1. 106 U.S. 629 (1883).

2. 109 U.S. 3 (1883).

3. Civil Rights Act of 1875, Sec. 1, 18 Stat. 335.

4. 120 U.S. 678 (1887).

5. See, e.g., Barth, Gunther, Bitter Strength, A History Of The Chinese In The United States, 1850–1870 (Cambridge, Mass., 1964); K.Y. 20Google Scholar, Chinese Emigration (New York, 1971).

6. Cleland, Robert Glass, A History Of California: The American Period (New York, 1922), 416Google Scholar; quoted with approval in Sandmeyer, Elmer, The Anti-Chinese Movement In California, Illini Books Ed. (Urbana, 1973), 24Google Scholar.

7. McClain, Charles, ‘The Chinese Struggle for Civil Rights in Nineteenth-Century America; The First Phase, 1850–1870’ 72 California Law Review 529 (1984)CrossRefGoogle Scholar.

8. Sec. 16 of the Civil Rights Act of 1870. Ch. 114, Sec. 16, 16 Stat. 140, 144(1869–71). For background on the enactment of the provision see ibid.

9. See Ex parte Ah Pong, 19 Cal. 106 (1861) and Ah Hee v. Crippen, 19 Cal. 491 (1861). Discussed in McClain, supra note 7 at 558–559.

10. Lin Sing v. Washburn, 20 Cal. 524 (1862), discussed in McClain, supra note 7 at 555–57.

11. Ho Ah Kow v. Nunan, 12 Fed. Cases 252 (1879).

12. In re Ah Chong, 2 Fed. Rep. 722 (1880).

13. See, e.g.. In Re Quong Woo, 13 Fed. Rep. 229 (1882); In re Tie Loy, 25 Fed. Rep. 611 (1886); In re Sam Kie, 31 Fed. Rep. 680 (1887).

14. In re Lee Sing et al., 43 Fed. Rep. 359 (1890).

15. Wong Wai v. Williamson, 103 Fed. Rep. 2 (1900).

16. At least in any published work. For a remarkably comprehensive survey of nineteenth-century Chinese civil rights cases see Janisch, Hudson, The Chinese, The Courts And The Constitution, unpublished J.S.D. dissertation, (Chicago, 1971)Google Scholar.

17. See Daniels, Roger ed., Anti-Chinese Violence In North America (New York, 1978)Google Scholar. In 1871 a race riot in Los Angeles took 19 Chinese lives. See Locklear, William R., ‘The Celestials And The Angels: A Study Of The Anti-Chinese Movement In Los Angeles To 1882,’ in Daniels, reprinted from Historial Society of Southern California Quarterly, xlii (1960) 239–56CrossRefGoogle Scholar.

18. Crane, Paul and Larson, Alfred, ‘The Chinese Massacre’, Annals of Wyoming, xii (1940) 47–55Google Scholar, in Daniels, supra note 17. See also the copious and detailed documentation of the incident prepared under auspices of the Chinese consulate in San Francisco, in H.R. Exec. Doc, 49th Cong. 2nd Sess. Vol. 1, Foreign Relations of the United States, (1886), pp. 109–47.

19. See Wilcox, W.P., ‘Anti-Chinese Riots in Washington”, Washington Historical Quarterly, XX (1929) 204–12Google Scholar and Karlin, Jules, ‘The Anti-Chinese Outbreaks in Seattle’, Pacific Northwest Quarterly, xxxix (1948) 103–29Google Scholar, and Karlin, , ‘The Anti-Chinese Outbreak in Tacoma’, Pacific Historical Review, xxiii, (1954) 271–83CrossRefGoogle Scholar. All in Daniels, supra note 17.

20. See, e.g., Sacramento Daily Record Union, Feb. 23, 1886, reporting raid on the Chinese quarter of Oregon City, Oregon; Sacramento Daily Record Union, March 7, 1886, reporting expulsion of Chinese from Mt. Tabor, near Portland.

21. See, e.g., reports of anti-Chinese demonstrations in Truckee, California which forced the discharge of all Chinese from employment. Sacramento Daily Record Union, Jan. 18, 1886; Daily Alta California, Feb. 14, 1886. Accounts of mass meetings can be found in virtually every issue of the major San Francisco and Sacramento dailies from December, 1885 to March, 1886. On March 2, 1886 the U.S. District Attorney for Oregon, Lewis McArthur, wrote to the Attorney General in Washington, D.C.: ‘Large bodies of men, presumably citizens of the United States, have in nearly every town and village throughout the state organized themselves into societies whose object, as near as I can ascertain, is to expel the Chinese from our limits’. Department of Justice Year File 980–84, Number 1659.

