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THE CHINESE MUST GO!!!--The debate over the California Constitutional Convention, 1878-1879 (University)

by Roland Marchand
Topic(s): Immigration, Chinese

Table of Contents


In 1849, California gold had drawn Chinese immigrants, and thousands of other non-Americans, to seek their fortune and to stay on the Pacific Coast. The Chinese exodus increased with the outbreak in 1851 of the Taiping Rebellion against the Manchu dynasty. A fifteen year civil war forced many Chinese to find homes elsewhere. Twenty-five thousand Orientals were counted in California just three years after the gold rush. With this influx came racial conflict. Prejudice found its way into legislation in Sacramento: in 1852, a foreign miners tax was re-enacted with the clear understanding that Chinese would bear the major burden -- a three-dollars-a-month levy. In People vs. Hall, the California Supreme Court declared that Chinese, in addition to Indians, were to be barred as witnesses in American courts and denied various other civil rights. Such a decision derived from the federal law of 1790 which permitted citizenship only to "free white persons." So Orientals could never become American citizens although their immigration to the United States was permitted. Such a "twilight zone" for a growing number of residents caused many problems. The legislature tried to stem the flow of Chinese in 1855 by charging an entry tax of $50 on persons unable to become citizens. Such legislation was declared unconstitutional along with an 1858 law which flatly prohibited the landing of Chinese. California lawmakers seemed determined to block the Chinese, but the courts remained firm.

American diplomacy further restricted the legislature's powers over the Chinese. Europeans and Americans had forced a series of treaties, mostly commercial, on China during the years after 1839. The capstone of the American effort to open China came in 1868. Anson Burlingame had won the confidence of the Chinese Emperor after a stay of six years. He then negotiated an encompassing treaty which provided that China would not be overrun by Europeans. It also opened new trading centers. The most important provision of the treaty for Californians reads as follows:

Citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities, or exemptions, in respect to travel or residence, as may there be enjoyed by the citizens or subjects of the most favored nation; and reciprocally, Chinese subjects visiting or residing in the United States, shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence, as may there be enjoyed by the citizens or subjects of the most favored nation. But, nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States.

Meanwhile, pressures were growing on the Pacific Coast. Substantial numbers of Chinese had come to California during the eighteen sixties - to mine abandoned fields, to work on farms, and especially to build the transcontinental railroad. The census of 1870 shows 49,310 Chinese in California, though this seems low. They composed 23.3% of the foreign born population. As the seventies began, many Chinese were moving from eastern California to the bay area. Only the Irish were more numerous in San Francisco by 1875 and the Chinese were catching up. Twenty-two thousand arrived during 1876 alone!

Such a situation was explosive. Mob violence against the Chinese had become frequent since 1871, though it proved ineffective in driving them out. As long as American workers were not directly challenged by Orientals, such incidents remained largely the work of outright racists. But the Depression of 1873, which became serious in California by 1876, led many Californians to blame the Chinese for low wages and unemployment. The times were discouraging. Nevada Comstock lode stocks broke sharply in 1875. The Bank of California closed its doors that year, and its President -- the renown William Ralston -- swam into the Bay to his death. Thousands of Americans poured into San Francisco looking for jobs, and, finding none, looked for "those responsible." They found the Chinese. The 1877 railroad strike in the eastern states ignited a week of rioting in San Francisco, mostly against Chinatown. A dozen Orientals were killed, and hundreds of buildings were gutted by fire. The entire city became deeply frightened, especially the Chinese who literally huddled together against the blind force of these avenging Americans. Such violence, however, only seemed to strengthen the determination of the Chinese to stay. Those insisting on their exclusion next turned to legal means.

Their opportunity came in 1878 with the calling of a California Constitutional Convention. The election for delegate seats was an, exciting one. The Workingman's Party of California had been founded one year earlier on the specific platform that "The Chinese Must Go!" The party’s meteoric rise to political power worried Democrats and Republicans who joined together in a Non-partisan front to nominate Convention delegates. The election in June, 1878, gave the Non-partisans seventy-eight seats and the Workingmen fifty-one. Eleven Republicans and ten Democrats won independently. Almost all delegates agreed that something had to be done about "the Chinese problem."

The debate over the Chinese was heated and wide-ranging. No other single issue consumed more time in the Convention. The debate provides a good summary of twenty years of legal, economic, social, and intellectual conflict over Oriental immigration into California. It is a major chapter in the history of bitter prejudice in America. The following documents come from the three volume transcript of the 1878-1879 convention.


As a young and promising historian, you have decided to write a history about the attitudes toward the Chinese. You selected the Constitutional Convention of 1878 as a convenient summary of these attitudes. You want to identify and analyze a few important issues. Naturally, (1) you can't tell everything [five pages of double spaced typing is maximum] (2) you need to deal with what is "between the lines," not just who said what.

Investigation Questions

The following questions may help to focus your thinking as you re-read the documents:

  • Why was "coolieism" believed to be such a gross evil? Why did the Chinese ghetto cause such anger?
  • What reasons do Stuart and Shafter give for defending the Chinese [Documents 14 through 18]? Are there important differences between their positions?
  • Are certain attitudes associated with the various socio-economic groups among the delegates? If so, why?
  • "Social Darwinism" was a Popular method of interpreting history at this time. Can you find evidence of Social Darwinism among these statements? If the Chinese were more rugged and better workers than the Anglo-Saxons, how could Americans be "the fittest?" Using these speeches, try to identify some of the problems in applying Darwinism to the social realm.
  • Despite spirited objections from a few, the Convention developed an overwhelming consensus that California had to take stringent action against the Chinese. The main problem (as documents 6, 20-25 show) was a purely legal one: how could the State of California prevent immigration or remove Chinese already here if they were guaranteed certain rights by the Federal government? If you were sitting on the Supreme Court when the California constitution came up for judgment, how would you answer the legal points made by Beerstecher in document 22?

