[Thomas Fitch, Recollections and Reflections No. 24, San Francisco Call, 28 February 1904]

 

THE SAN FRANCISCO SUNDAY CALL.                                                               15

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RECOLLECTIONS AND REFLECTIONS OF THOMAS FITCH.

Territories and Chinese.

Copyright 1904, by Thomas Fitch.

            TERRITORIAL appointments are often a subject of sore perplexity on the White House, and the President never lived who could satisfy at once the applicants and the people whom they are sent to rule. The national conventions usually enact resolutions declaring that Territorial appointments should he made from among the citizens of a Territory, and the incoming President as a rule pays about as much attention to the resolutions as the pig paid to the request of his driver to proceed in the direction of Cork, when his porkship was headed for Kilkenny. Delegate Mark Smith of Arizona, who was a favorite with Grover Cleveland, once called at the White House to remonstrate against a pending appointment of a stranger from the East to a Territorial office. He reminded the President of a resolution of the national convention to the effect that such appointments should be made from Territorial residents. "Mark," burst forth the badgered executive, "go and read the records.  Read the applications from Arizona and read the protests and affidavits against them, and if you can find a single office seeking Arizonan who on the showing made ought not to be in the penitentiary I will appoint him."

            To send acceptable strangers to a distant Territory, as England sent her ancient spinsters in the eighteenth century around the Cape of Good Hope "for India and a market," is a task the performance of which is not free from difficulty. It is the lame ducks who seek a chance to swim in distant waters. It is the cripples of politics who desire to carry their limps to a new land. It is those who have been discarded by conventions or who have been beaten at the polls who seek the Territorial offices, and Congressmen and Senators who have succeeded are only too anxious to provide abroad for those maimed ones who cannot be provided for at home, and so the Territories have often, despite of national convention resolutions, been made offal heaps on which to deposit the sweepings of Eastern caucuses.

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            Hawaii was freed from the blessing or blight of non-resident appointments through the insertion by Congress in her organic act of a clause providing that appointments should be made only from those who had been three years resident in the Territory. This clause was not after all an unmixed blessing, because of local conditions never existing in any other Territory. There was not a man in Hawaii of sufficient ability or character to be fit for Territorial office who had not actually either fought or favored annexation. Hawaii did not come to the arms of Uncle Sam a blushing but willing bride. She was married a la Sabine, with a black eye and a bloody nose for her trousseau. I am not proposing to discuss here or at this day the wrongs of Queen Liliuokelani or the righteousness of the acts of these who struck her crown from her head. Hawaii is with us now, for good and all, and I rejoice, as every American citizen ought to rejoice, that the flag is there, however it got there.

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            But the problem which annexation created ought not to be ignored. It has ever been the policy of wise victors to reconcile and not to irritate the vanquished. Rome made friends of Goth and Gaul by enrolling them under her eagles and sending them to fight In Africa. Diaz transformed captured bandits into policemen by giving them their choice between death and enlistment. "Great men gain doubly when they make foes friends." The Governor and executive officers and Judges of Hawaii had to be appointed either from those who helped annexation or from those who fought it, and as between those two factions it was logical, it was, indeed, inevitable, that the annexationists should receive the places.

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            Under all the circumstances most of the appointments were successes. The present Circuit bench averages well for independence and ability. The Supreme bench, although somewhat saturated with the ideas of paternalism acquired under a monarchial government, is reasonably fair, and is certainly rigidly honest, and Governor — now United States District Judge — Sanford B. Dole has surely most successfully steered his ship of state through vexed waters. His successor, George A. Carter, has his record to make. He is a Harvard graduate, a broad man, a lifetime resident of Honolulu and he possesses the confidence of his friends and the respect of his enemies.

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            Hawaiian legislatures and courts have followed California precedents and California prejudices in dealing with the Chinese. As early as 1851 the Supreme Court of California set the pace in People vs. Hall, reported in 4th California 339, that the evidence of a Chinaman would not be received in a California court because, not being white, he was therefore black, that being black, he was therefore a negro within the meaning of the California statutes, which excluded negroes from the witness stand.

