CHAPTER III

THE OVER-MASTERING QUESTION

During the years before the Civil War, the legal status of free blacks was shifting, always insecure, and dependent on the action of individual states as well as the federal government. Because the United States Constitution omitted mentioning race or color in regard to citizenship, the federal government and the states defined the status of free African Americans as different cases arose. The federal authorities frequently denied or questioned free blacks’ right to the privileges of citizenship. As mentioned in Chapter II, since 1790 naturalization had been limited to free white aliens, and in 1792 Congress restricted membership in the newly created militia to white male citizens. In 1810 Congress excluded blacks from carrying the mails. Repeatedly, it approved the admission of states that denied full legal rights to African Americans. In effect, Congress treated free blacks neither as citizens nor as aliens, but as separate and unequal entities. Most Americans in the North thought the states had the sole right to grant political privileges, but that the question of slavery extension came under federal jurisdiction. The division was not a workable one, however, and as events developed, it became apparent that all aspects of the status of African Americans, whether free or slave, would have to be dealt with by the federal government.[1]

In 1831, twenty-five years before the Dred Scott case, Attorney General Roger Taney wrote in an unpublished decision, “The African race in the United States even when free are everywhere a degraded class, and exercise no political influence. . . . And where they are nominally admitted by law to the privileges of citizenship, they have no effectual power to defend them, and are permitted to be citizens by the sufferance of the white population and hold whatever rights they enjoy at their mercy.” Taney’s decision in the Dred Scott case, however, firmly asserted that blacks were not included under the word “citizens” in the Constitution and could “therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” Taney believed that a state could naturalize its own citizens, but could not confer American citizenship on them. Congress alone could do that and it had decided in 1790 that only free white persons could be naturalized. Several Northern states immediately criticized the Dred Scott decision and ignored its ruling on black citizenship. The Civil War spelled its end as a viable ruling.[2]

In July 1862, two months before the preliminary Emancipation Proclamation was issued, the editor of the Presbyterian Quarterly Review observed with prophetic insight that “the future condition of the colored race in this country will be the question over-mastering all others for years to come.” Long before the Emancipation Proclamation, California’s African Americans had continued the efforts many of them began in the East to secure their rights as free men and citizens of the United States. In California they quickly organized churches. In 1850 St. Andrew’s African American Methodist Episcopal Church opened in Sacramento and was followed in 1852 by San Francisco’s Third Baptist Church and A.M.E. Zion Church. Oakland blacks established an A.M.E. church in 1853, and the Stockton African Baptist Church opened in 1854. These churches, and others that were created later, provided leaders for the black cause and centers for united social action.[3]

With the founding of the San Francisco Mirror of the Times in 1856, the black community gained one of its first outlets for publishing objections to the treatment blacks received in California. Although the paper went out of business within two years, in the early 1860s the San Francisco Pacific Appeal and the San Francisco Elevator continued to publicize the cause of African American rights. The Elevator’s motto—“Equality Before the Law”—expressed that newspaper’s chief concern. A major grievance of California’s blacks was that the state’s laws forbade them from testifying for or against white persons in the courts. In 1850 the California legislature had passed a bill denying testimony rights to blacks, mulattoes, and Indians in criminal cases involving white persons. In 1851 the legislature extended the ban on testimony to civil cases. Achieving the right to testify in cases involving whites took African Americans twelve long years in California. The legislature also prohibited marriages between whites and blacks. In addition, from time to time, the legislature tried to pass exclusion acts aimed at the black population.[4]

The question of exclusion first arose at the California Constitutional Convention held from September 1 through October 13, 1849. On September 10 two delegates representing Sacramento and environs almost simultaneously offered sections concerning blacks. Attorney William E. Shannon, born in Ireland, first proposed: “Neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this State.” H.W. Halleck then moved to put a declaration against the introduction of slavery in California in the bill of rights. Halleck’s motion was first agreed to, but after further debate on the advisability of putting such an amendment in the bill of rights, Shannon’s section was adopted unanimously. M.M. McCarver moved to amend the Shannon section by adding, “Nor shall the introduction of free negroes, under indentures or otherwise be allowed.” The delegates agreed that the two amendments ought to be treated separately, and the next day McCarver offered this amendment: “The legislature shall, at its first session, pass such laws as will effectually prohibit free persons of color from immigrating to and settling in this state and to effectively prevent the owners of slaves from bringing them into this state for the purpose of setting them free.” Dr. Oliver M. Wozencraft of Ohio and Louisiana supported the amendment, saying, “No one will deny that a free black population is one of the greatest evils that can afflict a society. . . .” A debate followed on the proper place of the provision in the Constitution; McCarver then withdrew the amendment because discussion of it properly belonged to the legislative department of the convention.[5]

