Chinese+Excusion--David+McKenzie+paper

This paper was written by David McKenzie at DePaul University. I think you will find it most helpful in trying to understand the overall cultural framework within which the courts and legislatures addressed the questions of Chinese immigration. Evan (2/16)

**A Great and Growing Evil:** **in the Nineteenth Century**
 * Chinese Immigrants in America**

by David McKenzie copyright 2009

The issues of Chinese immigration and civil rights are not prominent ones today. The civil rights of Chinese immigrants and Chinese-Americans are probably not materially different from those of any other group, and where Chinese people are concerned, modern America is far more preoccupied with the Chinese who live in China than those who might want to move to the United States. The situation was radically different in the nineteenth century, though. Over the course of several decades, tens of thousands of Chinese immigrants came to the west coast of America, especially California, where they largely worked in mining, on railroads and in agriculture. Many of the issues of civil rights experienced by blacks at the time, and immigration challenges we deal with today, were part of the experience of these Chinese immigrants and of white America's response to them. As important and powerful as this story is on its own terms, it has ongoing significance as well. Court decisions from that time still have resonance today, and the rhetoric of demagogues of the past is echoed in modern groups like the Minutemen. The point of departure for this paper was the book **Driven Out: The Forgotten War Against Chinese Americans**, by Jean Pfaelzer (Random House, 2007.) This book, combined with class discussion of other civil rights issues, led to extensive independent research on court decisions that related to Chinese immigrants and the ways their rights were defined, re-defined, and curtailed. All legal cases cited below were taken from Lexis-Nexis. **Our Story Thus Far** In prior papers, the general conditions of Chinese immigrants in the period have been described, including white racism and mob violence, orchestrated campaigns by local governments to expel Chinese communities, and various legislative activities that restricted the rights of the Chinese. It is unnecessary to cover those same points in detail, but a review of the changing legal environment in which the Chinese fought to define and defend their civil rights is appropriate. The rest of this section is an amended and edited excerpt from the Week Seven paper. The Burlingame Treaty of 1868 created firm and friendly relations between the United States and China for the purposes of trade and general diplomacy. It encouraged Chinese immigration to the United States for work and study, but did not allow for naturalization. The net effect was to draw Chinese men to the West Coast as laborers, with the idea that they would contribute to the region's development before eventually returning home. Within a decade, however, migration patterns, economic stresses and racial bias had led to serious conflict in California over the presence of Chinese workers. Competition for jobs was intense, and in a pattern that repeats today, the immigrant workers were criticized because they were willing to work for less than white workers, while employers who built their businesses on immigrant labor largely escaped scrutiny. These racial and economic tensions led to a series of state and local laws being passed, which took on national significance as California’s importance grew. For example, San Francisco passed ordinances aimed at making life difficult for the Chinese, including the Sidewalk Ordinance (1870) which banned carrying things on poles, a common practice among Chinese laborers, and the Queue Ordinance (1873), which allowed jailors to shave the heads or remove the long braids of Chinese prisoners. Going to the issue of gender, the federal Page Act of 1875 banned the immigration of any Chinese women who were not the wives of merchants, while other laws forbade miscegenation. The effect here was to make sure that there would be as few Chinese children as possible, minimizing the “threat” of Chinese citizenship. A major episode was California’s Second Constitutional Convention in 1878. The Convention was undertaken for a range of purposes, but high on the list was the need to deal with issues surrounding Chinese immigration. There was a designated “Committee on Chinese,” and in due course the Convention produced and adopted Article XIX, specifically defining and limiting the rights of Chinese. Primary elements of Article XIX (which was repealed in 1926) were that no native of China could ever vote in California, and that corporations and state and local governments were not allowed to hire Chinese people. With anti-Chinese sentiment so powerful in California, both major national parties were able to agree to take action on the federal level. The first major step was the Chinese Exclusion Act of 1882, which amended the Burlingame Treaty and banned the immigration of Chinese workers, whether they were skilled, unskilled or employed in mining. The Act makes mention of allowing merchants, students and tourists, and as will be discussed later, the presence of a prosperous Chinese merchant class in San Francisco was a vital part of the ability of the Chinese to assert basic property rights. After the Act, Chinese population in California began to decline, although a good deal of illegal immigration persisted, due to ongoing demand for Chinese labor. Since the Exclusion Act did not apply to Chinese laborers who had entered the country legally before 1882, the fact that many laborers would return to China for a period of time before coming back to the United States meant that conflicts arose over legal and illegal immigration. Many of these immigration cases came before the California courts, establishing important precedents for the way America would handle immigration in the decades to come. The