"THE CHINESE MUST GO!!!"
The Second California Constitutional Convention, 1878-1879
A Documentary Source Problem
Beginning in 1848, continuing for more than a decade, gold drew
Chinese immigrants, and thousands of others from outside the
United States, to seek their fortune in California. Many of
these individuals decided and to stay on the Pacific Coast long
after their dreams of a quick fortune were dashed. American
authorities counted 323 Chinese immigrants into the United
States in 1849 and almost 500 in 1850. The Chinese exodus to
California increased with the outbreak of the Taiping Rebellion
against the Manchu dynasty in 1851. A thirteen-year civil war
ensued, which forced many refugees of the violence to flee
China. Some came to California. By 1852 there were over twenty
thousand Chinese in California.
With this influx, however, came racial conflict. Prejudice
readily found its way into legislation in the state capital in
Sacramento. For example, in 1850, the state legal code contained
the provision that "No black or mulatto person, or Indian, shall
be allowed to give evidence in favor of, or against a white
man.” That same year, the state legislature approved a foreign
miners tax, levied mostly on Latinos, in order to discourage
economic competition with whites. In 1852, the legislature
enacted a second foreign miners tax, this time targeting
Chinese. In 1854, the California Supreme Court affirmed the 1850
legal code and the 1850 and ’52 foreign miners tax by declaring
in a case, People vs. Hall, that Chinese, in addition to Indians
and blacks, were not entitled to testify against whites in
California courts.
The People vs. Hall decision cited a 1790 federal statute which
specifically limited citizenship to "free white persons.”
Consequently, throughout the nineteenth century, Asians were not
permitted to become American citizens, although immigration to
the United States was permitted. California lawmakers made
numerous efforts throughout the 1850s, 60s, and 70s to exclude
the Chinese, but federal courts obstructed their efforts. For
example, in 1855 the state legislature tried to reduce the flow
of Chinese immigration by charging an entry tax of $50 on
persons ineligible for U.S. citizenship. But the U.S. Supreme
Court declared such legislation unconstitutional, along with
another 1858 state law, which flatly prohibited the landing of
Chinese immigrants in California, because the Court ruled that
under Article 1, Sections 8 and 10 of the U.S. Constitution, the
authority to set immigration policy is reserved for the federal
government. Such decisions by federal courts led to considerable
popular resentment in California against federal immigration
policy.
American diplomacy further restricted the legislature's powers
over the Chinese. Europeans and Americans had forced a series of
unequal treaties on China, especially after Great Britain
defeated China in the Opium War (1839-1842). The capstone of the
long American effort to open China to American trade and
influence came in 1868 when an American diplomat, Anson
Burlingame, negotiated a comprehensive treaty with China that
opened new trading centers for American merchants in China in
exchange for greater legal protections for Chinese immigrants in
the United States. One important provision of the Burlingame
Treaty of 1868 for California stated:
“Citizens of the United States visiting or residing in China
shall enjoy the same privileges, immunities, or exemptions, in
respect to travel or residence, as may there be enjoyed by the
citizens or subjects of the most favored nation; and
reciprocally, Chinese subjects visiting or residing in the
United States, shall enjoy the same privileges, immunities, and
exemptions in respect to travel or residence, as may there be
enjoyed by the citizens or subjects of the most favored nation.
But, nothing herein contained shall be held to confer
naturalization upon citizens of the United States in China, nor
upon the subjects of China in the United States.”
In the meantime, popular tensions were growing on the Pacific
Coast. Substantial numbers of Chinese (mostly young males) had
come to California during the 1860s - to mine abandoned fields,
to work on farms, and especially to build the transcontinental
railroad. By the mid-1860s, more than two thirds of the
workforce building the western half of the transcontinental
railroad were Chinese. The census of 1870 showed nearly 50,000
Chinese living in California (though some scholars consider this
a low figure). Chinese immigrants composed more than 20% of the
foreign born population in the state. Additionally, at the
beginning of the 1870s many Chinese were moving from the mining
districts in eastern California to the more urban and industrial
cities, especially in the Bay Area, in San Francisco
particularly. Indeed, the only immigrant group more numerous in
San Francisco by 1875 were the Irish, and the Chinese were
catching up rapidly; immigration to California in the 1870s
expanded the Chinese population in the state by 50%!
Racial tension in California was becoming socially and
politically explosive. The worst economic depression up to that
time struck the country early in the 1870s, leading to painful
unemployment in California. In an era before programs such as
Social Security, unemployment insurance, the Federal Deposit
Insurance Corporation, or even food stamps helped people cope
with economic hardship, it was possible in the United States to
literally starve to death. Depressions, in such an era, then,
were not just uncomfortable; they could be economically
horrifying.
As long as Chinese didn’t compete directly with white American
workers, violence against Chinese remained largely the work of
irrational, hysterical racists, though incidents of violence
against Chinese had been common around the state since the early
1850s. But as Chinese began to compete with whites more directly
in the 1860s and 70s, white mob violence against the Chinese
became more deadly. Indeed, in the 1870s, spasms of ferocious
violence exploded around the state. In 1871, a major riot
erupted in Los Angeles, when more than 500 armed whites invaded
the Chinatown district of the city and murdered at least 18, and
perhaps as many as 80, Chinese.
In the meantime, Nevada Comstock Lode silver mining, which had
been a major stimulus to California’s economy throughout the
1860s and early 70s, fell on hard times. In 1875, silver mining
stocks suddenly dropped precipitously, causing a crash. The
largest and most profitable bank in the state, the Bank of
California, closed its doors that year, and its President - the
renowned William Ralston – calmly walked out of his office
toward San Francisco Bay, disrobed, and swam out into the cold
water, never to be seen again. Thousands of white Americans
poured into San Francisco looking for jobs, and, finding none,
looked for "those responsible" for their economic troubles.
Economic terror induced many white Californians to blame the
Chinese for low wages, unemployment and widespread economic
misery.
White working-class males composed the largest group of
Californians hostile to the Chinese. Many of them were
unalterably convinced that the Chinese, by offering to work for
very low wages, were responsible for the economic troubles of
the era. In 1877, the Workingman's Party of California was
founded, and it’s leader, Denis Kearney adamantly declared that,
"The Chinese Must Go!" When the great nation-wide railroad
strike of 1877 ignited a week of violence around the country,
rioting broke out in San Francisco, and a mob of whites attacked
Chinese in Chinatown. A dozen Chinese were killed, and hundreds
of buildings in Chinatown were looted, gutted by fire, or both.
The entire city was deeply alarmed - especially the Chinese, of
course, who literally huddled together against the blind force
of irrational white mobs. In the months following the San
Francisco riot, Denis Kearney repeatedly incited more violence
against the Chinese to drive them out of the state.
In 1878 the California state legislature called for a convention
to rewrite the state constitution that had first been written in
1849. The election of delegates to the convention was hotly
contested, and the Workingman's Party of California worked
especially hard to elect delegates sympathetic to their cause.
