DEMOCRATS OBSTRUCT REGISTRATION, APRIL-JUNE, 1870
On March 31, 1870, the day after Grant and Fish issued their proclamations, Thomas Peterson-Mundy, an African American living in Perth Amboy, New Jersey, cast his ballot in a municipal charter election. New Jersey law not only confined suffrage to white adult males, but that state also joined California and a handful of other northern states in refusing to ratify the Fifteenth Amendment. Despite violating New Jersey law, Peterson-Mundy's vote went unchallenged, in part because a Democratic white city official encouraged him to exercise his constitutional right. He thus became the first African American anywhere in the nation to cast a vote under the new amendment.1
Black suffrage came less swiftly in California. Article II, Sec. 1 of the state constitution still limited registration to adult, white, male citizens. The legislature indirectly incorporated those restrictions into the Registry Act, requiring that each voter meet the qualifications prescribed by the constitution and register with the clerk in the county of his residence. The clerk would then add the voter's name to the county's Great Register.2 Officials in New Jersey might overlook a "whites only" clause, but several California clerks proved to be less accommodating.
In addition, many Democratic editors and legislators continued to argue on several grounds that the "so-called Fifteenth Amendment" was not an amendment. They claimed that the subject matter - suffrage - was not within the authority of the national government, even by amendment.3 They charged that some of the southern states counted among the ratifiers were not recognized as states when they ratified.4 They argued that the southern legislatures that ratified the amendment did not represent the white people of those states.5 They challenged the ratification process, claiming that it took place "at bayonet point" in some southern states as a condition for restoring their seats in Congress.6 They pointed out that New York had rescinded its ratification and that the Indiana legislature lacked a legitimate quorum when it ratified.7 Even when they conceded the amendment's constitutionality, they reasoned that it needed "appropriate legislation" to become effective and a more official notice than a printed announcement in a newspaper.8
Shortly after the official proclamation of ratification, California State Attorney General Joseph [Jo] Hamilton, a Democrat, urged the state's fifty county clerks to defer black registration until adoption of the "appropriate legislation" referred to in the amendment's second section.9 In essence, Hamilton ignored the arguments used most frequently by Governor Haight, other Democratic politicians, and some newspaper editors: that it was unconstitutional to impose national standards for suffrage upon a state through an amendment and that the ratification process was illegal.10
County clerks were unsure of their obligation regarding registration. Faced, on the one hand, with what seemed to be a national government mandate for black registration in the form of the Fifteenth Amendment, and on the other with a state attorney general and state constitution solidly supporting a "whites only" voter policy, the clerks followed different paths. Some sought the advice of the state attorney general. Others turned to the federal government for direction. In San Jose, Stockton, Sacramento, Nevada City, San Francisco and Los Angeles African Americans met notable resistance from reluctant or hostile county clerks.
A) SANTA CLARA COUNTY
Hamilton's opposition to implementation of the amendment received its initial challenge in Santa Clara County, the earliest registration battleground. On April 1 Peter W. Casey and a companion, described in the Republican press as "two intelligent colored men" living in San Jose, appeared at the clerk's office and attempted to register. Rebuffed by a deputy clerk who claimed he had no authority to register them, they appealed to County Clerk John Littlefield. He refused to reverse his deputy's decision, but agreed to take the matter under advisement.11
To determine his course of action, Littlefield telegraphed Secretary of State Hamilton Fish for instructions:
San Jose, April 4, 1870, 1:15 p.m....
Has the Fifteenth Amendment been officially declared part of the Constitution of the United States? Please answer.
John M. Littlefield
Washington, April 5, 10 a.m.
To J. M. Littlefield: The Fifteenth Amendment has been officially proclaimed as a part of the Constitution.
Littlefield deemed this sufficient and began to add the names of African American citizens to the Great Register, from which they would be transferred to the poll lists of their respective wards.13 The San Jose Patriot, convinced the reply from Fish settled the question, offered Littlefield the thanks of the public and especially "of the colored citizens, for he has obtained the official information required, at an expense to him in telegraphing of about sixteen dollars."14
On the afternoon of April 7 at least twenty "colored men" registered in San Jose. Peter Wagner won the honor of being the first black man registered in the state under the Fifteenth Amendment. A deputy county clerk spotted Wagner walking along the street and invited him to register. The forty-six year old Kentuckian was followed in registration by the others, described as mostly "full-blooded Africans, and laborers."15
The San Francisco Call, before knowing that Littlefield had registered anyone, offered the following advice:
While Littlefield's action breached Hamilton's hoped-for solid front of opposition to registration, for the moment Santa Clara stood alone in its acquiescence to the amendment. Other challenges soon followed.
B) SAN JOAQUIN COUNTY
On April 6, after rejecting two African Americans who sought to have their names placed on the Great Register, San Joaquin County Clerk August Munter appealed to Hamilton, in seeming desperation:17
Hamilton responded tersely on April 7:
When a large number of blacks attempted to register on April 7, Munter, following the advice of Hamilton, denied them that right. In response, African Americans met later that day in a local church to plan a course of action.19
Munter was severely criticized for his decision, which, the San Francisco Bulletin scoffed, "savors of insanity."20 But most editorial outrage was directed toward Hamilton.
After reconsideration, Munter decided to register African Americans, and early on April 8 County Assessor C. H. Covell (assessors were authorized to register voters) began to enroll blacks on the Great Register. Between the two of them, Covell and Munter registered 49 African Americans.23 The Marysville Appeal added that there were 133 "colored men" in Stockton, the county seat, entitled to vote.24 White voters in the county, however, numbered 5,259.25 Hamilton had now lost two significant counties to the registration movement.
