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THE ESTABLISHMENT OF STATE GOVERNMENT
IN CALIFORNIA
The M
50.
THE MACMILLAN COMPANY
NEW YORK - BOSTON • CHICAGO • DALLAS
ATLANTA · SAN FRANCISCO
MACMILLAN & CO., LIMITED
LONDON - BOMBAY · CALCUTTA
MELBOURNE
THE MACMILLAN CO. OF CANADA, LTD.
TORONTO
'
THE ESTABLISHMENT ny
OF STATE
GOVERNMENT IN CALIFORNIA
I
11
1846-1850
BY
New York
THE MACMILLAN COMPANY
1914
All rights reserved
Copyright, 1914,
BY THE MACMILLAN COMPANY
- با من
جهت
9
/
6
مل
MY WIFE
MILDRED SMITH GOODWIN
PREFACE
THIS work covers the period in California history from
1846 to 1850. In the introductory chapter I have attempted
to trace, briefly, and in a very general way, the extension of
American influence over the territory from an early date to
the completion of the conquest. This is followed by a more
detailed account of the period of military rule and the po-
litical unrest resulting therefrom. The work of the Conven-
tion of 1849 and the election, organization, and important
enactments of the first Legislature have been given due con-
sideration. Chapter eighteen deals with the admission of
California into the Union, and in the final chapter will be
found some statistics on the population and resources of the
new state in 1850.
The general impression that a group of southern politicians
dominated the Convention of 1849 is contrary to fact as
may be seen. The extensive eastern boundary was not sup-
ported by southern men any more than by northern, and the
exclusion of the free negro was a question in which the man
from the northern states was interested as much as the
man from the South. The State Legislature, however, did
finally send two proslavery men to represent California in
the Senate of the United States.
The panic of 1837 had its effect on the revision and forma-
vii
vii
PREFACE
tion of sections in state constitutions dealing with corpora-
tions and banks. This has been treated, briefly in so far as
other states of the Union are concerned, and somewhat
more fully in the case of California. The sources of the Con-
stitution of 1849 have been traced. These will be found to
be more extensive than has been supposed generally.
Space will not permit me to name all who have so kindly
assisted me in this work. Special mention is due the au-
thorities of the Academy of Pacific Coast History, Berkeley,
California, for courtesies extended to me in the use of the
Bancroft Collection; to Mr. Frank Jordan, Secretary of
State, and to Mr. Ed. L. Head, Keeper of the State Ar-
chives, for permitting me to use the original copies of the
election returns; to Mr. J. L. Gillis, State Librarian at
Sacramento, and his assistants, not only for kindnesses ex-
tended while there, but for forwarding documents and data
from time to time at my request; and to Major Edwin T.
Sherman, Oakland, California, for permitting me to use his
Reminiscences, MS., a document here cited for the first
time. My classmate, Mr. George McMinn, now of the
University of California, read the manuscript and in many
ways improved it by his suggestions and criticisms. Miss
Dorothea M. Melden assisted me in comparing the manu-
script with the typewritten copy, and I am under deep
obligation to my wife for invaluable aid rendered in many
ways.
Especially do I wish to extend my thanks to Prof. Her-
bert E. Bolton of the University of California. It was at
his suggestion that I began the work a little over a year
PREFACE
ago, and to his friendly advice and criticism is due largely
whatever merit the volume may possess. He is in no way
responsible, however, for any mistakes which may be found
herein.
CARDINAL GOODWIN
STOCKTON, CALIFORNIA.
MARCH 6, 1914.
CONTENTS
PART I
.......
THE INTERREGNUM
CHAPTER
PAGE
I. INTRODUCTION: AMERICAN INFLUENCE AND THE CONQUEST..
A Beginning.................
Spanish Fear................
American Influence Increases.
An Attempt at Independence. .....
The Bear Flag.......
Official Schemes at Washington....
II. THE PERIOD OF MILITARY RULE.......
Cingressional View as to Legal Status of Conquered
Territory......
Papers Submitted by the President........
The Period of Stockton's and Frémont's Supremacy....
Kearny's Rule......
Mason's Rule...
III. GOLD AND ITS PROBLEMS
Mason's Report.
Immigration...........
Alcalde Rule.............
Newspaper Opposition.......
Opposition in San Francisco.........
IV. CALL AND ORGANIZATION OF THE CONVENTION
Public Meetings Recommending a General Convention..
Opposing Theories.................
The Proclamation Calling a Convention.....
The Reception of the Proclamation........
The Personnel of the Convention..........
The Organization.....
...................................
....
.........................,
CONTENTS
PART II
THE CONSTITUTIONAL CONVENTION
PAGE
91
94
...
..
......................
101
I08
..............
100
.................
IIO
.................
112
........................
I 20
H
TA
H
H
33
H
H
14
H
H
H
CHAPTER
V. THE DEPARTMENTS OF GOVERNMENT...
...................
Executive Department..
The Judiciary ...........
Legislative Department..........
VI. THE FREE NEGRO QUESTION..........
Sectional Character of the Controversy..
.. 108
The Probable Origin of the Question....
The Question Before the Convention.....
Opposition to the Resolution.
I18
The Defeat of the Resolution.......
An Analysis of the Forces...
VII. DETERMINING THE EASTERN BOUNDARY.....
Boundary of California under Spain and Mexico...
Boundaries Proposed by the Convention.........
The Nature of the Discussion...............
The Mormons and the Boundary..........
Non-sectional Character of the Contest.
VIII. CORPORATIONS AND BANKS...................
Financial Disorder in the Late Thirties.
Effect on State Constitutions.............. ....... 177
The California Attitude-Majority and Minority Report 178
Were the Majority and Minority Reports alike?........ 182
Gwin Charges Majority with Attempts to Force Banks
on the State.......
184
Fear of Paper Money.....
IX. EDUCATION AND TAXATION...
Article on Education....
................
Congressional Grants for Educational Purposes.........
Other Grants made by Congress..
.........
Should so Much of the State Lands be Set aside for
Education?..........
......... 201
Connection Between Education and Taxation.......... 206
Section on Taxation........
X. THE CONVENTION'S WORK COMPLETED....
Lotteries..
Dueling.......
Separate Property for Married Women........
HY
.......
..............................
193
193
.. 213
...................................
213
CONTENTS
xiji
PAGE
tion......
CHAPTER
State Debt, Suffrage, and Apportionment of Representa-
........ 218
When Shall the State Government go into Operation?... 220
Miscellaneous Provisions........
XI. SOURCES OF THE CONSTITUTION.....
Constitutions Influencing Debates...
Constitutions Compared......
...
.
.............
PART III
THE ORGANIZATION OF STATE GOVERNMENT
.........................
0
......
.
.
e..
..............
.
XII. ELECTIONS AND ORGANIZATION OF THE FIRST LEGISLATURE.. 247
Electioneering ............
The Election.....
Organizing the Machinery of Government.
XIII. THE GOVERNOR'S MESSAGE AND FINANCE......
Finance...............
XIV. CIVIL OR COMMON LAW.......
Organization of Courts..........
XV. LOCAL GOVERNMENT AND OTHER LEGISLATIVE ENACTMENTS 292
Counties.......
292
The Incorporation of Cities........
297
Other Acts Passed by the Legislature
306
XVI. THE LAND QUESTION......
Spanish and Mexican Grants.....
The Alvarado Grant.....
311
Legislative Enactment...............
313
United States and Land Titles...........
XVII. THE SECTIONAL CHARACTER OF THE FIRST LEGISLATURE.....
The Attempt to Exclude...
The Failure of Old Line Sectionalism.....
XVIII. ADMISSION TO STATEHOOD AND INFLUENCE IN THE SENATE..
The Subject Before Congress....
The Committee of Thirteen Appointed...
332
The Committee's Report........
The Bill Passes......
308
308
.
.
.
.........
315
318
318
.
.................
323
328
328
..
.
....................
335
337
xiv
CONTENTS
PAGE
CHAPTER
How did California's Admission Affect the Comparative
Representation of North and South in the Senate?.... 339
XIX. STATISTICS ON CALIFORNIA IN 1850.......
343
Population...............
Professions and Occupations.......
345
Farm Lands, Produce and Live Stock.....
346
Schools and Churches......
343
347
CONCLUSION.........
....... 349
......
.............................
PART I
THE INTERREGNUM
ESTABLISHMENT OF STATE GOVERN-
MENT IN CALIFORNIA
CHAPTER I
INTRODUCTION: AMERICAN INFLUENCE 1 AND THE CONQUEST
THE American conquest of California began during the
period when that territory was occupied by Spain. Looking
back from the pinnacle of the present we can see that the
event was perceptible from the beginning, and that every
incident which brought the American and the Spaniard
together was a factor in the movement. The captains of
American ships who smuggled goods into California ports,
the United States sailors arrested and thrown into con-
finement by Spanish authorities, the contraband trade with
Franciscan friars, all of these played a part in the conquest.
As early as 1804, William Shaler, captain of the Lelia Byrd,
said that the Spaniards had removed every obstacle from the
path of an invading enemy; and had “stocked the country
with such multitudes of cattle, horses and other useful
animals” that it would be impossible to destroy or remove
them. A number of defenceless inhabitants, he continued,
? The best piece of work done on the American influence in California
during the period preceding 1850—-Cleland, The Interest of the U. S. in Cali-
fornia during the years 1835-40—is still in manuscript form. Its publication
will be a real addition to the material on California history.
Y
STATE GOVERNMENT IN CALIFORNIA
who had been spread over the territory, could not be ex-
pected to act as enemies against invaders who should treat
them well. Nothing was needed but a good government to
enable California to assume an influential and important
position in the commercial, industrial, and political world.
And closing the paragraph with probably the first published
hint of a conquest, he says, “It would be as easy to keep
California in spite of the Spaniards as it would be to wrest
it from them in the first place.” 1
A Beginning
The Spanish laws forbade the Californians to trade with
foreigners, and even the presence of the latter in the terri-
tory had to be explained satisfactorily to his Majesty's
officials. But despite these provisions, which were urged
ever more strenuously by the Spanish officers in Mexico
as California developed, American sailors and traders con-
tinued to make their appearance along the coast. Some-
times ships loaded with Boston merchandise, having se-
cured permission to anchor at San Diego or Monterey under
the pretence of much needed repairs, would quietly dis-
tribute their cargoes among the natives and sail away. Or
again they might enter a secluded harbor without permis-
sion and exchange commodities clandestinely with the
padres, who were invariably eager to trade their mission
1 Shaler, Journal of a voyage between China and the Northwestern coast of
America, made in 1804. In American Register, or General Repository of
History, Politics, and Science, pt. I for 1808, III, 137–75.
INTRODUCTION
3
produce for such merchandise as they could get. In fact
a dire necessity compelled them to depend on foreigners for
subsistence. When Eayrs, captain of the Mercury, was
taken with his ship in 1813 at El Refugio for illicit trade
with the natives, he offered in his defence the fact that
Spanish officials resident on the coast encouraged him in it.
He claimed that it was at their request that he had given
them agricultural tools and other things which they needed.
“I have provided the priests with what they required for
instructing the natives and for the ceremonies of religion.
They have paid me with provisions and some few otter-
skins. I have clothed many naked, and they have given
me in return products of the soil, as the officers of this dis-
trict can inform your Excellency.” 1.
And on the 12th of November, 1819, Argüello wrote as
follows to Viceroy Calleja:
“The padres are concerned in illicit trade from a grave
and general necessity of clothing and other materials which
they have experienced in the past, and experience more and
more from day to day in the jurisdiction of this government.
A rule of canonical law says, 'necessity makes lawful that
which by the law is illicit.'"2
1 Richman, California under Spain and Mexico, 205-06.
2 Ibid., 207. Ch. X of this work is my principal authority for trade rela-
tions. A longer account may be found in Bancroft, History of California, II,
ch. 13; and III, ch. 5. In fact, my principal authorities for this chapter are
Richman and Bancroft.
4
STATE GOVERNMENT IN CALIFORNIA
Spanish Fear
There can be no reasonable doubt that little or no hos-
tility was felt by natives for Americans under the Spanish
régime. There was practically no reason for such feeling.
But this in itself may have tended to make Spain uneasy.
The reports of the governors indicate that the officials in
California became more nervous as American visits in-
creased. In 1817 Sola urged large reënforcements for the
territory. Particularly did he warn his superiors against
Americans. They were becoming too familiar, he said,
with the natural richness and with the defenceless condition
of the country. It was well known that their purpose in
coming was not merely to obtain supplies, and that smuggling
even was not their sole aim. They came well armed, and
they frequented the smaller bays and mingled with the
people. Naturally the Indians could not be expected to
defend the country, he continued, because they believed
the Spaniards had deprived them of their liberty.
A little later official uneasiness began to manifest itself
in another form. Rumors of actual American invasion were
spread. In September, 1821, a report was current that
foreigners were fortified somewhere within forty or fifty
leagues of San Francisco. Just where, no one pretended
to know, but it was generally supposed to be somewhere
southeast of San José. Sola organized a force, collected
supplies from various missions, and on the 18th of October
the organization left San Francisco under the command of
1 Bancroft, History of California, II, 214-15.
INTRODUCTION
Argüello with the avowed intention of dislodging the stran-
gers. A tedious march through the San Joaquin and Sacra-
mento valleys, the occasional firing of cannon to frighten
hostile Indians, and the drowning of a mule with two
thousand cartridges on its back were the results of this
farcical expedition.
Such was the situation in 1822 after Mexico became in-
dependent. The Americans had become acquainted with
the California coast region, they had mingled with the
natives, they had smuggled thousands of dollars' worth
of Yankee merchandise to Spanish priests and Spanish pre-
sidios, and they had spread a fear of Americans among
Spanish officials.
American Influence Increases
With the independence of Mexico a change occurred in
the attitude of that government's officials toward foreigners.
California ports were opened to foreign trade upon the
payment of duties averaging, at first, about twenty-five
per cent. Later, however, all ports except Monterey and
San Diego were closed, and the duties were increased to
forty-two and one-half per cent. But Yankee ingenuity
soon contrived schemes for evading Mexican regulations.
One method, practised by the more timid, was to tip the
custom officer. Another was to leave a part of the cargo in
a secluded place near the port of entry, pay duties on the
remainder, reload during the night, and the following day
dispose of the entire shipment. If there were several loads
STATE GOVERNMENT IN CALIFORNIA
of goods to be sold, the wily trader had still another way of
evading the custom officer. One ship would boldly enter the
harbor, pay duties on her entire cargo and remain anchored
for several days selling goods, the supply being kept up by
other vessels transferring their loads of merchandise into
her hold during the night. Thus several ship-loads of goods
could be sold for the duties paid on one. John R. Cooper,
William A. Gale, Nathan Spear, Bryant and Sturgis, and
other Bostonians carried on trade in this manner for years.
In many cases the natives knew what was being done, and
not infrequently the Mexican officials must have been aware
of it, but the necessity of trade on the part of the Cali-
fornians, the profits to the smuggler, and the American love
of adventure which accompanied it, led to a constant in-
crease in this form of traffic.
With the arrival of Jedidiah Smith in 1826, Americans
began to come into California overland. The following year
Mexico took steps to prevent further immigration. General
orders were forwarded to Echeandía to expel all foreigners
from the territory who were not provided with passports, to
keep a strict watch and render a monthly account of new
arrivals, to grant no lands to them, and by no means to
allow them to form settlements on the coast or islands.
Attempts were made to enforce these orders, but this did
not prevent the extension of American influence. In 1828
bands of American trappers along the frontiers excited no
little apprehension among Mexican officials. And in the
following year there was a revolt of the troops at Monterey
(caused by destitution), led by Joaquin Solís, a convict,
INTRODUCTION
wa
who had been banished to California from Mexico. The
whole affair was of slight importance, but it is significant
that Americans were influential in having all the prisoners
released a short time after the revolt had been put down.
The next year, 1830, Mexico showed her willingness to make
slight concessions to foreigners already in the territory. In
reply to petitions for land made by a few Americans, the
governor of California was authorized to make such dis-
tributions to foreigners as the laws would permit, but he
was ordered to see to it that the Russians and Americans
should be the least numerous and that they should be located
in the central parts. Such timid measures as Mexico enacted
however, had little effect. Americans continued to carry on
contraband trade and to assist in overthrowing and setting
up governors. In 1831, when the revolution against Victoria
developed, Abel Stearns was one of the leaders in the move-
ment; and during the following year, while the struggle for
the governorship between Zamorano and Echeandía was
in progress, forty-one foreigners at Monterey, a large number
of whom were Americans, banded themselves together in
support of Zamorano. The authorities in Mexico, in the
meantime, appointed Figueroa to the governorship of the
territory and sent him out with instructions to encourage
colonization of both citizens and foreigners. Figueroa's
appointment united the factions temporarily.
From this time until the revolution of 1836, Californians
probably felt no more prejudice against Americans than
against Mexicans. The commercial benefits they had con-
ferred and still were conferring, won the favor of the
STATE GOVERNMENT IN CALIFORNIA
people and even of the authorities, while such dangers as
they excited troubled the former none and the latter but
little. The Americans who lived regular lives found little
or no difficulty in procuring citizenship, wives, and land.
To be sure there were certain formalities with which new-
comers had to comply, but there seem to have been no cases
of oppression recorded. “Tired of Mexico,-her Victorias,
her Chicos, her Cholos and her tariff,-and eager for a rule
of native sons, the American theory of government appealed
to Californian leaders, padres no less than politicians!” 1
And by 1836 they were ready to put their theories into
practical operation.
An Attempt at Independence
Until this time the part played by Americans in the po-
litical affairs in California had not been an especially active
one. As we have seen, they had been participants in the
struggle for the governorship between Zamorano and Eche-
andía in 1832, but this was done to protect their business
interests at Monterey rather than to assist Zamorano.. In
1836, however, we find them organizing for offensive pur-
poses. It was in this year that the young Californians, led by
Juan Bautista Alvarado, a leader of the "native sons," and
assisted by a band of about thirty riflemen, the most efficient
of whom were Americans, determined to do in California
what had been done in Texas by Sam Houston and other
Americans a few months earlier. The ruling governor,
1 Richman, California under Spain and Mexico, 299-300.
INTRODUCTION
Gutiérrez, was driven from power, and on the 6th of No-
vember, California was declared independent of Mexico.
On the 7th, Vallejo was made commandante-general of the
new state, and just one month later Alvarado became
governor. The disputasion, or State Congress, passed a
decree dividing the land into two cantons, that of Monterey
and that of Los Angeles. This was on December gth. In
each place there was to be a jefe politico-at Monterey the
governor himself, and at Los Angeles some one to be ap-
pointed by the governor from a terna elected by the Ange-
linos. Discontent and persistent revolution in the south
finally induced Alvarado, however, to abandon his scheme
for independence. Castillero became his representative
at Mexico, and on the 9th of July, 1837, Alvarado attempted
to circumvent his enemies by declaring in favor of uniting
with the parent state. In the meantime, however, the
Mexican government appointed Carlos Carrillo governor.
Alvarado refused to recognize the new appointee and again
mustered his forces. Carrillo was defeated and taken pris-
oner, and a little later, August the 13th, Alvarado received
word that he had been recognized as governor by Mexico.
In all the early part of this struggle, the Americans were
influential. “Foreigners, with interested motives and sound
arguments, labored to prove that California had received
nothing but neglect and ill treatment from Mexico." 1 It
was doubtless due to pressure brought to bear by Ameri-
cans after Gutiérrez had been defeated that an attempt at
absolute independence was undertaken. There is evidence
* Bancroft, History of California, III, 449.
IO
STATE GOVERNMENT IN CALIFORNIA
that the Americans had a "lone-star flag” 1 all ready which
they wished to hoist, and that they were desirous of placing
California under the protection of the United States. The
latter scheme was never carried out, however, because
David Spence and other foreigners deemed it wise to curb
American ambition. Disgusted with the whole affair, the
Americans withdrew from active participation in the rev-
olution.
During the next few years the Americans were com-
paratively quiet, but the mere fact that in 1840 the governor
felt it necessary to arrest secretly forty Americans and send
them to Mexico to be tried for a supposed uprising against
the government, indicates that their influence had become
paramount in the territory. Every attempt made to coun-
teract it brought out the fact that it had become a permanent,
growing element with which the officials would have to
deal more leniently and more considerately as the years
passed.
The next incident that brought any great number of
Americans into active participation in California affairs
occurred a few years later. When Manuel Micheltorena
succeeded Alvarado as governor in 1842, he brought with
him from Mexico a company of soldiers composed of ex-
convicts. They were habitual thieves, and the ever in-
creasing loss sustained by the people of the territory became
so unendurable at the last that a revolt developed under the
leadership of Alvarado. Sutter and Graham, for personal
1 Mofras, Exploration de l'Oregon, des Californies, elc., I, 300.
2 The Graham affair. See Bancroft, History of California, IV, ch. I.
INTRODUCTION
II
reasons, collected a company of one hundred riflemen and
joined Micheltorena. In fact the governor was compelled
to place his reliance almost entirely on the foreigners. The
hostile forces met in the region north of Los Angeles. With
Alvarado there were also a few Americans under the com-
mand of William Workman and Benjamin Wilson. When
the latter learned that their opponents were also their
countrymen they communicated with them and a mutual
agreement was reached whereby the Americans on both
sides withdrew from the contest. Shorn of his principal
strength Micheltorena promptly capitulated.
This was in February, 1845. A few months later, in
July, the Mexican government instructed the governor
“to prevent the introduction of families from the Missouri
and Columbia rivers, as otherwise the general order of the
department would be subverted, foreign relations compli-
cated and embarrassment created." An attempt was made
to enforce this order. The task was not made easier by the
appearance a little later of John C. Frémont with about
sixty armed followers. He made his camp at Hartwell's
rancho in the Salinas valley, and on March 5, 1846, was
ordered by Prefect Manuel Castro to retire beyond the
limits of the department. This Frémont not only refused
to do but fortified himself on Gavilán peak and raised the
United States flag. After having been menaced by Castro
with two hundred men and warned against treachery by
Larkin, the United States consul at Monterey, Frémont
withdrew slowly toward Oregon. In the meantime Sub-
Prefect Francisco Guerrero sent word to Larkin that the
I2
STATE GOVERNMENT IN CALIFORNIA
former would notify the authorities in each town to inform
Americans who had bought land-a right of naturalized
foreigners only--that the transactions were invalid and that
they themselves were subject to expulsion at any time.
It is not surprising that these things created considerable
excitement, especially among American settlers. Reports
were circulated and generally believed that Mexican offi-
cials were preparing to drive all foreigners from the country.
In April, 1846, Larkin wrote “of rumors that Castro was
collecting people to force settlers from the Sacramento!” 1
ca
The Bear Flag
The general unrest was not relieved by the sudden reap-
pearance of Frémont from the north. He had been over-
taken on the borders of Oregon by a naval officer, Gillespie,
with “dispatches” from Washington. Upon his sudden
arrival naturally the settlers believed he had been ordered to
return by the United States government. Very soon after
Frémont had established his camp at the junction of Bear
and Feather rivers, about a dozen of his men, under the
command of Ezekiel Merritt, seized one hundred and seventy
horses that were being sent south to General José Castro by
Vallejo and which rumor declared were to be used to free
the land of foreigners and to establish a fort on Bear river.
On the same day, June 11th, "it was decided to capture
Sonoma, where, under Vallejo, nine small cannon and two
hundred muskets constituted a kind of presidio.” Merritt,
Richman, California under Spain and Mexico, 306-09.
INTRODUCTION
13
with twenty followers, increased later by twelve or thirteen
under the command of Dr. Robert Semple and John Grigsby,
made his appearance before Vallejo's house at dawn on
the 14th of June. "A capitulation, embracing Vallejo,
his brother Don Salvador, and his secretary Victor Prudon,
was drafted and signed, and, stimulated by liberal refresh-
ments, the Americans withdrew.” The capitulators were
sent to Frémont, who, though disclaiming any part in the
Sonoma affair, gave orders for the arrest of Jacob Leese
(the latter accompanied the prisoners as interpreter), and
for the confinement of all in Sutter's Fort.1
At Sonoma, in the meantime, William B. Ide, who had
assumed command, was busy inditing proclamations and
establishing “a just, liberal and honorable government.”
A flag was constructed with a single star in the upper left
hand corner, a bear in the center, and the words “Cali-
fornia Republic" printed across the bottom. Ide declared
it to be his aim to establish a government that should secure
civil and religious liberty; "insure security of life and prop-
erty; detect and punish crime and injustice; encourage
virtue, industry and literature; foster agriculture and manu-
factures, and guarantee freedom to commerce.”
The appearance, however, of Commodore Sloat on the
7th of July, 1846, put an end to all schemes for establishing
a California republic. He had reached Monterey on the
1 The Bear Flag revolt has been treated of course in all the California
histories of the period. I have followed Richman's account, pp. 309-12,
supplemented by Hunt, Legal Status in California, 1846-49, pp. 63-64,
and his California the Golden, p. 177.
14.
STATE GOVERNMENT IN CALIFORNIA
ASSI
2nd. Larkin, however, persuaded him to delay action for
five days, at the end of which time he disembarked two
hundred and fifty men, raised the American flag over the
custom house, fired a salute, and posted a proclamation
declaring California annexed to the United States. Two
days later, July gth, the flag was raised at San Francisco
and Sonoma, and on the vith at Sutter's Fort. On the 23rd
Sloat turned over his command to Commodore Robert F.
Stockton and six days later sailed for home.
Stockton, in accordance with the terms of his proclama-
tion, proceeded to drive Pico and Castro from the southern
part of the territory where they had taken refuge. Frémont's
men were accepted as a battalion of volunteers with Frémont
himself as major and Gillespie as captain. These troops
were sent to San Diego, where they arrived on the 29th of
July, and raised the United States flag. Meantime Stockton
moved southward with three hundred and sixty men and
Frémont's troops came northward from San Diego. The
two forces met in Los Angeles on the 13th of August,
neither of them having experienced any serious opposi-
tion. The flag was raised and the conquest was deemed
complete. 1
The Californians had been comparatively passive spec-
tators of all that had occurred. It was more than a month
later, September 24th, that the indignation aroused by the
treatment meted out to Vallejo,--a native Californian-
and his followers at Sonoma, led to a general uprising of his
countrymen, and by that time steps had been taken at
1 Richman, California under Spain and Mexico, 319-20.
INTRODUCTION
Washington to insure a speedy and permanent annexation.
of California to the United States.
Official Schemes at Washington
As early as 1835 President Jackson had ordered Butler,
chargé d'affaires in Mexico, to purchase the Bay of San
Francisco as a port for the numerous United States vessels
engaged in the whaling business on the Pacific coast. The
price to be paid, according to one authority, was $5,000,000.
There is some indication that the proposition might have
been favorably received had it not been for the opposition
of the British. A few years later, when the diplomatic rela-
tions between the United States and Mexico were becoming
more complicated over Texas, Commodore Thomas Catesby
Jones was sent to take command of the Pacific squadron.
His instructions ordered him to “afford ... every aid,
protection and security consistent with the law of nations,”
to Americans and American interests on the Pacific coast.
Doubtless he also had verbal instructions from the secretary
of war which were to govern his actions provided certain
contingencies should arise. Anyway, under the impression
that war had begun between the United States and Mexico,
Jones entered the harbor of Monterey on the 19th of October,
1842, and took possession of the town. Two days later,
having been convinced that the relations between his coun-
try and Mexico were peaceable, he restored the Mexican flag,
withdrew his troops, fired a salute and, after a brief delay,
sailed away.
16
STATE GOVERNMENT IN CALIFORNIA
On March 4th, 1845, James K. Polk became President.
His policy of territorial acquisition was determined when he
came into power. The minister, sent to Mexico to adjust
the boundary between the United States and that country,
was further authorized “to purchase for a pecuniary con-
sideration Upper California and New Mexico.” The amount
to be paid was of secondary importance. The President
thought these two territories might be had for fifteen or
twenty million dollars, but he was ready to pay forty million
if necessary."
The relations between the two governments became even
more strained during the first months of Polk's term, and
in May, 1846, war began. By June the President had ex-
pressed a desire to get possession of all the territory north
of the twenty-sixth degree of north latitude in the treaty
of peace with Mexico.2 At the suggestion of Benton a
regiment of volunteers was raised to go from New York to
California with the understanding that they should be mus-
tered out of service in the latter place after the war was over.3
According to orders sent out from Washington to Colonel
Stevenson of New York City, the regiment was to consist
of men of various pursuits and regular habits. The object
is obvious.
General Stephen Kearny had been sent into New Mexico
with United States troops as soon as war was declared.
* Polk, Diary for September 16, 1845.
2 Ibid., for June 30, 1846.
3 Ibid., for June 20, 1846.
4 See the letter from Secretary of War Marcy to Colonel Stevenson
dated June 26, 1846, in Niles' Register, Vol. LXX, pp. 344-45.
INTRODUCTION
Having completed the subjugation of that territory by Au-
gust, he was ordered to proceed from Sante Fé to California.
He arrived at Warner's ranch on the end of December, 1846.
As already indicated the conquest was deemed complete
the previous August. Later developments showed, however,
that so far as war affected the subjugation of California, the
that month Gillespie, whom Stockton left in command of the
south with orders to maintain martial law, suddenly found
that his indiscretionary measures had stirred up a revolt
which rapidly spread over the southern part of the territory.
On September 30th, Gillespie was forced to accept the terms
Florés offered him and withdraw from the south. Mean-
time the messenger sent northward by the besieged com-
mander reached Commodore Stockton, and the latter moved
southward, arriving at San Diego by November. While
here he received a letter from General Kearny. To meet
the General and conduct him to San Diego, Stockton sent
Gillespie (Gillespie had joined Stockton at San Pedro) with
thirty men. On December 6th, after the union of these
troops with Kearny's, the battle of San Pascual was fought,
an engagement that came near proving disastrous to the
Americans. A few other minor skirmishes resulted in the
triumph of the American cause, and on the roth of January,
1847, the stars and stripes were permanently raised at
Los Angeles.
CHAPTER II
THE PERIOD OF MILITARY RULE
In the meantime attempts were being made at Washing-
ton to provide a government for California. In his orders
of June 3, 1846, to Kearny, Secretary of War Marcy wrote,
“Should you conquer or take possession of New Mexico
and Upper California or considerable places in either, you
will establish temporary civil government therein-abolish-
ing all arbitrary restrictions that may exist, so far as it may
be done with safety.” Officers who proved themselves to be
friendly to the United States were to be retained in their
positions, and their salaries were to be provided from import
duties. These were to be reduced so as to provide a fund just
large enough for the purpose. In his report to the President
dated December 5th, Marcy recommended the establish-
ment of “courts-martial or some military tribunal, to be or-
ganized by the general in command” and vested by express
provisions of law with authority to try offences committed in
any of the conquered territory where criminal courts, except
those of the enemy, were not provided. The secretary of
the navy, in a confidential letter to Commodore Stockton,
dated November 5th following, said the administration of
the government in California would be placed in charge of
1 California Message and Correspondence, 1850, 238; H. Ex. Doc., and
sess., 29th Cong., No. 19, 5–7.
2 H. Ex. Doc., 2nd sess., 29th Cong., No. 4, 55-6.
18
THE PERIOD OF MILITARY RULE
SI
the chief commander of the land forces while the establish-
ment of port regulations would be left to the superior naval
officer. 1
On December 8, 1846, President Polk, referring in part
to these orders, notified Congress that steps were being
taken to establish "temporary governments in some of the
conquered Provinces of Mexico, assimilating them as far
as practicable to the free institutions of our own country.” 2
Immediately after the message was read in the House,
Garrett Davis of Kentucky expressed dissatisfaction with
certain parts of it, and offered a resolution requiring the
President “to communicate to this House any and all orders
or instructions to General Taylor, General Wool, General
Kearny, Captain Sloat, Captain Stockton or any other
officer of the government, in relation to the establishment or
organization of civil governments in any portion of the ter-
ritory of Mexico which has been or might be taken posses-
sion of by the army or navy of the United States;” also what
forms of government had been established and whether the
President had approved and recognized such governments.3
The speaker decided that the resolution, according to the
rules of the House, must lie over one day, 4 and it was accord-
ingly brought forward as the first business to be considered
on Wednesday, December 9th. Before voting on the res-
olution, however, members of the House took occasion to
1 Cutts, Conquest of California and New Mexico, 259.
2 Richardson, Messages and Papers of the Presidents, IV, 494.
3 Cong. Globe, and sess., 29th Cong., 12.
4 Ibid.
5 Ibid., 13.
20
STATE GOVERNMENT IN CALIFORNIA
express their opinion on the legal status of the conquered
territory. It will be interesting to consider two or three of
these before examining the documents submitted by the
President as requested in the above resolution.