The party’s meteoric rise to political power worried traditional
Democrats and Republicans who joined together to form a
Nonpartisan front to nominate convention delegates in opposition
to those from the Workingman’s Party. In the election in June
1878, the Nonpartisans won seventy-eight seats, and the
Workingmen fifty-one. Eleven Republicans and ten Democrats won
independently. The big majority of delegates agreed that
something had to be done about "the Chinese problem."
The California Constitutional Convention met over the winter of
1878-1879, in a social climate of unreasoning fear and anxiety.
Debate over the Chinese was heated and wide-ranging. No other
single issue consumed more time in the Convention deliberations.
The debate provides a good summary of twenty years of legal,
economic, social, political and moral conflict over Chinese and
Asian immigration into California. It was also a uniquely
illustrative chapter in the history of bitter anti-Asian
prejudice in the United States.
The documents that follow come from a three-volume transcript of
the 1878-1879 California Constitutional Convention.
INSTRUCTIONS FOR THE ASSIGNMENT
As a young and promising historian, you have decided to write a
history about the attitudes toward the Chinese. You have
selected the California constitutional convention of 1878-79 as
a convenient summary of these attitudes.
You want to identify and analyze a few important issues.
Naturally, (A) you can't tell everything [five pages of doublespaced typing is the maximum], and, (B) you need to deal with
what is "between the lines," not just who said what.
The following questions may help you focus your thinking as you
read and re-read the documents:
(1) Why was "coolieism" believed to be such a gross evil?
(2) What reasons do Stuart and Shafter give for defending the
Chinese [Documents 14 through 18]? Are there important
differences between their positions?
(3) Are certain attitudes associated with the various socioeconomic groups among the delegates? If so, why?
(4) "Social Darwinism" was a widely popular method of
interpreting history at this time in the United States. Can you
find evidence of Social Darwinism among these statements? If the
Chinese were more rugged and better workers than the AngloSaxons, how could white Americans be "the fittest?" You might
try to identify some of the problems in applying Darwinism to
the social realm.
(5) Despite spirited objections from a few, the convention
developed an overwhelming consensus that California had to take
prohibitive action against the Chinese. The main problem (as
documents 6, 20-26 show) was a purely legal one: how could the
State of California prevent immigration or remove Chinese
already here if the federal government controlled such policy?
If you were sitting on the Supreme Court when the California
constitution came up for judgment, how would you answer the
legal points made by Beerstecher in document 22?
These questions are not meant to confine you but to serve as
examples of ones worth considering. In choosing your own
approach, remember that you are trying to write a smooth, fluid,
integrated essay explaining this episode in California history.
You need not read anything beyond these documents for this
project. Good luck.
DOCUMENT COLLECTION
PART I
DOCUMENT #1
Memorial on the Chinese [that is, a general statement of
principles], adopted by a substantial majority of the delegates
to the California Constitutional Convention, December 17, 1878.
"As became a people devoted to the National Union and filled
with a profound reverence for law, we have repeatedly, by
petition and memorial ... sought appropriate remedies against
this great wrong... Meanwhile this giant evil has grown and
strengthened and expanded; its baneful effect upon the material
interests of the people, upon public morals, and our
civilization, becoming more and more apparent, until patience is
almost exhausted ... It would be disingenuous of us to attempt
to conceal our amazement at the long delay of appropriate action
by the National Government toward the prohibition of an
immigration which is rapidly approaching the character of an
Oriental invasion, and which threatens to supplant Anglo-Saxon
civilization on this coast ... This discontent from this cause
is almost universal. It is not limited to any political party,
nor to any class or nationality. It does not spring from race
antipathies, nor alone from economic considerations, nor from
any religious sentiment, nor from low hatreds or mercenary
motive.
"Our sincerity cannot, therefore, be doubted since we are
willing to forego all the benefits of commerce with China, if
need be, rather than suffer the ills which this immigration must
inevitably entail upon us and our descendants.
"The country being now stocked with a vigorous, intelligent,
progressive, and highly civilized people, there is no need of
immigration for the increase of our population...." There is a
danger of an immense increase of Chinese immigrants in the near
future. The effect of the famine now unhappily prevailing in the
northern provinces of China is certain to cause a migration....
"The Chinese bring with them habits and customs the most vicious
and demoralizing. They are scornful of our laws and
institutions. They establish their own tribunals for the redress
of wrongs and injuries among themselves, independent of our
Courts, and subject the victims of such tribunals to secret
punishments the most barbarous and terrible. In our cities they
live crowded and herded like beasts, generating the most
dangerous diseases. They introduce the ancient, infectious, and
incurable malady called leprosy .... They poison our youth in
both mind and body [opium]. They build no homes. They are,
generally destitute of moral principle. They are incapable of
patriotism, and are utterly unfitted for American citizenship.
"The system of labor, which results from their presence, is a
system which includes all, or nearly all, the vices of slavery,
without the conservative influence which is incident to the
domestic or paternal relation between master and slave. It
degrades labor to the standard of mere brute energy, and thus
excludes the labor of free white men who will not and cannot
endure the degradation of competition with service labor."
PART II
Editor’s Note to Part II: For weeks, the state Constitutional
Convention debated proposals for sections of the constitution
dealing with the Chinese. The following documents present,
first, a history (rather colored by the speaker's persuasions)
of “Orientals” in California. Second, the documents trace a
cultural conflict between whites over the Chinese. Finally the
documents exhibit different understandings of the legal issues
involved in state action, which might conflict with the
Burlingame treaty (1868) between the United States and China.
DOCUMENT #2
Delegate C. V. Stuart, remarks during the California
Constitutional Convention, December 9, 1878.
"In eighteen hundred and fifty, I believe it was, in San
Francisco, there was a celebration of the admission of
California into the union .... At that time sir, if I am not
mistaken, the Chinamen, few as they were, were admitted to a
post of honor, and they followed the officers of the State and
city in the parade. From that time down to the war [Civil War,
1861-65], every movement of our government and every movement of
our State, was to induce the Chinaman to come here and to
capture the Oriental trade. There were treaties made, first by
force, by Porter, for he went with the Navy, next by peace, and
next by Mr. Burlingame, who was at one time in the Congress of
the United States. The Burlingame treaty admitted, and has since
admitted, the Chinaman to our country as free probably as any
other treaty that has been made among the nations. That power
lies in the [federal] government. There have been steamboats
between here and China subsidized, and there have been other
connections made and railroads built since. The Chinese have
been the laborers of this coast for almost twenty years. White
men we have plenty of here....”
[Editor’s Note: Stuart represented Sonoma County in the
Convention. He was a successful farmer there with a large
estate. He had arrived in San Francisco in 1849 and traveled the
state widely and engaged in several occupations before settling
on agriculture. Although a Nonpartisan during the Convention,
Stuart was staunch Republican.]