22. See H.R. Exec. Doc. Nos. 64, 67, 49th Cong. 2nd Sess. Vol. 1, Foreign Relations of the United States, (1886), pp. 101–47, 158–68. See also Tsai, Shih-shan Henry, China And The Overseas Chinese In The United States, 1868–1911 (Fayetteville, 1983), 72–77Google Scholar.

23. There were several well demarcated districts in the Canton area, the region of China from which most nineteenth-century immigrants came; and identification with and loyalty to the district of origin were deeply ingrained in the inhabitants. When the Chinese arrived in California, they organized into district associations. These associations performed a variety of tasks, including aiding new immigrants in their search for employment and collecting debts owed to persons still in China. It would not be too far off the mark to describe them as benevolent and fraternal societies.

In the early 1860's, a coordinating council of the California district associations was organized. One of its main jobs was to adjudicate disputes between Chinese from different districts, but it came quickly to serve, as well, as chief intermediary between the Chinese community and the larger white society. Each district organization was represented on the council, and the council presidency rotated among the heads of the various district associations. At various times as few as four and as many as eight district associations were represented, but the organizations became popularly known as the Chinese Six Companies. The Six Companies was unquestionably the most important organization in Chinese America in the nineteenth century. For background on the Six Companies, see Hoy, William, The Chinese Six Companies (San Francisco 1942)Google Scholar. See also Barth, Bitter Strength supra note 5 at 96–100; ‘The Six Chinese Companies’, 1 Overland Monthly I (1868), 221–27Google Scholar. Later, in a period beginning about 1870 and continuing through the end of the century, the Six Companies sponsored a great deal of what can accurately be described as Chinese civil rights litigation.

24. H.R. Exec. Doc, No. 137, 49th Cong., 1st Sess., Vol. 1, Foreign Relations of the United States (1885), p. 194.

25. Ibid. Doc. No. 142, p. 196.

26. Text of the telegram can be found in Sacramento Daily Record Union, March 8, 1886.

27. Sacramento Daily Record Union, Feb. 17, 1886.

28. Proclamation by President Grover Cleveland under date of Nov. 7, 1885. H.R. Exec. Doc, 49th Cong., 1st Sess., Vol. 1, Foreign Relations of the United States (1885), pp. 197–98.

29. Richardson, James D., Messages And Papers Of The Presidents, 1789–1897, viii, 329 (Washington, D.C., 1898)Google Scholar. Three months later he sent a special message to Congress elaborating on the same theme and asking the body, as a gesture of good will, to make an appropriation for the payment of compensation to the victims of the Wyoming massacre. Message of March 1, 1886. Richardson, viii at 383–86.

30. The Chinese and American positions were first set out in a diplomatic exchange concerning a riot in Denver in the fall of 1880 that took one life and destroyed a considerable amount of property. To a request from the Chinese Minister that the U.S. government provide compensation for property losses and see that the guilty parties were arrested then Secretary of State William Evarts replied that the American government had no responsibility to indemnify the victims and was powerless to take action against the wrongdoers. ‘The powers of direct intervention on the part of this Government [in the affairs of a state] are limited by the Constitution’, he wrote. ‘Under the limitations of that instrument, the Government of the Federal Union cannot interfere in regard to the administration or execution of the municipal laws of a State of the Union’. H.R. Exec. Doc. No. 188, 47th Cong., 1st Sess., Vol. 1, Foreign Relations of the United States, (1881), p. 319. The Chinese Minister, Ch'en Lau Pin, replied to Evarts that the case seemed different to him since it involved individuals who were present in this country under the explicit provisions of a treaty negotiated between China and the general government of the United States. ‘The case under consideration’, he wrote, ‘should be a question of intercourse between China and the United States, and different from that to be dealt with under the ordinary internal administration of a State. It was with this view that I had…requested you to cause this case to be examined’. H.R. Exec. Doc. No. 190, 4th Cong., 1st Sess., Vol. 1 (1881) p. 322. See also letters of Nov. 30, 1885 and Feb. 15, 1886 from the Chinese Minister Cheng Tsao-ju to Secretary of State Thomas F. Bayard and Bayard's reply to Cheng of Feb. 18, 1886 in respectively H.R. Exec. Doc. Nos. 64, 65, 67, 49th Cong., 2nd Sess., Vol. 1, Foreign Relations of the United States (1886), pp. 101–09, 154–56, 158–59. These letters concerned Rock Springs and other disturbances of 1885–86. The Chinese Minister insisted that the national government take direct and forthright measure to end what he called the reign of terror among his countrymen. ‘It does not become me to indicate that these measures should be. Neither is it my province to consider the internal relations of Government or the workings of the domestic laws of this country’, he wrote. It just seemed to him that the national government was both empowered and obliged to do something. Letter of Feb. 15, 1886, Doc. No. 65. Bayard reaffirmed the hands-off position of his predecessor Evarts.

