In Search of Equality: The Chinese Struggle against Discrimination in Nineteenth-Century America / Edition 1

by Charles J. McClain

Overview

Charles McClain's illuminating new study probes Chinese efforts to battle manifold discrimination—in housing, employment, and education—in nineteenth-century America. Challenging the stereotypical image of a passive, insular group, McClain reveals a politically savvy population capable of mobilizing to fight mistreatment. He draws on English- and Chinese-language documents and rarely studied sources to chronicle the ways the Chinese sought redress and change in American courts.

McClain focuses on the San Francisco Bay Area, the home of almost one-fifth of the fifty thousand Chinese working in California in 1870. He cites cases in which Chinese laundrymen challenged the city of San Francisco's discriminatory building restrictions, and lawsuits brought by parents to protest the exclusion of Chinese children from public schools. While vindication in the courtroom did not always bring immediate change (Chinese schoolchildren in San Francisco continued to be segregated well into the twentieth century), the Chinese community's efforts were instrumental in establishing several legal landmarks.

In their battles for justice, the Chinese community helped to clarify many judicial issues, including the parameters of the Fourteenth Amendment and the legal meanings of nondiscrimination and equality. Discussing a wide range of court cases and gleaning their larger constitutional significance, In Search of Equality brings to light an important chapter of American cultural and ethnic history. It should attract attention from American and legal historians, ethnic studies scholars, and students of California culture.

Product Details

ISBN-13:	9780520205147
Publisher:	University of California Press
Publication date:	02/13/1996
Series:	Chinese Struggle Against Discrimination in Nineteenth-Centur
Edition description:	First Edition
Pages:	385
Product dimensions:	(w) x (h) x 1.00(d)

About the Author

Charles J. McClain is Vice Chairman of the Jurisprudence and Social Policy Program and Lecturer at the Boalt School of Law at the University of California, Berkeley.

Read an Excerpt

In Search of Equality

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By Charles J. McClain

University of California Press

Copyright © 1996 Charles J. McClain
All right reserved.
ISBN: 9780520205147

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1
California's First Anti-Chinese Laws

The Rise of Anti-Chinese Resentment

The first Chinese to arrive in California were greeted with a mixture of enthusiasm and curiosity. They were few in number and seemed a harmless and exotic addition to the cosmopolitan mass of humanity that was gathering in Northern California in the wake of the discovery of gold at Sutter's Mill. In August 1850, for example, on the occasion of the ceremonies held in San Francisco to observe the death of Zachary Taylor, the city fathers invited the local Chinese to send a contingent to participate in the rites and assigned it a prominent place in the funeral cortege.1 Many local observers noted with great satisfaction the large Chinese presence two months later at the San Francisco celebrations of California's admission to the Union.2 And in a January 1852 address to the California legislature, Governor John McDougal endorsed the importation of Chinese for the purpose of draining California's immense swamplands, describing them as "one of the most worthy classes of our newly adopted citizens—to whom the climate and the character of these lands are peculiarly suited."3

This spirit of hospitality lasted but a brief time,however. As the number of Chinese grew, their presence came to be deeply resented, especially in the state's mining districts where they concentrated. (As early as 1852 a San Francisco newspaper reported that leaders of the Chinese community in California were sending circulars to their countrymen in China, urging them not to come to California because of the growing anti-Chinese hostility in the state.)4 Many explanations have been offered for the hostility, and no doubt there is a grain of truth in each of them. But a principal reason for the resentment was nicely stated in a most revealing passage from Theodore Hittell's History of California , published in 1898:As a class, [the Chinese] were harmless, peaceful and exceedingly industrious; but, as they were remarkably economical and spent little or none of their earnings except for the necessaries of life and this chiefly to merchants of their own nationality, they soon began to provoke the prejudice and ill-will of those who could not see any value in their labor to the country.5

In short, they worked too hard (often for less pay than others were willing to accept), saved too much, and spent too little. In addition, they looked and behaved differently from the majority population. Beneath all the surface rationalizations, this was to be the gravamen of the complaint against the Chinese through the many phases of the anti-Chinese movement in California.

Calls for Legislation

As early as 1852, agitation commenced in some of the mining regions to stem the inflow of Chinese workers and to expel those who were already settled. The agitation first bore fruit in a report issued in April 1852 by a California assembly committee.6 The report identified as the preeminent evil threatening the well-being of the mining districts "the concentration, within our State limits, of vast numbers of the Asiatic races, and of the inhabitants of the Pacific Islands, and of many others dissimilar from ourselves in customs, language and education."7 Most of these persons, the report stated, had not come to California voluntarily but rather had been imported as servile labor by foreign capitalists and were held to labor under contracts not recognized by American law.8 They had no desire to become U.S. citizens (or if they did it was not wise to encourage them in this wish), and their presence demeaned American laborers already in California and deterred the immigration of additional (white) citizens. The report urged legislative action at the national and state levels to deal with the problem. Specifically it suggested that California might revive a tax it had once imposed on all alien miners in the state—the Foreign Miners' License Tax9 —but might now differentiate between those who had declared their intention of becoming American citizens and those who had not.10

Governor Bigler's Message and the Chinese Reaction

Governor John Bigler, California's third chief executive, gave a much more powerful impetus to the anti-Chinese movement when, one week after the publication of the report, he delivered a special message to the legislature on the evils of the immigration from Asia.11 Extraordinarymeasures were needed, the governor said, to "check [the] tide of Asiatic immigration"12 which he saw threatening to inundate the state, especially the mining districts. He called particular attention to the widely held belief that the mass of the Chinese immigrants were bound to long contracts of indentured servitude ("coolie labor") and that in some cases their families in China were held hostage to the faithful performance of these contracts.13

The legislative program he recommended to stop immigration from Asia contained two main elements: a request to the Congress to enact a bill making contracts for "coolie labor" unenforceable and the enactment of a state taxation program that would fall heavily on the Chinese and thus tend to discourage their continued presence. He also suggested—though he did not push the point quite as hard—that the state had the right to use its police power to prohibit completely Chinese immigration into California or at the very least to bar the Chinese from working in the state's mines.14 Most ominously, though he did not include such a proposal in the recommended legislative agenda, Bigler suggested that California's Asian immigrants, since they were indifferent to the solemn obligations of an oath, ought not to be allowed to serve as jurors or to testify in court.15

Though Bigler doubtless spoke for a large segment of the population,16 his harangue did not go without opposition. For example, the state's leading newspaper, San Francisco's Daily Alta California , reacted quite coolly to the governor's proposals. In a lengthy commentary published the day after Bigler's message, the paper, while allowing that a vastly increased Chinese population might at some point pose problems for the state, refused to see the existing situation as troublesome or one that required urgent legislative attention.17 It described the Chinese as being "as industrious, as moral, and as orderly as any other class of our population" and saw them as a net benefit to the state's economy. Finally, it expressed grave reservations about the wisdom and constitutionality of Bigler's legislative proposals.18

Significantly, a few days later the paper published an open letter to Bigler from one Norman Asing, a San Francisco Chinese merchant and self-described naturalized citizen and Christian.19 Asing came right to the point:

[T]he effects of your late message has been thus far to prejudice the public mind against my people, to enable those who wait the opportunity to hunt them down, and rob them of the rewards of their toil. You may not have meant that this should be the case, but you can see what will be the result of your propositions.20 He flatly denied that California had any right under the Constitution to restrict immigration and took strong issue with Bigler's assertion that the Chinese were ineligible to become American citizens. "The declaration of your independence, and all the acts of your government, your people, and your history, are against you," he wrote.21 He expressed contempt for Bigler's characterization of the Chinese as a degraded and inferior race. The Chinese could be considered degraded, he said, only if the desire to work hard in an honest trade was degraded. And on the question of ethnic inferiority, Asing begged to remind the governor "that when your nation was a wilderness, and the nation from whom you sprung barbarous, we exercised most of the arts and virtues of civilized life."22

The First Discriminatory Taxes

No doubt partially in response to Bigler's message and the agitation in the mining districts against the Chinese and other foreign miners, the legislature passed a bill in May 1852 reenacting the Foreign Miners' License Tax.23 The new measure—captioned, interestingly, "An Act to Provide for the Protection of Foreigners, and to define their liabilities and privileges"—set the license fee at $3 per month and directed that revenues be split equally between the state and the counties where the mines were located.24 It denied access to the courts to anyone who did not have a license25 and authorized the sheriffs or affected counties to appoint deputies to assist them in collecting the tax.26

In the same month the legislature enacted another measure that became known as the "commutation tax."27 It is clear from the context of the times that this tax was aimed primarily at the Chinese, though like the miners' tax it did not mention them by name. But where the Foreign Miners' License Tax was implemented to burden the pursuit of the mining trade by the Chinese who were already in California (and thereby to give them incentive to leave), the commutation tax was designed to discourage their coming in the first place. The act, as amended the following year, required the masters of all vessels arriving at California ports to prepare a list of all foreign passengers, and the owners of the vessels to post a $500 bond for each of these passengers. The bond could be commuted by the payment of $5 to $50 per passenger.28 Other provisions required the master to specify further whether any of the incoming passengers were mentally ill or disabled and empowered the mayor to require an additional bond in these cases.29 In practice, the bond was routinely commuted by the payment of the $5 fee, the sum having been simplyadded as a surcharge to the basic price of passage. The Chinese passengers, in other words, bore the full burden of the act.