DOCUMENT #3
Delegate C. W. Cross, remarks during the California
Constitutional Convention, December 16, 1878.
"Now, this word coolieism, here introduced, it seems to me, has
among those who are familiar with this Chinese question in its
later phases, a well defined meaning. I think the word has its
origin as the Chairman stated, or very nearly so; yet this word
has come now to have a very definite meaning, and is used with
as exact a meaning as almost any term. Now sir, the word slavery
is not a synonymous term. Coolieism is a contract by which the
Mongolian is imported from his native country to some foreign
country, there to work for a certain period of time to pay his
passage. Now, that is the meaning of coolieism as treated even
in our popular magazines .... If a Chinaman pays his own way to
the United States ... and there he goes to work receiving his
own pay, he is not a coolie ... that is a Chinaman … brought
from China under a contract that, in consideration of being
landed here, he will work a period of six years, and pay all, or
a certain portion of all, that he earns during that time to
those who import him, but during that time the latter will have
absolute care of him, take care of him in sickness, etc.
The Six Companies [a Chinese organization operating in the
United States] bring nearly all of the Chinamen here under such
contracts. As a rule, those who want to come here go to the
agents of these companies and make their arrangements with those
agents. When they come over here they find out that it is a hard
bargain, that they have made a hard bargain, and by the time
their period of coolieism expires, a large portion of them are
used up."
[Editor’s Note: Cross came from Nevada County. He was a young
lawyer, just thirty years old at the time of the convention. He
came from a prominent New England family and had attended
Northwestern University. Still, Cross was elected on the
Workingman's ticket.]
DOCUMENT #4
Delegate C. C. O’Donnell, remarks during the California
Constitutional Convention, December 11, 1878.
"Now, Mr. Chairman, I am not going to detain you but a few
moments. I only want to refer to the record ... According to the
Custom House report, from eighteen hundred and sixty-eight and
seventy-six – eight years – we have drawn from that country over
one hundred thousand Chinese. Over one hundred thousand of these
Chinese have come to this coast for the last eight years. Now,
think of that! They have taken from this State two hundred and
forty million dollars. Do you wonder at the cry of hard times in
the State of California? Take one hundred and fifty thousand of
these Chinese in this state, getting wages from a dollar and a
half a day, and out of the dollar they send seven bits to China.
Over ninety thousand dollars leaves the state every day and goes
to China, never to return.”
[Editor’s Note: Doctor C.C. O'Donnell came from a prominent
family. Alexander Hamilton and Charles Carroll were ancestors Hamilton was a delegate to the U.S. Constitutional Convention
and the first Secretary of the Treasury of the United States,
while Carroll attended the Continental Congress and signed the
Declaration of Independence. O’Donnell came to San Francisco in
1850 and stayed. He was active early in the "anti-coolie"
crusade and was elected on the Workingman's ticket.]
DOCUMENT #5
Delegate C. R. Kleine, remarks during the California
Constitutional Convention, December 10, 1878.
"What have these long-faced preachers done [i.e. missionaries
who have encouraged the Chinese to come to America or to be
converted to Christianity]. They have driven our poor white men,
our white boys, and white girls into hoodlumism. They have made
our poor white girls what? Prostitutes! It is almost impossible
for a poor white servant girl to find employment in a white
family. No! The mistress of the house wants a Chinaman. She
wants a Chinaman, why? He is very handy. She can say, "John, do
this," and John does it and John never says a word. He keeps
quiet; only when he goes home to his shanty in Chinatown, and
then he tells all about it – what he has seen, and what he has
heard. There you can see what the missionaries have done by
importing the Chinese here.
"Now, gentlemen, you remember in eighteen hundred and fifty-six
there was a vigilance committee organized in San Francisco. The
government said, you must not do so, but they raised it, and
gave warning to these political vagabonds and loafers that they
must quit, and they strung up several of these scoundrels, and
the rest escaped the country, and the vigilance committee,
subsided; but some of them are here today, in this State, ready
to answer the call of duty again.
Now, gentlemen, is it possible that we have no protection
against this curse? You say we must appeal to Congress. Haven't
we been appealing to Congress for the last ten years? And these
lawyers tell us we can't do anything. Well, I tell you to pay
very little attention to what these lawyers say, because the
lawyers disagree among themselves ... They can make white black
and black white, so pay no attention to these lawyers whatever
[laughter] .... These gentlemen have said, what are we going to
do with the poor Chinaman? Better say, what are we going to do
with these poor white people; who is going to care for them? Go
down to San Francisco and see these poor boys and, girls
tramping the streets day after day, because they can't get work,
all on account of this cheap labor. Gentlemen, don't you know
what this cheap labor means? It means extravagance and luxury
for the capitalists. That's what it means. We have a class of
capitalists that want cheap labor, they want coolies, they want
slaves. According to testimony taken before the Commission [1876
California Legislature commission on Chinese labor], these
Chinamen can live on eight cents a day. That's what capital
wants. They want to bring us down to the level of the coolie
himself, to a level with slave labor."
[Editor’s Note: Kleine was a delegate from San Francisco. He was
born in Prussia (now Germany) in 1830. He had come to California
in 1854. Between 1863 and 1873 he lived near the silver mines in
Nevada. He had engaged in various occupations: he had been a
miner, a cobbler, and a Baptist minister. Although a Republican,
he had been elected on the Workingman's ticket. One authority
wrote that "he never smokes, drinks, or chews, and he strictly
carries out the command to 'swear not at all.'"]
DOCUMENT #6
Delegate J. A. Filcher, remarks during the California
Constitutional Convention, December 10, 1878.
"I wish, if we cannot awaken them [the representatives of the
federal government] in any other way, we could transfer the
whole Chinese population over to some of the Eastern States,
that the people there might be brought to realize the condition
of the people of California. I believe that it is the only way
the people of the Eastern States can be educated out of their
sentimentalism. They look upon us as crazy on this subject, as
hardly knowing what we do want... [and] that opposition to the
Chinese comes from the inferior classes, and not the opinion of
the intelligent classes .... The people are almost, if not
quite, unanimous in their opposition to Chinese immigration, and
there is no gentleman on this floor who will deny it. But the
question here, today, is not as to whether Chinese immigration
is an evil; the question is, what can we do? How far can we go?"
[Editor’s Note: Filcher was one of the few newspapermen in the
Convention. He came to California in 1858, and in 1878, he was a
delegate from Placer County.]
DOCUMENT #7
Delegate C. C. O'Donnell, remarks during the California
Constitutional Convention, December 9, 1878.