Congressional View as to Legal Status of Conquered Territory
YA
Davis, in commenting on the resolution after he had
submitted it, said that when he saw foreign countries occu-
pied by the United States army and navy and heard officers
of the United States proclaiming themselves governors of
provinces, appointing subordinate officers, fixing their
salaries and the duration of their offices,--establishing, in
a word, the whole machine of civil government,-he de-
manded of the President his authority for permitting and
sanctioning such a course of proceeding. “What!” he ex-
claimed, “was our American President an emperor, sending
forth his Agrippa and his Marcellus as his proconsuls, to
establish and govern the provinces they might conquer by
force of arms?” He admitted that the President was the
commander-in-chief of the army and navy, but he denied
that this permitted him to exercise any authority in the
establishment of civil government in conquered territory.
He wanted to know from the President and "his partisans
by what imperial or regal authority his majesty undertook
to act in the premises referred to in the resolution of inquiry."
If the chief executive had usurped so much power, then he
"was ready for ulterior measures.” 1
* Cong. Globe, 2nd sess., 29th Cong., 13.
THE PERIOD OF MILITARY RULE
21
On the other hand, Douglas of Illinois did not agree.
In the war with Mexico, he said, some of her provinces had
been conquered, and as a result the Mexican government
could no longer exercise authority there. It was therefore
the duty of the conqueror to establish a government of some
kind in place of that which had been overturned. Under the
law of nations it was the right of the conqueror to do this.
“Had our generals not taken it upon themselves to perform
an act of such obvious necessity in protecting the rights
of a conquered people, as far as those rights were in con-
formity with the rights of our own government, there would
have been much more propriety in the honorable gentle-
man's threatening 'ulterior measures'.” The government
established in this way, however, would be a military and
not a civil government. It would be such a government
as might be established by a conquering general over a con-
quered country as a result of a successful prosecution of a
legal war. Such a government was military in its origin and
in its maintenance, but it might also relate to civil and
bound to see that justice was administered to the conquered
inhabitants and that their rights and privileges were duly
respected until Congress should appoint another in its
place. The only question which Congress should consider
was whether the commanders of the United States army
Rhett of South Carolina thought that if the country con-
quered formed part of the United States, “then clearly the
1 Cong. Globe, 2nd sess., 29th Cong., 13-14.
22
STATE GOVERNMENT IN CALIFORNIA
President had no right to organize in it any territorial
government." But the territories of New Mexico and
California did not belong to the United States. It was true
that the United States held military occupation of them,
but this very fact itself indicated the status of the conquered
provinces. They were held by the military forces of the
United States and were subject to the control of those forces.
“If the President commanded them at all he was a satrap-
he was a despot, so far as they were concerned: he wielded his
power over them by the sword, and enforced it by the sword
alone. ... Congress might, ... judge of the morality
of his acts; but so far as the law of nations was concerned,
he had a legal right to do his pleasure.” 1
Perhaps the sanest argument on the subject was made
by Seddon of Virginia. He differed with Douglas because
he did not believe that the territory of a foreign nation with
whom the United States was at war, when seized and com-
pletely subjugated, was to be regarded as part of the United
States. If this were true the military authorities could no
longer exercise power over it. The territory would be
subject to the existing laws of the United States, “and the
inhabitants, having become citizens, be entitled to all the
rights and privileges whether of property, person or rep-
resentation, which are secured and guaranteed to our
citizens by the constitution and laws of the Union.” Nor
could he agree with Rhett that conquered territory was to
be held “by the mere power of the sword, with the right
of arbitrary despotism." "The wholesale operation of civil
1 Cong. Globe, 2nd sess., 29th Cong., 15.
THE PERIOD OF MILITARY RULE
23
institutions must oftentimes even yet, amid the fiercer
energies and more unbridled powers invoked and demanded
by the stern necessities of war, be checked and restricted,
and many mere civil or municipal laws be disregarded or
swept away.” But the rule of absolute, brute force, “tem-
pered only by such instincts of humanity as may survive
in the bosom of a relentless commander,” should not be
permitted. The progress of civilization had produced a
code of law which governed international relationships,
“founded in part on the practices of nations but more
correctly binding as deduced from the most sacred principles
of justice, and the highest ethics of morality and humanity.”
This code recognized by all nations would not permit the
establishment of a military despotism over a conquered
people. It was true that the inhabitants of a conquered
territory, just as soon as they submitted, were under obliga-
tion to render obedience to the conqueror, the latter thus
taking the place of the sovereignty previously governing
them. On the other hand, it was the sacred duty of the
conqueror to secure to the conquered, “so far as compatible
with the safety of his conquest and army,” all their rights
of property and enjoyment of civil institutions and the
regular administration of justice. To continue martial law
would be revolting to the just principles of the law of nations.
After all opposition had been put down, justice and humanity
required the establishment of provisional civil government in
New Mexico and California by the commanders of the United
States troops there. To censure the President, therefore,
for ordering the establishment of such a government in
24
STATE GOVERNMENT IN CALIFORNIA
these provinces would be censuring him for doing his
duty.1
Such were the principal views held by members of the
House of Representatives in regard to the attitude which
the government at Washington should assume toward the
conquered provinces before the war ended. Seddon's
opinion was the opinion held by the administration, as may be
seen by comparing his views with the orders sent out by the
secretaries of the war and navy departments quoted above.
Papers Submitted by the President
-:*
4
.
The resolution offered by Davis passed the House in a
slightly modified form on December 15th.2 On the 22nd
President Polk sent a message accompanied by the requested
documents. A very small part of the contents of these
documents deals with the “establishment or organization
of civil governments” in territory conquered from Mexico.
They are divided into two parts. The first contains twenty-
four communications consisting of letters, orders, proclama-
tions, and a copy of the organic law for New Mexico. Of the
one hundred and eleven pages of the document, fifty-one
are devoted to the organic laws for the establishment of
civil government in New Mexico. The second part contains
fourteen somewhat similar communications from the navy
department. In three of the letters of the first group ref-
- 1 Cong. Globe, 2nd sess., 29th Cong., 23-26.
- 2 Ibid., 33; H. Ex. Doc., 2nd sess., 29th Cong., Doc. No. 19, I; Richard-
son, Messages and Papers of the Presidents, IV, 506.
3 These may be found in Doc. No. 19, H. Ex. Doc., 2nd sess., 29th Cong.
THE PERIOD OF MILITARY RULE
25
erence is made to the establishment of civil government
in California.1 The one directing the establishment of civil
government has already been cited ? and need not be re-
peated here. In the second group the principal communi-
cations which deserve consideration are the proclamations
of Sloat and Stockton, and the constitution drawn up by the
latter for the government of California. These will be con-
sidered in this chapter together with the administrations
of Kearny and Mason. Frémont's brief rule was really a
part of the administration of Stockton and does not deserve
separate treatment.
Commodore Sloat's proclamation to the inhabitants of
California is not dated but was probably issued July 7,1846.3
In it he declared that although he came in arms with a
powerful force, he did not come as an enemy to California.
On the other hand, he claimed to be the best friend the
people of that territory had, and announced that hence-
forth California would be a portion of the United States.
Under the stars and stripes the country would be free from
factional disturbances and commercial restrictions which it
had experienced under Mexico. The revenue laws would be
the same there as in the rest of the United States, thus se-
1 The first is the well-known letter of June 3, 1846 from Secretary Marcy to
General Kearny; the second, a letter from Major General Scott to General
Kearny; and the third, a letter from General Kearny to the Adjutant Gen-
eral at Washington. In the first is the direction already quoted (see above
p. 18), whereas in the other two are mere references to the organization of
civil government. See H. Ex. Doc., 2nd sess., 29th Cong., Doc. No. 19,
6, 15, 25.
2 See page 18 above.
H. Ex. Doc., 2nd sess., 29th Cong., No. 19, 100.
26
STATE GOVERNMENT IN CALIFORNIA
curing to the people all manufactures and produce of the
United States free of duty and insuring them foreign goods
at one-quarter of the duty they were then paying. A great
increase was promised in the value of real estate and of the
products of the country, and under the friendly guidance
of the United States, the diplomatic Commodore declared,
the country could not but improve more rapidly “than any
other on the continent of America.” 1
Equal political inducements were offered. The peaceable
inhabitants would enjoy the same rights and privileges they
then had, together with the privilege of choosing their own
magistrates and other officers, and the same protection
would be extended to California “as to any other state in
the Union.” The government would be a permanent one
“under which life, property, and the constitutional right
and lawful security to worship the Creator in the way most
congenial to each one's sense of duty, will be secured.” The
judges, alcaldes and other civil officers were invited to re-
tain their positions as formerly until the government of the
territory could be more definitely arranged. The inhabit-
ants who were not disposed to accept the privileges of citi-
zenship and live peaceably under the United States would
be given time to dispose of their property and leave the
country. If they observed strict neutrality they would be
permitted to remain.2
1 In nearly all of their communications to the naval and military leaders
in California the secretaries of the naval and war departments had urged
conciliatory measures toward the people of California, the aim being evi-
dently to win them over to the American cause.
2 H. Ex. Doc., 2nd sess., 29th Cong., No. 19, 102–03.
THE PERIOD OF MILITARY RULE
27
The proclamation was read at the custom house in Mont-
erey, and was received amid hearty cheers from the troops
and foreigners present, and by a salute of twenty-one guns
from the ships in the harbor. Immediately afterwards
copies in English and Spanish were posted at various places
throughout the town. The alcaldes declined to serve under
the new régime and two justices of the peace were appointed
to preserve order.1
The condition of Sloat's health did not permit him to do
anything more towards establishing government in Cali-
fornia. On the 23rd of July he ordered Commodore Stock-
ton to assume direction of the troops on shore, and six days
later turned over the entire command to him and returned
to the United States. On August 28th following, Commo-
dore Stockton wrote Bancroft, Secretary of the Navy, as
follows: “Thus in less than a month after I assumed the
command of the United States force in California, we have
chased the Mexican army more than three hundred miles
along the coast; pursued them thirty miles in the interior
of their own country; routed and dispersed them, and se-
cured the territory to the United States; ended the war;
restored peace and harmony among the people; and put a
civil government into successful operation.” He announced
further that when he left the territory he would appoint
C
TH. Ex. Doc., 2nd sess., 29th Cong., No. 19, 100. A number of the
Sloat-Stockton documents which cover this period may be found in H. Ex.
Doc., 2nd sess., 29th Cong., No. 4, 640–75.
2 Ibid. In his communication to the secretary of the navy dated August 28,
1846, Stockton said that he assumed full command on July 23rd. See Ibid.,
106.
28
STATE GOVERNMENT IN CALIFORNIA
Major Frémont governor and Lieutenant Gillespie secre-
tary.1
This letter, including thirteen other papers, 2 was for-
warded to the department at Washington. Among these
were a proclamation and some other documents outlining
the civil government which the Commodore asserted had
been placed in successful operation.
In the proclamation issued at Los Angeles on August 17th,
California was declared to be a part of the United States.
As soon as circumstances would permit, it was to be governed
by officers and laws similar to those regulating and protect-
ing other territories of the United States. “But until the
governor, the secretary, and council are appointed, and the
various civil departments of the government are arranged,
military law will prevail, and the commander-in-chief will
be the governor and protector of the territory." The people
were requested in the meantime to meet in their several
towns and departments, at such time and places as they
might see fit, for the purpose of electing civil officers to fill
the vacancies caused by those who declined to continue in
office. If the people failed to make such elections, then the
commander-in-chief as governor would make the appoint-
ments himself. Laws were to be administered “according
to former usages of the territory.”
All persons, of whatever religion or nation, who should
adhere faithfully to the new government were to be con-
* H. Ex. Doc., and sess., 29th Cong., No. 19, 106.
2 All of these papers, however, were not forwarded to Congress by the
secretary of the navy.
THE PERIOD OF MILITARY RULE
29
sidered as citizens of the territory and would be zealously
and thoroughly protected in freedom of worship, person, and
property. Those who would not support the existing govern-
ment were not to be permitted to remain in the territory.
Without special permission no one was to be permitted to
bear arms outside of his own home, and if found doing so,
he would “be shipped out of the country.” All thieves
were to be "put to hard labor on the public works, and there
kept until compensation was made for the property stolen.”
As long as the country was under martial law all persons
were required to be within their houses from ten o'clock at
night until sunrise."
Five days later, August 22nd, another communication was
issued to the people of California. Elections to be held in the
several towns and districts of the territory were ordered for
September 15th. They were to be for the purpose of elect-
ing alcaldes and other municipal officers, and were to be
held at the usual time and places for holding such
elections.
A circular was issued August 15th fixing tonnage duties
on all foreign vessels at fifty cents per ton, and the duties
on all goods imported from foreign ports at fifteen per cent
ad valorem, payable in three instalments of thirty, eighty,
and one hundred and twenty days. To ascertain the true
value of goods in the ports where they were entered, “two
judicious and disinterested persons were to be appointed
to make the appraisement.” One was to be selected by
ur
*H. Ex. Doc., 2nd sess., 29th Cong., No. 19, 107-08.
2 Ibid., 108.
STATE GOVERNMENT IN CALIFORNIA
the government, the other by the party owning the
goods.
The most important and the most interesting of the com-
munications forwarded by Stockton to the secretary of the
navy and sent by the latter to the House of Representa-
tives in compliance with the resolution of December 15th,
however, is the constitution drawn up by the Commodore
for the government of California. “I, Robert F. Stockton,
commander-in-chief of the United States forces in the
Pacific ocean, and governor of the territory of California,
and commander-in-chief of the army of the same," thus
the document began, “do hereby make known to all men,
that, having by right of conquest taken possession of that
territory known by the name of Upper and Lower Cali-
fornia, do now declare it to be a territory of the United
States, under the name of the territory of California. And
I do by these presents further order and decree, that the
government of the said territory of California shall be, until
altered by the proper authority of the United States, con-
stituted in manner and form as follows."
The executive power was vested in a governor and a
secretary, both of whom were to hold office for four years
unless removed by the president, and both of whom were to
reside in the territory. The governor was to be commander-
in-chief of the army, was to perform the duties and receive
the emoluments of superintendent of Indian affairs, and
was to approve all laws passed by the legislative council
before they should take effect. He might grant pardons
1 H. Ex. Doc., 2nd sess., 29th Cong., No. 19, 110.
as
vernor
THE PERIOD OF MILITARY RULE
31
I
for offences against the laws of the territory, and reprieves
for offences against the laws of the United States until the
decision of the president could be made thereon. He was to
commission all officers who should be appointed under
territorial laws and should take care that the laws were
faithfully executed. The secretary was to record all laws
and proceedings of the legislative council, and all the acts
and proceedings of the governor in his executive department.
On or before the first Monday in December of each year he
was to transmit one copy of the laws and one copy of the
executive proceedings to the president of the United States,
and two copies of the laws to the speaker of the House of
Representatives for the use of Congress. In case of death,
removal, resignation, or necessary absence of the governor,
the secretary was authorized and required to execute and
perform all the powers and duties of the governor during
such vacancy or necessary absence.
The legislative power was vested in the governor and in
a legislative council consisting of seven members. The
members of the council were to be appointed by the governor
and were to hold their office for the term of two years, after
which they were to be elected by the people annually. Their
power was to extend to all subjects of legislation, but no
law was to be enacted interfering with the primary disposal
of the soil, no tax was to be imposed upon the property of
the United States, nor was the property of non-residents
to be taxed higher than the property of residents. If laws
passed by the legislative council were disapproved by the
governor the same would be null and void. The first session
32
STATE GOVERNMENT IN CALIFORNIA
of the legislative council was to be held at such time and
place as the governor should direct. At this session, or as
soon thereafter as the governor and council deemed expe-
dient, they were to "proceed to locate and establish the seat
of government for the said territory at such place as they
may deem eligible; which place, however, shall thereafter
be subject to be changed by the said governor and legisla-
tive council, and the time and place of the annual com-
mencement of the session of the said legislative council
.
council may appoint."
The municipal officers of cities, towns, departments, or
districts formerly existing in the territory were to be con-
tinued, and all their proceedings were to be regulated by
the laws of Mexico, until other provisions were made by the
governor and legislative council. All officers of cities, towns,
departments, and districts were to be elected by the people
annually in such manner as the executive and legislative
departments should decide.
It may be noted here that the plan for governing Cali-
fornia as outlined in the above document was never put into
*H. Ex. Doc., 2nd sess., 29th Cong., No. 19, 109–10. In the message
accompanying these documents which were forwarded to the House of
Representatives on December 22nd, the President approved and defended
all that had been done in California. They were temporary regulations that
had been authorized, he said, and depended on rights acquired by conquest.
“They were authorized as belligerent rights, and were to be carried into effect
by military or naval officers. They were but the amelioration of martial
law, which modern civilization requires, and were due as well to the security
of the conquest as to the inhabitants of the conquered territory." See
Richardson, Messages and Papers of the Presidents, IV, 507.
THE PERIOD OF MILITARY RULE
33
operation, although an attempt was made to do so, as will
be shown presently.
So much for the communications, which bore on the es-
tablishment of civil government in California, that were
forwarded to the House of Representatives through the
President from the war and navy departments.
Stockton's first proclamation to the people of California
was not included among these documents. It bears no date
but was doubtless issued on July 29th when Stockton as-
sumed entire command. It is not likely that he would
have issued such a document before he was in full charge
of the land and naval forces; and as a copy was sent to Sloat,
who sailed on the 29th, it could not have been issued after
that date. 1
It is not my purpose to go into a discussion of the character
of this famous proclamation. It has been scathingly de-
nounced as “offensive, impolitic, uncalled for, inaccurate,
and most undignified,” and is declared by the same writer
to have been “made up of falsehood, of irrelevant issues,
and of bombastic ranting in about equal parts." 2 It has
nothing to do with the establishment of civil government
in California, and may therefore be passed over without
further notice.
1 The document is in H. Ex. Doc., 2nd sess., 30th Cong., No. 1, 1035-37.
2 For a full discussion of the proclamation see Bancroft, History of Cali-
fornia, V, 257-60. The receipt of the proclamation by the navy department
was acknowledged November 5, 1846, in a letter from J. Y. Mason to Com-
modore Stockton. H. Ex. Doc., and sess., 29th Cong., No. 19, 89-91.
STATE GOVERNMENT IN CALIFORNIA
The Period of Stockton's and Frémont's Supremacy
LI
Stockton's governorship lasted (if his position may be
termed that of governor) from July 29, 1846, to January 19,
1847. During this time he had made two successful military
expeditions in the south, created the office of military com-
mandant of the territory and placed Frémont in that posi-
tion, issued the proclamation already cited, defeated Kearny
in a contest for governorship, 1 and had drawn up a consti-
tution for a civil government in the territory. He had also
issued orders regulating import duties and authorizing the
election of alcaldes and other municipal officers. On the 16th
of January, 1847, commissions were made out to Frémont as
governor and to Russell as secretary of state, and on the
19th they assumed their respective duties. The Commodore
also appointed a legislative council of seven members, and
summoned the same by proclamation to meet on March ist
at Los Angeles. The meeting, however, was never held.
Some of the members declined to serve and finally the new
administration decided to govern without a council.3
On the 22nd of January, Frémont, from the temporary
capital at Los Angeles, issued a proclamation declaring
“order and peace restored to the country,” and requiring
civil officers to return to their appropriate duties. The
military was to render as strict an obedience to the
sum
*For an account of the controversy between Stockton and Kearny see
Bancroft, History of California, V, ch. 16.
2 Ibid., 432–33.
3 Ibid.
THE PERIOD OF MILITARY RULE
civil authority as was consistent with the security of
peace. 1
The only item of interest during the approximately fifty
days of Frémont's doubtful supremacywas financial. On
February 4th the Governor obtained a loan of $2000 from
Don Antonio José Cos, and sixteen days later, February 2oth,
$1000 more, binding the United States government to re-
turn the same within two months from the dates of the
loans, and agreeing to pay interest at the rate of three per
cent per month. If, at the expiration of the term, the gove
ernment wanted to make further use of the money, the in-
terest was to be two per cent per month. On the 3rd of
March Frémont obtained an additional loan of $2500 from
Eulojio de Celis with interest at two per cent after eight
months. On the same day the Governor signed an agree-
ment pledging the United States to pay to this same Celis
$6975 for supplies furnished by him for the United States
troops. If this latter bill was not paid on or before De-
cember 18th, 1847, it was to bear interest at the rate of
1 Cutts, Conquest of California and New Mexico, 164. The proclamation
was issued just after the final uprising in the southern part of the territory
had been put down.
2 On March 12th Colonel Cooke wrote: “General Kearny is supreme
somewhere up the coast; Colonel Frémont supreme at Pueblo de los Angeles;
Commodore Stockton is commander-in-chief at San Diego; Commodore
Shubrick the same at Monterey; and I at San Luis Rey; and we are all su-
premely poor; the government having no money and no credit; and we hold
the territory because Mexico is poorest of all.” Conquest of New Mexico and
California, 283.
* California Message and Correspondence, 1850, 329.
4 Ibid., 365–66.
36
STATE GOVERNMENT IN CALIFORNIA
two per cent a month. The supplies were to consist of
six hundred head of beef cattle for the use of the army. On
April 26th, 1847, Frémont certified that Celis had complied
with his part of the agreement, “by delivering the number
of cattle as specified.” 3
In his communication of October 9, 1847, to Adjutant
General Jones at Washington, Mason declared that not one
of the six hundred head of cattle was killed and that not one
of them had been delivered when Frémont gave his receipt
on April 26th. On the contrary they were delivered to Abel
Stearns in two herds: one of four hundred and eighty-one
head on May ist, and the other of one hundred and nineteen
on July 6, 1847, "both of which dates are subsequent to the
discharge of the California battalion commanded by Colonel
J. C. Frémont.” The cattle, "furnished by a formal con-
tract,” Mason continues, "are delivered to a private indi-
vidual, upon a special agreement (as he, Stearns, says) to
breed on shares for the term of three years.” 5 In a docu-
ment dated July 8, 1847, Celis gives the terms of the con-
tract and says that he fulfilled his part of it to the satisfac-
tion of the Governor, “who not having time to consume said
cattle on account of having received a superior order to de-
California Message and Correspondence, 1850, 365, 370.
2 Ibid., 370.
3 Ibid., 371.
4 Ibid., 363–64.
5 Mason submitted a list of several documents signed by the contracting
parties and witnesses to prove his accusation. So far as these go his charges
appear to be justified. For the complete list see California Message and
Correspondence, 1850, 363-73.
THE PERIOD OF MILITARY RULE
37
liver up the command and disband the force, ordered said
cattle to be delivered to Mr. Abel Stearns, as I understand,
in the quality of a deposit, until the government should dis-
pose of them.” 1 In a communication dated August 12th,
however, Stearns admits that he held six hundred head of
cattle, “the major part breeding cows,' and that they were
held by a contract for a term of three years. At the end of
that time he was "to return the same number and class, ...
with one-half of increase.” He declared that he considered
the cattle as the private property of Frémont.2 Frémont
offered as his defence later that he put the cattle in private
hands to secure himself if the government should fail to
acknowledge the debt, but as Bancroft says, “this does not
explain his certificate of delivery." 3
On March 18, 1847, Frémont, by allowing a premium of
$4500, had obtained $15,000 from F. Huttman for drafts on
the government. Secretary Buchanan refused to accept the
drafts and they were protested. A suit was brought in Lon-
don, where Frémont was arrested and put in jail, although
he was soon released on bail. Judgment was obtained for
the original $19,500 with interest and cost, all amounting
to $48,814. To relieve Frémont of the embarrassment a
bill was introduced into Congress that resulted in a long dis-
cussion in which the account of the conquest and the claims
was once more gone over. By an act of March 3, 1854, Con-
gress agreed to pay the $48,814, but to charge the original
California Message and Correspondence, 1850, 372.
2 Ibid., 367-8.
3 Bancroft, History of California, V, 435, note 35.
38
.
STATE GOVERNMENT IN CALIFORNIA
$15,000 to Frémont until he should prove that the money had
been spent for the public service. Apparently he was never
able to prove that it was so used.2
Kearny's Rule
The contest over the governorship which had begun be-
tween Stockton and Kearny was continued, after a brief
interval, by the latter and Stockton's appointee, Frémont.
Commodore W. Branford Shubrick arrived at Monterey on
January 22nd to succeed Stockton in command of the Paci-
fic squadron. While Shubrick had the instructions of July 12,
1846, addressed to Sloat and authorizing the naval officers
to form a civil government, he was inclined to recognize
Kearny's authority rather than Stockton's. Both agreed,
however, that it was best not to reopen the controversy un-
til more explicit orders should come from Washington, and
Shubrick notified Frémont of this agreement.4 On Febru-
ary 12, 1847, Colonel Richard B. Mason and Lieutenant
Watson arrived at San Francisco with orders which were
positive. The letter from Scott to Kearny, dated No-
vember 3, 1846, stated quite clearly that the senior officer of
the land forces was to be civil governor of the territory; 6
1 Bancroft, History of California, V, 465–66.
2 Ibid., 466. For a full discussion of the claims under Sloat, Stockton and
Frémont, see 462-68 and references.
3 H. Ex. Doc., 2nd sess., 29th Cong., No. 19, 81-82.
4 Bancroft, History of California, V, 429.
5 California Message and Correspondence, 1850, 283–4. Letter from Kearny
to Jones dated March 15, 1847.
º H. Ex. Doc., 2nd sess., 29th Cong., No. 19, 15.
THE PERIOD OF MILITARY RULE
39
and the letter from Mason to Stockton written two days
later bore similar information. There was therefore no
longer reason to delay, and Kearny determined to assume
his duties as civil governor.
On March 1, 1847, a joint circular was issued by Shubrick
and Kearny setting forth the separate duties which had been
assigned each by the President. To the commander-in-chief
of the naval forces had been given the regulation of the im-
port trade and the establishment of port regulations; and to
the commanding military officer were assigned the direction
of land operations and the administrative functions of gov-
ernment. This joint circular with general orders of in-
struction was delivered to Frémont át Los Angeles on
March with by Captain Turner.3 Frémont promised obedi-
ence to the orders, but it was not until March 22nd that he
started for Monterey in compliance with the orders of
Kearny, arriving at the latter place in the evening of
March 25th.4
The proclamation issued by Kearny is dated March ist,
but was drawn up on the 4th. In it the Governor declared
that he entered upon his duties with an ardent desire to pro-
mote, as far as he was able, the interest of the country and
1 H. Ex. Doc., 2nd sess., 29th Cong., No. 19, 91.
2 California Message and Correspondence, 1850, 288.
3 Bancroft, History of California, V, 441. The order is given in part in
California Message and Correspondence, 1850, 289. Frémont was ordered to
bring all the archives and public documents and papers in his possession to
Monterey immediately.
4 Ibid., 442-3. This was Frémont's famous four days' ride. For a
full discussion of the Kearny-Frémont controversy, see Bancroft, History
of California, V, ch. 17.
40
STATE GOVERNMENT IN CALIFORNIA
the welfare of its inhabitants. Religious beliefs were to be
respected and church property protected. The quiet and
peaceable inhabitants were insured that they would not be
disturbed either by enemies at home or from abroad, and
they were urged to exert themselves in preserving order and
maintaining authority. A free government was promised for
California as soon as practicable, similar to those in the other
territories of the United States. Until such a government
was organized, the laws then in force which did not conflict
with the Constitution of the United States would be con-
tinued until changed by competent authority. Those hold-
ing office were to retain the same, provided they swore to
support the Constitution and to perform their duty faith-
fully. All the inhabitants of California were absolved from
further allegiance to Mexico, and were declared to be citi-
zens of the United States. An apology was offered for some
“excesses and unauthorized acts” which were "no doubt
committed by persons employed in the service of the United
States, by which a few of the inhabitants have met with a
loss of property.” Such losses were to be duly investigated
and those entitled to compensation would receive it. The
internal disorders which California had experienced for so
many years were over, and henceforth, "under the star-
spangled banner,'' peace and prosperity would follow. "The
Americans and Californians are now but one people; let us
cherish one wish, one hope, and let that be for the peace and
zen
some
1 The reference here is doubtless to those who had lost property during the
Bear Flag movement and during the administrations of Stockton and
Frémont.
THE PERIOD OF MILITARY RULE
41
quiet of our country. Let us as a band of brothers unite and
emulate each other in our exertions to benefit and improve
this our beautiful, and which must soon be our happy and
prosperous, home.”'l
On March 1oth, William Edward Petty Hartwell was
appointed translator and interpreter of the Spanish language
for the Governor at a salary of $1500 a year. The people of
San Francisco, on the same day, were given all the “right,
title, and interest of the government of the United States,
and the territory of California, in and to the beach and water
lots on the east front of said town of San Francisco, included
between the points known as the Rincon and Fort Mont-
gomery, excepting such lots as may be selected for the use
of the general government by the senior officers of the army
and navy now there.” The ground thus ceded was to be
divided into lots and sold at public auction to the highest
bidder, and the proceeds were to go to the town of San
Francisco.3 On March 24th the Governor appointed Walter
Colton judge of the court of admiralty for the territory of
California.4 Three days later Colonel Mason was ordered
to proceed to the southern military district of California and
inspect the troops there. He was clothed with full author-
ity to give such orders and instructions, both civil and mili-
tary, as he might think conducive to the public interest.5
1 California Message and Correspondence, 1850, 288-89.
2 Ibid., 290–91.
3 Ibid., 291.
4 Ibid., 291-92.
5 Ibid., 292.
42
STATE GOVERNMENT IN CALIFORNIA
Captain John A. Sutter was appointed sub-agent for the
Indians on and near the Sacramento and San Joaquin rivers
on April 7th, and Mariano G. Vallejo, sub-agent for the In-
dians north of San Francisco Bay on April 14th.1 On April
Ioth Silburn M. Boggs and John H. Nash were appointed
first and second alcaldes respectively of Sonoma district. 2
Orders were issued by the Governor to the collectors of duties
at various ports to receive nothing but specie, treasury notes,
or drafts in payment of custom dues. 3
These events, together with a few directions to alcaldes
regarding judicial decisions, constituted the principal work
of Kearny as civil governor of California. He addressed a
report to General R. Jones at Washington on the 15th of
March, giving an account of conditions in the territory.
After recording incidents which have already been mentioned
in this chapter, he informs General Jones that Colonel Steven-
son arrived at San Francisco on March 5th, accompanied by
three companies of his regiment with heavy ordnance and
stores. From the large amount of ordnance and stores sent
to California, he says, “I presume the territory will never be
restored to Mexico," and declares that it should not be.4 The
people of the territory would resist Mexican authority, so
that nothing but dissensions could follow its restoration.
TITII
VV 1
TY
le
1 California Message and Correspondence, 1850, 296.
2 Ibid., 295.
3 Ibid., 298, 300, 301.
4 It will be remembered that his proclamation was dated March ist. In
this he had declared that the United States flag would float over California
"as long as the sun continues to shine upon her.” See the proclamation in
California Message and Correspondence, 1850, 289.
THE PERIOD OF MILITARY RULE
The Californians were then quiet, and he would endeavor to
keep them so by mild and gentle treatment. “Had they
received such treatment from the time our flag was hoisted
here, in July last, I believe there would have been but little
or no resistance on their part.1 They have been most cruelly
and shamefully abused by our own people—by the volunteers
(American immigrants) raised in this part of the country and
on the Sacramento. Had they not resisted they would have
been unworthy the name of men.”
