The Promise of Gold Mountain: Tucson's Chinese Heritage

"AS I KILL THIS CHICKEN SO MAY I BE PUNISHED IF I TELL AN UNTRUTH"
Chinese Opposition to Legal Discrimination in Arizona Territory

By Andrea Pugsley
Andrea Pugsley received an M.A. degree in history from Arizona State University in 2001 and is currently an archives specialist at the National Archives and Records Administration, College Park, Maryland. This article is adapted from her thesis, "The Chinese in Territorial Arizona Criminal Court Records." She would like to acknowledge Melanie Sturgeon and the staff of the Arizona State Archives for their assistance with this project.

Originally published in Journal of Arizona History, Summer 2003 p. 170-190

Note regarding Web version of this article. Photographs from the AHS collections were not available for inclusion in this online version. Please consult with the Arizona Historical Society to view the photographs that accompany the print version of the article.

On SATURDAY, August 1, 1891, Tucson's Arizona Daily Citizen announced the arrest of twenty-two local Chinese business men, each charged with selling cigarettes to a minor. The paper reported that City Marshal William Roche had notified the "celestials" that such sales were a misdemeanor, "but generally the warning was misregarded [ sic ]." Three days later, the defendants surprised the justice of the peace court by applying for a change of venue on the grounds "that it is impossible to secure justice before Judge [W.H.] Culver." Their petition was granted, but they were found guilty anyway. Undaunted, eighteen of the Chinese merchants appealed the judgment to the Pima County District Court. [1]

Although prosecution of the Tucson vendors may have been completely legitimate, the evidence suggests otherwise. The number of men arrested, the fact that all the defendants were Chinese, testimony that police deputies had sent the minor to purchase cigarettes, and especially the defendants' challenge to the court suggest that more was behind the arrests than simply breaking the law. Under careful scrutiny, these cases illuminate two significant aspect of the Chinese experience in Arizona Territory and throughout the late-nineteenth-century West: the law and law enforcement discriminated against the Chinese; and the Chinese fought back.

While Chinese immigrants fared better in Arizona Territory than elsewhere in the West, anti-Chinese feeling occasionally manifested itself in violence and threats of removal. More often, it took the form of laws restricting the activities of Chinese residents. Territorial criminal court records indicate that as Arizona's Chinese population grew in the late 1870s and 1880s, new laws regulating laundries and opium dens brought more and more Chinese before the judicial bench. Many of these cases resulted in judgments against the defendants. [2]

At the same time, Arizona's Chinese were hardly passive wayfarers in the courts. They hired attorneys to apply the law in their favor. If the Chinese had not challenged their arrests, very few cases involving anti-Chinese discrimination would exist in county superior court records. Many of these briefs appealed lower court rulings involving violations of opium laws, while a few challenged verdicts in assault and petit larceny cases. In some of these appeals, Chinese defendants directly assailed opium ordinances, laundry licensing, and other discriminatory laws, or objected to the discriminatory enforcement of such seemingly unbiased laws as selling cigarettes to minors. In doing so, they also challenged prejudice in late-nineteenth-century America.

Anti-Chinese sentiment produced discriminatory legislation throughout the West during the latter half of the nineteenth century. Arizona Territory escaped most of the hysteria of the 1850s and 1860s that produced the foreign miner's tax in California and Idaho's monthly head tax, enacted specifically to discourage Chinese immigration. Following complaints about overcrowding, stench, disease, fire hazards, prostitution, and gambling in Chinatowns, California communities passed ordinances regulating Chinese laundries and limiting the number of residents in a dwelling. [3]

The worst of the early laws affecting the Chinese arose from the 1854 California Supreme Court decision in People v. Hall that addressed a state statute barring the testimony of blacks, mulattoes, and Indians against white defendants. Reasoning that the Chinese were descended from the same racial stock as Indians and that, as nonwhites, they were the legal equivalent of blacks. The court ruled that they were similarly excluded from giving evidence against whites. The decision, which became law in California by 1860, meant that whites could attack Chinese with impunity. [4]

Arizona, as one of several western territories that based its constitution on that of California, adopted the prohibition against Chinese testimony. The 1865 Howell Code, Arizona's original set of laws, stated that "no black or mulatto, or Indian, Mongolian, or Asiatic, shall be permitted to give evidence in favor of or against any white person." Fortunately, the legal prohibition of Chinese testimony did not last long in the territory, as the Reconstruction period following the Civil War protected Chinese in the West, as well as blacks in the South. The Stewart Bill, enacted by Congress as part of the Civil Rights Act of 1870, nullified many state and territorial laws restricting the Chinese. The statute provided that all persons, with the notable exception of Indians, must be treated equally under the law. It also made it illegal to tax specific categories of foreign immigrants. In one stroke of the pen, Congress lifted from the shoulders of the Chinese the burden of discriminatory taxes and licensing fees and restored their right to testify against whites in court. [5]