On the establishment of the first Chinese legation in the United States and on the early history of U. S. -China diplomacy, see Rea, Kenneth W., ed., Early Sino-American Relations, 1841–1912: The Collected Articles Of Earl Swisher, (Boulder, 1977)Google Scholar; McKee, Delber L., Chinese exclusion versus the Open Door Policy, 1900–1906 (Detroit, 1977)Google Scholar; Worthy of special mention are two excellent recent monographs: S.H. Tsai, China And The Overseas Chinese In The United States, supra note 22, and Hunt, Michael, The Making of A Special Relationship, The United States And China To 1914 (New York, 1983)Google Scholar. Both provide important new insight into the relationship between the Chinese government and the Chinese community in the United States.

31. Washington territorial authorities to their credit, did take rather forthright steps to deal with the anti-Chinese disturbances. The perpetrators of the Squak Valley killings were prosecuted for murder. Also, the governor of the territory declared martial law in the wake of the February riot in Seattle. For an interesting discussion of the treatment of Chinese litigants by the courts of the Pacific Northwest during this period see Wunder, John R., ‘The Chinese and the Courts in the Pacific Northwest: Justice Denied?’, Pacific Historical Review lii (1983) 191–211CrossRefGoogle Scholar.

32. In early January a resolution was introduced before the City Trustees, calling for a ban on Chinese residence within the city limits. It was not enacted but the fact that it was seriously debated is an index of the tenor of the times. See Sacramento Daily Record Union, Jan. 12, 1886.

33. Sacramento Daily Record Union, Feb. 19, 1886.

34. See The Enterprise, Oregon City, Oregon, Feb. 25, March 4, 1886.

35. See, e.g., Sacramento Daily Record Union, Feb. 23, 1886. He told a reporter that if he had officers to accompany him, he would take the illegally evicted Chinese back to Nicolaus.

36. Although direct evidence is lacking, it is rather difficult to believe that the two actions were not part of a coordinated strategy.

37. See letter from Lewis L. McArthur, U.S. Attorney for Oregon, to the Attorney General of the United States, March 2, 1886; Department of Justice Year File 980–84, No. 1659.

38. See case file In re Baldwin, File 3989, Federal Archives and Records Center, San Bruno, Ca.

39. Sacramento Daily Record Union, March 13, 1886.

40. The inspiration for using section 5519 came, in all probability from events in Washington Territory. The previous November, W.H. White, United States Attorney for the Territory, acting entirely on his own initiative, had secured several grand jury indictments under the section against anti-Chinese rioters. (See Department of Justice Year File 980–84 Docs. 2017, 2437, 2856, 9497, 9733, 9858.) Direct evidence is lacking, but one may speculate with some confidence that White's theory in proceeding under the section rested on an important dictum in The Civil Rights Cases 109 U.S. 3 (1883). The constitutional issue under review in those cases, it will be recalled, was almost identical to the issue in Harris, namely the extent to which Congress could legislate against purely private conduct. While the court held that Congressional power was quite limited when it came to the private conduct of individuals within the states, it declared that Congress had plenary power to pass legislation ‘in every branch of municipal regulation’ when it came to the territories 109 U.S. 3, 19, and the court in fact intimated that the legislation it was in the process of voiding insofar as it applied to the state might well pass constitutional muster as applied to the territories. (Both the legislation under review in The Civil Rights Cases and Sec. 5519 applied to the acts of individuals ‘in any state or territory’.)

It was one thing to seek to invoke the section in a federal territory, quite another to attempt to invoke it in the states where the Supreme Court had said with apparent finality it could have no application.

^41. No one in the United States Attorney's office had been consulted about either the filing of the complaint or the issuance of the arrest warrant. See letter of Hilborn to Attorney General Garland, Apr. 5, 1886. Department of Justice Year File 980–84, No. 2498.

42. Best account of the argument is to be found in the Sacramento Daily Record Union, March 17, 1886.

43. Ibid.

44. 21 How. (62 U.S.) 506 (1859).

45. Sacramento Daily Record Union, March 18, 1886.

46. Throughout the proceedings Hilborn was to remain little more than a semi-cooperative bystander. The fact that from beginning to end this criminal case was under the management and control of private attorneys was never raised as an issue by counsel for the other side.

47. Various accounts of the March 18 hearing are to be found in the San Francisco Bulletin and The Evening Post of that date and in The Morning Call (San Francisco) and Sacramento Daily Record Union of March 19, 1886.