The climate he declared to be most healthful, and the soil
rich. California with Oregon was destined to "furnish our
600 whaling vessels and our 20,000 sailors in them, besides
our navy and troops, with their breadstuffs and most of the
other articles they are to consume.” The population at that
time was reported to be about 12,000, of whom about one-
fifth were immigrants. Besides these were about 15,000
Indians, nearly one-third of whom were called Christians,
speaking the Spanish language. To protect the people from
the wild Indians he recommended keeping one thousand
soldiers in the territory for some years to come. He further
recommended fortifying the harbors in the bays of San Fran-
cisco, Monterey, and San Diego. For the first of these he
had already directed fortifications, utilizing the old Spanish
fort at the entrance of the bay for the purpose. 2
With the exception of Indian depredations and rumors in
April that a Mexican army under General Bustamante was
1 In other words, if Stockton and Frémont had followed the policy of Sloat
and Larkin, there would have been no resistance from the Californians.
2 California Message and Correspondence, 1850, 283–86.
44
STATE GOVERNMENT IN CALIFORNIA
coming to reconquer California," Kearny's rule was a quiet
one. Leaving the military and civil command to Colonel
Mason, Kearny left Monterey either May 31st or June ist
for the East.2
Mason's Rule
In his communication to the President dated January 18,
1850, Secretary Crawford said “that the exercise of civil
authority by any military officer in California, since the
termination of the war with Mexico, was first assumed by
Brevet Brigadier General Mason, under his proclamation,
which was issued on the 7th of August, 1848, the next day
after the intelligence reached him that peace had been re-
stored between the United States and Mexico." But civil
power had been exercised before the treaty of peace was
signed, not only by Mason himself, but by those military
and naval officers who had preceded him as governor of
California. Whether such power was legally exercised
is a question which the writer will not undertake to de-
termine.
Colonel Mason had been a most faithful supporter of
General Kearny during the administration of the latter, and
the junior officer was naturally inclined to carry out the
policy of his chief when he succeeded him as commander of
I
1 Bancroft, History of California, V, 449.
2 Ibid., 451-2; California Message and Correspondence, 1850, 304; Cutts,
Conquest of California and New Mexico, 213.
3 American Quarterly Register and Magazine, Vol. III, 603.
THE PERIOD OF MILITARY RULE
the military forces and governor of California in May, 1847.
Unlike those who preceded him, he did not issue a procla-
mation immediately after coming into office. He became
familiar with the responsibilities of his new position while
working as a subordinate official under Kearny, and his own
accession to power enabled him to direct affairs in person.
Both officials assumed a sane, judicious attitude towards
the various problems which came before them.
During the first few months of his administration Mason's
duties did not vary greatly in scope from those of Kearny.
He appointed alcaldes and land surveyors, and, during the
absence of Commodore Shubrick, collectors of import duties,
and fixed the rates of the same. He appointed Lieutenant
Henry W. Halleck secretary of state on the 13th of August,
1847.3 He issued orders directing the military officers in
the various parts of the territory to divide the country into
districts, and by consulting one or more intelligent men in
each district, compile rough estimates of the number of in-
habitants in the territory. He directed the disposition of
prisoners, and at least on one occasion, gave directions for
the establishment of municipal civil government. In No-
vember, 1847, he was requested by four citizens of San Fran-
cisco to appoint a special court to quiet land titles in that
town. Any court that might be appointed, he said, could
1 California Message and Correspondence, 1850, 398.
2 Ibid., 406–07, 416, 418, 419.
3 Ibid., 377.
4 Ibid., 407.
5 Ibid., 413.
6 Ibid., 417.
46
STATE GOVERNMENT IN CALIFORNIA
quiet land disputes only temporarily, because such ques-
tions would be opened anew when the territory was formally
annexed to the United States and proper law courts estab-
lished. He therefore refused to make such appointments.
On the 29th of November he sent out proclamations to
prohibit the sale of spirituous liquors or wine to Indians,
and in December following issued orders to the alcaldes and
Indian agents of the territory to do everything in their power
to see that the provisions of the proclamation were enforced. 2
Directions for conducting trials by jury in cases where juries
failed to come to a decision, were sent to the alcalde of San
José on December 22nd, 3 and to Carrillo of Santa Barbara on
April 5, 1848.4
On July 25, 1848, Mason issued a warning to the miners.
Men, he said, had left their families, and soldiers were de-
serting to go to the gold mines regardless of their obligations
and their oaths. Unless families were “guarded and pro-
vided for by their natural protectors, and unless citizens
lend their aid to prevent desertions from the garrisons of
the country," the remaining military force in California
would be concentrated in the gold regions to expel all
unlicensed persons. Miners were declared to be digging
gold on government land without charge and without hin-
drance, and were therefore under obligation to assist in ap- .
prehending deserters.5
1 California Message and Correspondence, 1850, 440.
2 Ibid., 447.
3 Ibid.
4 Ibid., 505.
5 Ibid., 580.
LV
THE PERIOD OF MILITARY RULE
47
The following day he issued orders for custom-house and
port regulations for the harbors of California Collectors
were to visit merchant vessels immediately on their arrival.
Merchant vessels found harboring deserters from the army
or navy were to be confiscated and the masters thereof
were to be punished according to laws of war, and any per-
son enticing a member of a merchant crew to desert would
be subject to fine and imprisonment. Anyone attempting
to land goods without a permit from a collector would be
subject to fine and confiscation of goods. Masters of ves-
sels were to be held responsible for the action of the members
of their crews while on land. All baggage belonging to pas-
sengers was to be inspected by the custom official before
permission to land the same should be granted. Particular
care was to be taken by custom officials to guard against
the exportation of gold and silver on which the required
export duty had not been paid. No person was to be per-
mitted to visit a merchant vessel in the harbor until a custom-
house guard or inspector came on board, and the masters of
vessels were to be held strictly accountable for any communi-
cation between their passengers and crews with those of
other vessels. And similarly all communication between
those on board and those on shore was prohibited. The
proceeds of all fines imposed and goods confiscated, or one-
half of these, were to be given to the informer. 1
Definite official news of the end of the war reached Mason
on the evening of August 6, 1848, and on the following day
1 California Message and Correspondence, 1850, 583-5.
2 Ibid., 597.
48
STATE GOVERNMENT IN CALIFORNIA
he issued his proclamation announcing the ratification of a
treaty of peace and friendship between the United States
and Mexico, by which Upper California was ceded to the
former country. By the terms of the treaty, he declared,
those residing in the ceded territory who wished to become
citizens were absolved from further allegiance to the Mexican
republic. Those desiring to retain their Mexican citizenship
might do so, and they would be secured in person and prop-
erty as long as they rendered strict obedience to United
States officials. Congress would soon confer the constitu-
tional rights of citizenship upon the people of the country,
and doubtless would provide a regularly organized terri-
torial government within a few months. “Indeed, there is
every reason to believe that Congress has already passed the
act, and that a civil government is now on its way to this
country, to replace that which has been organized under
the rights of conquest.” In the meantime the holders of
civil offices were to retain their positions. All vacancies
which might occur were to be filled by regular elections
held by the people of the several towns and districts after
due notice of such elections had been given. The existing
laws were, of course, to be retained until others were made
to supply their place. With rhetorical promises of future
commercial and agricultural prosperity for the country and
an appeal for union and coöperation between Americans
and Californians, the document closed.
Two days later Mason issued orders discontinuing the
collection of revenue as military contributions and substi-
tuting therefor the revenue laws and tariff of the United
THE PERIOD OF MILITARY RULE
49
YU
OR
States. The regiment of New York volunteers and other
soldiers whose period of service ended with the war were
discharged. In a communication dated August 19th, he
notified the adjutant general at Washington of these orders
and requested further advice regarding his duties. No civil
government had existed in California for the past two years,
he said, except that which had been controlled by the senior
military and naval officers, "and no civil officers exist in the
country, save the alcaldes appointed or confirmed by my-
self. To throw off upon them or the people at large the
civil management and control of the country, would most
probably lead to endless confusion, if not to absolute anarchy;
and yet what right or authority have I to exercise civil con-
trol in time of peace in a territory of the United States? or
if sedition and rebellion should arise where is my force to
meet it? Two companies of regulars, every day diminishing
by desertions that cannot be prevented, will soon be the
only military force in California; and they will be of necessity
compelled to remain at San Francisco and Monterey, to
guard the large depots of powder and munitions of war, which
cannot be removed. Yet, unsustained by military force, or
by any positive instructions, I feel compelled to exercise con-
trol over the alcaldes appointed, and to maintain order, if
possible, in the country, until a civil governor arrive, armed
with instructions and laws to guide his footsteps."3
Such were Mason's own ideas of his position, of his duties,
1 California Message and Correspondence, 1850, 592.
2 Ibid., 597.
3 Ibid.
50
STATE GOVERNMENT IN CALIFORNIA
of his responsibilities, and of his difficulties after he learned
that a treaty of peace had been signed between the United
States and Mexico. He had sane, common sense ideas of
what should be done, but he lacked adequate resources for
dealing with the problems. That he could not abandon the
growing population without exerting himself to afford pro-
tection and preserve order he felt quite positively. He
believed that legally he had no right, and physically he
knew he had insufficient force to accomplish his purpose.
Under ordinary conditions his position would have been a
most trying one, but when news of the treaty of Guadalupe
Hidalgo reached him he was governing a United States terri-
tory under most extraordinary circumstances--so extraor-
dinary in fact that it is doubtful if anything like it is
known in history. It will, therefore, be interesting to notice
briefly those things which rendered his position so trying,
and which induced his successor to provide for the organi-
zation of a government.
CHAPTER III
GOLD AND ITS PROBLEMS
WITH the beginning of the discovery which we are about
to record, the interest of the narrative shifts from the rulers
and their plans to the gold rush and the resulting events.
In the early afternoon of Monday, January 24, 1848,
Marshall discovered gold at Coloma on the south fork of the
American river. During the following month additional
discoveries were made, and the news was dubiously received
at Monterey. By the month of May all doubt was removed
and San Francisco's population began deserting for the
mines, followed a few weeks later by Governor Mason's
soldiers. On June 1st Larkin forwarded official news of the
discovery, which was received at Washington about the
middle of September,1 A second official messenger started
eastward a little later, sent out this time by Governor Mason
and bearing a box of the precious metal, which was placed on
exhibition in the war office at Washington during the last of
November or the first of December.? In the early summer
of 1848, Mason made a tour of the gold mines, and on Au-
gust 17th following sent a report to the adjutant general at
Washington. It will be necessary to notice the content of
this report.
Bancroft, History of California, VI, 114.
2 Ibid., 115.
STATE GOVERNMENT IN CALIFORNIA
Mason's Report
Mason and his attendants left Monterey on June 12th
and reached San Francisco on the 20th. There he found that
nearly all the male population had gone to the mines.' "The
town, which a few months before was so busy and thriving,
was then almost deserted.” From San Francisco he went
by way of Bodega and Sonoma to Sutter's Fort, arriving at
the last named place on the morning of July 2nd. “Along
the whole route mills were lying idle, fields of wheat were open
to cattle and horses, houses (were) vacant, and farms (were)
going to waste.” At the Fort they found all bustle and con-
fusion. “Launches were discharging their cargoes at the
river, and carts were hauling goods to the Fort, where already
were established several stores, a hotel, etc.” The only two
employees Captain Sutter had at the time—a wagon maker
and a blacksmith-were receiving ten dollars per day. Mer-
chants were paying him one hundred dollars monthly rent
per room, and a two-story house in the Fort was rented as a
hotel at the rate of five hundred a month.
Remaining long enough to take part in “the first public
celebration of our national anniversary at the Fort,” the
Governor and his company resumed their journey on the 5th.
They proceeded twenty-five miles up the American river
"to a point now known as the lower mines or Mormon
diggings." There they found the hillsides dotted with can-
vas tents and bush arbors. A store and boarding shanties
were in full operation, and about two hundred men were at
work washing for gold in the full glare of a hot sun, some with
GOLD AND ITS PROBLEMS
53
pans, others with close woven Indian baskets, but the ma-
jority with "a rude machine known as a cradle." A party
of four men working with the cradle were averaging a hun-
dred dollars a day.
Proceeding twenty-five miles further up the south branch
of the American river, the Governor's company came upon
another party of about four thousand miners. They were
working with great success along the river, in the dry beds
of streams, and on the mountain sides. A small gutter was
pointed out to Mason not more than a hundred yards long,
four feet wide, and two or three feet deep, where two men,
William Daly and Perry McCoon, had obtained $17,000
worth of gold in seven days just a short time before his arri-
val. “Captain Weber informed me," the Governor wrote,
that he knew they “had employed four white men and about
a hundred Indians, and that, at the end of one week's work,
they paid off their party and had left with $10,000 worth”
of gold. Another small ravine was pointed out in the same
vicinity from which had been taken $12,000 worth of gold.
"Hundreds of similar ravines, to all appearances, are as yet
untouched. I could not have credited their reports had I
not seen, in the abundance of the precious metal, evidence of
their truth. Mr. Neligh, an agent of Commodore Stockton,
had been at work about three weeks in the neighborhood,
and showed me, in bags and bottles, over two thousand dol-
lars ($2000) worth of gold; and Mr. Lyman, a gentleman of
education and worthy of every credit, said he had been en-
gaged, with four others, with a machine, on the American
fork just below Sutter's saw-mill, that they worked eight
154
STATE GOVERNMENT IN CALIFORNIA
days, and that his share was at the rate of fifty dollars a day;
but hearing that others were doing better at Weber's place
they had removed there, and were then on the point of re-
suming operations. I might tell of hundreds of similar in-
stances; but to illustrate how plentiful the gold was in the
pockets of common laborers, I will mention a simple occur-
rence which took place in my presence when I was at Weber's
store. This store was nothing but an arbor of bushes, under
which he had exposed for sale goods and groceries suited to
his customers. A man came in, picked up a box of seidlitz
powders and asked its price. Captain Weber told him it was
not for sale. The man offered an ounce of gold, but Captain
Weber told him it cost only fifty cents and he did not wish
to sell it. The man then offered an ounce and a half, when
Captain Weber had to take it. The prices of all things are
high; and yet Indians, who before hardly knew what a breech-
cloth was, can now afford to buy the most gaudy dresses.”
A Mr. Sinclair, whose rancho was three miles above Sut-
ter's Fort, had been engaged about five weeks with fifty
Indians when Mason saw him, and at the end of that time
his net proceeds were about $16,000 worth of gold. The
proceeds of his last week's work had been fourteen pounds,
avoirdupois, of clean, washed gold. A Mr. Dye of Mon-
terey said that a company to which he belonged worked
seven weeks and two days with an average of fifty Indian
washers, and that their gross product was two hundred
and seventy-three pounds of gold. His share, which was
one-seventh, and which amounted to thirty-seven pounds
after all expenses were paid, was then on exhibition at
GOLD AND ITS PROBLEMS
55
Monterey. The most moderate estimate the Governor
“could obtain from men acquainted with the subject was
that upwards of four thousand men were working in the
gold district, of whom more than half were Indians, and that
from $30,000 to $50,000 worth of gold, if not more, was
daily obtained.” He had no hesitation in declaring "that
there is more gold in the country drained by the Sacramento
and San Joaquin rivers than will pay the cost of the present
war with Mexico a hundred times over. No capital is re-
quired to obtain this gold, as the laboring man wants nothing
but his pick, shovel and tin pan, with which to dig and wash
the gravel; and many frequently pick gold out of the crev-
ices of rock with their butcher knives in pieces from one
to six ounces.” 1
Y
Immigration
Such in brief was that part of Mason's report which
dealt with gold in California. His account accompanied
the President's message of December 5, 1848, and was im-
1 California Message and Correspondence, 1850, 528–36. Mason recom-
mended two plans for governmental realization of rents from land worked
by the miners. One was that surveyors be sent out from Washington "with
high salaries, bound to serve specified periods; a superintendent to be ap-
pointed at Sutter's Fort with power to grant license to work a spot of ground,
say one hundred yards square, for one year, at a rent of from $100 to $1,000
at his discretion; the surveyors to measure the grounds and place the renter
in possession. A better plan, however, will be to have the district surveyed
and sold at public auction to the highest bidder, in small parcels, say from
twenty to forty acres. In either case there will be many intruders whom for
years it will be almost impossible to exclude." See ibid., 532–33.
56
STATE GOVERNMENT IN CALIFORNIA
mediately published in the leading newspapers throughout
the country. The result was electrical. Between Decem-
ber 14, 1848, and January 18, 1849, sixty-one sailing vessels,
averaging fifty passengers each, left New York, Boston,
Salem, Norfolk, Philadelphia and Baltimore for the Pacific
coast. During the same period many more left New Orleans,
Charleston and other ports for the gold regions. In the
month of February, 1849, sixty ships were announced to
sail from New York, seventy from Philadelphia and Boston,
and eleven from New Bedford. The demand for vessels
was so great that ships were diverted from every other ser-
vice for the purpose of accommodating those clamoring for
passage to California.3
Even foreign nations were affected with the fever, and
by the middle of January, 1849, at least five different Cali-
fornia trading and mining companies were registered in
London with an aggregate capital of 1,275,000 pounds. 4
Emigration to California was fostered not only by reports
of the great gold discovery, but by the unsettled political
conditions in Europe at that time. The Revue des Deux
Mondes for February I, 1849, published an announcement
of the departure of vessels from Havre and from Bordeaux,
from many ports of Spain, Holland and Germany, and from
nearly all the principal ports of Great Britain.
"Among the Asiatic nations," says Bancroft, "the most
1 Bancroft, History of California, VI, 116.
2 Ibid., 121.
3 Ibid., 122.
4 Ibid., 124.
GOLD AND ITS PROBLEMS
severely affected by this malady were the Chinese. With
so much of the gambling element in their disposition, so
much of ambition, they turned over the tidings in their
mind with feverish impatience, whilst their neighbors, the
Japanese, heard of the gold discovery with stolid indiffer-
ence.” 1 According to the Alta Californian for May 10,
1852, there were fifty-four Chinamen in California on Feb-
ruary I, 1849. By the end of the year the number had in-
creased to seven hundred and ninety-one, and a year later,
passed the four thousand mark.2 In Australia the news
was circulated by eager ship-masters, and the streets of
the chief cities were placarded, “Gold! Gold! in California.”
In a short time it became almost impossible to procure berths
on departing vessels. When some energetic ship-masters
offered gold to Asiatic merchants in exchange for their
goods the excitement reached fever heat. In Manila even
the government lotteries were forgotten for a time, and those
of the French colony of the Marquesas Islands who were
free, made immediate departure for California and were
followed by the soldiers, leaving the governor alone to repre-
sent the government. 4
In the meantime immigrants were toiling over the moun-
tains and through the deserts from the north, south and
east. Burnett, in his Recollections, thinks "that at least
two-thirds of the population of Oregon capable of bearing
1 Bancroft, History of California, VI, 124.
2 Ibid., note 27.
3 Ibid., 125.
4 Ibid., 124–25.
58
STATE GOVERNMENT IN CALIFORNIA
arms, left for California in the summer and fall of 1848.” 1
From northern Mexico, principally Sonora, came about four
thousand before the spring of 1849.2 To estimate the num-
ber that came overland from east of the Rockies during the
summer and fall of 1849, would indeed be a difficult task.
Bancroft says that twenty thousand immigrants had as-
sembled at the various rendezvous along the Missouri river
by the end of April, and that they began their westward
journey early in May.3 Bayard Taylor estimates, in a
general way, the number of those who completed the trip
at thirty thousand. 4 “From the first of May to the first
of June,” to quote from the latter, “company after company
took its departure . . ., till the emigrant trail from Fort
Leavenworth, on the Missouri, to Fort Laramie, at the
foot of the Rocky Mountains, was one long line of mule-
trains and wagons. The rich meadows of the Nebraska, or
Platte, were settled for the time, and a single traveler could
have journeyed for the space of a thousand miles, as certain
of his lodging and regular meals as if he were riding through
the old agricultural districts of the middle states.” 5
At the close of 1848, an apparently conservative estimate
gives the population of California at twenty thousand, of
1 Burnett, Recollections of the Past, ms. I, 325. Bancroft, History of Cali-
fornia, VI, 112, note 4.
2 Bancroft, History of California, VI, 113; Coutts, Diary, ms., 113, de-
scribes the general movement from Sonora, but does not give the number of
immigrants.
3 Bancroft, History of California, VI, 146.
4 Taylor, Eldorado, II, 35.
5 Ibid., 36.
GOLD AND ITS PROBLEMS
59
whom eight thousand were Americans. This number,
according to the same authority, increased to ninety-five
thousand by the end of 1849. Of the seventy-five thousand
immigrants who came during the year, approximately
fifty-five thousand were Americans.1 The majority of them
arrived during the late summer and fall of the year at a
time when the excitement in California was at its height.
They doubtless represented every state in the Union, while
among the twenty thousand foreigners came citizens from
nearly every civilized country on the globe. 2
How long would this heterogeneous mass of disorganized
society have to wait for a divided government at Washington
to give them protection? Obviously if former conditions
were bad, they must have become intolerable before many
months of that eventful year had passed. Relief from a
situation which had been growing perceptibly more chaotic
since 1846 was absolutely necessary. In fact the desire for
a government had been growing with the difficulties which
seemed to prevent the establishment of one.
1 Bancroft, History of California, VI, 158-9, notes. Thorpe, Constitutional
History of the American People, II, 288-89 says that by the middle of 1849,
two hundred thousand people had arrived in California from various states
and countries, -undoubtedly an exaggerated estimate.
2 “The accompanying chart compiled from Bancroft's Pioneer Register
and Index will give some idea of the number of foreigners, excluding Amer-
icans, who had come to California before 1849. The annual arrivals from
each nation are indicated and the total number of foreigners in California
at the end of 1848, excluding those from the United States, is also shown.”
60
STATE GOVERNMENT IN CALIFORNIA

CHART SHOWING FOREIGN SETTLERS IN CALIFORNIA EXCEPT AMERICANS, UP TO 1848
COMPILED FROM BANCROFT'S “PIONEER REGISTER AND INDEX"
England
Scotland
Ireland
France
Portugal
Italy
Russia
Norway
Denmark
Belgium
Austria
Switzerland
Germany la
Nova Scotia
Bavaria
Ionian Is.
Sweden
Poland
Hawaiian Is.
Philippine Is.
New Zealand
Prussia
Australia
Canada
Sandwich Is.
H
5 | I 5 | 4 I | II
1831....
1832. .
i HHO of
1833 ..
........
| 21 | I
......
1836.
......
crtano, roererwyHA Narua y
.......
1837
1838....
1839..
1840....
1841...
1842....
1843 ....
1844...
H
IN SNA HNHHNHH wa
TNHH He wen A HNWA KA CHN
ari H H Hanomistaan
KH
H
HNN HN NHW H
н нн
........
........
о
1845. ..
III | I | I
1846..
1847...
1848..
II
| н
109 / 37
58 45 44 II
1830...
and earlier
Total by
Nations
7
2
2 1 6 13
I
2
I
I
| 2
2
3 10
I II II I I
GOLD AND ITS PROBLEMS
61
Alcalde Rule
Under the existing government almost the entire control
of local affairs rested in the hands of the alcaldes. Instead
of having their jurisdiction confined to a town or district
as under the Mexican rule, they sometimes exercised au-
thority over several districts. Rev. Walter Colton was such
an one. His judicial power extended over all the territory
within three hundred miles of Monterey, and within these
limits there was no appeal from his decisions. "By the
laws and usages of the country," he says, “the judicial func-
tions of the alcalde of Monterey extend to all cases, civil
and criminal, arising within the middle department of Cali-
fornia. He is also the guardian of the public peace, and is
charged with the maintenance of law and order, whenever
and wherever threatened or violated; he must arrest, fine,
imprison, or sentence to the public works, the lawless and re-
fractory, and he must enforce, through his executive powers,
the decisions and sentences which he has pronounced in
his judicial capacity. His prerogatives and official duties
extend over all the multiplied interests and concerns of
his department, and reach to every grievance and crime,
from the jar that trembles around the domestic hearth to
the guilt which throws its gloom on the gallows and the
grave." 2
1 Willey, Transition Period, 64. For a strong complaint against alcalde
government see the report made to General Smith by the San Francisco
committee appointed for the purpose. California Message and Corre-
spondence, 1850, 733.
2 Colton, Three Years in California, 230–31.
62
STATE GOVERNMENT IN CALIFORNIA
wa
The trial was a very simple procedure. The plaintiff
and the defendant appeared before the alcalde, stated their
cases, produced their witnesses if they had any, and the
dispute was decided by him immediately.' It is true that
certain compilations of laws were used as a guide in deter-
mining cases, but frequently, in minor matters, the alcalde
was himself the law. There were records of judicial or
alcalde decisions “such as shaving a rogue's head who had
shaved the tail of his neighbor's horse; or making a busy-
body, who had slandered a worthy citizen, promenade the
streets with a gag in his mouth.” 2
Davis thought that more substantial justice was rendered
by these alcaldes than by the majority of courts,3 but it
was contrary to the American idea of justice. It may have
worked, and doubtless did work well enough in the southern
part of the country among the Spanish-speaking people who
were accustomed to it, but it became increasingly annoying
in the north as the foreign population spread over that
section. It was in vain that the military governors tried
1 Davis, Sixty Years in California, 106.
2 Colton, Three Years in California, 249. Colton says that the Mexican
codes as compiled by Frebrero and Alverez were used and that they
"embody all the leading principles of civil law, derived from the institutes
of Justinian.”
3 Davis, Sixty Years in California, 106. As a matter of fact the system
did not work as smoothly as Davis seems to imply nor was the authority of
the alcalde as supreme in all places as was Colton's at Monterey. There are
numerous cases of appeals to the military governor, and some of the decisions
made by alcaldes were reversed by him. See California Message and Corre-
spondence, 1850, 290–323, 476, 488, 512, etc. For a general statement see
Willey, Transition Period, 64.
4 Willey, Transition Period, 64.
GOLD AND ITS PROBLEMS
to appease objections by appointing American alcaldes and
requiring trial by jury; complaints and protests continued.1
Newspaper Opposition
Almost as soon as they were established in California,
the newspapers began to voice public sentiment in regard
to the alcalde system of government. On February 13,
1847, the California Star urged that a convention to form a
constitution be called, justifying the demand by “railing at
the existing order of things.” 2 “We have alcaldes,” wrote
Semple, "all over the country, assuming the power of legis-
latures, issuing and promulgating their bandos, laws, and
orders, and oppressing the people .... The most ne-
farious scheming, trickery, and speculating have been
practised by some that was ever discovered to the light
of heaven." 3 Some even contended that there were no
laws in force except “the divine law and the law of
nature," while others asserted there must be law if it
1 The first trial by jury was held on September 4, 1846, at Monterey.
Willey, Transition Period, 68; Colton, Three Years in California, 47. The
second jury trial occurred at San Francisco before Judge Bartlett. Bryant,
What I Saw in California, 328.
William Hinckley, a native of Massachusetts, was elected first-alcalde of
San Francisco district in 1844. Davis, Sixty Years in California, 205, 207.
In July, 1846, Lieutenant Bartlett was appointed to the same position with
George Hyde as second-alcalde, and at the same time Stockton appointed
Colton alcalde of Monterey. Ibid., 490–91; Colton, Three Years in Cali-
fornia, 19. A little later Edwin Bryant was appointed first-alcalde of San
Francisco by General Kearny. Bryant, What I Saw in California, 429.
2 Bancroft, History of California, VI, 261.
3 California Star, February 13, 1847.
64
STATE GOVERNMENT IN CALIFORNIA
could be found. “We have frequently heard it stated
that there are general written laws in existence, for the
government of the people of the whole territory,” ran an
editorial in the paper already referred to, March 27, 1847,
“but we have not as yet been able to discover their
whereabouts. ... It seems to us that the continu-
ance of the former laws in force, when it is impossible
to produce them in any court in the country, or for the
people to ascertain what they are, will be productive of
confusion and difficulty.” 2
"Pacific,” in the California Star, January 22, 1848, said
that California, "since the United States flag was hoisted
over it, has been in a sad state of disorganization; and par-
ticularly as regards the judiciary. Indeed, sir, we have
had no government at all during this period, unless the
inefficient mongrel military rule exercised over us be termed
such."
And attacking the alcaldes the writer asserted that they
exercised "authority far greater than any officer in our
republic--the president not excepted-uniting in their
persons executive, legislative, and judicial functions. The
grand autocrat of all the Russians . . . is the only man in
Christendom I know of who equals him.”
"Pacific" was an extreme radical in his opposition to
the existing government. In the Star for April 8, 1848, a
1 Hunt, Legal Status of California, 70. In Annals of American Academy
for November, 1898. See also Willey, Transition Period, 63, 70–71, 78.
2 Also quoted somewhat differently in Hunt, Legal Status of California,
70. See Hittell, History of California, II, 656.
GOLD AND ITS PROBLEMS
65
writer asserts that "the whole business,-civil, military,
and naval,—has been one series of jumblings and contradic-
tions itself.” No such thing as civil law or organization, he
declared, existed in the land. And an editorial in the same
paper for June 3rd calls attention to the disorganized condi-
tions, especially in the mines, and urges the adoption of
some measures for the security of person and property.
"The people of this territory," so ran an editorial,1 "have
been induced from the first hour of its occupation by the
forces of the United States, to believe a territorial govern-
ment would be early granted them, that the welcome boon
of a wise administration of wholesome laws was a prize
already within their grasp. Lulled by the promises of our
military and naval commandants, who have alternately
exercised control over affairs of state, these people have
never presumed to question with what powers these repre-
sentatives of our government were clothed, but deferentially
acknowledge the authority conferred upon them sufficient
to protect their relationships with each other, as well as to
prevent the interference of foreign nations.”
Power, the article continued, had been given General
Kearny to organize a civil government, but he had neglected
to do it. Governor Mason undoubtedly had the same au-
thority. “We can express astonishment, therefore, that ...
no movement had been made towards executing the will of
the government.. .. The people of this territory are
1 California Star, May 20, 1848.
2 A part of Marcy's instructions to Kearny, dated June 3, 1846, has been
quoted at the beginning of chapter two. The instructions were qualified,
66
STATE GOVERNMENT IN CALIFORNIA
now awaiting the promised administration of decisive law.
They require it-they expect it, and to it they are entitled.”
Opposition in San Francisco
In San Francisco public feeling became so strong that a
convention of the people was called on the 12th of February,
1849. Four or five hundred men of the district assembled in
Portsmouth square to consider ways and means of organiz-
ing a more efficient local government. After a session of
three hours 1 a resolution was drawn up declaring the ab-
solute necessity “of having some better defined and more
permanent civil regulations to replace the vague, unlimited
and irresponsible authority” exercised by the appointees
of the military rulers. In compliance with the resolution a
plan of government was submitted by George Hyde, and
was finally adopted by a large majority of those present.
Article one of the proposed plan provided for the election
of a legislative assembly of fifteen members from the citizens
of the district, any eight of whom should constitute a quorum
for the transaction of business. Such laws as the assembly
should make were to be in harmony with the Constitution
however, by the following sentence: “It is foreseen that what relates to the
civil government will be a difficult and unpleasant part of your duty, and
much must necessarily be left to your own discretion.” The next sentence,
however, ordered him "to act in such a manner as best to conciliate the
inhabitants and render them friendly to the United States." The attitude
taken by the writers of the above quotations would indicate that the Gov-
ernor was not carrying out this part of his instructions.
* California Message and Correspondence, 1850, 734.
GOLD AND ITS PROBLEMS
67
and with the common law of the land. To become effective
cording clerk of the assembly. Members of the legislative
body were to enter upon their duties on the first Monday
of March.
