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“We Feel the Want of Protection.” The Politics of Law and Race in California, 1848-1878

Fort Yuma
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Union Bank is a proud sponsor of Lost LA.  

In collaboration with the University of California Press and the California Historical Society, Lost LA is proud to present selected articles from California History that shed light on themes discussed in the show's second season. This article originally appeared in volume 81, number 3-4 of the journal, published in 2003.

California's history has been entangled in romanticized accounts of the daring Spanish conquest of savage but pliant Indians, of tradition-bound Californio stewards, and of hard-driving, entrepreneurial Yankee Argonauts.1 These fictions were promulgated and abetted by influential early historians such as Hubert Howe Bancroft, who contended that California's passage from Spanish and Mexican rule to Anglo-American hegemony represented the triumph of superior racial, political, and cultural forces over the "descendants of the people of Montezuma."2 This school also held that conquest and admission of California to the Union was the "Manifest Destiny" of white, Christian Americans.3 Bancroft, acknowledging that crimes and brutalities abounded in the European settlement of California, nevertheless concluded:4

The idea of conquest in the American mind has never been associated with tyranny. On the contrary, such is the national trust in its own superiority and beneficence, that either as a government or as individuals we have believed ourselves bestowing a precious boon upon whomsoever we could confer in a brotherly spirit our institutions. And down to the present time the other nations of the earth have not been able to prove us far in the wrong in indulging this patriotic self-esteem.

However, in the past two decades historians have begun to reassess California's his­tory, probing the notions of inevitability, progress, race, gender, and politics to reveal a context far more complex, dynamic, and nuanced than was once believed.5 From the beginning, racial and ethnic conflict have been embedded in the matrix of California's development. The pre-statehood invasion of an army of Anglo-American and European immigrant entrepreneurs and gold seekers overwhelmed, supplanted, and eventually delegitimated Indians, Californios, African Americans, Asians, and other people of color. The influx of white Americans gave rise to "Anglo" domination and established a society that severely marginalized California's other populations. The politics of race and law in California has been contextualized recently in what historian Quintard Taylor has called "multiracial [and] multiethnic" communities in which "Anglos" not only interacted with people of color, but people of color interacted with one another and with "Anglos in varied ways over the centuries and throughout the region." Moreover, Anglo sociopolitical domination displaced the earlier culturally and racially based hegemony of Spanish and Mexican political rule. In 1850, when California entered the Union as a free state, the nature and scope of freedom and equality continued to be hotly contested.6

“What Are You Looking For? Leave Our Country!"

Decades before California became a state, race and ethnicity shaped the develop­ment of the region. The Spanish and Mexican colonists who inhabited California enjoyed vast landholdings, economic success, and autonomy that made the region prosperous. This prosperity would make the territory ripe for American exploita­tion and conquest, but even before the full-scale Yankee invasion, Spanish and Mexican settlers pursued a policy of exploitation, conversion, and subordination of Indian populations that eventually led to the decimation of indigenous peoples and the suppression of their traditional ways of life. Spanish missionaries, aided by mil­itary force, embarked on a campaign of religious conversion and colonization. Re­ calling the alarm that the presence of missionaries often inspired among indigenous peoples, mission-born, Franciscan-educated Pablo Tac noted that his people, the Quechnajuichom, initially attempted to bar the Franciscans from their southern California lands. When the foreigners approached, "the chief stood up ... and met them," demanding, "what are you looking for? Leave our country!"7

The establishment of the mission system resulted in the foreigners' claiming native lands in the name of the church and compelling Indian "neophytes" to live and work in conditions that often were tantamount to slavery. Priests could and did administer floggings, maimings, imprisonment, and other tortures to recalcitrant Indians who resisted by fleeing, fighting back, or occasionally mounting open rebellions.8 As partial justification for this treatment, missionaries and other Span­ish settlers differentiated themselves from the native population by identifying themselves as gente de razon, or "people who possessed reason." By contrast, they la­beled Indians gente sin razon,or "people without reason." Such racial distinctions served to legitimize the settlers' sociopolitical system and to undermine indigenous structures.9

By the time of the gold discovery, Indians had paid a high price for missionization and interaction with whites. European diseases, from which they had little immunity, had ravaged native populations. The policy of concentrating missionized Indians within the missions' adobe walls also contributed to the rising death rate by dis­rupting traditional sanitation practices, diets, and work habits. While mission Indi­ans had varying experiences depending on the mission, their death rate after con­ version was notable. For example, records from Mission Santa Cruz indicate that on average, converts survived eight and one-half years after conversion; at San Luis Obispo they survived seventeen. Infant mortality numbers were similarly dismal. More than half of mission-born Indians did not live beyond five years of age.10

At the beginning of Spanish settlement, the native population numbered approx­imately 300,000. By the end of the Spanish reign in 1821 the number had fallen to 200,000. At the time of gold discovery, nearly 150,000 native people resided in Cali­fornia. By the 1870s California's Indian population stood at approximately 30,000, an So-percent decrease.11 When the Mexican-American War erupted in 1846, both the Californios and the Indians would be overpowered by American and European foreigners.