C) SACRAMENTO COUNTY
Initially Sacramento County Clerk William B. C. Brown also refused to register African Americans. The Republican Sacramento Union, presumably unaware that clerks in Santa Clara and San Joaquin counties now supported black registration, charged that
Brown's action had first become public on April 7 when nearly sixty Democrats, led by the men mentioned in the Union, published a letter applauding Brown for his stand:
W. B. C. Brown, Clerk of County Court of Sacramento County:
We have just learned that, in the exercise of your official duties, you have proven faithful to the oath which you took to respect the Constitution of the State of California, which limits suffrage to "white" men by refusing to register the names of black men as voters on the Great Register. As the right to prescribe the qualifications of voters has been exercised by the States, each in its sovereign capacity, since the formation of the Government, it is clear that the power is not one that has yet been "delegated," and since this State has refused, in the most emphatic manner, to assent to the Fifteenth (so-called) Amendment, it is equally clear that your refusal to register as voters the names of black men is in strict accord with the Constitution of the United States, as all men can satisfy themselves by reading the Tenth Amendment thereto.
For your fidelity to your sworn duty, and for your manliness in this time, marked by the degeneracy of so great a portion of the American people, we, whose names are hereunto subscribed, agree to support you with all the moral, and if need be, all the physical force God has given us.27
State Senator James W. Mandeville of Tuolumne County initiated the letter, and the many signers included Lovick P. Hall, Thomas N. Wand and Thomas Laspeyre. Mandeville, considered a likely candidate to succeed Governor Haight at the next election, first held a seat in the assembly, then in the senate, in the early 1850s. He served as U. S. surveyor-general for California later in that decade, accounting for occasional references to "General" Mandeville. After the Civil War he returned to the legislature.28
While the letter, subsequently referred to as the "Mandeville Manifesto," drew more immediate condemnation than support, editor Henry George of the Sacramento State Capital Reporter read the manifesto as an indication of growing hostility to the amendment and predicted that "The refusal to register negroes in this State... will probably be nearly general" and would throw the matter into the courts.29
The closing lines of the manifesto, in which the signers pledged "to support [Brown] with all the moral, and if need be, all the physical force God has given us," aroused particular scorn:
The folly of this pledge of physical resistance to the Constitution of the United States is only equaled by its wickedness.30
...Gen. Mandeville, Senator Wand and Long Primer Hall declared war upon the United States the other day, by pledging to the Sacramento County Clerk all the moral and physical force which God had given them, to resist the enforcement of the Fifteenth Amendment...31
James McClatchy, editor of the Sacramento Bee, denounced the manifesto as
Others treated the manifesto with the derisive humor McClatchy noted:
It is now definitely ascertained that the "last ditch" is located in some of the sloughs about Sacramento, and that Mandeville, Wand, Callahan and Co., who swear to preserve the polls inviolate from negroes with all their "mental and physical strength," have located a cemetery, intending to die and be buried therein--the eleventh hour heroes and martyrs of the "Lost Cause."33
It is believed the army under command of General Mandeville will be disbanded without even taking Mare Island or Alcatraz.34
Within a week this backlash against the manifesto resulted in "explanations" by some of the signers. Thomas Laspeyre, in a lengthy letter, explained that he was stopped on the way to his room in the Golden Eagle Hotel in Sacramento about 10 p.m. on April 6, was asked to sign a letter endorsing the action of Brown in refusing to register blacks, and, "without scrutinizing the paper, supposing it was only intended to indorse an officer in what I conceived to be a faithful discharge of his duties, I signed the document referred to."
Lespeyre acknowledged that printing the manifesto, especially the concluding paragraph, in the Reporter created "considerable sensation and caused much comment ... from a large portion of the public press of the State." But Lespeyre insisted that by endorsing Brown's action "I meant nothing which could imply a resistance to any constitutional amendment, or law of any character." He still maintained that in the absence of any Congressional or legislative act to implement the Fifteenth the clerk acted correctly in his refusal to register blacks and merited the support of "all true men irrespective of their party proclivities."35
He continued to challenge the legality of the amendment:
Lespeyre concluded with the prediction that the Democratic party would soon be strong enough
The following day Hall offered his explanation, noting that the signers "have been unsparingly criticized by the Republican press of the State." Unlike Lespeyre, Hall had "no regrets to express... for my action in this matter. I indorse every word and sentence contained in the card...." Arguing that an "amendment" dealing with suffrage was not an amendment to the existing constitution but the creation of a new power, Hall charged that California had never delegated control of suffrage to the federal government, which therefore had no right, even by amendment, to assert this authority.38
Hall, along with several other Democrats and newspapers, incorrectly argued that the Registry Act allowed only the registration of white men. In fact, the act as passed at the legislature's 1865-66 session and amended in 1868 made no reference to color, requiring only that the registrant meet the "qualifications prescribed by the [State] Constitution."40
Wand, too, felt it necessary to explain his signature on the now infamous manifesto.
Prior to publication of the explanations, County Clerk Brown had already reversed his position and enrolled blacks on the Great Register. On Saturday, April 9, Henry Yantes and Robert Christopher appeared before Brown and registered. Brown told the press that he had no personal knowledge of the manifesto addressed to him by Mandeville and the others.42
When no popular uprising in opposition to registration took place editor Charles De Young of the San Francisco Chronicle could not resist a final jab at the instigators:
ALL QUIET ON THE POTOMAC.