According to the second article three justices of the peace
were to be elected by the people, who were to have separate
but equal jurisdiction in the district, and whose duty should
be to hear and adjudicate all civil and criminal issues ac-
cording to the common law as recognized by the Constitution
of the United States. An election for both legislative and
WE
They were to hold their office for a term of one year, "unless
sooner superseded by the competent authorities from the
United States government, or by the action of a provisional
government now invoked by the people of this territory,
or by the action of the people of this district.” All officials
were to be under a solemn oath to support the Constitution
of the United States and to discharge faithfully their official
duties. The franchise was to be extended to every male
inhabitant of the district over twenty-one years of age.1
After passing resolutions, first requesting members of the
town council to tender their resignation to a committee
appointed for that purpose, and second to have the proceed-
ings of the convention published in the Alta Californian, the
convention adjourned.2
1 For the political and social conditions in San Francisco during the
period, see Bancroft, History of California, V, 648–51 and notes, and VI,
208–20, 261-81.
2 California Message and Correspondence, 1850, 729-30.
STATE GOVERNMENT IN CALIFORNIA
The election was held on February 21, 1849 as planned.
Wyden Norton, Heron R. Per Lee, and William M. Steuart
were elected justices of the peace; and Stephen A. Wright,
Alfred J. Ellis, Henry A. Harrison, George C. Hubbard,
George Hyde, Isaac Montgomery, William M. Smith, An-
drew J. Grayson, James Creighton, Robert A. Parker,
Thomas J. Roach, William F. Swasey, Talbot H. Green,
Francis J. Lippitt, and George Hawk Lemon were chosen
members of the first legislature.1
The assembly held its first meeting at the Public Institute
in San Francisco on Monday evening, March 5th. The
oath of office was administered by Judge H. R. Per Lee,
Hyde was appointed temporary chairman, and the members
proceeded to the election of officers. Lippitt was elected
speaker and J. Howard Ackerman clerk. J. Cade was ap-
pointed sergeant-at-arms and E. Gilbert printer. On mo-
tion a committee of three was appointed to act in connection
with the judges of the district, whose duty should be to report
a code of laws as soon as practicable. At a second meeting
held on the following evening a committee was appointed to
wait upon Major General Persifor F. Smith, who had super-
seded Mason as commander of the Pacific military division, on
February 26th, and Commodore Thomas Catesby C. Jones of
the naval forces on the Pacific. The committee was to inform
these officers of the motives which had impelled the people
of San Francisco to organize a government, and respectfully
to solicit the support of the military and naval forces. 2
1 California Message and Correspondence, 1850, 731.
2 Ibid., 732.
GOLD AND ITS PROBLEMS
69
UU
The committee reported to General Smith on March 10th.
Briefly stated, the reasons given for organizing a local gov-
ernment were the following: (1) the extensive powers exer-
cised by the alcaldes were incompatible with the American
sense of justice; and since the treaty of peace was signed,
they had been exercising not only greater powers but had
begun even to abuse their authority; (2) the people had
waited in vain for Congress to organize a government for
the territory, and since the ratification of the treaty of peace,
the committee believed, Governor Mason had withdrawn
"from all connection with the civic relations of the terri-
tory.” 1
General Smith's reply was dated March 27th. He made
no attempt to answer the arguments made by the commit-
tee, but said he could not support the government which the
people of San Francisco organized. His reason was that the
military rule established during the war had been recog-
nized by the President as a de facto government, and must be
so recognized until Congress should organize another. Any
officer under the existing government who was not doing
his duty or who was abusing his power, the General prom-
ised, would be removed and punished when proven guilty.2
The opposition to the existing order of things was stronger
in San Francisco than elsewhere because the population
was largely American. It is true that the majority of the
people in the mining section were also from the United
States, but they were too completely absorbed in the search
1 California Message and Correspondence, 1850, 732-35.
2 Ibid., 735-7.
for gold to take the same proportionate interest in govern-
mental affairs as the people in the towns. The feeling of
dissatisfaction was general, however, and became more so
as immigration increased. Unable to secure the protection
to which they believed themselves entitled in their local
affairs, there seems to have been a tendency, more or less
general in the northern towns, to assume such authority as
the people of the communities deemed necessary for their
own protection la tendency with which the military
rulers did not always interfere. Gradually, as the local
dissatisfaction became more widely known, the people in
.
method of organization which would relieve the territory
of alcalde rule and provide for a more substantial system of
government. Several towns held meetings and discussed
the propriety of such an organization during the latter part
of Mason's governorship. When Riley succeeded him on
April 12, 1849, therefore, conditions were ripe for the es-
tablishment of a general government.
1 At Monterey, for instance, the people took matters into their own hands
and quickly dispatched some American desperadoes who committed assaults
on the native population. Roach, Statement of Historical Facts on California,
ms., 5. San Francisco's summary disposal of the "Hounds” is well known.
See Bancroft, History of California, VI, 211–12.
2 General Smith, in his reply to the San Francisco committee already re-
ferred to, said he believed that the people of each district "should have and
exercise the free right to establish such interior regulations for police and
security" as they might deem necessary, providing such regulations were in
harmony with the existing laws. California Message and Correspondence,
1850, 737.
CHAPTER IV
CALL AND ORGANIZATION OF THE CONVENTION
As we have seen already, the California Star as early as
February 13, 1847 urged the calling of a convention to
form a constitution for a territory, but public sentiment
was not ready for such a move at that time. A mur-
der committed in the mining district in November, 1848,
furnished the occasion for the Star and Californian to
renew the proposition. At about the same time news
came that Congress had adjourned without providing a
territorial government, and several companies of immi-
grants arrived in California, many of whom had assisted
in forming independent governments in Oregon and
“Deseret.” 2 A new impulse was given to the idea as a
result. Mass meetings were called December II, 1848 at
San José; December 21st at San Francisco; and at Sacra-
mento on January 6th and 8th, 1849.3
1«The tragedy late enacted in the mining district affords still another
melancholy instance of outraged law. ... In a word, it brings vividly
before us the momentous question-Shall we have a civil Government in
California?” Star and Californian for Dec. 2, 1848.
A man by the name of Pomeroy and his companion had been killed for
the gold-dust they carried.
2 Bancroft, History of California, VI, 269.
3 Ibid.
72
STATE GOVERNMENT IN CALIFORNIA
Public Meetings Recommending a General Convention
The people of San José assembled in the alcalde's office,
appointed a committee to draw up resolutions, and recom-
mended that a convention be held at that place on the
second Monday of January for the purpose of organizing a
civil government for the territory. K. H. Dimmick, Benja-
min Cory and J. D. Hoppe were elected delegates to the
convention. At San Francisco also resolutions were passed.
These were to the effect that the "frequent murders and
other daring outrages committed of late in different parts
of the country, especially at the mines, while there was no
proper legal protection for the lives and property of the
citizens, had forced the people to conclude that Congress had
been trifling with them in delaying the long proposed con-
stitution—that there was no more time to wait-and there-
fore that instant steps should be taken to establish a form of
government for themselves.” 2 It was determined to send
five delegates, these to be chosen at a subsequent public
meeting, to represent the town and district in a general con-
vention to be held at San José in March, 1849, “for the pur-
pose of framing a form of constitution.” 3 A little later the
committee of correspondence of San Francisco recommended
a postponement of the convention to the 6th of May. The
very severe rainy season, which would make it difficult to
communicate with the southern districts, together with
1 Bancroft, History of California, VI, 269 and note.
2 Annals of San Francisco, 208.
3 Ibid.
CALL AND ORGANIZATION OF THE CONVENTION 73
recent intelligence from the United States which indicated
that Congress would organize a territorial government be-
fore adjourning, were the reasons given for desiring a post-
ponement.1
The meeting at Sacramento was presided over by Peter H.
Burnett, who had been a judge and a legislator in Oregon
and who had helped to form the Oregon laws. A set of
resolutions framed by a committee appointed for the pur-
pose declared that Congress had not extended the laws of the
United States over the country as the President had recom-
mended:"that the frequency of robberies and murders had
deeply impressed the people with the necessity of having
some regular form of government, with laws and officers
to enforce them;" that the great immigration movement as
a result of the gold discovery had added to the general con-
fusion; therefore it was resolved to be necessary and proper
for the people of California to adopt some measures to pro-
tect themselves. They still maintained their loyalty to and
confidence in the United States, and hoped that Congress
would sanction the steps which they were taking. They
indorsed the proceedings of the meetings held at San José
and San Francisco, and recommended the election of dele-
gates to represent Sacramento in a convention to be held
at San José on March 6th for the purpose “of draughting
a form of government to be submitted to the people for
their sanction.” 2
Meetings were also held at Santa Cruz, Monterey, and
1 Bancroft, History of California, VI, 270.
2 Ibid., 269, note 32.
STATE GOVERNMENT IN CALIFORNIA
other towns throughout the territory, resolutions were
drawn up and delegates elected. The time of holding the
meeting was finally changed from May to the first Monday in
August. Sacramento protested against a postponement
but finally had to yield to the will of the majority.
Opposing Theories
vernor
As we have already seen, General Riley arrived in Cali-
fornia and assumed control of the government on the 12th
of April. He came as a civil governor and not as a military
ruler. It did not take him long to learn of the various town
meetings which had been held, nor was he slow in feeling
the beat of the public pulse. A government of some kind
must be formed for the people or they would form one for
themselves. According to the so-called "administration
theory” the actions of the people must be directed by the
civil governor.
The advocates of this theory asserted that under the
general principles of the law of nations, the laws of Cali-
fornia which were in force at the time the treaty of peace
was signed must continue in force until changed by compe-
tent authority. That authority Congress alone possessed.
Hence the laws existing, though defective, must continue in
force until changed by Congress. Because of the vacancy of
the governorship the responsibilities of the chief executive
1 Bancroft, History of California, VI, 270, note 33.
2 Ibid.; Willey, Transition Period, 84.
CALL AND ORGANIZATION OF THE CONVENTION
75
devolved upon the commanding military officer. He be-
came ex officio civil governor.1
In opposition to this was the "settler's theory,” some-
times called the Benton theory because recommended by
him. The advocates of this theory held that the Constitu-
tion of the United States and American principles were ex-
tended over California as soon as the treaty of Guadalupe
Hidalgo was signed. At that moment the Mexican civil
law was suspended. As Congress had failed to provide a
government, it was the business of the people to legislate for
themselves. During the war military government was
legitimate; since the signing of the treaty of peace, that
government derived its right to govern from the presumed
consent of the people. This theory was supported by the
lawyers in California at the time.2
The two views were incompatible. Obviously if Cali-
fornia was to have an adequate civil government a com-
promise of some kind was absolutely necessary.
The Proclamation Calling a Convention
As already indicated, Riley had determined soon after
his arrival to permit the people to form a government for
themselves, but he was equally determined that the meeting
for that purpose should be at the call of the Governor. On
the 28th of May, 1849, the steamer Edith brought official
news that Congress had adjourned without providing a
1 Hunt, Legal Status of California, 81-82.
2 Ibid.
76
STATE GOVERNMENT IN CALIFORNIA
S
territorial government." On June 3rd following, Riley had
issued his proclamation, which had been prepared by Secre-
tary Halleck in advance.
In this document Governor Riley spoke of the recent fail-
ure of Congress to provide a government for California and
called attention to the means which he deemed "best cal-
culated to avoid the embarrassments of our present position.”
He defended his own position, setting forth the admin-
istration theory of government in California, and declar-
ing himself to be a civil and not a military ruler. The fact
that he was commander of the troops did not alter the case
in the least. “The instructions of the Secretary of War make
it the duty of all military officers to recognize the ex-
isting civil government, and to aid its officers with the
military force under their control.” The military was
subject to the civil authorities and not the civil to the
military.
alled attention to the fact that the position of Cali-
fornia differed from that of Oregon, with which it had been
compared, and resembled that of Louisiana after the latter's
acquisition by the United States. Oregon had had no laws,
while California had a system, which, although somewhat
defective and requiring many changes and amendments,
would have to continue in force until repealed by competent
authority. The decisions of the Supreme Court in recogniz-
ing the validity of laws existing in Louisiana previous to its
annexation to the United States, providing such laws were
not inconsistent with the Constitution and laws of the United
1 Willey, Transition Period, 85-86.
CALL AND ORGANIZATION OF THE CONVENTION 77
States, furnished a “clear and safe guide in our present situa-
tion."
Since Congress had failed to organize a new territorial
government, it became the duty of the civil governor to
take some active measure to provide for one. The needs of
the country made it imperative that while this was being
done, the administration of the existing laws should be
carried out with vigor. It would take some time for the
convention which he would call to "meet and frame a state
constitution or a territorial organization.” The plan which
the convention would propose would have to be ratified
by the people, approved by Congress, and then put into
operation. In the meantime the existing government would
be completely organized to meet temporary wants.
The proclamation then gave a brief summary of the ma-
chinery of California government as it had existed under
Mexico—a governor, a secretary, a territorial legislature,
a superior court, a prefect and sub-prefect for each district,
a judge of first instance for each district, alcaldes, and local
justices of the peace-and ordered that all vacancies be
filled by popular vote on August ist, when delegates were
to be elected to a general convention for forming a state
constitution or for drawing up a plan for a territorial gov-
ernment.
The general convention was to consist of thirty-seven
delegates and was to meet at Monterey on September ist.
The apportionment of representation was to be as follows:
the districts of San Diego, Santa Barbara, and San Luis
Obispo were to send two each; Los Angeles, Sonoma, Sacra-
1
STATE GOVERNMENT IN CALIFORNIA
mento, and San Joaquin, four each; and Monterey, San
José, and San Francisco, five each. The boundaries of the
ten districts into which the territory was divided were indi-
cated in the proclamation. The places for holding the elec-
tion were named, and the local alcaldes and members of the
Ayuntamientos were to act as judges and inspectors of
elections. If on the day of the election there should be less
1 The boundaries of the respective districts were as follows: San Diego,
bounded on the south by Lower California, on the west by the sea (Pacific
ocean), on the north by a parallel of latitude "including the mission San
Juan Capistrano,” and on the east by the Colorado river; Los Angeles, on
south by San Diego, west by the sea, north by the Santa Clara river and a
parallel running from its source to the Colorado, east by the latter river;
Santa Barbara, south by Los Angeles, west by the sea, north by the Santa
Inez river and a parallel running from the source of that stream to the sum-
mit of the coast range of mountains, east by the coast range; San Luis
Obispo, south by Santa Barbara, west by the sea, north by a parallel "in-
cluding San Miguel,"east by the coast range of mountains; Monterey, on the
south by San Luis Obispo, north and east“by a line running east from New
Year's point to the summit of the Santa Clara mountains, thence along the
summit of that range to the Arroya de los Leagas, and a parallel of latitude
extending to the summit of the coast range and along that range to San
Luis.” (The western boundary was not given but was of course the Pacific);
San José, on the west and south by the Santa Clara mountains and Monterey,
east by the coast range, and north "by the straits of Carquenas, the Bay of
San Francisco, the Arroya of San Francisquito and a parallel of latitude to
the summit of the Santa Clara mountains;" San Francisco, south by San
José and Monterey, west by the sea, north and east by the Bay of San
Francisco (this district also included the islands in the bay); Sonoma in-
cluded "all the country bounded by the sea, the bays of San Francisco and
Suisun, the Sacramento river and Oregon;" Sacramento, south by the
Cosumnes river, west and north by the Sacramento river, east by the Sierra
Nevada; San Joaquin "includes all the country south of the Sacramento
district and lying between the coast range and the Sierra Nevada moun-
tains."
CALL AND ORGANIZATION OF THE CONVENTION 79
than three such judges and inspectors present at each elec-
tion precinct, the people were to appoint some competent per-
sons to fill the vacancies. The judges and inspectors were to
take an oath "faithfully and truly to perform” their duties.
The returns were to state distinctly the number of votes
received for each candidate, and were to be signed by the
inspectors, "sealed and immediately transmitted to the
secretary of state for file in his office.” The franchise was
to be granted to “every free male citizen of the United
States and of Upper California, twenty-one years of age, and
actually resident in the district where the vote is offered,"
and to "all citizens of Lower California who have been
forced to come to this territory on account of having ren-
dered assistance to the American troops during the recent
war with Mexico," provided they cast their "vote in the
district where they actually resided.”
The method indicated in the proclamation for providing
a more perfect political organization was declared to be
the most direct that could be adopted. “It is the course
advised by the President, and by the secretaries of state
and of war ... and is calculated to avoid the innumerable
evils which must necessarily result from any attempt at
illegal local legislation.” 1
Horsemen bore copies of the proclamation to various
parts of the territory and posted them in the most conspicu-
ous places.
See Proclamation of the Governor in Browne, Report of the Debates in
the Convention of California, 1849, 3-5.
2 Willey, Transition Period, 86.
80
STATE GOVERNMENT IN CALIFORNIA
The Reception of the Proclamation
Even with the attitude of the people in favor of a conven-
tion, there seems to have been no little uncertainty as to
just what kind of a reception the people would give the
Governor's proclamation. In many places there had been
a pronounced unwillingness to acknowledge his authority to
call a convention or even to act as civil governor. At San
Francisco a public meeting was called on June 12th and the
citizens resolved to make no response to the proclamation
and to send no delegates to the convention. To do so, they
declared, would be yielding to military authority in civil
affairs. The feeling of hostility had been intensified by a
special proclamation issued to the people of San Francisco
by Governor Riley on June 4th in which he declared the
legislative assembly of that town to be an illegal body, and
forbade the people to pay taxes to support the government
under it.2 In defiance of the Governor's special proclamation
to them, the people of that town, in a large and enthusiastic
mass meeting, "resolved that the people of California had
a right to organize a government for their own protection-
that therefore delegates should be chosen to frame a con-
stitution--and that a committee of five be appointed by
the president ... to correspond with other districts ...
.. 1 Willey, Transition Period, 87, Annals of San Francisco, 222.
2 Annals of San Francisco, 222. This had been done because the people
of San Francisco had abolished the office of alcalde, substituting the senior
justice of the peace, and had elected a sheriff. The alcalde refused to aban-
don his office and was supported by Governor Riley in his proclamation of
June 4th.
CALL AND ORGANIZATION OF THE CONVENTION
81
in order to carry out in a practical manner the said resolu-
tions.” On the 18th of June this committee issued an ad-
dress to the public. In this they denied—or at least refused
to admit—"the right of Governor Riley to appoint time or
place for the election of delegates and assemblying” of a
convention, but they considered it best to adopt the terms
of the Governor's proclamation of June 3rd as a matter of
expediency.1
Thus the struggle ended. San Francisco yielded finally
because she thought better results would be realized by
coöperating with the Governor than by attempting to op-
pose him. This idea doubtless served to reconcile opponents
throughout the territory, and all looked forward to the
coming election.
The Personnel of the Convention
The election of delegates was a success in all parts of the
country, and preparations were made at Monterey for the
reception of members of the Convention. The school which
was in session in Colton Hall was suspended, and carpenters
1 Annals of San Francisco, 222. For a brief account of the election at
San Francisco, together with the names of the different officials elected,
see American Quarterly Register and Magazine, III, 68–9. The account
there given is taken from the Alta Californian for August, 1849.
2 Willey, Transition Period, 87.
3 The elections were not held in all cases on August ist, however, but the
delegates elected at a later date were admitted to the Convention. Party
politics, it has been asserted, played no part in the election, with the possible
exception of the Sacramento and San Francisco districts. Taylor, Eldorado,
I, 148.
82
STATE GOVERNMENT IN CALIFORNIA
Ssei
TOO
began converting the second story into a suitable assembly
room. A hotel was hastily constructed, a few restaurants
were provided, and Monterey deemed herself ready to re-
ceive the delegates.
The proclamation had fixed the apportionment of repre-
sentation for each district, as we have seen, but it also pro-
vided that any district thinking itself entitled to a larger
representation might elect additional delegates and the
question of their admittance would be determined by the
Convention. As there was a large increase in population
in certain districts between the 3rd of June and the day
appointed for the election, August ist, several districts
chose additional representatives. When the Convention
met, even before it was regularly organized, the question of
admitting the extra delegates came up for consideration.
Some time was spent in discussing the subject and various
schemes of apportionment were suggested. The plan finally
adopted resulted in giving the Convention a total member-
ship of forty-eight. Of this number the San Francisco and
Sacramento districts each had eight; San José, seven; Mon-
terey and San Joaquin, six each; Los Angeles, five; San
Diego and San Luis Obispo, two each; and three and one
respectively from Sonoma and Santa Barbara. Thus of
the forty-eight members, ten represented southern districts
and thirty-eight northern.
1 Willey, Transition Period, 89, 92, Taylor, Eldorado, I, 148.
2 The southern districts were San Diego, Los Angeles, Santa Barbara and
San Luis Obispo. The districts north of the last named place were consid-
ered northern. See Carillo's speech in Browne, Report of Debates in the
Convention of California, 1849, 22.
CALL AND ORGANIZATION OF THE CONVENTION 83
The large majority of the members were young men.
More than thirty of them were less than forty years old,
nine were less than thirty, and the remaining four had
barely passed the half century mark. There were fourteen
lawyers, eleven farmers, and seven merchants. The various
trades and professions were represented by the other mem-
bers, one giving his occupation as "elegant leisure." I Fif-
teen of the delegates may be considered as men from the
southern states. One of this number, Wozencraft, was born
in Ohio, but seems to have spent enough of his life in Loui-
siana to become thoroughly in sympathy with the people
of the South. Of the fifteen, eight had been in California
less than thirteen months, six had been living in the territory
more than a year but not over three years, and one had
been an inhabitant for five years. Every one of the fifteen,
with one exception, represented northern districts. Of the
twenty-three members from northern states, three repre-
sented southern districts. Fifteen of the number had been
in California between three and twenty years and only
eight less than three years. It will thus be seen that the
members of the Convention who were northerners by birth
and training must have had an advantage not only in num-
bers but in their familiarity with conditions in California.
Thomas Larkin and Abel Stearns, both of whom came
from Massachusetts, had been in the territory sixteen and
twenty years respectively. They were both business men
of considerable prominence in the districts which they rep-
1 Browne, Report of the Debates in the Convention of California, 1849, 478-9.
This work will be referred to in the future as Browne, Debates.
84
STATE GOVERNMENT IN CALIFORNIA
2
resented, and their long experience in dealing with Cali-
fornians “over the counter” must have given them a good
deal of influence among the native delegates. Among the
latter there were five from southern districts and three
from northern. The two foreigners, one from France and
the other from Scotland, had been in the territory eleven
and sixteen years respectively.1 Their home environment
would probably place them in sympathy with northern men
so far as the slavery question was concerned; and as they
came directly to California, it is very improbable that they
found anything in the latter place to change their attitude.
It is hardly correct, then, to say that the Convention
"was understood to be under the management, imaginary
if not real, of southern men.” 2 The misstatement is prob-
ably due to another which the same author obtained from a
report on California made by T. Butler King. The latter
received his information in 1850 from the two California
representatives in Congress who had been members of the
Constitutional Convention of 1849. These men told King
that “of the thirty-seven delegates designated in General
Riley's proclamation, sixteen were from slaveholding, and
ten from non-slaveholding states, and eleven were citizens
1 There were two others who were born in foreign lands, but one of them,
Shannon, came to New York from Ireland when a mere boy; and Pedrovena,
the other, from Spain to California twelve years before the Convention met.
I have therefore considered the former as a northern man and the latter as
a native. The two foreigners referred to above had been in the country
longer, but they would not be as likely to sympathize with the natives as
would a Spaniard.
2 Bancroft, History of California, VI, 286.
3 Ibid., 282.
CALL AND ORGANIZATION OF THE CONVENTION 85
20
of California under the Mexican government, and that ten
of the eleven came from districts below thirty-six degrees,
thirty minutes. So that there were in the Convention twenty-
six of the thirty-seven members from the slaveholding states
and from places south of the Missouri compromise line.” 1
An examination of the official report of the Convention
will show that of the thirty-seven delegates recommended
in Governor Riley's proclamation only thirty-six of whom
were elected 2-fourteen were from northern states, twelve
from southern, seven were natives (and five of these had
been elected to the Convention from districts in the southern
part of California), two were foreigners, and that the na-
tivity of one is not given. The twelve additional members
admitted by the Convention were all, with one exception,
from northern districts, and of the twelve, nine were men
from northern states. The official proceedings of the Con-
vention also show that men from southern states were es-
pecially active in procuring seats for these additional dele-
gates. It hardly seems probable, if they had determined to
dominate the Convention and if they had had a presumptive
majority of twenty-seven members, that they would have
strengthened the ranks of their opponents by admitting
1H. Ex. Doc., ist sess., 31st Cong., Doc. 59, 6. Compare Bancroft, His-
tory of California, VI, 282.
2 One member, Covarrubias, was elected from two districts-Santa
Barbara and San Luis Obispo; he chose to take his seat from the latter
place.
3 Browne, Debates, 7, 8, 478–79.
4 Ibid.
Bancroft, History of California, VI, 282.
86
STATE GOVERNMENT IN CALIFORNIA
three times as many men from northern states as from their
own section.
The Organization
The interest in gold digging and the expense and incon-
venience of a journey from the northern and southern dis-
tricts to the capital created some doubt as to whether the
delegates would attend, even after the election. At noon on
September ist only ten had arrived, but they brought news
that many more were known to be en route. The ten met
in Colton Hall, but as the number was insufficient to con-
stitute a quorum, they adjourned to meet again on Monday,
September 3rd. At noon on the day appointed, the Con-
vention met and was opened with prayer by the Rev. Samuel
H. Willey. On the following day a regular organization
was perfected. Dr. Robert Semple of the district of Sonoma
was chosen president, and Captain William G. Marcy of
the New York Volunteer regiment, secretary. Assistant
secretaries, clerks, translators, doorkeepers, sergeant-at-
arms, etc. were also elected or appointed. The parliamen-
tary law as laid down in Jefferson's Manual, in so far as it
was applicable, was to be recognized as the law of the Con-
vention until otherwise ordered. 4
1 Browne, Debates, 7.
2 Ibid.; also Willey, Transition Period, 89, 92; and Taylor, Eldorado, I,
148. The subsequent sessions were opened each morning with prayer, the
resident clergyman and Dr. Willey officiating alternately,
3 Taylor, Eldorado, I, 149; Browne, Debates, 18, 19.
4 Browne, Debates, 19.
CALL AND ORGANIZATION OF THE CONVENTION 87
The appointment of the minor committees created no
objections, but when it came to selecting a committee on
the constitution some discussion arose. Gwin offered a
resolution “that a select committee, composed of two dele-
gates from each district, be appointed by the president
to report the plan or any portion of the plan of a state con-
stitution for the action of this body.” 1 This brought up
the question as to the kind of government which the Con-
vention proposed to put into operation. Halleck of Mon-
terey thought this subject should be settled first.2 Gwin
thought the adoption of his resolution would make per-
fectly clear the desire of the Convention on this point.
It called for a plan for a “State Constitution.” He did
not believe any member of the Convention favored a
territorial form of government. In this he was mis-
taken, however. Foster of Los Angeles was opposed to
forming a state government at that time. Tefft of San
Luis Obispo and Carillo of Los Angeles, “in compliance
with the wishes” of their constituents, felt compelled to
oppose the formation of a state government.4 They there-
fore agreed with Halleck and Foster in thinking that the
question of a territorial government should be voted on
separately. Since a large majority of the members seemed
to favor the formation of a state government, said Carillo,
why not divide the territory in two by running a line east
1 Browne, Debates, 19.
2 Ibid., 20.
3 Ibid., 20 and 21.
4 Ibid., 21 and 22.
88
STATE GOVERNMENT IN CALIFORNIA
and west through San Luis Obispo? That part of Cali-
fornia north of the line could then form a state government
while the southern portion would be left free to adopt a
territorial system. No attention, however, seems to have
been given the suggestion. Gwin's proposal was finally ac-
cepted and a standing committee of twenty was appointed
by the chair to propose a plan for a state constitution.2
This committee did its work apparently between the
regular sessions of the Convention, and from time to time
submitted portions of plans for a state constitution. Such
portions as were submitted were then taken up in the com-
mittee of the whole and discussed. It was called the stand-
ing Committee on the Constitution, and will be referred to
as the Committee or as the Committee on the Constitution.
1 Browne, Debates, 22.
2 Ibid., 29.
PART II
THE CONSTITUTIONAL CONVENTION
CHAPTER V
THE DEPARTMENTS OF GOVERNMENT
In dealing with the work of the Convention I shall consider
first the three departments of government as organized
by that body. This will be followed by chapters dealing
with (1) the free negro controversy; (2) the discussion over
the eastern boundary for the new state; (3) corporations and
banks; (4) education and taxation; (5) a group of miscel-
laneous provisions; and (6) a chapter on the sources of the
constitution of 1849. Some of these were of course em-
bodied in sections which were proposed as, or which became
parts of, some one of the articles dealing with the depart-
ments of government, but obviously they are not concerned
with the actual organization of those departments. They
come rather under the head of directions to the departments
concerned. Nevertheless they include the big questions
in some cases, vital questions—and the discussion which
they produced gives them an interest in themselves.
Article three of the constitution declared that the powers
of government of the state of California should be divided
into three separate departments—the executive, the judicial,
and the legislative--and that no person who exercised powers
properly belonging to one of these departments should exer-
cise any “function appertaining to either of the others,
except in the cases hereinafter expressly directed or per-
UT
92
STATE GOVERNMENT IN CALIFORNIA
mitted." 1 The exceptions provided for were such as are
found in most state constitutions: the power of the assembly
to impeach and of the senate to try impeachment cases, of
the governor to call special sessions of the legislature and to
adjourn that body when the two houses could not agree
upon a time for adjournment, and of the legislature to es-
tablish certain tribunals, to fix the time and place for hold-
ing terms of the higher state courts, and to determine the
number of justices of the peace to be elected in each county.2
I. The Executive Department
The executive department provided for a governor, who
was to be the chief executive, for a lieutenant governor, a
secretary of state, a comptroller, a treasurer, an attorney
general, and a surveyor general, each to hold office for a
term of two years. The governor and the lieutenant governor
were to be elected by the qualified electors of the state. The
former, with the advice and consent of the senate, was to
have the power of appointing the secretary of state. The
other executive officials—the comptroller, the treasurer, the
attorney general, and the surveyor general-were to be
chosen by the joint vote of the two houses of the legislature
at their first session under the constitution, but after that
they were to be elected at the same time and place and in
the same manner as the governor and the lieutenant gov-
* Browne, Debates, 308.
Ibid., Constitution of California for 1849. Articles on executive, legisla-
tive and judicial departments.
THE DEPARTMENTS OF GOVERNMENT :
93
ernor. Each of these officials was to receive compensation
for services, but such compensation was not to be increased
or diminished during the term for which he had been elected,
nor should any one of them receive for his own use any fees for
the performance of his official duties. At the first reading
of the article on the executive department a section was
adopted giving the governor authority to suspend, during
the recess of the legislature and until thirty days after the
commencement of the next session, the secretary of state,
the comptroller, the treasurer, the surveyor general, or the
attorney general, when in his opinion they or any one of them
were neglecting their duty. He was also authorized to fill
vacancies which might occur in this way, his appointees to
hold office until ten days after the meeting of the legislature.
The governor should then make known to that body his
reasons for such suspensions, and the legislature should,
after due consideration, determine by joint ballot whether
the officer so suspended should be removed or restored to
office. Such a grant of power to the governor would have
been unusual, and upon the second reading of the article
it was struck out.2
A slight discussion arose over the qualifications of the
governor. An attempt was made to insert a section for-
bidding him to serve more than two consecutive terms, but
it was voted down.3 A further attempt was made to declare
ineligible for governor all who had not been for ten years
1 Browne, Debates, 154-63; Bancroft, History of California, VI, 299.
2 Ibid., 342-43.
3 Ibid., 156–7; Hittell, History of California, II, 765.
94
STATE GOVERNMENT IN CALIFORNIA
citizens of the United States or of California, but this, it
was considered, would prevent natives from becoming can-
didates for the highest office in the state and was also re-
jected. 1
II. The Judiciary
There were three main points of discussion over the
article on the judiciary as reported by the Committee on
the Constitution. The first was over the union of district
and appellate courts, the second over limiting the jurisdiction
of the appellate court to sums amounting to more than
$200, and the last over the question of permitting judges
to instruct juries “with respect to matters of fact.”