The Chinese District Associations Complain to the Legislature

At first, there was no notable opposition in the Chinese community to either the 1852 license legislation or the commutation tax. The Chinese were apparently willing to bear the taxes, which seemed relatively modest in amount and appeared to offer the prospect of defusing some of the animosity felt towards them by the state's majority population.30 It was a mistaken calculation on their part. The anti-Chinese agitation continued unabated, especially in the gold-mining districts, and in the next session of the legislature several bills were introduced in the assembly to increase radically the amount of the license or to exclude foreigners completely from the mines. The bills were referred for consideration to the Committee on Mines and Mining Interests, which was also charged with the more general task of gathering information on the state's Chinese population. In what doubtless was an effort to head off the threat of draconian legislation, the heads of the Chinese community's four major district associations contacted the committee through their attorney and requested an interview.31 The committee acceded to the request and scheduled a series of interviews with these representatives in San Francisco. The district associations were unquestionably the most important organizations in nineteenth-century Chinese America. We shall encounter them time and again in this book, and we must pause at this point to say a word by way of background about them.

Chinese immigrants to the United States came overwhelmingly from several discrete geographic districts in Kwangtung province in southeastern China. Though these districts were contiguous to one another, the inhabitants spoke different dialects of Cantonese and in one case—that of the people known as the Hakka —a different tongue entirely. They identified strongly with their places of origin and often harbored rather strong antagonisms toward residents of the other districts. Early in the history of the California settlement Chinese merchants from the various districts took the lead in establishing associations, known in Chinese as hui-kuan (literally "meeting halls") composed of their regional and linguistic compatriots. (During the nineteenth century, smaller village, surname, and subregional organizations developed under the umbrella of the hui-kuan .) The American hui-kuan appear to have been adaptations of ancient Chinese models. For centuries merchants, officials and others from the samecities or regions, brought by business or official duties to other parts of the country, had been in the habit of forming associations (known also in China as hui-kuan ) for mutual aid and support. These organizations, it is significant to note, in addition to discharging some of the traditional functions of a benevolent association (offering a common place for socializing, providing for the burial of dead members) also had as a main purpose, as one of the first Western scholars to study them put it, the protection of their members against "the hostility of the natives" and "harsh dealing and oppression by the authorities of the place."32

Though the American hui-kuan differed from their counterparts in China in that they eventually came to be made up predominantly of laborers, they resembled them in most other respects. They were first and foremost mutual and benevolent associations, in the early years of the immigration providing temporary shelter and accommodation to the newly arrived, escorting them to the mining districts, and assisting them to find work. They would offer rewards when their members were killed and would arbitrate disputes among them, including disputes concerning mining claims. They also saw to it that the remains of the deceased were returned to China for proper burial in their home villages. The hui-kuan leaders eventually came to claim that every Chinese in California was, simply by virtue of geographic provenance, a member of some district association, and they came to insist that everyone pay an assessment, ranging from $4 to $10, to his hui-kuan before returning to China. (These departure fees appear to have been their principal source of income.) They enforced this requirement through an arrangement they had with the Pacific Mail Steamship Company under which Chinese returning to China had first to obtain exit permits from their district associations before being able to purchase tickets. It is worth mentioning, finally, that under their bylaws the hui-kuan could be called upon by creditors to prevent debtors from leaving the United States before they had paid their debts. It is unclear to what extent the hui-kuan used the exit permit arrangement as a means of enforcing debt repayment.

Although relations among the various hui-kuan were at times quite strained, the organizations did at an early date in the immigration form the habit of meeting and working together on matters of common concern, especially when it came to dealings with the Caucasian world. By the early 1860s an informal coordinating council consisting of officers of the individual hui-kuan had emerged. Since hui-kuan was usually rendered into English as "company," and since eventually there came to be six constituent district associations, this coordinating council came to be referred to by the Caucasian world as the Six Chinese Companies orthe Chinese Six Companies.33 Throughout the nineteenth century Caucasians accused the hui-kuan of importing Chinese laborers as indentured servants and renting them out to American capitalists, a charge which in my view is supported by no reliable evidence.

The early leaders of the hui-kuan were invariably merchants (later on they were usually titled scholars recruited from China), and one may legitimately ask whether these men always sought to represent the interests of the community as a whole.34 They would, however, on more than a few occasions during the nineteenth century prove themselves capable of acting vigorously to assert community rights when confronted with threats from the Caucasian world. The meeting in 1853 with the Committee on Mines and Mining Interests was the first such occasion.

The committee's report of its interviews with the hui-kuan leaders35 offers compelling evidence of the well-developed political sensitivity of the Chinese community leadership even at this early date. (The very fact that the men had retained counsel bears witness to this fact itself, of course.) The representatives of the district associations came well prepared for these meetings.36 They supplied copious information on the size, makeup, and social organization of the Chinese community in California. They vigorously disputed the charge (one that would be made repeatedly during the nineteenth century) that they were importing laborers and holding them in a condition of indentured servitude. They painted a very roseate picture (no doubt too roseate) of the democratic character of Chinese-American society and the benevolence of its leadership.37 Referring to the committee's legislative agenda, the association leaders offered a proposal which they averred might persuade the people of the mining counties that the Chinese presence among them was a benefit rather than a burden. They expressed no opposition to an increase in the miners' tax if the legislature felt it was necessary, but they did suggest that the revenue so generated be left entirely with the counties where it was collected rather than be split with the state.38

They also laid boldly and frankly before the committee a list of grievances of which they said their countrymen complained. Chief among them was the increasing violence to which they were being subjected in the mining districts. The several association houses had kept records of the numerous instances of violent attacks on Chinese by white miners, and the committee, based on its own observations, attested to the correctness of these reports.39 The association leaders complained, too, of a large number of instances in which courts of justice had not accepted the testimony and statements of Chinese witnesses because of the color of their skin. It was wrong, they declared, for the state to tax them and at thesame time to withhold "that protection which is implied in the payment of taxes."40 A point on which they were quite insistent was, in the committee's words, "that some settled and certain policy should be pursued towards their people [so] their persons and property may in fact [emphasis in original] as well as in law, occupy that same position as the persons and property of other foreigners."41 It was a point that they would make time and again and that they would eventually see embodied both in statute and in court decision.

If the hui-kuan leaders' appeal to the committee's sense of justice and equity was not enough, the men also sought to appeal to the committee members' more worldly concerns. They assured the committee that if the Chinese grievances were addressed, "trade and commerce between the two countries [would] increase, ... capital now lying dormant in China ... [would] here seek investment in private trade and public improvements, and in fact [in] everything in the State that gives fair promise of its safe and profitable employment."42

The intervention of the heads of the hui-kuan was to good—albeit temporary—effect. The committee urged rejection of the proposals for radical change in the license laws. The tone and thrust of the report contrasted markedly with the committee's report of the previous year. The majority considered groundless the apprehension felt by some that the Chinese would soon inundate the state and crowd out the white population.43 Moreover, the legislators thought it a libel on the national character to suggest that Americans could not compete with Asian immigrants.44 The report also spoke of the detrimental effects that anti-Chinese legislation might have on trade with China which both the state and national governments were interested in promoting.45 Ultimately, the committee recommended only that the monthly license fee be increased by $1,46 a recommendation that the full legislature duly enacted into law.47

New Hostility and New Responses

The Chinese were not long able to savor this modest legislative success. Anti-Chinese hostility was—at this phase of its history—like a stubborn brushfire, whose flames could be dampened but never quite put out. And manifestations of hostility were not limited to the mining districts. One finds, for example, in an issue of the Golden Hills News , one of the few issues of a San Francisco Chinese-language newspaper from this early period that have survived, an advertisement announcing formation of a translation service for the purpose of communicating complaints about Caucasian mistreatment to the government. "Americans in this city," the notice reads, "have abused and humiliated Chinese unreasonably." Itthen goes on to urge Chinese who have been "teased, injured or deceived" by Americans to report the incident to the service so that a translation may be made and sent on to the government. "Hopefully," the notice says, "this will prevent mistreatment from being repeated."48 In its very next session the legislature amended the original mining laws to exempt from the licensing requirement those who had declared their intention to become American citizens (as noted earlier, the general understanding at the time was that the Chinese were ineligible for naturalization).49 On the same day, May 13, 1854, it passed a concurrent resolution, requesting California's congressional delegation to seek congressional authorization for a California statute that would impose a direct capitation tax on all natives of China and Japan entering the state.50

The following year brought further legislative action. Furious, ugly agitation in the mining regions, especially Shasta County, prompted both houses of the legislature in 1855 to empanel select committees to examine again the question of Chinese miners. The assembly committee recommended that the Chinese be flatly barred from working in the mines of California.51 This unsubtle proposal proved too extreme to win the assent of either house, but the measure enacted was only slightly less severe. It provided for an increase in the license fee to $6 per month for foreigners ineligible to become citizens, effective October 1, 1855, and a ratcheting up an additional $2 per month on October 1 of each succeeding year ad infinitum.52 If a sudden expulsion of the Chinese from the mines offended the scruples of too many legislators, the use of confiscatory taxation to gradually squeeze them out over time apparently did not.

