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Habeas Corpus, Asian Migrants, and Imperial Legal Rights in Hawai‘i in 1900

Charles W. Romney


     On July 23, 1903, Jung Hung sat in the witness stand in the Federal District Court in Honolulu. Born in China, she had been brought to Hawai‘i by Jue Grin as his wife. The two Chinese migrants lived in Honolulu, where Jung Hung worked as a prostitute, the money going to her supposed husband. One of the men who visited Jung Hung, Lee Chee Hing, had fallen in love with her, and together Jung Hung and Lee Chee Hing had filed a petition for a Writ of Habeas Corpus with the court to free Jung Hung so that the two lovers could marry. As she sat on the witness stand in the court, Jung Hung tried to convince the judge, Morris Estee, that she had never been married to the man who kept her as a prostitute in Honolulu. Jung Hung told the judge: "I was not married" to Grin. "I was sold to him."1 Jue Grin—either her jailer or her husband—claimed that he had married Jung Hung in China in 1893. Jung Hung's freedom hinged on the question of what constituted Chinese marriage. Jung Hung presented herself as an unmarried woman who had been sold against her will. If Judge Estee affirmed her Habeas petition, Jung Hung could escape a life of prostitution and instead marry a man she loved. Jung Hung's appeal to Judge Estee on the basis of the ancient right of Habeas Corpus came with a narrative of redemption. In order to win her freedom, Jung Hung needed to gain access to the right against unlawful detention—the right embodied in the legal principle of a Writ of Habeas Corpus. The story of Jung Hung suggests access to the right of Habeas Corpus in Hawai‘i in 1903 depended on a series of negotiations in Judge Estee's court between Jung Hung, the judge, and the court interpreter.

     Jung Hung's petition for habeas corpus was one of many filed by Chinese and Japanese migrants between 1880 and 1920 with various judicial bodies in Hawai‘i. Jung Hung filed her petition with the Federal District Court created by the United States in 1900, but other Asian migrants filed habeas petitions with the Hawaiian courts during years when the Kingdom of Hawai‘i, the Republic of Hawaii, and the United States government had sovereignty over the Hawaiian Islands. Between 1880 and 1892, for example, individuals in Hawai‘i filed seventy one petitions in the Hawaiian Kingdom's First Circuit Court covering Honolulu. Of the petitions that contain enough information to determine the background of the individual, sixty-two percent the individuals filing petitions originally migrated from China and two percent migrated from Japan.2 Of the first one hundred and forty one petitions for a Writ of Habeas Corpus filed by individuals in the United States District Court in Honolulu from 1900 to 1918, at least thirty-seven concerned Chinese migrants and at least eighty concerned Japanese migrants.3 In those thirty years (1880-1892, 1900-1918) in just those two courts, Asian migrants filed well over one hundred petitions for a Writ of Habeas Corpus in Hawai‘i.

     Many of the petitions by Chinese female migrants in the United States District Court between 1900 and 1918 involved marriage. The resolution of the petition usually turned on interpretations of Chinese marriage customs, making the federal district court in Honolulu a site for competing views on what defined authentic marriages and civilized sexual practices. For example the Chinese migrant Wong She had a petition for habeas corpus filed on her behalf to avoid deportation to China in 1914, and her case concerned the authenticity of her marriage to Chow Chiu, a man who had a prior extramarital relationship.4 In 1916 the Chinese migrant Ho Tim filed a petition for habeas corpus to avoid deportation to China, and her petition turned on the legality of her marriage to Goo Nam Kong and on her prior relationship outside of marriage.5 In each of these habeas petitions Chinese migrant women provided a narrative explaining their sexual history in cultural terms to an American judge through a court interpreter. Access to the right against unlawful detention depended on how judges, interpreters, lawyers, and the petitioners themselves placed a migrant's story against ideas about Chinese marriage. In Honolulu between 1900 and 1918 access to Habeas Corpus thus depended in part on narratives about culture.

     In Jung Hung's case her story and competing views on Chinese marriages did not alone determine the outcome of her petition for Habeas Corpus. The participants in the United States district court made comparisons to similar imperial legal cases, and they read about those similar legal cases in printed books and printed legal reports from areas outside Hawai‘i. In using stories, printed sources, and comparisons to other colonial legal cases, the United States imperial legal regime in Hawai‘i shared many elements with the European legal regimes in French West Africa and the Transkei region of British South Africa. Noting how the American empire in Hawai‘i resembled the French empire in West Africa or the British empire in South Africa makes it more difficult to assert the exceptional nature of the United States imperial legal regime. Yet the similar path to legal rights in these three areas within the French, British, and United States empires around 1900 also highlights the distinct nature of colonial Hawai‘i. Jung Hung's case reflected the ethnic complexity and Pacific migration that shaped colonial Hawai‘i. Despite these distinct elements, Jung Hung's story  illustrates the way people gained access to legal rights in many parts of the imperial world in the decades around 1900. Pacific migrants such as Jung Hung gained access to Habeas Corpus in Hawai‘i through stories, interpreters, printed legal opinions, and cross-colonial comparisons.

