A Universal or Restricted Writ

A close reading of the Hawaiian Kingdom's published legal decisions between 1852 and 1872 detects a consensus over access to habeas corpus. Judges slowly solidified an approach to the writ that assessed a petition without considering the racial background or social status of the petitioner. Although judges described the writ as a legacy of English and even “Anglo-Saxon” legal traditions, even these early decisions involving white petitioners did not contain any explicit ethnic or racial restrictions. The kingdom's judges then extended access to habeas corpus to nonwhites without any discussion of the racial identity or social status of the petitioner. In those years, judges sought to apply established precedent from English common law with limited legal texts available in the kingdom. In this initial period, jurists considered what might be called classic cases of habeas corpus: those involving a judge receiving a petition from a prisoner held by the state (in this case, by the kingdom). In 1873, however, a Chinese migrant en route to Costa Rica sought to enter the kingdom. Detained by a ship's captain, he filed a petition for habeas corpus. A divided Supreme Court granted the petition, but the dissent contained practical considerations and reasoning about the petitioner's identity at odds with the previous consensus on a universal standard for habeas corpus. Reading the published decisions reveals both the consensus on a universal writ between 1852 and 1872 and the divisions over whether to restrict habeas corpus in 1873.

Habeas corpus appeared in passing in the legislative record of the Hawaiian Kingdom in the 1840s as an existing legal method to free a detained subject. The kingdom's 1852 constitution included habeas corpus in the “Declaration of Rights” as a “privilege” that “belongs to all men.”Footnote ⁹ Habeas corpus first appeared in the Hawaiian Kingdom's judicial reports in 1852 In the Matter of Michael M. Webster, a petition by an accused smuggler who had been detained in the Honolulu jail. William Little Lee, the chief justice of the kingdom's Supreme Court, wrote the opinion. Lee had graduated from Harvard Law School and migrated from Massachusetts to the kingdom in 1847. Lee had also influenced the drafting of the 1852 Constitution.Footnote ¹⁰ In discussing Webster's petition, Chief Justice Lee described the “writ of Habeas Corpus.” It “has always been considered among Englishmen and their descendants in the United States and the world over as the great safeguard of personal liberty,” Lee wrote, “the Magna Charta of their dearest rights.” Lee connected habeas corpus to people who traced their ancestry to England and who brought with them wherever they went “the noblest and most revered of all the bulwarks of civil freedom, without a parallel among the nations of antiquity,” a right that was “the distinctive glory of the Anglo-Saxon race.” Despite the writ's origins, Lee did not explicitly limit habeas corpus to the “Anglo-Saxon race.” He rejoiced that “security against oppression” (Lee noted “we are happy to say,”) had “been introduced into this Kingdom.” In answering “questions” about the writ, judges in the kingdom should consult “the decisions of the distinguished jurists England and the United States, those two countries where the privileges of this writ have always been enjoyed in the most free and ample manner.” After a long discussion of the particular circumstances of Webster's incarceration, Lee denied the petition while affirming the authority of his court to grant habeas corpus to future petitioners.Footnote ¹¹ Lee described habeas corpus in mobile terms, implied that all subjects of the kingdom would have access to the writ when detained, and pointed to legal decisions in England and the United States as the proper authorities for judges to consult when faced with habeas corpus petitions.

Judges followed Lee's advice when considering habeas corpus petitions over the next decade, and the resulting decisions usually included references to English authorities such as Coke.Footnote ¹² The first habeas corpus case that involved Hawaiians appeared in the kingdom's published decisions in 1861. In Re Kamaha considered petitions by nine men held in the “prison at Oahu” after being convicted in the Honolulu local court “of larceny of cattle” and sentenced to “hard labor for terms varying from nine months to three years.” Justice George Morison Robertson affirmed the importance of habeas corpus in cases of people “restrained of their liberty,” invoking the key word—liberty—that would anchor the concept of habeas corpus in the kingdom's courts up to 1892. Robertson followed Lee's method by seeking guidance from Blackstone and Kent, although he modestly noted that he had only consulted “such authorities, both English and American, as are within my reach.” Robertson denied the petitions and “remanded” the nine men “into the custody of the Marshal.”Footnote ¹³ Despite his rejection of the petition, Robertson devoted many pages of legal reasoning to the circumstances of the men, and had not included in his rationale for his dismissal of the petition any consideration of the men's ancestry. The decision affirmed the previous judicial pattern of using the available English and American sources on habeas corpus to assess a petition, but Robertson extended to nonwhites the same judicial care applied to previous petitioners.

The Apuna decision in 1869 continued the strand of judicial thinking that extended universal access to habeas corpus without considering race or status. Justice Albert Hartwell considered the petition of Apuna, a Chinese man convicted of selling opium. Hartwell exceeded the earlier rhetoric of William Lee in explaining the importance of habeas corpus. Hartwell noted the sections of the kingdom's constitution that stated the “privilege of the writ of habeas corpus belongs to all men” and guaranteed that “no person shall be deprived of life, liberty, or property without due process of law.” Hartwell was the first judge considering a habeas corpus petition from a non-European who directly cited the kingdom's constitutional statement that the writ “belongs to all men” and who mentioned the constitutional phrase of “life, liberty, and property.” Hartwell went on to pose the question: “What is this writ of habeas corpus?” His answer involved a discussion of the Magna Charta, the “Charter of Runnymede,” and several other landmarks in the development of English rights. Hartwell concluded his history by proclaiming the “Rights of persons in this Kingdom under writs of habeas corpus are, in my opinion, as fully secured by Constitutional and Statutory provisions as if the famous English guaranties and enactments, with merely verbal alterations, were spread upon our statute books.” The metaphor of spreading English rights across the Hawaiian Kingdom's written laws affirmed the judicial consensus that the “writ of habeas corpus enjoyed here is the same in substance with the original writ as secured and vivified by the English Acts, Bills, and Charters.” Hartwell also reiterated the judicial method of referring to “the decisions of English and American Courts, concerning the law of habeas corpus” in assessing petitions. After a detailed inquiry into the facts of the case, Hartwell agreed with Apuna's petition and concluded that “an order be made discharging the prisoner.”Footnote ¹⁴ Apuna had used the writ to gain his freedom.