The Sacramento Anti-Negro Register Rebellion is over. General Mandeville has marched his troops into Winter quarters. The South would not respond with men, arms, and money. They intimated that the thing had been settled, the books balanced and closed out, the firm dissolved, and the entire business suspended, with great loss to the original projectors some five years ago. Generals Mandeville, Wand and Callahan, on hearing this, remarked: "Oh! Ah! Hum! Indeed!" and then proceeded to investigate the orifices from which they had issued.43
Over the next few weeks the number of registrants in Sacramento grew significantly, reaching 160 out of a newspaper estimate of 553 potential black voters in the county by the end of April.44 In late June eleven African Americans came down from Folsom to add their names to the Great Register.45
D) NEVADA COUNTY
In contrast to the policy of clerks in Santa Clara, San Joaquin and Sacramento, Nevada County Clerk J. J. Rogers had initially registered the first blacks to appear before him. On April 8 a twenty-year resident of Nevada City, bearing the appropriate name of John Adams, registered and within an hour another 14 more added their names.46 Then County Clerk Rogers,
The Republican Nevada City Daily Transcript, in reporting this change of mind by Rogers, predicted that the effort by some county clerks to defeat the amendment by simply refusing to register blacks would prove "utterly futile."47
In contrast to the terse reply he sent the San Joaquin clerk earlier, on April 11 Hamilton presented a much more detailed response to the brief telegram he received from Rogers:
Hamilton replied this time with "I think," a phrase that also drew fire from his many critics.49
While his statement is unclear, Hamilton probably referred to the California court, not the United States court.
Hamilton recognized that men whose opinions he respected stood on either side of the issue. He had urged those who believed that blacks were now entitled to vote to prepare a test case that would settle the controversy. The failure to arrange for a test case rested on those who supported black suffrage, suggesting that they lacked confidence in the legality of their position. Until such a judicial decision was reached, Hamilton advised against the registration of negroes.
Hamilton believed it the duty of the clerks, sworn to execute and obey the laws and Constitution of the state, to register no one but adult white males. The Fifteenth Amendment could override this only if it were self-operating, a phrase frequently used in the debate. "Self-operating" meant that the amendment's provisions became effective upon ratification, and enforcement required no additional congressional or state legislation. If not self-operating, ratification by the necessary number of states did not per se make it the paramount law of the land, overriding state laws. In that case it would require further legislation to make it effective.52
Why was the article not self-executing upon ratification? By the second section of the amendment, Hamilton argued, its framers conceded that it was not intended to be self-operative since it empowered Congress to pass "appropriate legislation" as required to make the amendment effective. The President's proclamation failed to qualify as additional legislation.53
[W]hen your duty as an officer is plain under the Constitution and laws of your State upon the one side, and when you are to guess at the intention of conflicting laws, unfixed, uncertain and ambiguous, on the other, [we have a right to expect] that you do obey that law and that Constitution by which and from which you are created, until at least the other path of duty be less dim and uncertain, and until the Federal Government... makes such appropriate legislation [and] sets in motion such machinery as renders it our duty to disobey the Constitution and laws of our own State.54
I apprehend it will not be contended that any power other than the State can alter, change or amend the Constitution of a State. Coercion may be applied, but the change must in any event voluntarily or involuntarily come from the State and its people.55
Therefore, while our Constitution and statutes remain as they are; while this so-called amendment to the Federal Constitution stands as it does, until there be such appropriate legislation as seems to have been and still is contemplated, I am of opinion that negroes are not entitled to registration in this State, and that it is not only not the duty of County Clerks to place their names upon the Great Register, but it is their duty not to do it.56
Hamilton's position found little support, even among Democratic papers. Despite the fact Governor Haight had named the Sacramento Reporter the official state newspaper, and that Henry George owed his appointment as editor to his close friendship with Haight, the paper stood in editorial opposition to both the governor and the attorney general regarding obedience to the Fifteenth. Still, the paper conceded that there was "no more acute and cautious constitutional lawyer in the State" than Hamilton.57 George argued that the Fourteenth Amendment conferred the right of citizenship upon blacks, the Fifteenth prohibited state denial of suffrage to any citizen on account of color, the state constitution conferred suffrage upon every male citizen possessing the prescribed qualifications (of which white was no longer one in light of the amendment), and the Registry Act required the clerk to register all otherwise qualified persons upon application. Acknowledging that many Democratic clerks were registering blacks, the Reporter applauded them for enforcing a law "that is opposed to their preconceived ideas of right."58
The Sonora Union Democrat's Charles Randall agreed:
The weekly Sonoma Democrat, edited without doubt by the most unreconstructed states rights Democrat holding an editorial position in California, challenged Hamilton's belief that implementation required "appropriate legislation." While willing to let the courts decide the question of whether the state constitution or the federal constitution was paramount in a matter involving suffrage, editor Robert Ferral refused to accept "appropriate legislation" as a means of resolving the dispute:
In a scathing denunciation of Grant's proclamation - entitled "Grant's Latest Lie" - Ferral charged that:
The Great Reticent [Grant], who established for himself, under the Johnson Administration, the name of being a most infamous liar and who has since earned the not much less dishonorable name of the "National Gift Receiver and Distributor of Appointment," has recently committed another escapade and published to the world his infamy [the proclamation]....
