129
CIVIL RIGHTS IN CALIFORNIA IN THE 1850'S--A CASE HISTORY
Robert F. Hei zer
University of California, Berkeley
The fact of the legally and socially disadvantaged position into
which American Indians have been forced since the tLme of the founding of the
Republic is well known. The California Indians were, along with the land of
California, acquired by the United States in 1850 with the admission of Cali-
fornia to the Union. The story of the treatment of the Indians has been told
many times, and reference here to the works of S. F. Cook (19143) and E. E.
Dale (1949) will be sufficient to guide the reader. That some moral commit-
ment existed to pursue legal means in dealing with the California Indians
when taking lands occupied by them is shown by the fact that John A. Sutter,
then acting as sub-Indian Agent, and James W. Marshall, discoverer of gold at
Coloma in January, 1848, entered 1nto a  rLeaty or lease withi the Yalesunme
tribe, who held Weber Creek and the south fork of the American River, on
February 22, 1848. The lease was not approved by Governor Mason on the
grounds that the American government did not recognize the right of Indians
to lease, rent or sell their lands, and the area under consideration was to
be regarded as public domain from the moment the treaty of Guadalupe Hidalgo
which follcwed the Mexican War went into effect (Olson 1948).   In 1851 Presi-
dent Polk appointed three commissioners who were instructed to make treaties
with the Indians of California.  Their work resulted in the famous 18 treaties
which the U.S. Congress refuised to ratfy,9 largely as a result of the energet-
ic efforts of the California senators (Heizer and Anderson n.d.) who were act-
ing upon the recommendation of the California Assembly (California Assembly
Journal Feb. 16, 1852:202-20') and whose report contains the following re-
marks:
The character and habits of the Indian and wnite populations are
totally differentO  Thley are by rature unsuited for the society of each
other0  There is a feeling of host'lity between them, which is the growth
cf centuries.  The Indian 13 naturally prone to stzal and otherwise depre-
date upon the white population, and the white man in retaliation takes the
life of the Indian; and thus there is produced a continual state of hos-
tility between them. All experience has demonstrated the fact that close
contiguity to the white man is not the place for the Indian. This fact
is clearly evinced by the history of that unfortunate race from the foun-
dation of our Government to the present time.
Further information on racial bias during the first decades of the American
period in California may be found in papers by Forbes (1959, 1963) and
H. H. Bancroft's California Inter Pocula.
The California Legislature from 1850 on enacted a number of statutes
which were aimed at restricting the action and free status of non-whites.
Possibly some of this legislation was considered essential in a state popu-
lated by numbers of southern whites, but which was admitted to the Union as a
free state prohibiting slavery. The three most important of these statutes
were:  that which prohibited Indians and Negroes from givinlg testimony in
court in any action in which a white person was a party; the act providing
that any Indian, on the word of a white citizen, could be brought into court
and be declared a vagrant, after which the Indian could then be put up to
auction and his services as a laborer sold to the highest bidder for not more
130
than four months; and the act allowing any adult or Indian child, with the
consent of his parents, to be legally bound over to a citizen for a period of
service which could be many years. This act, apparently never repealed to
this day, is known as the "Indenture Law" and was passed in 1850. As evi-
dence that it was put to practical use we cite a bundle of 11   Indian inden-
tures, involving 181 persons (most of them children) dating between August 5,
1860 and November 1863 which are in the Humboldt County courthouse at Eureka
(Merriam n.d.).