Fort Yuma
The history of Indians in California has been marked by resistance, accommodation, and survival. The Yuma Indians, who had lived along the banks of the Colorado River for millennia, struck back at encroaching Spanish settlers in July 1781 by destroying two missions and killing thirty-four Spaniards and Mexicans, effectively closing the Anza Trail from Sonora to California for forty years. During the Gold Rush, travelers hired the Yuma to ferry them across the Colorado, angering local white entrepreneurs also in the ferry business, and violence broke out between the two groups. Finally, the U.S. Army, aware of the crossing's strategic location, established Fort Yuma (drawn here by lithogra­pher George Baker) in 1850 to distribute supplies to military posts in Nevada, Arizona, Utah, New Mexico, and Texas. After the arrival of the Southern Pacific Railroad in 1877, the fort was fittingly turned over to the Yuma Indians. California Historical Society, Templeton Crocker Collection, FN-02548.

"Yankee Domination in One Form or Another"

The Mexican revolution that began in 1810 and eventually toppled Spanish colonial rule in 1822 thrust California into the economic and political mainstream of the Mexican colonial empire. In an effort to reduce the power of the church and free up land for loyal sons of the revolution, the Mexican government secularized the mis­ sions in 1834. In theory, secularization gave former Indian neophytes the right to claim a share of mission land (but not precolonial church landholdings) and eman­cipated them. In actuality, Indians were reduced to a system of land peonage, work­ ing on ranchos for food and shelter, voluntarily or through coercion. Franciscan missionary Narciso Duran noted that "all in reality are slaves." While the gente de razoncontinued to make invidious distinctions between themselves and Indians, the increasing presence of Americans and other white immigrants, merchants, traders, and entrepreneurs in California aroused new political tensions that manifested them­ selves racially and targeted not only the Indians, but also the Californios and their lifestyle.12

The American and European interlopers who flooded into California defined themselves in relationship to and against the Californios. Many of the newcomers evaluated Indians and Californios as undisciplined, profligate, and inferior. For ex­ample, in his widely read book of 1840, Two Years before the Mast, Richard Henry Dana, Jr., asserted that "In their domestic relations these people [Californios] are not better than in their public. The men are thriftless, proud, extravagant, and very much given to gaming." Alfred Robinson (a Yankee married to a Californiana) published in 1846 the influential Life in Californiain which he declared that

Californio men were "generally indolent, and addicted to many vices, caring little for the welfare of their children, who like themselves, grow up unworthy members of society." Such racial and cultural vilifications seemed to justify American annexationist ambitions toward Mexican California. Indeed, political tension, exacerbated by cultural conflict, erupted into the Mexican-American War in 1846. This conflict would topple the Californios and elevate the American invaders to authority in California.13

Mariano Guadalupe Vallejo, military governor of Alta California during Mexican rule, was a longtime supporter of U.S. annexation of the region. However, later in life he expressed regret that the change in government had brought "damage to the morale of the people, whose patriarchal customs have broken down little by little through contact with so many immoral persons who came to this, my country, from every nook and comer of the known world." Courtesy California State Library.

The United States declaration of war against Mexico threw American designs for California into stark relief In his memoirs, Jose Maria Amador, the owner of a vast land grant in what is now Santa Clara and Alameda counties, expressed deep misgivings about the Bear Flag Revolt and the fate of his compatriots: "The bear flag and the presumptuous revolt it symbolized showed the Californios that independence would likely translate into Yankee domination in one form or another." Amador's forebodings were perceptive. During the course of the Mexican-American War, the American military occupied California, American squatters flooded into the area, and American military forces eventually defeated the disorganized Mexican army. The signing of the Treaty of Guadalupe Hidalgo brought an end to the war in 1848, transferring one-third of Mexico's territory, including long-coveted Texas and Cali­fornia, to the United States.14

The provisions of the treaty guaranteed that any Mexican citizen in California who did not choose to retain allegiance to the Mexican government would, within a year, be automatically granted the "title and rights of citizens of the United States." It also guaranteed that Mexicans in California "shall be maintained and protected in the free enjoyment of their liberty and property." Articles 8 and 9 of the treaty proclaimed that "property of every kind ... shall be inviolably respected." However, Congress, with an eye to American westward expansion, rejected the provision in Article 10 that stated, "all grants of land made by the Mexican gov­ernment ... shall be respected as valid."The deletion of this provision threw Cal­ifornio land titles into chaos, paving the way for the federal Land Act of 1851, which opened Californio lands to litigation in American courts. As a result of fraud, manipulation, and indebtedness, nearly 40 percent of the land held by Cal­ifornios before 1846 was transferred to American ownership. Thus, the legal system economically marginalized Mexicans, forcing them into dependency and wage la­bor, making the development of California's wealth exclusively an "Americano affair." Douglas Monroy has argued that the deterritorialization of Mexicans and their attempts to resist resulted in the "criminalization" of the Mexican population in California.