The legislature also moved to discourage further immigration of new Chinese miners. On April 28, 1855, Governor Bigler approved a bill captioned "An Act to Discourage the Immigration to this State of Persons Who Cannot Become Citizens Thereof," which imposed on the master or owner of each vessel landing passengers "incompetent by the laws of the United States or the laws and constitution of this State to become citizens thereof" a tax of $50 for each such passenger.53 As noted, less than a year earlier the legislature, doubtless aware of the serious constitutional questions raised by a direct state tax on immigration,54 had urged California's representatives in Congress to solicit the national government's approval for the enactment of such a law.55 However, it apparently was in no mood to wait very long for a reply and decided to take direct action itself. The 1855 session was perhaps the high-water mark of anti-Chinese sentiment in the legislature for the entire decade.56

The 1855 anti-Chinese measures were enacted impetuously, in response to the impassioned pleadings of a rather small, but very vocal,sector of the population. Others were not long in voicing their displeasure. Edward McGowan, the state's commissioner of immigrants, informed the legislature that some provisions of the capitation tax were unconstitutional and that he had no intention of enforcing them.57 And in February 1856 some one hundred San Francisco merchants sent the legislature a memorial supporting the commissioner and decrying the policy of discouraging Chinese immigration as detrimental to the interests of the state.58 Finally, the shipping companies which stood to sustain enormous financial losses if the act were enforced59 determined to challenge the measure in court. The outcome was hardly in doubt, and in 1857, when People v. Downer 60 came before the California Supreme Court, it took the justices less than half a page of the reports to void the measure as an impermissible interference with the national government's exclusive power to regulate foreign commerce.

The Downer decision did not prevent the legislature from taking up the very next year a bill to flatly prohibit the immigration of any more Chinese into the state through any of its ports. The Committee on Federal Relations, to which the measure was referred for consideration, reported back that it saw nothing standing in the way of enactment. The states had the right to exclude persons they thought detrimental to their welfare, and the Chinese fit this description. Their "habits, manners, and appearance are disgusting in the extreme," it said, and it compared their influx into the mining districts to a visitation by the locusts of Egypt. The committee was convinced, it said, "that California is peculiarly the country of the white man and that we should exclude the inferior races." It recommended passage of the bill without amendment as the most effective way to stem any further Chinese immigration. Chinese already here could be forced to leave, it said, by "the enactment of stringent laws."61 The bill was duly enacted into law62 but was struck down by the California Supreme Court in an unpublished opinion when the first attempt to enforce it was made.63

A Successful Effort to Lower the Miners' Tax

The drastic increase in the miners' tax also provoked considerable disquiet after the public realized its full effects. Since enactment of the first foreign miners' license legislation the Chinese had been faithfully and punctually paying their license fees and, not incidentally, had been enriching the treasuries of both the state and many of its counties.64 Many people, even in the mining counties, began to wonder whether it was altogether wise for state and local governments to drive the Chinese out through excessive taxes, thereby depriving themselves of a steady, reliable source ofrevenue. The legislature soon began receiving calls from the mining districts asking for reconsideration of the harsh mining license legislation. Representatives of the state's business classes, convinced that the immigration represented the opening phase of a potentially limitless commercial intercourse with the Chinese Empire, began to urge reconsideration as well. And for the first time Protestant missionaries began to speak out on behalf of the Chinese. Chief among these was the Reverend William Speer.

Speer was a Presbyterian missionary who had labored in China for several years before voyaging to San Francisco in 1852 to open a mission. He was fluent in Cantonese and quickly became a friend and confidant of the leaders of the local Chinese community. Like many Protestant missionaries of the era, he harbored hopes of Christianizing the immigrant masses and seeing them return to China to spread the good word among their fellow countrymen. Like many as well, he was capable of being quite patronizing toward the Chinese, but, unlike most, he counterbalanced this with a thorough understanding of Chinese history and an appreciation for the grand cultural attainments of Chinese civilization.65 He was deeply conservative in his political values, and one of the things that attracted him most in the Chinese was their thrift and willingness to work hard.66 He was, above all, genuinely repelled by the coarse racial demagoguery of the anti-Chinese movement and spoke out against it repeatedly during his four-year sojourn in California. He appears on the whole to have been a thoroughly decent man and proved a cogent, eloquent, and effective advocate on behalf of the Chinese.67

In January 1855, Speer began to publish a newspaper, the Oriental (Tung-ngai san-luk ), which appeared thrice weekly in a bilingual edition and on a daily basis in Chinese for the next two years. The paper contained its share of moral uplift literature and unvarnished sectarian propaganda, but it considered as equally important missions the refinement of American feeling toward the Chinese and the overturning of hostile legislation. It campaigned actively in these causes as well. Speer spoke out against the mining legislation of 1855 both in the Oriental and in a special pamphlet which he prepared and had circulated in Sacramento.68 He offered testimony from certain miners' license fee collectors that the fees were already oppressing many Chinese miners69 and pleaded that they be reduced again to $4 per month.70 Any policy aimed at excluding or debasing Chinese immigration, he argued, was detrimental to the interests of the state and unworthy of the people of a great nation.71

In response to lobbying of this sort, bills were introduced in the 1856 session of the legislature to repeal the 1855 law and to reduce the ForeignMiners' License Tax to $4 per month. The standing mining committees of both houses took up the measures and issued separate reports recommending reduction of the tax.72 In tone the two reports, however, were as night and day, and they stand again as testimony to the divided, fluid, and changeable character of political opinion on the Chinese question at the time.73 The senate document breathed a spirit of openness and sympathy for the Chinese. It spoke of "the presence of this unfortunate people in our midst,"74 reminded the legislature that the Chinese had come to California by implied invitation at least, and commented that it ill became "a proud, powerful, and magnanimous nation to oppress any one, least of all a class of defenseless strangers." It pointed out as well that it was especially mean-spirited to begrudge the Chinese miners their gains since they worked generally in marginal diggings that had been abandoned by other miners.75

The assembly report, by contrast, while it endorsed a lowering of the tax, was thoroughly hostile to the Chinese. Their presence, it said, was "neither beneficial nor desirable: but on the contrary, highly detrimental to the welfare, safety and happiness of the State."76 Elsewhere, the report described them as a "distinct and inferior race,"77 "horribly depraved," and "verily a nation of liars ... unworthy of credit."78 The report even foreshadowed the soon-to-become familiar charge that the Chinese dishonored and degraded labor.79 On April 19, 1856, the legislature repealed the act of 1855 and reset the foreign miners' license fee at its former level of $4 per month.80

People v. Hall

If increases in the miners' tax increase threatened the ability of Chinese to earn a living, a decision that came down from the California Supreme Court in December 1854 represented a threat, quite literally, to life and limb. As noted, Chinese leaders as early as 1853 had complained to the legislature about the refusal of certain state courts to hear the testimony of Chinese witnesses. Concern heightened as the number of crimes committed against Chinese in the mining districts increased and as the conviction deepened that potential perpetrators were being emboldened by the likelihood that their victims would be forever unable to testify against them.

In August 1853, the grand jury of Nevada County returned an indictment against George W. Hall and two others for the murder of one Ling Sing.81 In October, a four-day trial was held, during which three Chinese and one Caucasian testified on behalf of the state, with the Reverend Speer, especially recruited for the purpose, acting as interpreter.82 Theprosecutor was county District Attorney William M. Stewart, a man who would later be elected one of Nevada's first two senators and become a dominant figure in the state's politics for half a century. The jury returned a verdict of guilty, and Hall was sentenced to be hanged. Even though no exceptions were taken during the trial to hearing the Chinese witnesses, counsel for the defendant appealed the verdict on the grounds that their testimony was prohibited under Section 14 of the state's Criminal Proceedings Act, which provided: "No black or mulatto person, or Indian, shall be permitted to give evidence in favor of, or against, any white person."83 For the first time the question of the testimonial capacity of Chinese immigrants was presented to the state's highest court for authoritative adjudication.