Soon after Hartwell's decision, the kingdom's Supreme Court considered the first habeas corpus case involving Asian migrants. In 1873 three Chinese men on the Italian vessel Glensannox, a steamer traveling from Macao to Costa Rica that had stopped in Honolulu harbor to buy supplies, filed habeas corpus petitions. The three men from China complained that they had been misled into signing a labor contract in Macao, and claimed that the steamer's captain had detained them on board against their will. Two of the migrants soon withdrew their petitions, leaving Wong Sow as the only one seeking to enter the kingdom. Hartwell's decision found “no legal cause for the restraint” and “affirmed” a previous “decree discharging” Wong Sow from the ship so that he could enter the kingdom. Hartwell reminded the rest of the court of the sections in the kingdom's constitution that stated that habeas corpus belonged to all men and stressed that the law compelled the court to release Wong Sow. “I see no way to avoid discharging” the petitioner “from the restraint upon his person.” Hartwell implied that the race of the person seeking release should not shape the court's decision. Hartwell asked if “an English Australian steamer were to touch here with English emigrants under contracts to labor in California, would it be claimed that force could legally be used to prevent such passengers from coming on shore?” He reasoned that the real Chinese migrants enjoyed the same rights as the imagined English workers. “The law in the two cases is the same.” Hartwell convinced Hermann Widemann, one of the two other judges on his court, that Wong Sow's petition had merit, and the migrant from Macao gained the right to enter the kingdom.Footnote ¹⁵

The third judge on the court, Elisha Hunt Allen, disagreed with Hartwell. His dissent marked a break in the previous judicial trend of ignoring the racial background of a petitioner. Allen focused on existing international law on ships passing through ports, but his opinion also dissected the practical implications of letting Wong Sow enter the kingdom. Releasing him would “commit a great wrong, when it is not pretended that there is any ill-treatment or want of proper accommodations or suitable provisions for the voyage.” If the kingdom's courts assumed “jurisdiction in these cases [of habeas petitions by Asian migrants], it might be in its results dangerous to the peace of the kingdom to permit so large a body of men to come on shore without means to supply their necessary wants.” Allen explained that if Wong Sow “had been abducted from the country” and sent against his will away from China, “I should discharge him at once.” Allen reasoned that the migrant had “made his own contract freely and without restraint, and perfectly understood its terms and conditions;” therefore, he had no grounds to object to his transport without release to Costa Rica. Allen concluded by repeating the negative results he claimed would come from granting habeas corpus petitions to Asian contract workers traveling on ships stopping for supplies in Honolulu. “If Wong Sow has a right to discharge, all on board under similar contracts have the same right, and to land six hundred people here, without means of support, might be a serious evil, not only in raising serious diplomatic questions but in disturbing our domestic peace.” Allen referred to the identity of Wong Sow and classed him with other Asian migrants (“the laborers of China and India”) in assessing the practical consequences of allowing Wong Sow's release.Footnote ¹⁶ The logic of his dissent suggested that petitions from Asian migrants en route to other countries should be judged on a different basis than those of other petitioners.

Wong Sow's own testimony in the case throws doubt on Allen's assertion that he had freely entered into a labor contract. Wong Sow told kingdom officials that “I can not read very well in Chinese,” and he asserted that the labor contract “was made out in an assumed name.” When an interpreter from the Hawaiian Kingdom read the contract to him, Wong Sow argued that the length of the contract had been described to him as shorter than the length that the interpreter read.Footnote ¹⁷ However, the factual questions about the contract played little role in the published opinions in the case. Hartwell believed that the law forced him to release Wong Sow regardless of the consequences for the kingdom, and his imagined English ship emphasized the view that the racial background of the applicant had no bearing on the court's assessment of a habeas corpus petition. Allen's dissent laid out what he considered to be the ill effects of granting a petition to one Asian migrant and setting a precedent for others to come ashore. The division between a universal application of habeas corpus to petitioners of all racial and ethnic backgrounds and a separate standard for assessing petitions from Chinese migrants remained unresolved.

The 1873 petition by Wong Sow disturbed the judicial consensus in the Hawaiian Kingdom that judges would not consider the racial or ethnic background of a person filing a petition for habeas corpus. The Wong Sow case forced the kingdom's judges to consider restricting access to the writ. Should any person who happened to be in the kingdom be able to access the writ of habeas corpus, or did the status of the petitioner—his or her racial identity or contractual obligations—determine what standard a judge would use to assess the petition? Judges had previously extended the universal standard to migrants, but those migrants had already entered the kingdom and had usually worked in some capacity on the islands. A close reading of the kingdom's habeas cases shows that Allen's 1873 dissent marked a departure from the previous judicial consensus. An analysis combining close reading with computational analysis also identifies Allen's dissent as a shift in the kingdom's legal discourse on habeas corpus. Performing that computational analysis requires going beyond 1873 to consider the entire corpus of the kingdom's published legal decisions to 1892.