Exclusion Act was written to last for ten years, so the next major national move was the Geary Act of 1892. The Geary Act was more extreme, and its requirement that Chinese laborers carry special registration cards with them at all times to prove that they were legal residents led to it being called the Dog Tag Law. It gutted a whole range of legal protections for Chinese people, including the idea of presumed innocence, the right of habeas corpus, and other Fifth, Sixth and Fourteenth Amendment rights. In questions of migration the burden of proof fell to the Chinese, and more than that, in order to get their registration cards, they had to produce “one credible white witness” to prove that they were legally in the United States. When the Act went before the Supreme Court in the case of Fong Yue Ting v. United States et al, in 1893, the Court quickly sustained it. The Court went so far as to clarify that Congress had virtually unlimited power to exclude or expel immigrants, that expulsion hearings were not to be treated as trials, and that consequently standard Constitutional provisions and rights did not apply. The tortured logic of the situation was such that a Chinese merchant could not get a registration card, since he was not a laborer, but he could be arrested and expelled from the country on a presumption of guilt because he did not have the card. The Geary Act was modified in 1893 by the McCreary Amendment, which can fairly be considered draconian. It reaffirmed that a Chinese person was guilty until proven innocent, denied the rights to bail and habeas corpus, and established that photographic proof of identity was required by all legal Chinese laborers. Some of the most odious of these laws were undone by the 1920’s, but the Geary Act remained in force until Congress rewrote national immigration law in 1943 and repealed all Exclusion Acts. From that time forward, foreign-born Chinese were finally allowed to seek citizenship, although only 105 were allowed to immigrate each year. Further immigration reform had to wait until the 1960’s.

**The Empire and the Six Companies** At the center of efforts by Chinese immigrants to defend their rights were two very important forces; the Empire of China, and a coalition of Chinese merchants based in San Francisco formally called the Chinese Consolidated Benevolent Association, but generally referred to as the Chinese Six Companies. The Empire of China was a weak force internationally, and growing weaker as the years went by, but there was a formal treaty between the United States and China and even at its weakest, China was a significant trading partner with the U.S. These factors gave the Empire considerable legal leverage, and the Chinese government was able to pressure the federal government to provide protections for Chinese immigrants and on occasion, to successfully demand restitution for the financial losses of Chinese people due to riots, expulsions and arson. The membership of the Chinese Six Companies changed over time and they were competitors within the American Chinese community, but they organized to present a united front in dealing with government bodies and to face protests, riots and other non-formal threats. Their original purpose was to be the merchant leadership of the Chinese in America; to handle transit and imports, to serve the special needs of Chinese immigrants and find ways of selling their goods into the white market as well. Their position gave them enormous influence over the lives of Chinese immigrants and it would be a mistake to present them as simply benign organizations, but when it comes to asserting the rights of Chinese in America, the Chinese Six Companies were vital and effective. Their influence, power and wealth can be found in all the efforts by the Chinese to remain in America, to do business, to hold jobs, and to defend their rights and property. They funded lawsuits, hired prominent white lawyers, pressured government at all levels, and provided aid to Chinese people in distress. The Chinese Six Companies organized test cases for legislation they believed was unconstitutional, and when Chinese workers were deported, they made sure they returned safely to China. The Chinese Empire and Six Companies were very significant in the way Chinese people were able to assert their rights, and it is worth pointing out they represent forces that were absent in the black struggle for freedom and real equality. After Reconstruction, blacks in the south did not have the protection of centuries of international law that the Burlingame Treaty gave to Chinese immigrants, nor did they have the kind of financial support and leverage provided by the Chinese Six Companies. The steady reduction of black rights through the decades that followed would probably not have happened if black Americans had had the support available to Chinese immigrants. In Yick Wo v. Hopkins (1886), for example, an arbitrary and oppressive San Francisco ordinance meant to drive Chinese laundries out of the city was held to be in violation of the Fourteenth Amendment, and the United States Supreme Court pointed out that it existed for no reason except racial hostility. This was an important decision and one which is considered an early part of the creation of the concept of Rational Basis Analysis, but it was clearly not successfully applied in the South to the Jim Crow laws. It is a strange and cruel truth that this decision probably should have protected blacks from oppression in the South, but did not because they did not have strong advocates. At the same time, it did not end up protecting the Chinese either, whose rights were eventually stripped from them because they were not citizens, and neither the Chinese Empire nor the Six Companies were able to change citizenship law. **Driving Out the Chinese: Pogroms and Protest** Turning to the campaign to drive Chinese people out of California, it can be seen that it was rooted in racial and economic hostility to the new immigrants, and it began