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Free Soil, Unfree Labor [Cave Johnson Couts] (20 pages)
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Page: of 20
356 Pacific Historical Review
tion 16, Indians convicted of stealing “horses, mules, cattle, or any
valuable thing [emphasis added]” were subject to a fine of up to $200
or a flogging consisting of “any number of lashes not exceeding
twenty-five.” To prevent excessive cruelty, Section 17 required that
floggings be administered in the presence of the justice of the
peace, who had the authority to appoint someone, white or Indian,
to execute the sentence. This duty often fell to the willing hand of
the white complainant.'!
Meanwhile, the door to outright conscription and enslavement
of Indian labor in California was opened by the combined effects of
sections 6 and 7 of the Indian Act. Ostensibly a protective clause designed to halt the most outrageous aspects of the Mexican rancho
labor system, the latter provision dealt with the punishment of any
person who “forcibly conveys any Indian from his home, or compels
him to work, or perform any service against his will.” Instead of imprisoning such miscreants, however, the law permitted them to retain their liberty and to get away with just a fine of “not less than fifty
dollars.” Worse, the odds of getting a jury even to convict in the first
place were slim, since Section 6 declared that, although Indians
could bring complaints before a justice of the peace, “in no case
shall a white man be convicted of any offence upon the testimony of
an Indian, or Indians.” !?
Determining just what the 1850 Indian Act did and did not permit was, of course, ultimately a matter of its actual enforcement, a
11. The Statutes of California, 1849-1850, p. 409. Until 1856, for at least one group of
crimes, California did not reserve the whip exclusively for the correction of Indians. Under the state’s original criminal codes, anyone convicted of stealing or embezzling property valued at less than $50 could be punished “by any number of lashes not exceeding
fifty upon the bare back.” In all such “petit larceny” cases, however, juries retained the discretion to impose fines or jail terms in lieu of a flogging. In 1856 the petit larceny codes
were amended so that those other options became the only permissible punishments for
non-Indian offenders. From that point forward, only Indians could be legally flogged in
California. See S. Garfielde and F. A. Snyder, Compiled Laws of the State of California (Benicia, Calif., 1853), 647-650; The Statutes of California Passed at the Seventh Session of the Legislature, 1856 (Sacramento, Calif., 1856), 219-220.
12. The Statutes of California, 1849-1850, p. 409. Section 6 was amended in 1855 to
read that “in all cases arising under this Act, Indians shall be competent witnesses, their
credibility being left with the jury.” See The Statutes of California Passed at the Sixth Session of
the Legislature, 1855 (Sacramento, Calif., 1855), 179. It remained illegal, of course, to kidnap an Indian, but “forcible abduction” could not be prosecuted as kidnapping unless it
could be proven that the victim had actually been transported “into another county, state,
or territory.” Kidnapping convictions carried a mandatory state prison sentence of oneto-ten years “for each person kidnapped.” See Garfielde and Snyder, Compiled Laws, 646.
Cave Couts and Indian Labor
crucial fact that underscored the vitally important role played in
each California township by the locally elected justice of the peace.
In addition to the eight clauses already cited, sections 1, 5, 9, and 13
of the Indian Act vested broad powers in these minor magistrates
and made them by far the most important state officials in the administration of California Indian affairs. The law granted them “jurisdiction in all cases” involving Native Americans and made them
responsible for informing Indians of their legal rights and obligations under state codes. The justices also held considerable authority over Indian chiefs and headmen whom they could hold personally responsible for the refusal by a tribe or village to obey the laws.
Justices might also “require the chiefs and influential men of any village to apprehend and bring before them . . . any Indian charged or
suspected of an offence.” !%
In the functioning of California’s unfree labor system, the justices served as the essential links between white employers and Indian workers. In addition to supervising the binding of Indian children and the leasing of Native American prisoners, the justices were
supposed to preside over all interracial labor relations. Indeed, Section 5 of the law explicitly required that “Any person wishing to hire
an Indian, shall go before a Justice of the Peace with the Indian, and
make such contract as the Justice may approve” [emphasis added]. Although Section 5 was intended to govern work agreements between
consenting adults, many justices took advantage of its vague language to continue binding Indian children after 1860, when the revision of Section 3 had formally reassigned that power to the county
and district courts.'*
Altogether, the cumulative authority over Indian labor vested
in the justices created an immense and inherent potential for abuse.
This became evident whenever the office of justice fell into the
hands of an employer with a direct and personal interest in securing
Indian labor. Following a tour of the ranchos near Los Angeles and
San Bernardino in 1856, U.S. Army Capt. Edward Ord commented
at length on the Indian Act in a report to his superiors that underscored the powers granted to the justices. “It will be seen,” wrote
Ord, “that by the law, the overseer of a large rancho, has but to be a
‘Justice of the Peace’ and he is enabled to buy and keep Indian ser13. The Statutes of California, 1849-1850, pp. 408-409.
14. Ibid.