Embedding Hawaiian Judicial Decisions in a Vector Space Model

Methods in fields outside law and history offer another way to investigate the published legal decisions of the Hawaiian Kingdom. Computational linguists and computer scientists use vector space models to understand the meaning of words in their context and to calculate the similarity of documents.Footnote ¹⁸ Among possible computational methods, vector space models have several advantages. The word-context version of vector semantics stems from the same philosophical theories as the contextual approach to political thought, a method used by many legal historians. The basic mathematics of vector space models can also be explained and understood without reverting to complex calculations beyond the understanding of most legal historians. In short, vector space models contain techniques within the reach of humanities and social science scholars. More importantly, embedding legal decisions in a vector space model identifies both conceptual shifts in the law and persistent semantic vocabulary over longer periods of time. A computational analysis using a vector space model of the word “laborers” in the published legal decisions of the Hawaiian Kingdom explains the importance of Allen's 1873 dissent in the case of Wong Sow.

Embedding a series of legal reports from a particular place in a vector space model helps a scholar identify which legal decisions share semantic proximity. The basic steps of the approach are simple and rely on a term-document matrix. Using legal decisions as our example, a machine lists all the words in a collection of legal decisions along the left-hand side of a matrix and lists the name of the decision along the top of the matrix. The machine then counts how many times each word appears in the specific decisions. Table 1 shows a small example of the term document matrix for some legal decisions recorded in the Hawaii Reports.

Table 1.

A Small Example of the Term Document Matrix for Some Legal Decisions Recorded in the Hawaii Reports

In Table 1, each legal decision is represented as a vector (a collection of mathematical elements, in this case a series of numbers). The first decision is (0,1,0), the second decision is (1,1,0), and the third decision is (0,0,2). To calculate the similarity of the different vectors (and therefore the decisions that the vector is drawn from), the mathematical operations of linear algebra can be used. The space for analysis comprises the collection of vectors. If we shortened the first vectors in Table 1 to the first two cells for life and property, we would have the first decision as (0,1) and the second decision as (1,1). To calculate the distance between the two sets of points on a graph, we can use a common method, cosine. With most collections of documents, the list of terms produces vectors much longer than two elements, and the cosine calculations occur in many dimensions; however, the basic approach remains the same.

The analysis discussed subsequently follows the “word-context” approach of vector space models and semantic similarity. A machine finds a specific word in a text and collects a defined number of words before and after the target word. In the word-context approach, the segment of text that contains the target word replaces the decision (Table 1) in the term-document matrix, and the terms are all the words that appear within a specified distance from the target word in a group of texts. A target word with a window or span of five words on either side creates a segment of text of eleven words. The resulting term-document matrix looks much like Table 1, but with more entries. The mathematical distance between the segments of text, now each represented as a series of numbers, can be measured by calculating the cosine similarity between each vector. The cosine similarity calculation on the term-document matrix produces a new matrix. The cosine similarity number goes from 0 (not close) to 1 (identical). A small example from a cosine similarity matrix is shown in Table 2.

Table 2.

A Small Example from the Cosine Similarity Matrix

The values of 1 in Table 2 mark a vector compared with itself. The theory of vector semantics posits that two segments of text with a number approaching 1 have similar meanings, and two segments of text with a number approaching zero have different meanings.Footnote ¹⁹

The word-context vector space model shares an intellectual origin with the contextual approach to the history of political thought, a method employed by some legal historians. Many discussions of the development of word-context vector space models point to Ludwig Wittgenstein's book Philosophical Investigations as the text that inspired computational linguists to examine words in their context to determine semantic meaning.Footnote ²⁰ Historians such as Quentin Skinner who describe the contextual school of political thought also refer to Wittgenstein's Philosophical Investigations as a source for their approach of reading texts in context.Footnote ²¹ One does not need to read Wittgenstein to see that the word-context vector space model and the contextual approach to history share many elements. Historians following the contextual approach often look at shifts in important concepts such as “the state” through a close reading of a series of texts, following similar words and arguments through discursive debates. The word-context method employs a machine to find words and their immediate contexts through a series of documents or through a series of discursive debates within a specific corpus. Using machines and vector space models expands the number of texts under investigation and improves the ability to find passages in texts that might escape traditional reading. Legal historians familiar with the contextual school will recognize a common intellectual lineage and a similar underlying philosophy when using word-context vector space models to understand conceptual change.

The word-context approach provides a wide range of options for embedding words in a vector space and for calculating semantic similarity. Instead of merely counting the appearance of words near the target word, most computational packages allow for different weighting methods beyond frequency and provide mathematical functions in addition to cosine. For a large corpus, vectors can contain many zeros, and various statistical procedures can transform the term-document matrix to better calculate the relationships between vectors.Footnote ²² Despite these different options, this analysis relies on the basic process of creating a term-document matrix and calculating cosine similarity. Using a method that can be easily explained has obvious benefits. In 1999, two scholars in natural language processing described “the advantage of vector spaces as a representational medium: their simplicity.”Footnote ²³ Many legal historians remain wary of mathematical operations that cannot be quickly grasped. The authors of a recent article on the “future of digital legal history” recommended digital methods that contain “no magic,” or no mathematical calculations that cannot be easily explained.Footnote ²⁴ The word-context approach with cosine similarity relies on only a small amount of magic.

Embedding the published legal decisions of the Hawaiian Kingdom in a vector space model requires a series of computational steps to make the decisions readable by a machine. For this analysis, software using optical character recognition transformed the first eight volumes of the Hawaii Reports (to 1892) into a text file. Computer code written in the programming language R performed several procedures to make the text uniform, eliminate white space, and turn the text into a vector.Footnote ²⁵ Combining the eight volumes of the Hawaiian Kingdom's published decisions from 1847 to 1892 produced a vector of 1,891,989 words. Computer code then followed the word-context approach by locating each appearance of a target word and a specific number of words before and after the target.Footnote ²⁶ The resulting files saved each use of a word and its nearest neighbors. Ingo Feinerer and Kurt Hornik's package “text mining” for R turned the word-context files into a term-document matrix.Footnote ²⁷ Another package for R, Fredolin Wild's “latent semantic analysis,” transformed the term-document matrix into a cosine similarity matrix.Footnote ²⁸ Finally, computer code in R returned a series of matrices from the kingdom's decisions embedded in a vector space model. Those matrices help us understand the 1873 dissent of Elisha Hunt Allen.