Similarly, Indians, lacking civil and property rights, suffered when the treaty was abrogated. Article 11 stated, "A great part of the territories which, by the present treaty, are to be comprehended for the future within the limits of the United States, is now occupied by savage tribes" for whom the United States government was re­sponsible. The government, in moving and resettling their Indian "wards," denied their right to claim title to ancestral lands or land to which they had held title in the Mexican era.The protections outlined in the Treaty of Guadalupe Hildalgo proved hollow. The Gold Rush would accelerate these ethnocentric trends with the con­struction of a state constitution that gave legal sanction to discrimination.15

Even with the ratification of the Treaty of Guadalupe Hildalgo, California remained under military rule, in what historian Malcolm J. Rohrbough has called a "political vacuum," with no permanent form of government forthcoming from a U.S. Congress that was locked in bitter debate over the fate of slavery in the new territories. In June 1849, after Congress adjourned with still no agreement on the organization of Cali­fornia, "civil governor" General Bennet Riley called for a state constitutional con­vention. Forty-eight delegates (eight of whom were Californio), elected from vari­ous districts, convened in Monterey to forge a constitution to be submitted for congressional approval as a prerequisite for statehood. The convention delegates made it clear that the issue of race, compounded by notions of Manifest Destiny (or what Monroy has called "bonanza capitalism"), would restructure California's polit­ical system and redefine citizenship despite the Treaty of Guadalupe Hidalgo.16 Whiteness became the new criterion upon which citizenship in California now rested. The constitution being hammered out at the convention favored extending the franchise only to white males. Mexican Californians, guaranteed American citizenship under the treaty, however, had Indian ancestry, and many were dark skinned. Thus, the primary task for the delegates was to determine just who was "white." Arriving at an awkward compromise on the issues of suffrage and citi­zenship, the delegates adopted an amendment that bestowed "whiteness" on Mex­ican Californians, giving the franchise to "every white male citizen of the United States, and every white male citizen of Mexico." A unanimously adopted proviso to this amendment left it to the discretion of the state legislature to extend the vote to Indians or their descendants-an unlikely possibility. Indeed, at the first meeting of the California legislature, the body quickly moved to restrict suffrage to white citizens exclusively.17

The convention was equally clear that African Americans were unwelcome in California. Sharing the traditional frontier aversion to competition from slave labor, the delegates quickly moved to bar slavery unanimously, but they had no desire for African Americans to reside in the territory regardless of status. The constitution's Declaration of Rights stated that "Neither slavery, nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in the state." This section passed not on humanitarian grounds, but because the delegates feared that slavery would "degrade labor" and give slave owners an unfair advantage in the gold fields and other areas of the labor market. Like most of the convention delegates, former Louisiana resident and physician O. M. Wozencraft, a delegate from the San Joaquin district, virulently opposed any proposal to allow blacks to reside in California.

Wozencraft argued that there was just reason why slavery should not exist in this land, there is just reason why part of the family of man, who are so well adapted for servitude, should be excluded from amongst us....We see the instinctive feeling of the negro [sic] is obedience to the white man....If you wish that all mankind should be free, do not bring the two ex­tremes in the scale of organization together; do not bring the lowest in contact with the highest, for be assured the one will rule and the other must serve.

The convention proposed a provision excluding all African Americans, regardless of status, from the state, but rejected it out of concern that Congress would find that it violated the federal constitution and thus jeopardized California's bid for statehood.18

Sordid Cries of "Gold, Gold Gold!"

With the Compromise of 1850, California entered the Union as a free state. How­ ever, the state's constitution and subsequent legislation so restricted the lives of African Americans and other people of color that freedom in the Golden State be­ came a precarious proposition. Within the first decade of statehood, California had established what one historian described as an "appallingly extensive body of dis­ criminatory laws" that marked people of color as inferior outsiders. 19

The native populations in California experienced particularly harsh treatment under American rule, targeted by notions of Manifest Destiny, nativism, racism, and gold fever. Immigrants who streamed into California searching for gold encroached on traditional Indian communities, breached treaties, and exploited Indian labor, re­ sources, and goodwill. Indians were overwhelmed by sheer numbers and brutal poli­cies.20 Roger Daniels has argued that California Indians "fared even worse than did most native Americans." An examination of the "Act for the Government and Pro­tection of Indians," passed by California lawmakers in April 1850, reveals that from the beginning, white Americans and other newcomers wanted to strip California native populations of all claims to land, citizenship, and autonomy. The act com­pleted the process, begun in the Spanish and Mexican eras, of divesting Indians of sovereignty. Under the new law, white justices of the peace could adjudicate in "all cases by, for, or against Indians."The act permitted Indians to reside in traditional "homes and villages," but, at the request of a "white person or proprietor," they could be removed to other land where they would remain until "otherwise provided for." Foreshadowing the restrictive work contracts, vagrancy laws, and black codes that would subjugate the freedmen and freedwomen in the post-Civil War South a decade and a half later, the new California law controlled Indian labor, permitting the indenture of Indian children and mandating that all Indians work. On the word of any white person, any Indian deemed to be "loitering or strolling about" could be arrested and sold to the highest bidder to labor for a period of four months. These drastic policies, the consistent abrogation of peace and land treaties by whites, and an ongoing "war of extermination" against many Indian tribes, led to the decline of the Indian population in the state. Indian resistance to white encroachment was not uncommon but was usually quashed by stronger white military force.21

