CHAPTER XI.

SECOND CONSTITUTIONAL CONVENTION.

TH

HE second constitutional convention met in the assembly chamber at Sacramento on Saturday, September 28, 1878. One hundred and forty-five delegates were present; four were absent; two, Henry H. Haight and George M. Hardwick, had died since election, and Thomas Morris had resigned. The body was called to order by Governor Irwin as temporary president Thomas Beck, secretary of state, acting as temporary secretary. The members were then sworn in by the governor, after which the convention adjourned to Monday, September 30.1 It was remarked, immediately after the convention got together, that its very first movements indicated in some degree at least its character. Its communistic wing, called Workingmen, naturally took on the form of a Jacobin club, whose members were sworn to profound secrecy, and was by far the most compact and easily wielded element in the convention. They were more strongly under the influence of cohesive tendenciesdue to party pressure-than any delegation that had ever appeared in a legislative assembly in the state; and the party behind it was less tolerant of independent thought and action than any before existing. There might be said to be two classes in this wing of the convention-one whose communistic affiliations arose out of positive opinions as to the best forms of government, and the other that was by natural instinct restive under the restraints imposed by any idea of government and allied itself with the party that for the time was the most distinctly the exponent of destructiveness and discontent. On the other hand, the conservative wing of the convention com

1Debates and Proceedings of the Constitutional Convention, by E. P. Willis and P. K. Stockton, Sacramento, 1880, 1-15.

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prised a very strong body of men of ripe maturity of judgment, scholarly attainment and special knowledge in social and governmental science. In intellectual force, oratorical ability and broad comprehension of the practical possibilities of government, it was an assemblage of the highest order. Its members in general were men, who held to the American idea that the attainment of justice was the foundation of government; that the great problem was how to combine the greatest good of the whole with the least practical restriction upon individual liberty, and that the end of government was to protect men in their natural rights without restraint upon natural capacities. Opposed to them, were those who favored what was known as parental government, which prescribed not only how men should act but what they should think, which would tolerate no differences of opinion, which was always mandatory and constantly interfering. The different classes soon took form and developed.'

On the evening of September 28, a conference was held by the Non-partisan, Republican and Democratic members for the purpose of agreeing upon action in reference to the permanent organization of the convention. The Workingmen had already gone off in secret caucus by themselves. The members, who met in conference, amounting to eighty-three in number, took an informal vote for permanent president and secretary of the convention, which showed that the majority were for Joseph P. Hoge for president and Marcus D. Boruck for secretary. Upon Monday morning, at the meeting of the convention, after some windy speeches of sand-lots orators, Hoge was elected president on the fifth ballot by seventy-four votes out of one hundred and forty-seven; but Boruck was beaten the next day for secretary by J. A. Johnson, who afterwards resigned and was succeeded by Edward F. Smith. In the choice for subordinate offices, the Workingmen were entirely defeated; and this fact apparently caused them a few days subsequently, when nominations were in order to fill vacancies in the convention, to attempt to throw ridicule on the proceedings by naming such persons as Henry Ward Beecher, Theodore Tilton, Dr. Mary Walker and so on. 'Sacramento Record-Union, September 30, 1878.

On October 8, rules were adopted; and the next day propositions for constitutional provisions began to be received.1

These propositions, of which the Workingmen presented the first lot, and of which nearly every Workingman had at least one, embraced all kinds of subjects. One of them, for instance, proposed that aliens should not be allowed to hold property; another, that Chinamen should not be allowed to trade, peddle or carry on any mercantile business; another that there should be only one legislative body and that the office of lieutenantgovernor should be abolished. Others offered a proposition for a "perfect" eight-hour law and a "perfect" lien law for mechanics. and laborers; a proposition to prevent any person not eligible to citizenship from settling in the state, and to fine any person for making a lease to or encouraging such person to remain; a proposition against subsidies to corporations; a declaration that "land-grabbing must be stopped;" a proposition against the employment of aliens ineligible to become citizens on any public work; against poll taxes; to limit the acquisition of land by any one person, association or corporation; requiring an oath, when demanded by anybody, as a qualification to voting at any election or maintaining or defending any suit in the courts, of not having after ninety days from the adoption of the new constitution employed in any manner any Chinaman, Mongolian or other alien incapable of becoming a citizen or bought, sold or used anything made, produced or prepared by any such person in the state; prohibiting aliens, who could not become citizens, from bearing arms; prohibiting secret sessions of grand juries; abolishing the pardoning power; making corporations or persons having work done by contract liable for all dues from contractors or sub-contractors to laborers; abolishing grand juries; requiring equal assessments on all lands of equal productive quality; fixing the number of grand jurors at thirteen; a declaration in favor of God and making allegiance to God and the state one; against the eligibility of any candidate to office who should announce or consent to the announcement of his name as a candidate in a newspaper; against Chinese testimony; prohibiting Chinese from fishing in the inland waters of the state; 'Debates and Proceedings of Convention, 15–76.