Allen used the word “laborers” in his dissent in the case involving Wong Sow's petition for habeas corpus. Allen argued that the ship carrying Wong Sow had provided a good place to sleep and “good treatment. The laborers of China and” South Asia want to improve their lot by migrating for work, Allen continued, and the kingdom's courts should not violate the contracts that the migrants sign. The word “laborers” appears seventy times in the kingdom's legal decisions. Taking the word laborers and three words before and after creates a term-document matrix of 160 unique words. Allen's phrase quoted previously shows great consistency in semantic similarity to other uses of the word “laborers” and three words before and after. The average similarity for all phrases centered on laborers is .28; Allen's phrase has an average similarity of .33; and Allen's phrase has an average similarity of .35 with the seventeen appearances of “laborers” before his dissent in 1873 and an average similarity of .32 with the 52 appearances after his dissent. Allen found a consistent conceptual vocabulary around the word laborers when he wrote his dissent. If Allen used a typical formulation to refer to laborers, however, he applied the word to a new context. Allen used the word “laborers” in a habeas corpus case for the first time. His published opinion in 1873 marked the moment when the legal discourse about labor in the kingdom mixed with the legal discourse about habeas corpus. This conclusion relies both on close reading and on computational analysis.

Embedding the word “laborers” in a word-context vector space model provides a crucial piece of evidence in understanding the force of Allen's 1873 dissent. The computational analysis identifies Allen's language in that dissent as part of a stable, conceptual vocabulary around the word “laborers” in the kingdom's published law. The computational analysis of the word “laborers” also identifies another case with high semantic similarity to Allen's dissent. Allen's use of “laborers” with the three words before and after has cosine similarity of .5 or higher with only seven other uses of the word. The appearance of “laborers” with the third highest cosine similarity comes from another habeas corpus case involving Chinese migrants in 1881.Footnote ²⁹ The high similarity between Allen's 1873 dissent and the 1881 case suggests that the crossing of the legal discourses on labor and habeas corpus continued.

The Semantic Vocabulary of a Universal Writ

In 1881, the kingdom's Supreme Court faced another case that turned on an Asian migrant's petition for habeas corpus. By that date, the kingdom had entered a period of upheaval. From 1876 until a coup overthrew the monarchy in 1893, the Hawaiian Kingdom suffered through a series of political conflicts over the authority of the monarch, the basis of citizenship, and the level of immigration.Footnote ³⁰ During this period of turmoil, the kingdom's Supreme Court remained divided on how to assess habeas corpus petitions. The court's published decisions contain a judicial shift in the 1880s toward judges considering a petitioner's status when assessing a petition for habeas corpus. The archival records of those cases support the conclusion that fewer judges on the kingdom's Supreme Court supported unrestricted access to the writ in these troubled years. Supplementing the close reading with computational analysis, however, identifies a strand of legal argument on behalf of a universal writ of habeas corpus in the 1880s that had strong semantic connections to an earlier period in the kingdom's history. In addition to identifying the semantic persistence of legal arguments for a universal writ, vector space models also link the conceptual language of unlimited access to habeas corpus to other cases in different areas of the law where judges supported fundamental rights for nonwhites. Judges who argued for fundamental rights and for a universal writ used a consistent semantic vocabulary.

In the 1880s, judges on the kingdom's Supreme Court renewed their debate over whether to treat habeas corpus petitions from Asian migrants differently than other petitions. The first case involved two Chinese migrants, Chow Bick Git and Wong Kuen Leong, who arrived in Honolulu on the ship Septima in 1881. After the kingdom's immigration officers refused to let the two men enter the kingdom, they filed a petition for habeas corpus in the First Circuit Court. Lawyers for all sides referred to legal texts from the United States that circuited through the kingdom's courts. Alfred Hartwell, the lawyer for Chow Bick Git, invoked Dillon's Municipal Corporations and Cooley's Constitutional Limitations for his brief to the court, while the lawyer for the ship Septima relied on an article in the American Central Law Journal for his brief.Footnote ³¹ The case went from the First Circuit Court to the kingdom's Supreme Court. In his decision, Supreme Court Judge Charles Coffin Harris reflected on the “public notoriety” of “passengers similarly situated as these, by which I mean Chinese field laborers, seeking employment in this country,” who had “lately arrived in extraordinary numbers.” Harris mentioned nine ships in the previous 5 months “bringing 4,447 passengers, and it is said that one or two more ships are on the passage.” Harris warned of the consequences of allowing so many migrants to enter the kingdom. To “allow several thousand men to come ashore, not having the means of paying for their living” in Honolulu “would be rash in the extreme, and to prevent it clearly within the police authority of the country.”Footnote ³² Harris described the stakes as a matter of policy and practical consequences rather than as a case of law and personal rights.