These questions are not meant to confine you but to serve as examples of ones worth considering. In choosing your own approach, remember that you are trying to write a smooth, integrated explanation of why these Californians felt and acted as they did. You need not read anything beyond these documents for this project. Good luck.

DOCUMENT #1:  Memorial on the Chinese, adopted by the California Constitutional Convention, December 17, 1878.

Many actions against the Chinese were proposed. The first adopted was a Memorial to the Congress in Washington

"As became a people devoted to the National Union and filled with a profound reverence for law, we have repeatedly, by petition and memorial ... sought appropriate remedies against this great wrong... Meanwhile this giant evil has grown and strengthened and expanded; its baneful effect upon the material interests of the people, upon public morals, and our civilization, becoming more and more apparent, until patience is almost exhausted ... It would be disingenuous of us to attempt to conceal our amazement at the long dealy of appropriate action by the National Government toward the prohibition of an immigration which is rapidly approaching the character of an Oriental invasion, and which threatens to supplant Anglo-Saxon civilization on this coast ... This discontent from this cause is almost universal. It is not limited to any political party, nor to any class or nationality. It does not spring from race antipathies, nor alone from economic considerations, nor from any religious sentiment, nor from low hatreds or mercenary motive."

"Our sincerity cannot, therefore, be doubted since we are willing to forego all the benefits of commerce with China, if need be, rather than suffer the ills which this immigration must inevitably entail upon us and our descendants."

"The country being now stocked with a vigorous, intelligent, progressive, and highly civilized people, there is no need of immigration for the increase of our population..." "There is a danger of an immense increase of Chinese immigrants in the near future. The effect of the famine now unhappily prevailing in the northern provinces of China is certain to cause a migration..."

"The Chinese bring with them habits and customs the most vicious and demoralizing. They are scornful of our laws and institutions. They establish their own tribunals for the redress of wrongs and injuries among themselves, independent of our Courts, and subject the victims of such tribunals to secret punishments the most barbarous and terrible. In our cities they live crowded and herded like beasts, generating the most dangerous diseases. They introduce the ancient, infectious, and incurable malady called leprosy ... They poison our youth in both mind and body [opium]. They build no homes. They are, generally destitute of moral principle. They are incapable of patriotism, and are utterly unfitted for American citizenship."

"The system of labor, which results from their presence, is a system which includes all, or nearly all, the vices of slavery, without the conservative influence which is incident to the domestic or paternal relation between master and slave. It degrades labor to the standard of mere brute energy, and thus excludes the labor of free white men who will not and cannot endure the degradation of competition with service labor."

For weeks, the Convention debated proposals for sections of the Constitution dealing with the Chinese. The following documents present first a history (rather colored by the speaker's persuasions) of Orientals in California. Then follow documents on cultural conflict, an ardent defense, of the Chinese

DOCUMENT #2:  Delegate C. V. Stuart, December 9, 1878.

Stuart represented Sonoma County in the convention. He was a successful farmer there with a large number of acres. He had arrived in San Francisco in 1849 and traveled the state widely before deciding on agriculture. Although a Nonpartisan during the Convention Stuart was staunch Republican.

"But let me go back a little further. In eighteen hundred and fifty, I believe it was, in San Francisco, there was a celebration of the admission of California into the union... At that time sir, if I am not mistaken, the Chinamen, few as they were, were admitted to a post of honor, and they followed the officers of the State and city in the parade. From that time down to the war, every movement of our government and every movement of our State, was to induce the Chinaman to come here and to capture the Oriental trade. There were treaties made, first by force, by Porter, for he went with the Navy, next by peace, and next by Mr. Burlingame, who was at one time in the Congress of the United States. The Burlingame treaty admitted, and has since admitted, the Chinaman to our country as free probably as any other treaty that has been made among the nations. That power lies in the [federal] government. There have been steamboats between here and China subsidized, and there have been other connections made and railroads built since. The Chinese have been the laborers of this coast for almost twenty years. White men we have plenty of here...

DOCUMENT #3:  Delegate C. W. Cross, December 16, 1878.

Cross came from Nevada County. He was a young lawyer, just thirty years old at the time of the convention. He came from a prominent New England family and had attended Northwestern University. Still, Cross was elected on the Workingmen's ticket.

"Now, this word coolieism, here introduced, it seems to me, has among those who are familiar with this Chinese question in its later phases, a well defined meaning. I think the word has its origin as the Chairman stated, or very nearly so; yet this word has come now to have a very definite meaning, and is used with as exact a meaning as almost any term. Now sir, the word slavery is not a synonymous term. Coolieism is a contract by which the Mongolian is imported from his native country to some foreign country, there to work for a certain period of time to pay his passage. Now, that is the meaning of coolieism as treated even in our popular magazines ... If a Chinaman pays his own way to the United States... and there goes to work receiving his own pay, he is not a coolie... That is a Chinaman from Hong Kong is brought from China under a contract that, in consideration of being landed here, he will work a period of six years, and pay all, or a certain portion of all, that he earns during that time to those who import him, but during that time the latter will have absolute care of him, take care of him in sickness, etc.

The Six Companies [a Chinese organization] bring nearly all of the Chinamen here under such contracts. As a rule, those who want to come here go to the agents of these companies and make their arrangements with those agents. When they come over here they find out that it is a hard bargain, that they have made a hard bargain, and by the time their period of coolieism expires, a large portion of them are used up."