McCarver, a farmer from Kentucky who represented the city of Sacramento, introduced his black exclusion section again on September 19. McCarver warned the delegates of the “dangerous position in which this country [California] is placed, owing to the inducements existing here for slaveholders to bring their slaves to California and set them free.” In his opinion, “No population that could be brought within the limits of our Territory could be more repugnant to the feelings of the people, or injurious to the prosperity of the community, than free negroes.”[6]

Black Miners at Spanish Flat, California, 1852

(Courtesy of the California State Library)

William E. Shannon argued that, “upon the broad principle which we have adopted, of admitting all freemen of all nations, we cannot consistently exclude any race.” He added:

Coming, as I do from the State of New York, one of the free states—knowing that many men of color there are most respectable citizens; that they are men of wealth, intelligence, and business capacity; men of acknowledged mental ability; men who have, to some extent at least, considerable influence in their different communities, and who have all the rights and privileges of citizens of that State—I cannot agree to exclude them here from the rights which they possess there.[7]

Convention president Robert B. Semple, from Kentucky and Missouri, admitted that the small black population in California could not be regarded “as an evil of any great extent.” “But,” he cautioned the delegates, “that portion of our population will be immensely large if emancipated slaves—not free negroes—not free men—but emancipated slaves, directly from the slave States, are permitted to be introduced.” Semple thought, “it would be one of the greatest curses that could be entailed upon California.” [8]

New Yorker Edward Gilbert, who became editor of the San Francisco Daily Alta California in 1850, declared that these fears were “drawn from the imagination” in view of the prohibition of slavery in the new state. Gilbert quoted from Article 4, Section 2 of the United States Constitution: “The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” He contended that “ it is an immunity and privilege of a citizen of one State to remove from that State to another . . . and no law that we can pass can prevent him from doing it.” Gilbert, who represented San Francisco, argued that the delegates wanted to exclude the Negro “simply because he is black,” and warned that Congress would not accept a constitution that bore upon its face “this darkest stigma.” But bowing to the concerns raised about African Americans, the delegates approved McCarver’s resolution on September 20. The individual votes were not recorded.[9]

When on October 2 the Committee of the Whole returned the McCarver resolution to the delegates, debate began anew. Myron Norton, a lawyer from Vermont, reminded the delegates that the question of black exclusion had prevented Missouri from becoming a state for two years. In his view, blacks were citizens, and as he did not wish “any bar to the speedy admission of California into the Union should exist, ” he moved to reject the clause prohibiting free persons of color from immigrating to the state. McCarver replied, “we are well aware that negroes are not regarded as citizens.” He claimed that the states had the right to say who were citizens and that the question had been determined by the federal courts. Jacob R. Snyder, a surveyor representing Sacramento, said, “I have already stated that the negro and white man cannot associate in their labors, particularly in this country [California], and the admission of free negroes, I consider a greater injury than the admission of slaves.” On October 3, however, after much debate and fearing that Congress would reject their constitution, the delegates removed the McCarver section by a vote of thirty-one to eight. They decided to leave the exclusion question to the new legislature.[10]

During the debates on suffrage, delegates restricted voting rights to white males who were twenty-one or over. All the Californio delegates objected to this restriction because many Mexican Californians had some Indian ancestry and were not denied suffrage in Mexico. Delegate Pablo de la Guerra stated that many Californios were dark-skinned and that their suffrage rights had been guaranteed by the Treaty of Guadalupe Hidalgo, which in 1848 ended the Mexican-American War. Manuel Noriega pointed out that despite the color of their skins they had previously been allowed to vote and hold high offices. Edward Gilbert then moved to amend the Constitution to give the vote to any Mexican who chose to become a citizen under the terms of the treaty. As another concession the delegates also added a provision to the Constitution allowing the legislature to admit Native Americans and their descendants to the right of suffrage “in such special cases as such a proportion [two-thirds] of the Legislative body may deem just and proper.” The possibility was unlikely; the provision was another safeguard against Congressional rejection of the California Constitution.[11]

The Constitutional Convention was composed of fourteen Southerners, twenty-two Northerners, five foreign-born, and seven California-born delegates. The previous political experience of the leading Southerners in the state gave them an advantage. By reason of its control of the Democratic Party, the so-called “Chivalry wing” (as opposed to the anti-slavery or Tammany wing of the party) dominated state politics between 1850 and 1860. William M. Gwin of Tennessee and Mississippi had demonstrated his political skills at the convention. A former congressman, he satisfied the political ambition that brought him to California by becoming one of the state’s first United States senators and he held the seat for twelve years. Another Tennessean, Peter H. Burnett, became the first governor under the new constitution. These men, and others like them, brought with them the South’s strong prejudice against blacks. African Americans, although they numbered only 962 in 1850 as opposed to a white population of 91,635, found the struggle to gain their rights in California a long one.[12]