The majority decision by Harris in 1881 endorsed the dissent by Allen in 1873 that habeas corpus petitions by Asian migrants should be judged on a different basis than those of other petitioners. The evidence for this interpretation comes from a close reading of the opinion. In his decision, Harris noted “I cannot pass the subject by without alluding to the opinion of Chief Justice Allen in re Wong Sow on habeas corpus, 3d Haw. Rep., 518, with whose opinion in that case, I most fully concur.”Footnote ³³ Harris could have not indicated his agreement with the earlier Allen dissent more clearly. Computational analysis also identifies the alignment of the Harris decision with Allen's dissent. Harris refers to “laborers” in his decision, as did Allen in his earlier dissent. Embedding the word “laborers” and three words before and after in a word-context vector space model links the two decisions semantically. The use of “laborers” by Harris has a cosine similarity of .50, the third highest similarity to Allen's use of “laborers” in all the published legal decisions of the kingdom.Footnote ³⁴ Close reading and computational analysis identify the way Harris extended Allen's rhetorical move of crossing discourses on laborers and habeas corpus to a majority decision.

After the decision by Harris, judges continued to debate the question of whether to distinguish Asian migrants from other people filing habeas corpus petitions. In his 1881 decision, Harris had upheld the authority of the kingdom's “Government to prohibit or restrain foreigners, that is to say, people who are not members of the community, to enter into the territory.”Footnote ³⁵ Harris defined the two men as being beyond the community who could enjoy the protections of the kingdom's Constitution. Some of the kingdom's judges agreed. A series of laws sought to restrict Chinese and Japanese immigration in the late 1880s, and at times the kingdom's Supreme Court distinguished between Asian migrants with permits and those without. In 1892 Albert Francis Judd of the kingdom's Supreme Court considered a habeas corpus petition from Fong Kee, a man whom Judd claimed was “without” a permit to land. Judd looked to a series of decisions from the United States Supreme Court on immigration before affirming “the right of every sovereign power to forbid the entrance of foreigners within its dominions.”Footnote ³⁶ Habeas corpus petitions from Asian residents with the legal ability to live in the kingdom, however, received the same judicial scrutiny as petitions from other citizens. In 1887, Judge Edward Preston set Ah Mook and Chock Hin free without a discussion of their status, because Preston found their conviction for gambling “illegal.” The two “prisoners were not guilty of the offense with which they were charged, and should have been dismissed.”Footnote ³⁷ The legal discourse on habeas corpus at the Supreme Court became more complex after 1881, as judges looked at the status of those filing petitions.

In some cases, however, judges continued to argue for the universal writ. In 1888 the captain of the steamer Australia, H. C. Houdlette, would not let two passengers from China, Man Nun and Ah Yin, leave the Australia in Honolulu because the captain did not believe that the two possessed proper permits to enter. After lawyers filed a petition for the men's release, lawyers and judges offered competing authorities from outside the Hawaiian Islands to assess the petition, including Hurd on Habeas Corpus, Church on Habeas Corpus, Kent's Commentaries, and a collection of legal cases from Australia and the United States. The court focused on the question of whether the captain could make the “arrest” even though he was not an officer of the kingdom. Judge Edward Preston answered that yes, the captain could make the arrest. Preston asked, “What is meant by authority, or due process of law?” Preston declared that from judicial “authorities, commencing with Lord Coke, it appears that due process of law comprehends any authority, lawful warrant or proceeding, under which a person may be arrested,” no matter who arrests the person. Judge Sanford B. Dole disagreed, filed a dissent that belittled the “volunteer” arrest by the captain, and explained the “sacred” principle of habeas corpus and the damage to that principle when a person is “restrained of his liberty without process of law.”Footnote ³⁸ Preston believed that the captain could help the kingdom exclude the men without permits; Dole believed that the captain could not take the law into his own hands to arrest Chinese migrants.

Sanford Dole left archival evidence of a strong belief in the benefits of Asian immigration to the Hawaiian Islands. Dole's parents migrated from Maine in the 1840s to work as Protestant missionaries in the Hawaiian Kingdom. After his birth in the kingdom in 1844, Dole himself considered missionary work before focusing on the law. Dole worked as a lawyer and became involved in all the major political events in the Hawaiian Islands in the late nineteenth century and early twentieth century, serving as a justice on the Hawaiian Supreme Court, as the governor of the self-proclaimed Hawaiian Republic, and then as the first governor of the United States Territory of Hawaii. Dole became a federal judge in Honolulu in 1903.Footnote ³⁹ Throughout his varied career, Dole supported Asian immigration to the islands. In the 1880s, he wrote an article in a Honolulu newspaper calling for Asian immigration.Footnote ⁴⁰ In 1893, he wrote in his private papers that “Chinese laborers are needed in the Hawaiian Islands.”Footnote ⁴¹ In addition to his strong views on immigration, Dole also saw his role as a judge as an important duty. In 1888, the year he wrote the dissent on habeas corpus, Dole complained about being ill, but he still attended a late session of the court in Honolulu.Footnote ⁴² In his different judicial positions Dole persistently found doctrinal grounds to free Asian migrants in habeas corpus cases. As a federal judge, after the islands became a territory of the United States, Dole continued to grant habeas corpus petitions for Asian migrants when most American officials believed that the law did not give the judiciary that authority.Footnote ⁴³ As a judge, Sanford Dole consistently ruled that Asian migrants could enter the Hawaiian Islands.

In his 1888 dissent supporting the habeas corpus petition of the two Chinese migrants, Dole referenced the tradition that allowed the circulation of habeas corpus to all people without regard to status. One passage in Dole's dissent stands out. “Personal liberty is a matter of great and sacred importance,” he wrote, “and the law will not tolerate interference with it by volunteers, however zealous and patriotic their motives may be. It is guarded by constitutional and statutory enactments which are the reflection and the fruit of centuries of struggle.” Personal liberty “may only be infringed ‘by due process of law.’” Dole wrote that “a person may be restrained of his liberty by legal process under a criminal accusation” and in other specific situations, “but nowhere is it allowed that one should be restrained of his liberty without process of law, or imprisoned as a punishment for an offense without due trial and conviction of such offense.”Footnote ⁴⁴ Dole's description of habeas corpus appears similar to the robust defenses of the writ in the midcentury decisions that first legally defined habeas corpus in the kingdom. This passage in Dole's dissent functioned as a rhetorical pause in his legal analysis where he described, in flowering language, the importance of a right against unlawful detention. Many previous habeas corpus cases in the kingdom's published reports contain a similar rhetorical pause when a judge praised the fundamental nature of habeas corpus. A close reading of the passage in Dole's dissent connects it, for example, to William Henry Lee's description of habeas corpus in 1852.Footnote ⁴⁵ Both judges stressed the importance of the writ and saw it as a foundation for other liberties.