Nativism and racism also converged in California's gold fields, as white Argonauts competed with people of color and foreigners of all nationalities for riches from the Mother Lode. As news of the discovery of gold (which had occurred nine days be­ fore the ratification of the Treaty of Guadalupe Hidalgo) flashed across the continent and around the world, a frenzied rush to the gold fields depleted the populations in almost every town in California. On May 29, 1848, the San Francisco Californian newspaper reported that "The whole country, from San Francisco to Los Angeles, from the sea shore to the base of the Sierra Nevadas, resounds with the sordid cry of gold, GOLD, GOLD! while the field is left half-planted, the house half-built, and everything neglected but the manufacture of shovels and pickaxes."22

The world may have rushed in to California when gold was discovered, but racial and cultural egalitarianism, like most other amenities, were in short supply in the gold fields. In 1849 an estimated 85,000 miners lived and worked in the gold regions. Of this number some 23,000 were foreign-born, including immigrants from Europe, Australia, Asia, and Latin America. The census of 1850 shows 962 people of color residing in California, with African Americans making up most of this number, or about 1 percent (1,000) of the state's total population. Along with African American miners, Indians, Mexicans, and Chinese also worked the gold fields. About 15,000 Mexican miners, classed in the census as "white," concentrated in the southern mining region (Calaveras, Tuolumne, and Mariposa counties) of the state. Although the census of 1850 did not list Chinese as a separate group, and few Chinese arrived before 1852, immigration records indicate that the Chinese population in California increased rapidly after 1852 (from 10,000 in 1852 to almost 35,000 by 1860). A sub­stantial number of Chinese miners, like gold-rushers of all backgrounds, were so­journers who intended to return to their homeland after striking it rich. All of the Argonauts came for economic opportunity and advancement.

Vallejo Leese
Maria Paula Rosalia Vallejo Leese, ca.1854, sister of statesman Mariano Guadalupe Vallejo and wife of American merchant Jacob P. Lee se. During the Gold Rush, most Americans lumped together Californios like the Vallejos with Spanish-speaking immigiants from Mexico, Chile, and Peru and at one point required all to pay an oppressive foreign miners' tax. California Historical Society, FN-25807
Painter and daguerreotype artist Solomon Nunes Carvalho, who posed for this self­ portrait in the late 1840s, was one of several thousand Jews from the United States and Europe who had emigrated to California by 1860. Born in South Carolina, Carvalho accompanied John C. Fremont on his fifth and final western expedition in 1853. After reaching Los Angeles, Carvalho established a photography studio and joined the local Jewish community in forming a Hebrew Benevolent Society. Courtesy Library of Congress.

23Hostility from white, American-born miners toward foreign miners of all types was rampant, but people of color bore the brunt of xenophobia. Discrimination was codified into law when the California legislature of 1850 enacted a ho foreign min­ers' tax in response to complaints from white native-born American miners. The monthly tax was levied against all miners who were not U.S. citizens. Ostensibly the law, published only in English and Spanish, affected all foreign miners, but it espe­cially targeted Mexican immigrants, and later also the Chinese, of whom 24,000, or two-thirds of the entire Chinese population in the United States, worked in the mines by the mid-185os. In several mining regions, Chinese accounted for one­ third of the foreign population there. The tax, and tax-related violence, drove thou­ sands of people of color out of the gold fields. Many Chinese and Indians were forced to quit independent mining altogether. Mexican miners in Sonora, Cali­fornia, who refused to pay the tax were attacked by hundreds of armed whites. Nearly ten thousand of the fifteen thousand Mexican miners in the southern fields were forced to leave the region and return to Mexico in 1850. Ironically, some of the ousted Mexican miners were American citizens under the terms of the Treaty of Guadalupe Hidalgo. In 1850 the state Supreme Court upheld the law, ruling in People v. Naglee that the tax did not conflict with the California constitution, the Bill of Rights, or the Treaty of Guadalupe Hidalgo. Under pressure from local mer­ chants, who saw their revenues sharply decline when their foreign clientele de­parted, the legislature repealed the tax in 1851, but then reinstated it as a $3 monthly fee targeted especially at the Chinese.24

"Outrages, Injustiuces, and Unmitigated Wrongs"

Racist legislation and nativism were not restricted to the gold fields, however. Afri­can Americans and other people of color in California had to contend with dis­ criminatory laws and policies in virtually every aspect of life. Although lawmakers had failed in their attempts to ban black entry to the state, California's legislators at­ tempted to deter people of color by erecting a bulwark of laws that deprived them of civil rights and left them vulnerable to exploitation. Denied citizenship, they could not legally homestead public land; they were forbidden from voting, holding public office, giving court testimony against whites, serving on juries, sending their children to public schools, and using public transportation.25

Despite this barrage of discriminatory laws, for African Americans, slavery re­mained the most critical issue confronting them in the Golden State. Despite the state's constitutional prohibition against the institution, slavery was in fact prac­ticed. Slaves were transported by citizens of other states to California before and af­ ter the discovery of gold. Some slaves accompanied their white masters as part of the household. Others were brought by gold-hungry slave owners to toil in the gold fields for their masters' benefit, with promises of manumission for faithful service. Between five hundred and six hundred slaves were actually used to work the gold sites, while others were hired out as laborers in non-mining-related work. Some were employed as personal servants and assistants to whites.26