In his memoirs, Governor Peter Burnett wrote: “. . . one of the objects I had in view in coming to this coast was to aid in the building up of a great American community on the Pacific; I therefore labored to avoid the evils of intoxication and of mixed races, one of which was disenfranchised.” Burnett wanted to found a state that was “superior in several respects to those east of the Rocky Mountains.” In 1844 Burnett had written a bill providing for black exclusion from Oregon; as governor of California he was equally anxious to exclude African Americans and voiced his concern in two messages to the legislature. Burnett noted that the California Constitution prohibited slavery and made no reference to the settlement of free blacks in the state. “The Constitution excludes this class of persons from the right of suffrage, and from all offices of honor or profit under the State,” Burnett wrote, adding, “If we permit them to settle in our State, under existing circumstances, we consign them, by our own institutions, and the usages of our own society, to a subordinate and degraded position, which is in itself but a species of slavery.” [13]

The Assembly Democrats heeded Burnett’s advice and introduced an exclusion proposal. Representatives from the mining districts strongly supported the bill, but it was defeated by one vote. A few months later, during the same session, anti-black assemblymen introduced yet another exclusion bill. David C. Broderick, Gwin’s chief rival and leader of the northern or Tammany wing of the Democratic Party, succeeded in postponing the measure in the Senate, and the legislators took no further action in that session. The Senate vote to postpone reflected the sectional backgrounds of the men, not mining versus non-mining interests. Men from Southern states cast all five votes against postponement. Five men from free states, one man from a Southern state, and two native Californians cast the votes needed to postpone the measure. A year later, Burnett again raised the subject of exclusion and told the legislature, “. . . it may be safely assumed that no race of men under the precise circumstances of this class in our State, could ever hope to advance a single step in knowledge or virtue.”[14]

Although frustrated in excluding African Americans, in 1852 the anti-black forces in the legislature, led by Southerner Henry A. Crabb, succeeded in passing a stringent fugitive slave law. Such a law was part of the Compromise of 1850, but by 1852 only two states had passed acts reinforcing the federal law; California was one. Its law provided that state officers and citizens must help to return runaway slaves and that slaves brought to the state before admission could be reclaimed by their masters and returned to slave states exactly as if they were fugitive slaves. The law denied the fugitive the right to testify in his own behalf. Persons helping an escapee, hindering an arrest, or hiding a fugitive were subject to a fine of not less than $500, a jail sentence of not less than two months, and civil damages of $1,000. The law’s practical effect was to legalize slavery in the state despite a Constitutional provision against it, for even blacks who had earned their freedom could be returned to slavery. The legislature of 1854 extended the section for one more year.[15]

Not surprisingly, courts in California were in a perplexed state at this time. Despite the lack of legislation to enforce the constitutional provision against slavery, before the Fugitive Slave law went into effect at least two judges had ruled for African Americans in court actions between them and their owners. White lawyers, including Cornelius Cole and Edwin B. Crocker, also helped fugitive blacks during this period. In 1855 the legislature (with anti-slavery Democrats in the majority) did not re-enact the section of the Fugitive Slave law that affected free blacks. In 1858 the celebrated case of Archy Lee marked the end of this particular period of injustice and brought ridicule to California’s Supreme Court. Although they admitted that legally Lee should go free, two Southern, anti-black justices, former governor Peter H. Burnett and David S. Terry, united to deny Lee his freedom because his master was ill. The state’s more prominent newspapers denounced the decision and shortly afterward a United States commissioner freed Lee.[16]

In April 1858, the same month that the strenuous efforts of Bay Area blacks had helped to free Archy Lee, Democratic Assemblyman J.B. Warfield’s African American exclusion bill passed both houses of the legislature. Referring to the blacks’ support of Lee in a speech for the Warfield bill, Democratic Senator Samuel A. Merritt said, “the black becomes insolent and defiant, and if in sufficient numbers, would become dangerous, as evidence by recent occurrences in our cities.” In a thoroughly exclusionist mood, the legislature also passed Democratic Assemblyman Charles E. DeLong’s bill to prevent further Chinese and Mongolian immigration. The Senate passed the black exclusion bill by twenty-one votes to eight and the Chinese exclusion bill by fifteen votes to ten. The Assembly passed the Warfield bill by forty-five votes to eight and the DeLong bill by fifty votes to twenty-one. There were differences between the Senate and Assembly versions of the African American exclusion bill that were never resolved before the legislature adjourned; as a result, the bill failed to become law. And as the Chinese exclusion bill conflicted with Federal treaties, it too failed.[17]

Even before the Archy Lee case, blacks had taken active steps to improve their legal position in California. The lack of the right to testify in court in both civil and criminal cases, involving as it did a real threat to life and property, particularly rankled. As long as no white witnesses would testify to a crime against a black, he was helpless to get justice in the courts. As early as 1851, a group of African American leaders published resolutions protesting the denial of testimony rights. In 1852 the same group presented one of many petitions for a change in the state’s testimony laws. The California Assemblymen showed how they felt about the petition when they supported by a vote of forty-seven to one a resolution declaring that “the House, having heard the petition read, do decline to receive or entertain any petition upon such subject from such source.”[18]