The legal case which is the subject of this article is recorded in
Reports of Cases Determined in the Supreme Court of the State of California
(H. P. Hepburn, reporter. VoljT3I99-402.    Bancroft-Whitney Co., San Fran-
cisco 1906). From the record it can be easily determined that George W. Hall
was convicted of murder on the testimony of Chinese witnesses. Who Hall mur-
dered we do not know.  The conviction was appealed, and the original judgment
reversed (with the single dissenting opinion of Justice Wells) by arguing
that since the American Indians are of Asiatic origin, they are not really
different from Chinese, and that lt was the intent of the Legislature in fram-
ing Section 394 of the Civil Practice Ac. inT850 to exclude Chinese from tes-
tifying as witnesses against whites.  The argument is an ethnol.ogical one;
the reversal of the conviction was in conformity with the Californian racial
attitudes existing in 1854. In California, one hundred years ago, we can con-
clude, it was more desirable to release a Caucasian convicted of murder
through the testimony of witnesses than it was to permit any exception to le-
galized racial discrimination. Here is the opinlon of the Supreme Court of
the State of California quoted in full-
THE PEOPLE v. HALL. OCT. 1, 1854
THE PEOPLE, Respondent, v. GECRGE W. HALL, Appellant
Section 394 of the C1vil Practice Act provides:, "No Indian or Negro shall
be allowed to testify as a wltness in any action in which a White per-
son is a party."t
Section 14 of the Criminal Act provides, "No Black, or Mulatto person, or
Indian shall be allowed to give evidence in favor of, or against a
White man.l
Held, that the words, Indian, Negro, Black and White, are generic terms,
designating race. That, therefore, Chinese and all other people not
white, are included in the prohibition from being witnesses against
Whites.
Mr. Ch. J. Murray delivered the opinion of the Court, Mr. J.
HEYDENFEUDT concurred.
The appellant, a free white citizen of this State, was convicted of
murder upon the testimony of Chinese witnesses.
The point involved in this case, is the admissibility of such evi-
dence.
The 394th section of the Act Concerning Civil Cases, provides that no
Indian or Negro shall be allowed to testify as a witness in any action or
proceeding in which a White person is a party.
131
The 14th section of the Act of April 16th, 1850, regulating Criminal
Proceedings, provides that "No Black, or Mulatto person, or Indian, shall
be allowed to give evidence in favor of, or against a white man.1'
The true point at which w?, are anxious to arrive, is the legal signi-
fication of the words, "Black, Mulatto, Indian and White person," and
whether the Legislature adopted them as generic terms, or intended to lim-
it their application to specific types of the human species.
Before considering this question, it is proper to remark the differ-
ence between the two sections of our Statute, already quoted, the latter
being more broad and comprehensive in its exclusion, by use of the word
"Black,f" instead of Negro.
Conceding, however, for the present, that the word "tBlack," as used
in the 14th section, and "Negro," in 39hth, are convertible terms, and
that the former was intended to include the latter, let us proceed to
inquire who are excluded from testifying as witnesses under the term
"Indian. "
When Columbus first landed upon the shores of this continent, in his
attempt to discover a western passage to the Indies, he imagined that he
had accomplished the object of his expedition, and that the Island of
San Salvador was one of those Islands of the Chinese sea, lying near the
extremity of India, which had been described by navrigators.
Act'ing upon this hypothesis, and also perhaps from the similarity of
features and physical conformation, he gave the Islanders the name of
Indians, which appell^ation was universally adopted, and extended to the
aboriginals of the New World, as well as of Asia.
From that time, down to a very recent period, the American Indians
and the Mongolian, or Asiatic, were regarded as the same type of htunan
speci es.
In order to arri've at a correct understanding of the intention of our
Legislature, it will be necessary to go back to the early history of
legislation on this subject, our Statute being only a transcript of those
of older States.
At the period from which this legislation dates, those portions of
Asia which include India proper, the Eastern Archipelago, and the coun-
tries washed by the Chinese waters, as far as then known, were denominated
the Indies, from which the inhabitants had derived the generic name of
Indians.
Ethnology, at that time, was unknown as a distinct science, or if
known, had not reached that high point of perfection which it has since
attained by the scientific inquiries and discoveries of the master minds
of the last half century. Few speculations had been made with regard to
the moral or physical differences between the different races of mankind.
These were general in their character and limited to those visible and
palpable variations which could not escape the attention of the most com-
mon observer.
The general, or perhaps universal opinion of that day was, that there
were but three distinct types of the human species, which, in their turn,
were subdivided into varieties or tribes. This oplnion is still held by
132
many scientific writers, and is supported by Cuvier, one of the most emi-
nent naturalists of modern times.