virtually from the moment of their arrival. This hostility waxed and waned over the years, receding somewhat in good economic times, and growing during downturns and as population pressures increased. It appeared in forms as blunt as personal violence and white rioting, and as calculated as discriminatory civic ordinances and national legislation. This section will take a look at the efforts of whites to drive Chinese immigrants out of their communities in ways that did not rely on legislation, and which were more immediate and in many cases more violent. From 1850 onward, Chinatowns developed in communities of all sizes throughout California. Wherever there was mining, railroad or agricultural work, there were Chinese workers and the merchants who supplied them with Chinese food, medicines and other items. In many places Chinese communities provided labor, goods and services to the white community as well. Linguistic and cultural barriers, reinforced by the automatic racism of the time, led to near-total segregation, of course, and there was little communication between whites and Chinese. In addition to providing valuable goods and services, Chinatowns were known for less positive traits as well. Existing at the edge of a frontier society, they became popular locations for the whole range of vices, including gambling, drugs and prostitution. The bulk of the customers of the vice industries were white, of course, and this was certainly a major part of the reason that Chinatowns were common. It also amplified hostility to Chinese, as racism made it easy to blame them for any number of social ills, and to claim that without the Chinese, there would be no vice. As racial and economic tensions grew, incidents of white violence against Chinatowns became more common. Many Chinatowns were burned down, only to be rebuilt, and personal violence and rioting were prevalent. Because of the influence of the Chinese Six Companies and their well-paid white attorneys, however, it was also common for Chinese people to sue for damages and to collect. This made it difficult to organize vigilante campaigns to drive the Chinese out of any town, and it is another example of the significance of the Chinese Six Companies; in the South, only the federal government had the power and (sometimes) the inclination to defend the rights and property of blacks against groups like the KKK. The lack of consistent legal protection devastated the black community in the South, but for a time the Chinese had better fortune in the West. By the mid-1880's, tensions were high all through California, and the city of Eureka conducted an official campaign to drive out all Chinese people in the area. The incident was set off on a Friday night in February of 1885 when a white city councilman was accidentally shot and killed by a stray bullet fired by a Chinese gangster. A white mob, led by the Mayor and the rest of city government, decided that they would immediately expel all Chinese. By Sunday evening, the entire Chinese community and some of their belongings had been forced onto a pair of steamships and shipped off to San Francisco. With the Chinese gone, the good citizens of Eureka proceeded to loot and burn the vacant Chinatown. With the assistance of the Chinese Six Companies, Eureka's exiled Chinese community brought suit for their losses, holding the entire city responsible for encouraging and enabling the mob action. The suit was called Wing Hing v. City of Eureka, and it was a great political success, discouraging cities from engaging in mass expulsions of Chinese people. It was also part of a successful effort by the Empire of China to win restitution from the United States government. It was a legal failure, however, as an unsympathetic California court found that the city could not be held responsible for mob action, and that the Chinese could not prove the extent of their losses. In cases like Wing Hing and many others, much of the anti-Chinese violence was rebounding on whites in the form of arrests and lawsuits, and it was not achieving the intent of expelling Chinese people from local communities. Eureka was free of all Chinese, but the lawsuit brought by the Chinese Six Companies was a strong deterrent to other cities. It was at this point that a new tactic arose in the city of Truckee, high in the Sierra Nevada Mountains, where arson had repeatedly failed to drive the Chinese out of the area. With anti-Chinese sentiment high but the Wing Hing lawsuit still working its way through the courts, Charles McGlashan, a lawyer and the editor of the //Truckee Republican// newspaper, hit on a method of expelling the local Chinese without running the risk of being sued. During the winter of 1885-86, he organized a large boycott, pressuring white citizens and businesses to stop dealing with the Chinese community. In addition to social pressure, there was wide use of veiled threats and modest use of direct intimidation, but McGlashan's movement was almost entirely legal. He used his newspaper to promote and coordinate the boycott, publishing the names of businesses that did not comply in a daily column called "Boycott the Traitors." The single greatest obstacle was getting employers to fire their Chinese employees, who were trained and capable, and worked for less than white workers. As was the case throughout this period, there was great demand for Chinese workers among employers in many industries, and in a parallel to the present, the Chinese laborers bore the brunt of public criticism for taking the jobs that were offered to them by white employers. The Truckee anti-Chinese boycott took several months, but it was utterly successful. Employers were bullied into compliance, some under threat of violence, and unable to find work or to run businesses, the Chinese left town. Truckee paid a major price, of course, because their problems did not vanish with the Chinese. Unemployment remained high, vice did not disappear, and in addition the city had lost businesses and skilled workers. The