imposing a per capita tax of two hundred and fifty dollars on each coolie immigrant; a provision that, if a sentence of hanging were not executed on the day set, it should be commuted and no other penalty inflicted, on the ground that the law did not contemplate torture as well as death; and a proposition to abolish the militia as "all fuss and feathers" and entirely useless.'

The opposition to the Chinese, which constituted so principal a part of the Workingmen's political capital, was, however, not confined to the Workingmen alone. Had it been, it is not likely that much would have been accomplished. Their ideas seem to have been limited almost exclusively to the Chinese already in the state under treaty stipulations and to preventing them from doing any business, obtaining any employment, holding property, testifying in courts as to matters in which white men were concerned, or having anything to do with the fisheries of California. They seemed to have a notion that the Chinese were not human beings and had no rights which anybody was bound or ought to respect. One of their loudest and most irrepressible leaders gave expression to a very common sentiment among them by moving that the first clause in the bill of rights, that "all men are by nature free and independent," should be so amended as to read that "all men, who are capable of becoming citizens of the United States, are by nature free and independent." But the proposition was so ridiculously absurd that even the sand-lotters themselves could understand, when everybody else commenced laughing at it. There were, however, others who took up the anti-Chinese cry; and some who seemed to understand the subject. One non-partisan moved a clause that "the Chinese must go," and another a clause prohibiting all further immigration of Chinese into the state. Then John F. Miller, apparently following the suggestions of the governor's message and taking the only practical method of reaching his object, moved that a memorial should be forwarded to the president and senate of the United States for a modification of the Burlingame treaty. He said that the state might protect itself against alien vagrants, paupers, criminals, persons having contagious or infectious diseases and aliens otherwise dangerous to the well-being and peace of the 'Debates and Proceedings of Convention, 80-371.

state, but that any proposition to prevent Chinese immigration in general was a matter of commerce, within the exclusive cognizance of the United States government and not of the state.

Miller subsequently made a long and elaborate speech on the Chinese question. Though, as chairman of the committee on the subject, he had reported the various anti-Chinese sections, he said the committee was not agreed and that he for one did not concur in all of them. The committee was unanimous that Chinese immigration was an evil; and that, if possible, the further influx of Chinese should be stopped; but there was a great difference of opinion as to the measures to be employed to remedy the evil. As for himself, he was satisfied that it was not within the power of the state to establish any regulations which would prohibit Chinese immigration, and that the state could not by legislation deprive either the Chinese of their rights under the treaty or any citizens of their right to employ them. He thought that the criminals amongst them might be sent away cheaper than they could be kept in Californian prisons; but, instead of sending all back to China, he suggested, if the people of the eastern states persisted in maintaining that the Chinese were as good as any other class of immigrants, to send them a brigade or two of the criminal and diseased classes and see how they would like them. On the other hand, he was of opinion that it was perfectly competent and proper to prohibit the employment of any Chinaman on state, county, municipal or other public work, and that it was desirable to do everything the state could lawfully and constitutionally do to rid itself of the great mischief. And he went into a long argument to prove that the traditions and uniform practices of the United States from colonial times down through the whole life of the republic did not properly apply to a nonassimilable people like the Chinese. He said that the sentimental class of political economists claimed that the Chinese would by their cheap energy promote the growth of industry and stimulate wealth, and that their exclusion would be an economic mistake. But he answered that, though the Chinese might work well and be quiet, peaceable and industrious, and though cheap labor might be in an economic sense and under certain conditions an advantage, their cheap labor would not be so to California.