He was not satisfied with simply declaring it ratified. He ... speaks of "that revered constitution." With just as much propriety could the devil talk about the beauty and loveliness of heaven as can Grant, or any radical satrap or centralizing despot, speak of any revered instrument....
The people are never justified in submitting to the perpetration of wrong and injustice, let it come from whatsoever source it may. Resistance must be made to every movement having for its object the enslavement of a free and enlightened people. It is our bounden duty to resist and oppose tyranny and oppression; to protect and defend our rights, and our liberties, and our honor.
What resistance can we make to the enforcement of this odious measure? It is contrary to the recognized rights of the several States--rights never surrendered to the General Government. It takes from the State the power to regulate the question of suffrage, and puts it in the hands of a few at Washington. Our State Constitution provides that none but white men shall vote, and according to the Great Registry white men only can be registered.... This matter can only be settled properly by referring the whole matter to the Courts, and until this be done the officers of the State, and of the several counties of the state, should comply with the law of the State.61
The Democratic weekly in Auburn, the Placer Herald, was one of the few papers supporting Hamilton's theory that the amendment needed additional legislation to activate it, asking how a county clerk could be punished for failing to register blacks when the amendment provided no penalties. Since no punishment existed for violation of the suffrage amendment, it was not self-executing. Still, the Placer Herald continued to use the argument, which Hamilton chose to ignore, that the amendment was not legally a part of the United States Constitution.62
In a letter to George's Reporter, Charles T. Botts argued that the amendment was not self-executing since it provided no standards for suffrage. Botts' opinion was especially important because, as a delegate to the 1849 state constitutional convention, he successfully argued for enfranchising only whites so that the "objectionable races" - Indians and blacks - could not vote.63 Botts, who also served as a district court judge in 1850,64 now argued that the amendment voided all voting qualifications in California. In his view, the courts had ruled that when one part of a law is declared unconstitutional the rest of it may stand only if the parts are not mutually connected with and dependent upon each other. To Botts, the three voting qualifications included in the state constitution - white, male, citizen - "form one whole and constitute a voter." Omission of the word "white" rejected the legislative will as expressed by the other two words. Thus, the amendment struck down the entire Registry Act until the legislature rewrote suffrage qualifications. On that ground, clerks correctly denied the registration of blacks because the amendment was not self-operating.65 In response, George argued that only the word white was stricken from the state constitution, leaving the rest of the suffrage requirement in effect since the other two provisions - citizen and male - were unaffected by the amendment.66
The San Francisco Examiner, recognized as the leading Democratic journal in the state,67 joined George in challenging Hamilton's belief that the amendment remained inoperative until the enactment of "appropriate legislation." Bowing to the inevitable fact of black registration although still hinting at the unconstitutionality of the amendment, editor Benjamin F. Washington held that no state should delay registration until forced to register blacks or suffer Congressional penalties:
For taking this position, some of the state's Democratic press condemned the Examiner:
Republican papers pounced on Hamilton's letter to the Nevada county clerk:
Attorney-General Hamilton has written a long letter to sustain his "don't think" that registry should be allowed colored citizens.... [T]he Attorney-General makes the astonishing declaration that "it will not be contended that any power other than the State can alter, change or amend the Constitution of a State."... Now, if the amendment does not "change or alter" the State Constitution, how can the "appropriate legislation" have the effect the Attorney-General concedes to it? He denied that an amendment or anything else but State action can change the obligation of the State Constitution, yet he admits that a little Congressional legislation will remove the difficulty!
This reasoning will not hold water. Better at once indorse L. P. Hall's doctrine: "I hold that the obligation to obey the Constitution and laws of one's State is paramount to the obligation to obey those of the United States."70
Under the heading "Curious Legal Assertion," James McClatchy also singled out Hamilton's claim that only the state could alter or amend the California constitution. Citing the clause in the federal constitution that "This Constitution and the laws" made under it "shall be the Supreme law of the land," to which all state judges were bound, the Bee insisted that California's constitutional prohibition against registering any but white adult males was a "dead letter... altered by a power outside of and beyond and above the people of California."71
Charles De Young's Chronicle, despite its conservative Republican position, insisted that the amendment was self-executing. De Young argued that an amendment was part of the United States Constitution and as such was binding on any state without additional legislation. In case of conflict, state constitutions and laws gave way to the amendment. The Thirteenth Amendment freed slaves in the Confederate states whether or not those states passed "appropriate legislation." By virtue of the Fourteenth Amendment, blacks born in the United States became citizens without state action. So it was with the Fifteenth.72
Because of its location at the county seat, the Nevada City Daily Transcript devoted considerable space to the theory Hamilton outlined in his letter to Rogers. The Republican paper editorialized that all state constitutions and local statutes gave way before the amendment since the right to vote existed even if these constitutions or laws remained unchanged. The amendment nullified the word "white" in every state constitution, insofar as it restricted the right to vote. Responding to the widespread fear that the amendment would enfranchise Chinese immigrants, the Transcript assured its readers that the amendment only applied to citizens, and so long as the naturalization laws remained unmodified, the Chinese in the country were not granted suffrage.73
Suggesting that a conspiracy existed "to prevent as long as possible the enrollment of colored men upon the Great Register," the Transcript had previously condemned the action of the Sacramento county clerk, who at that time still refused to register blacks:
Those officers who absolutely refuse to register this class of citizens, must certainly have forgotten that their oaths bound them to obey, first, the Constitution of the United States, and afterwards, the Constitution of California; and that in case of conflict between these instruments the State law is void....