people seemed willing to pay that price, however, and McGlashan gained enough notoriety to form and lead the California Non-Partisan Anti-Chinese Association. Even as violence against Chinese communities continued, McGlashan successfully organized boycotts using the "Truckee Method" against Chinatowns throughout the state. The forms of protest that we admire are peaceful, benign, and dedicated to promoting ideas that we support, and boycotts have long been used in progressive political and social causes. The "Truckee Method" is a powerful reminder that tactics do not have a side, and can be used for almost any reason. The boycott, in and of itself, is a tool that can be used by anyone, regardless of the cause and independent of the ethics or morality of the people using it. The many arsons and mob actions were vivid and ugly parts of the campaign to expel the Chinese from California, but these boycotts, powered by racism, turned out to be the weapon that the Chinese could not defeat. By the end of the nineteenth century, the Chinese had largely been driven from the west coast of America, except for merchant communities in the Chinatowns of San Francisco and Los Angeles. **The Banker as Civil Rights Figure: In Re Tiburcio Parrott** As mentioned above, for many years Chinese immigrants were able to turn to the legal system for support when confronted with racism, whether in the form of vigilantes or unfair legislation. There were major and minor cases, but it could be said that every victory was significant, since each successful court case helped to secure the rights of all Chinese people in America. A good example of the way hostile legislation affected the Chinese, and of the constant risk of unequal enforcement, is seen in Ex Parte Ah Pong, from the Supreme Court of California in 1861. That year the California legislature created a Foreign Miners Tax, to reduce the presence of Chinese miners in the California gold fields. As was so often the case, this legislation was rooted in racism and economics. The gold fields were becoming more crowded and less productive, and to drive Chinese miners away and leave the gold for whites, an enormous tax of $20 per month (roughly $400 in modern terms) was levied on all miners who could not become citizens; in other words, the Chinese. This was harsh enough, but the language of the act went further and said that all non-citizens residing in mining areas were to be considered miners. Ah Pong was a washerman in mining country and was jailed for not paying the tax. Appealing to the California Supreme Court, his lawyers contended that while "it might be held that the Legislature had the power to license or tax all foreigners who mined, it has not the power to tax for mining those who do not mine." The logic of this is simple and direct, and the court agreed. It did not remove the Foreign Miners Tax, but it did allow Chinese to continue living and working in the mining areas. In one of the recurring ironies of racial tensions in California, as individual mining became less productive, major companies took over and began using expensive machinery to work the mines, and hired large numbers of Chinese laborers to do the work. A similar bit of logic made another big difference for Chinese immigrants in the case of People v. Awa (1865.) Awa was on trial for manslaughter, and presented a Chinese witness on his behalf. Chinese people were not allowed to testify against white people, so the testimony was excluded and Awa was convicted. On appeal to the California Supreme Court, the ruling was reversed, holding that the law was intended only to protect white defendants. The prosecution, it was held, was not a person in the sense of the law restricting Chinese testimony. Without this obvious-seeming ruling, Chinese people would have been unable to defend themselves in court in any meaningful way. Another case with broad and enduring implications, and which might have been a major breakthrough if it had occurred in the South, was the California Circuit Court's ruling In Re Tiburcio Parrott (1880.) As mentioned above, Article XIX of the California Constitution made it illegal for any corporation to hire a Chinese person. The state legislature had acted on this clause, and created criminal offenses for the officers of any corporation that hired someone Chinese, and on a second offense to have the corporation's charter revoked and to be forced into forfeiture. Tiburcio Parrott was the president and director of the Sulphur Bank Quicksilver Mining Company, and actually went to jail to provide this test case. The ruling, with opinions by the two most prominent California judges of the time, Ogden Hoffman and Lorenzo Sawyer, is extensive and thorough, quoting precedent that goes back to colonial America, and makes for fascinating reading. The core of the ruling was that the law was excessive and arbitrary, and that the punishments were out of all proportion. As to the way the law targeted Chinese people, Judge Hoffman wrote "It forbids the employment of Chinese. If the power to pass it exists, it might equally well have forbidden employment of Irish, or Germans, or Americans..." The court's refutation of the legislature's act and the part of the California Constitution on which it is based is comprehensive. In many ways, it clearly foreshadows Yick Wo v. Hopkins, the U.S. Supreme Court decision mentioned earlier, which prohibited legislation that was arbitrary or unreasonable, and clarified that the Fourteenth Amendment extended to everyone in the United States. In the larger struggle, however, the tide had turned against the Chinese. Even in this decision which protected the rights of Chinese immigrants, Judge Hoffman wrote "That the unrestricted immigration of the Chinese to this country is a great and growing evil... is an opinion entertained by most thoughtful persons." The public climate was so hostile that just two years later, the United States Congress passed the Exclusion Act and President Hayes signed it into law.

