Three—
Testing Tolerance: Chinese Exclusion and the Ninth Circuit

Judge Ross may not be an expert billiard player but he has demonstrated his ability to handle the cues adroitly.
Unattributed newspaper article, scrapbook of Erskine M. Ross

Westerners responded to the massive wave of Chinese immigration in the late nineteenth century by pressing Congress into adopting a series of ever-stricter exclusion laws. In the first decade of exclusion, which began in 1882, the western federal courts did much to protect Chinese litigants from unjust application of the law. After the creation of the circuit courts of appeals in 1891 and the passage of stricter anti-Chinese immigration laws in 1888 and 1892, this somewhat favorable judicial treatment of the Chinese ended. No longer did the western federal courts release hundreds of Chinese on writs of habeas corpus. The Ninth Circuit played the paramount role in adjudicating cases arising under national anti-Chinese laws. The Ninth Circuit may have had a greater impact on the enforcement of anti-Chinese legislation than any other court, arguably including the Supreme Court itself. The court's jurisprudence on exclusion, and its apparent shift from the tendencies of earlier western federal judges, had a direct effect on restricting the arrival of the Chinese during the late nineteenth and early twentieth centuries. A combination of factors produced this result: the altered legal context in which cases arose; the new jurisprudence of judges appointed in the 1890s; and the institutional setting of the circuit court of appeals.

I. The Chinese "Influx" and Congress's Legislative Reaction

From the time gold was discovered in California in the 1840s, Chinese immigrated to the West in search of the same riches and employment

opportunities that attracted settlers from all over the United States and the rest of the world. After the first three disembarked in February of 1848, the Chinese arrived in ever-growing numbers. By 1850 the census listed 1,000 Chinese immigrants; by 1860, 35,000. By 1880, when the total reached its nineteenth-century peak, more than 100,000 Chinese lived in the United States, almost all of them in the Far West. From the beginning the Chinese suffered numerous indignities at the hands both of white Americans and of other immigrants, indignities that ranged from cruel vigilante justice to harsh municipal ordinances that singled out persons of Chinese descent.^[1]

Much of this early "legalized" racism occurred in the mining camps of the Sierra Nevada, where by 1860 nearly two-thirds of all the Chinese in California resided. Part of the intolerance undoubtedly stemmed from competition for ore; part from basic differences in appearance and manner that alienated non-Chinese. Some of it also derived from a crucial difference between the experience of the Chinese and that of other recent arrivals. Having arrived with no intention of returning, the Irish and Germans, Catholics and Protestants, all experienced the displacement and frustration of uprooting their lives on a false promise of hope in a new country. For these groups the bond of a shared fate helped to transcend language and religious barriers. All immigrants suffered the disappointments and harsh realities of mining life, of course, but the psychological impact may well have been less severe for the Chinese, at least in the early years, since most had immigrated with the intention of returning to China. The perception of these differences, real and imagined, hardened in the rough-hewn social organizations that evolved in mining camps. White miners foreclosed the most advantageous opportunities to the Chinese but permitted them second-class status, whether as cooks or as purchasers of purportedly spent claims. Because the Chinese were willing to take on these less-desirable tasks, total exclusion was economically untenable.^[2]

As the mines of the Sierra Nevada ceased to yield enough even for those Chinese who lingered to work low-grade sites, a new financial opportunity surfaced with the construction of the transcontinental railroad. The Central Pacific's initial labor problems evaporated when Charles Crocker hired thousands of Chinese who efficiently and economically tunneled mountains and laid track. From a project that seemed destined to ruin the Central Pacific, the road to Promontory Point turned into a major triumph. Impressed by Crocker's success with Chinese construction crews, another of the Big Four, Collis Huntington, decided

to use Chinese labor in the 1870s to construct a southern transcontinental railroad through Arizona.^[3] Western states also offered the Chinese alternatives to the hard labor associated with mines and railroads: many early Chinese settlers worked in service sectors, including mercantilism, laundries, restaurants, and agricultural produce sales. These opportunities combined with mining booms in the West to lure Chinese immigrants.

Nationwide, the Chinese numbered 105,465 in 1880, 95 percent of whom resided in states or territories that would compose the Ninth Circuit in its 1891 configuration. And there would have been even more had the economic decline of the 1870s not caused significant repatriation. Between 1877 and 1880, the number of Chinese leaving the United States nearly equaled the total arriving. Moreover, those Chinese who remained in the country were increasingly subjected to harsh discrimination on the theory that their willingness to work for lower wages deprived whites of jobs—a complaint that animated anti-Chinese sentiment for the next fifty years. Without empirical data to support or refute this argument, proponents of Chinese immigration struggled unsuccessfully to combat chauvinism.^[4] One nineteenth-century description captured the prevailing assessment of the Chinese "problem" and the racist feelings that motivated it:

As a class, [the Chinese] were harmless, peaceful and exceedingly industrious; but, as they were remarkably economical and spent little or none of their earnings except for the necessaries of life and this chiefly to merchants of their own nationality, they soon began to provoke the prejudice and ill-will of those who could not see any value in their labor to the country.^[5]

Californians expressed their resentment of such behavior in a series of discriminatory laws enacted by the state legislature. In 1879, the Golden State went so far as to pass a referendum against Chinese immigration by the overwhelming majority of 154,638 to 883. Anti-Chinese movements also flared up in Nevada and in other communities throughout the West.^[6]

With the national economic downturn of the 1870s, these statewide sentiments spread throughout the region, and Congress began to debate the drastic measure of excluding the Chinese from the United States. Business and Protestant clerical interests, who had favored Chinese immigration, began to withdraw their support in the face of fears that China's vast population would migrate en masse to the North American continent. President Rutherford B. Hayes, however, feared that unilat-

eral action by Congress would force an abrogation of preexisting treaty relations with the Chinese and expose American citizens in China to retaliation. In 1880, the United States negotiated a treaty with China to establish terms for regulating future Chinese immigration. Article I provided that "[w]henever in the opinion" of the United States the arrival of Chinese laborers "affects or threatens to affect the interests of that country . . . the Government of the United States may regulate, limit, or suspend such coming or residence, but may not absolutely prohibit it." Upon ratification of the treaty, Congress promptly passed a bill to ban Chinese immigration for twenty-five years, but President Chester A. Arthur vetoed it on the ground that it exceeded the treaty's mandate.^[7]

In 1882 the executive and legislative branches compromised to enact the first exclusionary immigration law in the country's history. This statute suspended all immigration of Chinese laborers for ten years and prohibited federal and state courts from admitting any Chinese person to citizenship. By procuring a certificate at the port of departure, Chinese residing in the United States could safely return to their homeland without losing the right to reenter the United States. Congress purported to justify these measures in a cruelly ironic preamble to the law, which declared that the presence of Chinese laborers "endangers the good order of certain localities within the territory thereof." The legislature thus blamed the victims for inciting, by their very existence, the anti-Chinese attacks.^[8]