Jung Hung's Petition for a Writ of Habeas Corpus

     On July 23, 1903, Jung Hung sat in the witness box in the Federal court in Honolulu and asked Judge Estee to free her from a life of prostitution so that she could marry the man she loved. On that day Judge Morris Estee faced two incompatible stories from Jung Hung and Jue Grin. In a dialogue with the judge, Jung Hung told her own story. The judge asked Jung Hung why she had previously said she was married to Grin. Jung Hung explained: "when he returned from China, he made me say I was his wife, and as soon as we arrived here he compelled me to be a prostitute." When the judge asked what relationship Jung Hung had with the man, she said: "I was not his wife, but his concubine." When asked how she became a concubine, she replied: "He made the bargain with my mother, I was sold for two hundred fifty dollars." Jung Hung's husband or jailer, Jue Grin, then sat in the witness box and said that Jung Hung was lying—the two had married in China in 1893, and had performed the usual "custom" of a marriage that included going to "the tomb of their ancestors" and burning "jaw sticks" to "worship" the ancestors.6 The judge in the case, Morris Estee, faced a problem: whom should he believe, the man or the woman?

     At this point in the proceedings Estee had no way of knowing whether Jung Hung was a married woman or not. Even now scholars might argue over whether Jung Hung married Jue Grin in China—Chinese marriage practices varied throughout China, and the recognition of Chinese marriages varied greatly within the United States judicial system. Judge Estee needed to determine whether Jung Hung had married Jue Grin based on whatever information he could find within his court and within his legal chambers. After hearing the testimony, Estee addressed the Chinese interpreter in the court, Li Chung, and made him sit in the witness box. Estee had already relied on Li Chung to interpret the statements of Jung Hung and her alleged husband—in fact all the statements by Jung Hung and Jue Grin in the court transcript are translations by Li Chung. Judge Estee then forced Li Chung to go beyond his usual translation duties and instead testify on marriage customs in China. As the judge questioned Li Chung, the main issue became the amount of money paid to Jung Hung's mother. Everyone agreed the mother received at least two hundred dollars. Judge Estee asked the interpreter, Li Chung, "is it customary for a bride-groom to give presents to the parents of the bride?" Li Chung answered: "Yes but those are cakes. It is a Chinese custom." Judge Estee then asked the interpreter: "In China can a man buy a women for bondage by putting up so much money?" Li Chung answered: "Yes."7 In this dialogue Li Chung had supported Jung Hung's story: if a man paid money for her, Jung Hung had been bought, not married. A marriage would be sealed by the gift of cakes, not a payment.

     This dialogue between Judge Estee and the court interpreter Li Chung provided a key piece of evidence that supported Jung Hung's petition. Li Chung implied that the money paid to Jung Hung's mother proved that Jung Hung had been bought rather than married. Before Estee could issue his decision, though, he needed to consult similar cases in legal treatises, law reference books, and periodical legal reporters that printed cases from various judicial jurisdictions. Estee issued his decision a week later, on August 1, 1903. Estee explained that the court interpreter Li Chung "testified that he never heard of a man giving a sum of money as a present on the occasion of marriage to the parents; that the gifts usually consisted of cakes; but that if a man desires to take a woman as a concubine, sometimes then a sum of money" is paid. Estee concluded: "I do not think a marriage has been proven; but rather in the opinion of the court a purchase and sale of this woman as a concubine, for the purposes of prostitution." Estee also referred to a case from a printed legal reporter from another area under the legal control of the United States—Alaska—and explained how the case in Alaska also supported Jung Hung's petition for a Writ of Habeas Corpus. Finally, Estee gave his verdict on the case: "The writ is allowed, and the woman Jung Hung released...."8 Jung had escaped a coercive relationship and had won her freedom.