The court victories for Chinese immigrants in the cases mentioned above, and many others like them, are reassuring examples of the way the legal system is supposed to work. At the same time, though, opponents of the Chinese were adjusting their tactics and finding new ways of restricting Chinese rights. What had begun with broad, overambitious legislation like the Foreign Miners Tax and continued with harassment like the Sidewalk Ordinance, was growing into a carefully targeted, carefully executed national campaign to end Chinese immigration and sharply restrict the rights of any Chinese who remained in America. It should be noted that the demand for Chinese labor still existed, and that there were many Chinese communities on the west coast that were self-sustaining. As could be said of racist activity in the South, it is difficult to find any way that the anti-Chinese campaign was to the advantage of the United States, economically or socially. Instead, it seems to have worked only to the benefit of demagogues and racists. The progression of the anti-Chinese campaign through the 1880's is easy to follow in national legislation and Supreme Court decisions. The Exclusion Act stopped new immigration, but it allowed Chinese workers to go to China and return to the United States, which was seen as a loophole for illegal immigration. The Act was not very specific about what documentation would allow a Chinese laborer who was returning from China to enter the United States, so it was amended in 1884. When the amendment of 1884 was found to have some holes in it (Chew Heong v. United States, 1884) it was updated again in 1888 with a law that completely blocked the rights of Chinese to return to America once they had left. This was contrary to the terms of the Burlingame Treaty, but in Chae Chan Ping v. United States (1889) also called the Chinese Exclusion Case, the United States Supreme Court held that acts of Congress had the same validity as a treaty, and Congress could essentially overrule the Burlingame Treaty. Additionally, the act was made effective retroactively, so that Chinese who had left the United States with all appropriate paperwork and the belief that they could return were banned from the country. The ruling ignored or denied many of the principles that the court had stood by in earlier decisions, and in this court decision and others that followed, it is easy to see the outline of the court that would rule in Plessy v. Ferguson. With an effective ban on all legal Chinese immigration in place, the stage was set for the Geary Act, and what was effectively the final confrontation. **The Failure of Civil Disobedience** The usual image of civil disobedience in the history of civil rights is of Rosa Parks or Mahatma Gandhi, or groups of people gathered to peacefully protest in an unauthorized march or a sit-in. They are powerful examples and there is no question that civil disobedience has played an important role in the advancement of civil rights. There is a tendency to remember the successes and forget the failures, unfortunately. In the 1890's, long before Gandhi and Parks, the Chinese Six Companies led a powerful and unified campaign of civil disobedience against a particularly unfair and un-American law. In spite of the scope of the campaign and the degree of support it received, it was a complete failure. The cause of the campaign was the Geary Act of 1892, also called the Dog Tag Law, described earlier. One of the requirements was that every Chinese laborer get a registration card, and that the testimony of a white person was necessary to receive the card. The Chinese were given one year to acquire their registration cards. Offended and deeply troubled by the Act, and certain that it was unconstitutional, the Chinese Six Companies called for a complete boycott. Exercising their full influence over the American Chinese community, they reached out to the roughly 100,000 Chinese laborers in America at the time and pressured them to refuse to get the card. When the waiting period expired, on May 5, 1893, less than 15.000 people had registered. Supporters of the Geary Act were extremely upset, as there was absolutely no way to deport tens of thousands of non-compliant Chinese. It was an impressive achievement, and a remarkable statement of Chinese unity on the subject of the Geary Act. After all, any Chinese worker could have gone ahead and registered, and still received the benefit of the boycott if it succeeded. They were apparently held together by the deep wrongness of the Act, the influence of the Chinese Six Companies, and also by the certainty of the lawyers for the Companies that the Act was unconstitutional on multiple grounds and would be voided by the Supreme Court. With the waiting period over, the Chinese Six Companies went forward with their plans for a test case, and three Chinese men were arrested in New York on the charge of not having their registration cards. Their names were Fong Yue Ting, Wong Quan, and Lee Joe. It is significant that New York was chosen as the place for the arrests, since public sentiment in New York was not nearly as anti-Chinese as in California, and there would be extensive media coverage. Five days later, on May 10, 1893, the case was in front of the United States Supreme Court, and five days after that the court ruled. The ruling was a complete victory for anti-Chinese forces, and the end of the idea that Chinese immigrants were entitled to basic rights, whether under the Fourteenth Amendment or anywhere else. The ugliness of the decision is remarkable, as is the way the court discards precedents it had been setting across the previous three decades. In sum, the court held that Congress had total power over immigrants in the country, and that they were not entitled to the legal protections described in the Constitution; in effect, immigrants were not persons. The court also held that expelling someone from the country they had lived in for years could not be considered a punishment. The decision is lengthy and involved, and could reasonably be the subject of a paper all on its own. An example of one holding is as follows, and shows the attitude taken and the utter disregard for standard constitutional protections:
 * From Exclusion to Registration**