Dole referred to liberty several times in explaining the importance of habeas corpus in 1888. Dole's use of liberty had close semantic similarity to the kingdom's durable and stable conceptual vocabulary concerning habeas corpus. In the kingdom's first published habeas corpus decision in 1852, William Lee described habeas corpus as a crucial writ that had spread to “the United States and the world over as the great safeguard of personal liberty, the Magna Charta of their dearest rights, the noblest and most revered” bulwark against tyranny. In the 1888 habeas corpus case, Dole warned about the dangers of volunteers enforcing a law. The existence of law did not automatically empower individuals “or even an officer of government to carry it into effect. Personal liberty is a matter of great and sacred importance, and the law will” not allow “volunteers” to enforce it. These passages from Lee and from Dole each equal twenty-five words centered on the word “liberty.” All the kingdom's published legal decisions (for cases from 1847 to 1892) contain 1,891,989 words, and “liberty” appears 181 times. Locating each use of “liberty” in the kingdom's published decisions, taking twelve words on either side of liberty, and embedding the results in a vector space model show the consistency of the vocabulary of liberty in habeas corpus cases from Lee's 1852 decision to Dole's 1888 dissent. The average cosine similarity of all the passages centered on “liberty” was .25. Lee's passage averaged a .33 similarity with the other passages; Dole's passage averaged .23. More importantly, Dole's passage had a cosine similarity of .43 with Lee's passage, higher any other use of “liberty” with those parameters. Dole's twenty-five-word phrase centered on “liberty” shared the greatest semantic similarity to Lee's 36 years before. When Dole insisted on the importance of habeas corpus for an Asian migrant in 1888, he used rhetoric with close semantic similarity to the conceptual vocabulary in Lee's 1852 formulation.

Computational analysis identifies the persistent semantic vocabulary around the use of “liberty” in habeas corpus cases through the kingdom's published legal decisions. Embedding Dole's use of “liberty” in a vector space model also identifies another aspect of Dole's 1888 dissent. Dole's use of “liberty” had semantic connections to other decisions in the kingdom's history in addition to Lee's 1852 opinion, and beyond cases involving habeas corpus. Using the same window of twelve words on either side of “liberty,” Dole's 1888 passage cited previously had a cosine similarity greater than .35 with only sixteen other passages out of 181. Of those sixteen, two stand out from different periods in the kingdom's legal history. The first case, Nott v. Kanahele, concerned a labor contract on a sugar plantation in 1877. The contract gave the sugar company the right to reassign the labor of Kanahele to another plantation for the duration of the contract, and two members of the Supreme Court upheld the legality of the contract.Footnote ⁴⁶ In a dissent, the third Supreme Court judge, Albert Francis Judd, argued that the contract signed by the laborer, Kanahele, conceded too much to his employer. A worker “cannot make an engagement which is illegal and inconsistent with the liberty which every man has of choosing his own employer.” This is the 1877 passage that the vector space model connected to Dole's 1888 dissent. Judd ruled that Kanahele could not “barter away his freedom in advance.”Footnote ⁴⁷ Judd's rhetoric on behalf of Kanahele defended his rights as a worker without reference to his race or status, just as Dole had argued for granting the habeas corpus petition of Man Nun and Ah Yin without consideration of their status.

Another appearance of “liberty” in the kingdom's published legal decisions with a high similarity to Dole's use of “liberty” also concerned an important right. In 1888, the kingdom's legislature passed a law requiring “tradesmen” to keep account books in “Hawaiian, English, or some European language.” A Chinese merchant was arrested for not keeping an account book in one of the allowed languages. The Hawaiian Supreme Court declared that the articles in the Hawaiian Constitution “secure to all persons in this Kingdom of all races, whether citizens or aliens, the enjoyments of life and liberty, and the right of acquiring, possessing, and protecting property according to law.” After a discussion of the law and the kingdom's constitution, the court concluded that the law requiring account books in specific languages imposed “a restriction and a burden upon the exercise of lawful employment, which borders on tyranny.”Footnote ⁴⁸ The court found that employment and earning a living could not be restricted by race and could not be restricted by language. Although Dole did not write this opinion, he signed it. The decision included florid language about the importance of liberty; however, the exact wording of the passage has no obvious link to the passage in Dole's dissent. Computational analysis identifies connections among these three cases in different areas of the law that supported fundamental rights for nonwhites.

Close reading and computational analysis both contribute to an understanding of the persistent conceptual vocabulary around “liberty” in habeas corpus cases. Although each research method reveals a different aspect of the language around the writ, computational analysis provides a new way to identify durable elements in the writ's conceptual architecture. Vector space models also detect the stable semantic vocabulary describing liberty for nonwhites by connecting Dole's 1888 habeas corpus dissent to two cases in different areas of the law: contract labor and the right to earn a living. Close reading might trigger recognition that the three cases shared some vocabulary. Yet traditional legal indexes would keep the three cases separate: contract labor cases would be listed under one head, habeas corpus under another. Most historians would not look at both sets of archival documents, because time, funds, and the ability to finish a research project usually restrict a scholar to looking at one thematically related set of documents. Even a method of looking at a particular judge's decisions would not find connections among different jurists. A computational analysis of the entire corpus of published legal decisions knows no boundaries, however. Embedding the decisions in a vector space model identifies connections among cases that look unrelated to the researcher but, nonetheless, might have been related in the past. Computational analysis can find patterns over longer periods of time and across different genres.Footnote ⁴⁹ However, computational analysis cannot identify all aspects of the circulation of law. The digitized legal decisions contain little evidence of how individual litigants treated habeas corpus. To find the experience of individuals in the court before the judges ruled on a case, the researcher needs to look at archival files.