DOCUMENT #4:  Delegate C. C. O’Donnell, December 11, 1878.

Doctor C.C. O'Donnell likewise came from a prominent family, having Alexander Hamilton and Charles Carroll (two signers of the Declaration of Independence) for ancestors. He came to San Francisco in 1850 and stayed there. He was Active early in the "anti-coolie" crusade and was elected on the Workingman's ticket.

"Now, Mr. Chairman, I am not going to detain you but a few moments. I only want to refer to the record ... According to the Custom House report, from eighteen hundred and sixty-eight and seventy-six -- eight years -- we have drawn from that country over one hundred thousand Chinese/ Over one hundred thousand of these Chinese have come to this coast for the last eight years. Now, think of that! They have taken from this State two hundred and forty million dollars. Do you wonder at the cry of hard times in the State of California? Take one hundred and fifty thousand of these Chinese in this state, getting wages from a dollar and a half a day, and out of the dollar they send seven bits to China. Over ninety thousand dollars leaves the state every day and goes to China, never to return. They do not pay taxes sufficient..."

DOCUMENT #5: Delegate C. R. Kleine, December 10, 1878.

Kleine was a delegate from San Francisco. He had come to that city in 1854, having been born in Prussia in 1830. Between 1863 and 1873 he lived near the silver mines in Nevada. Actually, he had no "occupation:" he had been a miner, cobbler, and a Baptist minister. Although a Republican, he had been elected on the Workingman's ticket. One authority wrote that "he never smokes, drinks, or chews, and he strictly carries out the command to 'swear not at all.'"

"What have these long-faced preachers done [i.e. missionaries who have encouraged the Chinese to come to America or to be converted to Christianity]. They have driven our poor white men, our white boys, and white girls into hoodlumism. They have made our poor white girls what? Prostitutes! It is almost impossible for a poor white servant girl to find employment in a white family. No! The mistress of the house wants a Chinaman. She wants a Chinaman, why? He is very handy. She can say, "John, do this," and John does it and John never says a word. He keeps quiet; only when he goes home to his shanty in Chinatown, and then he tells all about it -- what he has seen, and what he has heard. There you can see what the missionaries have done by importing the Chinese here."

"Now, gentlemen, you remember in eighteen hundred and fifty-six there was a vigilance committee organized in San Francisco. The government said, you must not do so, but they raised it, and gave warning to these political vagabonds and loafers that they must quit, and they strung up several of these scoundrels, and the rest escaped the country, and the vigilance committee, subsided; but some of them are here today, in this State, ready to answer the call of duty again.

Now, gentlemen, is it possible that we have no protection against this curse? You say we must appeal to Congress. Haven't we been appealing to Congress for the last ten years... ? And these lawyers tell us we can't do anything. Well, I tell you to pay very little attention to what these lawyers say, because the lawyers disagree among themselves ... They can make white black and black white so pay no attention to these lawyers whatever [laughter]. .... These gentlemen have said, what are we going to do with the poor Chinaman; Better say, what are we going to do with these poor white people; Who is going to care for them? Go down to San Francisco and see these poor boys and, girls tramping the streets day after day, because they can't get work; all on account of this cheap labor. Gentlemen, don't you know what this cheap labor means? It means extravagance and luxury for the capitalists. That's what it means. We have a class of capitalists that want cheap labor, they want coolies, they want slaves. According to testimony taken before the [1876 California Legislature's] Commission, these Chinamen can live on eight cents a day. That's what capital wants. They want to bring us down to the level of the coolie himself, to a level with slave labor."

DOCUMENT #6: Delegate J. A. Filcher, December 10, 1878.

Filcher was one of the few newspaper men in the Convention. He was from Placer county, having come to California in 1858.

"I wish, if we cannot awaken them in any other way, we could transfer the whole Chinese population over to some of the Eastern States, that the people there might be brought to realize the condition of the people of California. I believe, that it is the only way the people of the Eastern States can be educated out of their sentimentalism. They look upon us as crazy on this subject, as hardly knowing what we do want... [and] that opposition to the Chinese comes from the inferior classes, and not the opinion of the intelligent classes ... The people are almost, if not quite, unanimous in their opposition to Chinese immigration, and there is no gentleman on this floor who will deny it. But the question here, today, is not as to whether Chinese immigration is an evil; the question is, what can we do? How far can we go?"

DOCUMENT #7: Delegate C. C. O'Donnell, December 9, 1878.

"They live on the offal of the slaughter houses. ...I took the reporters of the Call and the Chronicle, that nameless sheet (laughter), and the Avalanche through Chinatown, and I showed them that there were over one hundred and fifty cases of leprosy, and I wanted this to be made public and have it written up. ...They said, 'that is a leper, there is no doubt of that.’ Well, was the result? I went afterwards, and found eighteen in one house; I don't know as I should call it house; it was a hole two stories deep, one hundred and fifty feet from the sidewalk. There they were making cigars. Now, think of that. There were three lepers employed making cigars. I came to the conclusion that the only way to stop leprosy was to isolate all that portion of the city. One of the greatest medical men in this State, or in any other State, declared that inside of ten years, if we allow that Chinatown to exist as it is in San Francisco today, about three quarters of the population of San Francisco will have that leprosy..."

"Says she, [a Chinese woman] is that leprosy?" Says I, "Yes; and you have got to be very careful or you will get it." She had never dreamed what was the matter with the child. The father was a seafaring man. He came up and visited me some days afterwards. He was running up the coast, and had his foot bundled up; and parts of it, when I undid it, dropped off from leprosy ...There was a man who had a little child dying from leprosy among the white race right here in the State of California. They don't understand the disease. They say they don't see much of it around. Why? Because they don't know it when they do see it. Then you must understand that it takes six years from the time that is is inoculated into the system before it shows itself. I don't know but two thirds of this delegation here are infected with it [applause and laughter].