            And in order to clinch the matter the court further decided that when Columbus discovered America he was looking for India and supposed that he had found it; that he therefore called the aborigines "Indians"; that the term was generic; that India and Asia were convertible terms; that a Chinaman being an Asiatic was therefore an Indian, and being an Indian was prohibited by law from testifying against a white man, and so Mr. Hall, the proud Caucasian who had been improperly convicted on negro-Indian testimony of shooting a Chinaman into glory, was ordered to be released.

            Later this class of legislation was swept from the statute books, and a Chinaman was allowed to testify, but courts and juries reserved the privilege of not believing him.            

            The Chinese are cunning as well as bland, and they entirely appreciate the nice points of a lawsuit. I have had, in the course of my practice, a few Chinese clients, but none do I bear in mind as more cool and collected than Sam Lee. He was a highbinder, a fantan dealer, a fist and gun fighter and an all-round Chinese bad man. He was accused by a fellow Celestial of assault with intent to commit murder, and I was employed to defend the accused. The prosecuting witness was a little, weazened old Chinaman, who comprehended no English and testified through an interpreter. He mounted the witness stand with woebegone features and his arm in a sling from the effects of a wound inflicted by my client. From what Sam Lee had told me I had little hope of securing his acquittal, unless I could break down or exclude the testimony of the prosecuting witness. With this laudable end in view I asked of the Justice the privilege of examining the witness on his voir dire. His Honor did not know exactly what a voir dire was, but I was persona grata in his court, and he blandly granted my request.

            "Ask this man," said I to the interpreter, "if he understands the nature of an oath."

             The accomplished linguist who rendered the Chinese vernacular into pidgin English and transformed English slang into pidgin Chinese. Jabbered away for a moment, received the reply of the witness and responded, "All light; he say he sabe."  

            "Well, if he understands the nature of an oath, let him explain it."

            Again the interpreter jabbered and again the witness responded in Chinese.

            "He say suppose he tell lie Melican Judge send him State's plison and by and by when he go die he go stlaight to helle."

            The witness responded with more of animation than before and pointed his uninjured arm at my client, Sam Lee, and the interpreter, with a face like a graven image, and as if unconscious of the death blow he was inflicting upon my case, replied, "He say, suppose he tell tluth, Melican Judge send Sam Lee Stlate's plison."

            But he didn't, because Sam Lee had three witnesses who testified that the little, old Chinaman was the aggressor in the affray.

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            When the suit brought by the United States to condemn land at Pearl Harbor for fortifications was before the court the main issue was the value of the land taken, and this in turn depended upon its worth for agricultural purposes. The counsel for the owners of the land insisted that crops had been raised upon it and offered as one witness a Chinaman who in former years had leased and cultivated the land. The court refused to admit the evidence, saying: "'The court and the jury has been on the land and we all know that nothing will grow on it. If you want to prove to the contrary you must do it with white witnesses. I will not listen to Chinese testimony on the subject."

            As it happened, there were white witnesses and their evidence confirmed the statement that a crop had been raised upon the land.

            On another occasion, when trying a bankruptcy case in which one of the petitioning creditors was a Chinese corporation, the same Judge refused to allow the books of the corporation in evidence because they were kept in Chinese. "We are now," said he, "an American Territory."

            On still another occasion a Chinese building contractor living and doing business in Honolulu, and having many men in his employment, sent to China for a woman who had been betrothed to him since boyhood. According to Chinese custom and law, they were married in China before she departed, the bridegroom being represented by his mother. Arrived at Honolulu, the woman was detained and her deportation to China demanded under the provisions of the exclusion act. A writ of habeas corpus was sued out and the release of the woman demanded on the ground that she and her husband had been married in China by proxy, according to Chinese law, and that as the husband had a right to remain in the United States his wife had a right to be here also. The District Attorney demanded the deportation of the woman on the ground that the Chinese marriage was not a legal marriage, because the bridegroom was at the time "doing the grand in a distant land, 6000 miles away." He claimed that the necessary pro verba was lacking, and that the marriage had never been consummated anyhow, because the bride since her arrival had cried all the enamel off her pretty little face in the seclusion of the cell in which the United States had incarcerated her, and the bridegroom had not been permitted to see her, except in the custody of three stalwart deputy United States Marshals. It was insisted in reply that a marriage good in the place where it was contracted is good any where; that the husband being lawfully here, had a right to have his wife with him, and that she could not be classed as a laborer because she was a little-footed woman, and, therefore, incapable of work of any kind.