Though popular, the 1882 exclusion law proved difficult to administer; charges of corruption, graft, and ease of evasion pervaded the certification process. In response to these complaints and criticisms that the restrictions did not go far enough, Congress enacted further exclusion legislation in 1884. The new law retained the prohibition on citizenship and the suspension on Chinese-laborer immigration, and where the 1882 law excluded unskilled laborers, the 1884 amendment added skilled workers and miners as well. These discriminatory laws fueled vigilantism by whites throughout the West. In the mid-1880s, mass anti-Chinese demonstrations were staged in Tacoma, Portland, Santa Barbara, Pasadena, Santa Ana, Los Angeles, Sacramento, Chico, Nevada City, and Oakland. In 1886 an anti-Chinese state convention convened in Sacramento to petition the United States Congress for an absolute prohibition on Chinese immigration. In these and other western cities, locals hustled Chinese into the countryside or shoved them onto boats headed for China.^[9]

The intensity of this widespread vigilantism convinced the Chinese government of the need to reach an agreement with the United States

about the restriction of Chinese immigration. In an 1886 draft treaty, China tentatively consented to prohibit its laborers from emigrating to America. Before this pact was consummated, Congress drafted comprehensive exclusion legislation, and when the Chinese government failed to formalize its initial agreement with the United States, Congress passed the exclusion bill anyway. Apparently yielding to popular support for the measure, President Grover Cleveland signed the 1888 Chinese Exclusion Act, thus breaking precedent, for his predecessors had vetoed legislation that exceeded the scope of treaties in force. Two northern California legislators who strongly advocated this law, Joseph McKenna and William W. Morrow, would later serve as federal judges charged with interpreting it.^[10]

The 1888 statute excluded all Chinese from entering the United States except those deemed to be in privileged classes, such as officials, teachers, merchants, or travelers. Congress authorized entry of these persons if they provided a certificate from the Chinese government confirming their classification. This certificate requirement also effectively prohibited Chinese laborers who had been legally admitted under earlier laws from reentering after 1888. The 1888 law did not alter the ten-year duration of the original exclusion, due to expire in 1892. With the Geary Act of 1892, however, Congress extended the immigration ban for another decade and further tightened the restrictions on Chinese laborers by requiring those lawfully in the United States to hold certificates proving their right to remain. Unless good cause were shown and proper proof of residence provided by at least one non-Chinese witness, any person found without such certificates was to be deported. Congress also provided for a grace period of six months during which Chinese residents were expected either to obtain their residence certificate or to leave the country.^[11] In court, Chinese litigants failed to defeat the resident certificate requirement. After the grace period elapsed with substantial numbers in noncompliance, Congress extended the registration period for another six months rather than confront the administrative costs and burdens of strictly enforcing the deportation provisions of the 1892 law.

Perhaps out of concern for its natives who were subjected to draconian measures in the United States, perhaps because of antipathy expressed by judges such as Ross, the Chinese government assented to the harsh measures imposed by the 1888 and 1892 acts, signing a treaty with the United States in 1894. This treaty stayed in force until 1904, when the Chinese government declined to renew it. By the turn of the century, therefore, the Chinese exclusion acts had imposed a comprehensive

statutory framework for halting the flow of Chinese into the country.^[12] The realization of Congress's apparent aims would depend on how the federal courts, and particularly the Ninth Circuit, adjudicated questions arising under these laws.

The Chinese exclusion laws enjoyed widespread support throughout the late nineteenth and early twentieth centuries, and U.S. attorneys and immigration officials enforced them zealously. After the Supreme Court in 1889 rendered a popular decision by sustaining the constitutionality of the 1888 Chinese Exclusion Act, the numerous issues associated with administering the anti-Chinese laws came to demand a great deal of the Ninth Circuit's attention.^[13] Although these cases established few enduring constitutional principles, they significantly affected the lives and livelihoods of thousands of Chinese. As the San Francisco Examiner wrote:

The Chinese have always had a warm affection for the Federal courts and an equally marked dislike for the Custom House. If they could have their way every coolie who tried to enter the country in violation of the Exclusion Act would have his case passed upon by the Supreme Court of the United States. The courts have become weary of having their calendars blocked by the applications of On Dek, Wah Fat Lung and their various cousins for admission as California pioneers, and have decided to leave the work of sifting where Congress put it. In the course of thirteen years of experiments we have succeeded in making the Golden Gate pretty nearly coolie-tight. If we could be equally successful on the British Columbia and Mexican borders the Chinese problem would cease to disturb us.^[14]

II. The Western Federal Courts and the Chinese

Passage of the 1880s Chinese exclusion acts meant more work for the federal judiciary, and not just because of the "warm affection" the Chinese had for it. A variety of circumstances combined to put the "Chinese problem" primarily before federal tribunals. State courts interpreted the Commerce Clause of the United States Constitution to impede early state restrictions on the Chinese. The California Supreme Court upheld one discriminatory measure—an alien miners' license fee of twenty dollars per month—but it generally struck down state laws aimed at restricting Chinese immigration.^[15] None of these cases ever reached federal court, however, because the California Supreme Court's invalidation of these state laws as unconstitutional infringements of Congress's commerce power made such review unnecessary. The Cali-

fornia judiciary's obeisance to federalism was surely an impetus for local political pressure on Congress and the president to enact national anti-Chinese discriminatory laws.

State efforts were further preempted by the exercise of national power through treaties with the Chinese government and through congressional statutes. The first treaty between the United States and China set out basic principles of friendship in 1844. A more important pact concerning immigration, the Burlingame Treaty, followed in 1868. This agreement recognized a free right of expatriation and emigration between China and the United States. For its part, the United States guaranteed the Chinese "the same privileges, immunities and exemptions in respect to travel or residence, as may there be enjoyed by the citizens or subjects of the most favored nation." The codification of this anti-discrimination principle formally superseded state efforts to single out the Chinese for harsh treatment. Finally, the Civil Rights Act of 1870 banned states from discriminatorily taxing certain immigrants and not others, and it mandated that states tax all persons without regard to national origin.^[16]

These state court decisions and national laws thus served both as partial impediments to discriminatory state laws and as seeds for federal litigation involving the Chinese. Despite these strong federal obstacles, however, states and municipalities continued to enact anti-Chinese laws, especially in communities with large Chinese populations, such as San Francisco. The "Queue Ordinance," for example, required San Francisco County jailers to cut the hair of every prisoner to within an inch of the scalp. The ordinance did not specifically refer to the Chinese, but its discrimination was clearly aimed at Chinese men, who wore their hair braided in a long queue. Riding circuit at the time, Justice Stephen Field struck down the ordinance in 1879.^[17]