The provision of the Act of 1892, which puts the burden of proof upon a Chinese laborer of rebutting the presumption arising from his having no certificate, as well as the requirement of proof, by at least one credible white witness that he was a resident of the United States at the time of the passage of this Act, is within the acknowledged power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence in the courts of its own government. Three judges dissented from the ruling (Justices Brewer, Field and Fuller,) and their dissents are powerful and convincing refutations of the logic used by the majority. Citing everything from the Law of Nations to the Federalist Papers to Yick Wo v. Hopkins, the justices make their cases eloquently and point out the illogic and cruelty of the Act and the ruling, but that could have provided little comfort for the Chinese community. In the aftermath of the decision, Chinese resistance crumbled. Workers signed up for their registration cards or left the country, and the few remaining Chinatowns became far more isolated and insular. The Chinese Six Companies had lost all authority, and it would take them years to regain anything like their former influence in the Chinese community. It is a disheartening end to the Chinese effort to defend their rights to live and to work in America, but it was the end. **The Enduring Folly of Trying to Define Race** Stepping back from the specifics of the Chinese civil rights struggle, there is an underlying concept that must be addressed. The point has been made that the Constitution is theoretically color-blind, but that slavery and racism are woven into its very structure. In studying civil rights, the issue of race is dealt with constantly, and usually in terms that are absolute; a person is black or white, and his or her rights are defined by that fact. In southern states, bizarre laws were concocted to try to enforce that idea, going so far as to attempt to track various fractions of African ancestry, down to the idea that "one drop of black blood" made someone black. The ideas were very primitive, but they served to encode bias and bigotry into the law and into society, and to establish strong racial barriers. These early concepts of race were entirely about black and white, however, and the arrival of Chinese immigrants left the American legal system with a new set of problems. The racism of the time was powerful and rooted in a kind of pseudo-science that would seem ridiculous except that, even though it was long-ago discredited as science, it is still deeply embedded in American society. A look at the evolution, as it were, of the idea of race as it was applied to the Chinese, is as follows. In 1854, the Supreme Court of the very new state of California considered the case of The People v. George W. Hall. The basic facts in the case are simple and disturbing; in the gold-rich mountains of California, three white men attacked and robbed a Chinese miner. Hearing the struggle, another Chinese miner, named Ling Sing, went to help and was shot and killed by one of the white men, George Hall. The white men were arrested, and based on the testimony of a Chinese witness, Hall was sentenced to hang. The California Supreme Court overturned the conviction, however, and the Chief Justice, a 29-year-old man named Hugh C. Murray, wrote the decision. It is so appalling in the light of modern thinking that quotes from the decision are the only adequate way to describe it. In California's law at the time, as in the rest of the country, there were statutes in both civil and criminal law restricting the ability of Indians and Negroes to testify against whites. Specifically, in the criminal code it said "No Black or Mulatto person, or Indian, shall be allowed to give evidence in favor of, or against a white man." The challenge for Chief Justice Murray was to determine how this statute applied to Chinese people. Working his way through his own strange logic, he wrote of the time when concepts about race were first incorporated into law, long before California became a state. "Ethnology, at that time, was unknown as a distinct science, or if known, it had not reached that high point of perfection which it has since attained by the scientific inquiries and discoveries of the master minds of the last half century." After that observation, which would be amusing except for the power that lay behind its cruelty and folly, he considers at length the archeological opinions of the day, as to whether "Esquimaux" and American Indians were related to "Asiatics." He expresses concern that if racial terms like "Indian" were viewed as specific rather than generic, it might lead to what he refers to as "most anomalous consequences," describing an apparently nightmarish world in which non-whites would be able to testify against whites. He decides that "To argue such a proposition would be an insult to the good sense of the Legislature." It is clear to him that the ban on black and Indian testimony exists to protect white citizens from "the corrupting influences of degraded castes," and that the Legislature would not do this by "excluding domestic negroes and Indians, who not unfrequently have correct notions of their obligations to society, and turning loose upon the community the more degraded tribes of the same species, who have nothing in common with us..." He comes at length to the conclusion that the term "white" specifically excludes all other colors, or as he refers to them, "inferior races." Having proven his point to his own satisfaction, if not history's, he observes "The same rule which would admit them to testify, would admit them to all the equal rights of citizenship, and we might soon see them at the polls, in the jury box, upon the bench and in our legislative halls." He stops before considering the possibility that a "mulatto" might one day occupy the White House, but except for that one point, he does a fair job of describing what the modern world would call progress. One could ask if this kind of logic could last very long, and the answer is Ah Yup. That is, the decision titled In Re Ah Yup, from the Circuit Court of the District of California, written by Judge Lorenzo Sawyer, who often had a fairly sympathetic view of the legal rights of Chinese immigrants. The decision dates from 1878 and is written in less odious language, but the logic and conclusion are very much the same. The question before the court is whether Ah Yup, "a native of China of the Mongolian race," could become a citizen of the United States. Coming at a time when national law on race was making some progress, it was the first application made by someone born in China to become a U.S. citizen, and it was considered carefully. Ethnology had apparently made some advances, as Judge Sawyer turns to Webster's dictionary and the New American Cyclopedia for assorted classifications of race by some "scientists" of the day. As with People v. Hall, the ideas presented would seem like comedy if not for their importance. Various theories are presented briefly; Blumenbach saw five races, derived from Buffon's work, which