Although the Stewart Bill guaranteed basic legal rights to the Chinese and protected them from special taxation, opportunities remained for states and territories to enact legislation that was equal on its face but discriminatory in its application. Moreover, labor agitation during the depression of the 1870s led to a new wave of anti-Chinese sentiment culminating in the Chinese Exclusion Act of 1882, the first in a series of federal laws that restricted Chinese immigration. By accommodating the popular demand to restrict Chinese entry into the United States, the federal government opened the door for western legislatures and courts to limit the rights of Chinese who were already in the country. The legal advances made by the Chinese during the 1870s were largely erased after 1882, as courts jumped back on the anti-Chinese bandwagon. [6]

One method of circumventing guarantees of Chinese civil rights was to question the ability of Chinese witnesses to tell the truth under oath. An 1881 Maricopa County assault case, Territory v. Ah How , provides an example of the tenuous position the Chinese occupied in territorial courts. When the defense counsel objected to witness Ah Song's competence to testify on the ground that he was a "Chinaman," Ah Song admitted that he did not know what an oath was. The concept was explained to him and, to ensure that he understood the gravity of his sworn testimony, Ah Song signed a statement attesting that "as I kill this chicken so may I be punished if I tell an untruth." Commonly held assumptions that the Chinese were "dishonest and unreliable" and that they had "no regard for the sanctity of an oath" may have discouraged, or even prevented, many Chinese from using the criminal justice system because they reasonably feared that they would not receive a fair hearing. [7]

Although the Civil Rights Act of 1870 prohibited states and territories from enacting laws that specifically targeted Chinese, legislatures nonetheless devised subtle methods of discrimination by attempting to regulate gambling halls, laundries, and other predominantly Chinese businesses. Public officials then determined how, and upon whom, they would enforce the laws. The number of court cases during the 1890s and the early 1900s relating to opium smoking, sanitation code violations, and other social crimes reflects both the growing Chinese population in Arizona and, more importantly, the increased number of laws governing Chinese activities. [8]

Chinese laundries were a common source of complaint in many cities and towns throughout the West. Where racial hostility often barred Chinese from mining and manufacturing, many immigrants were forced to take the only jobs that remained - in restaurants, vegetable farming, laundries, and other service occupations. Ironically, whites who often benefitted from these services, particularly if no one else was willing to take the positions, became alarmed that the Chinese were taking away jobs and money. Prescott and Phoenix newspapers condemned the Chinese monopoly on laundries. They suggested that enterprising whites should open their own establishments in order to promote competition and, also, to discourage immigration. [9]

For some whites, Chinese laundries were more than just an economic threat, they also endangered public health. Territorial newspapers frequently denounced washhouses as "public nuisances," where the "filthy practices of the Chinese in allowing pools of dirty and stinking water to accumulate around their laundries produce breeding places of disease which it is most wise to guard against." An 1896 article in the Tempe News lashed out against "the cesspools of Chinese washhouses," and described "the stench that arises from these places" as "something awful." Local governments responded to these complaints by enacting ordinances that regulated laundries as potential health hazards. "The action of the Common Council of Phoenix in declaring all wash houses in the city limits public nuisances, is commendable," the Arizona Gazette noted in 1881. [10]

It was easy for lawmakers to maneuver around the equal protection provisions of the 1870 Civil Rights Act when most, if not all, local laundries were run by Chinese and where enforcement of the ordinances was at the discretion of white authorities. The territorial legislature, however, went a step further in 1883 when it authorized the City of Phoenix to collect a quarterly license tax "from every Chinese wash-house within the limits of said city." In 1885, Yee Hop and other Chinese wash house owners were charged in Maricopa County court with violating the Phoenix city ordinance by operating a laundry without the proper business license. [11]

At least three laundry-related public nuisance cases were tried in county superior courts during the 1880s and early 1890s. In 1884, Charlie Yong was indicted in Gila County for disposing of "the refuse matter, slop swill and unwholesome liquids, and materials" from his wash house in such a manner that the "divers noisome and unwholesome smells and stenches were offensive and unwholesome to the great damage and common nuisance of all good Citizens of the County." Maricopa County charged Yo Sing with "keeping and maintaining a public nuisance" by emptying filthy water on the ground, while Pima County charged Kong Yen, Ah Young, Ah Wo, and Ah Joo with causing and permitting "refuse and dirty water and other debris to accumulate on their premises until the effluvia arising therefrom is offensive to the comfortable enjoyment of life and property in the neighborhood where maintained." [12]

Arizona towns, like many other municipalities throughout the West, also passed ordinances that criminalized opium smoking and licensed gambling establishments. While opium smoking had developed in China by at least the seventeenth century, widespread use and addiction began only after the British opium wars in the eighteenth and early nineteenth centuries. Like alcohol consumption among whites, Chinese opium smoking was largely recreational and, according to some experts, less destructive than imbibing liquor. Dr. Harry Hubbell Kane, writing in 1881, testified that he had "never seen a smoker who found pleasure in using the drug at home and alone, no matter how complete his outfit, or how excellent his opium." Other authorities suggested that the Chinese "were able to exercise better control over opium than most white miners could over whiskey, and that they seemed no better or worse for the habit." Although court records indicate that opium smoking in private residences was fairly common, the drug's social use made opium dens-along with saloons, gambling houses, brothels, and dance halls-part of many western communities' recreational underground. [13]