California's fugitive slave law dealt the most crushing blow to African Americans' aspirations for freedom and galvanized the black community, inspiring a vigorous abolitionist movement in the state. The Fugitive Slave Act of 1852 mandated the re­ turn of runaway slaves to their masters. That same year, the Perkins case became the first test of the law. The case involved three Mississippi slaves (Carter Perkins, Robert Perkins, and Sandy Jones) who were brought to California by their master, C. S. Perkins, in 1849 and left there ostensibly as free men when he returned to Mississippi that year. Upon the passage of the Fugitive Slave Act in 1852, C. S. Perkins issued an order for the arrest of his former slaves, seeing an opportunity to reclaim his human property under the provisions of the new law. When the former slaves took their case to court, the state Supreme Court dismissed their appeal and ordered that they be remanded to their owner in Mississippi. The court ruled that the residency of the former slaves in a free territory had no legal bearing on their condition of servitude under California's Fugitive Slave Act.27

Although nominally a free state, California in the 1850s had only about 2,500 African American residents, who were denied the right to vote and to provide legal testimony against whites. The California Fugitive Slave Act, passed in 1852, meant that all blacks in the state lived under a perpetual threat of capture and enslavement. In 1851, abolitionist Mifflin Wistar Gibbs and other black leaders published California's first public call for equal rights for African Americans in the Alta California. "The announcement caused much comment and discussion among the dominant class," Gibbs noted. In fact, because of limited economic opportunities, many African Americans in California found them­ selves reliant upon that dominant class for employment, such as this governess, photographed by William Shew in the 1850s. Courtesy The Society of California Pioneers.

In another celebrated case, Georgia-born Bridget "Biddy" Mason, the slave of Mississippian Robert Smith, was part of a contingent of Mormon emigrants known as the "Mississippi Saints," who were initially bound for Utah in 1848. The Smith entourage eventually moved to San Bernardino in 1851 and later Los Angeles, where Mason and thirteen of her family members would be rescued in a daring raid by abo­litionists. In 1856 Mason, aided by members of the free black community and anti­ slavery whites in Los Angeles, successfully sued for her freedom and that of her fam­ily. Los Angeles District Court Judge Benjamin Hayes, an abolitionist sympathizer, ruled that "all of the said persons of color are entitled to their freedom and are free forever." Mason died in Los Angeles in 1891, respected in the community as an in­fluential businesswoman, generous philanthropist, and prosperous property owner.28 The Biddy Mason case involved the largest number of African Americans to suc­cessfully challenge California's Fugitive Slave Law. A year after the Mason decision, however, the United States Supreme Court's 1857 Dred Scott ruling cemented the rights of slave owners to retrieve their property regardless of their residency in a free state.That same year, the Archy Lee incident, California's last fugitive slave case, un­derscored just how precarious life was for African Americans in the Golden State. Archy Lee, an eighteen-year-old slave from Mississippi, had been brought to Sacramento in 1857 by Charles Stovall, the son of Lee's master. Stovall settled in Sacramento to teach school and hired Lee out for a number of years. Lee, claiming his freedom, ran away, but was arrested. The black and white abolitionist community rallied around him, providing legal aid. After a series of intricate legal maneuvers, the state Supreme Court held that the state's Fugitive Slave Law was valid if the slave owner was sojourning or only temporarily residing in the state. Despite Sto­vall's lengthy residency in California, the court ruled in his favor, noting that the white man's youth, poor health, and inexperience with the legal process should not be grounds for the forfeiture of his human property. As Stovall prepared to sail out of San Francisco with Lee, however, abolitionists blockaded the ship. Archy Lee won a reprieve while his supporters fought the extradition order in court. After weeks of legal wrangling, Lee was declared free.29

Black Californians lived a perilous existence in the shadow of state and national fugitive slave laws. In March of 1858, the California legislature came close to pass­ ing a punitive antiblack immigration bill that would have required current black res­ dents to carry registration papers and would have deported blacks who newly en­tered the state. Therefore, in the spring of 1858, when gold was discovered on the Fraser River, four hundred African Americans (almost 10 percent of the state's black population), began an exodus from California for Victoria, British Columbia, thereby placing themselves farther from the reach of fugitive slave laws. Archy Lee was among those who left.30

Chinese immigrants faced especially harsh discrimination in California because of the foreignness of their language, dress, and manner. Irish and African American laborers, themselves struggling to survive, provided some of the most strident opposition to
Chinese immigrants faced especially harsh discrimination in California because of the foreignness of their language, dress, and manner. Irish and African American laborers, themselves struggling to survive, provided some of the most strident opposition to Chinese immigration. This lithograph from the late 1860s reflects nativists' fears of being overrun by Chinese "hordes." California Historical Society, FN-31535.