Undeterred, leaders of the African American community decided to hold a statewide convention. The “First State Convention of the Colored citizens of the State of California,” as it was officially called, met November 20, 1855, at the Colored Methodist Church in Sacramento. The object of the convention was to obtain the right to testify in the courts. Moderation was the theme of the gathering, although several of its leaders had been activists in the black rights movement in the East. William H. Yates, president of the convention, was an ex-slave who had been a pamphleteer during the 1830s in Philadelphia. During the early 1840s, he helped fugitive slaves to escape via the Underground Railroad. After arriving in San Francisco in 1851, he became an active spokesman for equal rights for blacks. The convention’s secretary, Reverend Jeremiah B. Sanderson, also had taken part in protest activities and was later a prominent leader in black education in California. Jonas H. Townsend, active in two creations of the convention—the Executive Committee and the San Francisco Mirror of the Times—was another articulate leader. Forty-nine delegates from ten counties attended the convention.[19]

Townsend’s “Address to the People of California,” which came at the end of the printed proceedings of the convention, succinctly stated the case for blacks. After stating that the African American population numbered about 6,000 persons who owned property valued at $3,000,000, Townsend pointed out that blacks had fought and died for America in the Revolution and in the War of 1812. “On the other hand,” he wrote, “instead of treating us as good and loyal citizens, you have treated us as aliens; . . . You call upon us to pay enormous taxes to support Government, at the same time you deny us the protection you extend to others; the security of life and property.” Townsend added, “You require us to be good citizens, while seeking to degrade us. You ask why we are not more intelligent: You receive our money to educate your children, and then refuse to admit our children into the common schools.” Townsend also charged that the courts admitted the evidence of men who were “ignorant of the first principles” of government while “Many colored men, who have been educated in your first colleges, are not allowed to testify! And wherefore? Our divine Father has created us with a darker complexion.” The tone of Townsend’s “Address” reflected the backgrounds of the African American leaders in California, the majority of whom had been born free in Northern states or who had been freed at any early age.[20]

Other delegates indicated their acute awareness of the problems of the black community. Thomas Myers Decatur Ward told the group:

Rev. Darius P. Stokes said, “One thing I have observed amongst our race, that while all are consumers, very few are producers.” He cited the lack of black farmers, mechanics, and artisans, and said, “it can be proved we may become as proficient in these branches as other people.[21]

Because the delegates anticipated a lengthy struggle, some of the resolutions of this convention dealt with organizational matters. The convention was to appoint a state executive committee “with full powers to adopt such measures as may be deemed expedient to accomplish the object in view.” The Business Committee also recommended the formation of a state association to collect statistical information and the raising of a $20,000 contingency fund for the equal rights cause.[22]

The legislature’s disregard of the convention’s memorial for repeal of the testimony laws prompted another gathering in Sacramento in 1856. This convention was the largest of the three before the Civil War, and its tone was considerably more militant than the first. Sixty-one delegates from seventeen counties met at the A.M.E. Church in the capital city. The delegates, a number of whom had attended the first convention, elected William H. Hall of Butte County president of the convention.[23]

During the afternoon of the first session, several delegates addressed the meeting. E.A. Booth of Nevada County told the members,” “Our constituents feel deeply the disabilities which we suffer under the present laws of this State, as they refer to our testimony and the school privileges of colored children, and they are willing to join you and do their part in the struggle for our rights.” Thomas Detter of Sacramento reminded the delegates that they had convened “Because the law, relating to our testimony in the Courts of California, is but a shadow. . . . I may see the assassin plunge his dagger to the vitals of my neighbor, yet, in the eyes of the law, I see it not.” Under these circumstances,” Detter asked, “ who are really injured and losers by the law? Is it not evident that the white citizen is an equal sufferer with us? When will the people of the State learn that justice to the colored man is justice to themselves?”[24]

William H. Newby was equally articulate in his objections to one of the resolutions proposed by the Business Committee. It read:

Resolved, That we claim our rights in this country, as any other class, not as citizens by adoption, but by right of birth; that we hail with delight its onward progress; sympathise [sic] with it in its adversity; and would freely cast our lot in the fortunes of battle, to protect her against foreign invasion.

