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Native Americans, the Chinese, and the Definition of Status

Two other racial minorities, native Americans and Chinese, were also affected by changes in the law of personal status. In both instances the ideal of equality before the law was never fulfilled.

Where the law of black personal status was based on local and state control, that of the native American was federal. The Supreme Court, in Cherokee Nation v. Georgia ( 1831), had declared the Indians a "dependent domestic nation," and Congress had acted accordingly, pursuing a policy of separatism through the reservation system. 53

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By the end of the nineteenth century, Congress reversed itself, embracing a new policy of assimilation and destruction of Indian culture. White economic self-interest explains part of the change; western farmers, ranchers, and railroad men hungered for reservation lands. There were less materialistic impulses as well. Well-documented abuses on the reservations had an impact on public opinion, and white reformers sought to solve the Indian problem by simply absorbing the native American population.

The high point of this movement was the Dawes Severalty Act of 1887. It permitted native Americans to obtain homesteads and become U.S. citizens, losing their status as members of a particular tribe. The act had strong support in the West, for it promised a rapid opening of valuable reservation lands to white development.

The Indians resisted assimilation and so too did southern racists concerned with preventing any kind of race mixing. Secretary of the Interior L. Q. C. Lamar, a Mississippian who took the scientific racist theories of his day seriously, thought the black experience relevant to that of native Americans. "The tribal system must be adhered to," Lamar proclaimed, "[i]t is the normal condition of the existence of this race." 54 Although Congress ceased making formal treaties with Indians in 1871, the courts continued to treat the tribes as distinct alien nations of quasi-sovereign people. As a result, native Americans before the law had a shadowy form of nationality as domestic subjects without genuine citizenship. That was not extended until 1924. The criminal jurisdiction of the federal territorial courts did not reach the reservation until 1885, and in many noncriminal matters, the reservation Indians remained "a people without a law." 55 This condition applied even after 1898, when the Curtis Act ended tribal courts and brought the reservations under the full jurisdiction of the federal judicial system.

 

The Chinese

The Chinese were the most exotic of the wave of nineteenth-century immigrants. The press and "scientific" racists characterized them as purveyors of drugs and prostitution; the white working class viewed them as a threatening source of cheap labor.

As the numbers of Chinese increased, their status before the law declined, especially in the American West where they were concentrated. The California constitutional convention of 1879, for example, was a hotbed of Sinophobic sentiment. Dennis Kearney, the leader of the state's Workingman's party, persuaded the delegates to exclude all resident Chinese from the suffrage and to forbid their employment on public works. Earlier in the decade the state had authorized segregation of Chinese and Japanese in public schools. State and local governments engaged in an orgy of restrictive measures. These included laws penalizing corporations that hired Chinese labor, empowering municipalities to remove them from city limits, and forbidding them from obtaining occupational licenses. The San Francisco Board of Supervisors prohibited any person to conduct a laundry business in a building constructed of wood, the common building material of the Chinese.



The federal Ninth Circuit Court of Appeals and the Supreme Court struck down most of this legislation. In Yik Wo v. Hopkins ( 1886) the high court held that such discrimination was an illegal "denial of the equal protection of the laws and a violation of the Fourteenth Amendment." 56 But Justice Stephen J. Field, who presided over the Ninth Circuit Court in California and was also a member of the Supreme Court, had

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little concern for Chinese equality. "Our institutions," he said, "have made no impression on them during the more than thirty years they have been in the country. . . . They do not and will not assimilate with us."57

Organized labor in the West persuaded Congress to restrict the Chinese influx. The Chinese Exclusion Act of 1882 proclaimed that "the coming of the Chinese laborers to this country endangers the good order of certain localities." Justice Field, who voted in 1889 to uphold the act, confessed to "a well-founded apprehension--from the experience of years--that a limitation to the immigration of certain classes from China was essential to the peace of the community on the Pacific Coast, and possibly to the preservation of our civilization." 58 Congress renewed the act in 1892 and in 1902 suspended all Chinese immigration indefinitely. The results were dramatic: the population of Chinese dropped from a high of 104,000 in 1880 to 85,000 in 1900.