"They live on the offal of the slaughter houses. ...I took the
reporters of the Call and the Chronicle, that nameless sheet
(laughter), and the Avalanche [three prominent newspapers]
through Chinatown, and I showed them that there were over one
hundred and fifty cases of leprosy, and I wanted this to be made
public and have it written up .... They said, 'that is a leper,
there is no doubt of that.’ Well, what was the result? I went
afterwards, and found eighteen in one house. I don't know as I
should call it house; it was a hole two stories deep, one
hundred and fifty feet from the sidewalk. There they were making
cigars. Now, think of that. There were three lepers employed
making cigars. I came to the conclusion that the only way to
stop leprosy was to isolate all that portion of the city. One of
the greatest medical men in this State, or in any other State,
declared that inside of ten years, if we allow that Chinatown to
exist as it is in San Francisco today, about three quarters of
the population of San Francisco will have that leprosy....
"… Says she, [a Chinese woman] is that leprosy?" Says I, "Yes;
and you have got to be very careful or you will get it." She had
never dreamed what was the matter with the child. The father was
a seafaring man. He came up and visited me some days afterwards.
He was running up the coast, and had his foot bundled up; and
parts of it, when I undid it, dropped off from leprosy ....
There was a man who had a little child dying from leprosy among
the white race right here in the State of California. They don't
understand the disease. They say they don't see much of it
around. Why? Because they don't know it when they do see it.
Then you must understand that it takes six years from the time
that [the pathogen] is inoculated into the system before it
shows itself. I don't know but that two thirds of this
delegation here are infected with it [applause and laughter].”
DOCUMENT #8
Delegate T. Harrison, remarks during the California
Constitutional Convention, December 12, 1878.
"For myself, sir, the paramount and overriding question which
brought me to a place in this body, and the all-absorbing idea,
which I am free to say, tinctured all of my positions upon every
question which is - or has yet to come before it [the
Constitutional Convention], embodied in that familiar and
honored slogan, now and from the first, the inherent spirit of
the party of which I am proud to be called a member, 'The
Chinese must go!' And upon this rock I will build my faith and
neither the gates of hell nor the Burlingame treaty 'shall
prevail against it."'
[Editor’s Note: Harrison was born in England in 1837. He had
been a machinist, a seaman and a miner – good credentials for
his standing on the Workingman's ticket. Usually a Democrat, he
was, of course, active in the Workingman's party and lived in
San Francisco.]
DOCUMENT #9
J. J. Ayers, remarks during the California Constitutional
Convention, December 9, 1878.
"The evil is in the unrestricted immigration, of a race peculiar
in its civilization, one that can never be digested into the
body of the people, one which no process of education or contact
can cause it to assimilate with us politically, socially, or
morally ... one which, by its peculiar composition, has the
undoubted faculty to supplant our own people and become the
conquerors of our State by a process which is more potent and
irresistible than the march of victorious armies through our
territories, or the successful invasion of our shores by hostile
fleets.
"American civilization cannot flourish by its side, for it will
absorb and monopolize the means by which American civilization
subsists. It is impossible for our own people and the Chinese to
exist together, as it is for fire to burn in the midst of water.
The law of economic forces, as applied to the social system,
forbids it. If the Mongolians are to have the unlimited
hospitality of our territory, then, in the conflict which must
ensue for existence, they will survive and our own people
perish. In this conflict they are the fittest, because the
cheapest."
[Editor’s Note: Ayers was from Scotland. He came to California
in 1849 and turned to mining. Then, as many did, he failed at
that occupation and had to find some other livelihood. Ayers
became a printer and then a publisher with the newspaper Morning
Call. In the Convention, he represented Los Angeles County.]
DOCUMENT #10
Delegate J. H. Miller, remarks during the California
Constitutional Convention, December 9, 1878.
"… cheap labor may, under certain conditions, be in an economic
sense, an advantage, but not so to us. Immigration has been a
blessing to the United States; not because it cheapened labor,
but because it brought within our borders, in aid of the great
work of development, men who established homes, whose
accumulations swelled the aggregate of the wealth of the nation;
men who have become a part of the nation and contributors to
Anglo-Saxon civilization .... For thousands of years China has
been filled to the verge with a redundant population. The life
of the average Chinaman has been a mere struggle for animal
existence. He bears with him the heredity of poverty and
unrelenting toil for food for thousands of years. His physical
organs have become adapted to insufficient food. There has been
a process of selection going on in China under which the heavy
feeders have fallen out, and under the law of the 'survival of
the fittest' none but those who can practice the most rigid
self-denial as to food remain. They have also been trained by
centuries of incessant toil to procure the maximum of
subsistence from the soil."
[Editor’s Note: Before coming to California, Miller was a lawyer
and politician from Indiana. He had been a Brigadier General in
the Union Army during the Civil War, and he came to California
after the war. A conservative Republican, Miller had run on the
Nonpartisan ticket, and he represented San Francisco.]
DOCUMENT #11
Delegate C. W. Cross, remarks during the California
Constitutional Convention, December 13, 1878.
"It is a question, sir, as to whether this country shall be
covered by the homes of freemen of our own race or whether it
shall be filled with Chinese slaves. It is a question, sir, as
to whether in every hamlet there shall be a Christian church or
a joss house [a Chinese house of religious worship]. It is a
question as to whether the future schools of this land shall be
schools in which shall be taught the principles of science and
progress, or whether they shall be schools in which shall be
taught merely the writings of Confucius [a philosopher revered
in Chinese culture, 551-479 BCE]. It is more, sir. It is a
question as to whether our descendants shall occupy this
country, or whether it shall be occupied solely by the Chinese
race."
DOCUMENT #12
Delegate J. T. Wickes, remarks during the California
Constitutional Convention, December 10, 1878.
"Nature reaches the aristocracy of race, the law of nature's
selection, the survival of the intellectually fittest. Culture
develops the higher from the lowest types. Agriculture,
floriculture, and stock-raising teach us to preserve the best
seed. The coming race, then, must be evolved from the white. The
maintenance of this higher law should be dearer to us even than
the federal Union."
[Editor’s Note: Wickes had arrived in San Francisco in 1852 and
became a miner. He then turned to teaching school. Usually, he
voted the Democratic ticket, though he was a Workingman in the
Convention. He represented Grass Valley in Nevada County.]
PART III
Editor’s Note to Part III: "Legal" ways to drive the Chinese
from California filled the Convention's discussions. Some
examples of suggested restrictions included the following:
"All Mongolians within this State shall be required to remove
there from within four years from the time this Constitution
takes effect. At the first session of the Legislature convened
hereunder, provision shall be made for judicial proceedings to
compel such removal and for the seizure and sale of so much of
any property of such Mongolians who may not heretofore have
voluntarily departed....
“After this Constitution takes effect, no Mongolian shall carry
on or maintain any business, occupation, profession, or
mechanical trade for gain, or perform any usual manual labor for
reward in this State....
“All penalties collected under the provisions of this article
shall be placed in the State treasury, to the credit of a fund
to be called the Mongolian Transportation Fund. They shall be
expended ... in the deportation to their native country of all
Mongolians....