DOCUMENT #8: Delegate T. Harrison, December 12, 1878.

Harrison had been born in England in 1837. He had been a machinist, a seaman and a miner -- good credentials for his standing on the Workingman's ticket. Usually a Democrat, he (of course) was active in the Workingmen's party and lived in San Francisco.

"For myself, sir, the paramount and overriding question which brought me to a place in this body, and the all-absorbing idea, which I am free to say, tinctured all of my positions upon every question which is-or has yet to come before it [the Constitutional Convention], embodied in that familiar and honored slogan, now and from the first, the inherent spirit of the party of which I am proud to be called a member, 'The Chinese must go!' And upon this rock I will build my faith and neither the gates of hell or the Burlingame treaty 'shall prevail against it."'

DOCUMENT #9: J. J. Ayers, December 9, 1878.

Ayers was from Scotland. He came to California in 1849 and turned to mining. Then, as many did, he had to find some other livelihood. Ayers became a printer and then a publisher with the newspaper Morning Call. In the convention, he represented Los Angeles county.

"The evil is in the unrestricted immigration, of a race peculiar in its civilization; one that can never be digested into the body of the people; one which no process of education or contact can cause it to assimilate with us politically, socially, or morally ... one which, by its peculiar composition, has the undoubted faculty to supplant our own people and become the conquerors of our State by a process which is more potent and irresistible than the march of victorious armies through our territories, or the successful invasion of our shores by hostile fleets."

"American civilization cannot flourish by its side, for it will absorb and monopolize the means by which American civilization subsists. It is impossible for our own people and the Chinese to exist together, as it is for fire to burn in the midst of water. The law of economic forces, as applied to the social system, forbids it. If the Mongolians are to have the unlimited hospitality of our territory, then, in the conflict which must ensue for existence, they will survive and our own people perish. In this conflict they are the fittest, because the cheapest."

DOCUMENT #10: Debate Over the Chinese, California Constitutional Convention. Delegate J. H. Miller, December 9, 1878.

Miller was from San Francisco. He was a lawyer who had played an important role in Indiana politics. He had been a Bridadier General in the Union Army and came to California after the Civil War. A conservative Republican, Miller had run on the Non-partisan ticket.

"I answer, cheap labor may, under certain conditions, be in an economic sense, an advantage, but not so to us. Immigration has been a blessing to the United States; not because it cheapened labor, but because it brought within our borders, in aid of the great work of development, men who established homes, whose accumulations swelled the aggregate of the wealth of the nation; men who have become a part of the nation and contributors to Anglo-Saxon civilization... For thousands of years China has been filled to the verge with a redundant population. The life of the average Chinaman has been a mere struggle for animal existence. He bears with him the heredity of poverty and unrelenting toil for food for thousands of years. His physical organs have become adapted to insufficient food. There has been a process of selection going on in China under which the heavy feeders have fallen out, and under the law of the 'survival of the fittest' none but those who can practice the most rigid self-denial as to food remain. They have also been trained by centuries of incessant toil to procure the maximum of subsistence from the soil."

DOCUMENT #11: Delegate C. W. Cross, December 13, 1878.

"It is a question, sir, as to whether this country shall be covered by the homes of freemen of our own race or whether it shall be filled with Chinese slaves. It is a question, sir, as to whether in every hamlet there shall be a Christian church or a joss house. It is a question as to whether the future schools of this land shall be schools in which shall be taught the principles of science and progress, or whether they shall be schools in which shall be taught merely the writings of Confucius. It is more, sir. It is a question as to whether our descendants shall occupy this country, or whether it shall be occupied solely by the Chinese race."

DOCUMENT #12: Delegate J. T. Wickes, December 10, 1878.

Wickes came from Grass Valley in Nevada County. He had arrived in San Francisco in 1852 and became a miner. He then turned to teaching school. Usually he voted the Democratic ticket though was a Workingman in the Convention.

"Nature reaches the aristocracy of race, the law of nature's selection, the survival of the intellectually fittest. Culture developes the higher from the lowest types. Agriculture, floriculture, and stock raising teach us to preserve the best seed. The coming race, then, must be evolved from the white. The maintenance of this higher law should be dearer to us even than the federal Union."

"Legal" ways to drive the Chinese from California filled the Convention's discussions. The most serious suggested restrictions were:

"All Mongolians within this State shall be required to remove there from within four years from the time this Constitution takes effect. At the first session of the Legislature convened hereunder, provision shall be made for judicial proceedings to compel such removal and for the seizure and sale of so much of any property of such Mongolians who may not heretofore have voluntarily departed...

After this Constitution takes effect, no Mongolian shall carry on or maintain any business, occupation, profession, or mechanical trade for gain, or perform any usual manual labor for reward in this State...

All penalties collected under the provisions of this article shall be placed in the State treasury, to the credit of a fund to be called the Mongolian Transportation Fund. They shall be expended ... in the deportation to their native country of all Mongolians ....

All such Mongolians, as aforesaid, who shall after this Constitution takes effect, be convicted of any crime or offense against the laws of the land... [shall] be sentenced to deportation from this state."