The federal courts in California also adjudicated challenges to the infamous San Francisco ordinances regulating Chinese laundries. One such regulation, enacted in 1880, required laundries to be one story tall, with twelve-inch walls of brick or stone and metal fittings or metal covering wood. It prohibited use of any other type of material without the Board of Supervisors' consent. Two years later, an amended ordinance forbade laundries in certain sections of the city except with the express consent of the Board of Supervisors, which refused to grant permission without the approval of twelve citizens and taxpayers within a block of the proposed laundry. These ordinances, like the "Queue Ordinance," took direct aim at the Chinese, who operated three-quarters of all laundries in San Francisco. Under the board's administration of the

ordinance, all Chinese applications for licenses were denied. In a decision of enduring significance, the Supreme Court held that the Fourteenth Amendment prohibited the discrimination against aliens caused by enforcement of the "Chinese laundry" ordinances.^[18]

Passage of the 1882 Chinese Exclusion Act shifted the focus from state and local legislation to federal laws that discriminated against Chinese. This act entrenched in federal courts the primary responsibility for adjudicating issues involving the Chinese. Whether sitting singly in district or circuit courts or in circuit court panels, western federal judges had tremendous power to shape the practical effect of the anti-Chinese laws. Unlike prior federal suits, which had challenged the federal constitutionality of state and local ordinances, cases arising after the passage of the Chinese exclusion acts involved routine criminal and civil issues. Popular acclaim for these statutes spurred the San Francisco customs officer to interpret them rigidly and to arrest the vast majority of Chinese seeking entry. To gain release from custody, they filed petitions for habeas corpus, which required federal-court attention.^[19]

This litigation flooded the federal courts in San Francisco. By one estimate, District Judge Ogden Hoffman of the northern district of California heard over 7,000 Chinese habeas corpus cases between 1882 and 1890. The burdens of this immense litigation fell on Hoffman and Circuit Judge Lorenzo Sawyer, both of whom attempted to decide these cases fairly and quickly, a task made more difficult by prevailing public anti-Chinese sentiment. To his credit, Hoffman did not let his personal lack of sympathy for the Chinese interfere with his judicial responsibilities; he released hundreds of Chinese under writs of habeas corpus.^[20]

Despite the restrictive actions taken by the San Francisco customs collector, who often arrested Chinese lawfully entitled to enter, Hoffman and Sawyer read the 1882 statute to exclude only Chinese unskilled laborers . Hoffman recognized the economic rationale of the law: "The evil which the treaty and the law were intended to remedy, was the unrestricted immigration from the teeming population of China of laborers, whose presence here in overwhelming numbers was felt by almost all thoughtful persons to bear with great severity upon our laboring classes, and to menace our interests, our safety, and even our civilization." This opinion, which announced the discharge of a Chinese merchant on a habeas writ, sparked public disenchantment with Hoffman, who chafed under the public opprobrium but did not succumb to it.^[21]

Procedurally, the case is interesting also for the anachronism that both Hoffman and Field, the latter as circuit justice, wrote opinions at what

was the trial level. In this period, circuit courts retained both original and appellate jurisdiction; a pair of judges—drawn from among the corps of district and circuit judges and circuit justice—sometimes still heard a trial in circuit court. This was one such case. Since Field and Hoffman concurred on the outcome and general interpretation of the law, the reason for writing separately is unclear. The existence of the two opinions, however, sheds light on how the thinking of Hoffman and Field evolved. Field later recanted and all but advocated the permanent suspension of Chinese immigration of any possible classification, not just laborers. Field apparently drifted more and more toward the popular sentiment of restricting Chinese immigration to an extent not approved by the 1880 treaty, which recognized Chinese teachers, students, merchants, and tourists as "privileged classes" to "go and come of their own free will." Hoffman and Sawyer, by contrast, persisted in their belief that the 1880 treaty should guide judicial interpretation of the 1882 statute.^[22] Matthew Deady, United States district judge in Oregon, concurred in the Sawyer-Hoffman view, but Deady's impact was much less significant than Hoffman's, because the northern district of California heard the preponderance of the Chinese cases.^[23]

Hoffman's sympathetic treatment undoubtedly elevated his workload still further. Assured of a hearing in his court, huge numbers of Chinese petitioned for habeas writs throughout the 1880s, far outstripping Hoffman's ability to immortalize each case with a written opinion. Sensitive to the public outcry that accompanied his discharge rulings, however, he periodically wrote opinions in an attempt to vindicate his collective decisions.^[24] Hoffman's colleague Sawyer held similar views but managed to deflect public criticism. Unlike Hoffman, who apparently never made a public speech after 1852, Sawyer was a popular orator who achieved a reputation for fearlessness. Sawyer's public speaking gave him opportunities to explain his decisions outside the judicial context. He also handled fewer cases at the trial level than Hoffman. And in Oregon, Deady won the grudging respect of the white community, notwithstanding the unpopularity of his pro-Chinese rulings.^[25]

As the opinions of Hoffman, Sawyer, and Deady crystallized in the mid-1880s on the principle of guaranteeing due process to the Chinese, they began increasingly to disagree with Justice Field, who still rode circuit in California. Field's attitude about Chinese immigration hardened after 1884, for reasons that remain obscure.^[26] The subordinate federal judges had to respect the justice's views, not only because of his acknowledged brilliance, but also because his vote counted more than

theirs. Under the 1802 statute that reconfigured the federal judicial system after the repeal of the "Midnight Judges" Act of 1801, the opinion of a circuit-riding justice controlled even when the justice was in a minority on a circuit-court panel. An 1872 statute reiterated this archaic hierarchy, and its application in 1884 sundered the court. In the case of In re Chew Heong , Field's opinion denied reentry to a Chinese laborer who had resided lawfully in the United States and then departed before the enactment of the 1882 Chinese Exclusion Act. The justice held that Chew Heong could properly be excluded for failing to present a certificate. In dissent, Sawyer sharply contended that Field's position conflicted with many earlier decisions of the California federal courts, which had refused to apply the 1882 Chinese Exclusion Act retroactively. Hoffman and Nevada District Judge George M. Sabin, also on the circuit court panel, joined in Sawyer's opinion. The sting of the public reprobation suffered by Sawyer, Hoffman, and Sabin was surely alleviated when the Supreme Court reversed Field's decision by a seven-to-two margin.^[27]

Enactment of the 1888 Chinese Exclusion Act rendered the Supreme Court's ruling a nullity and defused the disagreement among the western federal judges and their circuit justice on this issue. This statute prohibited reentry even to Chinese laborers who had been lawfully admitted prior to passage of the 1882 law. Certificates would no longer gain Chinese laborers entrance. The ink of President Cleveland's signature on the bill was barely dry when customs officials and federal judges in San Francisco received notice by telegram to enforce the act immediately. Through such swift action the administration sought to enforce the new law against the approximately eight hundred Chinese who were expected to arrive in the Bay Area the following day. The circuit court for the northern district of California readily upheld the constitutionality of the 1888 act, and the Supreme Court unanimously affirmed in an opinion written by Justice Field. The broad sweep of the 1888 act and the decisions sustaining it produced still more habeas corpus cases. By one estimate, thirty thousand Chinese had left the United States with pre-1888 reentry certificates but had not yet returned.^[28] They had little chance of eluding the harsh effects of the law, because the judicial system in which they would challenge denial of entry was undergoing significant change.

