• There was never any serious doubt that California and New Mexico would join the Union as free states and territories.  Mexico abolished slavery in 1827; New Mexicans had little interest in reviving the institution, and slavery was not well suited to a desert climate in any case.  The South agreed to admission of  California as a free state as part of a larger 1850 Congressional compromise designed to avert war.  Southern immigrants were influential in the new state’s politics and there was some talk of legalizing slavery, but nothing came of it.  However, racial oppression was a part of the legal and cultural landscape throughout the Southwest.   California lawmakers enacted a black code shortly after statehood which, among other things, denied black residents the right to vote and to testify against whites in lawsuits and mandated segregation in schools and other public places. 

• Chinese immigrants began entering California in large numbers in the 1860s.  They soon became an important part of the state’s railroad and agricultural work forces and established many businesses, particularly laundries, in San Francisco and other urban centers.  Lawmakers quickly extended black code restrictions to cover them.     

• California’s supreme court was ambivalent about the black and Chinese codes.  In Hall the court, using language still notorious today as an exemplar of racism in early California construed the law prohibiting testimony against whites to prohibit any non-white racial group from testifying against whites.  In Washington, following the Civil War and several changes of personnel, the court held that newly-enacted federal civil rights laws required that Chinese and blacks be allowed to testify.  Over the objection of two dissenters, the majority suggested that all race-based restrictions on testifying were problematic and rejected as “extreme state rights doctrine”an argument that California could make rules of evidence independent of federal law. 

• One year later, in Brady, the court changed course:  it now agreed that California had the right to make its own rules, noted that the testimony at issue in Washington had been directed against a black defendant, and affirmed that no non-whites could testify against whites.  Federal pressure to eliminate race-based testimony continued, and in 1873 the California legislature repealed the testimonial restrictions of the black and Chinese codes.   

• The Civil War also led to the demise of peonage, an institution established during the Spanish colonial period  that was slavery in all but name. Unlike slavery, peonage was created by debt rather than at birth.  Debtors who could not pay were required to serve the person to whom they owed money until they could pay the debt.  If they could not pay and could not find someone to pay for them, their servitude would be permanent. 

• In Jaramillo, New Mexico justice Kirby Benedict brought peonage to the attention of the rest of the nation, describing and denouncing it in graphic detail.  Benedict and his colleagues did not abolish peonage, but they made clear that persons claiming to be improperly held to peonage would receive a careful hearing.  In 1867, Congress abolished peonage altogether. 

“[We have] called to mind a period under a former government in this country when no degree of tolerable certainty existed in judicial forms, proceedings, and decisions, and when the laws and their just benefits were so often set aside or crushed under foot by prejudice, corruption, or passion – by interest, power, and despotism.  We are fully aware how naturally and easily … have come down from that period notions greatly rigorous as to the power of the master over his servant, and how quickly the former is alarmed as to the retention of his supposed power.”  - Justice Kirby Benedict, in Jaramillo