Newby said that no man could expect him to hail the progress of a country “whose prosperity and wealth has been built upon our sweat and blood”—Negroes would make themselves ridiculous by doing so. Newby was not sure he would fight for the country either because “to the colored people, what is the history of the past, in America, but the history of wrongs and cruelties such as no other people on the face of the earth have been forced to endure?” Newby said he would welcome a foreign army on American shores, “if that army provided liberty to me and my people in bondage.” Newby must have impressed the convention because, at Thomas Detter’s suggestion, it named him co-editor of the Mirror of the Times.[25]

The convention delegates resolved “That the laws of the State of California, disfranchising its colored citizens, on the ground of color, are a foul blot upon the Statutes of the State, having no precedent in the annals of the world ...” Delegates to the convention also again resolved to petition the legislature for the right to testify, and in 1857 African Americans in seven counties sent seven petitions to that unheeding body. Though they failed to gain testimony rights, the blacks did find some white support coming to them—much, but not all of it, from Republican sources. In 1858 Governor John Neely Johnson, of the American, or Know-Nothing Party, asked the legislature to change the testimony laws. Johnson implied that the Chinese also should be allowed to testify, saying, “This indiscriminate prohibition I regard as utterly at variance with the spirit of our Constitution and a wise and judicious governmental policy.” But a new governor, Lecompton Democrat John B. Weller, whom the Mirror of the Times described as being “hostile to all our interests,” was coming into office, and as the legislature echoed his views, the black cause had no hope of success.[26]

The Sacramento Daily Union briefly recorded some of the events and speeches of the two black conventions of 1855 and 1856, but made no editorial comment. In 1856 the reporter noted that the proceedings were “conducted with great unanimity and decorum, and in the manner usually adopted by deliberative assemblies.” One editorial comment extant is from the Grass Valley Telegraph. As recorded by the convention, the newspaper observed with more optimism than truth, “the citizens of this State, both from the South and the North, are not only willing but desirous to see the condition of the colored people in our midst improved, by means of proper educational and social privileges, to the end that they may become intelligent, law-abiding and useful members of the community.” The paper also pointed out that Kentucky had provided education for the free blacks in the state and asked, “And shall free California be behind Kentucky and other slave states in such a matter, not only of philanthropy but of right? Out upon such [t]waddle! Sensible, well-meaning citizens will never be guilty of it.”[27]

The Colored Convention of 1857, although smaller and somewhat depressed because of the U.S. Supreme Court decision in the Dred Scott case, nonetheless resolved to continue petitioning the legislature. In a letter to the Mirror of the Times, Thomas Duff of Mariposa, a member of the Executive Committee, expressed some of the African American impatience and disgust with California. He stressed the necessity of increasing action “ . . . if we expect to cleanse the worse than putrid stable in which we reside, for what fouler mass can be found than the statutes and social prejudices of this State at present.” Duff protested the inconsistency of a state that forbade slavery and “yet in many of their laws, and in all their social and business relations, copying after the most ultra slave-holding state in the Union!” The remedy Duff declared was for African Americans to shake off “the apathy and unmanly servility, which makes them bow with humility to the dictates of their masters . . .” Duff’s letter echoed the Mirror itself, which earlier in 1857 had protested the legislature’s indifference to black petitions, saying:

. . .you cannot expect a class of intelligent people in your midst, who by their industry and enterprise have accumulated valuable property; . . . to tamely sit down and quietly submit to a law that denies them any protection, and on the other hand give license and security to thieves and robbers to plunder us with impunity; . . . We have been the servant of servants long enough and the time has come for us to be men.[28]

As the legislative actions of 1858 showed, the legislators still thought exclusion rather than acceptance the answer to California’s African American “question.” Between 1858 and 1861, the testimony struggle gave way to the issues of immigration and exclusion. In Sacramento only the Daily Union, with its stories of crimes against blacks, kept the issue alive. The Mirror of the Times stopped publication in 1858.[29]

No doubt the increasing populations of both blacks and Chinese influenced the legislature. According to the United States Census, in 1860 the Chinese population was 34,933. The Census listed 4,086 free blacks, although in 1855 Jonas H. Townsend had estimated there were 6,000 blacks in California. Similarly, estimates of the Chinese population varied with different sources. In 1861 Andrew Wilson, ex-editor of the Hong Kong China Mail, pinpointed the prejudice against the Chinese and blacks and how the presence of each group affected the other. He wrote to the Mail that respectable San Francisco businessmen agreed with the Bishop of Victoria (Hong Kong) that the Chinese ought to be allowed to testify. Wilson thought “there could be no reasonable objection to this proposal, but observed that, “The question is too much mixed up with that relating to Negroes to be settled on its own merits.” “It would scarcely do to allow the Chinese coolie to testify against a white man,” Wilson wrote, “and to refuse the same privilege to an intelligent Negro. Many of the Californians consider the Chinaman to be a ‘little lower,’ and some of them ‘a damned sight lower,’ than the negro, so they are indisposed to grant him privileges which they would never dream of granting to the black.”[30]