Historians have argued that up until the 1890s, western federal judges—especially Sawyer, Hoffman, and Deady—did much to treat Chinese litigants justly. Appropriately, scholars consider this early pe-

riod of exclusion as crucial for understanding the judiciary's treatment of the Chinese. Adjudication of Chinese exclusion cases clearly entered a new phase, however, after the Supreme Court upheld the 1888 act.^[29] The greater restrictiveness of the federal courts in the 1890s was a function of several factors. One explanation is that a new generation of federal judges took over from Sawyer, Hoffman, and Deady. Another is the legal context in which cases arose. The statutory language and precedents interpreting key provisions closed loopholes through which Judges Sawyer, Hoffman, and Deady had permitted Chinese entry in the 1880s. Though the post-1891 judges certainly had no sympathy for the Chinese, in many instances expression of their personal feelings was constrained by their role in applying the facts at hand to strict statutory language in light of controlling precedent. Constrained though they may have been by the legal context in which cases arose, the Ninth Circuit judges of the 1890s nevertheless were rarely predisposed to construe ambiguous provisions in favor of Chinese litigants. Prior to their tenure on the court, three future Ninth Circuit judges were establishing anti-Chinese track records that help to explain their later thinking.

III. McKenna, Morrow, and Ross on the Chinese

While Field, Sawyer, Hoffman, and Deady were interpreting the Chinese Exclusion Acts of the 1880s, two of their successors were in Congress helping to write more restrictive legislation. Both Joseph McKenna and William W. Morrow, who served in Congress from the mid-1880s to the early 1890s, responded to the passionate public outcry of Californians for even further constraints on Chinese immigration. Both actively supported strict enforcement of the 1882 and 1884 acts, as well as the more stringent 1888 measure.

On August 9, 1888, for example, Morrow requested immediate action on the 1888 bill, contending that the "present law and . . . treaty, by reason of inherent defects, do not prevent Chinese immigration." He took this strong stand because the "people of the Pacific coast ask—ay, they demand—that Congress shall relieve them of the difficulties" posed by Chinese immigration. Two weeks later, Morrow delivered a lengthy oration in which he surveyed a range of Chinese-related issues. He left no doubt that Judges Sawyer and Hoffman were disserving his San Francisco constituency. Without resorting to disrespectful rhetoric, Morrow nonetheless stated his belief that the Supreme Court decision in

Chew Heong , which mirrored Sawyer's dissenting analysis at the circuit court level, "destroyed the value of the [1884] amendment." Morrow pressed the White House for stricter enforcement of existing laws, advocated prohibition of the prior-residence exception to exclusion, urged absolute exclusion of all Chinese laborers, and expressed skepticism concerning the exception for Chinese merchants. In colorful language that verged on demagoguery, he concluded: "Because this Asiatic tramp forces his way through the western gate of the continent contrary to the spirit and purpose of our law[,] are we going to ignore his persistent invasion of our territory, or at most toy with the question, and forgetting the rights and demands of American labor, surrender to the vice and demoralization of Chinese labor? This is the whole question, turn it as you will, and our duty appears to me to be plain."^[30]

If his views on Chinese labor were not already clear, within two years of the 1888 act's passage, Morrow issued a report on behalf of the House Committee on Foreign Affairs that foreshadowed tension with his future position as federal judge. Morrow frankly acknowledged that some Chinese "are inoffensive, temperate, and law-abiding, and peculiarly subject to the influences of Christian civilization." But despite the "doubtless many individual cases tending to justify such a partial estimate of the Chinese character," Morrow refused to reopen the policy debate underlying the exclusion principle. Instead, he introduced a sweeping bill to exclude all Chinese permanently. The promise this bill offered was clear: it would obviate the need for Congress to decide in 1892 whether to renew the restriction on Chinese laborer immigration originally passed in 1882; moreover, it saved federal courts from the continuing difficulty of deciding whether to admit Chinese individuals seeking entry under the exceptions for merchants, tourists, and transit travelers.^[31] If successful, Morrow's proposal would have eliminated much of his later work as a district and circuit judge. It failed, however, and as a federal judge Morrow assumed the responsibility of interpreting the very provisions he had so vigorously attacked as a legislator.

Morrow and his colleague and friend, Joseph McKenna, stood shoulder to shoulder on the exclusion issue, which both viewed as crucial to preserving jobs for whites. Morrow and McKenna never served together on the Ninth Circuit—Morrow was in fact appointed to take McKenna's place in 1897—but they did hear cases on the same panel when Morrow sat by designation as a district judge. McKenna made plain their unity of thought in a partisan remark, "My colleague [Mr. Morrow] showed that during the time the Democratic House waited and wasted, 20,000

Chinamen came to the country to compete with those already here against our wage-earners. . . . Let Chinamen come as they are coming, and will come if not restrained," he added, "and you will as surely destroy this free Government as though, to use a figure of Wendell Phillips, you should put gunpowder under the Capitol." McKenna felt compelled to add his observation that the Chinese "are purely a clannish, selfish, grasping people, totally devoid of all moral instincts and endowed with an endurance unequalled by any other class of laborers."^[32]

These comments suggest that the future judge, whose responsibilities would include fairly adjudicating issues involving the Chinese, was capable of delivering the most scathing ad hominem attacks on them. Occasionally he linked these barbs to legal issues, urging at one point the deletion of a provision that permitted entry of Chinese laborers if they were owed debts of one thousand dollars or more. For McKenna, this exception to exclusion constituted political apostasy, because it allowed a Chinese laborer falsely to claim a debt to another Chinese: "The productive perjury of Chinese witnesses which so easily invents a place and a time and the circumstances of a prior residence will invent without straining a debt of a thousand dollars pending settlement." McKenna's support for labor was so strong and his antipathy for the Chinese so total that he supported both Democratic and Republican bills aimed at Chinese exclusion.^[33]

Like McKenna and Morrow, a third Ninth Circuit judge also left an extensive track record on the Chinese exclusion issue. Before his elevation to circuit judge in 1895, Ross served as district judge for southern California. In this office, which he held from 1886 to 1895, Ross tried numerous cases involving Chinese who were seeking entry at the Port of Los Angeles. The most spectacular indication of his views on the subject was a political battle he fought with the Democratic Cleveland administration over enforcing restriction laws. The incident revealed that despite their different political affiliations—Ross was a Democrat; Morrow and McKenna were Republicans—they shared similar views on the Chinese labor question.