While some historians suggest that the number of actual addicts has been exaggerated, opium smoking was commonplace throughout the West. The typical opium user was a "young, poor, uneducated, uprooted" Chinese male, "without family, [and] perhaps both physiologically and psychologically battered." While many Chinese immigrants certainly fit at least part of this profile, not all opium smokers were addicted. Anthropologists Florence C. and Robert H. Lister argue that "figures on use of opium by nineteenth-century Chinese in America vary from 10 to 50 percent," while other studies conclude that anywhere between 15 and 30 percent of Chinese in California were addicts. In both cases, most Chinese either smoked opium socially or "indulged only as part of special occasions." [14]

Opium smoking was relatively unrestricted during the first few decades of Chinese immigration, and opium dens were an institutional aspect of mining camps. So long as opium use was limited to Chinese and the lower classes of white society, and so long as users did not cause problems, the public generally saw little need for regulation. The Virginia Chronicle , in Virginia City, Nevada, speculated in 1879 that opium smoking might even benefit the community insofar as it calmed down the "wafers, roughs and desperados" who inhabited the mining camp. Other places were less fortunate. Historian Roger McGrath found that most of the violence and lawlessness in Bodie, California's Chinatown was associated with opium dens and often involved white patrons. [15]

Town, state, and territorial governments acted to curb opium use only after abuse of the drug by whites became a problem. Even then, ordinances often targeted dealers rather than smokers. In Virginia City, operators of opium dens were arrested, while smokers were merely subpoenaed as witnesses. [16]

In Arizona Territory, concern about opium use grew as the Chinese population increased in the late 1870s. "Among the many evils and vices which the influx of Mongolian immigration has brought to the shores of the Pacific one of the worst is, without doubt, the detestable habit of opium-smoking, which is slowly and steadily growing upon our youths of both sexes," the Prescott Enterprise warned in 1877. "Many of our citizens would be astonished to see the number of men and women who visit these Granite Street hovels, at all hours of the day and night ... from some of our leading citizens down to the lowest harlot who plies her vocation on that street." The article called on local authorities to do something "to stop this detestable failing, which seems to possess such enticing qualities. " [17]

Other Arizona newspapers voiced similar complaints. In an 1879 article entitled "Chinese Crookedness: A Peep at the Interior of an Opium Den," the Phoenix Herald observed that "one of the few things which Americans have acquired by their relations with the Chinese, are the Chinese vices." The newspaper alerted its readers that "there now exist in Phoenix, numerous dens of infamy which, although owned and governed by Mongolians, [are] supported principally by Caucasians." The Herald reporter then conducted a tour of a typical establishment. "Passing through the front room, which is used as a laundry, and [guided] by a Chinese helper," he explained, "the visitor finds himself in a room about fifteen feet square, along the walls of which are ranged about a dozen bunks in two rows, each bunk capable of accommodating two persons, who, resting their heads on one pillow, face each other, between them a small glass lamp, (filled with a colorless Chinese oil, that burns without smoke or odor,) and a small jar made of horn and containing a little more than two thimblesful of the dark semi-fluid drug, opium." The occupants of the room, all Chinese save for two Anglo men and a woman, "seemed to be so totally under the influence of the drug, as to be unconscious of what was taking place around them." Such descriptions enhanced white concerns about Chinese opium dens and led to calls for their regulation. [18]

Many Arizona communities responded by enacting ordinances that prohibited the smoking of opium and imposed fines on the operators of opium dens. Prescott's 1880 ordinance stipulated that "any person who shall hereafter, within the corporate limits of the Village of Prescott, keep or maintain, or become an inmate of, or shall in any way contribute to the support of any place, house or room, where opium is smoked, or where persons assemble for the purpose of smoking opium or inhaling the fumes thereof, shall be declared guilty of a misdemeanor and shall be fined in the sum of not less than ten or more than one hundred dollars." By 1882, Tucson had passed a similar ordinance forbidding the "keeping of places for smoking opium" and imposing a fine on anyone convicted of acting as a lookout for an opium den. Tombstone went a step further by outlawing the smoking of opium. By 1884, Phoenix had enacted an ordinance that criminalized anyone who was present in a room where opium was being smoked. [19]

The territorial legislature lagged a step behind local communities in restricting opium use. In 1883, lawmakers passed a bill "To prevent the Keeping of Opium Dens." The statute prohibited the keeping or leasing of "any house, room or apartment, or other place of any kind, to be used as a place of resort by any person or persons for the purpose of indulging in the use of opium." It also prohibited anyone from visiting such a place "for the purpose of indulging in the use of opium." Conviction on either count could result in "a fine not exceeding five hundred dollars, or . . . imprisonment in the County jail for a period not exceeding six months, or both." Few cases were tried under the territorial law, which seems to have mirrored town ordinances. [20]