All such Mongolians, as aforesaid, who shall after this
Constitution takes effect, be convicted of any crime or offense
against the laws of the land... [shall] be sentenced to
deportation from this state.”
The report of the convention’s Committee on the Chinese was a
little more restrained. The Committee suggested only that
Chinese should be forbidden to own real estate, to fish in
public waters, to carry on business, to be employed by any
corporation, or to do any work for California State or local
government. The following documents are speeches in response to
suggestions above:
DOCUMENT #13
Delegate J. F. Miller, remarks during the California
Constitutional Convention, December 12, 1878
"I hold in the first place that the Chinamen have some rights of
some kind. There are two kinds of domiciles. One is a political
domicile entitling the party to all political privileges.
Another is the social domicile, under which he has the right of
social domicile, but has no political rights, but has some
rights. You cannot murder him with impunity. You cannot deprive
him of his property. You cannot deprive him of the right to
live. He has a right to what he owns, and he has a right to what
he earns; and I say the right to labor is as high a right as the
right to live, because it involves the right to live; the one
includes the other, because all men must live by labor. If you
deprive a man of the right to labor you deprive him of the power
of subsistence. A man cannot live upon air. He cannot live on
water. He cannot live on the elements. He must live on something
raised from the soil. Deprive him of the right to labor and he
must starve. I say you cannot do that with any human creature.
[I]t does not follow that we have the power to prohibit the
whole nation, for they are not all of that class. There are
other kinds of people. They are not all bad. They are not all
paupers and criminals. And if you drive out the whole nation,
declare that they are universally bad, you do something which
you have no right to do. Right and reason will not sustain you.
It is a violent assumption on your part which the law will not
permit you to profit by."
DOCUMENT #14
Delegate C. V. Stuart. remarks during the California
Constitutional Convention, February 1, 1879
"Mr. President: I oppose this article, and I hope every section
of it will be stricken out. Such a savage monstrosity has never
before been penned by man. Is it for Christian men, in this
enlightened age, and only for California, to commit this
unnatural act of attempting the destruction, by starvation or
otherwise, of over one hundred thousand men? Is there anything
to be conceived more horrible or more savage? Sir, this question
cannot be settled in this way. It must be done by calm,
intelligent, and statesmanlike argument; and this political cry
of both parties to catch the floating vote is too well
understood at the East. You will find, sir, that intelligence
and justice only control our [federal] government policy. Sir,
since my last remarks on this subject, I see no new light thrown
on this question during the long, threatening, acrimonious, and
boisterous debate....
“Where is [a harsh law] written or proclaimed by man that equals
this in barbarism and inhumanity? You can trace down the stream
of time through all savage life, with its wars, its cruelties,
and its slavery, and fail to find its equal or parallel for
injustice, treachery or ingratitude. These men, after being
invited to our shores, after building our railroads, clearing up
our farms, reclaiming over one billion acres of our swamp and
overflowed land, planting our vineyards and our orchards,
reaping the crops of the small and needy farmers, gathering our
fruits and berries, digging and sacking our potatoes, supplying
our markets with the smaller kinds of fish from the sea,
manufacturing our woolen and other goods, cleaning up the
tailings of our hydraulic mines, scraping the bed rock of our
exhausted mining claims, and relieving most of the householders
in this State of the household drudgery which would be imposed
upon our wives and daughters, thus contributing to our happiness
and true prosperity. Sir, after all this, which has added many
millions annually to the State and nation's wealth, you would
commit treason against our Government [federal government,
because Stuart considered such suggestions unconstitutional] by
putting this unjust and inhuman article in our organic law. I
beg of gentlemen on this floor to pause, to consider well, and
not be carried away through blind prejudice, through political
ambition, or through race hatred. But act like civilized, just,
and Christian men; not to do an act that would shock all humane
men throughout the world, both Christian and Pagan....
“Sir, I have been the object of attack, both public and private,
for uttering my honest convictions on this grave and momentous
question. Life has been threatened; lies and slanders have been
circulated. But they emanate from sources too low, too filthy,
too cowardly for me to notice. Don't they know that the loss of
this vast army of labor would bankrupt and overwhelm all the
manufacturers and most of the producers of this State. Deprive
us of them, sir, and you will have no more wool or woolen goods
to warm our bodies, no more wine to cheer our lives or sustain
our bodily infirmities....
“Of pork, poultry, fish, and vegetables they use large
quantities, and goods, for which they pay high prices; also
large quantities of American manufactured goods in the way of
clothing, boots, shoes and hats. And the general condition of
health among them is far better in the country than among their
Caucasian enemies; seldom a day's work is lost on account of
sickness. The care of their person and health is almost
marvelous. Every night, after their work is done, and frequently
before they eat their meal, each and all go through their
ablutions from head to foot, and on Sundays their bathing and
washing occupy nearly half the day. What a lesson! What an
example to their boasting Caucasian persecutors. It would be
well for them and the country if they would copy or practice
some of their heathen rites such as cleanliness, economy, and
industry.
"Who are they that desecrate the Sabbath? Who form our rioters
and hoodlums? And fill our alms-houses? Who are plotting to
overthrow our common schools? Who stuff our ballot boxes? Who
are conspiring to overthrow and destroy our Government, and to
utterly stamp out liberty, that despotism over conscience, mind,
and muscle may rise upon the ruins? Who constitute the Molly
Maguires, [a radical labor group of Irish laborers in
Pennsylvania] ? Who burn our, railroad depots? Who threaten the
lives of our best citizens? Who are plotting to despoil our
wealthy men? Who claim two thirds of our public offices? Not
Chinamen. Then who are they? You may search history through all
time, and examine the nation's of the East through their rise
and fall, and you will find China where it now is and has been
for over five thousand years. Yet you will fail to find an
instance where she has overrun or crowded out a single nation,
however near."
DOCUMENT #15
Delegate J.M. Shafter, remarks during the California
Constitutional Convention, December 11, 1878
"We may as well admit it, for it is true, the Chinaman is
industrious and economical beyond the average laborer. He can do
two thirds or three fourths as much as the average white man. It
has been demonstrated that in heavy railroad work, selected
gangs of Chinamen and Europeans, pitted against each other, [the
race between the Central Pacific driving eastward and the Union
Pacific driving Westward in building the transcontinental
railroad] the victory was repeatedly with the Chinamen [who set
a record in 1868 of laying over ten miles of track in one day].
"The same objections which are now made to them, fifty years ago
were urged against, at least, some European immigrants.
Differences of religion, of language, of dress, and habits, were
in these people considered evidences of inferiority, and
indicative of danger. The true difficulty arises from the fact
that between us and them there are differences of intellectual
and moral character. The Chinaman, his life and motives, begin
and end in himself. There is apparently in him neither sincerity
nor gratitude, and as to America, no patriotism. This country is
to him foreign soil.
