Northwest was quickly defining Asian bodies as exceptional to the law’s application with regard to questions of due process. This process was helped by the comparative racialization of other racial minorities.
At first, the state tried to manage the threat of Asian racial difference by turning to previous technologies developed to control African American and Native American racial difference, attempting to make the Asian American body “conform to a preformed law.”75 In 1851, for example, the California Congress banned African American and Native American witnesses from testifying against white parties.76 In an 1854 case, People of California v. Hall, the Supreme Court of California considered whether the ban on testimony would extend to Chinese witnesses. Chief Justice Hugh Campbell Murray delivered an astonishing opinion in which he determined that because Christopher Columbus landed in the Americas in an attempt to travel to India, the term Indian as misapplied to Native Americans must also now apply to descendants of Asia: “We have adverted to these speculations for the purpose of showing that the name of Indian, from the time of Columbus to the present day, has been used to designate, not alone the North American Indian, but the whole of the Mongolian race, and that the name, though first applied probably through mistake, was afterwards continued as appropriate on account of the supposed common origin.”77 If Columbus erroneously transformed Native Americans into Asians, the Murray ruling applied a reversal that retroactively transformed Asians into Native Americans. But this alone was not enough, requiring the development of a practice of legal suspension to adequately manage the surprise that Asian racial difference posed to the unity of the ideal body politic.
In two Oregon cases from this period, the Supreme Court of Oregon ruled that Chinese persons could be allowed to stand as witnesses against other Chinese defendants. However, both courts declared that Chinese testimony could only be accepted after suspending the formal requirements of due process. In State of Oregon v. Mah Jim, the court issued a per curium opinion which reasoned that Chinese witnesses against other Chinese parties, though permissible, must be observed with the utmost suspicion: “Experience convinces every one that the testimony of Chinese witnesses is very unreliable, and that they are apt to be actuated by motives that are not honest. The life of a human being should not be forfeited on that character of evidence without a full opportunity to sift it thoroughly.”78 In State of Oregon v. Ching Ling, a murder case two years after Mah Jim, Judge Andrew Jackson Thayer similarly suggested that evidence against a Chinese defendant did not need to live up to the same standards of evidence required for a white defendant. The irreducible racial difference of the Chinese was proffered as the primary reason for this decision: “The testimony was not sufficient to have had any weight whatever as against white persons. . . . As to Chinamen, however, it is different.”79 This difference did not register the Chinese as totally beyond the reach of the law but placed the Chinese body in an exceptional position at the law’s limit: “An attempt to apply strict technical rules in such cases is too apt to result in a sacrifice of substance to form. The law was instituted to secure justice, and its design and purpose should not be suffered to be defeated by a strict adherence to formal rules in its administration. In cases of homicide among these Chinamen, it is almost impossible to ascertain who the guilty parties are.”80 As the court would not apply the “technical rules” of due process to the Chinese, the Agambenian legal ban was realized through law that appears to be in force but suspended.
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