Although these laws brought Chinese before the courts, they were largely ineffective in stopping the opium trade. The Prescott Arizona Weekly Miner reported in 1880 that City Marshal James M. Dodson was holding "several Chinese gentlemen in limbo for an infringement of a certain City ordinance prohibiting the smoking of opium within the city limits." Prescott, Phoenix, and Tucson newspapers routinely reported raids on opium dens and described Chinese appearances in court for smoking opium. Although the raids and arrests generated fines, they were largely ineffective in closing down opium dens. [21]

Most court cases against Chinese in territorial Arizona involved violations of local opium ordinances. In a sample of cases with Chinese defendants in five counties between 1882 (prior to the territorial law) and 1908 (prior to passage of a federal law that prohibited importation of opium), 26 percent -- the highest percentage for any single crime -- were for violations ranging from keeping and/or maintaining an opium den to smoking opium. The fact that most of these cases were appeals of lower court convictions for city ordinance violations, indicates that the Chinese frequently challenged guilty verdicts.

Chinese defendants fared poorly in Arizona courts. The higher courts frequently dismissed or ignored cases that involved crimes against society, such as violations of laundry or opium ordinances, which meant that the lower court rulings held. Only 5 percent of these appeals were resolved in favor of the defendants. Where cases were not dismissed outright or ignored, superior court justices more often ruled against the Chinese than in their favor. In a study of Arizona's territorial justice system, historian Paul Hietter concluded that, although inequities existed, "minorities, particularly ethnic Mexicans, received relatively fair treatment far more than most scholars have acknowledged." The Chinese, on the other hand, "faced a higher likelihood of having their cases prosecuted to a verdict than did white and Mexican defendants." Hietter also noted that Chinese "were treated less equitably than whites in terms of indictment conviction rates." Conviction rates for Chinese, prior to 1900, were 61 percent, compared to 45.3 percent for whites. After 1900, conviction rates for Chinese and white defendants were "virtually equal." [22]

In Arizona and elsewhere, the Chinese followed a longstanding tradition of defending their civil rights. Ho Ah Kow v. Nunan , an 1870s California test case, established two important grounds for challenging anti-Chinese legislation: 1) that the Fourteenth Amendment applied equally to citizens and non-citizens; and 2) that, in rendering a verdict, courts could consider the motivation behind passage of a law. This became important in challenging statutes and ordinances that, while they appeared on the surface to apply equally, specifically targeted Chinese. Yick Wo v. Hopkins , another 1870s California test case, established yet another precedent that assisted the Chinese in their fight against discriminatory legislation. In Yick Wo , the justices determined that courts could judge the constitutionality of a law by looking at how it was administered. It was possible, therefore, to challenge statutes whose intent was unclear, but which were predominantly enforced against the Chinese. [23]

Chinese also challenged various opium laws, but with limited success. The fact that the courts more often targeted the Chinese who provided opium, rather than the smokers themselves, was a common problem. In 1880, Ah Sam challenged Nevada's Opium Act, which lawmakers had amended to prohibit places where opium was smoked. The Nevada Supreme Court upheld the law on the grounds that it was justified under the state's police power and that selling, using, and maintaining a place for the use of opium constituted a single offense. The court also noted that the Nevada statute outlawed only specific establishments, rather than banning opium dens in general. [24]

Arizona Chinese similarly challenged discriminatory laws and law enforcement. On one dramatic occasion, a group of Prescott laundrymen assaulted Sheriff John Behan with sticks. More often, Chinese expressed their objections, through lawyers, in court. A sample of 124 cases in five Arizona counties reveals that ninety-six of the Chinese defendants hired attorneys, while four declined counsel completely and three more refused the services of an attorney at the justice court level, either because they could not afford one or they simply chose to forego representation. No doubt many Chinese were represented by court-appointed lawyers, which accounts for the fact that the same attorneys who defended Chinese clients often found themselves prosecuting, or even judging others. [25]

As in Nevada, Arizona Chinese objected to being charged for multiple offenses under the territory's 1883 statute that prohibited both the use of opium and the maintenance of opium dens. For the most part, these cases were contained in the lower courts. Meanwhile, some Chinese charged with opium violations argued for dismissal on the grounds that lower courts lacked jurisdiction or that the local ordinances under which they were charged conflicted with territorial law. In 1884, Ah Choy moved for dismissal of charges against him on the grounds that "the complaint shows upon its face that the court has no jurisdiction of the subject matter charged, the same being an indictable offense under the laws of the Territory." See Fy demurred his 1895 conviction for being present in a Phoenix opium den by arguing that "the said section of the ordinance mentioned in said complaint ... is in conflict with the general territorial law, and void." Despite the obvious overlap in the law, the court overruled See Fy's objection. [26]