The Committee in its report provided for a Supreme Court
of four judges. Each was to be elected by the qualified
electors in the one of the four judicial districts in which he
vided the first election should be made by the joint vote of
the legislature at its first session. Upon the organization
of the court the judges were to be classified by lot so that
one should go out of office every year. Circuit courts were
to be held at stated periods by one of the judges of the
Supreme Court in each of the four judicial districts into
which the state was to be divided. There was also to be a
court of appeals formed by any three judges of the Supreme
Court, “but no judge shall sit in the court of appeals in any
case upon which he has given a judicial opinion in the cir-
1 Browne, Debates, 156–7.
THE DEPARTMENTS OF GOVERNMENT
95
cuit court." The fifth section also provided that the legis-
lature should have power to increase the number of judges
and whenever it shall deem expedient, it may provide by
law for the separation of the court of appeals from the circuit
court.” When such separation occurred the court of appeals
should consist of three judges who should be elected by the
qualified electors of the whole state. They were to hold
their office for six years and were to be classified so that one
should go out of office every two years. The circuit judges,
also to be elected, were to hold office for a similar term.1
1. Opposition to Union of District and Appellate Courts
The first objection raised to these provisions was that
the system there proposed provided for the union of two
courts with the same judges. This would make it very
difficult to secure an impartial decision. It was true that a
judge was not permitted to sit on a case in the appellate
court when he had decided the case in the district court, but
his colleagues of the other three districts may have formu-
lated, while serving in the capacity of district judges in their
respective districts, the principle on which his decision had
been based.4 In such a case the Supreme Court would nat-
urally support the decision of the lower court. The second
1 Browne, Debates, 212.
2 Ibid., 214, 217, 223.
3 Ibid., 217.
4 Ibid.
96
STATE GOVERNMENT IN CALIFORNIA
objection was that the system proposed would lack stability
and permanency. The legislature could, at any time, in-
terrupt the whole judicial system for the purpose of reor-
ganizing the courts, thus producing endless litigation, con-
fusion, and annoyance.
As a result of these objections the following resolution
was submitted as a test question and was adopted by the
Convention.
"Resolved, That in the opinion of the Committee the
Supreme Court of Appeals should be separate and distinct
from the District Courts." 2
Upon motion a committee of three was then appointed
to make provisions for the separation of the two courts,
and to submit proposals by noon of the following day. At
the appointed time the committee offered a substitute for
the objectionable sections. In the report provision was made
for a Supreme Court, district courts, county courts, and jus-
tices of the peace. A chief justice and two associate justices
were to constitute the Supreme Court. They were to be
elected for a term of six years, at first by the state legislature
at its first session and after that by the qualified electors
of the state. The justices were to be so classified that one
would go out of office every two years. The judges of the
district courts were also to be elected for a term of six years
by the qualified electors of their respective districts, and
the county judges for a term of four years.3
Browne, Debates, 215.
2 Ibid., 223.
3 Ibid., 224, 233.
THE DEPARTMENTS OF GOVERNMENT
2. Appellate Jurisdiction of Supreme Court Limited
ne
2
The fourth section of the series proposed by the special
committee was also accepted by the Convention, but im-
mediately after its passage Noriego raised objections to it
because it did not place proper limitations on the appellate
jurisdiction of the Supreme Court. He suggested that it be
limited in its appellate jurisdiction to sums amounting to
$200. A motion to reconsider the fourth section then passed
the House by a majority of fifteen to thirteen. 1
It was urged against the adoption of such an amendment
utmost importance-questions which had embarrassed the
highest courts in the country-had turned upon amounts
below $200; 2 (2) that the adoption of such limitations
would be especially hard on poor people because it would
shut them off from the higher courts; (3) the majority of
cases below $200 were brought into court by this class and
they should be permitted to avail themselves of the highest
judicial tribunal; 3 (4) that local judicial officials might be
prejudicially inclined toward the rich of their community,
which would make it very difficult for the poor to obtain
unbiased decisions; 4 (5) that the principle of appeal was a
just and righteous one and should not be denied any class
of people 5 or limited in any way.
1 Browne, Debates, 225.
3 Ibid., 226.
4 Ibid., 229.
5 Ibid.
98
STATE GOVERNMENT IN CALIFORNIA
True, was the reply, great principles were frequently in-
volved in the settlement of very small amounts, but the
function of the Supreme Court should be not to decide prin-
ciples but law. Again, there was a class in every com-
munity who had money but had no capacity for taking care
of it. This class “lawyers pounce upon like vultures upon
dead bodies; and although the lawyers know they cannot
succeed in their suits, they urge them to go on.” Such peo-
ple would receive protection from the ingenuity of lawyers
who derived their income from cases of that kind, if the
jurisdiction of the Supreme Court were limited as proposed.2
Another reason given was that debts could be more easily and
more quickly collected. Those cases arising for sums under
$200 were usually cases of wages or small debts owed
to merchants. If such cases could be appealed there would
be an endless delay in the collection of debts. And last
it was urged as a “principle of common justice” that such a
limitation should be placed. It would not be right to per-
mit any petty suit “from five dollars up” to go through two,
three, or four courts and finally come before the highest
judicial tribunal in the state for “grave consideration and
discussion.” The decisions of the justices of the peace,
made near the homes of the parties concerned, where the
facts were known, would usually be correct. The section
was then adopted giving the Supreme Court appellate juris-
Browne, Debates, 225.
2 Ibid., 228.
3 Ibid.
4 Ibid., 232.
THE DEPARTMENTS OF GOVERNMENT
99
diction "in all cases when the matter in dispute exceeds
$200 or concerns the legality of any tax, toll, impost, or mu-
nicipal fine, and to all criminal cases amounting to felony,
on questions of law alone.” 1
3. On Charging Juries
The seventeenth section provided that judges “shall not
charge juries with respect to matters of fact, but may state
the testimony and declare the law.” 2 Such a provision,
it was urged, defeated the end it was intended to accom-
plish. The judge, in stating the testimony, could interpret
it in such a way that he would give the jury a prejudiced view
of the case, and in many cases it would practically amount
to charging juries with respect to matters of fact. It would
permit the judge to exercise too much influence over juries.
All cases arising in courts of law contained questions of
two distinct and separate characters: one concerning law
and the other concerning facts. The business of the judge -
was to declare the law; the duty of the jury was to determine
the facts. To permit the judge to state the testimony would
be as bad as to allow the jury to express an opinion upon the
law. If the judge should give a correct statement of the
facts, it could be nothing more than a mere repetition of
what had been given by the witnesses. The twelve jurymen
had heard the testimony and were in as good a position as
the judge to determine the facts. Let the judge confine
himself to declaring the law if fair trials were to be expected.
1 Browne, Debates, 233.
2 Ibid., 234.
100
STATE GOVERNMENT IN CALIFORNIA
“If you will only put me on the bench,” said Botts, "with
all its influence, and permit me to instruct the jury upon
what facts have been proved upon the trial, I will venture
to assert, that in nine cases out of ten, the jury shall bring
in just the verdict I wish. Permit me to state the facts, sir,
and you give me the power to mould the verdict to suit my-
self.” 1
He was perfectly willing to admit, Shannon replied, that
Botts might possess the extraordinary ability which he
claimed to have. Perhaps it was true that a jury that had
been proof against the eloquent appeals of the counsel might
be completely carried away by the "seductive coloring
given to the facts by the gentleman from Monterey.”
Given the right to state the testimony it might be possible
for the judge to distort the facts and change the opinion
of the jury, but if he did he would doubtless be impeached
for his pains. It was well known that when the judge states
facts to the jury, "if they are not to the letter true," he
would be immediately interrupted by the counsel upon the
side against which his statement appeared, and corrected.
Thus it would be hardly possible for the jury to have a mis-
statement from the judge. On the other hand a judicial
summary of the evidence was almost indispensable to the
jury. It would be too much to expect them to remember all
the testimony in a trial which might continue for a week,
especially when they had no means of taking notes. “If
you refuse to this impartial umpire a recital of the facts
after a long trial,” said Sherwood, “and after the eloquent
1 Browne, Debates, 234-35 and 236.
THE DEPARTMENTS OF GOVERNMENT: 101
speech of the district attorney, you probably send an inno-
cent man to the scaffold.” 1
These arguments proved convincing and the section was
adopted.2
III. The Legislative Department
VCIL
But few changes were made in the executive department,
as recommended by the Committee on the Constitution, and
these aroused slight opposition. The article on the judiciary
was also adopted practically as reported, with the exception
of the first seven sections. The report on the department
of the Legislature, however, contained sections which stirred
up considerable discussion. The main arguments centered
around four questions: whether the sessions of the Legislature
should be annual or biennial, whether men who had been
collectors or holders of public moneys should be permitted
to occupy seats in either house of the Legislature unless they
had settled their accounts with the state treasurer, whether
lotteries should be permitted within the state, and whether
the Legislature should be given permission to charter banks
and corporations. As the two last are treated in another
chapter they need not be considered here. A short discus-
sion arose over limiting the ages of members of the assembly
and of the senate to twenty-one and twenty-five years re-
spectively, but the Convention finally decided to leave the
subject to the discretion of the voters of the state. 3
1 Browne, Debates, 237–38; also see 235.
2 Ibid., 239.
3 Ibid., 83-84.
102
STATE GOVERNMENT IN CALIFORNIA
1. Annual or Biennial Sessions of the Legislature?
a
r
The minority spoke strongly in favor of biennial sessions.
Annual sessions, Gwin said, would produce excessive legisla-
tion, and experience had shown the evils of such legislation.
Laws should be well tested before changes were made, and
such tests would undoubtedly be rendered impossible with
annual sessions, because experience clearly showed that
new legislative bodies were inclined to act hastily. If occa-
sion required, the governor could call an extra session. There
was no danger of not having laws enough; the great danger
came from having too many laws. The first Legislature
probably would have to remain in session for some time in
order to form a code of laws adequate to the needs of the
new state. If the Convention would agree to appoint a
commission to prepare a code to place before the first Legis-
lature for their consideration, the work of that body would
be simplified, the term could be shortened, and the expense
would be less. The expense item was an important one and
with annual sessions would certainly become too large. 1
McCarver thought a capitation tax would be required to
defray the expenses of annual sessions, a tax which would be
undoubtedly objectionable. Most certainly funds could
not be raised on land owned in the state at that time to pay
the expenses of annual sessions.2
Snyder said that he understood an effort would be made by
members of the Convention to include the whole territory
1 Browne, Debates, 77 and 80.
2 Ibid., 79.
THE DEPARTMENTS OF GOVERNMENT
103
known as California within the borders of the new state.
If this were done it would be almost impossible for people
living in the Salt Lake region to be fairly represented in the
Legislature if annual sessions were held. It would take nearly
the whole year for delegates from that district to make the
journey to and from their homes. However this might be,
Brown considered that public interest required biennial ses-
sions. Laws passed by the Legislature, if it met annually,
probably would be in operation but six months before they
were repealed. This would not give time enough to test
them adequately. Such a sudden changing of laws would
result in great inconvenience to the public and a loss to the
individual. Time and experience were required to demon-
strate the necessity of legislative reform. Imperfect ad-
ministration might at first make laws objectionable, which,
after being fairly tested, would prove most beneficial.2
On the other hand, Semple urged that the unsettled con-
ditions in California demanded annual sessions, at least for
a few years. If the majority of the Convention opposed
making constitutional provisions for holding such sessions
regularly, he suggested that a clause be inserted providing
that after the first five years the sessions be held biennially.
The first few years would be the most important in the
legislative history of the state. It would be impossible to
keep members of the Legislature at the seat of government
more than two or three months in the year, because “of
the pressure for time.” The laws necessary for regulating
1 Browne, Debates, 79.
2 Ibid., 81.
104
STATE GOVERNMENT IN CALIFORNIA
affairs of state could not be drawn up in that time.1 Norton
also called attention to the fact that the country was in a
state of legal chaos. Such statutes of the Mexican system as
were retained by the military authorities of the territory
were repugnant to the feelings of Americans. Practically,
then, the country was without any recognizable laws. This
condition made annual sessions imperative. Usually there
was great danger from too hasty legislation in new states
under ordinary conditions; that danger would be greater in
California with its rapid increase in population if the business
of two years were crowded into one session. It might be
more expensive, but California could afford the extra ex-
pense if necessary.2 Sherwood did not believe that annual
sessions would be any more expensive than biennial. If the
Legislature met every other year instead of yearly it would
have just twice as much work to do and the sessions would
have to be made twice as long. 3 And Halleck thought it
might be wise to limit the sessions to a certain number of
days or months, but that it was essential to make them an-
nual. 4
A vote was taken and the majority declared themselves
in favor of annual sessions. An attempt was made later to
change it, but this failed and the section as first adopted
became a part of the constitution.
1 Browne, Debates, 76.
2 Ibid., 77.
3 Ibid., 80.
4 Ibid., 78.
5 Ibid., 82.
6 Ibid., 309-II.
THE DEPARTMENTS OF GOVERNMENT
Io5
2. Should State Debtors be Excluded from the Legislature?
The twenty-second section of the article on the Legislature
as reported by the Committee provided that no person who
should become a collector or holder of public moneys should
be admitted to either house of the Legislature, or eligible to
any office of profit or trust under the state “until he shall
have accounted for and paid into the treasury all sums for
which he may be liable." 1 In the first reading the section
was adopted, but was later rejected. Norton, Wozencraft,
and McCarver spoke in favor of retaining; while Price,
Lippitt, and Shannon opposed it.
Norton said it was very important that persons holding
office should be held strictly accountable for all moneys
placed in their charge. This section would make them ac-
countable and would protect the government against dis-
honest men. A man who was indebted to the state, whether
the debt were contracted honestly or dishonestly, should not
be permitted to occupy a seat in the Legislature. If the debt
were incurred through carelessness or dishonesty, he was not
fit to occupy such a position; if incurred honestly, he should
stay at home and attend to his business until it was paid
before engaging in political contests. Wozencraft thought
a “defaulting officer” could have no object in running for
the Legislature except to put through “such measures as
would free him from his indebtedness," and McCarver
1 Browne, Debates, 89.
2 See ibid. and 315.
3 Ibid., 89.
Іоб
STATE GOVERNMENT IN CALIFORNIA
thought it would be impossible for the people to know
whether officers had settled their accounts unless some such
provision were included in the constitution."
On the other hand Price thought if the section were in-
cluded that it might deprive some honest and deserving
men of seats in the Legislature. It was perfectly possible
that such men might be in debt to the state through no fault
of their own; it was possible, even, that these men might be
the very ones whom the people would want to send to the
Legislature as their representatives. Furthermore such a
provision would be unconstitutional because it fixed a
penalty without trial; it required no verdict against the
accused in any competent court. Again it was purely a
legislative enactment and therefore had no business in the
constitution. It afforded no protection to the people what-
ever. If a man had stolen the people's money they would
doubtless know it; and if they did, he would not be elected
to office by them.2 These arguments were reiterated in part
by both Lippitt and Shannon. Said the latter, “You say
here that a man shall be deprived of his rights; that he shall
not be eligible to any office when charged with embezzle-
ment; when in another section you declare that no man
shall suffer punishment until he has first had the advantage
and benefit of a trial by jury, and is convicted by the judg-
ment of his peers. Is this consistent?" 3
Vermeule declared that he was in favor of disfranchising
Tan
1 Browne, Debates, 89.
2 Ibid. and 314.
3 Ibid., 314 and 315.
THE DEPARTMENTS OF GOVERNMENT
107
a thief whether he were an official functionary or a private
individual, and he wanted a constitutional provision which
not only would make it impossible for such an individual
to hold office but also would provide a law for putting him
into the penitentiary. He therefore offered the following as
a substitute for the section under discussion, and it was
accepted.
"No person who shall be convicted of the embezzlement
or defalcation of the public funds of this state shall ever
be eligible to any office of honor, trust or profit, under this
state; and the Legislature shall, as soon as practicable, pass
a law providing for the punishment of such embezzlement or
defalcation as a felony.” 1
1
? Browne, Debates, 315.
CHAPTER VI
THE FREE NEGRO QUESTION
THE question of the admission of free negroes was one
of the first subjects to come before the Convention of 1849.
As we shall see later, it was also discussed by the first Legis-
lature. In both cases sectional interest fought for a consti-
tutional provision or a legislative enactment against the
admission of the negro race into California; in both cases
sectionalism was defeated. This chapter will deal with the
struggle in the Convention. Before taking up the subject,
however, it will be necessary to notice the character of the
sectionalism to be considered.
Sectional Character of the Controversy
Such sectional feeling as existed in the controversy over the
free negro question was manifested between the mining region
and the other districts, especially San Francisco and San José,
with the initiative exercised by the former district. So far as
the Old North and the Old South were concerned no sectional
lines were drawn. This will be shown by noting briefly the
native states of the delegates from the leading districts which
took part in the struggle.
For the discussion of the subject in the first Legislature see pt. III,
ch. 17 of this work.
I08
THE FREE NEGRO QUESTION
109
The principal mining districts, Sacramento and San
Joaquin, were represented in the Convention by fourteen
delegates. Nine of them were from northern states and five
from southern. San Francisco and San José were repre-
sented by fifteen delegates, nine of whom were from northern
states, four from southern, one native, and one from France.
Three of the southern delegates were from the district of
San Francisco. Only one of the San Francisco delegates
had been in the country more than three years. Five of the
San José delegation had been in the country three years and
one for ten years. That is, five delegates from San Francisco
and San José had been in the country three years, one for
four years, one for ten, and seven for less than three years.
Seven from the mining districts had been in California three
years or more. The San Francisco delegates—the leaders
in the movement against the anti-negro..clause and the
delegation containing three of the four members of the op-
position from southern states—had been on the Pacific coast
but a comparatively short time. They had come recently
from northern and southern states and would be as much
inclined as any others to bear the prejudices of their respec-
tive sections. We shall see, however, that they worked very
harmoniously in opposition to the free negro clause. It
appears evident, then, since the struggle over the free negro
question was mainly a contest between the mining region
and the other districts led by San Francisco and San José,
that it was not caused by rivalry between representatives
of the Old North and the Old South. This will be shown
1 Browne, Debates, 478–79. Among the delegates from Monterey, Sonoma,
eo
ROUS
IIO
STATE GOVERNMENT IN CALIFORNIA
even more conclusively when we come to analyze the forces
in the struggle.
OW
The Probable Origin of the Question
The origin of the negro question in California has been
explained by Major Edwin T. Sherman, a participant in the
affair, as follows:1 Before a government was regularly or-
ganized, the miners of California adopted their own by-laws,
which they loyally obeyed and strictly enforced, prescribing
the boundaries of their respective districts and electing their
own recorders. It was the duty of these officials, when a
claimant had located his ground, to measure it and record
the same in the book of claims with the name of the claimant.
It was also their duty to settle all disputes between claim-
ants, but the latter could appeal from the decision of the
former to the miners, whose verdict was final.
Between the middle and last of July, 1849, General T. J.
Green 2 and a dozen other Texans, accompanied by about
Los Angeles, San Diego, San Luis Obispo and Santa Barbara were six who
had come to California from southern states and five from northern. Four
of the eleven represented southern districts of California in the Convention
(three of whom came from northern states) and seven represented the
northern section.
Major Edwin T. Sherman, Reminiscences, ms.
2 Green was in California in November, 1849, and was elected to the
Senate from the Sacramento district. On April 11, 1850, he was elected to
the position of major general of the first division of California militia by the
joint vote of both Houses of the Legislature. Journals of California Legisla-
ture, ist session, 1850, 8 and 1186–87. For a scathing criticism of Green's
book on Texas, Mexico, and the United States, and on his career before he
came to California, see Houston's speech in the Appendix to the Congres-
sional Globe, ist sess., 33rd Cong., 5214-18.
THE FREE NEGRO QUESTION
III
fifteen negro slaves, came to "Rose's Bar” on the Yuba
river, and, without regard to the mining laws of the district,
proceeded to occupy about a third of a mile of land along
the left bank of the stream, locating claims of their own
measurement, not only in their own names but in the names
of their negro slaves as well. The miners were aroused im-
mediately; a meeting was called and the action of Colonel
Green and his companions denounced. It was urged that
they had violated not only the mining laws of the district,
but also the laws of the United States governing public
lands. Such lands could be occupied only by citizens of the
United States, or by those who had declared their intention
of becoming citizens.
A committee was appointed from among the oldest miners
to confer with General Green and inform him that he must
comply with the laws of the district. The General informed
the committee that he would fight them if necessary, but
that he would not surrender the claims occupied by his
negroes. This frank and pugnacious rebuff served to arouse
bitter indignation among the miners. On Sunday, July 29th,
a general meeting of all those working claims along the river
was held at "Rose's Bar.” It was a meeting of men aroused
by the fact that their laws were being violated, and they were
determined that the violaters should be expelled from their
midst. In order to prevent the recurrence of such a circum-
stance in the future a resolution was passed “that no slave
or negro should own claims or even work in the mines.”
A new committee was appointed-of which Major Sherman
was the youngest member-and was authorized to inform
II2
STATE GOVERNMENT IN CALIFORNIA
General Green of the proceedings of the Sunday meeting,
and again to request him to observe the mining laws of the
district. The committee went unarmed to the camp of the
invaders and made clear their errand. That night the slaves
disappeared and were followed next morning by General
Green and his band of Texans. On Wednesday, August ist,
the election of delegates to the Constitutional Convention
was held, and the district in which "Rose's Bar” was situ-
ated sent William E. Shannon as their representative, with
instructions to use his influence for a constitutional provi-
sion which would forever prohibit slavery in California.1
It was in carrying out this wish of his constituents that
Shannon indirectly introduced the free negro controversy.
1
The Question Before the Convention
The first effort to prevent the immigration of free negroes
into California was made on September roth, one week after
the regular sessions of that body began. While the Bill of
Rights was under consideration, Shannon offered the follow-
ing, which was unanimously accepted as an additional sec-
tion: “Neither slavery nor involuntary servitude, unless
for the punishment of crimes, shall ever be tolerated in this
1 This is a condensed account of the origin of the negro question as given
by Major Sherman in a hitherto unused manuscript. It is a plain, straight-
forward narrative of an incident in which he was an active participant.
His account is related in a clear and convincing manner. It affords a satis-
factory explanation of the beginning of the movement of the miners against
negroes and negro slavery, and on the whole its truthfulness is corroborated
by subsequent events.
THE FREE NEGRO QUESTION
113
state." 1 Before the clause was adopted, McCarver of
Sacramento offered an amendment:"Nor shall the introduc-
tion of free negroes under indentures or otherwise, be al-
lowed.” 2 A short debate followed over the propriety of
combining the two propositions into a single section, which
led McCarver to withdraw his amendment. A little later
he proposed that section nineteen of the Bill of Rights should
require the Legislature, at its first session, to pass such laws
as would effectually prevent free persons of color from immi-
grating to and settling in California and “to effectually
prevent owners of slaves from bringing them into the state
for the purpose of setting them free.” 4 Wozencraft of
San Joaquin spoke at length in support of the proposition,
urging social and economic reasons for its adoption,5 but
Gwin convinced McCarver that such a measure rightly be-
longed to the legislative department. Again McCarver
consented to withdraw his proposition temporarily.
Three days later, September 13th, the Convention began
work on the legislative department. On September 18th,
when the delegates thought they were about to complete
their work on this part of the constitution, Gwin called at-
On
1 Browne, Debates, 43. The delegates from southern districts had been
instructed by their constituents to vote against slavery on the ground that
they “had enough variety of races, and the character of the country was not
favorable to any but free labor.” Wilson, Observations on Early Days in
California and New Mexico, ms., IIO.
2 Browne, Debates, 44.
3 Ibid.
4 Ibid., 48.
5 Ibid., 49-50.
6 Ibid., 50.
114
STATE GOVERNMENT IN CALIFORNIA
tention to the fact that McCarver had been absent on ac-
count of sickness and had thus been prevented from pro-
posing his clause prohibiting the immigration of free negroes.
It was a matter, Gwin said, in which McCarver was deeply
interested and he hoped the Convention would not proceed
to further business until the latter had had an opportunity
to bring the subject before the assembly for consideration.
Following this suggestion the Convention adjourned.1 Two
days later, September 20th, McCarver proposed the follow-
ing as the thirty-ninth section of article four:
"The Legislature shall, at its first session, pass such laws
as will effectually prohibit persons of color from immigrating
to and settling in this state, and to effectually prevent the
owners of slaves from bringing them into this state for the
purpose of setting them free.” 2
To McCarver the last clause in this proposition was more
important than the first. He had been informed that cer-
tain individuals, whom he knew personally, were preparing
to bring their slaves to California "upon indentures, and
set them free.” The state, he thought, had a “right to
protect itself against an evil so enormous as this.” There
was no population on the globe that would be more repug-
nant to the feelings of the people or injurious to the pros-
perity of the community” than negroes thus freed and
1 Browne, Debates, 137. Bancroft's statement concerning this is mislead-
ing. He says that McCarver's proposition "was adroitly laid to rest by
Green (meaning Gwin) who persuaded McCarver that his proposed section
properly belonged in the legislative chapter of the constitution, where,
however, it never appeared.” History of California, VI, 291.
2 Browne, Debates, 137.
THE FREE NEGRO QUESTION
115
I
thrown into the state. They were "idle in their habits,
difficult to be governed by laws, thriftless and uneducated.”
It should be made the duty of the Legislature to pass such
enactments as might be necessary to keep them out of Cali-
fornia. “I am satisfied that every gentleman in this House,"
McCarver concluded, “will see the propriety of such a meas-
ure. I believe it to be equally as essential to the prosperity
of this country as the prohibition of slavery. The evil
would be greater than that of slavery itself. I therefore
submit the proposition to the kind consideration of the
House, in hope that it may become a part of the constitu-
tion.” i
This brought the subject before the Convention. Semple
from Sonoma, Wozencraft from San Joaquin, Steuart from
San Francisco, Tefft from San Luis Obispo, and Hoppe from
San Joséwith one exception men from the southern states
-spoke strongly in favor of a constitutional enactment of
some kind to prevent the negro race from coming to Cali-
fornia. Tefft was not sure that he favored the clause offered
by McCarver, but he thought something similar to it should
be inserted in the constitution. The gold mines were already
tempting slave-owners from various parts of the Union.
If reports were true, Kentucky was at that very instant hold-
ing a convention in which its citizens were considering the
advisability of freeing their slaves, and the owners of negroes
1 Browne, Debates, 137–38; Tuthill, History of California, 269; Thorpe,
Constitutional History of the American People, II, 316-17.
2 A convention assembled at Frankfort, Kentucky October 1, 1849, and
the subject of abolition was discussed. See Thorpe, Constitutional History
of the American People, II, II, 12, 13.
116
STATE GOVERNMENT IN CALIFORNIA
in that state were corresponding with certain delegates at
Monterey to obtain information concerning the attitude of
were coming from other states. Steuart asserted that he
had received letters by the last steamer from friends in Mary-
land who made similar inquiries. “Sir," Steuart said, "it
is our duty to declare the intention of the people of Cali-
fornia in the constitution; and let us do it at once. Let us
declare to those gentlemen who are about to engage in this
enterprise that they cannot bring their negroes here on any
condition or under any pretence whatever.” 1
Shannon of Sacramento objected to the whole section
proposed by McCarver--the last clause especially, because
it was entirely meaningless. Why say "to effectually pre-
vent the owners of slaves from bringing them into the state
for the purpose of setting them free"? A clause had been
inserted in the Bill of Rights which forbade slavery except as
a punishment for crime. The owners of slaves, then, had
no option in the matter. By the fundamental law of the
land slaves became free as soon as they entered the state.2
It was probably this and other objections made to Mc-
Carver's proposal, some of them coming from men who were
in sympathy with the idea, which led to the following pro-
posal as a substitute for the one already before the House.
It was offered by McDougal.
“The Legislature of this state shall at its first session create
enactments against the introduction into the state of any
1 Browne, Debates, 146-47.
2 Ibid., 139.
THE FREE NEGRO QUESTION
117
A
negro or negroes who has or have been slaves previously in
any of the states of the Union, or any other country, and L
who are brought here under bonds or indentures of servi-
tude.” 1
McDougal's aim was obvious. He wanted to guard Cali-
fornia against owners who might, under contracts for limited
terms of service, free their slaves at home and then bring
them into the mining regions to work out their contracts.
Shannon had shown that the last clause in McCarver's pro-
posal was not sufficiently clear on this point. From what
had been said, McDougal believed that many men in the
border states would be glad to free their negroes, providing
the latter would agree to serve six months or a year in the
mines. Evidently he had no fear of the negroes who had
been free for generations. He probably thought they would
not undertake the long and difficult trip to California; at
least not in sufficient numbers to warrant making constitu-
tional provisions against them.
But there were others who did not share McDougal's
opinion on this point. They wanted to keep the negro race,
slave or free, out of California. Would McDougal's proposal
do this? They did not think so. Steuart had a proposition
which he thought would more nearly accomplish the pur-
pose than either of those under consideration. He offered
the following:
“It shall be the duty of the Legislature, as soon as may be,
to pass such laws as may be necessary to prevent negroes
and mulattoes from coming to and settling in the state of
1 Browne, Debates, 142.
FOTO
I18
STATE GOVERNMENT IN CALIFORNIA
ren-
California, and shall declare null and void every indenture
conditioned for the manumission or freedom of such negro
or mulatto, or in consideration of any service to be ren-
dered in California.” 1
Botts suggested that the wording should be somewhat like
the following: “These objectionable individuals shall not
be allowed to enter the state of California under such penal-
ties as the Legislature may hereafter impose.” His object
was to prevent negroes, either slave or free, from getting
into the state. To provide a penalty in the constitution
might not be wise; that could be left to the Legislature.2
Opposition to the Resolution
In the meantime the opposition had not been silent. Why
insert anything in the constitution, said Shannon, which
would affect the immigration of freemen to California,
whether white or black? 3 And Dimmick of San José declared
that a clause had been inserted in the Bill of Rights permit-
ting foreigners to exercise all the rights in reference to hold-
ing lands and enjoying political privileges which were granted
to citizens of the territory. Why not live up to that declar-
ation instead of inserting a clause in the constitution which
practically nullified so liberal a policy? It would be unjust to
attempt to prevent a “certain class of Americans, born in the
United States” from entering the territory and enjoying the
1
1 Browne, Debates, 147.
2 Ibid.
3 Ibid., 139.
THE FREE NEGRO QUESTION
119
privileges extended to natives of the Sandwich Islands, the
Chilians, the Peruvians, and the lower classes of Mexicans.
If a clause must be inserted in the constitution forbidding
the immigration of free negroes, then for the sake of consist-
ency, if for no other reason, omit the liberal section in the
Bill of Rights. What would be said of a constitution which in
one place extended the privileges of its free institutions to all
classes, both from foreign countries and from its own, and
in another, excluded from these privileges a class speaking
the language in which the document was written, born and
brought up in the United States, acquainted with the cus-
toms of that country, and capable of making useful citizens?
Many of them were already not only useful but desirable
citizens. They filled a place in the community which no
other people could fill, and in many cases their presence had
become almost essential for domestic purposes. In some
of the eastern states they formed communities of respectable
citizens, many of them being men of intelligence and wealth.2
There was yet another reason for rejecting this proposal.
It was not only unwise, it was not only unjust, it was not
only inconsistent, but to insert a clause preventing the
immigration of free negroes would be unconstitutional.
Section two of the fourth article of the Constitution of the
United States declared that citizens of each state should be
entitled to all the privileges and immunities of citizens in
the several states. In some of the eastern states negroes
1 Browne, Debates, 140-41. These ideas were also expressed by Gilbert
a little later. See page 150.
