Days of Infamy Page 2

  In addition, since the Fifth Amendment guaranteed the property rights of slave owners, and enslaved people were property, Congress could not pass a law that forbade slave ownership anywhere in the nation. The Missouri Compromise legislation, therefore, was unconstitutional.

  Although his personal views had no bearing on the case, Taney included them anyway.

  Black people, he wrote, “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race … and so far inferior, that they had no rights which the white man was bound to respect.”

  The Dred Scott decision is, along with Korematsu v. United States, almost universally considered among the very worst decisions ever handed down by the Supreme Court. Roger Taney, who was otherwise a highly respected legal scholar, has been vilified, not unfairly, as epitomizing bigotry, ignorance, and intolerance. In perhaps the biggest irony of all, rather than prevent a war with his definitive judgment, Taney helped start one.

  ON JANUARY 24, 1848, a carpenter named James Marshall was supervising the construction of a sawmill for John Sutter near the American Fork River in north-central California. He noticed some metal flakes near a stream. The flakes were gold.

  Marshall, Sutter, and the other workers tried to keep their find a secret, but word inevitably leaked out. By the following year, the Gold Rush had begun and upward of 80,000 would-be millionaires descended on California. San Francisco’s population grew from about 800 people in 1848 to 25,000 just two years later. Most came overland or by steamship from the East, but others came from across the Pacific, almost all from China. Most Chinese people arrived intending to stay only long enough at “Gold Mountain” to allow them to return home rich. At first, the hardworking Chinese were accepted by the other miners. But as gold became scarcer and the Chinese became more plentiful—there would be 24,000 within three years—resentment developed.

  Gold miners.

  In 1850, California began taxing “foreign” miners. Most white immigrants avoided paying simply by saying they were American, but Chinese miners did not have the same option. Of those Chinese who did pay the tax, many became victims of violence by whites.

  As a result, most Chinese gave up the hunt for gold and entered other professions. Some hired themselves out as workers in mining camps, some became farm laborers, while still others settled in cities—mostly in booming San Francisco—and either opened their own businesses or worked for white business owners. They became sought after by employers who could work them longer and harder than white workers and pay them a good deal less. For the Chinese, much like today’s South and Central American immigrants, the grim working conditions and the pittance they were paid were still better than they could expect in their home country.

  As the Chinese population expanded, many who had crossed the Pacific decided to remain permanently in the United States, some migrating as far east as New York. For the first time, their eligibility to apply for United States citizenship came under question, which in turn led to the question of just who was and was not “white” according to the 1790 law. Until that point, the rule of thumb for naturalization seemed to be that any immigrant who looked white and claimed to be white was allowed to apply for citizenship as white.

  The issue became more complicated in 1870. In the wake of the Civil War, Congress debated whether naturalization should be altered in favor of those of “African descent.” The aim was to allow any former slave or descendant of slaves to become a citizen. For the first time, whether race should be included in naturalization law at all came under question. As such, the subject of citizenship for the Chinese was also hotly contested.

  The concept of extending naturalization rights to the Chinese had many supporters, almost all from the East or Midwest, where there were fewer Chinese immigrants than out west. Senator Charles Sumner of Massachusetts said, “I content myself for the present with saying that the word ‘white’ be struck from the statute book.” Pennsylvania Senator Simon Cameron agreed. “I am in favor of the position of the Senator from Massachusetts because it invites into our country everybody: the negro, the Irishman, the German, the Frenchman, the Scotchman, the Englishman, and the Chinaman. I will welcome every man.” Richard Yates and Lyman Trumbull, both of Illinois, supported multiracial citizenship, as did Indiana’s Oliver Morton.

  Not everyone was so open-minded. Opposition to Chinese citizenship was almost universal in the West, much of it expressed in openly racist terms. Representative James Johnson of California, who had earlier introduced a resolution stating that the Fifteenth Amendment “never intended that Chinese or Mongolians should become voters,” told his colleagues, “I hope a large majority of the good people of this country believe its future greatness can best be secured by preserving the Caucasian blood in its purity; that the white is superior to the Chinaman; that our country would be better off peopled entirely with our own kind than if mixed with an inferior and degraded race.”

  He added later, “How can any lover of this country ask for free Chinese immigration, which is Chinese citizenship and Chinese suffrage? … If the Hottentot, the cannibal from the jungles of Africa, the West India negro, the wild Indian, and the Chinaman are to become a ruling element in this country, then call your ministers from abroad, bring your missionaries home, tear down your school houses, convert your churches into dens and brothels, wherein our young may receive fatal lessons to end in rotting bones, decaying and putrid flesh, poisoned blood, leprous bodies, and leprous souls.”

  With western congressmen immovable in opposition, the 1870 law simply read, “The naturalization laws are hereby extended to aliens of African nativity and to persons of African descent.” Whether intended or not, this phrasing also opened the citizenship door to those who had never been slaves at all, and, for the first time in American history, people who were not “white” were officially allowed to become citizens of the United States. The law did not, however, help in creating a legal definition of “white.”