In other cases, Chinese defendants challenged the opium laws as discriminatory. In 1893, Chung Hung and others charged with visiting an opium den unsuccessfully petitioned the Yavapai superior court to overturn their conviction in a lower court on the grounds that the "clause of the [Prescott] city ordinance ... under which complaint and affidavit were drawn, and under which said defendant was prosecuted, tried and convicted in the court below is null and void, under the constitution and laws of the United States, and the Bill of Rights and laws of this Territory." [27]

Occasionally, Chinese scored small victories by exploiting ambiguities in the territorial statute. In 1884, Son You was arrested for smoking opium in his Phoenix residence. The district court remanded the case when Son You presented a physician's certificate prescribing opium. He explained that he had smoked opium since he was a boy and was trying to quit, but could not. Eleven years later, the Maricopa County district court dismissed charges against Loue Jung and Lee Fy who argued that they too had been smoking opium in their private residence. [28]

Arizona Chinese also mounted court challenges to other discriminatory legislation. Shortly after Phoenix enacted an 1881 ordinance that required the licensing of washhouses within the city limits, the Arizona Gazette noted that "the heathens ... do not take kindly to the ordinance, and, we understand, are disposed to pay no attention to the official notification preferring to contest the matter in the courts." The reporter apparently "asked a mongul [ sic ] for an expression of his opinion on the subject and the trite though somewhat irrelevant answer we received was 'D-n fool Phoenix.'" [29]

The battle still raged five years later, when the Phoenix Daily Herald speculated that "many of our citizens may not be aware that the Chinese laundries of the city are paying no license tax." The newspaper explained how "the laundries refused to pay the tax levied by the City Council, and the matter was tried before the District Court and submitted to his Honor Judge W. W. Porter, who for some reason, unknown to your correspondent, keeps his decision of the case in abeyance." The reporter went on to mention that "these laundries are the greatest nuisance in the city and in like cases tried in the courts of the Pacific States have always been compelled to pay their license tax." If Judge Porter should hand down a similar ruling, "the amount of license tax that has accumulated pending this case, will be enough to clear up the indebtedness of the city and will leave a clean balance sheet for the current council year." [30]

The Daily Herald may have been referring to the case of Yee Hop, who in the summer of 1885 was charged with violating a Phoenix city ordinance "by transacting a business for which a license is required." In appealing Yee Hop's case, along with the cases of eight other Chinese laundrymen, to the district court, attorney H. N. Alexander explained that the defendants waived the right to a trial in lower court because they were "anxious to test the legality of said ordinance before a Court of complaint and superior jurisdiction." A decision in Yee Hop's case would stand for all. Although it is unclear whether the district court handed down a decision, Phoenix's Chinese businessmen obviously were willing to fight for their rights. [31]

The appeals of the eighteen vendors arrested in Tucson in 1891 for selling cigarettes to a minor provide further evidence of Chinese determination to battle discrimination through the courts. The plea to the Pima County district court was unusual because the complainants openly accused the court and Tucsonans in general of anti-Chinese sentiment. Each defendant requested a change of venue on the grounds that he could not receive a fair and impartial trial "by reason of the prejudice of the citizens of the said Precinct against that class of persons known as 'Chinamen,' of which this defendant is one," and "by reason of the bias and prejudice" of both presiding justices of the peace. [32]

As with laundry licensing, the March 1891 Tucson ordinance that prohibited the sale of cigarettes to minors under sixteen years of age--which appears indiscriminate on the surface--may have been biased in its enforcement. While there is no conclusive proof that the Chinese merchants were discriminated against, their sworn statement that Tucson courts and citizens were prejudiced, coupled with facts of the case, indicate that they may have been targeted for prosecution under the cigarette ordinance. In his brief for defendant Don Yan, attorney C. W. Wright pointed out that the minor, John Simpson, had purchased the cigarettes for three adult city constables. The fact that Simpson was cited in all eighteen cases, suggests that the lawmen had used the boy to entrap the Chinese vendors. Although the outcome of the trial is uncertain, the case files suggest that the merchants were found guilty. Attorney Wright filed a motion to set aside the justice court decision and to grant a new trial in district court. There is no evidence that a second trial was held. [33]

Discrimination was a fact of life for minorities in the nineteenth-century West. Whites generally relegated Hispanics, Indians, and Chinese to the bottom rungs of society, where they experienced hatred, disgust, and even physical violence. When Reconstruction-era reformers attempted to improve the legal status of minorities, society found other methods of discrimination. Eventually, the federal government responded to public pressure by restricting immigration from Asia and elsewhere. Meanwhile, cities, states, and territories enacted laws regulating the Chinese in everything from housing and recreation to economic activities. Occasionally, the burden of seemingly unbiased laws fell disproportionately on the Chinese. While Arizona never experienced the anti-Chinese fervor that erupted in other states and territories, anti-Chinese sentiment nonetheless existed in the form of ordinances that required the licensing of washhouses and that prohibited the use of opium. Enforcement of these laws brought many Chinese before the county courts.