2 Ibid., 143. Shannon's speech.
I20
STATE GOVERNMENT IN CALIFORNIA
were citizens. As such, was it not their privilege to move
from one state into another if they chose? It was probable
that few indeed would have any desire to come to California;
but if they should, the state had no right to prevent them.
“I believe your constitution will be rejected,” said Gilbert
of San Francisco, “if you make it [the proposed resolution]
a provision which cannot be separated from it; I believe it
will not be sanctioned by the people here; and even if sanc-
tioned by them, that it will be rejected by the revisory power
which it must pass at Washington. Sir, if there is any one
consideration more than another that would tempt me to
forego all my feelings and principles, it would be that of
securing to California with as little delay as possible, a proper
form of state government.” 1
Gilbert's pleadings and warnings were in vain, however.
The immediate sentiment of the House was in favor of
resulted in the rejection of the resolutions of both Steuart
and McDougal and in the adoption of McCarver's. It
would be interesting to know by how large a majority the
resolution was passed, but the yeas and nays were not re-
corded.
The Defeat of the Resolution
When article four came up for a second reading about
two weeks later, October 2nd, a strong opposition to the
thirty-ninth section seems to have developed. Gilbert's
1 Browne, Debates, 150.
2 Ibid., 152.
LU
THE FREE NEGRO QUESTION
I 21
speech calling attention to the unconstitutional character
of the section had left an impression. There was probably
a feeling more or less general that Congress would not accept
the constitution if it contained the anti-negro clause. The
new problem, then, was to provide a section which would
not only prevent negroes from coming to California, but
would at the same time relieve any feelings of dissatisfaction
which such a section might arouse in Congress. McCarver
discovered what he believed would be a satisfactory solu-
tion of the whole difficulty. He offered his original proposi-
tion, adding to it a proviso clause taken almost verbatim
a
tion would then read as follows:
“The Legislature shall, at its first session, pass such laws
as will effectually prohibit free persons of color from immi-
grating to and settling in the state, and to effectually prevent
the owners of slaves from bringing them into this state
for the purpose of setting them free: Provided, That nothing in
this constitution shall be construed to conflict with the pro-
visions of the first clause of the second section of the fourth
article of the Constitution of the United States." 4
McCarver thought this should obviate all objections.
Personally he did not deem it necessary because he did not
1 Browne, Debates, 330. Norton's motion.
2 This seems a fair conclusion from the fact that McCarver attempted to
amend his own resolution, which had been adopted, so as to prevent a con-
flict with the section in the United States Constitution already referred to.
The section as amended is given above.
3 Browne, Debates, 331.
4 Ibid.
I 22
STATE GOVERNMENT IN CALIFORNIA
believe negroes were citizens. The decisions of the courts
of the United States, he thought, had settled that question.
The subject was then taken up by Jones, a young lawyer
from Virginia, who was one of the representatives from the
district of San Joaquin. His speech reflects the sectional
division on the question more clearly than any other, and
makes apparent the fact that the mining districts considered
San Francisco the leader of the opposition.
“I acknowledge," he said, "that it is to the interest of
gentlemen from San Francisco that they should have their
body servants at the lowest possible price. But it is a ques-
tion of vital importance to the people of the mining districts,
not merely affecting their comfort and convenience, but in-
volving the very foundation of their prosperity. ... There
is now a respectable and intelligent class of population in
the mines, men of talent and education; men digging there in
the pit with spade and pick who would be amply compe-
tent to sit in these halls. Do you think they would dig with
the African? No sir, they would leave this country first.” 1
Then turning his attention to the arguments which de-
clared that the insertion of a clause preventing the immigra-
tion of free negroes was contrary to the Constitution of the
United States, he said that such arguments appeared to him
to be without foundation. He thought there was no provi-
sion in the Constitution of the United States which would
forbid the insertion of such a clause. It would be absurd.
Every state had the right to determine the qualifications
of its own citizens. Article four, section two of the Consti-
1 Browne, Debates, 333.
THE FREE NEGRO QUESTION
123,
tution of the United States provided that “the citizens of
each state shall be entitled to all privileges and immunities
of citizens in the several states.” Some were contending
“that because New York, one of the states of the Union,
sees fit to invest with the privileges of citizenship a class of
citizens who, when that article was introduced into the
Constitution of the United States, were not recognized by
any of the states, that they are thereby invested with the
rights of citizenship in every state in the United States, and
that every state is bound to acknowledge them with all the
privileges and rights of citizens." He thought that such a
construction would lead to the most absurd of absurdities.
When the section quoted above was introduced into the
Constitution of the United States, there was not a state in
the Union which endowed the negro with the rights of citi-
zenship. New York was a slave state; Pennsylvania was a
slave state; New Jersey was a slave state; and so were nearly
all of the original thirteen.
Granting that such a construction were true, however,
it would lead to another absurdity. “Suppose, for instance,
that ... Texas should admit negroes to the rights of citi-
zenship, does the gentleman (Norton of San Francisco) say
that New York would not have the right to prohibit the
introduction of these negroes, or remove them from her
borders? Has Texas the right to declare what New York
shall exclude from her boundaries? Shall Texas interfere
with New York or Georgia or any other state?” The case
under consideration was exactly similar. In view of the bad
character of free negroes, California proposed to exclude
124
STATE GOVERNMENT IN CALIFORNIA
T
them from her borders, but certain gentlemen claimed that
she could not do so, because the New York constitution
endowed them with the privileges of citizenship, and the
Constitution of the United States declared that citizens of
each state should enjoy the rights and privileges of citizens
of the several states. In other words, the constitution of
New York determined the rights of citizenship in California.
The section in the Constitution of the United States was
intended to protect the citizens of each state “in the enjoy-
ment of those fundamental and inherent rights which it
guarantees to all the citizens of the Union.” It was not
intended to interfere with the political regulations of differ-
ent states. Such a construction would destroy the entire
system of state sovereignty.1.
Snyder from Sacramento thought that he could show more
clearly and perhaps more effectively than had been done,
the real dangers which would threaten California if some
provision were not made for keeping the negro out of the
state. The average value of a negro in Missouri, he said,
was about $600. A slaveholder in Missouri or Kentucky
expected to derive about $160 profit each year from each
able-bodied negro man. He would make his calculation on
the basis of $200 a year profit. Counting the average in-
come from a slave at that rate, he would net his owner $6800
from the age of sixteen to fifty, when he would become use-
less. This was deducting nothing on the chances of sickness
or death. A man realizing a profit of $6800 on each slave he
owned would be doing well.
YYYY
* Browne, Debates, 333–34.
THE FREE NEGRO QUESTION
125
But suppose the slave-owner should make a contract with
his negro, agreeing to give him his freedom providing the
slave would come to California with the master and serve
four years in the mines. A working man could procure at
least $4000 a year in gold dust in the mines. At that rate a
slave-owner could realize $16,000 on each slave for four
years' labor in the mines. “Do you suppose this will not
be tried? It will, sir, and depend upon it, you will find the
country flooded with a population of free negroes—the
greatest calamity that could befall California. The evil
effects ... may not be felt for a number of years, but
later.” 1
But arguments availed nothing. Other proposals were
suggested at intervals as substitutes, but they attracted
little notice. The opposition listened to the long speeches
of the advocates, but voted as they had already planned: 2
against the insertion of a clause in the constitution that
would prevent the immigration of free negroes. Steuart
had changed his ideas completely, and now suggested, as
did others, that the whole thing be left to the Legislature.3
The final vote was taken and the proposed clause was re-
? Browne, Debates, 335.
2 Willey, Transition Period, 94, says, “it was surprising how little members
were influenced in their voting by speeches made in the Convention.”
3 Browne, Debates, 337.
4 Ibid., 339. The vote was as follows: Yeas-Carillo, Dent, Hill, Larkin,
McCarver, McDougal, Wozencraft, President—8. Nays-Aram, Botts,
Brown, DeLaGuerra, Dimmick, Dominguez, Ellis, Foster, Gilbert, Gwin,
126
STATE GOVERNMENT IN CALIFORNIA
An Analysis of the Forces
The true sectional character of the struggle did not mani-
fest itself so much in the discussion immediately following the
first reading as it did later when the subject came before
the House a second time. Following the first reading of
article four, the three leading speakers who opposed the
insertion of the thirty-ninth section were from New York;
of the six taking the most active part in favor of it, two were
from Kentucky, two from Maryland, one from Louisiana,
and one from New York. When the subject came up the
second time, the two from Maryland, -Hoppe (a delegate
from San José) and Steuart (a delegate from San Francisco)
-both joined the opposition. The significance of this
change is obvious. Two southern men turned against the
people of the mining districts with whose ideas on the free
negro subject they would be expected to sympathize, and
fought with those districts which opposed the mining in-
terests. This is strongly indicative of two things: that there
was no rivalry between the Old North and the Old South
and that there was a struggle between the mining districts
and the towns of San Francisco and San José. But this will
become more evident as we proceed.
In the final vote on the original proposal, four northerners,
three southerners, and one Californian voted to insert the
Norton, Ord, Price, Pico, Rodriguez, Reid, Stearns, Sansevaine, Steuart,
Tefft, Vallejo, Vermeule, Walker.-31.
1 See explanatory speeches made by Steuart and Hoppe. Browne, De-
bates, 337 and 338. Also votes on pp. 338 and 339.
THE FREE NEGRO QUESTION
127
re
thirty-ninth section; while fifteen northerners, nine south-
erners, five Californians, and two foreigners voted against it.
Of the thirty-one votes cast against the measure, twenty-
five represented the northern part of the territory and six,
the southern; of the eight cast in its favor, seven were from
the northern and one from the southern districts. This
seems sufficient evidence to show that no sectional feeling
existed so far as the Old North and the Old South were
concerned.
It should be added, however, that the final vote can not
be taken as showing the actual feeling of the delegates
toward the admission of free negroes. Several of those who
voted against the proposition would have been glad to see
some provision for keeping the African out of California,
but they were afraid that a clause to that effect might pre-
vent admission to statehood. Others wanted to leave the
matter to the Legislature, and advised the Convention to
insert a clause in the constitution which would require that
body to take some definite action in the matter.1
Nor does a mere cursory examination of the final votes
cast by the delegates from the mining regions and from the
other districts show that a sectional struggle occurred be-
tween those places. As already indicated, the two principal
mining centers were Sacramento and San Joaquin. Of the
eight representatives sent by the former, two are given as
voting on the affirmative, one on the negative, and five
not at all; of the six delegates from the latter, one voted
1 See speeches of Steuart and Hoppe, Browne, Debates, 337 and 338, al-
ready referred to.
128
STATE GOVERNMENT IN CALIFORNIA
on the affirmative, three are supposed to have voted on the
negative, while two did not vote on the subject. The seven
and eight delegates from San José and San Francisco all
voted on the negative. Five of Monterey's six votes were
on the negative. (Larkin did not vote.) Sonoma cast two
of her three votes, and Los Angeles four of her five, on the
negative. The other two votes from those sections went to
the affirmative. One of the San Diego votes and one of the
votes from San Luis Obispo also went to the negative. De-
LaGuerra of Santa Barbara, Pedrovena of San Diego, and
Covarrubias of San Luis Obispo did not vote. In other
words, of the thirty-four votes from those districts outside
of the mining region, twenty-eight were cast on the negative,
four were not recorded, and two were for the affirmative.
This indicates clearly that the districts outside of the mining
region (San Francisco, San José, Monterey, Santa Barbara,
Sonoma, Los Angeles, San Diego and San Luis Obispo) were
well united in their opposition to the free negro clause. It
remains to be shown that the mining regions were in favor
of it.
The above analysis is made from the final vote recorded
on the original proposal, which, at the first reading, had
been adopted by the Convention. It does not consider the
vote on the substitute which was taken just before, or the
further votes to reconsider the original proposition and to
introduce a new one which came up later. It will be neces-
sary to consider all of these briefly in order to show that from
the mining regions came most of the anti-negro party.
The leaders in the struggle against the admission of free
THE FREE NEGRỌ QUESTION
129
negroes were from the mining districts. They were Mc-
Carver, McDougal, and Snyder from Sacramento; and
Dougal, and Wozencraft are recorded as having voted for
the original proposition. Their action throughout the whole
controversy shows that they could not have voted any other,
way without being inconsistent. Snyder's name does not
appear either for or against the original proposal, the sub-
stitute offered for it, or the motion to reconsider the final
vote. Just before the final vote was taken, however, he had
made a strong speech in favor of preventing the immigration
of free negroes.2 There can be no doubt, therefore, as to
his position on the subject. Jones's name is included among
the opposition on the final vote, but it seems perfectly evi-
dent that he opposed the admission of free negroes. Just
a little while before the final vote was taken on the original
section he voted for McCarver's amended proposal, which
has been quoted already, 3 and which, it will be remembered,
was word for word like the original, except that the former
contained a proviso clause at the end. This proviso clause,
placed there to conciliate those who were afraid the consti-
tution of California might not be accepted by Congress if it
contained a section against the immigration of free negroes,
did not change the meaning of the section. Jones had just
closed a strong argument, a summary of which has been
given, in which he attempted to prove that the Convention
2 Ibid., 334-36.
3 See above p. 121..
130
STATE GOVERNMENT IN CALIFORNIA
was not prohibited by the United States Constitution from
inserting a clause against the immigration of free negroes. 1
It thus seems very improbable that he would oppose the
original section simply because it did not have the proviso
clause. His action immediately after the final vote was
taken strengthens this opinion. He made a motion to re-
consider the vote just taken, and of course voted for recon-
sideration when the motion was rejected. Just before the
votes were taken on any of the above questions, Jones had
declared that he represented a section (San Joaquin) which
was “determined to carry this provision into effect,” 2 re-
ferring to the substitute for the original section. He was
an extreme southerner and thoroughly believed in the “di-
vine right of the slaveholder to the labor of the African
race." 3 That he would vote with the opposition seems too
improbable to be credited.
Hastings of Sacramento voted with the opposition on
the above question, but a short speech which he had made
formerly on the subject, 4 and a resolution which he offered
after the original section had been rejected, indicate that
he was in sympathy with the anti-negro party.”
1 See above pp. 122–24.
2 Browne, Debates, 332.
3 Bancroft, History of California, VI, 287.
4 Browne, Debates, 141-42.
6 The resolution, which was rejected, was as follows: "The Legislature
shall pass such laws as may be deemed necessary, either prohibiting the
introduction and immigration of free negroes to this state, or presenting the
conditions upon which the introduction and immigration of such persons
may be allowed.” Browne, Debates, 340. It was offered after the question
was supposed to be settled.
THE FREE NEGRO QUESTION
131
But perhaps no one thing shows the unmistakable leader-
ship of the mining region in the attempt to prevent the
immigration of free negroes more clearly than the attitude
of Shannon. As we have seen already, he was opposed to
inserting a clause which would prevent the negro race from
coming to California; and during the early part of the strug-
gle, he was leader of the opposition. He opposed the meas-
ure because he was perhaps more favorably inclined to the
negro race than any other man in the Convention, and be-
cause he thought such a measure would be inconsistent with
the declarations of freedom included in the Bill of Rights.
In the first speech made by the opposition, he said that he
presumed he would “stand alone in the minority on the
subject.” 1 This impression must have come from what he
knew to be the general attitude of his constituents and from
the opinions held by his colleagues, as it was too early in the
discussion for him to know the general feeling of the Conven-
tion. Yet as the debates continued and as the true sectional
character of the struggle began to manifest itself between
the mining districts and the other parts of the territory,
Shannon spoke less frequently, and finally was silent alto-
gether. In the vote on the substitute, his name appears
among those favoring the insertion of the section, but in
the final vote on the original proposition, a measure which
he had fought so bitterly at the beginning, he could but re-
main silent.2
It is evident, then, that the final vote rejecting the original
en-
1 Browne, Debates, 143.
2 Ibid., 338 and 339.
132
STATE GOVERNMENT IN CALIFORNIA
anti-negro clause does not indicate the actual struggle which
occurred between the mining region and the other districts
under the leadership of San Francisco and San José. In
regard to the latter, we have already shown that there can
be no doubt that they were united in the struggle.1 Con-
cerning the former, only two of the fourteen delegates who
represented that section-Hollingsworth and Vermeule from
San Joaquin-showed by their votes that they were not in
sympathy with the anti-negro party. Of the seven whose
votes are not recorded we know that Snyder had indicated
his sympathy with his colleagues and that Shannon actually
cast one vote with them, probably yielding his personal
opinion for the sake of his constituents. It certainly is not
impossible, in fact it seems very probable, that some of the
other five held views which were in accord with the ma-
jority of their colleagues.
It will thus be seen that the free negro question was not
put to one side as easily as the historians of the period have
indicated. It was one of the important questions considered
by the Convention, and was the first to involve a discussion
of any consequence. It is of additional interest because it
shows how old party lines were broken up and new ones
formed by men who went into the far West from different
sections of the Union. In their home states party affilia-
tions and local institutions were given first consideration;
in their new environment a common feeling of the necessity
of union took precedence over all other interests.
1 See above pp. 127-28.
CHAPTER VII
DETERMINING THE EASTERN BOUNDARY
No subject that came before the Convention consumed
more time, stirred up greater rivalry and came so near pro-
ducing a riot as did the settlement of an eastern boundary
for California. It was this question, too, over which sec-
tionalism (i. e., sectionalism between the Old North and the
Old South) is generally believed to have manifested itself
most. Historians have asserted that the management of
the Convention was in the hands of southern men, and in-
variably they drew their deduction from the boundary con-
troversy. We shall see, however, that such conclusions are
not based on facts.
UI
The Boundary of California Under Spain and Mexico
California probably had no established eastern boundary
under the Spanish government.2 The explorations of Garces'
through southern Nevada, as shown on Padre Font's map of
1 Bancroft, History of California, VI, 286. Royce, California, 262 et seq.
A recent writer goes a step farther and asserts that "more than half of the
delegates had originated in states below the Mason and Dixon line."
Coman, Economic Beginnings of the Far West, II, 248.
2 Bancroft, History of Arizona and New Mexico, 345, says: “California,
however, while no boundary was ever fixed officially, was not generally con-
sidered to extend east of the Rio Colorado.”
133
134
STATE GOVERNMENT IN CALIFORNIA
1777, and of Dominguez and Escalante through Utah and
southeastern Nevada 2 had doubtless given the Spanish
officials a vague notion of the interior basin of Upper Cali-
fornia, and the decrees of the viceroys, according to Halleck,
included that region in the judicial district of the California
territory.3
boundaries of her northern provinces, California and New
Mexico, were not established with any great degree of pre-
cision. For instance, there were two maps of Upper Cali-
fornia published in 1837. Rosa's, published by order of
the Mexican Congress, shows the southern boundary by a
line running south of west from the mouth of the Gila river
to the vicinity of latitude 30°, 30' on the Pacific coast.
The eastern boundary begins at the mouth of the Gila
river and runs northeast, joining the 42nd parallel at the
1o8th meridian. The Dufour map indicates no boundary
between Upper and Lower California. The eastern bound-
ary, beginning near the 33rd parallel, runs northward
between 112° and 113° of longitude to the vicinity
of the 36th parallel of latitude, then turns west of north
and joins the 42nd degree of north latitude on longitude
116° west. The northern boundary, according to Rosa's
map, extends from longitude 108° west from Greenwich,
westward along the 42nd parallel to the Pacific; while on
Dufour's, the same boundary includes only the territory
1 Bancroft, History of Nevada, Colorado and Wyoming, 28 et seq.
2 Ibid., 36 and History of Utah, 7 et seq.
* Browne, Debates, 451-52.
DETERMINING THE EASTERN BOUNDARY
135
run
along the 42nd parallel between 116° west longitude and the
Pacific ocean.
Tanner's Map of the United States of Mexico and Mitchell's
Map of Mexico including Yucatan and Upper California,
both published in 1846, give California similar eastern
boundaries, but these differ considerably from the eastern
boundaries of the maps published in 1837. The eastern line
runs rather irregularly between 30° and 31°, 30' of longitude
west from Washington from about the 32nd to the 42nd
parallels of latitude. Another map drawn by Charles Preuss
from the surveys of John C. Frémont and other authorities
(Washington, 1848)—the one which seems to have been used
more frequently than any other by members of the Con-
vention-indicates still different boundaries. The south-
ern line, beginning on the Pacific coast, about one marine
league south of San Diego, runs almost east and west to the
Gila river, and along that stream to the vicinity of the pre-
sent town of Tempe, Arizona, near the 112th degree of
longitude west from Greenwich. The eastern line extends
northward through Utah, just west of Bear Lake, to the
42nd parallel of north latitude. The map used by the United
States and Mexico in establishing the boundaries in 1848
was Disturnell's Mapa de los Estados Unidos de Mejico,
California, etc. (New York, 1847). The edition of this
map used by the writer, which seems to have indicated the
same boundaries for California as the one just cited, was
published in 1850. On it the eastern line begins near
latitude 32°, 30' north, and longitude 31° west from
1 This map may be found in California Message and Correspondence, 1850.
136
STATE GOVERNMENT IN CALIFORNIA
Washington, and extends northward, at one place coming
near longitude 33°, finally joining the 42nd parallel near
longitude 31° west from Washington. The map ac-
companying the President's Message to the two Houses of
Congress, December 5, 1848, is very similar to the Disturnell
map, except that the former follows the Suanca branch of
the Gila river instead of the middle branch, thus including
in California more territory in the southeast than the latter.
The Disturnell map also extends the northwestern boundary
of New Mexico slightly more than does the map accom-
panying the President's message.
These maps published at different periods all agree in
making the 42nd parallel the northern boundary of Cali-
fornia--the line established by the United States and Spain
in the treaty of 1819—but that is about all they have in
common. As we have seen, they show the eastern boundary
at the north touching the 42nd parallel anywhere between
longitude 116 west from Greenwich as indicated on Dufour's
map and 108 as shown by Rosa.
Boundaries Proposed by the Convention
The eastern boundary of the ten districts into which Cali-
fornia was divided by Governor Riley's proclamation, was
drawn along the Colorado river and the Coast and Sierra
Nevada ranges of mountains. Among a majority of the
delegates, however, there was a general feeling that the
state which they were forming need not be confined to these
limits. On September 12th, therefore, the Convention au-
DETERMINING THE EASTERN BOUNDARY
thorized the President to appoint a committee whose duty
it should be to propose satisfactory boundaries for the new
commonwealth. The members chosen were men supposed
to be familiar with the geography of California as it existed
under Mexico. They were Hastings and Sutter of Sacra-
mento, Rodriguez of Monterey, De la Guerra of Santa Bar-
bara, and Reid of Los Angeles. Hastings submitted the re-
port for the committee on September 18th.
The territory of California as it existed under Mexico, the
report declared, should not be formed into one state. The
reasons for opposing its formation into a single state were
(1) it was too extensive to be fairly represented in a state
Legislature; (2) the subsequent divisions, which were almost
certain to occur if the Convention included so much territory
within the boundaries of a single state, might deprive Cali-
fornia of a valuable portion of her sea coast; and (3) the
Mormons, comprising about thirty thousand people who
lived in the northeastern part of the territory, were not repre-
sented in the Convention. That body, therefore, had no right
to include them in a state which they had no part in forming.
The 116th degree of west longitude between the 42nd parallel
of north latitude and the boundary line between the United
States and Mexico as established by the treaty of Guadalupe
Hidalgo, was recommended as the most satisfactory eastern
boundary for the new state. 2
1 Browne, Debates, 54.
1 Ibid., 123–24. The establishment of this eastern boundary has been
worked out in detail by the author in the Southwestern Historical Quarterly,
Vol. XVI, No. 3, January, 1913.
138
STATE GOVERNMENT IN CALIFORNIA
Following the report the House adjourned, and although
the Convention held daily sessions during the interval, the
boundary question did not come up again until September
22nd. At that time McDougal warned the members that
numerous proposals would be submitted, and suggested that
all who intended to recommend lines for the eastern bound-
ary should do so at once. He did not agree with the com-
mittee himself, but without attempting to explain the one
which he considered the proper boundary, he would simply
offer his amendment. He suggested the 105th degree of
longitude west from Greenwich between the 32nd and 42nd
parallels of north latitude as the eastern boundary for the
new state. But if Congress refused to admit California with
these extensive limits, then he recommended the 12th de-
gree of longitude from the 42nd parallel to the 38th; thence
to run in a straight line in a southeastern direction to the
boundary line between the United States and Mexico.2
Semple of Sonoma said that he considered the problem of
establishing a satisfactory eastern boundary, if the line did
not extend west of the Sierra Nevada mountains, a subject
of secondary importance. He thought, therefore, it would
be well for the Convention to fix definite boundaries north
and south and leave the eastern line to be determined by
Congress. Personally he felt that the only portion of the
territory which should be included was that part west of
the Sierra Nevada mountains. If Congress wished to include
the whole of Spanish California, however, he thought it
1 Browne, Debates, 167.
2 Ibid., 168.
DETERMINING THE EASTERN BOUNDARY
139
would be better to accept the desire of that body rather than
risk having to remain out of the Union for three or four
years. It was important to procure a regularly organized
government, and this could be obtained more quickly by
omitting everything from the constitution which would
tend to stir up sectional prejudices in Congress. 1
The eastern boundary as indicated on the Preuss map
was then recommended by Gwin. Halleck amended it,
however, by attaching a proviso making it possible for the
state Legislature "to accede to such proposals as” Congress
might make regarding a boundary, after California was
admitted into the Union. The eastern line, however, was
not to extend west of the Sierra Nevada mountains. 2
Believing that many difficulties would arise in connection
with the boundary question, Gwin said he had devoted
much time to a careful study of the subject. He had maps
which he had laid before the citizens of California “who were
well versed in the matter, and they had informed him that
the boundary which he proposed” was the one recognized
by the government of Mexico. It had already been recog-
nized by the United States, he said, in official documents
and maps published by order of Congress. It was essential
to state a definite boundary in the constitution, “but as
this was a fair subject of negotiation between the two high
contracting parties, and as Congress had a right to determine
what our boundary should be, ... then it was fair for
Congress and the Legislature, under the proviso, to change it
1 Browne, Debates, 168.
2 Ibid., 169.
140
STATE GOVERNMENT IN CALIFORNIA
.
by their joint action." 1 It was true that his proposition
included an immense territory, but the people of California
could divide it later into several states if they so desired.
Shannon suggested a boundary similar to the second
part of McDougal's proposal and very much like the one
finally adopted. The eastern line was to be the 120th degree
of west longitude from the 42nd to the 38th parallel of north
latitude, thence southeast to the point of intersection of the
35th parallel of north latitude with the Colorado river,
thence south along the eastern bank of that stream to the
boundary line established between the United States and
Mexico.
This would include every point which was of any real
value to the state. The Colorado river, which would belong
to California, would be of great importance as a southern
"port of entry and depot for trade” between the interior
provinces of Mexico and the new state, besides giving the
latter a uniform width and bringing it within reasonable
limits.2
About two weeks later, October 8th, after the suggested
boundaries had been discussed and the Gwin-Halleck pro-
posal had been accepted, Ellis moved that the report of the
committee of the whole on the boundary be taken up, and
Hastings offered a substitute for the line adopted. It was
the 118th degree of west longitude between the 42nd and the
38th parallel, thence southeast in a direct line to a point
where the 114th meridian intersected the Colorado river,
1 Browne, Debates, 169.
2 Ibid., 170.
DETERMINING THE EASTERN BOUNDARY
141
thence down the main channel to the boundary line between
the United States and Mexico. 1
An attempt was made to discuss the proposition, but
Botts interrupted by saying there was an understanding
that a vote was to be taken upon the question without de-
bating it. He wanted either no debate or a full discussion
of the subject. This led to an immediate vote which resulted
in the adoption of the substitute offered by Hastings.
But objections were raised immediately. McDougal
moved that the article on the boundary be reconsidered,
and Sherwood made a long speech favoring such action.3
Speeches were made by others, and on the following day
Hastings's proposal was rejected by a majority of ten in
a total vote of forty-four.4 Shannon then submitted the
proposal which he had formerly read and it was also rejected.
The question reverted to the Gwin-Halleck proposal and
it was adopted for the second time.
· The announcement of this vote led to the only scene of
disorder that occurred during the entire session of the Con-
vention. “A dozen members jumped up, speaking and
shouting in a most confused and disorderly manner. Some
rushed out of the room; others moved an adjournment;
others again protested they would sign no constitution
embodying such a provision.” 6 Again the subject was
Browne, Debates, 417.
2 Ibid., 418.
3 Ibid., 418-20.
4 Ibid., 433.
5 Ibid., 440-41.
6 Taylor, Eldorado, II, 153–54. See also Browne, Debates, 441.
142
STATE GOVERNMENT IN CALIFORNIA
reconsidered and various proposals were suggested, only
two of which received serious consideration. These were
offered in a spirit of compromise by Jones of San Joaquin
and Hill of San Diego.
Jones believed that every member of the Convention
wanted to avoid raising any question in Congress which
might delay the admission of California, and he thought
there was also a general feeling that the Sierra Nevada
would be the most natural boundary. But there were some
who insisted upon fixing that as the definite boundary,
making no provision for any difficulty in Congress; while
others wanted to add a proviso clause so that if Congress
did not accept the Sierra Nevada line, they would still have
an opportunity to gain admission to statehood without
experiencing serious delay. Why not compromise? Why
not adopt the Sierra Nevada line with a proviso? That
is, why not make it very clear to Congress that the people
of California much prefer the Sierra Nevada line for their
eastern boundary. But if Congress should refuse to admit
the state into the Union with that line, "if it should prove
an insuperable barrier to our admission," then “we will
take a larger." i He then suggested practically the same
eastern limits offered by McDougal and Shannon: the 12th
degree of west longitude beginning at the 42nd parallel and
extending to the 39th, thence in a straight line southeast
to the intersection of the 35th degree of north latitude and
the Colorado river, thence down the middle of the channel
of that river to the boundary line between the United States
Browne, Debates, 441-43.
DETERMINING THE EASTERN BOUNDARY
143
and Mexico. But if Congress would not accept this line, he
suggested as a substitute the eastern limit as indicated on
the Preuss map of Oregon and Upper California."
Botts was willing to compromise, but Jones's proposal
involved a principle on which he could not yield. He would
strenuously oppose any proposal that included the Mormon
settlements, because these people had no representatives
in the Convention.2
To meet this objection and to satisfy those who insisted
that a single, definite boundary be adopted, Hill submitted
as the eastern limit a line following the Colorado from the
mouth of the Gila to the 35th parallel and thence north to
the 42nd degree of north latitude.3 Jones's proposal was re-
jected by a majority of eighteen in a total vote of forty-
four, and Hill's was adopted by a two majority in a total of
forty-six. The subject was again reconsidered, however, and
for the third time the Convention voted on the Gwin-Halleck
proposal. It was voted down by a majority of six in a total of
forty-two votes.5 Jones then offered the first part of his
proposal and it was accepted as a final settlement of the
boundary question by a vote of thirty-two to seven. The
boundary thus established was as follows:
“Commencing at the point of intersection of the 42nd
degree of north latitude with the 120th degree of longitude
1 Browne, Debates, 443.
2 Ibid., 447.
3 Ibid., 454.
4 Ibid., 456-57.
5 Ibid., 458.
6 Ibid., 458 and 461.
144
STATE GOVERNMENT IN CALIFORNIA
west from Greenwich and running south on the line of said
I20th degree of west longitude until it intersects the 39th
degree of north latitude; thence running in a straight line
in a southeasterly direction to the river Colorado at a point
where it intersects the 35th degree of north latitude; thence
down the middle of the channel of said river to the boundary
line between the United States and Mexico, as established
by the treaty of May 30, 1848; thence running west and
along said boundary line to the Pacific ocean and extending
therein three English miles; thence running in a northerly
direction and following the direction of the Pacific coast to
the 42nd degree of north latitude; thence on the line of said
42nd degree of north latitude to the place of beginning; also
all the islands, harbors and bays along and adjacent to the
Pacific coast.” 1
The Nature of the Discussion
11
.