"Other objections are made to the Chinese, that they are
dishonest, filthy, etc. In these respects they are certainly a
very singular people. I have said, as to fulfillment of
contracts, I have found them honest up to the average, and yet
paradoxical as it may seem, in almost every way, they will
contrive some little sneaking advantage, laughable for its
simplicity, and for the utter indifference they exhibit when
exposed. So shameless are they when detected as to lead one to
suppose that at least in their dealings with us they are
incapable of distinguishing right from wrong.
"I have found them scrupulously cleanly in their person beyond
the white laborer, but, in their aggregation, filthy beyond
description. I have been through Chinatown with Eastern
gentlemen and ladies of the highest social position, and have
marked the horror, which the life exposed, created with those
who had not been hardened by familiarity. Prostitution, passing
through every stage of lust, had become bestialized in every
quality a manifestation of which human nature was capable.
Contagion and filth beyond description; dens filled one which we
entered, say twelve by fifteen feet, with fifteen teen persons,
some of them white, in it in every stage of stupefaction from
opium, down to sleep where breathing was intermittent and life
apparently was ebbing to its close....The complaints made here
by delegates from San Francisco, especially those of Mr. [Dr.]
O'Donnell, I have no doubt are fully justified by the facts ....
The foulness of Chinatown, its leprosy, and crimes, are as well
known to the police as are the streets, and are sources of a
large revenue to them."
DOCUMENT #16
Delegate J. M. Shafter. remarks during the California
Constitutional Convention, December 11, 1878.
"The gentlemen who assume to be the only exponents of the
economic laws controlling that topic [the wages of labor] will
doubtless enlighten us in regard to them .... In the presence of
the political economists who grace this chamber, I only permit
myself to say, if all Chinamen are excluded from the State,
other laborers must be found to take their place, and those
laborers must work for a price which their employer can afford
to pay, and such employer must pay such price and no more. How
this is to be brought about, I am not advised. How agriculture
can bear the strain of increased cost of labor, I, who have
employed many hundreds of laborers, am utterly at a loss to
conceive."
DOCUMENT #l7
Delegate J. M. Shafter. remarks during the California
Constitutional Convention, December 12, 1878.
"Foreigners ineligible to become citizens are declared dangerous
to the well being of the state [by this section of the proposed
constitution], and their exclusion is demanded.
It is true that the dangerous classes may be excluded by some
unknown process, but here a special class is directly operated
upon. The only question is, is he a Chinaman? For that
nationality alone is excluded from citizenship. The treaty [the
Burlingame Treaty between the United States and China, 1868]
puts them on the ground of the most favored nations. It moreover
declares that they may become residents. The Act of Congress,
and the amendments to the United States Constitution, put them
on exactly the same ground as any 'other person' [Fourteenth
Amendment] except as to naturalization; yet it is attempted by
this section [in the state constitution] to oppose and repeal
every provision established by the nation for the protection of
'all persons' alike within their jurisdiction. Language fails to
properly characterize the folly and atrocity of this attempt....
"Section 6 [of the proposed Chinese section of the state
constitution]. Foreigners ineligible to become citizens of the
United States shall not have the right to sue or be sued in any
of the Courts.... No such foreigner shall be granted license to
carry on any business, trade, or occupation in this State.... No
such foreigner shall have the right to catch fish in any of the
waters... nor to purchase, own, or lease real property in this
State....
"But this section is as eminent for its consistency as it is for
its sense. This foreigner cannot be sued. The independent
American citizen cannot make the Chinaman pay his bill nor for
his transportation, except by direct force.... It is difficult
to see the sense of the further restriction of this section. The
right to reside, to fish, to work, to lease or buy lands is of
no moment, when the law has denied all redress to those in whom
these rights are violated."
DOCUMENT #18
Delegate J. M. Shafter, remarks during the California
Constitutional Convention, December 12, 1878.
"Here aliens of the dangerous classes are subjected to
regulations. Why should not the native born scoundrels
subjected to like control? Not only those who are, but
"who may become" of that class are within the scope of
supervision.
needful
be
those
this
Who may not become a pauper, mendicant, or invalid afflicted
with disease under this clause, and that too, without his fault?
Because all of us may become thus unfortunate, are we to be now
treated as worthy of action due to criminals in fact? It is not
declared that those likely to become sick and diseased be dealt
with, but what the whole of Adam's race, as they are, shall be
thus subject. Who are "aliens otherwise dangerous or detrimental
to the well-being or peace of the State?" [a definition in the
proposed new state constitution] . Who is to determine this
matter? How is it to be determined?
A mere majority of the Legislature can, under this provision,
expel any body or class of men disagreeable to them. I think the
"presence" of Democrats, or those likely to become such, is
detrimental to both the well being-and peace of the State, but
it has never occurred to me that their exclusion is an act
justifiable for that reason."
DOCUMENT #19
Morris M. Estee, remarks during the California Constitutional
Convention, February 20, 1879.
"Mr. President, section five reads: 'No aliens ineligible to
become citizens of the United States shall be permitted to catch
fish in any waters under the jurisdiction of this State; nor to
purchase, lease, own or hold any real property in this State,'
etc. Mr. President, that means, first, that those Chinamen who
are here now shall not be permitted to pursue an ordinary
calling by which they may earn a living.... Everybody knows that
such a provision could not be enforced; that the Chinese who are
here must live, that they must sleep somewhere. If not allowed
to support themselves, the people would have to do it.... That
section seems to me to be utterly heartless. It would be a
disgrace to our State to pass it.”
[Editor’s Note: Estee was born in Pennsylvania in 1833, and he
came to California in 1853, months before his twentieth
birthday, to mine for gold. He soon became a lawyer, however,
and was elected to the California Assembly in 1862; he later
served as District Attorney of Sacramento from 1864 to 1865. He
then moved to San Francisco and became one of the most prominent
lawyers in the city. He was nominated by the Republican party
twice to run for governor, losing both times. In 1878, however,
Estee was a Nonpartisan delegate to the Convention.]
DOCUMENT #20
Dr. C. C. O'Donnell, remarks during the California
Constitutional Convention, December 9, 1878.
"Sir, this proposed amendment [on the floor of the convention]
involves the consideration of that provision of the Federal
Constitution which declares that 'the powers not delegated to
the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the
people.' ... Is there anything in the Federal Constitution
prohibiting this power [the Convention] to enact police
regulations...? I shall be met, sir, by the argument from the
other side, that the subject of immigration and the importation
of coolies is a regulation of commerce over which Congress has
exclusive control [Article 1, Section 8 of the United States
Constitution]. Perhaps I shall be cited to the decision of the
Supreme Court of the United States in the celebrated case of
Massachusetts, in which that State attempted to prevent the
landing of Irish immigrants [in the 1850s]. It is true that the
Federal Courts in that case decided that the State law was
unconstitutional, upon the ground that the matter was a
commercial regulation, and that the power to regulate commerce
with foreign nations is confided to Congress by the
Constitution.