Chinese were not simply the victims of a prejudiced society, as they often have been portrayed. Increasingly, historians have attempted to tell the story of what Chinese immigrants accomplished in America; to highlight what they did, rather than what was done to them. When they failed to receive equal justice in front of the bar, the Chinese challenged the judicial system and tried to improve it. They hired lawyers, appealed lower court judgments, and attempted to change the law. In some places they succeeded; elsewhere they failed. Even when they lost, the Chinese made a statement that they refused to play the role of passive victims. It was a declaration that white society often resented.

Today, little physical evidence remains of the Chinese presence in Arizona. The old Chinatowns have been demolished to make way for office buildings and strip malls. Remarkably, descendants of some of the original pioneer families survive, and even thrive. Archaeological sites document the remains of old settlements. And Chinese voices speak to us from legal records housed in archives and county courthouses. These case files provide yet another perspective on the Chinese experience in Arizona, and open another chapter chronicling the Chinese impact on the American West.

NOTES

1. Arizona Daily Citizen (Tucson), August 1 and 4, 1891.

2. W. N. Davis, Jr., "Research Uses of County Court Records, 1850-1879, and Incidental Intimate Glimpses of California Life and Society, Part I," California Historical Quarterly , vol. 52 (Fall 1973), pp. 241-42. For additional discussions of the use of court records in studying the history of crime and justice, see W. N. Davis, Jr., "Research Uses of County Court Records, 1850-1879, and incidental Intimate Glimpses of California Life and Society, Part II," ibid., vol. 52 (Winter 1973), pp. 338-65; Richard Crawford and Clare V. McKanna, "Crime in California: Using State and Local Archives for Crime Research," Pacific Historical Review vol. 55 (May 1986), pp. 284-95; and Lawrence M. Friedman and Robert V. Percival, The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910 (Chapel Hill: University of north Carolina Press, 1981). Superior court criminal cases from Cochise, Gila, Maricopa, Pima, and Yavapai counties were used in this study. These counties were selected because of their relatively large Chinese populations and the availability of records.

3. Elmer Clarence Sandmeyer, The Anti-Chinese Movement in California (Urbana: University of Illinois Press, 1973), pp. 36-37

4. Stanford Lyman, "Chinese Seeking Justice in the Courts of the United States: A Constitutional Interpretation," in Origins and Destinations: 41 Essays on Chinese America (Los Angeles: Chinese Historical Society of Southern California, 1994), p. 47. See also Charles J. McClain, "the Chinese Struggle for Civil Rights in Nineteenth Century America: the First Phase, 1850-1870," California Law Review , vol. 72 (July 1984), pp. 548-50. An 1865 court decision established that a Chinese person could testify against other Chinese. Ibid., p. 560.

5. The Howell Code adopted by the First Legislative Assembly of the Territory of Arizona (Prescott: Office of the Arizona Miner, 1865), Chapter 5, Section 14, p. 50; Charles J. McClain and Laurette Wu McClain, "The Chinese Contribution to the Development of American Law," Charles J. McClain, ed., Chinese Immigrants and American Law (New York: Garland Publishers, 1994), p. 140; Civil Rights Act of 1870, Chapt. 224, Sec. 16, 16 Star. 140, 141, quoted in McClain, "The Chinese Struggle for Civil Rights," p. 566.

6. John R. Wunder, "The Chinese and the Courts in the Pacific Northwest: Justice Denied?" Pacific Historical Review [PHR] vol. 52 (May 1983), p. 204; John R. Wunder, "Law and Chinese in Frontier Montana," Montana , vol. 30 (Autumn 1980), p. 18. Not all states followed this pattern. Idaho Supreme Court decisions after 1882 did not appear to be greatly influenced by anti-Chinese feeling. John R. Wunder, "Courts and the Chinese in Frontier Idaho," Idaho Yesterdays , vol. 25 (Spring 1981), p. 30. Largely because of improved court procedures concerning the Chinese, southwestern courts (particularly in Nevada) handed down more favorable rulings after 1882. John R. Wunder, "Law and the Chinese on the Southwest Frontier, 1850s-1902," Western Legal History vol. 22 (Summer/Fall 1989), pp. 153-54.

7. Territory v. Ah How , Case No. 22, Maricopa County Superior Court Criminal Division (MCSCCD), Film File l, Record Group (RG) 107. Arizona State Library, Archives, and Public Records (ASLAPR), Phoenix. Because some whites believed that Chinese were "dishonest and unreliable" and that they had "no regard for the sanctity of an oath," many western states required that Chinese witnesses prove that they were not liars. Fear that they would not receive a fair trial may have discouraged Chinese from using the criminal justice system. Sandmeyer, The Anti-Chinese Movement in California , p. 34; John R Wunder, "Chinese in Trouble: Criminal Law and Race on the- Trans-Mississippi West Frontier," Western Historical Quarterly vol. 17 (January 1986), pp. 26-27.

8. See, for example, the actions of the San Francisco board of supervisors discussed in McClain and McClain, "The Chinese Contribution to American Law," p. 144. Prior to 1880, the few Chinese defendants who appeared in Arizona courts were mainly charged with theft or with crimes against persons. The number of Chinese defendants increased after 1880, mirroring the growth in the Chinese population, and remained fairly constant until 1900. The types of crimes with which Chinese were charged changed, however, beginning in the 1890s.