No common cause developed between African Americans and the Chinese in regard to the testimony struggle. Blacks disavowed testimony rights for the Chinese; on the contrary they boosted their own cause by pointing out the undesirable qualities of the Chinese and the Indians. Strong anti-Chinese feeling in California hampered the black cause, and they knew this. The Pacific Appeal, successor to the Mirror of the Times, said:

In their own self-interest, African Americans disassociated themselves from the Chinese and the question of civil rights for the Chinese.[31]

Between 1861 and 1863 two Republican governors took office and they too reflected mixed feelings about the Chinese and the African Americans. In his inaugural address, Leland Stanford, one of the founders of the California Republican Party, declared that it would afford him “great pleasure to concur with the Legislature in any constitutional action, having for its object, the repression of the immigration of the Asiatic races.” Stanford asserted that Asia was sending “the dregs of her population” to California, and added, “There can be no doubt but that the presence among us of numbers of degraded and distinct people must exercise a deleterious influence upon the superior race, and to a certain extent, repel desirable immigration.” But as other politicians had done before him, Stanford could not resist calling attention to the “vastly important trade of the Eastern world” and to the “importance of steam communication between California and Eastern Asia, . . .”[32]

The legislature responded to Stanford’s message with an act designed to levy a police tax on all Chinese who were not already paying a license tax. As Stanford noted in his annual message of January 7, 1863, the California Supreme Court declared that law unconstitutional. Admitting that the law was not “judicious,” the governor suggested that the legislature find a substitute measure that would “reach the true object desired, which is the discouragement of Chinese immigration, and not its total prohibition.” In his final message as governor, he also declared:

Already embarked on the major project of his life, the Central Pacific Railroad, Stanford soon desperately needed and used all the Chinese labor he could obtain. As a politician, however, he faithfully followed the anti-Chinese line.[33]

A former Free Soil Whig, Stanford said he held strong anti-slavery convictions; but like others in that party he was more interested in containing slavery than abolishing it. In 1862, he thought “the real issue” of the Civil War was the triumph of democracy over aristocracy—slavery, he said, was not the real issue. The Republicans also differed over whether to contain or abolish slavery. During the height of that controversy, however, Stanford was totally involved in the construction of the transcontinental railway. In the party’s early days, California Republicans tried to soft-pedal the question of abolitionism. One delegate to the Republican State Convention in 1856 wanted nothing to do with either slavery or abolitionism. So far as slavery was concerned, he said, “Let it remain on one side of the Mason and Dixon line and we will stay on the other.” One reason for this attitude may have been the hostility the Republicans encountered in California during the early years of the party. By 1867 Stanford was able to tell United States Senator Cornelius Cole (Republican, California) that he favored black suffrage and even declared himself for women’s suffrage.[34]

In 1865 Frederick F. Low, Union Party governor from December 1863 to December 1867, urged the legislature to ratify the Thirteenth Amendment, which abolished slavery and involuntary servitude, saying, “Let us consider it a privilege to be a party to the righteous deed that decrees ‘freedom to all’ throughout the limits of the republic.” On December 6, 1865, the Assembly approved the amendment by a vote of 66 ayes to eleven nos. The Senate passed the amendment by a vote of 35 ayes to four nos on December 15. With an eye toward trade with China, Low also advocated decent treatment for the Chinese in the state. During a conversation with Hubert Howe Bancroft in 1883, Low said, “I think the Chinese that have been here have been useful . . . I don’t think we could dispense with them without serious injury to the state.” But Low was afraid that there could be “no chance of amalgamation without deteriorating” despite the fact that he believed the Chinese possessed the same “brain power and brain capacity” as whites. Low admitted that the Chinese had been beneficial to the country because “We now have got railway communications that we never would have had.” Still, Low preferred aliens whom he thought could be more easily assimilated than “a large alien mass we cannot give the ballot to and to whom it would be unsafe to give the ballot.”[35]

Despite any misgivings he nurtured, as governor Low supported the right of Chinese and Indians to testify in court cases involving whites. The legislature was not willing to go this far. But in 1863 the decline of the southern element in the legislature and the increasing prosperity of blacks in California coupled with new black leadership, all contributed to the final success of the black testimony struggle. Even under relatively favorable conditions, the legislative fight initiated by Senator Richard F. Perkins (Republican, San Francisco) in March 1862, was not successful until the following March. One reason for the delay was that a group opposing African American testimony tried to include an amendment allowing Chinese testimony. As S.P Wright (Union Democrat, Del Norte, Klamath) explained the strategy, he “and others who were opposed to the bill last year [1862] thought if they could get the Chinese amendment attached to it that would kill the bill.” Wright feared the changes in the testimony laws were a “step in the direction of Negro equality,” but for blacks they meant long overdue protection in the courts. Success came in January and March 1863 while Leland Stanford was governor with the passage of bills designed to amend the original bills of 1850 and 1851, which had forbidden black testimony rights in civil and criminal cases. The Senate passed Bill No. 2 to allow African American testimony in civil cases by a vote of 21 to 14 and Bill No. 3 (criminal cases) by a vote of 22-14. The Assembly passed Bill No. 2 by a vote of 46-30 and Bill No. 3 with no dissenting votes. At this time, however, Indians having one half or more Indian blood, Mongolians, and Chinese were denied testimony rights.[36]