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            His Honor was usually a kind-hearted and just man, but he naturally hated Chinese, and he glanced at the couple and continued the further hearing of the case until Monday. The Marshal informed the court that the Government had neglected to provide him with facilities for caring for ladies. That the limited jail accommodation was occupied by sailors, sleeping two in a bed and two beds in a room, and he asked the court what he should do with the woman. "Do the best you can," said his Honor in reply. "Probably you can obtain her quarters with some of her countrymen. See that you produce her here on Monday morning."

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            The Marshal was a sensible and kind-hearted man. He deputized a wealthy Chinaman to care for the lady at his home. This custodian did not deem it his duty to separate their guest from the gentleman to whom under Chinese laws she was united in holy matrimony. The next morning the couple, attended by their friends, came to me for further consultation. They were advised to go to the proper office and obtain a marriage license, and on their return the Presbyterian minister was telegraphed for. On his arrival the situation was explained. He was reluctant until his attention was called to the fact that every necessary constituent element of a marriage already, existed, except the sanction of the church, and that in the interest of public morality the ceremony should take place. "Is a law office a proper place for this sort of thing?" said be.  "Sire," said I, in the language of Richelieu, "for justice all place a temple." He yielded and joined those who were fairly well joined before, but he completed the job.

            On Monday morning when the case was called the license to marry and the certificate of marriage were offered in evidence and the petitioner rested. And then there was a circus. His Honor roasted the Marshal for permitting the marriage and then he went for me. He said in substance, though not in word, that out of consideration for my family and my gray hairs he would not imprison me and out of consideration for my empty pockets he would not fine me, but that I had been guilty of a grave contempt of court, deserving of the severest condemnation, that my conduct was reprehensible and disgraceful and a lot of other things, and he ended by declaring that the evidence offered of a marriage in Honolulu would not be received and that the ceremony amounted to nothing. It was suggested to his Honor that if the ceremony amounted to nothing then no harm had been done, and that the parties had as good a right to amuse themselves ad interim by a marriage act as by playing solitaire or golf. The Judge paid no attention to this reply. Then  he decided that as the husband occasionally directed his workmen how to drive nails or hold paint brushes he was therefore a laborer within the meaning of the act of Congress; that the exclusion act only suffered Chinese merchants to come to this country; that every Chinaman who was not a merchant was a laborer and must be excluded.

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            Under his decision a "merchant" with a $15 stock of cheap cigars in the front room- and a red hot game of fantan in the rear might bring his wife here and otherwise travel the "primrose path of dalliance," but a building contractor with $50,000 capital, who employed a hundred men, not being a merchant, was therefore a laborer and must tread the steep and thorny road of celibacy and consequently the bride must go back to China by the next steamer.

            On hearing this decision translated to her the poor little woman gave a shriek and, flinging her arms around her husband's neck, clung to him, sobbing and crying. Court adjourned, the day waned and the electric bulbs were illumined, but no myrmidon of the law in that courtroom moved to separate them. I suggested that an appeal might be taken from the decision and that, pending the appeal, the Judge, who was really a kind-hearted man, and who was conscientious in his decision, might grant a stay of the order of deportation.

            And then the husband for the first time gave utterance to his view of the case. "No." said he, "I take no appeal. I flaid Amelican law. I flaid Amelican justice. I live here many years. I build great many houses. I buy plenty Melican goods. I pay evelyblody. I pay taxes. I no hurt anybody. My wife splectable woman. She no laborer. She no take away Ilish woman's job. She harm nobody. She lub me. Same steamer bling her in cabin bling five Japanese bad women in steelage. United States let them land. United States make no tlubble about them. But they take my wife and lock her up all same one thief. Now they send her away and blake her heart. All lightee. I leave my business with my flends to sell it out. I go back to-moller on steamer with my wife to China. Damn such a Judge, damn such a law, damn such a country."