Though not threatened with slavery, the Chinese experienced equally harsh and uncertain conditions in California. Whites, initially receptive to Chinese immigra­tion as a means to secure cheap labor, quickly acted to curb it when marketplace competition and economic recessions affected white workers and made the Chinese convenient scapegoats. California lawmakers drew on an eighteenth-century federal law that said only "free white persons" could be naturalized. Thus, legislators intro­duced the short-lived "Act to discourage the Immigration to this state of persons who cannot become citizens thereof," a category into which virtually all Chinese fell. The act imposed a $50 per head tax on all Chinese immigrants and attempted to place a $4 monthly tax on Chinese fishermen. In 1862 San Francisco resident Ling Sing sued the San Francisco tax collector, refusing to comply with a $2.50 capitation tax levied against the Chinese. In the Ling Sing v. Washburn decision, the stateSupreme Court struck down the tax for being in violation of the constitution.31

Even though the court banned most of the anti-Chinese legislation, California legislators persisted in their attempts to forestall Chinese citizenship and residence in the state. The foreign miners' taxes, the ban on Chinese testimony in court, and the exclusion of Chinese children from the public school system were enacted in the 1850s and 1860s and remained on the books for several decades. In addition, local or­dinances (such as San Francisco's infamous Cubic Air Ordinance) regulating board­ ing houses, sanitation, businesses, and vice were selectively applied and enforced in the Chinese community. Chinese residents and merchants such as the powerful Chinese Six Companies banded together to fight against these outrages, pooling their financial resources to hire white attorneys to challenge the discriminatory mea­sures in court, often successfully, and choosing to fill up the jails rather than pay the fines. Historian Roger Daniels has noted that these acts of nonviolent resistance "foreshadow[ed] the Industrial Workers of the World free speech fights of the early twentieth century and the civil rights movements of the 1960s.32

Anti-Chinese hostility reached the boiling point in the 1870s, when economic de­pressions wracked the country. Alexander Saxton has called the Chinese in Cali­fornia the labor movement's "indispensable enemy." As unemployment rose and labor conditions worsened, white workers in California increasingly blamed the Chinese. In 1877, the emergence of the virulently anti-Chinese Workingmen's Party in San Francisco, led by Irish immigrant Denis Kearney, gave a political voice to un­ employed white workers, many of them Irish immigrants. In "sandlot" meetings around the city, the Workingmen's Party denounced political corruption, corporate monopoly, and the Chinese. Kearney made the party's rallying cry "The Chinese Must Go!"When the state constitution was revised in 1879 the Workingmen's Party had garnered enough influence and support to have anti-Chinese provisions in­serted into the document: Chinese were prohibited from working for private cor­porations and for public works, and "coolie" labor was restricted from entering the state. The anti-Chinese backlash that began in California culminated nationally when the United States Congress passed the Chinese Exclusion Act in 1882.33

Equal access to the judicial process was another critical issue for California's mi­nority populations, but here too the system established racial barriers that prevented people of color from achieving justice in court. Anti-testimony laws, which Cali­fornia legislators modeled on southern slave codes, had been established as early as 1850. These laws precluded the testimony of people of color in litigation dealing with whites. In 1852, the law stated that "no black or mulatto person, or indian [sic], shall be permitted to give evidence in any action to which a white person is a party, in any Court of this State."34

The 1852 murder of African American barber Gordon Chase by a white thief in San Francisco underscored the vulnerability of all people of color. In the Chase matter, critical testimony of an eyewitness was disallowed because an examination of his hair revealed him to be "one-sixteenth African." In 1854 the California Supreme Court (People v. Hall} overturned the conviction of another white murderer because a Chinese witness had been allowed to testify. Ruling that Chinese and Indians were of similar Asian origin and that the statutes barring Indian testimony also could be applied to Chinese, the court sought to protect whites from the "corrupt­ ing influence" of the testimony of"degraded and demoralized blacks from Africa, Indians from Patagonia, South Sea Islanders, Hawaiians, Chinese and other peoples of color." In 1857, Manuel Dominguez, a wealthy landowning Los Angeles County supervisor of Mexican and Indian descent, and a delegate to the constitutional con­vention of 1849, encountered this racial barrier when he took the stand to testify for the defendant in a San Francisco case and was dismissed when the plaintiff's attor­ney objected that Dominguez's "Indian blood" disqualified him.35

In 1869, San Francisco businessman Fung Tang and other Chinese representatives met with a congressional delegation in San Francisco to demand relief from Cali­fornia's discriminatory laws. Tang told the delegation, "We are willing to pay taxes cheerfully, when taxed equally with others....Most of all-we feel the want of protection to life and property when Courts of Justice refuse our testimony, and thus leave us defenseless, and unable to obtain justice for ourselves." California's anti­ testimony law would stand until 1870, when the federal Civil Rights Act, passed to enforce the post-Civil War amendments to the U.S. Constitution, overturned it.36 The complexity of California's multiracial political dynamic is apparent in the way people of color sometimes perceived one another and their bids for equality. This dynamic sometimes led people of color to press their demands for citizenship at the expense of other oppressed groups. In a letter to the African American newspaper The Elevator,San Franciscan S. P. Clanton chided the Democratic Party for "preju­dic[ing] the minds of the people against the negro's [sic] claims for equal rights be­ fore the law, by classing us with Chinamen and Digger Indians." Another black cor­respondent to the newspaper insisted that "We are natives; our knowledge of the laws of government and customs of civilization are not doubtful-they are fact." Similarly, Lai Chun-Chuen, a spokesman for Chinese merchants in San Francisco, rebuked white Americans for treating them "the same as Indians and Negroes," be­ cause the Indians knew "nothing about the relations of society." He asked, "Can it be possible that we are classed as equals with this uncivilized race of men? ... We doubt whether such be the decision of enlightened intelligence."37