The arguments made by the proponents of the different
boundaries have already been given. It is now in order to
indicate the nature of the discussions which the proposals
aroused.
The first part of McDougal's proposition, suggesting the
105th degree of west longitude as the extreme eastern limit
for the new state, seems to have been given little or no con-
sideration. The party favoring the line recognized by Mexico
urged the acceptance of the Gwin-Halleck proposal, thus
declaring themselves in favor of the line laid down on the
* Browne, Debates, 443.
DETERMINING THE EASTERN BOUNDARY
145
Preuss map of 1848. The other party wanted to prescribe
narrow limits, but at first they could not agree on a satisfac-
tory line. Some spoke in favor of the proposal submitted
by the committee—the 116th degree of west longitude-and
others for contracting the boundary still more. The prin-
cipal points of the argument were very similar on both sides;
immediate admission to statehood, slavery, the right of the
Convention to fix any other eastern boundary than that rec-
ognized by Mexico, and the question of including or ex-
cluding the Mormon settlements around Salt Lake. The
small state party also expressed the fear of division by an
east and west line. Throughout the discussion, both sides
were actuated especially by a desire to gain quick admission
into the Union. The majority of those favoring the extreme
eastern boundary seem to have believed that Congress would
accept them immediately with that line. The opposition
was just as certain that immediate admission could be se-
cured only by bringing the territory of the state within rea-
sonable limits. 2
McCarver said the important thing was to do nothing
that would delay their admission into the Union. “We
want our two senators in the senate chamber to maintain
the interests and supply the wants of California; we want
our representatives in Congress as early as we can.” To
accomplish this it was absolutely necessary to fix definite
and permanent boundaries north, south, east and west. They
should leave no boundary open; they should leave no ques-
1 Johns Hopkins University Studies, XIII, 405.
2 See Willey, Transition Period, 108.
146
STATE GOVERNMENT IN CALIFORNIA
tion open that would be the means of keeping them out of
the Union. Furthermore he would like to arrange it so
that the Legislature would entertain no proposal from Con-
gress for fixing a boundary. He was afraid Congress might
cut the state in two by running a line east and west if the
Convention adopted the Gwin-Halleck proposal.1
1 Browne, Debates, 170, 177. Other members expressed similar fears re-
garding the division of the state east and west.
Polk, in his message of December 5, 1848, had recommended the exten-
sion of the Missouri Compromise line to the Pacific as a means of settling
the slavery controversy, and the Senate attempted to get such a measure
through Congress, but the House would not accept it. (Rhodes, History of
the United States, I, 96 and 97.) Later southern men in Congress attempted
to save a portion of the newly acquired territory for slavery in another way.
On August 1, 1850, when the bill for the admission of California was under
discussion in the Senate, Foote of Mississippi offered an amendment to an
amendment which had been proposed by Douglas, the latter being in rela-
tion to the disposal of public lands in California. Foote's amendment was
as follows: “And that the said state of California shall never hereafter claim
as within her boundaries, nor attempt to exercise jurisdiction over, any
portion of the territory at present claimed by her, except that which is em-
bodied within the following boundaries, to wit: Commencing in the Pacific
ocean, three English miles from the shore, at the 42nd degree of north lati-
tude; thence with the southern boundary line of the territory of Oregon to
the summit of the Sierra Nevada; thence along the crest of that moun-
tain to the point where it intersects the parallel of latitude of 35° 30';
thence with the said parallel of latitude to a point in the Pacific
ocean three English miles from the shore, and thence to the beginning,
including all the bays, harbors and islands adjacent to or included within
the limits hereby assigned to said state. And a new territory is hereby estab-
lished, to be called Colorado, to consist of the residue of the territory em-
braced within the limits of the said state of California, specified in the con-
stitution heretofore adopted by the people of California; for the government
of which territory, so established, all the provisions of this act relating to
the territory of Utah, except the name and boundaries therein specified, are
hereby declared to be in force in said territory of Colorado, from and after
DETERMINING THE EASTERN BOUNDARY
147
Price of San Francisco also asserted that the first object
the Convention wished to accomplish was to gain immediate
admission into the Union. Could they do it by adopting
the extreme eastern boundary offered in the Gwin-Halleck
proposition? He did not think so. The southern representa-
tives in Congress would not accept it. He came from a
northern state (New Jersey), but he was broad enough to see
the injustice of such a measure in so far as it affected the
South.1
Semple wanted to do everything possible to secure the
immediate admission of California into the Union 2 and
Halleck believed his proviso clause would secure immediate
admission to statehood. Semple seems to have felt that
Gwin's proposal alone might not be accepted by Congress,
but with this provision added to it, he thought there could
be no question. He believed Congress would accept it un-
hesitatingly.; Sherwood of Sacramento thought California
could not be admitted to statehood very soon if she refused
to adopt the extreme eastern limits. To establish the Sierra
Nevada or a line of longitude near those mountains as the
the day when the consent of the state of California shall have been expressed
in some formal manner to the modification of her boundaries.” Congres-
sional Globe, 31st Cong., ist sess., Appendix II, p. 1485.
In commenting on this, Butler of South Carolina said: “Thirty-six degrees
and thirty minutes is that which has been often indicated as the line; this is
arbitrary, and if it becomes a point of honor, I will insist upon it. This
proposition, 35° 30'," has eternal boundaries to indicate it, and for that
reason, he said, he would accept it. Ibid., 1489.
1 Browne, Debates, 429–30.
2 Ibid., 168.
3 Ibid., 175.
148
STATE GOVERNMENT IN CALIFORNIA
eastern boundary of the new state would result in one of
two things: they would either be left without a government
by Congress, or they would have to form a government for
themselves independent of Congress.1
On the other hand Botts could hardly “keep cool" when
the subject was broached. He did not believe they stood
any chance whatever of becoming a state with the Rocky
mountains as their eastern line. "The gentleman who
has last taken his seat (Mr. Sherwood), has made his strong-
est appeal in behalf of this extreme eastern boundary; that it
will be the only means of getting you into the Union. Sir,
I can tell you this will not be the means of your admission;
you will never get into the Union with this boundary. If
you do, it will be only to sit amongst its ruins, like Marius
among the ruins of Carthage.” 2
Halleck did not believe the joint proposal was understood,
and wanted to explain it. The first part, that offered by
Gwin, included what had always been recognized as Upper
California. The object of extending the boundaries of the
new state to the extreme limits, was to settle the slavery
question in that vast area forever. Another reason was to
extend the jurisdiction of the courts of the state to that
region for the purpose of protecting the immigrants who
were coming from the East in such great numbers. He did
not believe it would be possible to get a government for the
territory between the Sierra Nevada range and the Rocky
mountains for the next five years if the question of slavery
YYT
1 Browne, Debates, 181 and 418-420.
2 Ibid., 420.
DETERMINING THE EASTERN BOUNDARY
149
were left unsettled there. Probably a half dozen or a dozen
murders had been committed in that section during the past
year; where could justice be meted out to the guilty, and
to others who would be guilty of similar crimes in the future,
if the eastern boundary of California did not include that
region? These were the reasons urged for fixing an extreme
eastern boundary. But some members had asserted, and
perhaps truly, that Congress would not admit California
with this boundary. His proviso clause was to meet just
that difficulty. If objections were made to admitting a state
which included so much territory, the constitution carried
with it provisions for establishing a new eastern boundary
anywhere between the Sierra Nevada and the Rocky moun-
tains, the exact location to be determined by Congress and
by the Legislature of California. Thus the new state would
gain immediate admission with the extreme eastern limit,
and if these limits were to be restricted, Congress and the
state Legislature could fix a new line later.1
Botts had been inclined to leave the settlement of the
eastern boundary to Congress, but, he said, since a member
of the "new firm of Gwin and Halleck” had explained the
motives which actuated them in offering the proposal before
the House, he had had just and sufficient reasons for chang-
ing his mind. Did the gentleman (referring to Halleck)
suppose southern men were asleep? Why did he not, upon
the same principle, attempt to settle the question for Con-
gress and for the southern people over a still greater extent
of territory? Why not indirectly settle it by extending the
I Browne, Debates, 175.
-
150
STATE GOVERNMENT IN CALIFORNIA
cever
eastern boundary of California to the Mississippi river? Why
not include the island of Cuba, “a future acquisition of
territory which we may one day or other attain, and forever
settle this question by our action here?”.
Slavery, he continued, was a great evil, and for that rea-
son he wanted it excluded from the state in which he lived,
but the territory of that state should be confined within
"proper" limits. He believed the people of a territory had
a perfect right to form a state government and exclude the
institution of slavery from their midst; and he was willing
to vote for the Rocky mountains as the eastern limit of
California if gentlemen could show him that that was the
proper boundary for the new state. “But when gentlemen
urge upon me as an argument, to adopt that boundary be-
cause it excludes slavery from an immense extent of terri-
tory; not because it is the proper boundary of California,
not because it is desirable to the state of California, but be-
cause it will settle the slavery question for the whole of the
southern people and that against the will of the inhabitants
of that portion of the Union who are not represented here~
the millions of people there who desire to have the institution
of slavery amongst them—when we are told that this may
be, and that we here now may adopt that boundary and
prevent the people of the South who may come here from
exercising their rights and determining the question for
themselves—when I am urged to do this, sir, I cannot give
my consent.” 1
Sherwood thought the crest of the Sierra Nevada or some
Browne, Debates, 178–179.
DETERMINING THE EASTERN BOUNDARY
151
20-
line of longitude near it should be the future boundary of
the state; and if that were the only question before the House,
he would not hesitate to vote for the proposition which
established such a boundary. But there were other things
which should influence the action of members of the Conven-
tion. The most important of these was the slavery question.
The fact that Congress had failed to provide a territorial gov-
ernment for California during its last session was due en-
tirely to the controversy over the subject of slavery. That
subject, so far as it affected the territory to be included
within the new state, had been settled by a unanimous vote
of the Convention. Why not complete the good work by
extending their eastern boundary to include the whole of
California? If this were not done, the discussion of the same
question would be open in regard to that portion of Cali-
fornia excluded from the limits of the new state.As friends
1 It will be remembered that the treaty which closed the Mexican War was
signed February 2, 1848. On July 13th following, a special committee of
eight members, representing equally the North and the South, was appointed
by the Senate, and that part of President Polk's message relating to Cali-
fornia, Oregon, and New Mexico was referred to them. On July 19th,
Clayton of Delaware introduced a bill in the name of the committee. In his
introductory report, he informed the Senate that the principle of the ex-
tension of the idea of the Missouri Compromise to the whole territory
had been approved by a vote of five to three in the committee, but that
a motion to treat the part of the newly acquired territory lying
south of 36° 30', as far as related to slavery, in the same way that
Louisiana territory had been treated, was lost by four to four. All hope
of a compromise disappeared and the committee decided to make only
general provisions for the territories and leave the slavery question to itself.
Its recommendations were as follows: first, to recognize the provisional laws
of Oregon until a law of the territorial legislature should either allow or
152
STATE GOVERNMENT IN CALIFORNIA
ST
of the Union he appealed to members of the Convention to
settle the question for the whole territory and thus relieve
Congress of the responsibility. If they did not settle it
several years might elapse before a government could be
organized in California.
Sherwood then spoke at length upon the excitement which
the subject of slavery had created in the eastern states
during the preceding year, especially in his native state,
New York. In that state opinion had been divided as to
whether Congress should pass a proviso prohibiting slavery
in all the territory acquired from Mexico. A large party
there believed that Congress had no right to pass such a
measure. It was a subject, they said, which the people of
each territory should determine for themselves. The other
party declared that Congress had a right to settle the slavery
question for territories. A candidate had been nominated
for the presidency there with the distinct understanding
that he would favor the Wilmot proviso.1 The great excite-
ment which had begun during the presidential election of
the preceding year would continue unless members of the
Convention settled the slavery question for the whole of the
prohibit slavery; second, to organize California and New Mexico as terri-
tories, but to withhold from the territorial legislatures the right to make
any decision with regard to slavery. See Von Holst, Political and Constitu-
tional History of the United States, III, 385-386.
This was Van Buren. The Democratic party of New York split into
two factions—the Barnburners and the Hunkers. In the presidential elec-
tion of 1848, the former declared for the Wilmot proviso, the latter against
it. Van Buren was nominated by the Barnburners, and later by the Free
Soil party. See Stanwood, History of the Presidency, ch. 18.
DETERMINING THE EASTERN BOUNDARY
153
territory of California by extending their eastern boundary
to the Rocky mountains. 1
The attitude of the administration and of Congress on the
subject, Semple thought, might be of interest to members of
the Convention. He was in a position to give this in so far
as he could get it from a conversation which he had had
with Thomas Butler King, a member of Congress and Presi-
dent Taylor's confidential agent to California. He had
asked King what Congress would have them do, and had
told him that the people of California did not want to extend
their eastern boundary beyond the Sierra Nevada, that they
would prefer to exclude from their limits all that desert
waste east of the mountains. "For God's sake,” King had
replied, "leave us no territory to legislate upon in Congress.”
King "went on to state then that the great object in our
formation of a state government was to avoid further legis-
lation. There could be no question as to our admission by
adopting this course; and that all subjects of minor impor-
tance could afterward be settled.” 2
1 Browne, Debates, 180-182.
2 Ibid., 184. In his message to the House of Representatives, January 24,
1850, President Taylor said that while he had recommended the formation
of state constitutions and application for admission into the Union in the
case of both California and New Mexico, he had not in any way attempted
to influence them in the formation of their domestic institutions. “On the
contrary, the instructions given by my orders were that all measures of
domestic policy adopted by the people of California must originate solely
with themselves." Richardson, Messages and Papers of the Presidents,
1789-1897, Vol. V. In spite of this message, however, there is some reason
to believe that President Taylor's wishes and those of his cabinet were ex-
pressed by King in his conversation with Semple, even more than were the
wishes of Congress. In Whitney's History of Utah (I, p. 408) is a letter
154
STATE GOVERNMENT IN CALIFORNIA
Shannon claimed that the dignity of the new state would
not permit it to receive dictation of this character from
written at Salt Lake City and dated September 6, 1849. It is addressed
to Brother Amasa Lyman and signed by Brigham Young, Heber C. Kimball,
and Willard Richards. It is in part as follows:
"On the 20th of August, General Wilson arrived here, on his way to Cali-
fornia, as general Indian agent, etc. We had an interview with him and
gathered from him the following particulars: That the President and Coun-
cil of the United States are friendly disposed to us, and that he (General
Wilson) is commissioned by General Taylor to inform us that he fully ap-
preciates our situation," etc.
"The main point of the matter, however, is this: The President has his
ends to subserve, and as he knows we have been favorable to his election, he
wishes further to appeal to our patriotism (so says General Wilson) to help
him to carry out another measure, which will deliver him, the cabinet and
the nation from a difficulty in which he thinks they are likely to be involved.
“The subject of slavery has become more embarrassing than it ever has
been before. The addition of the extensive territories of New Mexico and
Upper California increases that difficulty. ... The subject will be first,
probably, broached in Congress, and if some active measures are not adopted,
they (the President and cabinet) fear it will be the last and only question.
If it should be made into territories, it will be under the direction of the
United States, and the queston of slavery will annoy and distract all par-
ties, and General Wilson says they fear will have a tendency to break up the
Union.
"To prevent this they have proposed a plan of making the whole territory
into one state, leaving it to the power of the people to say whether it shall
be a free or a slave state, and thus taking the bone from the Congress of the
United States, and leaving them to pursue their course, 'peaceably if they
can,' undisturbed by this exciting question. They think it ought to be made
into two states, but that the sparseness of the population at the present
time would preclude the possibility of an act of that kind passing.
“The cabinet think that all parties would agree to a measure of this kind
if it should become a free state, and even General Wilson, the President, and
other slaveholders are anxious that it should take this turn and are willing
to make a sacrifice for the public good. He supposes that even southern
members would go in for it, but without our help, they think it could not be
DETERMINING THE EASTERN BOUNDARY
155
Thomas Butler King or from anyone else. What right had
King to tell the members of that Convention that if they
adopted such and such boundaries they would be admitted
into the Union; if they did not, they would fail to become a
sovereign state? He considered it not only an insult but a
threat, and he called upon the Convention to have enough
regard for their own dignity and for the dignity of the state
of California to reject such an offer immediately. He did
not believe for a single moment that King expressed the
sentiment of the Congress of the United States. No single
individual could do that. The truth of the matter was, he
thought, that the cabinet was in difficulty over the Wilmot
accomplished. They think that there would be a strong southern influence
used on the coast, calculated to place the matter in an embarrassing situa-
tion to them and the eastern population on the coast combined, but that by
our influence we should be able to counterbalance that of the slaveholders,
and thus settle the troublesome question. It is therefore their policy to seek
our influence, and we need not add it is our policy to use theirs.
"In our communications with General Wilson, we at first rejected alto-
gether the idea of any amalgamation whatever with the government on the
coast, but on the subject being presented in another form, we have agreed
to the following:
"We are to have a general constitution for two states. The boundaries of
the one mentioned by us, before referred to, is our state, the other boundaries
to be defined by the people of the coast, to be agreed upon in a general con-
vention; the two states to be consolidated into one and named as the conven-
tion shall think proper, but to be dissolved at the commencement of the
year 1851, each one having its own constitution, and each becoming a free,
sovereign, independent state, without any further action of Congress.
“You will act as our delegate, in conjunction with General Wilson.
Brother Pickett is also a delegate.”
That is, they were to serve as delegates to a constitutional convention
to be held on the coast. Lyman was instructed to block any attempt to
unite Deseret and California on terms other than the ones specified above.
156
STATE GOVERNMENT IN CALIFORNIA
proviso, and that King-perhaps others—was sent there to
influence the people of California, first to establish a state
government, and second to include the entire territory
within their limits. There was a political quarrel at home
into which the President and his cabinet wished to bring the
new state of California. For his own part he wished to keep
as far from such “rocks and breakers” as possible.1 The
letter given above will show that probably Shannon was not
far from the truth.
There were others besides Shannon who seemed to think
that the question before the House should not be connected
with national affairs. Regardless of slavery and regardless
of the opinion held by President Taylor's confidential agent,
did the Convention have a right to fix boundaries for the new
state of California other than those recognized by Mexico
as the limits of the territory while it was a part of that gov-
ernment? Norton believed not. He held as a first principle
that the Convention was not at liberty “either to take one
acre of land more than now belongs to California or to yield
one acre that now belongs to it." No authority had been
delegated to them and they had no right to assume power
to give up any territory which had been included within the
established limits of California. If they were there to form
a constitution for California, they were there to form a con-
stitution for the whole of it, not a part. "I insist, sir, that
we have no right to say that California is not the California
we took her to be when she became part and parcel of the
was
Browne, Debates, 191.
? See pp. 153–55, note.
DETERMINING THE EASTERN BOUNDARY
157
PS
United States.” He thought it might be possible later, if
Halleck's proviso were accepted, to divide the territory;
but this would have to be done by a joint action of Congress
and the state Legislature-the Convention could not do it. 1
Such arguments were absurd, McCarver exclaimed. Sup-
pose the convention which formed the constitution for
Louisiana had, for similar reasons, attempted to include the
whole of the Louisiana territory within the limits of the
state. The two countries, Louisiana and California, stood
upon the same footing. Both had been obtained by treaty,
one from France and the other from Mexico. Both contained
territory enough for several states. Would it not have been
a "monstrous doctrine" for Louisiana to insist that the
whole of that vast territory belonged to them, and that
therefore they would include it all within the boundaries of
their state? “We occupy a similar position here. We have
a tract of country purchased either by the blood or treasure
of the United States, known as California.” To imagine
that Congress would permit them to include it all within the
boundaries of their state was the most absurd of absurdities. 2
Furthermore, the eastern boundary had already been
designated, Botts urged. “General Riley proclaimed the
eastern boundary of California in his proclamation, and the
people said amen. I say that he, in his proclamation, called
upon the people of California in pursuance of instructions,
if you please-California as laid down in certain prescribed
lines——to form this Convention, and they, through their
Browne, Debates, 185–187.
2 Ibid., 187.
158
STATE GOVERNMENT IN CALIFORNIA
representatives, have excluded slavery for themselves; and
is it for you, sir, now to reverse that decision?” He did
not believe the Convention could do it. Most assuredly the
people living within certain limits had no right to make rules
for people beyond those limits. Such an act would violate
every republican principle of justice. “Why, sir, is it neces-
sary at this day, in this enlightened country, to stand here
and argue and prove that people can make laws only for
themselves? I am ashamed of the position that I am com-
pelled to occupy.” 1
Lippitt of San Francisco also felt strongly on the subject.
The Convention, he said, had no right to extend their gov-
ernment over the inhabitants of the Salt Lake region, com-
prising some thirty or forty thousand Mormons who had
never been consulted in making the constitution.2
It was a new doctrine, said Gwin, that every man must
be represented within the borders of a new state, a doctrine
which he believed had never been preached before. Great
stress had been laid upon the fact that the Mormons were
not represented. There was no proposition to force the Mor-
mons to become a part of the government of California. He
did not propose to extend the laws of the state or of any dis-
trict in the state to the Mormons. He did not propose to
send tax collectors or government officers there. He favored
awaiting their own action in the matter. If they wanted
the benefit of the government which was being established,
they should send a petition to have representatives allotted
Browne, Debates, 422-423 and 447.
2 Ibid., 448.
DETERMINING THE EASTERN BOUNDARY
159
to them. “If they desire the protection of our laws, let
them send to us, and it will then be a matter of inquiry on
the part of our state government.” But he thought the
Mormons would have no right to complain. The people
whose representatives composed the Convention were the
majority, and the majority of the people of any state had a
right to make rules for the minority. As a matter of fact,
thousands of immigrants had reached California since dele-
gates were elected to the Convention. They, too, had no
representation in that body, but as a minority they were
bound to submit to the will of the majority. Would not
these people have as much right to complain as the
Mormons? 1
Shannon thought not. He did not see how the fact that
the Mormons were in the minority would prevent them
from offering legitimate objections to being included within
the new state. They could justly claim that they had no
part in making the constitution which that Convention was
framing. But even if they should accept the work of the
Convention, he did not think that they should be included,
because of their peculiar religious beliefs.2 And there was
another objection even more serious, said Hastings. The
Mormons had already applied to Congress for a territorial
government. Suppose both applications should be brought
before Congress at the same time—"we apply for a state
government and they for a territorial government”—both
petitions coming from the same territory. Would it be
1 Browne, Debates, 194-196.
2 Ibid., 170-171.
Ібо
STATE GOVERNMENT IN CALIFORNIA
possible for California to be admitted into the Union claiming
the same territory at the same time that the Mormons were
asking for a territorial government over it? Most assuredly
not.1
The Mormons and the Boundary
4
In the meantime the Mormons had not been idle. A
convention was summoned in Utah early in 1849, and the
inhabitants of that part of Upper California lying east of
the Sierra Nevada were urged to send representatives. 2
On the 4th of March the delegates assembled at Salt Lake
City. A committee was appointed to draw up a constitution
under which the people might govern themselves until Con-
gress should provide a government for them” 3 by admitting
them into the Union.” 4 The name of the new state was to
be Deseret, and its boundaries were to be as follows:
“Commencing at the 33rd degree of north latitude, where
it crosses the 108th degree of longitude, west from Green-
wich; thence running south and west to the northern bound-
ary of Mexico; thence west to and down the main channel
of the Gila river (on the northern line of Mexico), and on the
northern boundary of Lower California to the Pacific ocean;
thence along the coast northwesterly to 118° 30° of west lon-
gitude; thence north to where said line intersects the dividing
1 Browne, Debates, 173.
3 Ibid.
4 Journals of California Legislature, 1850, ist sess., p. 443.
5 Ibid.
DETERMINING THE EASTERN BOUNDARY
161
ridge of the Sierra Nevada mountains; thence north along the
summit of the Sierra Nevada mountains to the dividing range
of mountains that separate the waters flowing into the Co-
lumbia river from the waters running into the Great Basin;
thence easterly along the dividing range of mountains that
separate said waters flowing into the Columbia river on the
north from the waters flowing into the Great Basin on the
south, to the summit of the Wind river chain of mountains;
thence southeast and south by the dividing range of moun-
tains that separate the waters flowing into the Gulf of Mexico
from the waters flowing into the Gulf of California, to the
place of beginning, as set forth in the map drawn by Charles
Preuss, and published by the order of the United States
in 1848.” 1
On the 5th of July, Almon Babbitt was elected delegate to
Congress and three days later a memorial asking for admis-
sion into the Union as a state was adopted by both houses
of the Legislature.2 On the 6th of September, by order of
President Taylor, General John Wilson, United States Indian
agent, held a consultation with Brigham Young, Heber
Kimball, Willard Richards, and other Mormons to see if
some arrangements could be made for temporarily uniting
the whole of the California territory under one government
for the purpose of keeping the slavery question out of Con-
gress. At the beginning of 1851 the union was to be dis-
NO
1 Journals of California Legislature, 1850, ist sess., 443-444.
2 Bancroft, History of Utah, 444.
3 For an account of this conversation see Young's letter given above,
P. 153, note.
162
STATE GOVERNMENT IN CALIFORNIA
solved and Deseret and California were to become separate
states. As a result of the conference 2 John Wilson and
Amasa Lyman were sent as delegates to California. On
the 8th of January, 1850, they addressed a communication
from San Francisco to Governor Burnett in which they in-
formed him that they had been appointed by the people of
the Great Salt Lake valley and basin, as representatives to
any convention which might assemble in California, west
of the Sierra Nevada, to form a constitution.3 “Our con-
stituents will regret to learn that before their delegates did
or could arrive here, the Convention had met, concluded their
labors, and adjourned, thereby closing all opportunity, for
the time, for their delegates to enter upon the discharge of
their duty." They were communicating with the Governor,
they said, and through him with the Legislature, to see if
arrangements could be made for calling another convention
in which the delegates of Eastern California might be ad-
mitted. The purpose of the second convention would be
to form, for the present, a single state out of the territory
of California, and at the same time to agree on boundary
lines which should ultimately separate California and Des-
eret, when the latter had sufficient population to form a
separate state. 4
The people of Deseret, they continued, would insist on
the “summit of the Sierra Nevada as a proper and natural
1 Bancroft, History of Utah, 446.
2 Ibid.
3 Journals of the California Legislature, 1850, ist sess., 436.
4 Ibid., 440.
DETERMINING THE EASTERN BOUNDARY
163
boundary” as far as it went. Some complaint had been made
because, by extending their boundary to the Pacific, a large
area of country had been included within the limits of Deseret
without the consent of the people living in that territory.
Deseret was willing to leave this to a vote of the people
inhabiting the territory in question. If they should object
to coming into the state of Deseret, then a compromise line,
excluding those settlements, could be drawn Deseret es-
pecially desired that the boundaries agreed upon should be
clearly indicated in the constitution. Upon these terms,
and with a most earnest desire to settle all excitement in the
Union, and to harmonize the interests of the people on both
sides of the Sierra Nevada, Deseret's representatives pro-
posed to the Legislature of California to ask the people to
assemble in their election districts and vote for delegates to
vention was called they would cast their vote against slavery.
The Governor transmitted this communication to the
Senate and Assembly the following February, accompanied
by a message to both Houses strongly recommending the
rejection of the proposal.2 As a result, the Legislature took
no action in the matter. This ended the attempt to estab-
1 Journals of the California Legislature, 1850, ist sess., 441.
2 Ibid., 429-435, and Bancroft, History of Utah, 446-447.
164
STATE GOVERNMENT IN CALIFORNIA
Non-sectional Character of the Contest
During the discussion of the boundary question, MC-
Dougal, referring to the Gwin-Halleck proposal, said he
knew it would not be accepted by Congress. If it were not
accepted, another convention would have to be called and
other lines adopted. In the meantime California would
remain in its present chaotic condition. This, he thought,
was exactly what the supporters of that proposition wanted.
“They want a constitution presented to Congress so objec-
tionable that it will be thrown back for another convention.
Gentlemen have risen on this floor and stated that they
had received letters from the South; and that they knew of
many others who want to bring their slaves here, and work
them a short period in the mines and then emancipate them.
If this constitution is thrown back on us for reconsideration,
it leaves them the opportunity of bringing their slaves here.
It is what they desire to do; to create some strongly objec-
tionable feature in the constitution in order that they may
bring their slaves here and work them three months.” 1
More than two weeks later Jones replied. If McDougal's
charge were true, he said, how was it that the extreme eastern
boundary was “supported by the North as well as by the
South? The argument is not worthy of consideration." 2
Browne, Debates, 180. When McDougal made his speech he had a pro-
posal before the House, the first clause of which included more territory
than the Gwin-Halleck proposition, and later he submitted a second which
also provided more extensive boundaries. See Browne, Debates, 168 and 437.
2 Ibid., 442.
DETERMINING THE EASTERN BOUNDARY
165
Was Jones right or was McDougal's charge true? The
latter has been the generally accepted view. 1
Royce, in his California (1886), says the men from south-
ern states formed a separate party under the leadership of
Gwin. “Their undoubted object was not so much to give
over any part of California at once to slavery, since this
hurrying life of the gold-seekers wholly forbade any present
consideration of such a plan, but to prepare the way for a
future overthrow of the now paramount Northern influence
in the territory, and so to make possible an ultimate division
of the state, in case the southern part should prove adapted
to slave labor." 2
A similar opinion is expressed by Bancroft. Giving what
he considers to be the views of southern men in the Conven-
tion he says, “Let Northern California be a free state; out
of the remainder of the territory acquired from Mexico
half a dozen slave states might be made.” 3 A little further
on he quotes from McDougal's speech, the part given above,
y
4
1 Taylor's Eldorado was published in 1850, the year after the Convention
was held. He was present during the discussion of the boundary question,
and devotes considerable space to it, but there is no indication of a struggle
between the Old North and the Old South in the controversy as he gives it.
Tuthill says, "There is no doubt that the most comprehensive boundaries
were advocated with the hope that the action of the Convention would be
taken as final, and relieve the administration" of the slavery question (His-
tory of California, 274), but he makes no comment on the aim of southern
men in the controversy. Hittell, in his brief account of the subject, expresses
no opinion as to the aims of those men favoring the extreme eastern bound-
ary. (History of California, II, 766-767.)
2 Royce California, 262.
3 Bancroft, History of California, VI, 291.
4 Ibid., 293–294.
166
STATE GOVERNMENT IN CALIFORNIA
/
and says that what it "lacked in grammar and rhetoric it
supplied in facts.” 1
In 1890, the Century Magazine requested Francis Lippitt,
who had been a member of the Convention, to contribute
any new information he could on the organization of the
state government in California. He wrote an article for the
September number on The California Boundary Question of
1849. He was informed after the Convention, he said, that
the extreme eastern boundary had been supported by men
"from the southern states with the view to a subsequent di-
vision of California by an east and west line into two large
states, each having its share of the Pacific coast; and further,
to the future organization of the southern of these two states
as a slave state an event that would be quite certain, in as
much as most of the settlers in that part of California had
come and would continue to come from the South and South-
west. Thus the new free state would be offset by a new
slave state.”
An article in the Overland Monthly for the same month
and year, on the Beginnings of California, by F. I. Vassault,
contains the following: “The fact behind this animated
dispute about the location of the eastern boundary was that
the pro-slavery members of the Convention hoped that by
making the state so large as to include the whole of the
Mexican cession it would be necessary later to divide the
state, and a line running east and west might give one state
to the South and the other to the North. Extreme bitter-
me
1 Bancroft, History of California, VI, 295.
DETERMINING THE EASTERN BOUNDARY
167
ness was shown during the discussion, for the slavery ele-
ment was fighting in the last ditch.”
Dr. Rockwell D. Hunt, in The Genesis of California's
First Constitution, says, "The design was to make a state
so large that division would be necessary," and the southern
part would come in later as a slave state. “It is not sur-
prising ... that friends of slavery fought with utmost
vigor for such vast territory as would necessitate di-
vision."