Understanding Jung Hung's Story

     How are we to understand the story of Jung Hung and her ability to gain access to the right against unlawful detention? Jung Hung's successful petition for a Writ of Habeas Corpus confirms what scholars of world history know about the colonial world around 1900: the Westernized legal culture of Hawai‘i, the litigation strategies of Chinese migrants in United States courts, the constrained ability of colonial subjects to use imperial law, and the colonial state's incursion into intimate areas of life. Jung Hung filed her petition for a Writ of Habeas Corpus in a region much changed in the century since 1800. Missionaries, Hawaiian elites, and increasing commercial and cultural relations between the Kingdom of Hawai‘i and the United States elevated the authority of law and of the court system, replacing the authority of the traditional Hawaiian elites. This shift in authority from traditional Hawaiian culture to Western law, according to Sally Merry's analysis, took place well before the United States asserted formal sovereignty over the Hawaiian Islands.9 The concept and the legal force of a Writ of Habeas Corpus did not exist in the Kingdom of Hawai‘i in 1800, but by 1900 judges throughout the islands in different courts received petitions for a Habeas Writ as a matter of routine. Habeas Corpus had long connections with both the expansion of imperial states like Great Britain and with the development of the American state.10 And by 1900 the near century of involvement with the United States, the migration of Asian workers, and Hawaiian resistance to the overthrow of their monarchy first by the white sugar planter elite and then by the United States government had entrenched racial categories in Hawai‘i much like the racial categories found in the continental United States.11 Jung Hung filed her petition for a Writ of Habeas Corpus in a court system inside a complex colonial society.

     Many Chinese migrants filed Habeas petitions in Hawai‘i and in other areas of the United States in the decades around 1900. Most of these migrants filed petitions for a Writ of Habeas Corpus to gain release from the border security forces of the United States. Like many other nation states in the late nineteenth century, the United States set up a state apparatus to regulate the migration of Asian—especially Chinese—immigrants, and many Chinese migrants turned to the federal court system to avoid deportation.12 Chinese migrants confronted an American state often hostile, but a state that at times proved open to legal appeals from migrants.13 In her ability to work within the American court system Jung Hung appears much like the legally sophisticated Chinese immigrants in Lucy Salyer's study of immigration law in California who became "skillful litigants."14 Although Jung Hung had much in common with the many other Chinese migrants who looked to the courts to avoid repatriation to China, she had several crucial differences from most other Habeas petitioners. Jung Hung did not face the threat of deportation; she had a stable residency in a territory controlled by the United States; and Jung Hung sought release not from the border security force of the United States government but from her alleged husband. Instead of filing a Habeas petition in hope that a court would protect her from the United States government, Jung Hung filed a Habeas petition in hope that a court would protect her from another migrant.

     In seeking access to an imperial court to further her interests Jung Hung had much in common with colonial subjects in other areas under imperial rule. In her choice of the new federal district court instead of the existing Hawaiian courts Jung Hung appears similar to the colonial subjects in Lauren Benton's study of Law and Colonial Cultures who chose between distinct colonial court systems to further their own interests.15 Benton and other scholars suggest successful appeals to colonial courts enhanced the power of both the colonial subject and the colonial state.16 To Jung Hung, the United States District Court looked like an institution that might protect people who did not have citizenship. Yet Judge Estee's decision freeing Jung Hung also shows the reach of colonial law in Hawai‘i into intimate realms such as marriage. In Honolulu in 1903 the recently created United States District Court did not limit itself to matters of border security or territorial residency. Instead Judge Estee and the United States court accepted responsibility for deciding domestic living arrangements and the proper structure for sexual relations. The story of Jung Hung confirms accounts by Nayan Shah and Ann Stoler about the intimate nature of colonial rule in the United States and other areas of the world around 1900.17 We can locate Jung Hung's story in our existing knowledge of colonial Hawai‘i, Asian migration, colonial law, and colonial intimacy. Yet Jung Hung's ability to gain access to the right against unlawful dentition also reveals the basis of rights in imperial law in Hawai‘i in 1903.

     Jung Hung negotiated her freedom with two other people in the court in Honolulu: the court translator and the American judge. Jung Hung's ability to gain a Writ of Habeas Corpus depended on the interactions among these three people with their very different cultural backgrounds, and their distinct roles in the imperial legal system. Jung Hung, Li Chung, and Morris Estee negotiated Jung Hung's legal petition—and her story—in a context where a migrant's story needed translating into a form that the judge could compare with similar imperial legal cases existing in printed texts. Access to Habeas Corpus in Honolulu thus depended on cultural mediators, printed legal texts, and a legal standard on whether indigenous cultural traditions clashed with universal rights. This description of the American court in Honolulu also applies to scholarly descriptions of European imperial courts in particular African colonies. In French West Africa and in the Transkei region of British South Africa in the years around 1900 colonial subjects seeking access to rights relied on court translators, printed legal opinions, and judges assessing indigenous cultural practices.

Imperial Legal Rights in Hawai‘i, the Transkei, and French West Africa

     In Hawai‘i, the Transkei, and French West Africa court translators held power because of their cultural knowledge. The scholarly literature on colonial law in Africa around 1900 provides an understanding of the role of Li Chung, the court interpreter who provided a crucial piece of evidence for Jung Hung's case. Scholars like Benjamin Lawrance, Emily Lyn Osborn, and Richard Roberts describe the distinct role African colonial clerks and court interpreters played in European imperial regimes in Africa. Court interpreters held positions of moderate power with the formal structure of the colonial state, yet much of their actual power came from their linguistic skills and cultural knowledge. Court translators could understand African and European languages and cultural references and could in some situations use that power to alter the outcome of a particular situation or court case. In short, court translators in Europe's imperial regimes in Africa used their knowledge to become cultural mediators between the colonial state and African communities.18 Of course even as cultural mediators these African court translators enjoyed a very limited authority, and that authority remained mostly informal. Yet understanding how European imperial courts worked in particular areas of Africa and how these courts—at times—allowed Africans to further their own ends requires understanding the role of African court interpreters.