focused on complexion, hair and skull shape, while Linnaeus made four divisions based purely on skin color, and Cuvier used the three-race system of Caucasian, Negro and Mongolian. (Disturbingly, Cuvier's system was being taught in California schools in the early 1960's.) Based on the available science and the state of the racial discussion of the time, including ideas considered in the U.S. Senate during debate over the Fifteenth Amendment, Sawyer came to the conclusion that Chinese people could not become citizens. Considering one part of the Revised Statutes that was clearly written to exclude some classes from citizenship, he writes "it is difficult to perceive whom it could exclude unless it be the Chinese." When considering Sawyer's decision, it is necessary to point out that a close reading of the Thirteenth, Fourteenth and Fifteenth Amendments leads one to the conclusion that it was correct in terms of the law, and that legislators of the time had no intention of allowing Chinese people to become citizens. The Thirteenth Amendment ends slavery, and nothing more. The Fourteenth grants citizenship to those born in the U.S. and those naturalized, and provides its famous protections to all persons, but makes no mention of color at all. Finally, the Fifteenth Amendment guarantees the right to vote to all citizens, regardless of color. In all of that, there is no indication that citizenship is to be expanded. As quoted in the decision, the Revised Statutes of the era specifically extend citizenship to persons of African birth and descent, but do not go beyond that. Clearly, sadly, if the legislature had wanted to create color-blind citizenship, it could have done so. It is a reminder of the many forms of racism, and how society might make progress in one area even as it stagnates or regresses in others. Surely, though, in later decades and in more settled and civilized areas, ideas about race would be more sophisticated? Ah, nope. In 1894, Judge Colt of the Circuit Court for the District of Massachusetts issued In Re Saito. That Saito was Japanese and not Chinese, a significant distinction to Saito, was not considered relevant by the court. Judge Colt had read In Re Ah Yup and said it was "a well-considered opinion," but he went somewhat further and based his decision on even more elaborate ideas about race. He finds a Professor Huxley's concepts of race "the most satisfactory;" Huxley focuses on skin color and other physical characteristics in defining race. His system also distinguishes between people who are Xanthochroic (fair-skinned whites of Northern Europe) and Melanochroic (dark-skinned whites of Southern Europe.) One suspects that this system was especially attractive to the judge because of the waves of Southern European immigrants arriving in America; Huxley's system gave a fair-skinned white man yet another group to feel superior to. Even in the wake of the progress of the latter half of the twentieth century, one must think carefully about these decisions. There is still extensive use of the word "race" in American law, and one wonders to what degree the above ideas have truly been removed from American law books. There is a wide gap between court decisions that forbid discrimination based on race, and court decisions that would establish that race is a relic, an idea that was based on bad science and poor understanding. In the Week Eight paper, I wrote the following: Our ideas about race, and about all the races and hyphenated people (Anglo-Hispanic, Siberian-American, whatever,) were shaped by the deep ignorance of prior centuries. When people defined the different races (and in those days we were all either Caucasian, Negroid or Mongolian,) they understood almost nothing about genetics. The "scientists" of the time were preoccupied with minor issues like skin tone, hair type, and what they called "eye shape." What all that comes down to, of course, is melanin content in the skin, the color, curliness and thickness of hair, and the presence or absence of epicanthic folds around the eyes. These are all ridiculously minor issues, and have never been connected scientifically to any more significant attributes. While these traits never actually meant anything, they did serve as convenient markers to give a false legitimacy to the biases and foolishness of the 18th and 19th centuries. Differences in language, culture and technological sophistication could all be lumped together and attributed to these simple visual cues, and allowed white people of the time to feel extremely good about themselves. It must be pleasant, after all, to define the world in terms of superiority and inferiority, and then to place yourself at the top of the heap. The dim, small, self-aggrandizing nature of these ideas of race is visible in a special exception that was made. The people of India, many of them extremely dark-skinned, had built countless magnificent stone palaces and temples, so glorious and sophisticated that no one could claim that they were produced by an inferior race. The solution, of course, was to declare Indians Caucasian. This was quite ridiculous for a racial system based on skin color, but necessary for people who were advocating total Caucasian superiority. And by the way, I learned all of this nonsense when I was in elementary school. In spite of how silly all this is, and the many things we now know about genetics and what it is to be human, we still refer back to these ridiculous ideas about "race" and use them to define ourselves and others. We still claim that a person of mixed African and European ancestry is black, as some kind of throwback to the primitive and cruel ideas of 19th century Mississippi, and the concept that "one drop of black blood" made you black. The fact that there is no such thing as black blood or white blood or any other racial kind of blood, is obvious. Of course, it is hard to despise someone or feel superior to them based on actual differences in blood; blood types are difficult to get excited about, and a bigot can hardly wait for a blood test before deciding who to hate and who to look down on. Because we still use these ideas, though, we continue to stigmatize and divide ourselves, and to focus on differences that separate, like skin color, rather than differences that can unite us; anyone can share in all the world's countless magnificent types of music, for example. Continuing to base our understanding of our differences and our identities on ignorant, obsolete ideas like race is as if we had our weathermen prepare their forecasts with the aid of animal sacrifices and the reading of entrails. The whole idea of race should be obsolete, and it is time for us to move past it.