“Mr. President, there is no analogy between the case of
Massachusetts and California – no more analogy than nature has
created between the Caucasian and the Mongolian races. They are
entirely foreign, totally dissimilar, and strangers by the great
law of nature and God himself. In the case of Massachusetts the
question of sanitary necessity did not arise…. It has been
raised right here in California in the State of California.
Consider, for a moment, a fact which is beyond denial, that
there have been five hundred lepers sent here for the purpose of
sowing that disease broadcast all over this fair land. That is a
fact. We have found it in San Francisco, and we have found it in
every town in the State of California. Even here in Sacramento,
there are over fifty cases of leprosy…. No human power can
relieve the leper from the slow torture, a lingering, living
death; there is no cure for the leper…. Remember that wherever
the coolie has gone, he has spread that disease….
“I tell you that we have got to put our feet right down and put
a clause in the Constitution declaring that they shall not land
here, or that the people of the State of California will rise
and stop their coming to this country! [Applause.]”
DOCUMENT #21
Delegate V. 0. Howard, remarks during the California
Constitutional Convention, December 11, 1878.
"I maintain that the decisions of the Supreme Court are
altogether clear and uniform as to the power of the State to
exclude immigration which endangers the morals and safety of the
State [under the police powers of the states] and that the power
exists alongside of and independent of the power of Congress to
regulate foreign and inter-state commerce. That it is a right of
police regulation vested in the States exclusively, and which
the decisions of the Supreme Court of the United States from
first to last fully recognize and sustain.
"Every citizen of California is fully aware that the Chinese
companies [the organization known as the Six Companies] have a
system of government and laws for the Chinese entirely
independent of our own government, which they sometimes enforce,
even to the taking of life. One or two cases have fallen under
my observation. Yet such is their system of terrorism, that it
can never be proved in a Court of Justice. They are, therefore,
in open rebellion against the State Government.
"There is another aspect of this question which requires our
deliberate consideration. If this Chinese population is
permitted to become permanent among us to the extent threatened,
they will ultimately attain the right of suffrage. It is not
possible to continue to carry them in our bosom as a quasi-alien
enemy. If among us in the numbers we anticipate, paying taxes,
it will be impossible to resist their claim to citizenship. They
are already being naturalized in other States, and all legal
objection to their naturalization rests upon the word "white" in
the Act of Congress. How soon that will be construed away by the
Courts, no one can divine."
[Editor’s Note: Howard came from San Gabriel in Los Angeles
County. He was one of the older members of the convention, 66.
He was a lawyer who had spent his politically formative years in
Mississippi. He was one of the few Democrats elected as a
Democrat.]
DOCUMENT #22
Delegate C. J. Beerstecher, remarks during the California
Constitutional Convention, December 10, 1878.
"With due deference to the opinions and the assertions of
gentlemen upon this floor as to the power of the State to
regulate this matter, I believe that the State has the power,
that the State has the full power, to deal with and solve the
Chinese question. I do not believe that it is necessary to have
recourse to Congress .... It is conceded by all jurists and it
has been repeatedly decided that the Federal Government was a
government of delegated powers.... Now in the Constitution of
the United States, there are just two powers lodged in the
General Government, which it is claimed inhibit the State from
acting upon the Chinese question, as to their immigration, or as
to their residence. The first is the power of Congress to
regulate commerce with foreign nations.... It is claimed that
Congress has the exclusive right to regulate commerce with
foreign nations, and upon this it is claimed that the State
would have no power to prevent the landing of immigrants.... The
second power is the treaty making power, which is vested also
absolutely and exclusively in Congress...
"A treaty is a mere act of Congress .... And whenever an Act of
Congress is unconstitutional, if the treaty endeavors to enact
the same thing, the treaty itself is unconstitutional. If the
Congress of the United States endeavor to encroach upon the
reserved powers of the State; if the Congress of the United
States endeavor to legislate in relation to the internal
concerns of the State; if they endeavor to pass the police
[powers] of the State by a mere Act of Congress, that would be
unconstitutional and void.
"It being conceded, therefore, that the General Government's
agreement of delegated powers, and that whatever is not
expressly given to it yet remains with the States....”
[Beerstecher then quoted a United States Supreme Court decision
– Prigg v., Pennsylvania, 1842 – about the states' police
powers]
“‘It is the undoubted and reserved power of every state [to
decide]... who become its residents, who are its citizens, who
enjoy the privileges of its laws and be entitled to their
protection and favor, and what kind of business it will tolerate
and protect....’
"It is for this reason that laws which protect public health,
compel mere commercial relations to submit to their control....
The States, resting upon their original basis of sovereignty,
subject only to the exceptions stated, exercise their powers
over everything connected with their social and internal
condition. A state regulates its domestic commerce, contracts,
the transmission of estates, real and personal, and acts upon
all internal matters which relate to its moral and political
welfare. Over these subjects the Federal Government has no
power. They appertain to the State sovereignty as exclusively as
powers exclusively delegated appertain to the General
Government."
[Beerstecher then went on to summarize the legal cases he has
been citing]
“…that the absolute power to regulate the Chinese residents
within the confines of this State rests with the State is
inherent in the people today, and can be expressed by their
representatives in legislature assembled, I have no doubt; not
the least. We can drive them from the confines of this State
today, but Mr. Chairman, I have serious doubts whether we can
[constitutionally] say to them that they cannot come here. We
can say to them, 'You shall not stay here.' We have' attempted
to say, 'You cannot come here;’ and we have been told [by the U.
S. Supreme Court] that we were exceeding our powers. We have
never attempted to say, 'You cannot stay here;' and we have
never been told that if we did say that, we would be exceeding
our powers. I believe that we can say to the Chinese, 'You
cannot stay here;' and I believe that we can say, 'We propose to
regulate you, even the short time we do allow you to stay
here.'"
[Editor’s Note: Beerstecher was a colorful member of the
convention. He was young, born in Germany in 1851. His legal
training came at the University of Michigan, and he had come to
California (and won a convention seat as a virtual unknown
candidate) in 1877. He was active in labor reforms and was a
member of the German section of the socialist Workingmen's Party
of the U.S. –a separate organization from the Workingmen’s Party
of San Francisco. One commentator of the convention described
him "of strong, nervous temperament ... quick, impulsive, and
fiery." He represented San Francisco.]
DOCUMENT #23
Fourteenth Amendment, United States Constitution, ratified July
9, 1868, Section 1 (of five sections).
“Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
[Editor’s Note: Apparently, C. J. Beerstecher wasn’t aware that
the 1842 U.S. Supreme Court opinion in Prigg v. Pennsylvania
(Doc. 22 above) was voided by Section 1 of the Fourteenth
Amendment to the U.S. Constitution.]