     In the Habeas cases involving Asian migrants in Honolulu, court interpreters like Li Chung played a similar role as cultural mediators with mostly informal authority. Li Chung had the power to influence Jung Hung's fate by his knowledge of Chinese marriage customs and by his position with the federal court in Honolulu. In other cases a court interpreter's actions worked against women who filed habeas petitions. In 1915 a Japanese woman tried to erase her apparent confession of adultery by claiming the Okinawa-born interpreter had mistranslated the Tokyo woman's testimony.19 In Jung Hung's case the court interpreter supported her argument. Seeing the court translator Li Chung as a figure much like the African clerks in European imperial regimes forces us to recognize the multiple positions of authority within European and American colonial courts, where judges relied on and shared power with cultural mediators. Li Chung exercised power on a particular issue in the case—the cultural practices of concubinage and of marriage in China. Judge Estee sought Li Chung's expertise about an indigenous practice. Judge Estee could not exercise his own authority to interpret the law that might govern Jung Hung's petition without knowing the "fact" of her relationship to Jue Grin. Li Chung had the authority and the knowledge to create that fact. And that fact proved crucial in letting Jung Hung gain access to the Writ of Habeas Corpus. In this case Jung Hung could only enjoy the ancient common-law right against unlawful imprisonment with the aid of the court translator Li Chung.

     In French West Africa, as in Hawai‘i, the ultimate power to issue a decision that provided access to a legal right resided with the imperial judge. In French West Africa imperial judges assessed indigenous cultural traditions against what the judges saw as universal rights. Richard Roberts's study of French West Africa at the turn of the century explains how French judicial authorities used their decisions to reconcile both indigenous culture and universal rights. When African women filed petitions for divorce, Roberts writes, the French judges accepted local customs as long as they were not "repugnant to French civilization."20 Rather than follow their instructions to respect African cultural traditions, judges picked and chose among customs, rejecting those at odds with their own ideas of universal rights. "As much as the French seemed to want to respect custom," Roberts explains, "they were guided by what they understood as natural human rights," including a woman's right to divorce.21 While some African traditions remained, the French courts in West Africa provided the extension of what French judges defined as "universal rights," the ideas of civilized behavior that came from the European experience. Certain rights—especially those involving sexuality—proved too important for French judges to set aside when deciding their colonial cases. Roberts found cases in West Africa around the turn of the century where French judges and African women sought to assess indigenous culture. In French West Africa imperial judges measured indigenous cultural practices against a standard of civilized behavior that embodied an idea of universal rights.

     These French jurists faced the same dilemma as Judge Estee in the United States District Court in Honolulu. Estee needed to decide whether to accept the relationship between Jung Hung and Jue Grin. Estee could have merely ratified the Chinese practice of concubinage, yet accepting Jung Hung's status as a concubine would have required Estee to put aside his own views of proper sexual relationships. Instead—like the French judges in West Africa—Estee reached a decision that affirmed this own idea of civilized behavior. Estee's decision granting Jung Hung's petition for a Writ of Habeas Corpus created a "civilizing" narrative: a woman sought to leave a life of prostitution with origins in the uncivilized custom of concubinage and become instead a married woman. At a certain point in the court transcript Estee makes clear his revulsion at the idea of a woman being a concubine, and Estee stated his desire to "stop" the keeping of women as concubines "as far as these Islands are concerned, so far as we can."22 Estee did not like the cultural practice of men having women as concubines, and he did not like prostitution. Jung Hung's Habeas petition gave Estee the chance to transform Jung Hung into a married woman. Jung Hung gained access to Habeas in part because that result meshed with Judge Estee's idea of proper sexual relationships.