In 1863 blacks also celebrated the Fourth of July for the first time in California. In San Francisco the program at the African Methodist Episcopal Church included a reading of the Declaration of Independence and the Emancipation Proclamation (the latter had become effective on January 1, 1863), two hymns, a prayer, and an address by Dr. Ezra R. Johnson. Johnson told his audience: “We are now acknowledged American citizens, having rights that the white man is bound to respect. . . . It is the first time in the history of our race in this country that we could, with consistency and pleasure, celebrate the Fourth of July.”[37]

In an editorial on “Our Fourth of July Celebration,” the Pacific Appeal voiced the hope that all black citizens would approve the celebration and said, “We are aware that prejudice and proscription still exist to a great extent, but we can and must overcome these real or supposed barriers to our integrity and moral deportment.” Those attending the celebration also resolved to answer the call to fight in the country’s defense “at the sacrifice of life, home, and everything but honor.”[38]

Still others expressed satisfaction about the progress of African Americans during the war years. On June 28, 1864, Congress repealed the Fugitive Slave Acts of 1793 and 1850. The San Francisco Morning Call described their repeal a “notable act,” and said, “Henceforth, beneath that emblem [the flag], wherever it floats, he too is a freeman, having an equal interest in its defence with the race that heretofore denied his manhood. Thus Freedom travels onward, slowly as time, but certain as eternity.” Cornelius Cole, who was then a congressman, wrote to his family about his pride in being able to vote for the Thirteenth Amendment: “The one question of the age is settled. I never felt so much excitement over any measure before.” [39]

The Sacramento Daily Union noted with approval that blacks made an appearance in a white procession for the first time in the city at the July 4, 1865 celebration:

On July 8, however, the Union also recorded that the Virginia Enterprise and the Virginia Union had commented “severely” on the exhibitions of prejudice by firemen in San Francisco, Sacramento, Stockton, and Placerville. The Nevada papers referred to the firemen’s boycott of the parades, which the San Francisco Daily Alta California also deplored. And a San Francisco newspaper started in June 1865, the Daily Examiner, proved that pro-South sentiment not only had survived the war, but was flourishing in California. With characteristic scurrility, editor Benjamin F. Washington wrote about his city’s parade, “They have given the African boys a chance, in the Fourth of July procession. This, if not a noble, magnanimous and praiseworthy performance, will doubtless prove a very scentsible one, if the day is hot.”[40]

Washington, a friend of William M. Gwin and a former Democratic state committeeman, wrote that he had been forced to start a new paper because rioters gutted the office of his Democratic Press when word of Abraham Lincoln’s assassination reached San Francisco. At different times, several prominent “Chivalry” Democrats shared the ownership of the Examiner. In 1865 William S. Moss was proprietor and Washington the editor of the paper. By 1867 Philip A. Roach and Charles L. Weller had become co-owners. Roach was active in the anti-Chinese movement, and Weller was the brother of former governor John B. Weller. In 1864 Charles Weller spent a month in prison on Alcatraz Island for disloyal remarks he made at a political meeting. During the Civil War, Weller also was under investigation as a suspected member of the Knights of the Columbian Star, a secret Confederate organization in the state. In 1869 the name of George Pen Johnston, another veteran Democrat, appeared on the list of proprietors.[41]

Between 1863 and 1867, Union Democrats found a political home in the Union-Republican Party in California. The Breckenridge Democrats, who favored compromising with the Southern states, went into a temporary eclipse, and some members left the state to join the Confederate forces. Under the leadership of Stanford and Low, California remained loyal to the Union, although a persistent “Copperhead” element maintained an anti-Union stance through various newspapers. The Democrats who joined the Union Party were prepared to support the Union, but not all of them to support black suffrage. As these Republican goals became more evident and the North appeared to be winning the war, the Democrats gradually defected, weakening the Union Party. In the five years immediately following the Civil War, however, African Americans found a unique opportunity to obtain the right of suffrage. With that objective in mind, the Colored Convention met in Sacramento during October 1865.[42]

Approximately thirty delegates from thirteen Northern California counties attended this convention. They elected Frederick Barbadoes of San Francisco president. Barbadoes told them:

The principal objective of this Convention is to devise ways and means for the obtaining of that right, which under the Constitution of the United States, is guaranteed to all her citizens, namely the right of elective franchise. This question is the important one of the day—not only to those of our race here and elsewhere—not only to this State, but it concerns and directly affects the safety and prosperity of the American Government.