9. Bradford Luckingham, Minorities in Phoenix: A Profile of Mexican American Chinese American, and African American Communities, 1890-1992 ( Tucson: University of Arizona Press, 1994), pp. 87-88; Florence C. Lister and Richard H. Lister, "Chinese Sojourners in Territorial Prescott," Journal of the Southwest , vol. 31 (Spring 1989), pp. 52-54.

10. Arizona Gazette (Phoenix), November 14, 1881; March 12, 1884. Melissa Keane et al., The Chinese in Arizona, 1870-1950. A Context for Historic Preservation Planning (Phoenix: Arizona State Historic Preservation Office, 1992), p. 28.

11. "An Act Authorizing the City of Phoenix to Levy a Quarterly License Tax on Chinese Wash Houses, and to Amend Section 1, Article XVIII of the Charter of Said City," Act 54, Twelfth Territorial Legislature (1883), Box 74; Territory v. Yee Hop , Case No. 167, Film File 3, RG 107, ASLAPR.

12. Territory v. Charlie King , Case No. 59, microfilm 59.4.3, Gila County Superior Court Criminal Division (GCSCCD), RC: 103; Territory v. Yo Sing , Case No. 316, MCSCCD, Film File 5, RC: 1117; Territory v. Kong Yen et al ., Case No. A370, microfilm 85.6.4, Pima County Superior Court Criminal Division (PCSCCD), RG 110, ibid.

13. Sharon Lowe. "Pipe Dreams and Reality: Opium in Comstock Society, 1860- 1887," Nevada Historical Quarterly , vol. 36 (Fall 1993), pp. 184-85 (Kane quote); Russell M. Magnaghi, "Virginia City's Chinese Community, 1860-1880 ," Nevada Historical Society Quarterly vol. 24 (Summer 1981), p. 139; Keane, The Chinese in Arizona , p. 20; W. Eugene Hollon, Frontier Violence: Another Look (London: Oxford University Press, 1974), p. 89. Luckingham, Minorities in Phoenix , p. 87, argues that local communities enacted licensing laws in order to generate revenue from fines. Gambling licenses affected more people than the Chinese. Lawrence M. Friedman and Robert V. Percival, The Roots of Justice: Coolie and Punishment in Alameda County, California , 1870-1910 (Chapel Hill: University of North Carolina Press, 1981), p. 90, argue, however, that the Chinese were singled out for moral outrage by the Anglo community who viewed Chinatown "as a place of gambling, prostitution, [and] opium addiction" and condemned the Chinese for corrupting youth through the sale of cheap lottery tickets. Laws regulating opium were obviously directed against the Chinese, but they were not generally enacted until opium smoking became a problem among whites.

14. Florence C. and Robert H. Lister, The Chinese of Early Tucson Historic Archaeology from the Tucson Urban Renewal Project (Tucson: University of Arizona Press, 1989), p. 80; Lowe, "Pipe Dreams and Reality," pp. 182-83.

15. Lowe, "Pipe Dreams and Reality," p. 140; Magnaghi, "Virginia City's Chinese Community," p. 140; Roger D. McGrath, Gunfighters, Highwaymen & Vigilantes: Violence on the Frontier (Berkeley: University of California Press, 1984), pp. 125, 139.

16. Magnaghi, "Virginia City's Chinese Community," p. 140-41.

17. Enterprise (Prescott), August 13, 1877, quoted in Lister and Lister, "Chinese Sojourners in Territorial Prescott," pp. 38-39.

18. Phoenix Herald , October 29, 1879.

19. Territory v. Fong Hing , Case No. 883, microfilm 90.3.3, Cochise County Superior Court Criminal Division (CCSCCD), RG 101; Territory v. Ling Lum , Case No. 109, MCSCCD, Film File 2, RG 107; Territory v. Ah Chill , Case No. Al18, microfilm 85.6.3, RG 110, ASLAPR. The Prescott ordinance is quoted in Lister and Lister, "Chinese Sojourners in Territorial Prescott," p. 39.

20. "An Act to Prevent the Keeping of Opium Dens," Act 44, Twelfth Territorial Legislature, Box 73, ASLAPR.

21. Arizona Weekly Miner (Prescott), June 4, 1880; Arizona Gazette (Phoenix), April 13, 1883 and July 26, 1884; Phoenix Daily Herald , December 14, 1895; Prescott Weekly Courier , February 17, 1893; Arizona Daily Citizen (Tucson), October 11, 1902. Todd Bostwick et al., First Street and Madison: Historical Archaeology of the Second Phoenix Chinatown (Phoenix: Dames and Moore, 1992), p. 50; Luckingham, Minorities in Phoenix , p. 87. A 1909 federal law restricted the opium trade, but enforcement did not occur until the 1915 Harrison Narcotics Act. Keene et al. The Chinese in Arizona , p. 20. Lister and Lister The Chinese of Early Tucson , pp. 79-80, mention that although Tucson probably had enacted an opium ordinance by 1880, "any town ordinance that may have been violated apparently soon was overlooked because Sanborn mappers in 1883 indicated two opium dens located in the Chinese quarter."