The first Chinese Exclusion Act coincided with the collapse of Reconstruction. Both seem to have been watersheds in the treatment of Chinese before the courts. As territories became states, a new legal system went into place, one staffed by local rather than national personnel. Until about 1882 the Chinese often received support from the appellate judiciary. In the case of Charley Lee Quang ( 1879), for example, the Oregon Supreme Court overturned the conviction of three Chinese defendants found guilty of murder, because the trial judge failed to inform the jury that the Chinese, who did not believe in the sanctity of Christian oaths, might be lying. Counting both civil and criminal cases, Chinese won a majority of cases brought on appeal in the Pacific Northwest before 1883. Thereafter, their position before the law steadily eroded, and from 1883 to 1902 they lost nearly 70 percent of their appeals in criminal cases and almost 60 percent in civil actions. State supreme courts joined in "the wave of anti-Chinese sentiment following the Exclusion Act of 1882." 59

 

Race and the Shift from Status to Contract

"The movement of progressive societies," the Englishman Sir Henry Maine concluded in 1861, "has hitherto been a movement from Status to Contract." 60 Maine believed that the modern legal order would make talent and ability more important in determining personal status than such ascribed characteristics as race, sex, and family. Maine's vision was hopeful and unfulfilled. Yet change was under way, and the Civil War was a watershed. Until then racial minorities were subject to the vagaries of local majorities, but after the Civil War the federal government had the constitutional basis for a potentially far-reaching role in defining their legal status. The moral imperative of the antislavery movement was expressed in legislative enactments and constitutional amendments.

Change and progress were not synonymous. If slavery was dead, legally enforced segregation, involuntary servitude, paternalism, and political exclusion replaced it. From the perspective of 1787, the changes made in the law of personal status were dramatic, but even when the law recognized equality it did not guarantee it.

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8
The Nineteenth-Century Law of Domestic Relations

 

Rise of the Republican Family

The eighteenth-century American family was a vital link in the chain of social authority. Households, in the words of historian John Demos, were "little commonwealths" tightly integrated into the community. 1 Within the family, as in the larger political society, patriarchy ordered social relations. Fathers dominated, with wives and children yielding to their authority. Demos, for example, found in his study of the Plymouth Colony that patriarchy (the rule of the family by its male head) rested on a "deep and primitive kind of suspicion of women, solely on account of their sex." 2 The birth of a child in rural colonial America was welcomed as the arrival of a future laborer and as security for parents later in life. While affection certainly existed in family relations, colonial Americans placed authority over liberty, stability over change, and community values over individual self-interest.

The ideological and economic forces that flowed from the American Revolution challenged these traditional arrangements. Republicanism fostered a family order in which authority was accountable, property rights were equated with independence, and human relations were set in contractual terms. The new republican family was a private, inward-looking institution, in sharp contrast to the community-oriented little commonwealths of the colonial era.

Market capitalism also shaped the republican family. As the nation's economy was transformed from an agricultural to a commercial base, the relative values of family members changed as well. Fathers went away from home to work and earn a wage, while mothers assumed responsibility for the domestic sphere. Children became precious to families in the middle and upper classes, losing some of their economic value as workers. During the nineteenth century each family member gradually assumed a

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new identity, and together they sought refuge from a competitive and materially acquisitive world by their individual hearths. 3

These ideological and economic changes bred a cult of domesticity and companionate marriage. The gradual separation of the work place from the home granted wives new autonomy in the domestic sphere, but they also assumed the burden of being the moral guardians of the nation. Companionate marriage complemented this cult of domesticity. Marriage emerged as an institution in which love, affection, and companionship were valued. Nineteenth-century writers on the family, for example, urged husbands, who were often absent for long days at work, to develop closer emotional ties with their wives, to treat them as equals in the home, and to place themselves and their children under the wife's moral guidance. 4

The rise of the republican family was accompanied by the development of a new body of substantive law, that of domestic relations. At the beginning of the century, questions involving the legal status of the family were scattered through several different categories of law: contract, property, and tort, for example. By the end of the century, however, a unified body of domestic relations law had emerged that involved courtship, marriage, property rights of wives, adoption, divorce, and child custody. An increasingly technical treatise literature accompanied it, and one of its pioneer authors, Joel P. Bishop, wrote in 1868 that "a practitioner familiar with every other department of law, yet is unread in [family law], cannot give sound advice on questions coming within this department." 5

 


Date: 2015-01-29; view: 718


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