The report of the Committee on the Chinese was a little more restrained. The Committee suggested only that Chinamen should be forbidden to own real estate, to fish in public waters, to carry on business, to be employed by any corporation, or to do any work for California State or local government. The following are speeches in response to all these suggestions:

DOCUMENT #13:  Delegate J. F. Miller, December 12, 1878

"I hold in the first place that the Chinamen have some rights of some kind. There are two kinds of domiciles. One is a political domicile entitling the party to all political privileges. Another is the social domicile, under which he has the right of social domicile, but has no political rights, but has some rights. You cannot murder him with impunity. You cannot deprive him of his property. You cannot deprive him of the right to live. He has a right to what he owns, and he has a right to what he earns; and I say the right to labor is as high a right as the right to live, because it involves the right to live; the one includes the other, because all men must live by labor. If you deprive a man of the right to labor you deprive him of the power of subsistence. A man cannot live upon air. He cannot live on water. He cannot live on the elements. He must live on something raised from the soil. Deprive him of the right to labor and he must starve. I say you cannot do that with any human creature. [I]t does not follow that we have the power to prohibit the whole nation, for they are not all of that class. There are other kinds of people. They are not all bad. They are not all paupers and criminals. And if you drive out the whole nation, declare that they are universally bad, you do something which you have no right to do. Right and reason will not sustain you. It is a violent assumption on your part which the law will not permit you to profit by."

DOCUMENT #14:  Delegate C. V. Stuart. February 1, 1879

"Mr. President: I oppose this article, and I hope every section of it will be stricken out. Such savage monstrosity has never before been penned by man. Is it for Christian men, in this enlightened age, and only for California, to commit this unnatural act of attempting the destruction, by starvation or otherwise, of over one hundred thousand men? Is there anything to be conceived more horrible or more savage? Sir, this question cannot be settled in this way. It must be done by calm, intelligent, and statesmanlike argument; and this political cry of both parties to catch the floating vote is too well understood at the East. You will find, sir, that intelligence and justice only control our [federal] government policy. Sir, since my last remarks on this subject, I see no new light thrown on this question during the long, threatening, acrimonious, and boisterous debate ...

Where is [a harsh law] written or proclaimed by man that equals this in barbarism and inhumanity? You can trace down the stream of time through all savage life, with its wars, its cruelties, and its slavery, and fail to find its equal or parallel for injustice, treachery or ingratitude. These men, after being invited to our shores, after building our railroads, clearing up our farms, reclaiming over one billion acres of our swamp and overflowed land, planting our vineyards and our orchards, reaping the crops of the small and needy farmers, gathering our fruits and berries, digging and sacking our potatoes, supplying our markets with the smaller kinds of fish from the sea, manufacturing our woolen and other goods, cleaning up the tailings of our hydraulic mines, scraping the bed rock of our exhausted mining claims, and relieving most of the householders in this State of the household drudgery which would be imposed upon our wives and daughters, thus contributing to our happiness and true prosperity. Sir, after all this, which has added many millions annually to the State and nation's wealth, you would commit treason against our Government by putting this unjust and inhuman article in our organic law. I beg of gentlemen on this floor to pause, to consider well, and not be carried away through blind prejudice, through political ambition, or through race hatred; but act like civilized, just, and Christian men; not to do an act that would shock all humane men throughout the world, both Christian and Pagan...

Sir, I have been the object of attack, both public and private, for uttering my honest convictions on this grave and momentous question. Life has been threatened; lies and slanders have been circulated. But they emanate from sources too low, too filthy, too cowardly for me to notice. Don't they know that the loss of this vast army of labor would bankrupt and overwhelm all the manufacturers and most of the producers of this State. Deprive us of them, sir, and you will have no more wool or woolen goods to warm our bodies, no more wine to cheer our lives or sustain our bodily infirmities....

Of pork, poultry, fish, and vegetables they use large quantities, and goods, for which they pay high prices; also large quantities of American manufactured goods in the way of clothing, boots, shoes and hats. And the general condition of health among them is far better in the country than among their Caucasian enemies; seldom a day's work is lost on account of sickness. The care of their person and health is almost marvelous. Every night, after their work is done, and frequently before they eat their meal, each and all go through their ablutions from head to foot, and on Sundays their bathing And washing occupy nearly half the day. What a lesson! What an example to their boasting Caucasian persecutors. It would be well for them and the country if they would copy or practice some of their heathen rites such as cleanliness, economy, and industry."

"Who are they that desecrate the Sabbath? Who form our rioters and hoodlums? And fill our alms-houses? Who are plotting to overthrow our common schools? Who stuff our ballot boxes? Who are conspiring to overthrow and destroy our Government, and to utterly stamp out liberty, that despotism over conscience, mind, and muscle may rise upon the ruins? Who constitute the Molly Magures, [a radical labor group of Irish in Pennsylvania] ? Who burn: our, railroad depots? Who threaten the lives of our best citizens? Who are plotting to despoil our wealthy men? Who claim two thirds of our public offices? Not Chinamen. Then who are they ? You may search history through all time, and examine the nation 's of the East through their rise and fall, and you will find China where it now is and has been for over five thousand years. Yet you will fail to find an instance where she has overrun or crowded out a single nation, however near--"

DOCUMENT #15:  Delegate J.M. Shafter December 11, 1878

"We may as well admit it, for it is true, the Chinaman is industrious and economical beyond the average laborer. He can do two thirds or three fourths as much as the average white man. It has been demonstrated that in heavy railroad work, selected gangs of Chinamen and Europeans, pitted against each other, [the race between the Central Pacific driving eastward and the Union Pacific driving Westward in building the transcontinental railroad] the victory was repeatedly with the Chinamen [who set a record in 1868, never matched in history, of laying over ten miles of track in one day]."