These men are bound to vote, and it is simply madness to try to prevent them by State authority. In New Jersey and other States, they have already voted by virtue of the Amendment, and the former State has a local law of the same nature as California.74
In fact, New Jersey Attorney General Robert Gilchrist, who firmly believed that Congress used unconstitutional force to obtain ratification of the amendment, nonetheless held that the Fifteenth voided state voting restrictions based on color, such as those in New Jersey and California.75
To those who had objected that an official proclamation was required before the amendment became effective, the Transcript added: "The publication of that document (Grant's proclamation) will satisfy all such, and entitle black men to registration." But anticipating further resistance, the editor prophetically added: "If they are refused, an application for a writ of mandamus will soon settle the matter, and give them the rights to which they are entitled."76
The following day, however, the Transcript dismissed the idea of a law suit, replacing it with reliance on a "force bill" then pending in Congress. "This [suit] would cost money and would not, probably, secure the right before the bill we have alluded to, becomes a law." Anticipating rapid adoption, the editor, still unaware that the Sacramento clerk had begun to register blacks, wrote:
Many clerks, wrote the Transcript, await "official notice before they are bound to obey" the amendment. Citing current examples of newly passed laws that local authorities implemented without formal notification from Sacramento or Washington, the editor argued that it "is the duty of every officer to know the law, and he is not excused from its requirements until the Secretary of State... chooses officially to inform him." Furthermore, reliance upon the state attorney general was of no force when applied to national law. Instead of writing to Hamilton for guidance, "the proper source of information would be the Secretary of State or the Attorney General of the United States." The Daily Transcript concluded that "the officers of this State are only seeking pretexts for delay and to evade the law."78
Amid all the fuss arising from Hamilton's answer to Nevada County Clerk Rogers, the latter quickly reversed his position and on April 12 reopened the register to blacks. By April 14, 52 African Americans were on the county's Great Register. More than three-fourths were born in slave states, although the register did not record whether they were born free or slave. One-third listed their occupation as "laborer," and "miner" appeared frequently. But "musician," "teacher," and "restauranter" were also listed, along with the expected "barber," "bootblack," and "cook." Most African American registrants were in their thirties or forties; the youngest was 23, the oldest 68.79
Once their names were on the register, an additional delaying tactic emerged. With rumors circulating that black candidates intended to run, African Americans were especially anxious to vote in municipal elections set for early May in Grass Valley and Nevada City.80 When one registrant requested that the Grass Valley Election Board place his name on the poll list, the local body refused until advised by the state board.81 Eventually the town board offered to register colored voters if they produced certificates from the county clerk. Isaac Sanks, one of Grass Valley's most prominent African Americans, went to Nevada City to obtain the certificates so that prospective black voters could present them to the board and have their names enrolled on the polling list.82 On April 29, the last day to add names before the election, the board appended the names of the 15 black voters living in Grass Valley to the list.83
E) SAN FRANCISCO84
San Francisco, containing nearly one-third of the state's African American population, also harbored a hesitant clerk. On April 7 Thomas Hyer, "a colored citizen," stopped by the office of County Clerk John J. Hanna, intending to register. Although agreeing that enrollment was justified, Hanna politely denied the request, stating that he wanted instructions from the attorney general. Hyer then withdrew, willing to wait until the following week when he planned to call again.85
Two days later, eight other blacks also applied in San Francisco, but Hanna, a Republican who would soon be reappointed as an advisor to Attorney General Hamilton,86 refused to accept their applications "as he had no official notice of the adoption of the Fifteenth Amendment." He intended to wait for a certified copy of Grant's proclamation in order to avoid any question as to the legality of their registration.87 The San Francisco Chronicle regretted that a Republican "has taken the same unwise course in the matter as the Democratic officials, and refused to register negroes as voters."88
In mid-April, as one reluctant clerk after another bowed to the inevitability of registration, Hanna relented. April 14 was designated as registration day in San Francisco. At an early hour that morning "a number of colored men was seen in front of the County Clerk's office waiting for the appointed time to become registered on the grand Register." Enrollment began at 10 a.m., with Edwin White Robinson the first.89 Editor Philip Bell, in his Elevator, noted some concern about the "scanty number" who appeared for registration, but explained it away by citing confusion over the exact time of registration, the fact that not all knew about registration day, and the distance involved for some registrants. But Bell, whose Elevator was San Francisco's only black paper during the registration controversy, expressed hope that in a few days "or less" every colored American would register "insomuch as to prove himself the man and privileged citizen, and to push forward with his might--use every nerve, raze every obstacle and assist triumphantly to secure the progress and power of the Republican party."90
While Bell expressed disappointment over the pace of registration, the number enrolled was actually quite remarkable. By 2 p.m. 75 had registered.91 At the end of the day the number of applicants reached one hundred, of whom 99 were accepted. Among them was 99-year-old James W. Dennison, a native of Massachusetts.92 By the third day about two hundred had registered.93 The number, while large, did not meet expectations and fell far short of the fifteen hundred that the Marysville Appeal's San Francisco correspondent Laura Wakelee had unrealistically predicted a few days earlier.94
F) OTHER COUNTIES