  By the 1870s, Chinese immigration continued to increase, and white communities in the West grew more and more determined to halt what they saw as pollution by an inferior race. Chinese laborers were key targets, since they were lowering wages for white workers. Early union leaders, such as Denis Kearney of the Workingmen’s Party of California and Daniel Cronin of the Washington Territory’s Knights of Labor, petitioned West Coast politicians to stanch the flow of Chinese labor. California responded by enacting a series of laws aimed at denying Chinese immigrants, none of whom were citizens, either employment or housing. For example, an 1870 San Francisco ordinance called the “Sanitary Act” said that all housing must have five hundred cubic feet of air for each occupant. The law was enforced only in Chinatown, where immigrants, most of whom were working for impossibly low wages, lived in horribly cramped conditions. Many Chinese people who could not pay the steep fines were sent to equally overcrowded local jails.

  An anti-Chinese and -Japanese poster issued by labor unions.

  Although few Chinese immigrants could speak English, they acquired a sophisticated understanding of the American legal system. Each time California passed a discriminatory law, Chinese businessmen hired white lawyers to bring suit in either state or federal court. To the consternation of the authorities, the lawsuits were often successful.

  Another focus was Chinese women, who were widely assumed to be prostitutes. It seemed clear that only action by the federal government could stem Chinese immigration. In 1875, Horace Page, a California Republican, sponsored a bill to “end the danger of cheap Chinese labor and immoral Chinese women.”

  Page was born in New York in 1833, but moved to Placerville, California, when he was twenty. He started a successful sawmill business, then a livery stable, and then made a series of astute business investments, becoming a respected member of his community. He was vocal about curbing the power of the railroads and requiring them to pay higher fees and taxes, both statewide and locally. Althou
gh he claimed no interest in politics, he was persuaded to run for Congress in 1872 and won an upset victory in a campaign marked by a good deal of mudslinging on both sides.

  During his first term, Page attacked the exorbitant prices charged by private firms that carried the United States mail and succeeded in saving the government an estimated $3 million. But Page’s targets were not only railroads and government price-gougers. “Ever mindful of the Asiatic curse resting upon California, at the first opportunity and within a few weeks after his arrival in Washington,” Page introduced a resolution demanding that the United States “check or altogether prevent Chinese immigration to the United States.”

  Horace Page, California representative, 1873–1883.

  Page also discovered that when the naturalization laws were transcribed into the Revised Statutes—the first official record of the laws of the United States printed by the government—the requirement that an immigrant be “white” had been left out. He brought it to the attention of Congress and “free white persons” was reaffirmed in February 1875.

  The law Horace Page proposed would be the first in American history that restricted the entry of specific “undesirable” elements. Rather than target the Chinese as a race—which would have run afoul of a treaty signed in 1868—Page proposed banning “coolies,” unskilled Chinese laborers, and Chinese women entering the country with the intention of becoming prostitutes or “concubines.” Since Chinese marriage ceremonies were not recognized as legal, this meant just about every Chinese woman arriving at an American port. As Page put it in his speech in Congress, he intended to “place a dividing line between vice and virtue,” and “send the brazen harlot who openly flaunts her wickedness in the faces of our wives and daughters back to her native country.” White Americans, he added, were “stout-hearted people” who, “with their wives and children … staked everything” to come to California but now faced a “deadly blight.”

  Page had a good deal of support from labor groups, churches, and other politicians who viewed the Chinese as a winning campaign issue. But he also had the backing from some unexpected sources, such as the American Medical Association, which announced that the Chinese, especially the women, were carriers of diseases that would resist cures if they infected whites.

  In the end, Page’s bill had little trouble in Congress, easily passing in both houses. It was signed into law by President Ulysses Grant on March 3, 1875, two days after the president had signed the Civil Rights Act of 1875, guaranteeing Black Americans equal access to theaters, restaurants, public conveyances, and hotels. (Eight years later, the Supreme Court would declare that law unconstitutional. The Page Act, however, would stand.)

  While the law was only marginally successfully at keeping out men from China—western employers were not displeased with laborers whom they could work to exhaustion and pay almost nothing—the Page Act virtually eliminated the entry of Chinese women.

  THE 1870 LAW HAD contained no specific mention of the Chinese, and so, even with the Page Act in place, the status of Chinese immigrants already in the United States was not clear. The United States lacked a national bureau of immigration, so judges in individual states—not even necessarily federal judges—were left to decide whether or not Chinese people were to be considered “white” for purposes of naturalization. Away from the West Coast, where anti-Chinese sentiment was highest, this question did not arouse much controversy,

  In 1878, for example, the New York Herald reported, “For the first time in the history of the city of New York native born live Chinaman has been admitted to all the privileges of citizenship provided by the Constitution of the United States … The question of the naturalization of Mongolians has been a mooted one for many years, and the constantly increasing emigration of that mysterious and thrifty race has intensified the popular interest in the settlement of this difficult problem.” The new citizen, Wong Ah Yee, who was granted citizenship by a New York State judge, was described as “of unusual intelligence and ability … married to an Irishwoman and doing a good cigar-making business in Baxter street.”