Chief Justice Hugh C. Murray, in an opinion containing some of the most offensive racial rhetoric to be found in the annals of California appellate jurisprudence, held that the Chinese testimony had been improperly received and the conviction must be reversed.84 The decision rested on three grounds: on canons of statutory construction, as the court purported to understand them; on a kind of amateur foray into history and ethnography; and on what the court called a public policy consideration.

The court first purported to construe the meaning of the terms in the Criminal Proceedings Act. Relying on its understanding of history, the court reasoned that upon touching ground at San Salvador, Columbus thought that he had found "an island in the Chinese Sea," lying near the extremity of India. Acting on this supposition, he had given the islanders the name "Indians." "From that time, down to a very recent period," wrote the court, "the American Indians and the Mongolian, or Asiatic, were regarded as the same type of the human species."85 Scientists, the court continued, had until quite recently believed that Indians and Asians came from the same ethnic stock.86 While granting that most scientists no longer believed that North America had originally been populated by immigrants from Asia, the court said that California law was based on earlier enacted legislation from other states that had clearly treated Chinese and Indians as being of the same stock.87 Further, even assuming that Asians were not the same as Indians, the word "black" in the statute, said the court, must be understood in the generic sense as excluding all races other than Caucasians.88

Finally, quite apart from reasons of statutory construction, Murray stated that he felt compelled to reach his decision on public policy grounds. If the Chinese were admitted to the witness stand, he wrote, we would "soon see them at the polls, in the jury box, upon the bench, and in our legislative halls,"89 a prospect that must have filled him with something bordering on horror since he considered the Chinese "[a people] whose mendacity is proverbial; a race ... nature has marked as inferior, and ... incapable of progress or intellectual development beyond a certain point."90 The court, confronted with an odious law, had chosen to expand rather than restrict its application.91

Reaction to the Decision

The Chinese reacted quickly and vocally to the Hall decision. Lai Chun-chuen, a prominent San Francisco merchant, attacked the decision in an open letter to Governor Bigler prepared in January 1855, primarily in response to an anti-Chinese speech by the governor.92 On Hall the letter was indignant and characteristically ethnocentric:

[O]f late days, your honorable people have established a new practice. They have come to the conclusion that we Chinese are the same as Indians and Negroes, and your courts will not allow us to bear witness. And yet these Indians know nothing about the relations of society; they know no mutual respect; they wear neither clothes nor shoes; they live in wild places and in caves.93

The Chinese, by contrast, had a record of thousands of years of civilization.94 The decision to bar Chinese testimony by equating them with blacks and Indians, said Lai, could not have been the result of "enlightened intelligence and enlarged liberality."95 Nor was reaction confined to the merchant strata of Chinese-American society. The minority report of a state senate committee noted, for example, that there was widespread resentment in the Chinese community at the refusal of courts to allow them to testify.96

As was to be expected, Speer's Oriental editorialized vigorously against the supreme court decision in Hall . "The principles of Magna Charta, the prerogatives of juries, the rights of judges and advocates, Republicanism, Christianity, and common humanity are all outraged by this iniquitous decision of the Supreme Court of California," thundered Speer.97 But Speer's was not the only Caucasian voice to be heard speaking on behalf of the Chinese. In fact the ban on Chinese testimony was a source of deep embarrassment to the more civilized elements of white society, and some of the leading organs of Caucasian opinion, to their credit, spoke out forthrightly against it.98 Protests, however, were to no avail, and in 1863 the legislature added insult to injury by codifying the Hall decision99 and extending the principle to civil cases as well.100

Of all the wrongs visited upon the Chinese in the period from 1850 to 1870, the ban on their testimony in the state's courts—not surprisingly,given its fateful implications—rankled most deeply, and the removal of this disability was consistently the chief item on the agenda of the community leadership. (The ban, it should be stressed, applied only to the state courts. The United States District Court for the Northern District of California had begun to receive Chinese testimony on an unrestricted basis as early as 1851 and continued to do so throughout the period.)101 Speer informed the California legislature in 1857, in a pamphlet aimed at overturning Hall , that the testimony ban was "a rock of offence" to the Chinese population and the "greatest stumbling block" preventing them from fully enjoying California's prosperity.102

The Chinese Hire a Lobbyist

Particularly interesting evidence not only of Chinese sensitivity on the subject but of a determination to do something about it is found in two remarkable letters written in January 1860 by the Reverend A. W. Loomis, Speer's successor as head of the San Francisco mission to the Chinese, to the Presbyterian Board of Foreign Missions in Philadelphia. In the first of these letters,103 Loomis wrote that he had been approached the previous Sunday after services by six Chinese, representing the Chinese district associations, who said that they had some matters that they wished to lay before him. He related that he tried to put them off but that under pressure he agreed to meet with them the next day. At the meeting they told him that his predecessor, Speer, had routinely interested himself in political matters affecting the Chinese and that they now wished Loomis's assistance. They told him specifically, Loomis wrote, that "they would like some laws altered, especially those excluding Chinamen from the privilege of testifying in the courts" and requiring payment of the miners' tax.104 Loomis related that, while he did not wish to become too involved in politics, he did inform the Chinese leaders that he would try to be of assistance and that in the meantime they should write up petitions expressing their grievances. He told the Board of Foreign Missions that what the Chinese needed was "a good man to lobby for them" in the legislature and that he intended to see if he could locate such a person.105

At the end of the month Loomis wrote again to his superiors in Pennsylvania to inform them of the results of his efforts. In this letter,106 he announced that he had found a lawyer—indeed a former city judge107 —to attend to the interests of the Chinese in Sacramento, that the heads of the company houses had agreed to his terms,108 and that the lawyer had already commenced work in the state capital. Loomis's later correspondence with the Board of Foreign Missions makes no further reference to the arrangement,109 and so one cannot say for how long a period thelawyer-lobbyist remained the Chinese representative in Sacramento. The episode, however, clearly demonstrates the well-developed political consciousness of some Chinese (here the leadership of the most important organizations in the community) at this very early period in the history of the immigration and their willingness to make aggressive use of American institutions to protect Chinese interests. Three cases decided by the California Supreme Court bear witness to the same phenomenon. Two of these arose in the mining districts and involved challenges to the still resented, even if lowered, foreign miners' tax. The third involved a challenge to another discriminatory tax.

Chinese Court Victories in the Mining Districts

Ex parte Ah Pong 110 was a habeas corpus action brought by a Chinese laundryman from El Dorado County. An 1861 revision in the foreign miners' license law had declared that all foreigners who were ineligible for citizenship but resided in the mining districts would be considered miners for purposes of the act; they were thus made liable to the tax.111 The county tax collector had sought to collect the tax from Ah Pong, but he had refused and thereupon been ordered to work on the county roads until the sum was paid off. Upon his refusal to work, he was prosecuted, convicted, and sentenced to twenty days' imprisonment.112 After his application for a writ of habeas corpus to the county judge of El Dorado County was denied, he applied to the state supreme court, which issued the writ and ordered the case heard on the merits.113 The petitioner's counsel argued to the court that the statute violated the state constitution on a number of grounds, principally because it was irrational and arbitrary. The court agreed that the petitioner was unjustly imprisoned but chose to sidestep the constitutional question and base its decision on its own somewhat curious construction of the statute. In a terse but unanimous opinion, it ruled that the act could not possibly be held as applying to the petitioner, whatever it seemed by its terms to say. The mere fact that he was Chinese and living in the mining district, it held, could not subject him, a laundryman, to something designated the Foreign Miners' License Tax. "If the act is to be construed as imposing this tax," said the court, "it cannot be supported, any more than could a law ... which imposed upon every man residing in a given section of the State a license as a merchant, whatever his occupation."114

Ah Hee v. Crippen 115 involved a different sort of challenge to the Foreign Miners' License Tax. A Chinese miner brought a replevin action to recover a horse that had been attached by the county tax collector to enforce payment of the tax.116 The plaintiff first argued that the law conflicted with Article I, Section 17 of the California Constitution, which granted foreigners who were bona fide residents the same rights of possession and enjoyment of property as United States citizens.117 If native-born citizens had the right to mine lands for gold without paying any license fee or tax, so did foreigners who were bona fide residents. He invoked, in short, a state constitutional right to the equal protection of the laws. Second, he argued that the mining legislation applied only to mining on "public lands," that is, land owned either by the United States or the state of California, and not, as was the case here, to mining on privately owned property.118

Interestingly, the District Court of Mariposa County completely accepted the plaintiff's constitutional argument119 and ordered his property returned because it had been seized illegally."120 The state supreme court, however, chose, here again, to avoid the constitutional claim and to decide the case on the basis of statutory construction. In an opinion penned by Chief Justice Stephen Field, it affirmed the lower court ruling but on the ground that the legislature must have intended the prohibition against mining without a license to apply only to public lands.121

We know nothing about the Supreme Court litigants Ah Pong and Ah Hee other than what is revealed in the opinions themselves and nothing about the origins of their lawsuits. We do not know whether they were aggrieved individuals acting exclusively on their own or at the initiative and with the support of Chinese organizations.122 We can speak more confidently about the origins of a very important case decided the following year. This too involved a challenge to a discriminatory tax though one with much broader impact than the Foreign Miners' License Tax.