Elsewhere the first African Americans began to register. On April 12 Frederick A. Sparrow became the first black to register in Napa.95 Within a week Napa's registrants numbered forty.96 On April 13 R. E. Gardiner, Tuolumne county clerk, registered the first Fifteenth Amendment voter there. He was reportedly
Quipped the Chronicle's De Young: "We congratulate General Mandeville on his black ally."98
Shasta County's clerk, unwilling to wait for special legislation, opened the rolls to blacks by mid-April, registering all who appeared.99 At the same time the Solano County clerk began black registration.100
The Mariposa Gazette, on April 22, noted:
After the ratification celebration in Watsonville, all ten men eligible to register went to Santa Cruz, the county seat, where they enrolled without opposition.102 By mid-month twenty blacks had registered in Santa Cruz County.103
On April 17 the Marysville Appeal published a list of 37 "Colored Voters" who had registered with Yuba County Clerk Bernard (Barney) Eilerman. Fifteen of them were Virginians by birth; only five were born in free states. They ranged in age from 23 to 73, with slightly more than half in their forties and fifties.104 By early July registration reached 43.105
After mid-April Contra Costa106 and Alameda107 counties recorded their first black registrants. The Tehama County clerk acquiesced as well, registering nine African Americans. In addition, the assessor took several names for enrollment "in due time." The Red Bluff Independent estimated the potential number of Tehama registrants at thirty.108 Sierra County reported nine blacks on the Great Register in early May.109
By early June only two African Americans were on the Great Register in Sutter County.110 His registration went unnoticed by the major papers, but when J. Lewis served as a juror on May 23 San Mateo County's sole black voter was touted as "the first colored juror in California."111 While it is unclear whether he actually registered, the lone African American residing in Alpine County was expected to increase the Republican count by one.112 If blacks had registered elsewhere, the major papers of the state failed to report it.113
To the joy of Republicans, the process of registration spread gradually throughout the state, but editor Ferral of the Sonoma Democrat could not restrain himself from pointing out the hypocrisy:
But resistance continued in some counties. The Butte clerk still refused to register blacks in mid-April. When J. C. Jenkins tried to register in Oroville that month the clerk insisted that there would be no registration until Governor Haight ordered it. George Crosette, editor of the weekly published at the county seat, endorsed the clerk's action, arguing that no black registration should take place until Congress enacted the legislation authorized by the amendment's second section and the state legislature altered California law to conform to the amendment.115
Sonoma County Clerk William Morris won praise from Ferral for his anti-registration stand.116 Whether or not any of the following factors motivated Morris, Ferral attributed them to him:
Despite the refusal of the Sonoma clerk to accept non-white registrants, African Americans voted on April 18 in Petaluma in that county. Since it was not necessary to be placed on the Great Register to vote in municipal elections and, according to Ferral, since Republicans controlled the local election board, "of course the darkey was as good a voter as `any other man.'"118
G) LOS ANGELES
Little was heard from the southern end of the state where, except for Los Angeles, the black population was negligible. The only existing counties in 1870 south of Kern and San Luis Obispo were San Diego (15 blacks), San Bernardino (8), Los Angeles (134) and Santa Barbara (38).119
By April 16 the first black Angeleno attempted to register, but Los Angeles County Clerk Thomas D. Mott refused Louis G. Green's registration, opting instead for a test case in which the courts could determine the clerk's responsibility.120 Mott, one of the leading Democratic figures in Southern California, came to the state from his native New York in 1849, settling in Los Angeles three years later. Despite his part in the registration controversy, in 1871 Mott won a seat in the state assembly.121
Mott's reason for rejecting Green's registration concurred with that used by other clerks. The Los Angeles Daily News, in reporting the attempted registration, noted that:
Whether acting on his own or in concert with Mott, Green promptly went to court, as provided for in the Registry Act, seeking a writ of mandamus to compel Mott "to show cause why he should not place upon the Great Register the name of the plaintiff who is a negro."123 Robert M. Widney, a future civic leader and soon-to-be prominent lawyer but at the time a young attorney with limited experience, represented Green. Glassell, Chapman and Smith, one of the city's most prestigious law firms, defended County Clerk Mott.124
Widney relied solely on the wording of the Fifteenth Amendment. Mott's counsel argued that Section 2 of the Registry Act authorized the clerk to register only persons who qualified as voters under the state constitution. Furthermore, Section 35 of the act barred the defendant, under penalty of fine and imprisonment, from registering any persons not so qualified. Neither the Fifteenth Amendment nor any other law placed upon him the duty of enrolling the names of blacks on the Great Register.125
On April 28 County Court Judge Ignacio Sepulveda, a member of one of the state's foremost Hispanic families and "a Democratic luminary" and former assemblyman who later served as district judge and as one of the county's first two superior court judges, rendered his decision. That Mott was Sepulveda's brother-in-law seems not to have been an issue.126 In reasoning and phrases that paralleled the words of State Attorney General Hamilton, Sepulveda upheld Mott's refusal to register Green.127
Luis G. Green vs. T. D. Mott, County Clerk. This is a case of mandamus to compel the County Clerk to enroll the name of the relator Green, a colored man, as a voter, under the Fifteenth Amendment of the Constitution of the United States. That the Amendment is the law of the land no one can question. But is it sufficient by itself... to warrant the Clerk to register the names of colored men, which the State Constitution does not allow, and the registration laws of California prohibit, and to exonerate the said Clerks from the penalties imposed by the State laws, or does it require additional legislation by Congress to carry it fully into operation in its details?...