     Estee's decision freeing Jung Hung included more than just moral reasoning—Estee also cited a printed case from another colonial zone that provided a standard to assess indigenous cultural practices. British judges in the Transkei region of South Africa in the decades around 1900 also assessed indigenous cultures by looking for judicial precedent in printed legal opinions from other colonial regions. In the Transkei imperial judges often referred to legal opinions and treatises from other colonial zones in deciding whether to retain an indigenous custom or grant a colonial subject access to a legal right. For example in 1891 British judges considered a case from the Transkei concerning Xhosa traditions on marriage bride wealth or lobola and ruled that a woman named Nohajis would no longer be subject to family control because she had reached the "age of a majority," a common-law concept external to Xhosa custom.23 In his opinion in that case (Nbono v. Manoxoweni) the judge J. Maasdorp referred to another legal case from Bombay. In that case from Bombay, Maasdorp wrote, the judiciary in India "will take cognizance of matrimonial suits between Parees, and will afford them such relief as due regard to their own laws and customs will allow; it also proves, as indeed must be expected, that those laws and customs are wholly at variance with the principles which govern the matrimonial law of the Diocese of London, and incompatible with the ecclesiastical law as in such cases is administered."24 Maasdorp noted a case from India that set a standard for the authority of indigenous marriage practices and applied legal principles from that Bombay case to the Xhosa case in the Transkei. Maasdorp could read the case from Bombay because he had the printed opinion in front of him in South Africa. The Xhosa case forced Maasdorp and his fellow jurists to choose between the indigenous tradition of lobola and the common-law doctrine of a woman reaching her "majority age."

     Like J. Maasdorp writing an opinion about the Transkei, Judge Morris Estee needed a legal basis to rule on Jung Hung's Habeas petition. Estee could change Jung Hung's status and liberate her from what he considered to be uncivilized indigenous customs, yet to rule in favor of Jung Hung, Estee needed a judicial precedent. The American system of law required a previous case with legal principles that Estee could apply to the Chinese practice of keeping concubines. Estee sought a legal precedent on judging indigenous cultural traditions. Judge Estee found the legal authority to make his ruling by making a cross-colonial comparison using printed legal opinions. Estee explained his rationale for refusing to respect the Chinese custom of concubinage by referring to a legal case about native Alaskans. Estee explained that the Federal District Court in Alaska had ruled in 1886 that "a rite or custom prevailing among the uncivilized tribes of Indians in Alaska" concerning involuntary servitude "was contrary" to the United States Constitution.25 Estee asserted his authority to dismiss any "rite or custom" that he found "uncivilized." Estee equated native Alaskans’ practices with traditional Chinese customs, a comparison that at first glance seems odd given the very different positions occupied by Qing China and the Alaska Territory. China remained independent, even if America and Europe had compromised its sovereignty with a series of treaties, while Alaska existed entirely within the legal reach of the United States. Estee did not judge the custom based on the status of the country or region, however—instead he judged the cultural practice itself. Estee saw no difference between Chinese men keeping Chinese women as concubines and native Alaskans keeping other native Alaskans as slaves.

     Estee used a comparison that involved what to him seemed to be similar "uncivilized practices" in different colonial zones. To make this cross-colonial comparison Estee relied on the increasing availability of printed legal sources in the late nineteenth century. Estee cited the Alaska case printed by John West's publishing company in the Pacific Reporter, a collection of American legal decisions from the Western states and Pacific territories that started publication in 1884.26 Estee could make his cross-colonial comparison because he had the printed opinion from the case in Alaska in front of him in Honolulu. Estee's reliance on the increasing availability of printed legal opinions suggests the importance of communication between and within colonial regimes. Scholars such as C. A. Bayly, Leila Tarazi Fawaz, and Tony Ballantyne have called for greater attention to the intersection of the history of print and the history of empire.27 Placing Estee's opinion in Jung Hung's case alongside Maasdorp's ruling in the Nbono case points to the importance of imperial legal communication in providing the print basis for broader judicial comparisons of indigenous cultures in imperial regimes. Estee found his authority in a case from another outpost of the American empire, and that case came to him through steamships carrying the Pacific Reporter to Honolulu. Legal reporters greatly expanded the number of cases that might be used by judges as precedent in cases in the late nineteenth century and tied Honolulu to the American legal system. Estee used his cross-colonial comparison from printed legal reports in order to grant access to Habeas Corpus. The case started with Jung Hung's story and ended with Estee's placement of her story within the discourse of global imperial law.

     Legal cases in the Transkei also started the same way Jung Hung's case in Hawai‘i began: with a story. To give one example, Annie Christian told her story to the court in Umtata, in the Transkei, in May 1885. "I was a heathen my name was 'Norante Jonboti'" Annie Christian told the court. She wanted a "divorce from my husband because he has driven me away and beaten me…"28 Annie Christian's story—just the like the story told by Jung Hung—started  the legal process of gaining access to a legal right, in this case the right to divorce. In her study of Civil Rights in the United States Risa Goluboff points to the importance of the stories told by African-American Woman in the American South in the 1930s. African-American women living in near slavery as household servants made legal statements to government investigators. These statements led lawyers in the Justice Department to file various legal claims on their behalf on their right against enslavement. In Goluboff's analysis a woman's story is the start of access to the civil right, although the woman must go through a long legal process to obtain that right.29 Access to legal rights in the Transkei and in Hawai‘i also started with stories. Just as in the American South, however, the story merely initiated the long judicial process that might lead to access to rights for a woman like Jung Hung. In Hawai‘i—as in the British Transkei and French West Africa—access to those rights also depended on court translators, printed legal opinions, and cross-colonial comparisons. Understanding Jung Hung's story requires placing colonial Hawai‘i in 1900 in the same analytical frame as the European legal regimes in French West Africa and the Transkei region in British South Africa during the same time.