The delegates decided that it was their “right and duty, to petition the Legislature of the state to have the State Constitution so amended as to secure its colored citizens the right of suffrage.” They declared:

That no Christian nation with any real sense of justice or humanity, could ask a class of people to assist in saving the Government from destruction, and after they had sacrificed hundreds and thousands of their lives to that effect, to then deny them of the common rights that nature has endowed them with; rights involving principles upon which the Government founded its political institutions, pronounced them to be the natural rights of all men.[43]

The Examiner had already delivered the Democratic answer to this argument for black suffrage. On June 14, 1865, the newspaper took exception to General Irwin McDowell’s statement that the 200,000 freedmen who fought for the Union “have won their right to the ballot.” McDowell commanded the United States military forces in California. “We deplore the support which General McDowell’s name gives to this monstrous heresy,” the paper said. Furthermore, “If we should consent to give the ballot to the dusky hand that brandishes a dripping blade, we should feel bound, also, to consent to place it in the one yet unstained with gore.” The Examiner denied that military competency in any way prepared African Americans to vote, declaring that “The right to participate in Republican government does not spring from a love for carnage and plunder.” During the following four and one-half years, the Examiner continued its almost daily, and often hysterical, attack on black civil rights and the possibility of social equality—subjects that aroused fear in whites whether they were Democratic or Republican during the tension-filled Reconstruction years.[44]

Criticism had failed to stop African Americans from attempting to better their lot before and it made little difference in 1865. Many of the black community’s old and new leaders including Philip A. Bell, editor of the San Francisco Elevator; Peter Anderson, editor of the Pacific Appeal; James M. Bell, and Ezra R. Johnson attended the convention. Delegate John J. Moore told the delegates that it was time for black men “to speak out boldly and let the world know what we think as men.” Therefore, he opposed William H. Yates’ move to amend Resolution No. 16 that stated, “We are greatly dissatisfied with the policy pursued by the Government (since our immortal and glorious Lincoln fell); respecting those issues of the country that most immediately effects [sic] the colored American.” Moore opposed “anything like cringing.” Two other delegates agreed, and Yates withdrew his motion.[45]

The members of the Committee on Elective Franchise were not in a cringing mood either, and on the third day they submitted a petition to the legislature and an amendment to the state constitution that dropped the word “white” from the qualifications for suffrage. The petition pointed out that blacks were “industrious, moral and law abiding . . . professing an average of education and intelligence; born upon American soil, and paying taxes yearly upon several MILLIONS of dollars, . . . “ The suggested amendment also provided suffrage for Native Americans if two-thirds of the legislature approved, but did not make any provision for Chinese voting rights.[46]

Toward the end of the convention, William H. Hall warned the delegates:

The opponents of a reconstructed Government and of a reunited people are not yet appeased to the humiliation of defeat; they are of a proud and revengeful spirit, educated in the opinion that they were born to rule, . . . they have not yet relinquished the purposes they sought to accomplish upon the field of battle; they are determined again to be in power, to curb the despised Yankees in all their isms, and grind deeper down in despair the unprotected negro. . . . We as black men, concede the fact that a few years since, when our interest was mingled with slavery and degradation, and when the interest of this flourishing State was under the dominion of such satellites as W.M Gwin, and . . . J.B. Weller, that the black race had nothing to look for but cold indifference and contemptible hatred; but now that the country is reeling upon the brink of ruin, . . . we ask, calmly and firmly, shall we not be allowed once more to prop its mighty superstructure, so that it may stand the ravages of time?

Hall thought that the black’s right to vote was “indisputable,” and that the time had come to give him that right.[47]

Hall resembled some of the other delegates in his failure to recognize the ambivalence of the Republicans toward African American suffrage. The legislature had ratified the Thirteenth Amendment, but it could not accept black suffrage. In January 1866, Republican Senator John E. Benton of Sacramento presented the petition and amendment that the delegates to the Colored Convention of 1865 had prepared. The legislature failed to even discuss the documents; they went to the Judiciary Committee and never came back to the legislators. Some of the senators who spoke for ratification of the Thirteenth Amendment may have been reluctant to support the petition because the opposition had declared that the government was laying the foundation for black suffrage with this federal amendment. More important, it was simply not politic to support black suffrage because, the argument went, that might lead to suffrage for the Chinese.[48]

It was also not politic to support voting rights for anyone other than white men because to most Democrats and to many Republicans, political equality spelled social equality. Irish-born Eugene Casserly, who took office as a United States senator from California in 1869, summed up the Democratic attitude at a party meeting when he said, “The law contemplated that only white men should enjoy political privileges, for the framers of our organic law knew that political equality led in time to social equality. They never intended to give negroes political equality because social equality was out of the question.” Moreover, the presence of a large Chinese population in California added another emotional issue to the political debates of the Reconstruction era.[49]

Notes: Chapter III