The episode grew out of the failed effort by the Chinese to obtain a ruling that the Geary Act of 1892 was unconstitutional. From the Chinese perspective, the most nettlesome provision of this law was section 6, which required Chinese laborers to register with their local internal revenue collector for a residence certificate within a year of the law's effective date of May 5, 1892. Rather than urge Chinese laborers to comply with the law, the Chinese Legation retained prominent attorneys

to challenge its constitutionality. The Chinese minister sought assistance from the United States government to expedite a test case from the lower federal courts up to the Supreme Court before the expiration of the law's one-year registration period. Although Attorney General Richard Olney readily agreed, the grace period had elapsed by the time the Supreme Court rendered its decision. The Court's adverse ruling left thousands of Chinese laborers in technical violation of the law, including between seven and nine thousand in southern California. Tensions in Los Angeles grew so great that United States Attorney George J. Denis cautioned authorities to keep arrests to a minimum to avoid "any trouble or bloodshed."^[34]

Denis undertook this prudent step on the direct instructions of Attorney General Olney. On September 2, 1893, Olney sent a telegram to Denis that sparked the dispute with Ross:

I am advised by the Secretary of the Treasury that there are no funds to execute the Geary law, so far as same provides for deportation of Chinamen who have not procured certificates of residence. On that state of facts, circuit court of United States for southern district of New York made following order: "Ordered, that ________ be, and he hereby is, discharged from the custody of the marshal, and ordered to be deported from the United States whenever provision for such deportation shall be made by the proper authorities." Ask court to make similar order in like cases.^[35]

Olney, who must have believed that strict enforcement would exhaust his department's resources and flood the federal courts, seriously miscalculated Ross's response. Unlike federal judges in New York, who responded pliantly to Olney's request, Ross lashed out at the attorney general, both for attempting to interfere with his judicial independence and for a gravely flawed reading of the relevant law. In a published opinion, the judge first ordered the deportation of Chum Shang Yuen, a Chinese laborer convicted of failing to register under section 6 of the Geary Act. He then quoted Olney's telegram to Denis and dedicated the rest of the opinion to refuting the attorney general's legal reasoning.^[36]

Shortly thereafter, in a letter to the president who appointed him, Grover Cleveland, Ross complained that because this "practical annulment of the laws and of the orders of the Judicial Department regularly made in pursuance of them, strikes at the foundation of our system of Government, and cannot be permitted to pass unchallenged, I therefore respectfully call your attention to it for such action as you deem proper." To the attorney general Ross was far less courteous. In a letter released to the press, the judge told Olney that he had made himself look "ri-

diculous." The attorney general's legal analysis was totally unfounded, he continued, because Congress had not bifurcated appropriations for enforcement of the Geary Act by allocating funds to enforce some provisions and not others. Ross contended that if the law was constitutional, as the Supreme Court said it was, Olney's job was to enforce the whole statute, not just the provisions he favored. Impressed by this public reprimand, one newspaper conjectured that Olney would henceforth confine his attention "more strictly to the affairs of his department and less to those of the judicial arm of the government."^[37]

Whether Ross's action reflected "magnificent courage" or prescribed unmitigated disaster depended entirely on where one stood on the underlying question of Chinese exclusion. Ross left no private papers explaining his view of this episode, but if the newspaper clippings he saved fairly indicate his thinking, "judicial independence" was merely the vehicle for strict exclusion enforcement. The West Coast newspaper editorials that Ross assiduously pasted in his scrapbook hailed the judge's action for its effects on exclusion: "Judge Ross has given the Geary act the requisite efficacy in spite of influences sedulously exerted at Washington"; "the decision of Judge Ross in regard to the Chinese cases will do wonders to encourage people who are anxious to see coolie labor abolished in California"; and "Judge Ross has shown himself an able, upright and fearless Judge, and one not overshadowed in any degree by a pro-Chinese President and his Cabinet." Public pressure for enforcement of the Geary Act, especially by labor groups, made Ross "probably the most popular man in Los Angeles."^[38]

Just as Ross's anti-Chinese action increased his public standing in the Los Angeles area even before his elevation to the Ninth Circuit, Morrow and McKenna gained similar renown during the late 1880s and early 1890s, when they represented northern California in Congress. Given the public positions espoused by these men before their appellate court appointments, Ninth Circuit litigants during the 1890s could not be faulted for anticipating stricter enforcement of anti-Chinese exclusion laws than when Sawyer, Hoffman, and Deady had held judicial office. To some extent, the judicial performance of McKenna, Morrow, and Ross fulfilled their worst expectations. But precisely because of the differences between judicial and legislative work, assessing the outcomes of cases alone is an inadequate method of determining judicial attitudes.^[39] Many of the cases appealed to the Ninth Circuit on the Chinese question involved statutory interpretation, and thus the strict wording of the statute invariably produced harsh results. Arguably a better way

to assess the legal significance of the Ninth Circuit's jurisprudential change after 1891, therefore, is to analyze several classes of cases in the context in which they arose.

In assessing this context, it is important to keep in mind how the flexibility in judicial roles in this period colored the development of anti-Chinese doctrine. The internal administration of the Ninth Circuit contributed to the greater restrictiveness of the court's rulings on Chinese issues. In the 1880s, since Congress had authorized so few judges for West Coast states, Hoffman, Sawyer, and Deady had handled the vast bulk of Chinese-related cases. Hoffman and Deady sat predominantly in the districts for which they were appointed. Except when Circuit Justice Field sat with them, these judges had great influence in building precedent, because they had the opportunity to express their views in case after case. By 1895 the pool from which to draw judges for circuit court of appeals panels had expanded greatly. In addition to three circuit judges (compared to only one in the 1880s), the court brought in district judges from throughout the Ninth Circuit to compose appellate panels. This internal administrative procedure had the effect of diluting the doctrinal influence of any single judge. A closer examination of the Ninth Circuit's Chinese-exclusion jurisprudence casts light, therefore, on the development of the court's internal politics and its corresponding relation to judicial administration. The flexible panel-assignment system could last only so long as no single judge or pair of judges dominated doctrinal development in a manner deemed unacceptable by the other judges in the circuit. The Chinese exclusion cases illustrate how this system worked and why no pressure built up to reform the internal administration of the court.

IV. Ninth Circuit Jurisprudence

The American public demanded tough anti-Chinese restrictions, and Congress willingly obliged it by enacting steadily harsher immigration measures. In most appeals, the Ninth Circuit routinely affirmed convictions of Chinese for exclusion act violations or denied requests for habeas writs. Notwithstanding their very able counsel, the Chinese frequently lost appeals to the Ninth Circuit.^[40] These results generally had less to do with racial animus on the part of the judges than with the anti-Chinese sentiment reflected in the Chinese exclusion acts themselves. Unlike the earlier western federal judges who interpreted more leniently drafted exclusion laws, the 1890s-era judges faced legal chal-

lenges to highly restrictive statutes, which left little latitude to achieve pro-Chinese outcomes even had the judges been so inclined. More often than not, either the statute or precedent spoke directly to the question. In more difficult cases requiring creative analysis by the judges, however, signs of racial animus appeared only in selective contexts. Sawyer, Hoffman, and Deady had bravely ruled in favor of Chinese litigants when the circumstances and their sense of justice required such results, but their successors tended to be harsher. To be sure, important exceptions to this generalization occurred, exceptions which warrant the conclusion that the Ninth Circuit confronted Chinese immigration issues with a certain ambivalence. Cases involving three issues—entry questions, the merchant exception, and citizenship by birth—illustrate the judicial tension that marked the court's treatment of the Chinese during this period.