Colonial Hawai‘i in the World History of Imperial Law

     Jung Hung won her freedom because she sat in the witness box at the court in Honolulu in July 1903 and provided a narrative that had two possible endings: one with her return to being a concubine, and one with her becoming a virtuous married woman. Judge Estee could only ask his court interpreter, consult his printed legal opinions, and make his cross-colonial comparison because of Jung Hung's testimony. In addition to pointing to the importance of individual voices in historical analysis, the history of Jung Hung's Habeas petition suggests ways to locate colonial Hawai‘i in world history in the years around 1900. The United States District Court in Honolulu—like European imperial courts in the Transkei and French West Africa—had court interpreters who held positions of cultural authority. The United State District Court—like European imperial courts—had colonial judges reading printed opinions from other colonial zones that turned on interpretations of indigenous culture. Judge Estee's court reveals an American empire with a legal system similar to European imperial legal systems of the same period. What historians of the United States often call "American overseas expansion" shared many elements with European imperialism in granting or denying access to rights. Seeing similarities between the United States empire in Hawai‘i around 1900 and European empires in Africa at the same time allows world historians to compare the basis of imperial rights in different colonial zones. Jung Hung's story thus contributes to the history of United States imperial law outlined by Lauren Benton, a history that can no longer see "United States imperialism as a different historical phenomena from its European counterpart." In addition to bringing the analysis of United States imperial law closer to the study of European imperial law, the logic of Benton's scholarship also requires charting the distinct elements in any particular colonial zone.30 Jung Hung shared much with colonial litigants in French West Africa and the Transkei region of British South Africa, yet in several crucial respects she signed her petition for a Writ of Habeas Corpus in a unique legal context.31

     Jung Hung filed her Habeas petition in a racial system different from some models of imperial rule. Some treatments of the colonial world between 1850 and 1950 emphasize the binary aspects of imperial life: colonizers of one race rule over colonized of another race. Judge Estee's comparison between Qing China and territorial Alaska suggests the complex racial situation faced by Jung Hung and Morris Estee. Jung Hung's case concerned Chinese migrants rather than an indigenous colonial population. Judge Morris Estee could not rely on a cadre of local elites or on imperial officials who knew the local culture--Estee had a limited range of people who worked for the United States and had knowledge of Chinese culture. Estee discounted any non-white testimony in some Habeas cases in the United States District Court. For example Lau Sam's petition for a Writ of Habeas Corpus in August 1900 turned on where he was born. Judge Estee complained: "There is no white testimony to establish any of the facts."32 When Wong Chon petitioned for a Writ in November 1900 Estee again complained about the quality of the testimony. "There were no white witnesses produced in the hearing" Estee wrote in his draft of the decision. "And in this case there is no definite testimony even by the Chinese witnesses...."33 Estee valued testimony by whites over testimony by Chinese witnesses, yet that did not stop him from accepting testimony by Chinese individuals in Jung Hung's case. Estee relied on the testimony both of Jung Hung herself and of the court interpreter Li Chung because he found both credible, and because he had no white witnesses with an interest in the case or with knowledge of Chinese marital practices. Unlike a "typical" colonial context, however, Li Chung had knowledge of a culture in a third space beyond the United States and the indigenous culture of Hawai‘i.

     Jung Hung herself does not fit the definition of an indigenous person in a binary model of imperial rule. She arrived originally from China, one of the many Chinese migrants who spread across the Pacific in the late nineteenth century. She would be difficult to fit into a model that defined colonized people as indigenous to the area under an imperial regime. Jung Hung might be better defined as a stateless person using an imperial system for her own ends. Colonial Hawai‘i in 1900 had multiple racial identities and cultural traditions. The long forced engagement of the Hawaiian Islands with global networks of trade, commerce, culture, and migration resulted in a society with native Hawaiians, migrants from other Polynesian islands, migrants from several areas in East Asia, migrants from Europe and the United States, and descendents of each of these groups with claims on multiple cultural heritages who had only one home: Hawai‘i. The archival files of Habeas Corpus cases in various court systems from 1880 to 1920 contain the stories of a diverse group of people who sought access to rights, a diversity that while not unique, alters the usual categories of imperial rulers and colonized subject. Although few could claim to be part of the United States imperial regime in Hawai‘i in 1903, the many groups of colonial subjects had different places within the colonial legal system.