The Chinese Police Tax and the Case of Lin Sing v. Washburn

In early 1862 the legislature empaneled a joint select committee, consisting of three senators and three assemblymen, to confer with the Chinese merchants of California123 and to report back to the full body on the wisdom of permitting a permanent Chinese presence in the state. The charge was similar to the charge that the legislature had given a decade earlier to the Committee on Mines and Mining Interests, and the 1862 report that the committee issued124 was, in its uniformly pro-Chinese thrust and tone, quite reminiscent of the earlier 1853 committee report.125 In view of the quantum growth of Sinophobia in the intervening ten years, the latter is the more striking of the two documents and, in retrospect, seems almost a historical anomaly. Significantly, it was to be the last report sympathetic to Chinese interests to issue from anyorgan of California state government for the duration of the nineteenth century.

The committee told the legislature that the approximately fifty thousand Chinese then working in California were a distinct economic asset to the state. The Chinese merchants, the report stated, were "men of intelligence, ability, and cultivation, who [had] kindly and promptly [responded to the committee's] many inquiries."126 They were peaceable, patient, and industrious, and they were helping to build the state "by contributing largely to our taxes, to our shipping, farming, and mechanical interests."127 Instead of seeking to discourage their presence, the state ought to encourage them to stay and pursue their labors.128 Nor was there any foundation to the charge that they represented a threat to white interests. No evidence indicated that Chinese were displacing white labor. They did not mingle with whites. Indeed, they did not even have the most basic civil rights, such as the right to testify in court, that were possessed by the lowliest Caucasian. "Certainly we have nothing to fear from a race so contemned and restricted," said the authors."129

The committee saw no need for further legislation on the Chinese and took the legislature to task for the hostile laws then on the books, laws which it believed130 ran counter to the spirit and letter of the treaty with China signed by the United States in 1858.131 "The present laws in force in regard to this class of our population," the committee declared, "impose upon them quite as heavy burdens as they are able to bear, and, in many instances, far beyond their ability to stand up under."132 The committee voiced the hope that no more legislation would be enacted "to oppress and degrade this class of persons in our State."133 Regarding possible legislation, the committee was particularly insistent on one point: the state of California was totally without power to act directly either to exclude the Chinese from its shores or to deny them privileges that it accorded other foreigners. If the legislature was determined to pursue these avenues, it would have to go to the Congress of the United States.134

For all of the force of its arguments, the committee's report had practically no impact on the full legislature. Within seven weeks of their receipt of the document, the senate and assembly passed, and Governor Leland Stanford135 signed, yet another piece of anti-Chinese legislation.136 Entitled "An Act to protect Free White Labor against competition with Chinese Coolie Labor, and to Discourage the Immigration of the Chinese into the State of California,"137 the act levied a tax of $2.50 per month, to be called the Chinese Police Tax, on all Chinese residing in the state, except those who were operating businesses, who had licenses to work in themines, or who were engaged in the production or manufacture of sugar, rice, coffee, or tea. Further, it made employers of the designated Chinese equally liable with them for payment of the tax and provided that the tax collector could demand payment of the tax directly from employers; if refused, the tax collector could auction off their personal property with one hour's notice.138

The tax was subjected to legal challenge almost immediately. In June 1862, the San Francisco tax collector sought to collect from Lin Sing, a Chinese merchant resident in the city,139 the sum of $5, representing apparently the tax due from one of his employees for the months of April and May. Under threat of property seizure, he paid the tax but immediately brought suit before a magistrate for a refund. The magistrate sustained the state's demurrer to the suit, the county court affirmed the magistrate's ruling, and the case of Lin Sing v. Washburn 140 went up to the California Supreme Court for review.

In argument before the court, the attorney general of California, Frank M. Pixley, suggested that wealthy Caucasian business interests and the great commercial classes were behind the litigation.141 To be sure, a segment of the California Caucasian establishment was desperately anxious to promote trade with the Chinese Empire. Moreover, it saw Chinese labor as an industrious and inexpensive tool for the development of the state's resources and viewed anti-Chinese legislation as a threat to the promotion of those goals.142 There is no credible evidence to support Pixley's claim, however, and there seems every reason to believe that the lawsuit was as the Daily Alta put it, a Chinese-sponsored test case.143 The merchant leaders of the community certainly had every incentive of their own to contest the tax, the onus of complying with which, for all practical purposes, would fall on them. We know through the Reverend Loomis that they had followed the 1862 legislative proceedings very closely and with much dismay. In February he wrote to Philadelphia that the Chinese were in "a great ferment" about the several measures, then pending, to impose new taxes on them.144 More to the point, the day after Lin Sing filed his complaint, the Sacramento Record-Union reported, "The several Chinese organizations in this city and state are making arrangements to test in the Supreme Court [emphasis added] the constitutionality of the Police Tax Law." It went on to say that the Sacramento Chinese were negotiating with a local law firm to represent them.145 The reference must surely have been to the just initiated case.

Lin Sing , like Downer , raised important questions concerning the respective power of the state and federal governments in foreign trade and commerce regulation, questions that were still rather unsettled at thetime. Arguing the state's case before the court, Attorney General Pixley146 contended that the California act was a legitimate exercise of the state's police power and constituted no interference with the national power to regulate foreign commerce. He argued that the measure affected the Chinese only after they had landed and taken up residence. Having left their ships, he maintained, the Chinese had left the domain of foreign commerce (and thus the realm of exclusive federal jurisdiction) and had become "part and parcel of the inhabitants of the State."147 As such, they were subject to state taxation. "The Police of the ocean belongs to Congress. The Police of the land belongs to the States," he declared.148

Relying on Chief Justice John Marshall's opinion in the 1827 Supreme Court case, Brown v. Maryland ,149 and the opinion of the Court in the 1849 series of cases known as the Passenger Cases ,150 the California court concluded that the police tax did in fact interfere with the exclusive federal power over foreign commerce and was for that reason void. In Brown , the Supreme Court had struck down a Maryland statute that required all importers of foreign goods by bale or package to take out a license before they could sell the contents.151 The Court had held that the statute violated the ban on collection of duties by states and interfered with the federal power over foreign commerce. The law purported to operate on goods only after they had come ashore and had thus left the stream of foreign commerce. According to Marshall, however, the right to import included the right to sell, and a tax on the right to sell imported goods was the equivalent of a tax on imports that the states were forbidden to assess.152 In the Passenger Cases the Court had voided New York and Massachusetts statutes taxing alien passengers arriving in the respective states. A state, it said, could not tax a foreigner for the privilege of coming into the state.

The California court read the two cases as standing for the proposition that no state law could interfere in any significant way, directly or indirectly, with the exercise by the national government of its exclusive power over foreign commerce, which to the court included foreign immigration.153 The law here in question (a "measure of special and extreme hostility to the Chinese," the court called it)154 had the necessary tendency of diminishing immigration from China and general commercial intercourse with that country. That indeed, its caption made clear, was its purpose. But commerce with China was a subject of interest to the entire nation and for that reason was within the exclusive regulatory authority of Washington. The Chinese could be taxed as other residents, but they could not be set apart as special subjects of taxation.155 The court saw Brown as support for the proposition that the mere arrival on shore ofarticles of foreign commerce or, in this case, of immigrants, did not suddenly remove them from scrutiny under the foreign commerce clause of the U.S. Constitution.

Chief Justice Field wrote a dissent in which he argued that once the Chinese had landed and taken up residence in the state they had ceased to be part of the stream of foreign commerce and were subject to whatever taxes the state might choose to impose on them.156 He also wondered how the court could nullify the police tax on the grounds offered without also overruling People v. Naglee ,157 which had validated the first law requiring foreigners to pay a license tax for the privilege of working in the mines. It was an interesting question, and indeed another was whether the majority's rationale would not also dictate an overturning of the discriminatory tax imposed on Chinese miners. A possible distinction between the two taxes that the court did not go into was that payment of the miners' tax was made a condition of plying that trade while payment of the police tax was being made a condition of one's very residence in the state.

Lin Sing v. Washburn was the first case in which a Chinese resident of the United States sought to invalidate a state enactment on the grounds that it violated the Constitution or laws of the United States. It would certainly not be the last.