Many ingenious speculations have been resorted to for the purpose of
sustaining this opinion. It has been supposed, and not without plausibil-
ity, that this continent was first peopled by Asiatics, who crossed
Behring's Straits, and from thence found their way down to the more fruit.
ful climates of Mexico and South America, Almost every tribe has some
tradition of coming from the North, and many of them, that their ancestors
came from some remote country beyond the ocean.
From the eastern portions of Kamtschatka, the Aleutian Islands form a
long and continuous group, extending eastward to that portion of the North
American Continent inhabited by the Esquimaux. They appear to be a con-
tinuation of the lofty volcanic ranges which traverse the two continents,
and are inhabited by a race who resemble, in a remarkable degree, in lan-
guage and appearance, both the inhabitants of Kamtschatka (who are admit-
ted to be of the Mongolian type,) and the Esquimaux, who again, in turn,
resemble other tribes of American Indians. The similarity of the skull
and pelvis, and the general configuration of the two races; the remark-
able resemblance in eyes, beard, hair, and other peculiarities, together
with the contiguity of the two Continents, might well have led to the be-
lief that this country was first peopled by the Asiatics, and that the
difference between the different tribes and the parent stock was such as
would necessarily arise from the circ-umstances of climate, pursuits, and
other physical causes, and was no greater than that existing between the
Arab and the European, both of whom were supposed to belong to the Cauca-
sian race.
Although the discoveries of eminent Archeologists, and the researches
of modern Geologists, have glven to this Continent an antiquity of thou-
sands of years anterior to the evidence of man's existence, and the light
of modern science may have shown conclusively that it was not peopled by
the inhabitants of Asia, but that the Aborigines are a distinct type, and
as such claim a distinct origin, still, this would not, in any degree,
alter the meaning of the term, and render that specific which was before
generic.
We have adverted to these speculations for the purpose of showing
that the name of Indian, from the time of Columbus to the present day,
has been used to designate, not alone the North American Indian, but the
whole of the Mongolian race, and that the name, though first applied
probably through mistake, was afterwards continued as appropriate on ac-
count of the supposed common origin.
That this was the common opinion in the early history of American
legislation, cannot be disputed, and, therefore, all legislation upon the
subject must have borne relation to that opinion.
Can, then, the use of the word "Indian." because at the present day
it may be sometimes regarded as a specific, and not as a generic term,
alter this conclusion? We think not; because at the origin of the legis-
lation we are considering, it wa.s used and admitted in its common and or-
dinary acceptation, as a generic term, distinguishing the great Mongolian
race, and as such, its meaning then became fixed by law, and in constru-
ing Statutes the legal meaning of words must be preserved.
133
Again:  the words of the Act must be construed in pari materia.  It
will not be disputed that "Whtte"t and "Negro," are generic terms, and re-
fer to two of the great types of mankind. If these, as well as the word
"Indian," are not to be regarded as generic terms, including the two
great races which they were intended to designate, but only specific, and
applying to those Whites and Negroes who were inhabitants of this Conti-
nent at the time of the passage of the Act, the most anomalous conse-
quences would ensue. The European white man who comes here would not be
shielded from the testimony of the degraded and demoralized caste, while
the Negro, fresh from the coast of Africa, or the Indian of Patagonia,
the Kanaka, South Sea Islander, or New Hollander, would be admitted, upon
their arrival, to testify against white citizens in our courts of law.
To argue such a proposition would be an insult to the good sense of
the Legislature.
The evident intention of th,e Act. was to throw around t'he citizen a
protection for life and property, which could only be secured by remov-
ing him above the corrupting influences of degraded castes.
It can hardly be supposed that any Legislature would attempt this by
excluding domestic Negroes and Indians, who not unfrequently have correct
notions of their obligations to society, and turning loose upon the com-
munity the more degraded tribes of the same species, who have nothing in
conmion with us, in language, country or laws.
We have, thus far, considered this) sUbect on the hypothesis that the
14th section of the Act Regulati.g Crimiral Proceedings, and the 394hh
section of the Practi.ce Act, were the same.
As beAore remarkedq there is a wide difference between the two.  The
word "Black"1 may inclrude all Negroes, but the ternm "Negro" does not in-
clude all Black persons.