As amended in 1884, the original 1882 Exclusion Act prohibited Chinese laborers from entering the United States. To enforce this restriction, the statute required incoming Chinese to produce a certificate from their government attesting that they were not laborers. This seemingly simple requirement, however, presented a legal issue on which opinion differed: were documents issued by consuls who represented the Chinese government in other countries sufficient evidence of valid certification? When the question first arose, the Chinese government informed the State Department that it had authorized its consuls in other countries to issue such certificates. The Treasury Department and the State Department disagreed over whether the United States should accept consul-endorsed certificates, and the Justice Department was asked to render a formal opinion. Attorney General Richard Olney determined that certificates "issued by the duly authorized consular officers of China in foreign countries and accurately conforming in their contents to the requirements of section 6 are the certificates contemplated by the law."^[41]

This opinion accorded with Olney's generally lenient stance on the Chinese question. In keeping with their prior legislative preferences, however, McKenna and Morrow as judges took a much stricter line than the attorney general. Sitting as the Ninth Circuit panel shortly before Olney issued his opinion, McKenna and Morrow ruled that a certificate signed by the Chinese consul in Yokohama, Japan, did not have the same effect as one issued by the Chinese government and that the petitioner had failed to prove that the Chinese government had authorized its consuls to issue such certificates. Writing for the court, McKenna stated: "It is undoubtedly competent for the Chinese government to authorize

its consuls to give the certificate prescribed by section 6, but there is no proof in the case that it has done so."^[42]

If the Ninth Circuit's decision in United States v. Mock Chew signaled strictness in the handling of Chinese-entry questions, it was not a decision of enduring significance. The court merely remanded for proof that the Chinese government had authorized its consuls to issue certificates. Though the court was not privy to the Chinese legation's communications with the State Department, clearly such proof existed. Upon presenting the evidence in court, the petitioner would gain entry. The significance of Mock Chew lies less in its erection of a barrier to Chinese immigration than as an early indication that on close questions, McKenna and Morrow would adhere to their views as legislators in construing the exclusion acts unfavorably for Chinese immigrants, and especially laborers.^[43]

By contrast, cases arising under the merchant exception to the exclusion acts exposed the difficulty of applying a legislator's mode of analysis to judicial decision making. These cases also revealed how the various combinations of judges comprising Ninth Circuit panels prevented any single judge from dominating the doctrinal development of the law.^[44] District judges sitting by designation on appellate panels contributed significant opinions as the Ninth Circuit struggled to adjudicate the statutory exceptions to the anti-Chinese exclusion laws. Congress did not intend the 1882, 1884, and 1888 exclusion acts to prohibit Chinese in privileged classes, such as merchants, teachers, and students, from gaining entry. But to achieve its aim of excluding laborers, Congress required exempted persons to present certificates attesting to their status. If enforcement of the anti-Chinese immigration statutes had been left to the sole discretion of federal immigration officers and single-judge district courts, the potential for widespread abuses would have been great. The wording of the exclusion statutes left unclear whether the Chinese litigants would ultimately have recourse to the newly created circuit courts of appeals. In an important ruling that displayed the continuing vigor of the 1880s old guard of federal judges into the next decade, Deady wrote for William Gilbert and Thomas Hawley to uphold the right to appeal decisions of the district court involving immigration orders.^[45]

Once this right-to-appeal question became settled precedent in the Ninth Circuit, Chinese litigants vigorously exercised that right. In the years following the creation of the circuit courts of appeals, the Ninth Circuit decided a number of cases testing the outer limits of the merchant

exception to the exclusion acts. This litigation promised to be a fascinating legal battleground. As a legislator Morrow had favored eliminating the exemption, and now he was called upon to judge the government's vigorous efforts to limit claims by immigrants alleging to be merchants. For their part, Chinese litigants adroitly picked apart as many government arguments as they could. Unlike the many Chinese discharged on writs of habeas corpus by western federal courts in the 1880s, Chinese litigants of the 1890s won few litigation victories. The merchant exception was one of them.

In an 1894 opinion for the Ninth Circuit, McKenna uncharacteristically opened a doctrinal door for many subsequent Chinese claiming the merchant exception. Lee Kan, who worked as a merchant in San Francisco from 1880 to 1893, was arrested by port officials in 1894 when he attempted to land after a brief trip to China. He applied for a writ of habeas corpus, which the district court denied. In a ruling by Morrow, the district court held that Lee did not qualify as a merchant because he did not conduct business in his own name. He was one of eight partners doing business under the title "Wing Tai Lung." In a bow to business reality penned by McKenna, the circuit court of appeals reversed. "The construction contended for by the government would not only forbid the Chinese this practice," McKenna wrote, "but forbid them . . . the common practice of this country, and of all commercial countries. The designations of very few business houses contain the names of all of the partners."^[46]

Lee Kan was not, however, a doctrinal gateway through which Chinese claiming to be merchants could traipse with impunity. The opinion contained an important caveat: Chinese merchants had to prove their ownership interest in the firm by producing the articles of incorporation or partnership. Nevertheless, Lee Kan was an important triumph for Chinese merchants from both immediate and long-term perspectives. When McKenna announced the court's decision, one hundred merchants were waiting in Bay Area jails for rulings on their habeas corpus writs, and another forty remained aboard the steamer Rio , which lay in port. These merchants won their freedom with the court's decision in Lee Kan .^[47] From the larger perspective, the decision signaled some willingness by the court, as expressed through one of its most fervently anti-Chinese members, at least to evaluate the circumstances in which Chinese merchants conducted business.

