I recently encountered a passage in Justice Stephen Field’s ruling while he served as Circuit Justice in Ho Ah Kow v. Nunan (C.C.D. Cal. 1879):
In our own jurisdiction there exists a sizeable Jewish community. They constitute a highly cultivated people and are generally compliant with the nation’s laws.
Appreciation for that observation! (It is worth noting that, back then, the term “race” encompassed what we would now call an ethnic group, such as Norwegians, Italians, and the like.) At the same time, the broader backdrop of the case—one that is not about us at all (not everything concerns us):
The plaintiff is a subject of the emperor of China, and the present action seeks damages for alleged mistreatment by the defendant, who is a California citizen and the sheriff of the city and county of San Francisco. The mistreatment consisted in the sheriff’s wanton and malicious act of severing the plaintiff’s queue, a hairstyle worn by all Chinese men, and its removal is regarded by them as degrading and as bringing future suffering.
In April 1876, California’s legislature enacted a statute “concerning lodging-houses and sleeping accommodations within incorporated cities,” which, among other provisions, declared that any person found sleeping or lodging in a room or apartment that provides less than five hundred cubic feet of clear space per occupant shall be guilty of a misdemeanor and, upon conviction, fined no less than ten dollars and no more than fifty dollars, or imprisoned in the county jail, or both the fine and imprisonment. Pursuant to this act the plaintiff, in April 1878, was convicted and sentenced to pay a ten-dollar fine, or, if he failed to pay, to five days’ imprisonment in the county jail. He did not pay the fine and was imprisoned.
The defendant, acting as sheriff, oversaw the jail and, during the plaintiff’s confinement, cut off his queue, as alleged. The complaint asserts that it is customary for Chinamen to shave the hair from the front of the head and to braid the remainder into a queue; that depriving the queue is regarded as a mark of disgrace and is believed, according to their religious faith, to bring misfortune and suffering after death; that the defendant knew of these customs and beliefs and knew that the plaintiff revered the custom and adhered to the faith; yet, disregarding his rights, he inflicted the injury complained of; and that the plaintiff, as a result, has endured substantial mental anguish, been shamed in the eyes of friends and relatives, and ostracized from association with his countrymen; and that, consequently, he has sustained damages of ten thousand dollars….
The shaving of every male’s hair within an inch of the scalp upon arrival at the jail was not intended, nor can it be sustained, as a disciplinary measure or as a sanitary regulation. Taken on its face, the statute does not promote discipline and can only be justified as a health precaution in exceptional instances. If the ordinance had contemplated merely a sanitary rule, it would have been limited to such cases and would have applied to women as well as men, and to those awaiting trial as well as those already convicted. The practice of sharply clipping the hair of inmates in the state penitentiary, much like dressing them in striped clothing, serves in part to distinguish them from others and to hinder their escape while aiding recapture. These are precautionary measures, as well as elements of a broader treatment regime instituted by the penitentiary directors under state authority for individuals convicted of felonies. No such provision exists, or would be tolerated, for those confined in a county jail for simple misdemeanors, most of which are not gravely serious. For the discipline or detention of the plaintiff—who faced the choice of paying a ten-dollar fine or enduring five days in jail—no such hair clipping was required. It was carried out to intensify the severity of his punishment….
The ordinance targeted the Chinese population in San Francisco alone. This was stated by the city supervisors at the time it was enacted, and it was understood by all. The ordinance is known in the community as the “Queue Ordinance,” named for its aim to reach the queues of the Chinese, and it is not enforced against any other individuals. The justification offered for its adoption, and now urged in its support, is that only the fear of losing one’s queue will compel a Chinaman to pay his fine. In other words, to compel payment of a fine imposed on him, torture would have to accompany imprisonment. Then, it is suggested, the Chinaman would not accept the option of serving his sentence to work off the fine, thereby saving the state or county the expense of keeping him in confinement. Perhaps more brutal methods—bastinado, knout, thumbscrews, or the rack—could accomplish the same end, and certainly the Chinese person would prefer these forms of torture to the disgrace before his countrymen and the constant fear of misfortune and suffering after death. It is not a creditable reflection on the humanity and civilization of our people, much less on their Christianity, that a regulation of this character could be adopted….
There are many illustrations we could cite of ordinances whose broad terms would nonetheless operate disproportionately on a single class or on a group under harsher penalties, thereby inviting odium and facing valid legal objections as targeted measures. Take our own city, where a large Jewish population resides. They are an intellectually accomplished group who generally comply with the laws. Yet they hold distinctive religious views regarding certain foods that cannot be disregarded without grave distress and harm. They abstain, for example, from consuming pork, which, within their faith, is associated with impurity and uncleanliness. If, in some area of the city, overcrowding were to bring them under the same lodging regulation as the Chinese, an ordinance requiring county-jail inmates to be fed pork would be seen, despite its general terms, as a law aimed at them; and it would be viewed as a targeted measure in practice….
We are aware of the prevailing mood in California—an open hostility toward the Chinese—that would hinder further immigration and push out those already here. Their physical differences, language, customs, and religious beliefs would appear to preclude easy assimilation, and prudent observers, considering the millions across the Pacific and the prospect of large-scale future arrivals, fear the emergence of fierce racial tensions. There are thoughtful people who hope to find a means of curbing further immigration.
We recognize the force and significance of these considerations, but the remedy for the perceived problem must come from the federal government, where, with only a few specified exceptions, the subject lies entirely. The federal government alone holds exclusive authority over treaty-making and over regulating commerce with foreign nations, which includes both travel and trade, and, with the mentioned exceptions, the power to set immigration or importation conditions. The state, within these matters, is powerless, and attempting to assert control that cannot be legally justified achieves nothing….
Any measures concerning exclusion beyond this must originate with the federal government. Only that authority can determine which aliens may enter the United States and under what terms they may remain; whether they should be confined to activities tied to foreign commerce—as is effectively the case with Chinese residents—or whether they may engage freely in all pursuits alongside citizens. For any restrictions deemed necessary or desirable in these areas, the appropriate channel is the federal government, and it seems unlikely that such concerns will be ignored. In any event, nothing can be gained by hostile or petty legislation at the state or municipal level, such as the ordinance in question—legislation unworthy of a courageous and honorable people….