Hints of Hope in the Middle 1860s

The years immediately following the Lin Sing decision brought other developments encouraging to the Chinese. In 1865 the California Supreme Court handed down an opinion that narrowed in a small but significant way the scope of the laws prohibiting Chinese testimony. In People v. Awa ,158 the court reversed a Chinese appellant's manslaughter conviction on the grounds that a Chinese witness who had wished to testify on his behalf had been unable to do so because of the 1863 statute forbidding Chinese testimony against white persons. Writing for the court, Justice Lorenzo Sawyer ruled that the statute ought to be construed strictly, as he put it, "in favor of life, liberty and public justice."159 It only prohibited a Chinese person from testifying against a "white person," he noted, and the opposing party in the case, the state, clearly was not a "white person."160

In a related development clear signs began to appear around this time that a significant segment of the public was willing to support repeal of the ban on Chinese testimony, at least in criminal cases. Editorials in major newspapers urging repeal began to appear with some frequency,161 and in 1867, a measure was introduced in the legislature, to a chorus of wide editorial support, to reverse the ban. When in January 1868 the statesenate voted overwhelmingly in favor of repeal, the Daily Alta expressed the hope that a bill to permit testimony in civil cases would soon follow.162 Even when the measure failed in the assembly, disappointment with the result was accompanied by confidence that the measure would be reintroduced and passed eventually.163

Overshadowing all of these developments was the completion of negotiations in 1868 of a new treaty between the United States and China.

The Burlingame Treaty

In 1867, China asked Anson Burlingame, U.S. minister to the Manchu Court in Peking, to head a goodwill mission to the United States and other western countries.164 The request was extraordinary, but Burlingame, by his tact and evident sympathy for China, had won the confidence of the Chinese Imperial Court, and so was entrusted with this important assignment. Burlingame and two Chinese envoys arrived in San Francisco in April 1868 and proceeded to make their way across the country to Washington amidst great fanfare.165 The visit resulted in an agreement between the United States and China to reexamine the 1858 Treaty of Tientsin, which both sides thought was in need of revision.

An amendment to the Treaty of Tientsin was signed in Washington in July 1868. (Official exchange of ratifications would come the following year.) Ever since known as the Burlingame Treaty,166 it contained two provisions of particular significance to the Chinese in California. An article was added in which both countries recognized "the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively for purposes of curiosity, of trade, or as permanent residents."167 This provision was included at the insistence of the Americans and ran counter to the Chinese Empire's age-old prohibition against the emigration of its subjects. It could only have been interpreted by the Chinese as a ringing endorsement by this country of continued Chinese immigration.168 Another article provided that "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."169

There is evidence that the Chinese in California followed the treaty negotiations with considerable interest and greeted with enthusiasm the prospect of receiving greater protection from its more liberal terms.170 Upon learning of the treaty terms the Chinese foreign office itself expressed to Burlingame its hope that after the treaty was put in force "the Chinese in California will cease to be subjected to the ill treatment theyhave hitherto met with."171 The treaty, finally, attracted favorable comment in certain sectors of the Caucasian community. The Daily Alta , a few days after the signing, expressed the opinion that the "most favored nation" clause might mean the end of the ban on Chinese testimony.172 The Reverend Speer, living in retirement in New York but still intensely interested in the Chinese in America, predicted that the treaty would "sweep away the legal disabilities to which the Chinese have been subjected on the Pacific Coast" and "permit them to obtain the sheer rights of humanity."173

Chinese Testimony and the Fourteenth Amendment

Eventually the "most favored nation" provision of the Burlingame Treaty would prove to be an enormous boon to Chinese litigants, especially in the federal courts, but the full impact of the clause was not to be felt for some time. In the meantime a few California prosecutors were trying to use another provision of federal law to pry open the courtroom door for Chinese witnesses. This was the equal protection clause of the Fourteenth Amendment, an amendment that was added to the Constitution in the same month that the Burlingame Treaty was signed. That clause forbade the states from denying to any persons within their jurisdiction the equal protection of the laws.174

San Francisco Assistant District Attorney Davis Louderback had been looking for an opportunity to test the validity of the California statute barring Chinese testimony under the equal protection clause of the Fourteenth Amendment ever since Secretary of State William Seward certified without reservation that the amendment was a part of the Constitution on July 28, 1868. One presented itself in December when a Chinese man was stabbed on a San Francisco street. There were no white witnesses to the incident, and so the prosecution's case rested entirely upon the testimony of the victim. Louderback initiated an action against the assailant in the police court of Judge R. R. Provines and offered the testimony of the Chinese victim in support of the charge. The defense of course objected on the grounds of the California statute. Louderback countered that the statute, which he described incidentally as "a relic of by-gone barbarism" and "a disgrace to our age and times," was void under both the equal protection clause of the Fourteenth Amendment and the Civil Rights Act of 1866, which conferred equal civil rights on all American citizens irrespective of race or color. The newspaper accounts of his argument in court fall to make clear all of its details, but the gist of it appears to have been that the equal protection clause was intended to be construedvery broadly, that is to say to cover Chinese, and that a denial to a victim because of race of the right to testify against an assailant was a denial of equal protection. He contended that the Civil Rights Act covered the case as well inasmuch as the second section of the act prohibited "any person" from depriving "any inhabitant" of a state of the substantive rights secured by the act's first section, among which was the right to give evidence on terms of equality with whites.175

Judge Provines seemed impressed with Louderback's argument but at the same time indicated a reluctance to accept it and take the bold step of nullifying the state statute. He noted that some of the very issues Louderback was raising were due to be addressed shortly in a case then pending before the California Supreme Court, a case which he thought might very well vindicate the right of all to testify.176 Opting for the more cautious course, he decided not to admit the testimony.177

The following month the California Supreme Court proved wrong Judge Provines's expectations and disappointed as well the hopes of those who thought that the tribunal might continue to be a pathfinder of sorts in the cause of Chinese civil rights. In People v. Washington ,178 a curious case, the defendant, a mulatto, had been indicted for the robbery of one Ah Wang, solely on the testimony of Chinese witnesses. Counsel for the defendant moved successfully to set the indictment aside, and the matter went up on appeal. The Supreme Court affirmed on the ground that the Civil Rights Act of 1866 had placed all citizens (and the act had declared all persons born within the United States and not subject to a foreign power to be U.S. citizens) on a level of equality before the law with respect to their personal liberty. The law provided, in pertinent part, that citizens of every race and color, without regard to previous condition of servitude, should have "the same right, in every State and Territory, to make and enforce contracts, to sue, be parties, and give evidence ... and to the full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."179 If white citizens could under California law exclude Chinese testimony, then blacks, like the defendant, born in the United States, could avail themselves of the same privilege.180

There was, to be sure, in the language of the opinion something of a nod in the direction of the Chinese. The court raised questions, rhetorical at bottom, about the validity, under Article I, Sections 11181 and 17 of the California Constitution, of banning Chinese testimony in criminal cases. And it also suggested that the Fourteenth Amendment's equal protection clause might have some bearing on the issue.182 But the court refused to go any further, and the opinion is devoid of any real reflection of theironic injustice it was working on one minority group in the effort to vindicate the rights of another. And, on balance, the Chinese could only have perceived the decision as a serious blow to their hopes.

The Washington decision did not, however, end legal skirmishing over the admissibility of Chinese testimony in the courts of California. In June 1869 Louderback appeared again in Judge Provines's court, this time assisted by a private attorney, Daniel J. Murphy, to press the case for admissibility. The defendant in this criminal prosecution was charged with assault and battery, and Louderback again offered the testimony of a Chinese witness. This time counsel's argument rested entirely on the Fourteenth Amendment. The amendment, he contended, had extended the protections of the Civil Rights Act of 1866, which he now acknowledged covered only blacks, to all races and placed all races on a level of equality. Judge Provines, however, again refused to receive the witness's testimony, saying that such a decision would cause too much confusion, given the pronouncements of the higher court.183

In the fall of the same year significant cracks began to appear in tile wall of inadmissibility, first on the civil side of the docket and then on the criminal side. Welch v. Ah Hund , was a civil action for damages that had been brought in the Fourth District Court of San Francisco. It grew out of an alleged breach of contract by the defendant, a Chinese resident of the city. Counsel for the defendant sought to tender his client as a witness, arguing (he perhaps took his cue from the Washington dicta) that the law preventing Chinese from testifying against whites in civil cases violated both the equal protection clause of the Fourteenth Amendment and Article I, Sections 11 and 17, of the California Constitution. Surprisingly, the court agreed with the Fourteenth Amendment argument and ruled that the testimony should be received.184 More important, a third effort by Assistant District Attorney Louderback in Judge Provines's police court ended in success.