Sometimes these circumstances redounded to the Chinese petitioner's detriment. In 1895 the court employed restrictive interpretations of

business activity to foreclose the entry of Chinese claiming to be merchants. For example, the court affirmed the denial of a habeas writ to a person who admitted to having served as a house servant for short periods during the year before he left the United States. Because such activity fell within the definition of manual labor, McKenna concluded that the statute required federal officials to prevent the man's reentry, despite his partial ownership of a business. The court also denied reentry to a Chinese man who cut and sewed garments retailed by a firm of which he was a member. The court concluded that although he owned part of the firm he was not a "merchant" under the statute, because he had performed manual labor to fabricate the merchandise. McKenna reasoned that a "'merchant' may not . . . 'engage in the performance of any manual labor except such as is necessary in the conduct of his business as such merchant,'—that is, in buying and selling merchandise."^[48]

Despite these setbacks, Chinese litigants generally benefited from the merchant exception. As the court's doctrine on this exception developed, the significance of McKenna's opinion in Lee Kan loomed ever larger. Other judges began to build on the precedent, thus giving the merchant provision real protection for the Chinese who invoked it. In Wong Fong v. United States , for example, the court reviewed the deportation order of a person alleged by the government to be a Chinese laborer. Wong Fong contended that he had been a merchant for seven years before fire destroyed his business on August 1, 1893. Wong left the United States after passage of the McCreary Act of November 3, 1893, which provided an additional six months for Chinese to register, but before a registration office opened on January 1, 1894. The district court dismissed a stipulation of facts underlying Wong's assertion that he was a merchant after the fire of August 1, 1893. In an opinion by William Gilbert, whose prior thinking on the Chinese labor issue is unknown, the Ninth Circuit reversed. The court held that the articles of partnership established Wong's contention that he was in business with a Chow Kee. In Gilbert's view, Lee Kan controlled. Contrary to the district court's reasoning, the fire did not close out the partnership if the corporate records revealed a continuing enterprise—and, indeed, the partners had pooled their resources to erect a new building on the site of the old one.^[49]

The Lee Kan rule was further elaborated in 1906, when Gilbert again wrote for the court in a challenging case with a number of factual twists. Ow Yang Dean was arrested for being a manual laborer without a residence certificate and was ordered deported. The government acknowledged that in 1890 Ow had become a member of the mercantile

firm of Hung Tai and Company in Walnut Grove and of Sang Wo Sang and Company in San Francisco. In 1900, while still retaining his interests in these concerns, Ow purchased a stake in the San Pablo Bay Shrimp Company, a co-partnership. With this firm he performed such manual labor as was necessary to keep the company in business. The district court affirmed the deportation order, but the circuit court of appeals reversed. Gilbert opined that because Ow's name was inscribed on the corporate books, he was a merchant within the meaning of the Geary and McCreary acts, and thus not deportable. The McCreary Act of 1893 required a person applying for reentry as a former merchant to show, by testimony of two credible non-Chinese witnesses, that he was indeed a merchant. The court found that the evidence introduced against Ow lacked credibility. Persons in a rival shrimping firm purportedly had written dishonest letters contending that he was a laborer. The court gave much greater credence to evidence that he worked principally as a bookkeeper for Sang Wo Sang and Company. Nevertheless, evidence existed that Ow had also picked shrimp and crabs and delivered them. Under McKenna's strict interpretations of merchant activity and manual labor, Ow quite possibly faced denial of reentry. But Gilbert distinguished McKenna's earlier opinions for the court on the theory that Ow's manual work was only a small component of his job. By this somewhat selective use of precedent, Gilbert permitted entry of a merchant whose claim raised several factual and legal difficulties.^[50]

The merchant exception, therefore, proved to be more readily available to the Chinese than they might have anticipated in light of McKenna and Morrow's legislative backgrounds. This more favorable treatment—when compared to entry questions involving Chinese laborers—stemmed from the perception that merchants did not threaten whites' jobs. It also derived partly from Gilbert's more expansive reading of a key earlier decision in the merchant-exception line of cases. But the court's treatment of those Chinese who invoked the merchant exception was inconsistent, as is indicated by some of the court's stricter interpretations of "merchant"; it depended on the panel composition and the opinion-writer. The influence of the opinion-writer should not be understated—he provided nuance to the explanation of the outcome. But the composition of the panels, drawn from the three circuit judges and numerous district judges of the Ninth Circuit, also played a key role.

The fluidity of panel composition and the flexibility of judicial roles also delayed the development of an overt circuit politics. No single judge or small group of judges could impose a certain viewpoint doc-

trinally on the others through the development of circuit precedent. Had McKenna and Morrow, for example, sat on every appellate court panel where a Chinese question was raised, the law of the circuit might well have developed far more harshly than it did. Because the scheme of assigning district judges to circuit court of appeals panels served to dilute the power of any single circuit judge, overt disagreements over doctrine were minimized and the system of administration was kept informal. Cases arising under the merchant exception illustrated the early workability of a judicial administrative system that put a premium on role flexibility.

This amalgam of contextual and administrative factors also helps to explain a third set of cases related to Chinese immigration: those determining whether the exclusion acts applied to children allegedly born in the United States of Chinese parents. The Fourteenth Amendment declared that "[a]ll persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside." The exclusion acts prohibited the Chinese from becoming naturalized citizens; the issue therefore arose of whether the citizenship provision of the Fourteenth Amendment applied to the American-born children of Chinese immigrants. Two competing theories attracted powerful advocates. The first posited that the language of the Fourteenth Amendment adopted common-law doctrine, thereby establishing citizenship for anyone born in the United States irrespective of their parents' citizenship. According to a second theory, the Fourteenth Amendment codified international law doctrine, under which parents' national status fixed that of the child, regardless of birthplace.^[51]

The Ninth Circuit gave little credence to the international-law theory of citizenship, even though it had obvious exclusion implications. The law of the circuit, as enunciated by Justice Field in 1884, was that persons born in the United States were citizens, irrespective of their parents' nationality. In 1898 the Supreme Court formally sanctioned this position in the landmark case of United States v. Wong Kim Ark . The Court itself acknowledged that the western federal courts of the Ninth Circuit had "uniformly held" this common-law view for fifteen years and that "we are not aware of any judicial decision to the contrary."^[52] The law of the Ninth Circuit had recognized the constitutional right of citizenship by birth beginning in 1884; the invocation of this right in the Ninth Circuit had thus provided a theoretical means of escaping the exclusion restrictions long before 1898. But although this circuit doctrine anticipated the Supreme Court's articulation of the applicable rule, in practice it pro-

vided little relief for children who claimed to have been born in the United States of Chinese parents.

In cases brought before and after Wong Kim Ark , the Ninth Circuit rejected numerous claims of citizenship on technical grounds. A succession of Ninth Circuit judges shared McKenna's view that testimony by the Chinese was made suspect by their alleged proclivity for perjury. In the first such case it decided after its creation in 1891, the court rejected the testimony of two Chinese witnesses who purported to have knowledge of the petitioner's birth in San Francisco in 1877. The court's rulings became a standard litany: "Under the circumstances stated by him, but little, if any, credence should be given to his own evidence as to the place of his birth, and he is corroborated on this vital point only by the testimony of other Chinese persons, who confessedly have seen him but a few times, and can give only hearsay evidence." The court also employed presumptions of proof to deny a person's citizenship claim. If a claimant produced credible proof and the government offered rebuttal evidence, the court sided presumptively with the government. As Morrow wrote in one such case, "The certificate of the court is that, after the defendant had introduced evidence to prove his nativity, the plaintiff (the United States) introduced evidence, both oral and documentary, in rebuttal. The presumption is that this evidence in rebuttal was sufficient to justify the findings." And when the Chinese presented credible evidence but were rebuffed in the district court, the Ninth Circuit upheld such rulings under a deferential standard of review, of "whether the evidence is so clear and satisfactory upon that point as to authorize this court to say that the court erred in refusing her [permission] to land."^[53]