     Teaching Hawai‘i in world history thus requires the ability to locate Hawai‘i within global networks and global developments while also explaining the distinct historical trajectory that created Hawaiian society in the years around 1900. Studying Jung Hung might allow a class to see how her case emerged from the global forces of migration, the global similarities of colonial law, and the global basis of imperial rights, to name just a few. But teaching Jung Hung's story would also let a class see the subtle differences between the colonial context faced by Jung Hung and a Xhosa woman in the Transkei region in British South Africa at the same time. The intersection of global imperial legal forces and the local context of Hawai‘i  might lead a class to see the limited and circumscribed range of options someone like Jung Hung faced. And it might lead a class to explore the main tool Jung Hung possessed: her ability to tell a story. How much of Jung Hung's fate depended on the type of story she told?  The world history class that investigated Jung Hung's life in Hawai‘i could start to discuss the idea that how we tell a story can influence how the story ends.

Charles W. Romney (Ph.D., UCLA) is Assistant Professor and Coordinator of Public History in the History Department at the University of Arkansas at Little Rock. He can be contacted at



The author thanks Christine Skwiot, Josh Goode, Susanah Shaw Romney, and the anonymous reviewers at World History Connected for their suggestions.


1 "In the United States District Court for the Territory of Hawaii, Honolulu," 23 July 1903, transcript, case 19, box 3, Records relating to Habeas Corpus , Records of the District Courts of the United States, Records of the U.S. District Court for the District of Hawaii (1959- ) and for its Predecessor, the Territory of Hawaii (1900-59), Record Group 21, National Archives Regional Branch—San Francisco (San Bruno). Cited hereafter as HC-DCHI-RG21-SF.

2 I made a list of Habeas Corpus cases between 1880 and 1892 using Indexes of Court Cases, ca. 1845-1893 : Cases Handled by the Circuit or Supreme Courts during the Hawaiian Monarchy (Honolulu: Hawaii Judiciary Department, 1981). I then calculated the background of the different petitioners by reading the stories contained in the archival files for each case in the Hawaiian State Archives in Honolulu.

3 I used the stories in archival files of the cases rather than an index or last names to calculate the backgrounds of petitioners. Boxes 1-21A, HC-DCHI-RG21-SF.

4 "In the Matter of the Application of Chow Chiu for a writ of habeas corpus in behalf of Wong She,"  16 February 1914, in Reports of Causes Determined in the United States District Court for the District of Hawaii[hereafter cited as  RUSDSH] Volume IV (Honolulu: New Freedom Press, 1918), 426.

5 "In the Matter of the Application of Ho Tim for a writ of habeas corpus," 15 January 1916, in RUSDSH Volume IV (Honolulu: New Freedom Press, 1918), 653.

6 "In the United States District Court for the Territory of Hawaii, Honolulu," 23 July 1903, transcript, case 19, box 3, HC-DCHI-RG21-SF.

7 "In the United States District Court for the Territory of Hawaii, Honolulu," 23 July 1903, transcript, case 19, box 3, HC-DCHI-RG21-SF.

8 "In the Matter of the application of Lee Chee Hing for and on behalf of Jung Hung, for a writ of habeas corpus," 1 August 1903, in RUSDSH Volume I (Honolulu: Hawaiian Gazette Co., 1903), 441-444.

9 Sally Engle Merry, Colonizing Hawai‘i: The Cultural Power of Law (Princeton: Princeton University Press, 2000).

10 Paul D. Halliday, Habeas Corpus: From England to Empire (Cambridge: Harvard University Press, 2010); Justin Wert, Habeas Corpus in America: The Politics of Individual Rights (Lawrence: University of Kansas Press, 2011).

11 Christine Skwiot, The Purposes of Paradise: U.S. Tourism and Empire in Cuba and Hawai‘i (Philadelphia: University of Pennsylvania Press, 2010), especially 49-86; Gary Okihiro, Island World: A History of Hawai‘i and the United States (Berkeley: University of California Press, 2008); Noenoe K. Silva, Aloha Betrayed: Native Hawaiian Resistance to American Colonialism (Durham: Duke University Press, 2004); Edward D. Beechert, Working in Hawaii: A Labor History (Honolulu: University of Hawaii Press, 1985).

12 Adam McKeown, Melancholy Order: Asian Migration and the Globalization of Borders (New York: Columbia University Press, 2008); Adam McKeown, "Chinese Immigration in Global Context, 1850-1914," Journal of Global History 5, no. 1 (2010): 95-124.

13 Erika Lee, At America's Gates: Chinese Immigration During the Exclusion Era, 1882-1943 (Chapel Hill: University of North Carolina Press, 2003); Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton: Princeton University Press, 2004).

14 Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995), 70.

15 Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (New York: Cambridge University Press, 2002).