The wording and spirit of the Amendment is so general in its meaning that it cannot be operative without regulations to enforce and prescribe the mode in which it shall be carried into effect. For though the right to vote cannot be denied to colored men, the qualifications necessary for Clerks to register the individuals of that class, are not in any manner prescribed. The very terms so general in which it is couched clearly points to something more to be done,...
The second section directs that Congress shall have power to enforce the first section by appropriate legislation. This surely contemplates that legislative enactments are necessary to accomplish the object of the Amendment. I conceive that it is a general Constitutional provision only. It provides no penalties for those that infringe it or disallow it. It cannot punish its violation, and hence it is not self-executing; for really it has no modus operandi, and cannot be enforced. This Amendment cannot protect itself, and a law that does not provide for its defence, and does not set forth the means to compel obedience to it, is, for the meantime, inoperative, until proper enactments give it the required vitality.
I am fortified in the position thus taken by the case decided in the Supreme Court of the United States, of Groves vs. Slaughter, reported in 14 Curtis 137 (15 Peters, 449).... In that case, there was as powerful an array of counsel for either side as ever was displayed at any time, Webster, Clay, Walker and Gilpin. The Supreme Court decided, that to prohibit the introduction of slaves, and to carry into effect the slave provisions [of the Mississippi state constitution], enactments of the legislature were required. The provision could not operate by itself...
Furthermore the mandamus cannot lie because the Clerk in registering voters acts in an executive capacity, and can only act pursuant to the State law, which prohibits him from registering colored men....
In view of the above reasons succinctly adduced, the mandamus is refused, for it only lies where the duty enjoined and sought to be enforced is clear...
Thus, the court decision that several participants in the controversy called for nearly two months earlier finally came forth. Green quickly announced his intention to move his case to the local district court, seeking a writ there and hinting at an ultimate appeal to the state supreme court if denied by the district judge.129 While Sepulveda's ruling would have made a greater impact if delivered in early April, by the end of the month both his decision and Green's appeal to the district court were about to be superseded by an act of Congress.130
H) THE ENFORCEMENT ACT OF MAY 31, 1870 [THE "FORCE ACT"]
California was not alone in obstructing registration. In Delaware, registrars played hide and seek with potential black voters, and when they did register blacks the clerks often misspelled names or recorded wrong addresses. Pennsylvania blacks, too, encountered difficulties when they attempted to register in 1870.131 Congress investigated the denial of black voting rights in Rhode Island, considering it a violation of the Fifteenth Amendment.132 The Los Angeles Daily Star, reporting that "certain parties here as well as elsewhere have been fighting against the enactment of the fifteenth amendment," cited Rhode Island specifically.133
Even before the troubles in California and Rhode Island, Congress, in anticipation of obstructionism in the North and the possibility of future disfranchisement of blacks in the South, hurriedly prepared punitive legislation in the form of a force bill. In late March the House passed "An Act to enforce the Fifteenth Amendment to the Constitution," but the Senate delayed action.134
Commenting on the original House version of the bill, the Sonoma Democrat's Ferral wrote:
The radicals knew full well that the true citizens of the south were opposed... most bitterly to the degrading idea of "the universal brotherhood of man," and the worse than outrageous demand for "universal suffrage," and that a military power was necessary to make them swallow such a nauseous dose. The mongrels resolved to use force, because on that alone depended their future existence....
The Congress... forced negro suffrage on one section of the country because the necessities of the radical party required it, and now Congress proposes to do the same thing on the other section....135
Republicans applauded the Congressional effort to enforce the voting rights won by the Fifteenth Amendment, saying "This will cover the `constitutional' grounds of Jo Hamilton, and other Democrats who show a disposition to swindle our colored citizens out of their rights under the law."136
West coast residents remained largely uninformed about the contents of the force bill. Incomplete wire service reports hindered the printing of its provisions and left at least one editor confused about the status of the bill. When on April 30 the Marysville Appeal reported that "Congress has already passed a law to enforce the provisions of the Fifteenth Amendment," the Placer Herald correctly scoffed that no such law had yet been enacted.137
The Reporter claimed that Associated Press dispatches "have been strangely reticent in regard to the nature of the bill." Editor George speculated that Republicans intended to remove all restrictions on Chinese naturalization and to prohibit state legislation discriminating against immigrants from any foreign country. By its action
When the bill finally cleared Congress and awaited the President's signature, the Petaluma Journal and Argus still fretted that the "provisions of the bill are not yet fully known here."139 As late as June 1 McClatchy of the Bee could only write that "It is said to be stringent."140
On June 3 McClatchy finally printed the Force Act in detail.141 When the Democratic Oakland Transcript called the act "another link in the chain of tyranny forged by the Congressional tinkers at Washington," McClatchy urged his readers to read the act as printed. "It puts all citizens on an equality before the law! This and no more. Is that tyranny!"142
Sections 3 and 4 of the Force Act, which went into effect on May 31, were designed primarily to protect Fifteenth Amendment voting rights by imposing fines and penalties on those who obstructed or hindered any person from voting. The United States Supreme Court struck down these sections in 1876.143
I) LOS ANGELES AGAIN
On June 21 Los Angeles County Clerk Mott capitulated, registering Green and three others.144 The Los Angeles Daily News noted that Mott was acting in compliance with the Force Act to register "free Americans of African descent," and the Democratic paper added, with a slight sneer:
In addition to Green the first registrants were John Dean, George Van Buren, and Nelson Smiley.146 Green was a 43-year-old barber and a native of North Carolina. Dean, 42, was also a barber, born in Nassau in the West Indies.147 Dean's registration is accompanied by a notation in the Great Register: "per 15th Amendment to U.S. Constitution," a phrase found on nearly all black registrations in Los Angeles in 1870-71.148 In the printed copy of the Great Register, 1876, Dean is listed as naturalized in Massachusetts.149 As noted later in the chapter on elections, federal law limited naturalization to whites only, raising questions about the conditions under which Dean was naturalized.