The erection of these evidentiary impediments in the citizenship cases is difficult to square with the court's adjudication of the merchant cases. The Ninth Circuit frequently reversed district court decisions excluding Chinese merchants, thus evidencing little of the deference to trial court proceedings it displayed in the citizenship cases. Moreover, in the merchant cases the court accepted as credible the testimony of Chinese witnesses and carefully scrutinized the trial record for error.^[54] Explaining these apparent inconsistencies is difficult. Perhaps the judges legitimately found testimony of birthplace hard to evaluate because it rested on decades-old documents or distant recollections. The immediacy of statements about type of work were easier to assess. The judges may also have feared an onslaught of returning laborers claiming citizenship and believed that the economic status of merchants posed less of a threat to the American work force. McKenna and Morrow were, after all, prod-

ucts of elective politics. Morrow remained closely tied to Republican party politics in California throughout his judicial career. And although he was much less politically involved than McKenna or Morrow, Ross was not oblivious to the social consequences of his rulings, as the Olney episode revealed. By contrast with the 1880s cadre of Sawyer, Hoffman, and Deady, therefore, the core of Ninth Circuit judges who decided Chinese entry and citizenship questions in the 1890s and 1900s were much less willing to rule against domestic labor interests.

V. "Hard" Cases

Chinese immigration issues occupied a large segment of the western federal courts' dockets in the last two decades of the nineteenth century and the early years of the twentieth. The establishment of the circuit court of appeals in 1891 occurred in the midst of personnel changes in the western federal judiciary and the enactment of stricter statutory controls on Chinese immigration. The stricter statutes limited the latitude of the later judges. Moreover, whereas the judges of the 1880s appeared predisposed by judicial temperament or racial tolerance to rule in favor of Chinese litigants in the early years of the exclusion acts, for the most part the 1890s judges were not. The anti-Chinese sentiments of at least three of the 1890s judges—McKenna, Morrow, and Ross—can be traced in actions of theirs that preceded their tenure on the circuit court of appeals. A third possible explanation for this jurisprudential change lies in the legal and factual context of the cases appealed to the court. Under this view, the composition of panels (except insofar as they comprised groupings of an array of different circuit and district judges) mattered far less than the circumstances facing the court.

A fourth theory is also plausible: that the later judges saw the role of law and of their court in a different light than their predecessors had. Ogden Hoffman and Lorenzo Sawyer, for example, dealt with the thousands of Chinese who came through their courtrooms on an individual basis. Hoffman's biographer has written that the district judge "expressed his personal delight at being able to avoid separating Chinese children from their parents" and that the multitude of separate hearings forced him "to see and hear them as human beings with distinct explanations and histories that had to be dealt with on a case-by-case basis."^[55] The later judges expressly eschewed this approach. In two deportation cases decided in 1899 and 1905 by the circuit court of appeals, Gilbert, Ross, and Morrow unanimously rejected arguments by Chinese parties

in factually compelling circumstances. These decisions revealed much about their level of detachment from the plight of Chinese litigants and illustrated their limited faith in the law's ability to redress individual injustices.

In the first case, two young boys aged thirteen and fifteen arrived in the United States to live with their father and to attend school in Eugene, Oregon. They landed in May of 1896 and immediately presented a certificate from William E. Hunt, the United States consul for China, along with a letter to Hunt from two Americans who said that they boys' father intended to bring his sons to the United States for schooling. Though they did not present any other certificates, the immigration officials permitted the boys to land. Two years later, the United States attorney for Oregon filed a criminal information charging them with being laborers not entitled to reside in the United States. The district court found that the boys had been students in English schools in Eugene since their arrival and thus had not violated the law. The court permitted them to stay, but the Ninth Circuit reversed. The court held that even though United States immigration officials had erred in permitting their entry and the boys had not performed any manual labor, they had to be deported because the certificate they had obtained from the United States consul was invalid under the exclusion acts. Writing for the court, Morrow reasoned that the boys could not overcome their illegal entry merely by showing that they were engaged in a lawful pursuit in the United States. Whereas the district court applied a lenity principle, the appellate court employed a strict construction of the statute to order the boys back to China. No authority existed for either position. Morrow's ruling certainly applied exclusion more restrictively and thus advanced one of the expressed aims of the exclusion legislation. However, these boys were students, a group that was permitted to enter under the 1888 Exclusion Act.^[56] By giving the entry-certificate provision greater weight than a consideration of the targeted group, Morrow's technically correct opinion arguably did little to advance the policies underlying exclusion.

A factually different yet similarly moving case involved a young Chinese woman slave who escaped to the United States and arranged a marriage of convenience to avoid being returned to her slave master in China. The district court analogized to the Thirteenth Amendment's prohibition on slavery and concluded that her deportation would essentially remand her to a life of slavery. In one of his very rare opinions reversing a district court ruling, Gilbert found that the Thirteenth Amendment did not apply in this case. Washington District Judge Cor-

nelius Hanford had conceded that this amendment was not directly implicated, but he nevertheless believed that equitable considerations emanating from the amendment justified his ruling. Gilbert disagreed. "The case is one which, from its nature, enlists the sympathy of the court," Gilbert concluded, "and we regret that the law is so written that it does not permit us, as we view it, to yield to the humane considerations which actuated the court below." The appellate court was surely correct that the Thirteenth Amendment did not proscribe deportation under these facts, but Hanford's opinion had a persuasive quality: "[I]t is shocking to contemplate that the laws of our country require the court to use its process to accomplish such an unholy purpose."^[57]

The "unholy purpose" achieved by the court's deportation of the Chinese slave exemplified an approach to the adjudication of Chinese exclusion issues in the 1890s different from that which the judges in the previous decade had advanced. With the exception of the merchant provision, the circuit court of appeals interpreted the exclusion acts strictly and firmly against Chinese interests. The reasons for this jurisprudential shift from the previous decade are by no means clear, but the results were. Despite representation by skillful counsel and active remonstration by Chinese government representatives in the United States, the restrictive immigration laws and the court's adjudication of them achieved their desired results. Whereas between 1870 and 1882 approximately 200,000 Chinese immigrants had arrived in the United States, after the 1882 and 1884 exclusion laws took hold the numbers dropped off precipitously, from 39,579 in 1882 to a mere 22 immigrants in 1885 and 10 in 1887. Largely because of the statutory exceptions for merchants and other "privileged" persons and the judicial interpretations that strengthened them, the numbers of Chinese immigrants rebounded, averaging about 2,000 per year from 1890 to 1920. During World War II, when the Chinese were allies against the Japanese, Congress finally repealed the array of Chinese exclusion acts it had enacted over the years. After decades of systematic, legalized discrimination, Congress finally instructed that the Chinese be treated the same as other immigrants.^[58]