"The same objections which are now made to them, fifty years ago were urged against, at least, some European immigrants. Differences of religion, of language, of dress, and habits, were in these people considered evidences of inferiority, and indicative of danger. The true difficulty arises from the fact that between us and them there are differences of intellectual and moral character. The Chinaman, his life and motives, begin and end in himself. There is apparently in him neither sincerity nor gratitude, and as to America, no patriotism. This country is to him foreign soil."

"Other objections are made to the Chinese, that they are dishonest, filthy, etc. In these respects they are certainly a very singular people. I have said, as to fulfillment of contracts, I have found them honest up to the average, and yet paradoxical as it may seem, in almost every way, they will contrive some little sneaking advantage, laughable for its simplicity, and for the utter indifference they exhibit when exposed. So shameless are they when detected as to lead one to suppose that at least in their dealings with us they are incapable of distinguishing right from wrong.

"I have found them scrupulously cleanly in their person beyond the white laborer, but, in their aggregation, filthy beyond description. I have been through Chinatown with Eastern gentlemen and ladies of the highest social position, and have marked the horror which the life exposed created with those who had not been hardened by familiary. Prostitution, passing through every stage of lust, had become bestialized in every quality a manifestation of which human nature was capable. Contagion and filth beyond description; dens filled one which we entered, say twelve by fifteen f eet, with fifteen teen persons, some of them white, in it in every stage of stupefaction from opium, down to sleep where breathing was intermittent and life apparently was ebbing to its close. ...The complaints made here by delegates from San Francisco, especially those of Mr. [Dr.] O'Donnell, I have no doubt are fully justified by the facts ... The foulness of Chinatown, its leprosy, and crimes, are as well known to the police as are the streets, and are sources of a large revenue to them."

DOCUMENT #16: Delegate J. M. Shafter. December 11, 1878.

"The gentlemen who assume to be the only expondents of the economic laws controlling that topic [the wages of labor] will doubtless enlighten us in regard to them ... In the presence of the political economists who grace this chamber, I only permit myself to say, if all Chinamen are excluded from the State, other laborers must be found to take their place, and those laborers must work for a price which their employer can afford to pay, and such employer must pay such price and no more. How this is to be brought about, I am not advised. How agriculture can bear the strain of increased cost of labor, I, who have employed many hundreds of laborers, am utterly at a loss to conceive."

DOCUMENT #17:  Delegate J. M. Shafter. December 12, 1878.

"Foreigners ineligible to become citizens are declared dangerous to the well being of the state [by this section of the proposed constitution], and their exclusion is demanded.

It is true that the dangerous classes may be excluded by some unknown process, but here a special class is directly operated upon. The only question is, is he a Chinaman? For that nationality alone is excluded from citizenship. The treaty puts them on the ground of the most favored nations. It moreover declares that they may become residents. The Act of Congress, and the amendments to the United States Constitution, put them on exactly the same ground as any 'other person' [fourteenth amendment] except as to naturalization; yet it is attempted by this section to oppose and repeal every provision established by the nation for the protection of 'all persons' alike within their jurisdiction. Language fails to properly characterize the folly and atrocity of this attempt..."

"Section 6 [of the proposed Chinese section of the Constitution]. Foreigners ineligible to become citizens of the United States shall not have the right to sue or be sued in any of the Courts... No such foreigner shall be granted license to carry on any business, trade, or occupation in this State... No such foreigner shall have the right to catch fish in any of the waters... nor to purchase, own, or lease real property in this State..."

"But this section is as eminent for its consistency as it is for its sense. This foreigner cannot be sued. The independent American citizen cannot make the Chinaman pay his bill nor for his transportation, except by direct force. ...It is difficult to see the sense of the further restriction of this section. The right to reside, to fish, to work, to lease or buy lands is of no moment, when the law has denied all redress to those in whom these rights are violated."

DOCUMENT #18:  Delegate J. M. Shafter, December 12, 1878:.

"Here aliens of the dangerous classes are subjected to needful regulations. Why should not the native born scoundrels be subjected to like control? Not only those who are, but those "who may become" of that class are within the scope of this supervision.

Who may not become a pauper, medicant, or invalid afflicted with disease under this clause, and that too, without his fault? Because all of us may become thus unfortunate, are we to be now treated as worthy of action due to criminals in fact? It is not declared that those likely to become sick and diseased be dealt with, but what the whole of Adam's race, as they are, shall be thus subject. Who are "aliens otherwise dangerous or detrimental to the well-being or peace of the State?" [a definition in the proposed new Constitution] . Who is to determine this matter? How is it to be determined?

A mere majority of the Legislature can, under this provision, expel any body or class of men disagreeable to them. I think the "presence" of Democrats, or those likely to become such, is detrimental to both the well being-and peace of the State, but it has never occurred to me that their exclusion is an act justifiable for that reason."

DOCUMENT #19:  M. M. Estee February 20, 1879.

Estee was a prominent lawyer from San Francisco. He had been in the California Assembly and then served as District Attorney of Sacramento from 1864 to 1865. He moved to the golden gate city and had been elected to the Assembly in 1874. Estee was a Non partisan in the Convention and later became a Republican governor of California.

"Mr. President, section five reads: 'No aliens ineligible to become citizens of the United States shall be permitted to catch fish in any waters under the jurisdiction of this State; nor to purchase, lease, own or hold any real property in this State,' etc. Mr. President, that means, first, that those Chinamen who are here now shall not be permitted to pursue an ordinary calling by which they may earn a living... Everybody knows that such a provision could not be enforced; that the Chinese who are here must live; that they must sleep somewhere. If not allowed to support themselves, the people would have to do it ... That section seems to me to be utterly heartless. It would be a disgrace to our State to pass it."

DOCUMENT #20:  Debate over the Chinese, California Constitutional Convention. Doctor C. C. O'Donnell, December 9, 1878.