16 Elizabeth Kolsky, "Introduction" to the forum "Maneuvering the Personal Law System in Colonial India," 973-978; Mitra Sharafi, "The Marital Patchwork of Colonial South Asia: Forum Shopping from Britain to Baroda," 979-1010; Rohit De, "The Two Husbands of Vera Tiscenko: Apostasy, Conversion, and Divorce in Late Colonial India," 1011-1041; all in Law and History Review 28, no. 4 (2010).

17 Nayan Shah, "Adjudicating Intimacies on U.S. Frontiers," in Ann Stoler, ed., Haunted by Empire: Geographies of Intimacies in North American History (Durham: Duke University Press, 2006), 116-139; Ann Stoler, Along the Archive Grain: Epistemic Anxieties and Colonial Common Sense (Princeton: Princeton University Press, 2010).

18 Benjamin N. Lawrance, Emily Lynn Osborn, Richard Roberts, "Introduction: African Intermediaries and the ‘Bargain’ of Collaboration," in Lawrence, Osborn, Roberts, eds., Intermediaries, Interpreters, and Clerks: African Employees in the Making of Colonial Africa, (Madison: University of Wisconsin Press, 2006), 14.

19 "In the Matter of the Application of Ko Matsumoto for a writ of habeas corpus," 14 December 1915, in RUSDSH, Volume IV (Honolulu: New Freedom Press, 1918), 625.

20 Richard Roberts, Litigants and Households: African Disputes and Colonial Courts in the French Soudan, 1895-1912 (Portsmouth, New Hampshire: Heinmann, 2005), 81-82.

21 Roberts, Litigants and Households, 133.

22 "In the United States District Court for the Territory of Hawaii, Honolulu," 23 July 1903, transcript, case 19, box 3, HC-DCHI-RG21-SF.

23 Nbono v. Manoxoweni, 13 August 1891, Cape Colony Law Reports, Cases Decided in the Eastern Districts, Volume 6, pages 62-99, quotation at 62. T. W. Bennett discusses this aspect of the case in his Customary Law in South Africa (Landsdowne, South Africa: Juta, 2004), 31.

24 Nbono v. Manoxoweni, 67.

25 "In the Matter of Lee Chee Hing," 439. Sidney Herring found that American judges defined all native Alaskan cultural practices to be "uncivilized in the late nineteenth century, although the judges continued to use the "distinction" between civilized and uncivilized cultural practices in their reasoning." Sidney L. Herring, Crow Dog's Case: American Indian Sovereignty, Tribal Law, and the United States in the Nineteenth Century (New York: Cambridge University Press, 1994), 213 footnote 19. On the need to compare imperial law in the United States empire with native American law, see Lauren Benton, "Colonizing Hawai‘i and Colonizing Elsewhere: Toward a History of U.S. Imperial Law," Law & Society Review 38, no. 4 (2004): 835-842.

26 On West's role in the creation of the national legal reporter system, see Erwin C. Surrency, "Law Reports in the United States," American Journal of Legal History, 25, no. 1 (1981): 62.

27 C. A. Bayly and Leila Trazi Fawaz, "Introduction: The Connected World of Empires," in Bayly and Fawaz, eds., Modernity and Culture: From the Mediterranean to the Indian Ocean (New York: Columbia University Press, 2002), 1-27; Tony Ballantyne, "What Difference Does Colonialism Make? Reassessing Print and Social Change in an Age of Global Imperialism," in Sabrina Alcorn Baron, Eric N. Lindquist, and Eleanor F. Shevlin, eds., Agent of Change: Print Culture Studies After Elizabeth Eisenstein (Amherst and Boston: University of Massachusetts Press, 2007), 342-352.

28 Annie Christianson, statement, 13 May 1885, Christianson case, CMT 2/103, Records of Proceedings and Papers of Divorce Cases, 1880 Feb. – 1891 Jul., Criminal and Civil Cases, 1880-1892, Chief Magistrate Transkei, 1875-1912, Records of the Chief Magistrates, Transkei, Western Cape Archives and Records Service, Cape Town, South Africa.

29 Risa Goluboff, The Lost Promise of Civil Rights (Cambridge: Harvard University Press, 2007).

30 Benton, "Colonizing Hawai‘i and Colonizing Elsewhere," quotation at 835; Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 (New York: Cambridge University Press, 2010).

31 On the difficulties and rewards of comparing Pacific societies to other areas  of the world such as Africa, see Teresia Teaiwa, "On Analogies: Rethinking the Pacific in a Global Context," Contemporary Pacific 18, no.1 (2006): 71-87.

32 In re Application of Lau Sam for Writ of Habeas Corpus," typed draft of decision, 22 August 1900, case 1, box 1, HC-DCHI-RG21-SF.

33 In the Matter of Wong Chong on Habeas Corpus," typed draft of decision, 7 November 1900, case 5, box 1, HC-DCHI-RG21-SF.


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