  In the West, however, “unusual intelligence and ability” would be of little importance to anti-Asian white people. Even the relative trickle of new immigrants from China who could circumvent the Page Act was too much for what these whites came to speak of as a “plague.” State and city officials demanded that Congress and the president take steps to prevent the West Coast, and eventually all of America, from being overrun. Once more, among the most vocal advocates of ending Chinese immigration were the leaders of America’s growing labor movement, who saw low-cost Chinese labor as fatal to their own efforts to improve the wages of union members.

  In addition, California and the other western states had stepped up their efforts to strangle Chinese immigrants already in country. States and cities enacted laws aimed at denying Chinese immigrants either employment or housing, and they were also subject to beatings, theft of their property, and denial of almost all government protection. The small segment of the Chinese population that had become successful realized that unless they could become citizens, they could do nothing to fight discrimination. One Chinese leader noted, “The moment you appear at the ballot box, you are a man and a brother and are treated to cigars, whiskeys and beers.”

  But without citizenship, there would be no voting, and so, in 1878, they sponsored a test case in which a Chinese immigrant named Ah Yup applied for naturalization because, they asserted, “Mongolians,” as all East Asians were classified, should be seen as “white.” The case was heard in federal circuit presided over by Judge Lorenzo Sawyer.

  Lorenzo Sawyer.

  Unlike many Californians, Sawyer had not expressed any adverse sentiments toward the Chinese, although he was a close associate of Leland Stanford, a former governor of California and soon-to-be founder of a university, who had done so often. (To say nothing of the fact that thousands of Chinese workers had died building the transcontinental railroad that made Stanford an immense fortune.) In addition, Sawyer was a thorough and respected legal scholar, appointed to the federal bench by Ulysses Grant after a stint as chief justice of the California courts.

  Sawyer was aware that he was the first judge to be asked to create a legal definition of “white,” and he undertook a careful, meticulous analysis, considering not only the evidence presented by the opposing lawyers but also examining scientific definitions of race. For the science, Sawyer relied mainly on the work of Johann Blumenbach, a German anthropologist and race theorist. While much of Blumenbach’s work laid the groundwork for modern anthropology, some of his other theories turned out to be self-serving claptrap. He used skull size and shape to separate humans into five distinct racial groups: Caucasian, Ethiopian, American Indian, Mongolian, and Malay. Predictably, he found “whites” as the most advanced and called them “Caucasian,” because he believed they had descended from Adam and Eve and originated on the southern slopes of Mount Caucasus in the country of Georgia. All the other races represented a “degeneration” from the Caucasian ideal.

  Words, Sawyer wrote, should be taken in the ordinary sense, and “white” didn’t refer simply to skin tone. “Those called white may be found in every shade from the lightest blonde to the most swarthy brunette,” yet “as ordinarily used everywhere in the United States, one would scarcely fail to understand that the party employing the words ‘white person’ would intend a person of the Caucasian race.” Thus, according to Blumenbach, as well as other race theorists, the Chinese, as Mongolians, were not “white.”

  “Blumenbach’s five skulls—Mongolian, American, Caucasian, Malayan and Ethiopian races—from the treatise ‘De generis humani varietate nativa.’”

  Sawyer also relied on the congressional debates leading up to the 1870 naturalization law, in which those who opposed Charles Sumner’s motion to remove the word “white” from the statute often did so specifically to ensure banning the Chinese. In his conclusion, he wrote, “A Mongolian is not a ‘white pe
rson’ within the meaning of the term as used in the naturalization laws of the United States.” As a result, no Chinese immigrant could apply for American citizenship regardless of how long they had lived in the United States.

  But Horace Page was not finished. “There has hardly been a session of Congress since his election, that he has not introduced an anti-Chinese resolution or bill … restrictive legislation on Chinese immigration … was ever present on his mind.” On April 12, 1882, Page introduced a bill in the House of Representatives that would effectively ban all Chinese immigrants from entering the United States. Although specifically aimed at laborers, the bill was drafted in such a way as to make it extraordinarily difficult for anyone Chinese to prove he was not a laborer. The bill also reaffirmed that the Chinese already in the country could not become citizens.

  Page’s bill sailed through both houses of Congress and was signed by President Chester A. Arthur on May 6, 1882. It was the first immigration law passed in the United States that barred a specific national or ethnic group. Coupled with the Page Act, the Chinese Exclusion Act halted virtually all Chinese immigration for almost a century.

  This racist 1905 cartoon shows Uncle Sam’s boot kicking a Chinese immigrant off a dock as part of an anti-Chinese immigration campaign. Other vignettes show how the Chinese could possibly immigrate to the United States.

  Although most in the West were pleased, many employers rued the loss of a labor pool that could be pushed to superhuman limits for subhuman pay. They immediately sought a replacement and soon found one.