of habeas corpus and the principles of evidence closely tied to what it meant to be a court. Their conception of the court, although complex, undoubtedly embraced a key principle in Anglo-American thought, that courts should be independent of personal or political influence.

Certain legal procedures, such as the writ of habeas corpus and judicial eviden- tiary standards, were more important than others in maintaining judicial indepen- dence, or at least its semblance. As Judge Hoffman's vehement defense of the writ suggests, habeas corpus provided a powerful, historic symbol of the supremacy of law over the rulers. It promised that a government could not confine an individual without just cause and that the courts, as the ones responsible for issuing the writs,

61 U.S. Department of Commerce and Labor, Annual Report of the Commissioner- General of Immigration for the Fiscal Year EndedJune 30, 1909 (Washington, 1909), 127.

62 E. P. Thompson, W/higsandHunters: The Origin ofthe Black Act (New York, 1975), 258-69. I am indebted to Robert Gordon for bringing this issue to my attention. My thinking on this issue has been stimulated by the works of Douglas Hay, "Property, Authority, and the Criminal Law," in Albion's Fatal Tree; Crime and Society in Eighteenth-Century England (New York, 1975); Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago, 1981); and Thompson, Wihigs and Hunters.

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Courts and the Chinese Exclusion Laws 117

would guard against arbitrary government and preserve law from the influence of politics. So, too, the evidentiary standards were central to the ideal of judicial inde- pendence because they committed judges to decide cases on the evidence, not on intuition or personal belief. The judges and commissioner of the federal courts in San Francisco clearly felt a tension between their personal beliefs and judicial evidentiary standards. They all believed that Chinese lied in the proceedings, but judicial norms did not allow them to take that belief into consideration unless there was proof of the perjury. In one rare instance, Judge De Haven allowed his gut in- stincts to overcome evidentiary requirements. While the circuit court of appeals up- heldJudge De Haven's decision in Woey Ho v. United States, the appellate court warned that the case "comes nearer the border line, beyond which the courts must not go."63 By basing his decision on his personal belief rather than the evidence presented, De Haven threatened to cross the line distinguishing judicial indepen- dence from arbitrary power. The federal judges and commissioner in San Francisco were not often willing to transgress that line, perhaps because to do so would violate their notion of judicial duty and would undermine the conception of the court as an independent, neutral, and just institution.

Thus, though the judicial officers of the courts approached the Chinese habeas corpus cases with divided loyalties, the logic and the norms of the court as an institu- tion proved stronger than politics. The judges and the commissioner shared their contemporaries' negative, stereotypical view of the Chinese and supported the Chi- nese exclusion policy. Consequently, they allowed certain procedures that made it more difficult for Chinese to prove their claims. Yet the judges, and particularly the commissioner, also felt bound by judicial rules and norms that called for hearing and weighing evidence in individual cases, regardless of the litigants' Chinese birth or descent. In this instance, institutional obligations triumphed over personal loyalties.

63 Wloey Ho v. United States, 109 F. at 891.

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