A Race So Different. Joshua Chambers-Letson

with a justice system that, ultimately, does not recognize her as a proper juridical subject.

      As Cio-Cio-San delivers this aria, she bounds around the stage. When she embodies the judge, she stands behind Sharpless’s chair and issues the orders into his ear. As the beseeching husband, she bends on one knee in front of him and begs for release from his “conjugal fetters.” She stands and once again moves behind the chair, delivering the judge’s order with masculine authority, before melting into the opera’s rote physical manifestation of Japanese female sincerity: eyes batting and feet shuffling. (Over a century after the first production of Belasco’s play, it seems directors and performers still turn to Bergere’s “short, quick steps of the Japanese” to signify Japaneseness.) In every way, the scene stages not only the sexist trope of the incapacity of Cio-Cio-San to understand the gravity of her confused legal status but also the ridiculousness of her assumption that she would be perceived by a US judge as a fully recognized subject of US law.

      As Cio-Cio-San performs for her imaginary judge, the audience in the theater is given the opportunity to take on another role: that of a jury weighing the merits of her case. In this sense, the scene draws on the classical Athenian roots of Western theater. As J. Peter Euben notes, for the Athenians of antiquity, “drama was as much a political institution as the law courts, assembly, or boule.”⁷² Indeed, the theater could be a unique place for working through the political debates of the day because it lacked what Carl Schmitt described as the juristic decision that is the determining moment in the law’s realization.⁷³ As Euben observes, “Freed from the urgency of decision which marked other political institutions, drama encouraged inclusive and reflective thinking about contemporary issues.”⁷⁴ Thus, we locate one of the unique political and legal functions of aesthetic performances in the nineteenth and early twentieth centuries, which carry a trace of their historical ancestors in the Theater of Dionysus.

      As reflective of the juridical unconscious of its time, Madame Butterfly encourages the audience-as-jury to weigh the different exigencies behind the case. Unquestionably, the audience is meant to feel sympathy for the heroine. But this sympathy is not necessarily driven by the revelation of an unjust system that excludes her from the sphere of national belonging or the protection of US law. Instead, this sympathy—expressed in Sharpless’s “Poor little creature!”—is colored by condescension. The tragic irony that attaches itself to Cio-Cio-San is born from the fact that Puccini’s Western audience, like Sharpless, knows that she has no place in the United States. It is thus Cio-Cio-San’s infantile inability to grasp this fact (infantile because she is a woman and Japanese) that causes the tragedy. Weighing the evidence, the audience-as-jury is encouraged to reject Cio-Cio-San’s deposition. They are given every reason to rule that the heroine is tragically beyond the jurisdiction of US law. Having been given the opportunity to sympathize with her, however, the liberal sensibilities of the audience can remain intact while the juridical exclusion of Cio-Cio-San proceeds apace.

      If we can imagine the evidence leading the audience, however sympathetic, to reject Cio-Cio-San’s plea, we know that the courts of the period most certainly would have. Turning to a set of cases dealing with the question of Asian testimony in US courts shows just how closely the Butterfly narrative functions as a representative of this jurisprudence. It is important to understand how the problem for a subject like Cio-Cio-San was not simply the lack of a “true, honest, and unbiased” judge. Rather, bias was the constitutive element for the exercise of law over the Asian-immigrant and Asian American body. Cio-Cio-San’s fantasy of testifying before a judge against her Caucasian American husband was simply impossible. An evolving jurisprudence in California and the Pacific 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.