By the use of this term in th'is connection, we understand it to mean
the opposite of "1White,"' and that it should be taken as contradistin-
guished from all White persons.
In using the words, "No Black, or Mulatto person, or Indian shall be
allowed to give ev'idence for or against a White person," the Legislature,
if any intention can be ascribed to it, adopted the most comprehensive
terms to embrace every known class or shade of color, as the apparent de-
sign was to protect the Wuhite person from the influence of all testimony
other than that of persons of the same caste. The use of these terms
must, by every sound rule of construction, exclude every one who is not
of white blood.
The Act of Congress in defining what description of aliens may become
naturalized citizens, provides that every "free white citizen," &c. &c.
In speaking of this subject, Chancellor Kent says, that "the Act confines
the description to "white" citizens, and that it is a matter of doubt,
whether, under this provision, any of the tawny races of Asia can be ad-
mitted to the privileges of citizenship." 2 Kent's Com. 72.
We are not disposed to leave this question in any doubt. The word
"White" has a distinct signification, which ex vi termini, excludes black,
yellow, and all other colors.  It will be observed, by reference to tbhe
134
first section of the second article of the constitution of this State,
that none but white males can become electors, except in the case of
Indians, who may be admitted by special Act of the Legislature.  On exam-
ination of the constitutional debates, it will be found that not a little
difficulty existed in selecting these precise words, which were finally
agreed upon as the most comprehensive that could be suggested to exclude
all inferior races.
If the term "White," as used in the Constitution, was nof understood
In its generic sense as including the Caucasian race, and necessarily ex-
cluding all others, where was the necessity of providing for the admission
of Indians to the privilege of voting, by special legislation.
We are of the opinion that the words "White," "Negro," "Mulatto,"
"Indian," and "Black person," wherever they occur in our Constitution and
laws, must be taken in their generic sense, and that, even admitting the
Indlan of this Continent is not of the Mongolian type, that the words
"Black person," in the 14th section must be taken as contradistinguished
from White, and necessarily excludes all races other than the Caucasian.
We have carefully considered all the consequences resulting from a
different rule of construction, and are satisfied that even in a doubtful
case we would be impelled to this decision on grounds of public policy.
The same rule which would admit them to testify, would admit them to
all the equal rights of citizenship, and we might soon see them at the
polls, in the jjury box, upon the bench., and in our legislative halls.
Th's is not a speculation which exist.s in the excited and overheated
imagination of the patriot and statlesman, but it is an actual and present
danger.
The anomalous spectacle of a distinct people, living in our community,
recognizing no laws of this State except through necessity, bringing with
them their prejudices and national feuds, in which they Indulge in open
violation of law; whose mendacity is proverbial; a race of people whom
nature has marked as inferior, and who are incapable of progress or intel-
lectual development beyond a certain point, as their history has shown;
differing in language, opinions, color, and physical conformation; be-
tween whom and ourselves nature has placed an impassable difference, is
now presented, and for them is claimed, not only the right to swear away
the life of a citizen, but the further privilege of participating with us
in administering the affairs of our Government.
These facts were before the Legislature that framed this Act, and
have been known as matters of public history to every subsequent Legisla-
ture.
There can be no doubt as to the intention of the Legislature, and
that if it has ever been anticipated that this class of people were not
embraced in the prohibition, then such specific words would have been em-
ployed as would have put the matter beyond any possible controversy.
For these reasons, we are of opinion that the testimony was inadmis-
sible.
The judgment is reversed and the cause remanded.
Mr. Justice Wells dissented, as follows:
From the opinion of the Chief Justice, I must most respectfully
dissent .
A casual search of the literature which might have been available
California in 1854 and quoted in support of the argument that the America:
Indians are classifiable as Mongoloids, and that the American Indians are
rived from an Asiatic homeland, has showr. that there were many published
works which affirm this. Fr. Joseph de Acosta in 1589 (Beals 1957; Jarch
1959) seems to have been the first to advance this argument in detail.