"Sir, this proposed amendment [on the floor of the convention] involves the consideration of that provision of the Federal Constitution which declares that 'the powers not delegated to the United States by the Constitution., nor prohibited by it to the States, are reserved to the States respectively, or to the people.' ... Is there anything in the Federal Constitution prohibiting this power [the Convention] to enact police regulations ... ? I shall be met, sir, by the argument from the other side, that the subject of immigration and the importation of coolies is a regulation of commerce over which Congress has exclusive control. Perhaps I shall be cited to the decision of the Supreme Court of the United States in the celebrated case of Massachusetts, in which that State attempted to prevent the landing of Irish immigrants. It is true that the Federal Courts in that case decided that the State law was unconstitutional, upon the ground that the matter was a commercial regulation, and that the power to regulate commerce with foreign nations is confided to Congress by the Constitution. Mr. President, there is no analogy between the case of Massachusetts and California ... In the case of Massachusetts the question of sanitary necessity did not arise. I have the case here ... in it the question of sanitary necessity was not raised."

DOCUMENT #21:  Delegate V. 0. Howard. December 11, 1878.

Howard came from San Gabriel in Los Angeles County. He was one of the older members of the convention -- age sixty-six. He was a lawyer who had spent his politically formative years in Mississippi. He was one of the few Democrats elected as a Democrat.

"I maintain that the decisions of the Supreme Court are altogether clear and uniform as to the power of the State to exclude immigration which endangers the morals and safety of the State [under the police powers of the states] and that the power exists alongside of and independent of the power of Congress to regulate foreign and inter-state commerce. That it is a right of police regulation vested in the States exclusively, and which the decisions of the Supreme Court of the United States from first to last fully recognize and sustain."

"Every citizen of California is fully aware that the Chinese companies [the organization known as the Six Companies] have a system of government and laws for the Chinese entirely independent of our own government, which they sometimes enforce, even to the taking of life. One or two cases have fallen under my observation. Yet such is their system of terrorism, that it can never be proved in a Court of Justice. They are, therefore, in open rebellion against the State Government."

"There is another aspect of this question which requires our deliberate consideration. If this Chinese population is permitted to become permanent among us to the extent threatened, they will ultimately attain the right of suffrage. It is not possible to continue to carry them in our bosom as a quasi-alien enemy. If among us in the numbers we anticipate, paying taxes, it will be impossible to resist their claim to citizenship. They are already being naturalized in other States, and all legal objection to their naturalization rests upon the word "white" in the Act of Congress. How soon that will be construed away by the Courts, no one can divine."

DOCUMENT #22:  Delegate C. J. Beerstecher, December 10, 1878.

Beerstecher was a colorful member of the convention. He was young, born in Germany in 1851. His career was enviable. His legal training came at the University of Michigan and he had come to California (and won a convention seat as a virtual unknown candidate) in 1877. He was active in labor reforms and was a member of the German section of the Socialistic Workingmen's party of the U.S. One commentator of the convention described him "of strong, nervous temperament ... quick, impulsive, and fiery." He represented San Francisco.

"With due deference to the opinions and the assertions of gentlemen upon this floor as to the power of the State to regulate this matter, I believe that the State has the power, that the State has the full power, to deal with and solve the Chinese question. I do not believe that it is necessary to have recourse to Congress ... It is conceded by all jurists and it has been repeatedly decided that the Federal Government was a government of delegated powers...Now in the Constitution of the United States, there are just two powers lodged in the General Government, which it is claimed inhibit the State from acting upon the Chinese question, as to their immigration, or as to their residence. The first is the power of Congress to regulate commerce with foreign nations ... It is claimed that Congress has the exclusive right to regulate commerce with foreign nations, and upon this it is claimed that the State would have no power to prevent the landing of immigrants ... The second power is the treaty making power, which is vested also absolutely and exclusively in Congress..."

"A treaty is a mere act of Congress ... And whenever an Act of Congress is unconstitutional, if the treaty endeavors to enact the same thing, the treaty itself is unconstitutional. If the Congress of the United States endeavor to encroach upon the reserved powers of the State; if the Congress of the United States endeavor to legislate in relation to the internal concerns of the State; if they endeavor to pass the police [powers] of the State by a mere Act of Congress, that would be unconstitutional and void."

"It being conceded, therefore, that the General Government's agreement of delegated powers, and that whatever is not expressly given to it yet remains with the States..." [Now Beerstecher quotes several Supreme Court decisions about the States' police powers] "It is the undoubted and reserved power of every state [to decide] ...who become its residents, who its citizens, who enjoy the privileges of its laws and be entitled to their portection and favor, and what kind of business it will tolerate and protect... [this opinion was seriously changed after the decision by the provision of the fourteenth amendment that states must provide 'equal protection of the law.' At any rate, Beerstecher is arguing that the regulation of business, health, and morals still resides exclusively with the states]."

"It is for this reason that laws which protect public health, compel mere commercial relations to submit to their control ... The States, resting upon their original basis of sovereignty, subject only to the exceptions stated, exercise their powers over everything connected with their social and internal condition. A state regulates its domestic commerce, contracts, the transmission of estates, real and personal, and acts upon all internal matters which relate to its moral and political welfare. Over these subjects the Federal Government has no power. They appertain to the State sovereignty as exclusively as powers exclusively delegated appertain to the General Government."