One would hope that in the coming years, America would find a way of solving the problems created by the race-related malice and folly of the past, while pushing our society toward an understanding that race does not exist in any meaningful genetic way, and that whatever our ethnic and cultural variations, we are all simply humans. **Conclusions** The story of the struggle of Chinese immigrants in the nineteenth century stands on its own merits, but it also has many modern echoes. It is a cautionary tale about how this country treats immigrants, what rights we provide or deny to people, and what can happen when the majority turns on a smaller, weaker group. Rulings on how the Fourteenth Amendment applies to immigrants have interesting resonance in a time when a special prison at Guantanamo Bay exists entirely to house a class of people called "enemy combatants," and on a broader scale, they continue to shape the way we deal with modern immigration. Recent cases are often complicated and emotionally difficult; children born in the United States to parents who are illegal immigrants slated for deportation, other children brought illegally into the country at an early age who have known no other home, but are subject to deportation anyway. There is also something stunning about what is revealed by the variety and extent of racist activity in the nineteenth century. Comparing what happened in the South to what happened in the West, similar kinds of hate and fear are seen, and the idea of white superiority is absolutely embedded in the thought of the period, whether in a barroom in Eureka, California, a mansion in Atlanta, or the official decisions of the courts. There is another interesting subtext here as well, when one considers the Chinese experience and the ideas of black activists like Marcus Garvey and Booker T. Washington. Washington stressed the idea of black financial independence, which is something that the Chinese Six Companies provided for the Chinese community in America. Garvey, on the other hand, talked about nationalism and the need for black Americans to have a nation somewhere that would help to protect their rights. The parallels are clear, and one must infer that Washington and Garvey were watching the experience of the Chinese in America, and were aware of the advantages that they received from the Burlingame Treaty and the Chinese Six Companies. Additional research into this area would be needed to prove the point, but it is worth noting that Garvey wrote for a journal called African Times and Orient Review, published by a man named Duse Mohammed Ali, who became a long-term associate of Garvey's. Given that the emphasis in the class was on the history of black civil rights and my own work has been focused on the experiences of the Chinese, the contrast of the two stories is poignant. Blacks came to America in early colonial times, and they came unwillingly, while the Chinese were fairly late arrivals, and came enthusiastically. Both groups dealt with high degrees of racism and hostility, and were confronted with the bad science that supported ideas about white superiority. And over the course of their long struggles for equality, each group was lacking something that the other had. Blacks were citizens and had constitutional protections for the right to vote, but they lacked financial strength and the effective legal support necessary to make those rights a reality, while the Chinese had money and powerful lawyers, but could never become citizens. Over time, the racist and economic forces arrayed against them were able to exploit these critical shortcomings, and deny these two groups of people the rights they deserved, and the lives they had a right to lead. In closing, the single greatest concern for someone who cares about this country is contained in the way this story shows how a stable democracy can go utterly astray. As mentioned earlier, there was no threat to the United States here. If limitations on immigration were desired, they could certainly have been applied well short of a corrupt piece of legislation like the Geary Act. Instead, an extended pogrom was conducted, across decades, based on ignorance and racism. Countless potential advantages were lost when this group of people, with their skills and traditions and international connections, were hounded out of the country or into isolation. That we are still capable of this kind of behavior has been made painfully visible in recent years, and warrants careful thought.