T. Gage in 1648 (Thompson 1958), and J. Josselyn in 1672 (Wauchope 1962:8
followed. In the eighteenth century Thomas Jefferson (1907, Vol. II.127-
Vol. XIII:246-248) and Pfefferkorn (Ives 1956) accepted this view, and in
first half of the nineteenth century one could cite perhaps fifty authors
adhered to this theor;y. By way of example only, we refer to Mitchill (18
Pickering (1848), Latham (1850,) van Amringe (i1848), McIntosh (1843), Smi
(1810), Prichard (1845). By way of more general background on the develo
ment in Spanish and Anglo-Americans of racial attitudes toward Indians, t'
reader will find the studies of Hanke (1959), Pearce (1953), Stanton (196
and Willson (1959) helpful and enlightening. For surveys of early theori
on the origin of American Indians see Stanton (1960), Hrdlicka (1912), Al
(1949), Stewart and Newman (1951), Wauchope (1962).
REFERENCES
ALLEN, D. C.
1949   The legend of Noah:  renaissance of rational'ism in art, scienc
and letters. Urbana, Illinois.
van AMRINGE, M. N. F.
1848   The natural history of man. New York.
BEALS, R. L.
1957   Father Acosta on the first peopling of the New World. America
Antiquity 23:182-183.
COOK, S. F.
1943   The conflict between the California Indian and white civiliza-
tion: I-IV. Ibero-Americana, University of California, Berkel
pp. 21-2h.
DALE, E. E.
1949   The Indians of the Southwest; a century of development under t
United States. Norman, University of Oklahoma Press.
FORBES, J. D.
1959   Racial bias in gold rush history. Southwest Museum Masterkey
33:13-21.
1963   The historian and the Indian:  racial bias in American history
The Americas 19:349-362.
136
HANKE, L.
1959   Aristotle and the American Indians.  Chicago, H. Regnery Co.
HEIZER, R. F. and G. E. ANDERSON
n.d.   History and analysis of the eighteen unratified California Indian
Treaties of 1851. Manuscript.
HFDLICKA, A.
1912   Historical notes on the origin of the American Aborigines.  Ameri-
can Anthropologist XIV:5-8,
IVES, R. L.
1956   An early speculation concerning the Asiatic origin of the American
Indian. American Antiquity 21:420-421.
JARCHO, S.
1959   Origin of the American Indians as suggested by Fray Joseph de
Acosta (1589).  Isis 50:430-438.
JEFFERSON, T.
1907   The writings of Thomas Jefferson. Washington, D.C., Thomas
Jefferson Memorial Association.
LATHAM, R. G.
1850   The natural history of the varieties of man. London.
MERRIAM, C. H.
n.d.   Indian indentures. Manuscript of 8 pages containing abstracts of
114 Humboldt County Indian indentures.
McINTOSH, J.
1843   Origin of the American Indians. New York.
IETCHILL, S. L.
1820   The original inhabitants of America shown to be the same family
and lineage with those of Asia, by a process of reasoning not
hitherto advanced. Archaeologia Americana, Trans. and Coll. of
the Am. Antiquarian Soc. 1:225-232.
OLSON, C.
1948   The Sutter-Marshall lease with the Yalesumney Indians for the
monopoly of the gold-bearing lands. San Francisco, Book Club of
California, Letters of the Gold Discovery, No. 2.
PEARCE, R. H.
1953   The savages of America; a study of the Indian and the idea of
civilization.  Baltimore, Johns Hopkins Press.
PICKERING, C.
1848   The races of man. Publs. of the U.S. Exploration Expedition.
PRCHAI), J. C.
1845   The natural history of man. London, H. Bailliere.
SMITH, S. S.
1810   An essay on the causes of the variety of complexion and figure in
the human species. New Brunswick, N.J., J. Simpson and Co.
STANTON, W.
1960   The leopard's spots.  Chicago, University of Chicago Press.
137
STEWART, T. D. and M. NEWMAN
1951   An historical resumre of the concept of differences in racial
types. American Anthropologist 53:19-36.
THOMPSON, J. E. S.
1958   The first peopling of the New World. American Antiquity 24:184.
WAUCHOPFE, R.
1962   Lost tribes and sunken continents. Chicago, University of
Chicago Press.
WILLSON, L.
1959   Thoreau:  student of anthropology. American Anthropologist
61:279-289.