Equal access to California's public schools was another area in which people of color suffered discrimination. It was apparent early that public education in Cali­fornia was headed down a segregated path. In 1855, the state superintendent of pub­ lic instruction, Paul K. Hubbs, announced that "the education of all others, whether negro or mongol [sic] or Indian . . . must depend upon the benevolent care of our citizens or upon their own capacity to pay-for it." Later that year, the state legisla­ture changed the school code to guarantee that the state's education funds would be appropriated only "in proportion to the number of white children as shown by the census taken by the school marshals" (emphasis in the original). By 1858 the legisla­ture enacted the first of several school segregation bills that prohibited "Negroes, Mongolians, and Indians" from attending public schools. With the introduction of the California School Law in 1870, California began separating children of"African or Indian" descent from whites when there were more than ten such children in the school. In a deliberate attempt to discourage Chinese from remaining in the state, and despite petitions from the Chinese community and supportive white clergy, the law was silent about the status of Chinese children. Thus, after 1870, most mi­nority children in California attended publicly supported, legally segregated schools, which were chronically underfunded and suffered from substandard maintenance, inconsistent faculty, and hostility from the white community.38

African American parents fought against the legal proscriptions that kept their children from school, filing suits to test the law's constitutionality. In 1871, African Americans pressured the legislature to introduce two bills that would outlaw segre­gation in the public schools, but they could not muster enough support to pass them. In 1874, A.J. Ward brought suit to enroll his daughter Mary Frances in a San Fran­cisco public grammar school when the segregated school in her district closed. Ward argued that the state's educational policies and those of the local district violated the Fourteenth and Fifteenth Amendments to the U.S. Constitution and the federal Civil Rights Act of 1866.The state Supreme Court rejected the suit, but the landmark Ward v. Flood case had chipped away at some of the legal foundation for school seg­regation. The legislature eventually amended the school code to allow African Amer­ican children to attend white schools where no black school was available. However, black parents still had to file suits against school districts to force them to comply with the law. In 1880, the legislature finally abolished school segregation, but five years later it amended the code to establish separate schools for "children of Mongoloid or Chi­nese descent." Not until 1929 did California officially abolish all segregation in the public school system, but remnants of it persisted into post-World War II years. 39 All these events underscored the political and socioeconomic dilemma of people of color in California. African Americans addressed these problems through concerted action. In 1852, black San Franciscans formed the Franchise League and un­ successfully petitioned the state legislature for full civil rights. However, the year 1855 signaled a more aggressive approach on the part of the black community when forty-nine male delegates from ten of California's twenty-seven counties met at St. Andrews AME Church in Sacramento to establish the first Convention of Colored Citizens of the State of California.40

Convention delegates were well aware of the convention's historic significance and were equally convinced that the estimated $2.4 million net worth of the black community in California amply qualified them for the undertaking. Moreover, the Cali­fornia convention movement was part of the national struggle for abolition and black civil rights. A number of convention participants, such as Jeremiah B. Sander­ son, Peter Lester, Frederick Barbadoes, David W. Ruggles, and Mifflin Wistar Gibbs, had been leading abolitionists in their home states before migrating to Cali­fornia in the early 1850s. Behind the scenes, San Francisco businesswoman and ar­dent abolitionist Mary Ellen Pleasant made generous :financial contributions to the convention movement.41 Sacramentan James Carter rallied support for the first con­vention, declaring:42

Brethern:-Your state and condition in California is one of social and political degra­dation ... Since you have ... migrated to the shores of the Pacific, with the hopes of bettering your condition, you have met with one continued series of outrages, injustices, and unmitigated wrongs unparalleled in the history of nations....[W]e call upon you to lay aside your various avocations and assemble yourselves together ... for the pur­pose of devising the most judicious and effectual ways and means to obtain inalienable rights and privileges in California.

The first convention in 1855 gave its highest priority to anti-testimony laws. The colored convention movement mounted a series of impressive petition campaigns demanding the elimination of racial restrictions on testimony and voting. Conven­tion delegates authorized the "State Executive Committee," which was the "political arm of the Colored Convention movement," to oversee a statewide anti-testi­mony petition campaign directed at the legislature. The convention voted to raise $20,000 to finance the operation. Subsequent conventions in 1856, 1857, and 1865 tar­geted public school segregation, provided legal defense for runaway slaves who were captured under the state's Fugitive Slave Law, and challenged Jim Crow segregation in public conveyances. In 1856, Miffiin Wistar Gibbs's Mirror of the Times, Cali­fornia's first black newspaper, was adopted by the convention as "the State Organ of the colored people of California," to disseminate information about their cause and serve as an advocate in the public arena.43