"[Now, Beerstecher summarizes the legal cases he has been citing] that the absolute power to regulate the Chinese residents within the confines of this State rests with the State is inherent in the people today, and can be expressed by their representatives in legislature assembled, I have no doubt; not the least. We can drive them from the confines of this State today, but Mr. Chairman, I have serious doubts whether we can [constitutionally] say to them that they cannot come here. We can say to them, 'You shall not stay here.' We have' attempted to say, 'You cannot come here;" and we have been told [by the U. S. Supreme Court for several years] that we were exceeding our powers. We have never attempted to say, 'You cannot stay here;' and we have never been told that if we did say that, we would be exceeding our powers. I believe that we can say to the Chinese, 'You cannot stay here;' and I believe that we can say, 'We propose to regulate you, even the short time we do allow you to stay here.'"

DOCUMENT #23:  Delegate W. H. L. Barnes, December 12, 1878.

Barnes was the only delegate educated at Yale. He had been a prominent lawyer in New York thereafter and came to California after the Civil War. He was a Non-Partisan in the convention though a strong Republican at other times.

"If we fail to assert our powers, we will reap no benefit from them. [i.e. "our powers"]. They say we can deal with this subject under our police power, but that is as far as we can go, without running counter to the Constitution of the United States. I have no fear of hurting the Constitution of the United States. But what I do say, is that we shall see how far a treaty can infringe upon the powers rightfully belonging to the State. If we believe we have rights, let us maintain those rights, and let the United States Courts draw the line. No harm is done to the government because the Courts of that government are the ones to appeal to."

DOCUMENT #24:  Delegate J. M. Shafter, December 11, 1878.

"A later California case, that of Ah Fook, 45 California Reports 402, decides that the police power extends only to those who are personally objectional, and must then only be exercised upon at least quasi-judicial examination [of each individual, rather than a member of a group per se].

...The Court further sums up by the declaration 'that a statute which obstructs the entrance into this State of persons who are neither paupers, vagabonds, or criminals, or in anywise unsound or infirm of body of mind, is not an exercise of the police power of the State in any just sense of that term.'"

"I have had repeated occasion to call attention to the fact that the dogma of states rights seems the controlling consideration with many gentlemen upon this floor. I do not wonder that those who were brought here with the idea that the States have paramount authority -- that as to every governmental act which is to be exercised within their separate limits the State alone is to be untimately obeyed, -- should support this [committee on the Chinese] report. But I think it behooves those of different education and opinion not to suffer the desire of securing a great good to do the great wrong of attempting to nullify the paramount law ... Among all the [court] cases cited here [about the right of states to regulate entry and the lives of foreigners] one important one seems to have been overlooked. It has always seemed to me that the decision to which I allude was of the highest consequence, and I have never heard of its having been overruled. I allude to that which was finally rendered and put upon record at Appomattox Court House, in eighteen hundred and sixty-five, when Chief Justice Grant stood there, with all his Associate Justices, to decide this question of States rights, with a hundred thousand executive officers around him. I think that decision ought to end this discussion ... The ultimate force of the government, the inexorable will guided by the highest intelligence of the people, declared that the Constitution of the United States and the treaties made in pursuance thereof, are the paramount law of this land from this time [1865] forth."

DOCUMENT #25:  Delegate J. F. Miller, December 12, 1878.

"For the ultimate success of our cause, it is necessary that we deport ourselves in this matter in a dignified and legal manner. That is my position. Now, my whole life and conduct have shown that, I have been sincere, and uniformly opposed to Chinese immigration. I have been opposed to it for years -- ever since my attention was called to the subject ... Now, sir, haven't there been [court] tests enough? Haven't these questions been decided and settled over and over again [concerning the exclusive power of the federal government over Chinese immigration and rights of residency]? You all know it; and under the pretext of making a test case, you propose to violate the Constitution of the United States. You can do as you like; I shall not do it. I am too cowardly to do it, if you please."



After weeks of wrangling, the following four sections were passed by a substantial majority of the delegates. They became part of the new California Constitution. They were mild compared to some of the anti-Chinese proposals. Nevertheless, these four sections were soon declared in violation of the Burlingame Treaty and the U.S. Constitution. They were therefore, null and void.


SECTION 1. The legislature shall prescribe all necessary regulations for the protection of the State, and the counties, cities, and towns thereof from the burdens and evils arising from the presence of aliens, who are or may become vagrants, paupers, mendicants, criminals, or invalids afflicted with contagious or infectious diseases, and from aliens otherwise dangerous or detrimental to the well being of peace of the State, and to impose conditions upon which such persons may reside in the State, and to provide the means and mode of their removal from the State upon failure or refusal to comply with such conditions; provided, that nothing contained in this section shall be construed to impair or limit the power of the Legislature to pass such police laws or other regulations as it my deem necessary.

SEC. 2. No corporation, now existing or hereafter formed under the laws of this State, shall, after the adoption of this Constitution, employ, directly or indirectly, in any capacity, any Chinese or Mongolian. The Legislature shall pass such laws as may be necessary to enforce this provision.

SEC. 3. No Chinese shall be employed on any State, county, municipal, or other public work, except in punishment for crime.

SEC. 4. The presence of foreigners ineligible to become citizens of the United States is declared to be dangerous to the well-being of the State, and the Legislature shall discourage their immigration by all the means within its power. Asiatic coolieism is a form of human slavery, and is foreover prohibited in this State; and all contracts for coolie labor shall be void. All companies or corporations, whether formed in this country or any foreign country, for the importation of such labor, shall be subject to such penalties as the Legislature may prescribe. The Legislature shall delegate all necessary power to the incorporated cities and towns of this State for the removal of Chinese without the limits of such cities and towns, or for their location within prescribed portions of those limits; and it shall also provide the necessary legislation to prohibit the introduction into this State of Chines after the adoption of this Constitution. This section shall be enforced by appropriate legislation."