The 1876 volume of the Great Register did not list either Smiley, in 1870 a 23-year-old cook from South Carolina, or Van Buren, 46, a waiter from New York, as currently registered. A notation for Van Buren says "removed" while Smiley's registration was canceled in 1874.150 Van Buren and Green were listed in late 1870 as Los Angeles agents for San Francisco's other black newspaper, the Pacific Appeal.151
The most prominent figure among Los Angeles County's black registrants in 1870 was Charles Owens, son-in-law of Biddy Mason, the matriarch of the city's black community, and son of the late Robert Owens. Charles Owens registered on July 5, listing his state of birth as Arkansas, his age as 38, and his occupation as farmer, as did four other registrants.152 Other occupations listed by black Los Angeles registrants were: cook (6), laborer (3), teamster (2), barber (2), carpenter (1), waiter (1) and blacksmith (1).153
In the handwritten register maintained from 1866-72, nearly all black registrants have the letter "C" written in front of their registration number. Nearly all include the handwritten reference "per Fifteenth Amendment" in the column where the registrar recorded notes such as naturalization for foreign-born voters.154
In late June the Los Angeles Weekly Republican reported, with a sarcastic reference to the effort by some Democrats such as Kewen to woo black voters:
Actually by that date the register held only 10 black names. The number of black voters grew slowly over the next two years. Twenty-one enrolled in 1870 and by the end of 1872 that increased to only 27, although the Elevator estimated that there were seventy black voters in Los Angeles in September, 1871.156 As late as 1876 Warner, Hayes and Lindley, in their history of Los Angeles, estimated the total black population of the city that year at 175, with black voters numbering 75.157
Overestimation also occurred regarding the potential number of black voters in other cities. In San Francisco, at the beginning of June, Republicans rejoiced over the prospect of "a thousand Negro voters" although the Great Register at that time only contained the names of 380 African Americans.158 As late as 1880 black voters in San Francisco may have numbered no more than 450.159
While the number of registrants gradually increased throughout the state during the next few months, an early prediction of as many as 3,700 African American names on the state's Great Registers far exceeded the actual number.160 The Stockton Independent, a Republican paper, rejected a New York Tribune estimate that California had only 681 black voters. In a painstaking extrapolation of statistics from the 1860 census, the Stockton editor concluded that the number was more likely 2,065, but then he dismissed his carefully deduced answer and ventured a guess that the number would be closer to 2,800.161 The Reporter first estimated the black vote statewide at 3,000, a "number which politicians cannot afford to overlook or despise." Four days later editor George raised that figure to "five or six thousand."162
The actual number of black registrants in 1870 can only be approximated. Although California's major newspapers dutifully reported registrations from various counties as they came in by telegraph or were picked up from smaller papers and reprinted, they carried registration reports for only 28 of the 50 counties. Four of those 28 - Butte, Fresno, Marin, and Sonoma - refused to register blacks even though other reluctant clerks gave in.
The total black population of the state in 1870 was 4,272, of whom 1,731 were adult, male, blacks age 21 or over. The 24 counties that are known to have allowed registration contained 3,524 blacks, slightly over four-fifths of the African Americans in the state.163 In those 24 counties, the total registration reported in the press and the Great Registers was 838, approaching one-fourth of their African American population. If William Gillette's assumption that the potential black vote generally constituted one-fifth of that population is correct, the expected number of registrants in all 50 counties should have been 854.164 But if blacks had registered in the remaining 26 counties in the same percentage as in the 24 counties where registration did take place, statewide black enrollment in 1870 would have numbered 1,016.
Based on statistics taken from the 1870 census, Eugene Berwanger estimated that California's "whites only" suffrage law had denied the vote to the 1,731 male blacks over the age of twenty. But that fails to consider that approximately 7.5% of all blacks in California in 1870 were foreign-born. Foreign-born black males of all ages numbered 322; native-born 2,514. The overwhelming percentage of foreign-born blacks were not yet naturalized citizens and therefore not entitled to vote under the amendment. Consequently, the number of African American voters eligible to register under the amendment in 1870 was no more than 1,600. Thus, the names of a remarkably high 63.5% (1,016) of California's potential black voters probably appeared on the state's Great Registers in the spring of 1870.165
While motivation for the Fifteenth Amendment was primarily to ensure Republican electoral success in states where white voters divided almost evenly between the two major parties, the enfranchisement of blacks in California failed to accomplish that end in municipal elections held in the months following the registration of California's first black voters.166
An African American orator in San Francisco, speaking at a meeting of a black political organization, noted that "[M]atters are now changed since the passage of the Fifteenth amendment, and we are no longer the `everlasting nigger,' but are complacently described as `our fellow citizens.' " San Francisco Daily Alta California, quoted in the Reporter, May 26, 1870, p. 2; hereafter cited as Alta. The Alta's orator was not identified, but very well may have been Rev. James E. M. Gilliard, who made the same point a month earlier during a lecture at the Episcopal church on Powell Street in San Francisco.