In November two whites were arrested for robbing a Chinese man on the street. The Chinese victim was the only witness to the attack, and Louderback, conscious no doubt of Judge Provines's sympathies as betrayed by his comments in his court on previous occasions and willing to make one more effort in that forum, filed charges against them. He again brought in private counsel, the firm of Darwin and Murphy, to assist him and left the argument concerning the Fourteenth Amendment to attorney D. J. Murphy.185

Murphy's argument was the most elaborate yet made on that head. The language of the equal protection clause was as broad and comprehensive as could be, he declared. Protection was granted to all , even to thosewho did not enjoy the immunity of citizenship, and equal protection included the equal right to testify in court. In support of this view he adduced a passage from a speech made by Senator John Conness of California during the debates on Section 1 of the Fourteenth Amendment. In the context of a debate on the wording of the section, which then already contained the equal protection clause in its present form, Conness had described the abuses the Chinese were subjected to in his state as the necessary consequence of being barred from testifying against whites. He then went on to say, "I am very glad, indeed, that we have determined at length that every human being may relate what he heard and saw in a court of law when it is required of him and that our jurors are regarded as of sufficient intelligence to put the right value and construction on what is stated." The passage, Murphy declared, showed that the specific question of Chinese testimony had been raised and discussed during the debates and supported the broad reading of the amendment's coverage for which he was contending.186

Turning to the term "protection," it implied, he said, the security of property and person against violence coming from any source. It also implied that there should be some means of vindicating the right. But the right to this protection would be meaningless if one could not speak against one's attacker in a court of law. Murphy even sought to invoke the authority of People v. Washington to support his cause. He argued that the tenor of that decision, although the right of the Chinese to testify was not before the court, suggested that the Fourteenth Amendment had knocked down all barriers to testimony on racial grounds.187

A little over a week later Judge Provines yielded to the logic of the prosecution's reasoning and reversed himself on the question of the admissibility of Chinese testimony in criminal cases. He agreed that the phrase "any person" in the Fourteenth Amendment's equal protection clause was broad enough to include Chinese and that the law, in denying Chinese the right to enforce the law's protection by testifying against those who did them harm did not accord them the same quantum of protection that it accorded to whites. "If the one class [whites] has the ability or capacity to have the law enforced and the other has not, certainly protection [emphasis in original] is not equal to the two."188 He allowed as well how in his view even in a civil suit between a white and a Chinese litigant equality of protection was denied if the former could testify while the latter could not.189 Curiously, Provines sought to limit his holding to the rights of victims of crime or civil litigants to testify themselves against persons of another race. He did not wish to be misunderstood to be saying, he stressed, that Chinese or Indians190 were generally competent to testify. Equal protection was sufficiently served if "neither the white person, on the one hand, nor the Chinaman or Indian on the other is permitted to call Chinaman or Indian in his behalf as against the other."191

Judge Provines's ruling, notwithstanding its curious understanding of equal protection, was the first to say that the Chinese came under that provision of the Fourteenth Amendment. But it had come from the lowest-level court of record in the California system and, unless endorsed by a higher tribunal, could be of only limited utility. For whatever reasons, the ruling was not appealed, and so the occasion did not arise for a higher court to speak. The stage was set, however, for a more authoritative decision on the relevance of the Fourteenth Amendment to the question of Chinese testimony in late March of the following year. On March 24, 1870, the county court of San Francisco, Judge Delos Lake presiding, was presented with the question of the admissibility of Chinese testimony in another criminal case. The court, in order, as it made clear, to get an authoritative decision on the issue from the California Supreme Court, ordered the testimony admitted. The defendant was convicted, and the matter went up on appeal to the high tribunal, with briefs submitted not only by counsel for the appellant and the state attorney general but also by the firm of Darwin and Murphy, of counsel to the state.

The main brunt of the state's case was carried by the private firm, which submitted a closely-argued thirty-eight page brief expanding on the argument made in the November case in Judge Provines's police court. The state attorney general's brief made essentially the same points. The thrust of both briefs was that the criminal law did not offer the same protection to the potential Chinese victim of crime as it did to the potential white victim and that as such it amounted to a denial of the equal protection of the law, guaranteed to all by the Fourteenth Amendment.192

The California high court did not rule until January 1871, handing down a decision that can best be described as a hollow exercise in formal logic. The law afforded whites and Chinese exactly the same degree of protection, wrote Justice Jackson Temple for the court. "If a crime be committed against the person or property of a Chinaman," he declared, "that same punishment is meted out to the criminal when convicted, as though the crime had been committed upon a white man."193 Further, each could take advantage of the same means of proof. Both could use the testimony of whites to convict white defendants. Neither could use the testimony of Chinese witnesses.194 "The law," he said, "dispenses equal justice to all."195 Counsel for the state had pressed the point thatinequality could surely be found in the fact that when the victim was the only witness, the white man could testify against his assailant whatever his race while the Chinese man could not. But Temple said he found no force in this argument. White victims were permitted to testify against their assailants not because they were victims but because on other grounds they were considered to be competent witnesses. Chinese victims were not permitted to testify because on other grounds their testimony was considered to be unreliable. The fact that both were the victims of criminal conduct was immaterial to the discussion. The Chinese victim's disadvantage was one shared by all who were so circumstanced as to be surrounded at the time of the criminal act by persons incompetent to testify.196 Judge Temple concluded his opinion with a lengthy discourse on federalism, saying that he could not imagine that the proponents of the Fourteenth Amendment intended it to allow the sort of interference in the internal police affairs of the state, including its discretionary control over trial procedure, as seemed called for by the respondent's argument.197 One justice dissented, saying that he thought the California act had clearly been abrogated by the passage of the Fourteenth Amendment.

To their credit, several newspapers castigated the high court for its Brady decision. "We regret this decision for it opens the door to abuses of the very worst kind," said the San Francisco Chronicle . "It places Chinamen outside the protection of the laws of the State, and leaves them to hold their lives at the sufferance of the roughs and rowdies."198 "It was bad enough ... that a set of demagogues at Sacramento should enact such a law," the Daily Alta declared, "but it is heaping double disgrace on the State to have it upheld on moral grounds by our Supreme Court."199 And in a later issue it associated itself with a recommendation of the New York Tribune that the question of Chinese testimony be brought up to the Supreme Court of the United States for review.200

There was no discussion in the Brady case of the possible applicability of the recently enacted Civil Rights Act of 1870 to the question before the court. But that act, passed by Congress two months after Judge Lake's trial court ruling and while that ruling was on appeal, had in fact opened up another clear avenue of attack on California's ban on Chinese testimony. The events leading up to the act's passage provide confirmation once again of the political awareness of the Chinese.

The Civil Rights Act of 1870

An opportunity to bring their grievances directly to the attention of representatives of the federal government presented itself to the Chinese leadership in June 1869. In that month the House Ways and Means Committee, accompanied by Senator Roscoe Conkling and ex-Senator Benjamin Wade (Wade was at the time one of the government-designated directors on the board of the Union Pacific Railroad) visited San Francisco as part of a fact-finding tour of the West Coast.201 On June 25, while in the city, the congressional delegation met with representatives of the Chinese community and with several leading Caucasian merchants and bankers. Journalists were also present.

At the meeting, Fung Tang, a prominent merchant, delivered a prepared address on behalf of the Chinese community. He began by praising the year-old Burlingame Treaty, though he emphasized that the Chinese were still waiting for the just and equal protection it seemed to guarantee. (Fung's complaint was, technically speaking, premature. Though the treaty had been signed by both countries and ratified by the United States, it had not yet been ratified by China and so had not yet entered into force.) He held out the promise of greatly increased commercial intercourse between China and the United States,202 but made it clear that such a development was contingent on relief from the unjust laws under which the Chinese were suffering. He then stressed three points. First he expressed the opinion that the miners' tax violated the provisions of the Burlingame Treaty. The Chinese were willing to pay taxes cheerfully when taxed equally with others, he declared but disliked being singled out for taxation. Second, he expressed the view that the commutation tax was unfair and inconsistent with America's claim to be a free country. Finally, there was the ban on Chinese testimony. This civil disability was the sorest point of all, for it left the Chinese defenseless with respect to their lives and property and "unable to obtain justice" either for themselves or for others. Fung also entertained questions from the Congressmen, and he concluded with a plea to them to "speak favorably of us to the United States Government."203

The congressional delegation appeared moved by Fung's presentation and sympathetic to his complaints; but it promised nothing in the way of concrete action, offering only the hope that the Chinese grievances "like others growing out of the prejudices of men, would be corrected with the advance of public sentiment."204 But on December 6, 1869, the opening day of the congressional session, Senator William Stewart of Nevada (the same Stewart who as district attorney of Nevada County, California, had prosecuted the case of People v. Hall ) introduced a resolution:

That the Committee on the Judiciary be requested to inquire if any States are denying to any class of persons within their jurisdiction the equal protection of the law, in violation of treaty obligations with foreign nations [emphasis added] and of section one ofthe fourteenth amendment to the Constitution; and if so, what legislation is necessary to enforce such treaty obligations and such amendment, and to report by bill or otherwise.

