1
âA Witness More Powerful than Himselfâ
Race, Testimony, and Twainâs Courtroom Farces
BOSTON: Youâve got to talk.
FERGUSON: Yes, or hang.
1ST MINER: Talk and hang both! (They all make a dive for ah sin who scrambles between their legs and upsetting one or two of themâjumps on table, seizes flat iron, shrieking and gibbering Chinese. Picture of consternation by miners. Quick curtain.)1
While the uncomfortable blend of farce, mob violence, and racist caricature presented in this scene from Twain and Bret Harteâs collaborative play, Ah Sin, may not surprise readers familiar with similar mob scenes in Huckleberry Finn, A Connecticut Yankee in King Arthurâs Court, and Those Extraordinary Twins, the double imperativeââTalk and hang both!ââinvokes a predicament specific to nonwhite populations in California and other western states. When the California Supreme Court in People v. Hall (1854) extended the stateâs prohibition on âblackâ and âIndianâ testimony to the Chinese, it both marked the Chinese population as a target for violent crimes and endangered those Chinese who attempted to bear witness to crimes. If the civic order required that subjects provide testimony in courts of law, the decision that Chinese were incompetent witnessesâgrounded in both Chief Justice Hugh Murrayâs spurious racial science and in the popular suppositions about the vulgar and unbinding nature of Chinese oaths2âdisabled their testimony. Thus, a Chinese witness who provided information about a crime might be in danger of retaliation if the culprit could not be convicted on the basis of Chinese evidence: as William Speer reports of one Chinese man who did not provide information about a robbery in Tuolomne County, âThe reason why he did not go and give information to Mr. G. was that the facts could not be proven on account of their testimony being invalid, and he feared that, if left at large, his life would be taken by the robbers or their associates.â3 Whereas witnesses are generally empowered with the knowledge that their testimony can convict a criminal, this Chinese witness understood that talking about what heâd seen was much more likely to endanger him than to convict the robbers. Similarly, the Chinese laundryman in Ah Sin must negotiate the legislated vulnerability and impotence of Chinese testimony (âTalk and hang both.â).
This chapter situates Ah Sinâa work that has been marginalized in the Twain canon by its formal idiosyncrasies and yellowface stereotypesâamid the public debates about the racialization of testimony precipitated by People v. Hall. The ban on testimony both responded to and reproduced the racialization of the Chinese as dishonest, âinscrutable,â and withdrawn from civic life. If, in most western states and territories, âslyness was interpreted by courts as a character flaw that jeopardized Chinese participation in the criminal justice system,â4 the lack of Chinese participation exacerbated both the criminalization of the Chinese and their apparently âslyâ hesitance to present public testimony that could not hold up in court. Twainâs responses to the prohibition on Chinese testimony highlight the political force inherent in the act of testifying, as well as the everyday forms of violence and injustice to which this legal disability subjected the Chinese. Reading Ah Sin as a response to Californiaâs prohibition on Chinese testimony also highlights how Twainâs other courtroom farcesâfrom his early journalism in the San Francisco Daily Morning Call to the troubling conclusion of Puddânhead Wilsonâcritique the political framing of what counts as âevidenceâ by interrogating the distinction between testimony and nontestimonial evidence. A closer look at historical responses to the People v. Hall decision elucidates the stakes of racialized and racializing evidence in the courtroom scenes of Twainâs early sketches, Ah Sin, and Puddânhead Wilson.
I. People v. Hall and the Racialization of Testimony
âOf all the wrongs visited upon the Chinese in the period from 1850 to 1870,â writes legal historian Charles McClain, âthe ban on their testimony in the stateâs courtsânot surprisingly, given its fateful implicationsârankled most deeply, and the removal of this disability was consistently the chief item on the agenda of the community leadership.â5 The ban on Chinese testimony was established in People v. Hall, when the California Criminal Proceduresâ ban on black, mulatto, or Indian testimony against a white man was extended to the Chinese. Writing for the majority, California Supreme Court chief justice Hugh Murray argued that the term âIndianâ applied to âthe Mongolian, or Asiaticâ because Christopher Columbus had mistaken the New Worldâs inhabitants for Asian Indians; he also argued that the generic term âblackâ was intended to include all nonwhites.6 The immediate consequences of the case anticipated its broader effects throughout California and other western territories influenced by Californiaâs laws: when People v. Hall reversed the conviction (on the testimony of three Chinese witnesses) and the death sentence of George W. Hall for the murder of Chinese miner Ling Sing in Nevada County,7 it effectively announced that the Chinese could be killed with impunity provided that no white witnesses sympathetic to the Chinese were around. More broadly, the prohibition on testimony debarred Chinese immigrants from the capacity and civic duty to bear witnessâa right that, as the communication theorist John Durham Peters explains, Western cultures associated with Enlightenment reason and manhood (in both ancient Greek and Latin, the same word denotes both âwitnessâ and âtesticleâ; in German, zeugen means both âtestifyâ and âprocreateâ).8
If Murrayâs analogies between Chinese, âblack,â and âIndianâ contributed to a âNegroization of Chinese immigrantsâ and an extension of racist laws that southern Democrats had brought west from slave states,9 his opinion also set the Chinese apart as foreigners: âThe anomalous spectacle of a distinct people, living in our community, recognizing no laws of this State except through necessity, bringing with them their prejudices and national feuds, in which they indulge in open violation of law; whose mendacity is proverbial . . .â10 Californiaâs prohibition on Chinese testimony produced only a partial analogy between Chinese and African American subjects because the formal prohibition colluded with discursive and economic factors to intensify the racialization of Chinese immigrants. In addition to Murrayâs charges of âproverbialâ âmendacityâ and a refusal to recognize or abide by the stateâs laws, the Chinese were often viewed as unfair labor competition, linguistically inarticulate, inherently deceitful, and heathen. Ironically, their inability to testify reinforced these stereotypes, along with prevalent notions about Chinese stoicism: âIn the nineteenth century suffering in silence becomes one of features [sic] of the Chinese most interesting and impressive to Western observers.â11
These racial beliefs led Californiaâs legislature to adopt a new foreign minersâ tax in 1852 (an 1850 version of the tax had been used to displace Mexican Americans from mining claims) targeting Chinese miners. Justified by the notion that the political and economic interests of Chinese immigrants were in China rather than the United States (the Chinese were wrongly accused of observing foreign laws and sending most of their earnings back to China rather than spending them in the United States)âas well as by sensationalist predictions that the United States would be overrun by millions of Chinese12âthe new tax attempted to control the influx of Chinese immigrants in western mining camps in 1851â1852. This monthly tax became indispensable to Californiaâs economy, accounting for up to half of the stateâs revenue between 1852 and 1870.13 Whereas taxation generally entails some measure of state protection and representation, the decision in People v. Hall undercut Chinese access to the protection of the courts. In fact, historian Sucheng Chan has suggested that the prohibition on Chinese testimony was in part intended to âhandicapâ Chinese miners who had been appealing âto the local courts when they were robbed of their gold dust either by other Chinese or by white miners or when they were evicted from claims they were working. Such action contradicts the stereotype of them as a people who insulated themselves from the larger society around them.â14 Chanâs comments indicate the extent to which the ban on testimony produced the very conditions of social segregation and âforeignnessâ that were cited as reasons for taxing and legally disabling the Chinese.