48. For information on McAllister's life and career see Shuck, Oscar T., History Of The Bench And Bar Of California (Los Angeles, 1901), 417Google Scholar; and obituary notices published in San Francisco newspapers on the occasion of his death, Dec. 2, 1888.

49. 118 U.S. 356 (1886).

50. The Evening Post (San Francisco), March 30, 1886; Daily Alta California, Sacramento Daily Record Union, March 31, 1886.

51. These sections had also been used in the Washington prosecutions, supra note 40.

52. Sacramento Daily Record Union supra note 45.

53. The Evening Post (San Francisco), March 30, 1886.

54. The full text of the opinion was published in most San Francisco newspapers the next day. See, e.g., Daily Alta California, The Morning Call, April 1, 1886. The official report appears in 27 Fed. Rep. 187 (1886). Citations here are to the official report.

55. 27 Fed. Rep. 187, at 192–93.

56. Ibid. at 193.

57. In re Tiburcio Parrott, 1 Fed. Rep. 481 (1880). The case overturned a portion of the California Constitution and implementing legislation making it unlawful for California corporations to employ any Chinese laborers.

58. 22 Statutes at Large 827.

59. Supra note 1.

60. In re Baldwin, 27 Fed Rep. 187, 191 (1887).

61. Ibid. at 189.

62. Supra note 1.

63. 95 U.S. 80 (1878).

64. Ibid, at 89.

65. In re Baldwin, 27 Fed. Rep. 187, 191 (1887).

66. Ibid, at 194.

67. Sec. 6509 of the Revised Statutes of 1874 provided that when upon the trial or hearing of a criminal proceeding before a circuit court, a point occurred on which the judges were divided in opinion, the point of disagreement, upon motion of either party, should be certified to the Supreme Court for authoritative decision at its next session.

68. In re Baldwin, 27 Fed. Rep. 187, 194–95 (1887). The ‘other similar cases’ referred to the prosecutions then underway or under consideration in Washington and in Oregon.

69. Letter from Lorenzo Sawyer to A.H. Garland, Attorney General, April 5, 1886. Department of Justice, Year File 980–84, Doc. No. 2497.

70. Ibid. Document No. 2559.

71. Brief on Behalf of Petitioner, p. 20.

72. Act of May 31, 1870, Vol. 16, Statutes At Large, p. 141.

73. Brief for Respondent, pp. 15–18.

74. Act of July 31, 1861, Vol. 12, Statutes At Large, p. 284. Re-enacted in Act of April 20, 1871, vol. 17, Statutes At Large, p. 13.

75. Brief for Respondent, supra note 73 at 18–22. At the same time Deady denied the applicability of Sec. 5519 and did not instruct the grand jury on this section. See The Enterprise, Oregon City, Ore., March 25, 1886.

76. Brief for Respondent, supra note 73 at 29–33.

77. Baldwin v. Franks, 120 U.S. 678, 683 (1887).

78. Ibid, at 682.

79. Ibid, at 684.

80. Ibid, at 689, quoting Virginia Coupon Cases, 114 U.S. 269 at 305 (1885).

81. Ibid, at 685.

82. 92 U.S. 214 (1875).

83. Ibid, at 221, quoted with approval in Baldwin, 120 U.S. at 686.

84. See text supra at pp. 365–66.

85. Baldwin, 120 U.S. at 688–99.

86. Ibid, at 685.

87. Ibid, at 690–92.

88. Ibid, at 692–94.

89. Ibid, at 694–98.

90. Ibid, at 704.

91. Ibid, at 705.

92. Ibid, at 707.

93. As reported in The Evening Post, March 22, 1887.

94. Sacramento Daily Record Union, March 9, 1887.

95. Daily Alta California, March 10, 1887.

96. San Francisco Evening Post, March 8, 1887.

97. It is significant to note that on the very day of the Nicolaus incident Owyang Ming, the Consul-General in San Francisco and Consul Bee had telegraphed Gov. George Stoneman of California, pleading that he take immediate action but had received a terse and completely non-committal reply. See H.R. Exec. Doc. 49th Cong., 2nd Sess., Vol. 1, Foreign Relations of the United States (1886), p. 158.

98. See case file Wing Hing v. Eureka, File 3948, Federal Archives and Records Center, San Bruno, Ca.

99. See text and notes supra at pp. 355–56.

100. Note left by the Chinese Minister, Chang Yin-huan, at the Department of State, March 18, 1887; H.R. Exec. Doc. No. Sec. 18 244, 50th Cong., 2nd Sess., Vol. 1, Foreign Relations of the United States (1888), pp. 368–69.

101. Sandmeyer, supra note 6 at 99–102.