Stewart's resolution initially received unanimous approval but upon motion of Senator Sumner was laid on the table pending the constitution of Senate committees.205 Stewart raised the question of discrimination against the Chinese again on December 22 in connection with discussion of a bill, introduced by Senator Williams of Oregon, to regulate Chinese immigration. Stewart proclaimed his support for any measure aimed at preventing anything other than the free immigration of Chinese, but he suggested that the Committee on Commerce, while it had the Williams bill under consideration, should also "examine the police regulations that California has made." The state imposed a tax of $5 on all immigrants from China, he said, and this was unfair and discriminatory. Congress should legislate to prevent California from imposing "any undue or unreasonable burdens upon these people."206 And the following month he introduced a bill207 that addressed most of the concerns that Fung had raised in his meeting with the congressional delegation. It provided in pertinent part:

That all persons within the jurisdiction of the United States, Indians not taxed or excepted, shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishments, pains, penalties, taxes, licenses, and exactions of every kind and none other, any law, statute, ordinance, regulations, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person emigrating thereto from a foreign country which is not equally imposed and enforced upon every person emigrating to such State from any other foreign country, and any law of any State in conflict with this provision is hereby declared null and void.208

The opening language, while very similar to Section 1 of the Civil Rights Act of 1866, went further and extended basic civil rights, including the all-important right to give evidence in court, to all persons , that is to say not just citizens, within the jurisdiction of the United States. The requirement at the end of the first sentence that all persons be subject to "like ... taxes, licenses, and exactions of every kind," along with the requirements of the last sentence, assured that the Chinese would be freedof the burden of special fiscal legislation such as the Foreign Miners' License Tax and the police tax.

In his speeches on the floor of Congress, Senator Stewart made it quite clear that his bill was intended for the benefit of the Chinese. Thus oil May 20, 1870, he said in explanation of the measure, which in the meantime he had incorporated into a voting rights bill that he was sponsoring:

We are inviting to our shores, or allowing them to come, Asiatics.... For twenty years every obligation of humanity, of justice, and of common decency toward these people has been violated by a certain class of men—bad men.... It is as solemn a duty as can be devolved upon the Congress to see that those people are protected, to see that they have the equal protection of the laws, notwithstanding that they are aliens.... If the State courts do not give them the equal protection of the law [emphasis added], if public sentiment is so inhuman as to rob them of their ordinary civil rights, I say I would be less than a man if I did not insist ... that this provision shall go on this bill ... and that we will protect Chinese aliens or any other aliens whom we allow to come here, and give them a hearing in our courts [emphasis added]; let them sue and be sued; let them be protected by all the laws and the same laws that other men are.209

And a few days later, he declared:

There are other provisions in it relating to other subjects [besides voting rights]; and for them I congratulate the country, particularly those provisions which extend the strong arm of the Government to the protection of the Chinese [emphasis added]; those provisions which protect those industrious, helpless people whom we have invited to our shores; those provisions which go at this late date to wipe out to some extent the infamy that rests upon this nation for having invited the Asiatics to come here, having made treaties for their protection, and then allowed a State in this Union to pass barbarous and cruel laws, to place upon them unjust and cruel burdens, to tax them differently from other people, and collect that tax in a brutal manner.210

What precisely motivated Stewart to introduce his measure and work so vigorously for its enactment is difficult to determine. As a man who had lived many years in the California mining districts, Stewart was of course intimately familiar with the discrimination and mistreatment the Chinese were subject to.211 As attorney in the Hall case he had in fact fought to persuade the California Supreme Court to permit the Chinese to testify in the state's courts. But he represented a state whose whitepopulation was showing signs of becoming almost as bitterly anti-Chinese as was the white population of California. And in the previous session, he had vehemently opposed a bill introduced by Charles Sumner to naturalize all Chinese residents in the United States. Part of the explanation may be that Stewart had close connections with Collis P. Huntington of the Central Pacific Railroad and had done favors for the railroad during his first term.212 Even though the transcontinental railroad had been completed by this time, the Central Pacific continued to employ Chinese laborers on other projects and may have wished to promote continued Chinese immigration or encourage Chinese already here to stay. But this is all highly speculative. As his principal biographer makes clear, and as we shall see later on, Stewart was a man who often spoke out of both sides of his mouth on public policy questions, the Chinese question included.213

Congress eventually enacted Stewart's measure into law, with minor changes, as Section 16 of the Civil Rights Act of 1870.214 While the over-riding purpose of that act was to protect black voters in the South in the exercise of the franchise and other civil rights, no one in Congress could have had any doubt that Section 16 was aimed at securing the rights of the Chinese. This was equally clear to many outside of Congress, it may be noticed. The San Francisco Examiner , for example, a bitterly anti-Chinese paper, delivered itself of a jeremiad against the legislation, describing its sponsor, Senator Stewart, as "a rotten-borough demagogue and panderer to capital" and complaining that Stewart's bill placed the Chinese on precisely the same footing as whites. "Under [Section 16 of the act] no State legislation can apply to a Chinaman which does not apply equally to all people," it declared. "The Radicals have legislated to encourage coolie labor," it went on, "and until the party in power repeal their infamous legislation and treaty and leave the States to discourage Chinese immigration by hostile legislation, it will be in vain for them to say they do not favor it."215

Aftermath of the Civil Rights Act

Notwithstanding the to all intents unambiguous language of Section 16 of the Civil Rights Act of 1870, state officials continued to demand the Foreign Miners' License Tax from Chinese miners after the act's passage, and the state's courts continued to be unwilling to admit Chinese testimony against whites. Efforts undertaken by government officials and by private individuals to enforce the act's provisions met with mixed results.

The federal government moved relatively quickly and with effect to put an end to the practice of discriminatory taxation. On December 10, 1870, a federal grand jury in San Francisco returned an indictment againstthe sheriff of Trinity County for exacting the sum of $4 from Ah Koo, a Chinese miner, in violation of Section 16. The sheriff was eventually convicted of the offense, but no sanction appears to have been imposed, probably because on the day final judgment was entered the sheriff filed an affidavit with the court stating that he had ordered his deputies to cease collecting the tax.216 When it was discovered that the practice was persisting in another rural county, El Dorado, the U.S. attorney in San Francisco not only secured another indictment but went to the length of having the sheriff arrested and brought to the city for trial.217 These actions seem to have served as a sufficient deterrent to future attempts to collect the tax.

In May 1871 two prominent members of the Chinese community, involved in civil lawsuits, sought to avail themselves of the privilege that the 1870 federal act had seemingly conferred on them with respect to testimony in court. Li Po Tai, a Chinese herbal doctor with many Caucasian patients, brought a claim for $231 in unpaid bills against a white man in a San Francisco trial court. The first newspaper reports of the launching of the civil action said that the plaintiff was bringing it as a test case. He intended to offer himself as a witness, it was said, and if refused would either seek to have a criminal prosecution brought against the judge under the criminal provisions of the Civil Rights Act of 1870 or would himself bring a civil suit for damages against the same magistrate under the just-enacted Civil Rights Act of 1871.218 When during the proceedings plaintiff's counsel tendered his client as a witness in his own behalf and was met with the familiar statutory objection, he countered that the California law was in contravention of the Constitution "and the several Acts of Congress to enforce the civil rights of all persons within the jurisdiction for the United States." When argument turned to the Brady case, counsel noted that the California Supreme Court ruling pre-dated the Civil Rights Act of 1870 and was therefore not binding on the court. The court took the question under advisement and seemed prepared to rule on it, but before it could, the parties, according to the press, agreed to settle the case thus making the matter moot.219

Later in the month another Chinese herbal doctor, involved in a case as a civil defendant, again raised the civil rights issue and this time the court was allowed to render a decision on the claim. Garrett v. Lou Ci Tat was a medical malpractice action brought by a Caucasian patient in justice court against the defendant Chinese physician for failure to cure him as promised. At the conclusion of the plaintiff's presentation of his case, counsel for the defendant offered his client's testimony and when the judge initially refused he argued that the magistrate was subjecting himself to liability "under the Ku Klux Act" (the Civil Rights Act of 1871.) This argument was persuasive enough to cause the court to reverse itself and permit the Chinese physician to testify.220

A justice court decision in a civil case was of course of little precedential value. That was made manifest a few days later when a police court signaled its unwillingness to follow the decision and refused to admit the testimony of a Chinese who claimed he had been robbed by a white man.221 And in March 1872, the Twelfth District Court in San Francisco, a higher level trial court, declined, citing the Brady case, to hear the testimony of a Chinese woman against a Caucasian murder defendant. The proponent of the testimony, interestingly, was Daniel Murphy, since 1870 the district attorney for San Francisco.222 Murphy told the local press that he intended to appeal the ruling to the state supreme court and took the first step in that direction by filing a notice of appeal.223 One suspects that an argument focused narrowly on the applicability of the 1870 Civil Rights Act (as opposed to the Fourteenth Amendment) to the question of Chinese testimony might well have persuaded the California high court to reverse its stance. In the event, the effort was rendered unnecessary by the actions of the California legislature. A revision of the state's penal and civil codes, enacted in 1872, eliminated the ban on Chinese testimony in criminal and civil proceedings.224 Whether the legislature felt that it was but succumbing to the inevitable is impossible to say.225

Continues...

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Excerpted from In Search of Equality by Charles J. McClain Copyright © 1996 by Charles J. McClain. Excerpted by permission.
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