22. Paul Hietter, "A Surprising Amount of Justice: the Experience of Mexican and Racial Minority Defendants Charged with Serious Crimes in Arizona, 1865-1920," PHR , vol. 70 (May 2001), pp. 186, 206-207, 210. Only one Chinese was indicted on an opium charge (in 1883) after passage of the 1882 territorial law. Most cases appealed to the district courts were for keeping or maintaining an opium den, or for selling opium without a prescription. Other Chinese were indicted for using or smoking opium, or for being present in an opium den. One unlucky person fell victim to Tucson's proscription on acting as a lookout at an opium den.

23. McClain and McClain, "The Chinese Contribution to the Development of American Law," pp. 137, 142-43, 145, 147. Lynwood Carranco, "Chinese in Humboldt County, CA: A Study in Prejudice," Journal of the West , vol. 12 (January 1973), p. 144, argues that "it was the 'coolies' from Asia, not the Indians or Negroes, who made the first great test of the Civil War amendments and the legislation which came with those amendments."

24. Magnaghi, "Virginia City's Chinese Community," p. 140; Wunder "Law and the Chinese on the Southwest Frontier," p. 147. the results in State of Nevada v. Ah Chew , which immediately followed the Ah Sam case, were even worse. In rejecting Ah Chew's argument that the Fourteenth Amendment extended to Chinese as well as blacks, Nevada Supreme Court Justice Hawley concluded that "the language used necessarily extends some of the provisions to add persons of every race and color; but their general purpose is so clearly in favor of the African race, that it would require a very strong case to make them applicable to any, other." [bid., pp. 147-48.

25. Territory v. Tom King, Sam Jow, Ah Kung, and Ah Jim , Unnumbered case, 1879, microfilm 50.14.6, Yavapai County Superior Court Criminal Division (YCSCCD), RG 113, ASLAPR. The court record is unclear regarding the exact provocation for the attack. Attorney Frederick Nave prosecuted Quong Hang Woo and Mah Sing in Gila County court in 1905 and defended Chin Foo in 1909, Territory v. Quong Hang Woo , Case No. 462, microfilm 69.4.7; Territory v. Mah Sing , Case No. 463, microfilm 69.4.7; and Territory v. Chin Foo , Case No. 684, microfilm 69.4.11, MCSCCD, ibid.

26. Territory v. Ah Choy , Case No. 111, Film File 2; Territory v. See Fy , Case No. 685, Film File 9; Territory v. Fong Sing , Case No. 472, Film File 7, all in MCSCCD, RG 107, ibid. Violations of the 1883 territorial opium law were usually contained in the lower courts, although many can be found on appeal in superior court records. Fong Sing was charged with smoking opium and being present in a place where opium was smoked, both common provisions of opium laws.

27. Territory v. Chung Hung et al. , Case No. 194, microfilm 50.14.18, YCSCCD, RG 113, ibid.

28. Territory v. Son You , Case No. 110, Film File 2; Territory v. Loue Jung and Lee Fy , Case No. 683, Film File 9, MCSCCD, RC: 107 ibid.

29. Arizona Gazette , November 14, 1881.

30. Phoenix Daily Herald , April 14, 1886.

31. Territory v. Yee Hop , Case No. 167, Film File 167, MCSCCD, RG 107. Territory v. Yee Hop , p. 170, Maricopa County Register of Criminal Actions, ASLAPR, records the case as on appeal from the Recorders Court, November 3, 1885 (probably the date the appeal was entered). No other information is provided.

32. Territory v. Sang Chung , Case No. A403, microfilm 85.6.5; Territory v. Lit Gee , Case No. A404; Territory v. Hang Hing , Case No. A405; Territory v. Wah Hing , Case No. A406; Territory v. Jack Hing , Case No. A407; Territory v. Ling Kee , Case No. A408; Territory v. Yuen Lee , Case No. A409; Territory v. Wah Lung, Case No. A410; Territory v. Gin Lung , Case No. A4ll; Territory v. Lee Quin , Case No. A412: Territory v. Su Sing , Case No. A413; Territory v. Lee , Case No. A414; Territory v. Don Yan , Case No. A415; Territory v. Lee Yan , Case No. A416; Territory v. Su You , Case No. A417; Territory v. High Wah , Case No. A418; Territory v. Nee Wo , Case No. A419; Territory v. Yuen Wo , Case No. A420, microfilm 85.6.5, all in YCSCCD, RG 110, ASLAPR.

33. Territory v. Don Yan . The law, as printed in the Phoenix Daily Herald , August 1, 1891, stated that "it shall be unlawful for any person in the territory to sell, give or furnish, or cause to be sold, given or furnished any cigarettes to any minor under the age of sixteen years." The motion to set aside the lower court verdict and grant a new trial in district court can be found in all the case files cited in note 32.

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