The collusion of the Foreign Minersâ Tax and the prohibition on testimony indicates how the racialization of the Chinese was both analogous to and divergent from that of other groups. Formally prohibited to testify in courts along with African Americans and Native Americans, the Chinese were rendered powerless against abusive collectors of a tax that expressly targeted them. As the Presbyterian minister William Speer wrote in âAn Answer to the Common Objections to Chinese Testimony; and an Earnest Appeal to the Legislature of California, for Their Protection by our Lawâ (1857),
Scarce a man that reads this has not seen or heard of acts of barbarity and fraud on the part of âForeign minersâ tax collectors,â that ought to have been severely punished; such as whipping, cutting, taking the blankets and tools of even those that have been sick, dating back their licenses one or two weeks in the month, snatching their dust when weighing out the amount due, charging $6 instead of $4 monthly, requiring one to pay for others, perhaps a stranger for a company of half-a-dozen, re-issuing old licenses, and the like.15
These widespread abuses by corrupt tax collectorsâor by white men masquerading as tax collectorsâcould not be âseverely punishedâ without the testimony of white witnesses. Speer suggests that, even when collected honestly, the exorbitant amount of the Foreign Minersâ Tax (which, despite its name, was collected almost entirely from Chinese) âbeggars [Chinese miners]. It drives them to the mountains and thickets like wild beasts. It fills them with hunger, sickness and despair. It turns them, what [sic] their honorable character with our trading population in the country shows is not necessary, into cheats and liars. It will in time fill our prisons.â16
Foreign Minersâ Tax collectors were not the only Californians who regularly attacked Chinese immigrants. Hostility toward the Chinese increased in the 1850s when surface mines were becoming scarcer and white placer miners struggled to compete with the rise of company mines (which used hydraulic and quartz mining and sometimes employed Chinese laborers).17 Speer details some of the worst excesses enabled by the prohibition of Chinese testimony, including a band of masked desperados robbing and terrorizing Chinese settlements18 and this brutal attack reported in the Auburn Whig:
On the night of May 3d, about 12 oâclock, a party of eight or ten Chinamen, encamped on Shirt Twain Canon, about 150 yards above the Iowa Hill and Yankee Jimâs trail, were attacked by a party of four Americans, when a scene of fiendish butchery was enacted, which makes the blood thrill with horror in the narration. Armed with the noiseless knife, these ruffians commenced their horrid work upon the helpless Asiatics.19
Speer argues that such crimesâwhich frequently included outright murderâwould have repercussions well beyond the legally unprotected Chinese community, for âas long as crimes cannot be proven and punished before our Courts, upon Chinese testimony, so long must this great, wide-scattered, helpless class offer inducements for the commission of crime. They furnish a school for the increase, education and support of criminals.â20 In addition to inducing citizens to commit crimes under conditions of impunity, Speer notes that the ban on testimony barred Chinese immigrants from performing an important civic duty. Finally, the law was detrimental to the nationâs international reputation: âIn this question our national character is involved. The people of California are, to all the vast coasts of the Pacific Ocean, the representatives of Western Civilizationâof the results of Christianity. . . . Men from every people under heaven are walking our streets, threading our mountain trails, sipping our streams, watching and, by the eternal axioms of right and wrong in every breast, judging of our principles by their fruits.â21
Speerâs arguments resonated with middle-class Chinese immigrantsâ criticisms of the prohibition on testimony. In an open letter responding to an anti-Chinese speech by California governor John Bigler, San Francisco merchant Lai Chun-chuen attacked People v. Hall by dissociating the Chinese from Native Americans: â[Your people] have come to the conclusion that we Chinese are the same as Indians and Negroes, and your courts will not allow us to bear witness. And yet these Indians know nothing about the relations of society; they know no mutual respect; they wear neither clothes nor shoes; they live in wild places and in caves.â22 In rejecting People v. Hallâs analogy, however, Lai reproduced stereotypes about Native Americans and conceded the notion that some racial groups should be disqualified from bearing witness. In a remonstrance to Congress written at the request of numerous Chinese businessmen in San Francisco sometime between 1856 and 1868, the merchant Pun Chi enumerated the âperpetual vexations of ...