The rise of the convention movement in California coincided with the increasing political, sectional, and racial tensions that led to the Civil War. Prior to the Civil War, people of color in California, despite their efforts, found it virtually impossible to gain consideration from a state legislature that was controlled by pro-southern, "Chivalry," Democrats. As early as 1851 the Chivs, led by Senator William Gwin, a former Mississippian, dominated state politics. Proslavery Democrats had unsuc­cessfully attempted to divide California and open the southern half of the state to slavery. Chiv forces attempted to ban blacks from the state, proposed enslaving all blacks who had entered the state before 1850, thwarted every attempt to overturn racially proscriptive legislation, supported laws that discriminated against Chinese immigrants and workers, and voted for legislation that reduced Indians to a state of land peonage. These political conditions held little promise for harmonious race re lations in California. For example, the colored convention movement continued its fight for abolition, suffrage, testimony, and education, but the continued domination of pro-southern political forces caused the third convention in 1857 to be "convened in an atmosphere of discouragement." Bleak future prospects led delegates to seri­ously consider emigration to Canada or Mexico. Indeed, within a year, Miffiin Wis­tar Gibbs and some four to six hundred African Americans left California to settle in Canada.44

African Americans had won a number of whites to their cause, but not until the early 1860s and the defeat of the pro-southern forces did things begin to improve. The Civil War and Reconstruction years brought intensified efforts and mixed results for people of color in California. For example, African Americans increased their chal­lenges to laws that excluded them from public conveyances and accommodations. In 1863, William Bowen filed a civil suit in San Francisco District Court and won Srn,ooo after being ejected from a streetcar in North Beach. Charlotte Brown, an­ other black San Franciscan, had filed a similar suit two months earlier that resulted in a jury award of five cents, the cost of the streetcar fare. Mary Ellen Pleasant filed suit against the North Beach and Mission Railroad Company in 1866, when she and another black woman were ejected from a streetcar, but her victory was reversed on appeal by the state Supreme Court in 1868. While none of these challenges ended segregation in public transportation, they helped undermine the legal foundation on which the laws rested. Finally, in 1893 all racial barriers were legally removed when California legislators enacted an equal public accommodations law.45

With the election of the antislavery Republican Abraham Lincoln to the presi­dency in 1860 and the advent of a more tolerant administration led by Republican governor Leland Stanford in 1861, African Americans began to experience some re­ tie£ For example, in March 1863, two months after Lincoln's Emancipation Proclamation went into effect, San Francisco state senator Richard F. Perkins successfully introduced a bill that repealed the ban against black testimony. The mood of the Colored Convention in 1865 was more optimistic, given the sweeping changes brought about by the Civil War. Delegates pressed their demands for suffrage and education, linking their cause to the rise of the "copper-colored nations of China and Japan." They urged blacks to take advantage of western homestead laws and called for the employment of forty thousand freedmen on the construction of the transcontinen­tal railroad that was to terminate in Sacramento. In a show of "international soli­darity," African American delegates passed a resolution that pledged aid and sup­ port to anyone struggling to "free themselves from bondage, whether it is personal servitude or political disfranchisement."They specifically noted the struggle of the Poles and Hungarians with Russia and pledged support for the Irish fight for inde­pendence from Britain.46

Harper's cartoon
This cartoon from the November 27, 1869, issue of Harper Weekly mocked the oppor­tunities enjoyed by Irish Americans in California. "Ah, Mike, me boy, you're just in time to Vote," the prosperous man tells the newly arrived Irishman. "Come away with me and get Naturalized. Yer may be an Alderman soon yerself, if yer like." Numerous Californians of Irish descent did rise to positions of political and economic power during the nine­teenth century, including Governor John G. Downey, Workingmen's Party president Denis Kearney, U.S. senator James D. Phelan, labor leader Frank Roney, and Sacramento Bee editor James McClatchy. Courtesy California State Library.

Despite Reconstruction optimism, however, racial advancements were uneven. The Republican regime and the Democrats who resumed control of state govern­ment after the Civil War continued anti-Chinese agitation. Governor Stanford's inaugural address denounced the presence of the Chinese in California and called for "any constitutional action, having for its object the repression of the immigra­tion of Asiatic races." The 1863 Perkins Bill legalized black court testimony, but it continued the prohibition against Indians, and it specifically barred "Mongolians" and Chinese from testifying. On the other hand, the Chinese community gained some benefit from Reconstruction-era legislation that aided the freed people. They received federal protections under the Fourteenth Amendment (ratified in 1868), which prohibited states from depriving anyone of due process and equal legal protection. Similarly, the Civil Rights Act of 1870 forbade racial discrimination in the courts and banned the imposition of taxes on any specific immigrant group. In addition, the Burlingame Treaty, which had become federal law in 1868, allowed for free immigration from China. In 1872, California, bowing to federal laws, finally re­ moved all racial bans on testimony. In 1880, the legislature struck down all laws providing for separate schools for blacks; a decade later the state Supreme Court up­ held the ruling. Chinese children would be excluded from public schools until the 1920s. The federal Chinese Exclusion Act of 1882, however, would not be repealed until 1943.47 Many of these post-186os victories had been achieved through activism by California's people of color, especially African Americans and Chinese, via liti­gation, lobbying, and publicly exposing inequities.

While post-Civil War legislation provided people of color in California with the beginnings of legal relief, their daily reality revealed that de facto and de jure segre­gation and discrimination would continue to make them vulnerable to violence and exploitation. African Americans, Asian Americans, Mexican Americans, and Na­tive Americans of the nineteenth century conducted their struggles in an environment where politics had long been conditioned by race and ethnicity. They would be compelled to carry their fight into the twentieth century, when succeeding genera­tions would devise new strategies to overcome both old obstacles and new ones.


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