Using Habeas Corpus in the Kingdom's First Circuit, 1880–92

Close reading and computational analysis of published decisions provide evidence of the circulation of habeas corpus within the judiciary. Archival records provide a better view of individuals using habeas corpus in daily life. Archival records from the First Circuit Court from 1880 to 1892 contain evidence that a wide range of people used the writ to settle domestic disputes. Several migrants gained access to the writ, including a young girl who came originally from the Kiribati Islands. In addition to documenting the mobility of habeas corpus in these years to a wider range of people than appear in the published legal decisions, the archival case files point to two factors that played an increasing role in determining the outcome of habeas corpus cases. First, migrants who filed habeas corpus petitions relied on interpreters to convey their stories to the kingdom's courts. These interpreters often shaped the outcome of the case by stressing different aspects of the petitioner's testimony to the court. Second, the kingdom's judges had access to an increasing number of textual sources on habeas corpus in the 1880s. New publishing companies in the United States sent volumes to the kingdom with judicial opinions and law review articles. Judges in the islands had more legal decisions to consult when searching for a precedent for habeas corpus cases. The circulation of more legal texts from outside the kingdom and the sifting of testimony by interpreters made habeas corpus a diffuse and general right against detention between 1880 and 1892 for a wide range of petitioners.

The Hawaiian Kingdom had an active circuit court system and employed an increasing number of government translators in the 1880s. Lawyers filed seventy-one petitions for habeas corpus in the First Circuit Court in Honolulu between 1880 and 1892. A petitioner filed a habeas corpus petition an average of every 6 months. Some of these petitions included more than one person; one case covered sixty Chinese migrants. Judges consolidated petitions into fifty-three cases, and archival records hold a resolution to thirty-five cases. The First Circuit's judges granted twenty-three writs and denied twelve.Footnote ⁵⁰ In habeas corpus cases, judges often needed to rely on government translators who moved throughout the kingdom. All of the habeas corpus cases in this period contained English, and some included Hawaiian without a translation. Most court interpreters translated from an Asian language into English. The Hawaiian Kingdom relied on state interpreters to translate between the mostly white sugar planters and the mostly Asian laborers on the islands' sugar plantations. For example, the kingdom's Bureau of Immigration hired Kanezo Okkotsu to “interpret between the Planters and Japanese Laborers” in “the Sugar Fields” as well as in “the Hawaiian Court when required.” For his services, the kingdom paid Okkotsu 150 Hawaiian dollars a month, although Okkotsu had to use some of this money to buy his transportation. The kingdom's offer of employment stated: “You must provide yourself with a horse.”Footnote ⁵¹ Interpreters such as Okkotsu circulated between the sugar fields and kingdom's courts in the 1880s.

When Okkotsu and other interpreters worked at the First District Court in Honolulu on habeas corpus cases, judges often asked them to translate testimony that involved intimate relations. In 1883, the judges in the First Circuit Court in Honolulu tried to determine who was responsible for sexual relations between a Hawaiian boy and an American girl. The kingdom's authorities arrested Kamaka “for fornication” with Annie. Kamaka's father filed a petition for a writ of habeas corpus to free his son. The father claimed that his son had suffered a wrongful conviction “for the abduction of a girl by the name of Annie. It was Annie that went after Kamaka.” The judges freed Kamaka after parsing two different stories of the sexual relationship between the two minors.Footnote ⁵² Another case concerned a minor, Rebecca, whose mother filed a petition for a writ to free her daughter from the school at Sacred Heart's Convent. Rebecca's mother told a story about a girl kept against her will in a convent, while “Mother Judith” told a story about “the Father of the child” who issued a “strict order not to let her [Rebecca] out, without his special permission.” Mother Judith did not recognize the authority of Rebecca's mother, but she did express her “full submission to the decision of the court.” The judges of the First Circuit Court agreed with the biological mother's story and set Rebecca free.Footnote ⁵³ Parents looked to habeas corpus to free children from legal or educational detention.

Some habeas corpus cases involved family conflict. In 1883 an immigrant family from the Kiribati Islands (at that time often called the Gilbert Islands) filed a petition to free their daughter, Nei Kamarawa, from the custody of another household.Footnote ⁵⁴ The Kiribati family had signed a labor contract for their daughter with a Hawaiian family. The Kiribati parents, husband Ti Tau and wife Toaua Tau, explained that in their culture a family often “loaned” a child to another family for a period of time, and then expected the child to return. The Kiribati story and cultural tradition sat uneasily in the courtroom with the competing story told by the Hawaiian family, Healoha and Makanui. The husband Makanui told the court that in Hawaiian culture a child taken as a domestic servant often became part of the family, and Makanui and Healoha sought to adopt the child Nei Kamarawa as their own.Footnote ⁵⁵ Each family in this case told a story about the girl, Nei Kamarawa, and each family's story relied on the authority of their distinct cultural traditions. To determine the fate of Nei Kamarawa, the judges sitting in the First Circuit Court in Honolulu had to interpret one text, two stories, and two cultural traditions: the labor contract, the competing family stories, and the Kiribati and Hawaiian traditions that provided the meaning to the conflicting accounts.