DOCUMENT #24
Delegate W. H. L. Barnes, remarks during the California
Constitutional Convention, December 12, 1878.
"They say we can deal with this subject under our police power,
but that is as far as we can go, without running counter to the
Constitution of the United States. I have no fear of hurting the
Constitution of the United States. But what I do say, is that we
shall see how far a treaty can infringe upon the powers
rightfully belonging to the State. If we believe we have rights,
let us maintain those rights, and let the United States Courts
draw the line. No harm is done to the government because the
Courts of that government are the ones to appeal to."
[Editor’s Note: Barnes was the only delegate educated at Yale.
He had been a prominent lawyer in New York before coming to
California after the Civil War. He was a Nonpartisan in the
convention though a strong Republican at other times.]
DOCUMENT #25
Delegate J. M. Shafter, remarks during the California
Constitutional Convention, December 11, 1878.
"A later California case, that of Ah Fook … decides that the
police power extends only to those who are personally
objectionable, and must then only be exercised upon at least
quasi-judicial examination [of each individual, rather than a
member of a group per se].
“...The Court further sums up by the declaration 'that a statute
which obstructs the entrance into this State of persons who are
neither paupers, vagabonds, or criminals, or in anywise unsound
or infirm of body of mind, is not an exercise of the police
power of the State in any just sense of that term.'
"I have had repeated occasion to call attention to the fact that
the dogma of states’ rights seems the controlling consideration
with many gentlemen upon this floor. I do not wonder that those
who were brought here with the idea that the States have
paramount authority - that as to every governmental act which is
to be exercised within their separate limits the State alone is
to be ultimately obeyed - should support this report [by the
committee on the Chinese]. But I think it behooves those of
different education and opinion not to suffer the desire of
securing a great good to do the great wrong of attempting to
nullify the paramount law.... Among all the [court] cases cited
here [about the right of states to regulate entry and the lives
of foreigners] one important one seems to have been overlooked.
It has always seemed to me that the decision to which I allude
was of the highest consequence, and I have never heard of its
having been overruled. I allude to that which was finally
rendered and put upon record at Appomattox Court House, in
eighteen hundred and sixty-five, when Chief Justice Grant stood
there, with all his Associate Justices, to decide this question
of States rights, with a hundred thousand executive officers
around him. I think that decision ought to end this
discussion.... The ultimate force of the government, the
inexorable will guided by the highest intelligence of the
people, declared that the Constitution of the United States and
the treaties made in pursuance thereof, are the paramount law of
this land from this time forth."
[Editor’s Note: Shafter’s remarks on the decision at “Appomattox
Court House” referred to the surrender of the Army of Northern
Virginia to the Army of the Potomac in April 1865, thus ending
the Civil War, and concluding, decisively, the issue of whether
or not states may secede from the Union, and whether or not the
states are superior to the federal government, or the federal
government is superior to the states.]
DOCUMENT #26
Delegate J. F. Miller, remarks during the California
Constitutional Convention, December 12, 1878.
"For the ultimate success of our cause, it is necessary that we
deport ourselves in this matter in a dignified and legal manner.
That is my position. Now, my whole life and conduct have shown
that, I have been sincere, and uniformly opposed to Chinese
immigration. I have been opposed to it for years - ever since my
attention was called to the subject.... Now, sir, haven't there
been [court] tests enough? Haven't these questions been decided
and settled over and over again [concerning the exclusive power
of the federal government over Chinese immigration and rights of
residency]? You all know it; and under the pretext of making a
test case, you propose to violate the Constitution of the United
States. You can do as you like; I shall not do it. I am too
cowardly to do it, if you please."
PART IV
Editor’s Note to Part IV: In May 1879, after months of
wrangling, a substantial majority of the convention delegates
voted to include Article XIX in the state constitution.
DOCUMENT #27
Article XIX, California Constitution, May 1879.
Section 1. The legislature shall prescribe all necessary
regulations for the protection of the State, and the counties,
cities, and towns thereof from the burdens and evils arising
from the presence of aliens, who are or may become vagrants,
paupers, mendicants, criminals, or invalids afflicted with
contagious or infectious diseases, and from aliens otherwise
dangerous or detrimental to the well being of peace of the
State, and to impose conditions upon which such persons may
reside in the State, and to provide the means and mode of their
removal from the State upon failure or refusal to comply with
such conditions; provided, that nothing contained in this
section shall be construed to impair or limit the power of the
Legislature to pass such police laws or other regulations as it
my deem necessary.
Section 2. No corporation, now existing or hereafter formed
under the laws of this State, shall, after the adoption of this
Constitution, employ, directly or indirectly, in any capacity,
any Chinese or Mongolian. The Legislature shall pass such laws
as may be necessary to enforce this provision.
Section 3. No Chinese shall be employed on any State, county,
municipal, or other public work, except in punishment for crime.
Section 4. The presence of foreigners ineligible to become
citizens of the United States is declared to be dangerous to the
well-being of the State, and the Legislature shall discourage
their immigration by all the means within its power. Asiatic
coolieism is a form of human slavery, and is forever prohibited
in this State; and all contracts for coolie labor shall be void.
All companies or corporations, whether formed in this country or
any foreign country, for the importation of such labor, shall be
subject to such penalties as the Legislature may prescribe. The
Legislature shall delegate all necessary power to the
incorporated cities and towns of this State for the removal of
Chinese without the limits of such cities and towns, or for
their location within prescribed portions of those limits; and
it shall also provide the necessary legislation to prohibit the
introduction into this State of Chinese after the adoption of
this Constitution. This section shall be enforced by appropriate
legislation."
[Editor’s Note: Article XIX of the California State Constitution
was soon challenged in federal court. On March 22, 1880, in the
case, In re Tiburcio Parrott, the 9th Circuit Court of the United
States, District of California, issued a decision declaring
Article XIX of the California State Constitution in violation of
several parts of the United States Constitution, including:
Article 1, sections 8 and 10 (the treaty making power of the
federal government); Article IV (the “supremacy clause” – that
is, federal law is supreme over state law when the two are in
conflict); and the Fourteenth Amendment (that “no State shall
deprive any person of life, liberty, or property, without due
process of law,” and “that no State shall deprive any person
living within its jurisdiction of the equal protection of its
laws.”
Federal appeals courts and the United States Supreme Court
subsequently refused to hear appeals, and Article XIX of the
California State Constitution of 1879 was voided.
Nevertheless, hostility toward Chinese immigrants by white
Americans remained intense in the west generally, and in
California in particular. California’s Congressional and Senate
delegations (and the delegations of other western states)
lobbied Congress furiously on behalf of federal legislation to
prohibit Chinese immigration. These efforts culminated in 1882
when Congress passed the Chinese Exclusion Act, prohibiting
further Chinese immigration into the United States. The Chinese
Exclusion Act was periodically renewed until it was finally
repealed by Congress in 1943.