To understand the text and competing stories, the judges turned to linguistic interpreters and to printed texts from outside the Hawaiian Islands. The judges first interviewed two court interpreters, a Mr. Bingham for the Kiribati family and a Mr. Holland for the Hawaiian family. Mr. Holland concurred with Healoha and Makanui on the Hawaiian tradition of adopting domestic servants and explained that the Hawaiian family believed that they had received absolute custody of the girl. The judges next heard Mr. Bingham, an official hired by the Hawaiian Kingdom to translate for the “South Sea Islanders” who worked on the sugar plantations in the kingdom.Footnote ⁵⁶ Bingham told the court that it was “a very common occurrence for Gilbert Islanders to loan their children for a time” and then expect to receive the child back. Bingham supported the story told by Ti and Toaua Tau: in giving their daughter to Healoha and Makanui, the Kiribati couple had merely participated in a traditional rite of having children live with other families while the biological parents retained custody.Footnote ⁵⁷ In addition to listening to the cultural explanations of the two interpreters, the judges also consulted their printed legal texts and came upon a similar case from Massachusetts in 1857: Pool v. Gott. In that case a daughter, Lydia, had lived with her grandfather for 14 years before her biological father wanted her to move back into his house. To solve the case, the judges in Massachusetts sought a particular piece of evidence: the wishes of the minor. The Massachusetts judge in Pool v. Gott had relied on the testimony of Lydia in deciding where she should live.Footnote ⁵⁸ The judges in Honolulu's First Circuit Court now sought to hear another story, that of Nei Kamarawa.

Nei Kamarawa had a few advantages as she took the stand in the First Circuit Court in Honolulu in January 1883. In her time working as a servant to Healoha and Makanui she had learned Hawaiian and by the time of her court testimony spoke “the Hawaiian language fluently.” And she had a clear view of what she wanted. Nei Kamarawa did not want to return to her biological parents; she feared they would take her back to the Gilbert Islands. Instead, Nei Kamarawa wanted to remain (or become) the child of Kealoha and Makanui.Footnote ⁵⁹ The judges of the First Circuit Court listened to her testimony (translated from Hawaiian by Mr. Holland) and compared her story to the story of Lydia in the case of Pool v. Gott. The judges in Honolulu saw a parallel situation in the case from Massachusetts. In that case, the American judge had ruled that, after the father had failed to contact Lydia for 3 years, the father had given up his legal custody. The biological father did not lose his status as a parent by any formal contract or overt revocation, but because he evidently had no affection for his daughter. The judge in Massachusetts placed great emphasis on the wishes of the girl, Lydia.Footnote ⁶⁰ The judges in the First Circuit Court in Honolulu in 1883 agreed. One judge wrote that Lydia's case “bears so close an analogy to the one at bar and is from so high an authority that I regard it as conclusive.” The kingdom's judges rejected the petition for a writ of habeas corpus by Nei Kamarawa's biological parents and ruled that Nei Kamarawa could remain with her chosen parents, Healoha and Makanui.Footnote ⁶¹ Habeas corpus circulated so broadly in the area covered by the kingdom's First Circuit Court in the early 1880s that a young migrant used the writ to choose her parents.

Nei Kamarawa seems an unlikely person to determine her own fate. Nei Kamarawa was an immigrant to the Hawaiian Kingdom, a child, and a girl. When she took the stand in the courtroom she could only tell her story and express her wishes. Her success in telling that story relied on several people and systems beyond her control: the court interpreter, the judges of the First Circuit Court, and the parents she wanted, Healoha and Makanui. Nei Kamarawa's success relied on the arrival of the printed text of a legal opinion from Massachusetts, and the substance of that text that placed emphasis on the feelings of children in determining who could be a parent. If Nei Kamarawa had agency, the fractured systems of power within the Hawaiian Kingdom confined her agency to a narrow range of action. Nei Kamarawa's story fit well with a narrative of moral redemption: she would return to the family that loved her, and a family that she chose. The judicial ruling rejecting the habeas corpus petition by her biological parents enacted a narrative of the Hawaiian Kingdom as a place of morality, where children could be with parents who loved them. However, Nei Kamarawa's story also fit with existing cultural forms supporting the Hawaiian Kingdom and the United States. The judicial ruling granting Nei Kamarawa's wishes used American ideas of morality to side with Hawaiian traditions rather than the traditions from the Kiribati family. Nei Kamarawa had the ability to control her own fate because her story fit with the goals of interpreters, printed texts, and the larger narrative of the moral nature of the Hawaiian Kingdom. She turned the writ of habeas corpus into a means of changing her family.

From the archives of the First Circuit Court, habeas corpus looks less like an abstract legal right with a selective or universal standard of access. Instead, the archival habeas corpus appears fluid, open to local interpretation, and mixed with the great diversity of the Hawaiian Kingdom. In the 1880s, habeas corpus circulated in many different communities covered by the First Circuit Court, including recent migrants from other Pacific islands. Some petitioners looked to habeas corpus to solve family difficulties, whereas other petitioners sought access to the writ to reopen a case settled by the kingdom. Judges in the First Circuit Court relied on court translators and on printed texts from outside the Hawaiian Islands. Judges, lawyers, and litigants all referred to the different ethnic identities of petitioners and witnesses. In the archival cases, these ethnic references become part of the competing narratives that judges tried to interpret to rule on a particular case. In the First Circuit Court, different people resorted to habeas corpus as a common, accessible way to free someone from a confinement, by a government or by a family, that appeared unjust. Ordinary litigants transformed the abstract writ of habeas corpus—the English liberty so beloved by earlier jurists in the kingdom—into one method among many to negotiate and navigate an increasingly diverse society.