There was published at San Francisco in 1901, however,
a little volume entitled The Transition Period of California,
by Dr. Samuel H. Willey, which gives a different view. Dr.
Willey lived at Monterey during the eventful year of 1849,
was personally interested in the formation of a state govern-
ment, and was Chaplain of the Convention during its entire
session. On page 104 of his work occurs the following:
"Just here may be as good a place as any to say that nothing
whatever was said in the debate indicating that there was
an expectation or purpose on the part of the southern mem-
bers that the adoption of the larger boundary would result
in the introduction of slavery into any part of the territory.
Nor was there any appearance, in or out of the Convention,
of any secret understanding on the part of any upon the
subject. Most of the men who advocated the larger bound-
ary were thorough and pronounced northern men.”
An examination of the positions of northern and southern
men in the Convention as indicated by the leading speakers
TY
men
on
1 Johns Hopkins University Studies, Vol. XIII.
STATE GOVERNMENT IN CALIFORNIA
and especially by the actual votes cast will show that the
last writer quoted was correct.
The extreme eastern limit over which the discussion took
place was that indicated in the Gwin-Halleck proposition,
proposing practically the 112th degree of west longitude as
the boundary. The leading speakers for and against that
boundary have been given, together with their arguments.
We have seen that Gwin, Halleck, Sherwood, and Norton
were the principal supporters of the proposal on the floor of
the House. Among these Gwin was the only southern man;
the other three were from the North. Norton was born in
Vermont and emigrated to California from New York. Hal-
leck and Sherwood—the former the author of the proviso
clause in the Gwin-Halleck proposal and a strenuous sup-
porter of the extreme eastern boundary—were both born
and raised in New York. Of the seven supporters of the
small state who have been quoted above, Price, Shannon,
McDougal, and Lippitt were from the northern states, while
Semple,2 McCarver, and Botts were from the South. No
man in the Convention more earnestly urged the narrow
boundary than Botts.
The usual supposition has been that the extreme eastern
boundary was supported by pro-slavery men for the purpose
of making California so large that a subsequent division,
1 McDougal's proposal did not receive consideration.
2 Semple, the president of the Convention, did not speak very often on the
subject. The speech made by him quoting King might lead one to think he
show that he favored the more contracted limits on every occasion.
DETERMINING THE EASTERN BOUNDARY
169
by an east and west line, would result in the establishment
of two large states on the Pacific, one to be dedicated to
freedom and the other to slavery. This view, however, is
not substantiated by facts. On six different occasions mem-
bers of the Convention expressed fear that such a division
might occur. The first was by the committee on the bound-
ary, which was made up of one northern man, two foreigners
and two natives. The second expression of fear of such
division was by McCarver, a native of Kentucky; 3 the third
by Semple, also a native of that state; 4 the fourth by Snyder
of Pennsylvania, the fifth by Sherwood of New York,6 and
the last by Gwin. The last named has usually been con-
sidered the arch-villain in the southern plot. Thus three
southerners, three northerners, two foreigners, and two
native delegates clearly expressed a fear of such an event.
But the votes taken on the different proposals show even
more clearly that there was no attempt on the part of dele-
gates from southern states to unite against members from
the North for the purpose of forcing the extreme eastern
boundary on the Housė. There were nine votes taken on
TI
1 Bancroft, History of California, VI, 291 and 294-5; Royce, California,
264-66; Hunt, Genesis of California's First Constitution, 49; Coman, Economic
Beginnings of the Far West, II, 248. The last named author also implies
that the native delegates were assisting southern men in bringing about
such a result.
2 Browne, Debates, 123.
3 Ibid., 170.
4 Ibid., 176.
5 Ibid., 182–83.
6 Ibid., 182 and 184.
7 Ibid., 445.
170
STATE GOVERNMENT IN CALIFORNIA
proposed boundaries in which the names of the voters are
recorded. In the case of the first, the Gwin-Halleck pro-
posal, we know that it was adopted by nineteen to four,
but we have no way of determining the influence of North
and South in that particular case. The substitute offered
for that proposal when the subject came up for reconsidera-
tion two weeks later, was presented by Hastings. This
suggested the 118th degree of west longitude as the eastern
limit. Of the twenty-three votes cast in favor of the pro-
posal, fourteen were from northern, eight from southern
states, and one from Switzerland.2 Twenty-one votes were
registered against the measure, of which nine were northern,
seven were native, and five from southern states. On the
following day a motion was made to reconsider the boundary
question and Hastings' proposal was again before the House.
Of the seventeen votes cast in its favor on this occasion,
eight were by southern men (the same who had supported
it on the preceding day), eight by northern men and one
was by a foreigner. Twenty-seven votes were registered
against it, of which fourteen were cast by men from northern
states, eight by native delegates and five by men from the
South.4
Shannon's proposal recommending a boundary very much
like the one finally adopted was the next to come before the
Convention. Nineteen votes were registered in its favor.
on
were
or.
Browne, Debates, 200.
2 Ibid., 418.
3 Ibid.
4 Ibid., 431.
DETERMINING THE EASTERN BOUNDARY
171
ven
Eleven of these were cast by men from northern states, seven
by men from the South, and one by a man (Sutter) from a
foreign country. Of the eight southern delegates who voted
for the narrow boundary formerly, all but one, Hoppe, voted
for Shannon's proposition, and Hoppe evidently was not
present, as his vote is not recorded. Of the twenty-five
registered against it, thirteen were cast by men from north-
ern states, eight by native delegates, and four by men from
the South.1
McDougal withdrew the first clause of his proposal, thus
leaving it very similar to Shannon's—the 120th degree of
west longitude.2 Thirteen of the twenty-two votes cast in
favor of the proposal were by men from northern states,
eight by men from southern, and one by a man from a foreign
country. Eleven men from northern states, eight native
delegates, and five men from the South-twenty-four in
all-voted against it.3
Another vote was then taken on the boundary drawn up
by Gwin and Halleck, and it was adopted for the second
time. Twenty-four votes were cast in favor of it. Eleven
northerners, eight natives, and five southerners voted for
the measure; thirteen northerners, eight southerners, and
one foreigner voted against it. A vote was then taken on
Jones's proposal, which it will be remembered contained
two parts—the first recommending the 12oth degree of
? Browne, Debates, 443.
2 Ibid., 440.
3 Ibid.
4 Ibid., 440-441.
172
STATE GOVERNMENT IN CALIFORNIA
west longitude, and the second, if Congress would not accept
that, offering the 112th degree as the eastern boundary.
There were thirteen votes for the proposition and thirty-one
against it. Among the former, eight were cast by northern
and five by southern men; among the latter, sixteen were
cast by northerners, seven by natives, seven by southerners
and one by a foreigner." Hill's proposal, making the 115th
degree of west longitude the eastern limit, received twenty-
four votes in its favor and twenty-two against it. Of the
former, ten were cast by northerners, nine by southerners,
four by natives, and one by a foreigner. Against it were
fifteen northerners, four southerners, and three natives. 2
One more attempt was made to have the Gwin-Halleck,
or extreme eastern boundary adopted, but it was rejected.
Of the eighteen votes in favor of it, eight were cast by north-
ern men, six by natives, and four by southerners. Fourteen
northerners, eight southerners, one native, and one foreigner
opposed the measure.
The final vote was then taken on the first clause of Jones's
proposal, recommending the boundary as it was finally
established. It was adopted by thirty-two to seven. Eight-
een northerners, ten southerners, three natives, and one
foreigner voted for it. Three northerners, two southerners,
and two natives voted against it.3.
It will thus be seen that in every vote cast the majority
of the southern delegates favored the smaller boundary.
-
2
1 Browne, Debates, 456.
2 Ibid., 457.
3 Ibid., 458.
DETERMINING THE EASTERN BOUNDARY
173
In the first case—the Hastings proposal, offering the 118th
degree of west longitude-eight voted for, and five against
it. The same proposal when it came up the next day re-
ceived the vote of the eight southern delegates who had
formerly supported it, and was opposed by the same south-
erners, five, who had formerly voted against it. Shannon's
proposal was supported by seven southerners and was op-
posed by four from that section. Practically the same east-
ern boundary—the 12oth degree of west longitude-offered
by McDougal was supported by eight southerners, while
five from the South rejected it. The second vote on the
Gwin-Halleck proposal had resulted in five for and eight
against it. Five were cast for and seven against the double
proposal offered by Jones. Up to this point the five southern
delegates who had stood out for the extreme eastern bound-
ary were Gwin, Hobson, Hollingsworth, Jones and Moore.
Moore did not vote on Shannon's proposition. Jones's
proposal, however, was rejected by Gwin. Hoppe, a south-
ern delegate who had voted for the more contracted bound-
ary, supported the proposition. Hill's proposal—the 115th
degree of west longitude—was supported by nine southern
delegates and rejected by four. Gwin voted against it and
Jones for it. In the third vote on the Gwin-Halleck proposi-
tion four southerners were for it and eight against it. The
first clause of Jones's proposal was supported by ten southern
votes. The two southerners who voted against it were Hill
and Hobson. Hill had formerly voted for the contracted
boundary; Hobson, however, had consistently opposed it.
This evidence seems to show conclusively that the debate
174
STATE GOVERNMENT IN CALIFORNIA
and the votes had no sectional character. The majority
of the delegates who had immigrated to California from
southern states were not only not fighting to have the Con-
vention adopt boundaries so extensive that the constitution
would be rejected by Congress, but they were actually con-
tending against that very thing. Every time they had a
chance to express themselves by their votes--with the pos-
sible but not probable exception of the first vote taken on
the Gwin-Halleck proposal, where the names of the voters
were not given the majority of them opposed the extreme
eastern boundary. Even when Jones submitted his double
proposition making the 112th degree of west longitude a
proviso clause to be considered by Congress only in case that
body should absolutely refuse to accept the new state with
contracted limits, the majority of the delegates from south-
ern states voted against it. And the motive which seems to
have actuated them, as the rest, was a desire to obtain
immediate admission to statehood.
CHAPTER VIII
CORPORATIONS AND BANKS
The panic of 1837 had such a pronounced effect on the
construction and revision of the fundamental laws of the
states in so far as they controlled the incorporation of asso-
ciations, especially those with banking privileges, that it
will be well to consider very briefly the panic itself and its
influence on the making of state constitutions in general
before dealing more fully with the discussion of the subject
in the California Convention of 1849.
Financial Disorder in the Late Thirties
On September 26, 1833, Taney, Secretary of the Treasury,
issued an order directing that the money of the United States
should henceforth be deposited in certain state banks se-
lected for the purpose. The amount on deposit in the United
States bank was soon exhausted through drafts for the or-
dinary expenditures of the government, and by 1836 it had
ceased to be a fiscal institution of national importance.1
In January, 1835, the national debt was paid, and the next
year the usual income of the government from taxation,
custom duties, etc., was increased by $24,877,179 from
1 Dewey, Financial History of the United States, 206–208.
2 Ibid., 219.
NY
175
STATE GOVERNMENT IN CALIFORNIA
the sale of public lands.1 To procure additional places
for storing the nation's currency, the number of “pet banks”
was increased. On January 1, 1835, the government had
November I, 1836, eighty-nine banks held $49,378,000 of
government moneys.2 The selection of state banks as places
of deposit for the national funds proved a strong incentive
to bank building, and the passage of a bill in June, 1836,
making the states the depositories of the surplus added an
increasing number of such institutions to those already in
existence. In 1834 there were five hundred and six banks in
the United States. This number had increased from seven
hundred and four in 1835 to seven hundred and thirteen
and seven hundred and eighty-eight in 1836 and 1837 re-
spectively. During the last named year occurred a national
panic which brought ruin to hundreds and thousands of
people, but the wealth of paper issued for money seems to
have encouraged still further the development of banks.
By 1838 there were eight hundred and twenty-nine, and
the number increased to eight hundred and forty in 1839
and to nine hundred and one in 1840. The destruction of
the national bank removed the only agency for preserving
a sound currency, 5 and the small banks throughout the coun-
try issued paper without much regard to the amount of
specie on hand with which to redeem it. During the summer
1 Dewey, Financial History of the United States, 217.
2 Ibid., 210.
3 Ibid., 225.
4 Ibid.
6 Catterall, The Second Bank of the United States, 430.
CORPORATIONS AND BANKS
of 1837, specie payments were suspended in all the banks
throughout the country. In New York the legislature le-
galized suspension for a year, and other state legislatures
soon passed similar enactments. There were in circulation
not only United States and state notes, but paper issued by
private banks and even by private individuals. The na-
tional government paid its creditors in the paper of sus-
pended banks. 1
Effect on State Constitutions
Such a financial chaos necessarily had its effects on the
making of state constitutions. Between 1838 and the year
in which California began the organization of her state gov-
ernment, four new states drew up constitutions for admis-
sion into the Union, and six of the older states adopted new
ones. Of the former group were Florida in 1838, Texas in
1845, Iowa in 1846, and Wisconsin in 1848; of the latter
were Pennsylvania, Rhode Island, New Jersey, Louisiana,
New York, and Illinois in 1838, 1842, 1844, 1845, 1846, and
1848 respectively. In all of these, except Rhode Island,
rigid measures were inserted limiting the power of the legis-
latures to create banks or associations of any kind for bank-
TIT
in the constitutions of New York and Iowa were taken as
1 Schouler, History of the United States, IV, 279-80.
2 Poore, Charters and Constitutions. For the Iowa constitution of 1846
see Parker, Iowa as it is in 1855, 206-233. Poore does not give this, but has
reprinted the constitution of 1857 by mistake.
178
STATE GOVERNMENT IN CALIFORNIA
examples by delegates in California for the formation of
similar provisions in the constitution of 1849. We shall
have a chance to compare these presently.
The California Attitude-Majority and Minority Report
Many of the delegates who took part in drawing up the
California constitution of 1849 knew of the effect of the
panic of 1837 on the revision and formation of state
constitutions. It is not surprising, therefore, that they
were strongly opposed to permitting the organization of cor-
porations or associations of any kind with banking privileges.
Gwin, one of the older members, recalled conditions in the
United States between 1836 and 1840, when “the country
was flooded with post notes, corporation and individual
tickets, and, in many instances, certificates of deposit," and
warned his colleagues against creating possibilities for similar
occurrences in California. "It would be a curious spectacle,"
he asserted, “to exhibit before this Convention the various
kinds of paper in circulation, as money, during that memo-
rable period.” He claimed to have seen collected as a matter
of curiosity about one hundred different kinds, and if he
had them there, he thought they would be the strongest
arguments he could produce against the organization of
banking establishments in any form.1
On the other hand there were some who, while feeling that
it would be unnecessary to organize banks in California,
considered it essential to provide for the establishment of
1 Browne, Debates, 117.
CORPORATIONS AND BANKS
179
associations where gold and silver might be deposited. It
would also be wise, Sherwood thought, to permit such cor-
porations to issue certificates of deposit. With the large
amount of precious metals found in California, some place
of deposit was absolutely necessary, and it would be much
better for the Legislature to provide for the establishment of
reliable public associations, to be formed under general laws,
than to have the people depend on "irresponsible private
establishments.” 1
These views held by Gwin and Sherwood reflect, in a
general way, the different opinions of members of the Com-
mittee on the Constitution, and resulted in a majority and
minority report from that body on the subject of corporations
and banks. Generally speaking, the minority wanted to
adopt restrictions similar to those given in the constitution
of Iowa, while the majority favored the more liberal provi-
sions of the New York constitution of 1846. The majority
report offered by Norton, the chairman of the Committee on
the Constitution, proposed the following, taken almost ver-
batim from the first four sections of article eight of the con-
stitution of New York, as the thirty-first, thirty-second,
thirty-third, and thirty-fourth sections of the article on the
legislative department:
“Corporations may be formed under general laws, but
shall not be created by special act, except for municipal
purposes, and in cases where, in the judgment of the Legis-
lature, the object of the corporation cannot be attained under
general laws. All general laws and special acts passed pur-
1 Browne, Debates, 119.
180
STATE GOVERNMENT IN CALIFORNIA
suant to this section may be altered from time to time, or
repealed. 1
“Dues from corporations shall be secured by such in-
dividual liability of the corporators and other means as
may be prescribed by law.
“The term corporation, as used in this article, shall be
construed to include all associations and joint stock com-
panies having any of the powers or privileges of corporations,
not possessed by individuals or partnerships; and all corpora-
tions shall have the right to sue and shall be subject to be
sued, in all courts in like cases as natural persons.
“The Legislature shall have no power to pass any act
granting any charter for banking purposes; but associations
may be formed under general laws for the deposit of gold
and silver.” 2
The minority report, read by Gwin, was composed of two
for 1846) as follows:
"No corporate body shall be created, renewed, or ex-
tended, with the privileges of making, issuing or putting
in circulation, any bill, check, ticket, certificate, promissory
note, or other paper, or the paper of any bank, to circulate
as money. The Legislature of this state shall prohibit by
law, any person or persons, associations, company or cor-
poration from exercising the privileges of banking, or creat-
ing paper to circulate as money.
1 Browne, Debates, 108.
2 Poore, Charters and Constitutions, Part I. Also Bishop and Attree,
New York Convention of 1846.
CORPORATIONS AND BANKS
181
“Corporations shall not be created in this state by special
laws, except for political or municipal purposes, but the
Legislature shall provide, by general laws, for the organiza-
tion of all other corporations, except corporations with
banking privileges, the creation of which is prohibited. The
stockholders of every corporation or joint stock association,
shall be personally and jointly responsible for all its debts
and liabilities of every kind. The state shall not, directly
or indirectly, become a stockholder in any corporation. All
general laws and special acts passed pursuant to this section,
may be altered from time to time or repealed; and all cor-
porations shall have the right to sue and shall be subject
to be sued in all courts in like cases as natural persons.” 1
Jones had formerly proposed the second section of the
“eighth article" of the constitution of Iowa, with an amend-
ment thereto, as a substitute for the majority report, but
withdrew it to permit Gwin to offer the two sections given
above.2 He later submitted the following, which he claimed
to be the same proposal taken from the same source. The
section was taken word for word from the Iowa constitution
of 1846, but the amendment to the same was omitted. It
is as follows:
“Corporations shall not be created in this state by special
laws, except for political and municipal purposes; but the
General Assembly shall provide, by general laws, for the
organization of all other corporations except corporations
I Browne, Debates, 115. Compare with article VIII in the constitution of
Iowa, 1846. Parker, Iowa as it is in 1855, 225.
2 Browne, Debates, 108.
182
STATE GOVERNMENT IN CALIFORNIA
with banking privileges, the creation of which is prohibited.
The stockholders shall be subject to such liabilities and re-
strictions as shall be provided by law. The state shall not,
directly or indirectly, become a stockholder in any corpora-.
tion.” 1
The discussion which followed as to the order of amend-
ments induced Jones to withdraw his proposal for the second
and last time, but he continued to support the cause of the
minority.
Cause
Were the Majority and Minority Reports Alike?
Hastings objected to the minority report because it was
too verbose. In section thirty-four of the majority report,
he said, the Committee had positively prohibited banking
in a sentence which would not exceed a line and a half in
print. In the minority report there were six or more lines
all amounting to the same thing.2 Corporations of all kinds
were prohibited by special law according to the minority
report, said Norton, chairman of the Committee, and bank-
ing and the circulation of paper as money were also for-
bidden. But those same things were prohibited by the Com-
mittee. Practically the only difference between the two
was in regard to the liability of corporations. So far as that
particular point was concerned, he was perfectly willing to
have the wording of the Committee's report changed so that
1 Browne, Debates, I12. Compare with article VIII, section 2 of the
constitution of Iowa.
2 Browne, Debates, 114.
CORPORATIONS AND BANKS
183
individual members could be held more rigidly responsible
for the liabilities of such associations. The Committee had
consulted different state constitutions and had selected such
provisions as they considered necessary for the purpose of
preventing the Legislature from granting charters to banking
associations, and prohibiting all corporations from issuing
paper money.
Jones did not believe that they had succeeded in doing it.
There was not a single article where the difference between
the majority and minority reports was not distinct and posi-
tive.” The last clause in the first section of the minority
report obliged the Legislature of the state “to prohibit by
law, any person or persons, association, company, or cor-
poration, from exercising the privileges of banking, or creat-
ing paper to circulate as money." This was positive and
unconditional. Compare it with the last clause of the thirty-
fourth section of the majority report:“but associations may
be formed under general laws for the deposit of gold and
silver.” If an association was organized for the purpose of
receiving gold and silver under that clause, would it not
have authority to issue certificates payable to bearer? He
thought that if they could enter into any speculation, "and
take the money deposited in their hands and use it for the
purpose of trade, and issue certificates of deposit, probably
at par,” it would be for all practical purposes "a bank, and
the worst sort of bank.” “Where is their stock? What are
the individual speculators liable for? You bind them by a
bond? What is a bond? Cannot any lawyer pick a flaw in a
1 Browne, Debates, 109.
184
STATE GOVERNMENT IN CALIFORNIA
bond? Give me private and individual responsibility. The
whole system is different from the minority report.” 1
Gwin thought that the state of California would un-
doubtedly be saddled with a banking system if the Conven-
tion adopted the majority report as it stood. It was true that
the words "bank” and “corporation" did not appearin the re-
port; their insertion might alarm the people. “Association"
was the "magic word” which was to remove all objections.
The Legislature was to be the sole judge of the necessity of
passing special acts for creating corporations. Such consti-
tutional restrictions (he was referring to the first sentence in
the thirty-first section of the majority report) would be ab-
solutely worthless. The minority report was perfectly clear
on the subject: the report of the majority left dangerous
openings.?
Gwin Charges Majority with Attempts to Force Banks on the
State
In fact, Gwin said, the Committee intended to leave these
dangerous loop-holes. They did it so that the Legislature
could inflict banks and banking corporations on the people.
The whole bill was “cunningly devised” for that very pur-
pose. The Committee spoke out boldly enough when placing
restrictions on banking, “but when they wish to steal from
the people the nucleus around which a monied oligarchy
may be built up in the country, the subject is approached -
1 Browne, Debates, 114-115.
2 Ibid., 115-118.
CORPORATIONS AND BANKS
185
let me say with all due respect to the Committee, whose
motives I in no wise impugn-in real petit larceny style;
aye, with the cringing sycophancy of the beggar asking alms
while filching your purse from your pocket.” It was a care-
fully arranged scheme, and drawn up in imitation of the
sections in the New York constitution.
The New York constitution, he said, was undoubtedly
all right for New York, but it would never do for California.
There was no similarity in the conditions in the two states.
In New York corporations were institutions of ages, and had
become an indivisible part of the system of government.
It could not be expected, therefore, that the sections in the
constitution of that state affecting corporations would be
suited to a new country. They had been drawn up rather to
restrict and restrain what had existed for half a century.
Did gentlemen imagine they would find the same provisions
in that constitution if New York, in 1846, had been in a
similar position to California in 1849? The people in the
latter state were a new people, creating from chaos a govern-
ment. “Our country is like a blank sheet of paper, upon
which we are required to write a system of fundamental
laws. Let the rights of the people be guarded in every line
we write, or they will apply the sponge to our work.” 1
Sherwood, a member of the Committee, said that the
accusations made against that body were without any found-
ation whatever. They had made no attempt to keep the
word "bank” from appearing in the constitution. On the
other hand they had been actuated by an earnest desire to
1 Gwin, Memoirs, 20 et seq. Also Browne, Debates, 115-118.
186
STATE GOVERNMENT IN CALIFORNIA
draw up a constitution which would meet the approval of
the people-a constitution which would deprive the Legisla-
ture of all power to create banking associations.
It was true, he said, that the Committee had followed the
New York plan, but they did it after consulting various
constitutions and because they believed the provisions
governing corporations and banks in that constitution were
more adequate to the needs of California than those of any
other which they had examined. The convention that drew
up that document had been elected by the people in 1846
for the purpose of restricting the Legislature in its power of
creating corporations. This resulted in the powers of that
body being strictly confined to the passage of general laws
of incorporation. Corporations could not be created by
special acts, except for municipal purposes, and even then
only in those cases where the object could not be attained
by general laws. The Committee had made similar careful
provisions in their report. They had defined corporations,
they had forbidden the creation of banks, they had declared
that the Legislature should create no institutions which
should issue bank bills of any description. What more
could the gentlemen want?
As a matter of fact, however, Sherwood declared that he
did not oppose a well regulated banking system such as
had been established in New York. He agreed with other
members of the Convention that such institutions were not
needed in California. But some reliable place of deposit
was absolutely necessary, and such institutions must be
permitted to issue certificates of deposit. The gentleman
CORPORATIONS AND BANKS
187
(Gwin) knew that if he desired to send money to Louisiana,
for instance, he must either buy a bill of exchange or get a
certificate of deposit. If he secured the latter he would
want to know that the association which issued it was a safe
institution. The report of the majority committee provided
for the creation, by the Legislature, of associations for the
deposit of gold and silver. They were to be established under
general laws, not by special acts. They were to be created
for the protection of depositors, not as irresponsible specu-
lating corporations organized by the Legislature for a few
of its favorites. They were to be allowed to issue receipts
for deposits, but they were forbidden to issue bank bills of
any kind. Certainly the gentleman would not prevent an
individual or an association from issuing certificates of
deposit.
Cro
Fear of Paper Money
Price would. If associations were permitted by the Legis-
lature to issue certificates of deposit, some of the ingenious
lawyers in the state might contrive schemes whereby such
certificates would be allowed to circulate as money. He was
unwilling to take any chances. There was no subject that
could come up on which he would feel so strongly as on this,
and there was nothing else he dreaded half so much as the
"monster serpent, paper money.” He thought the majority
report contained some dangerous openings; at least it did
not emphatically and unconditionally reject banking cor-
1 Browne, Debates, 118-119.
188
STATE GOVERNMENT IN CALIFORNIA
porations under whatever disguise they might appear. “Let
us say what we mean, that corporations shall never be
chartered by the Legislature with banking privileges, such
as receiving or holding gold or silver on deposit.” He favored
the broad doctrine of free trade and free banking as being
more applicable to conditions in California than any other. 1
On the other hand Botts declared that the very best way
to prevent the establishment of a bank was to secure the
existence of a circulating medium of paper money. He had
been studying the subject ever since the panic of 1837, and
he had concluded that every mercantile community de-
manded a more portable circulating medium than gold and
silver. “You may make all the provisions in the world that
you choose; but if you leave a loop-hole, this insinuating
serpent, a circulating bank, will find its way through, because
of the absolute necessity of the community for a paper cur-
rency.” How then was the object to be effected? Botts
answered the question in a paper which he read before the
Convention, the substance of which was that the treasurer
of the state should open a place of deposit for gold and silver,
and should issue certificates “of suitable denominations,
dollar for dollar on the amount deposited, payable on de-
mand," which were to circulate as money. The certificates
were thus to be secured by deposits with the treasurer, and
the state was to be held responsible for them. The subject
of the currency he considered of too much importance to be
trusted in the hands of the community. It was especially
a subject for legislation, and required the protection of the
1 Browne, Debates, 113–114.
CORPORATIONS AND BANKS
189
government. If some such arrangements as he suggested
were not adopted he was afraid the country would be flooded
with individual tickets and notes or paper issued by irrespon-
sible corporations. The latter would be the result under the
clause "but associations may be formed under general laws
for the deposit of gold and silver," if the Convention adopted
the majority report; the former might happen if the minority
report were accepted and the entire banking system thrown
into the hands of private individuals. 1
The plan proposed by Botts, however, never received
serious consideration. Early in the discussion, Halleck and
Semple, the former a member of the Committee, declared
that they could see no reason for adopting the minority
report when the same object could be attained by amending
the report of the majority. If the House wished to place
further limitations on the Legislature, as suggested by the
report of the minority, why not do it by permitting the ques-
tion to come under the proper section of the Committee's
report. For instance, the section prohibiting the circulation
of bank notes in the latter could be amended to include also
tickets, checks, bills, promissory notes and other papers.
Other sections could be similarly changed. They could see
no reason for rejecting the report of the majority and adopt-
ing that of the minority when all objections could be re-
moved by slightly altering the former. 2
This suggestion was finally adopted and the majority
report, with an omission and an addition, together with a
1 Browne, Debates, 124-126.
2 Ibid., III-112.
190
STATE, GOVERNMENT IN CALIFORNIA
slight change in the wording of two sections, was accepted
as part of Article IV as follows:
"31. Corporations may be formed under general laws,
but shall not be created by special act, except for municipal
purposes. All general laws and special acts, passed pur-
suant to this section, may be altered from time to time or
repealed.
“32. Dues from corporations shall be secured by such
individual liability of the corporators, and other means,
as may be prescribed by law.
“33. The term corporations, as used in this article, shall
be construed to include all associations and joint stock
companies having any of the powers or privileges of corpora-
tions, not possessed by individuals or partnerships. And
all corporations shall have the right to sue, and shall be
subject to be sued, in all courts in like cases as natural per-
sons.
"34. The Legislature shall have no power to pass any act
granting any charter for banking purposes; but associations
may be formed under general laws for the deposit of gold and
silver. But no such association shall make, issue, or put in
circulation any bill, check, ticket, certificate, promissory
note, or other paper, or the paper of any bank, to circulate
as money.
"35. The Legislature of this state shall prohibit, by law,
any person or persons, association, company, or corporation,
from exercising the privileges of banking, or creating paper
to circulate as money.
"36. Each stockholder of a corporation, or joint-stock
CORPORATIONS AND BANKS
INI
association, shall be individually and personally liable for
his portion of all debts and liabilities.” 1
By comparing the report of the majority with the sections
as adopted, it will be seen that the following clause was
omitted from the former: “and in cases where, in the judg-
ment of the Legislature, the objects of the corporations can-
not be attained under general laws.” As pointed out in the
discussions, this clause, had it been retained, would have left
the whole subject of creating corporations by special acts,
in the hands of the Legislature. Norton, who spoke for the
Committee, had asserted that corporations created by special
acts when the object for which they were created might have
been attained under general laws, would be unconstitutional,
and that the question of their constitutionality would be
for the courts to determine. Lippitt pointed out that by
the very wording of the clause the question of constitution-
ality was left to the judgment of the Legislature. 2
The thirty-second and thirty-third sections were adopted
as they came from the hands of the Committee on the Consti-
tution. The thirty-fourth section was also accepted, with
the addition of the following sentence: “But no such associa-
tion shall make, issue or put in circulation, any bill, check,
ticket, certificate, promissory note or other paper, or the
paper of any bank, to circulate as money.” In other words,
while the Convention finally agreed to permit a constitutional
provision for the organization of associations, under general
laws, for the deposit of gold and silver, they were determined
1 Browne, Debates, 129, 135, 136.
2 Ibid., 109.
192
STATE GOVERNMENT IN CALIFORNIA
that no such association should be allowed to issue paper
of any kind which could circulate as money.
The thirty-fifth section, as proposed by the Committee,
was as follows: “The Legislature shall have no power to pass
any law sanctioning, in any manner, directly or indirectly,
the issuing of bank notes of any description.” This was
struck out for the purpose of adopting the thirty-fifth sec-
tion given above. The thirty-sixth, "The stockholders of
every corporation or joint-stock association shall be in-
dividually responsible to the amount of their respective
share or shares of stock in any such corporation or associa-
tion for all its debts and liabilities of every kind," was also
omitted, and the last section given above substituted for it.
In the thirty-fifth section, instead of saying, as the Com-
mittee proposed, that the state Legislature should have no
power to pass any law sanctioning the issue of bank notes,
the Convention substituted a more rigid sentence requiring
the Legislature to prohibit by law the creation of banks or
paper money. The thirty-sixth as adopted puts in fewer
words and expresses in a clearer form the idea contained in
the section proposed by the Committee.
Thus the wide spread fear of corporations, banks and paper
money which extended over the country as a result of the
panic of 1837, manifested itself in California also, and the
delegates to the Convention of 1849 placed rigid constitu-
tional restrictions over the organization of the first, and
declared themselves firmly against permitting the last two
in any form whatever.
CHAPTER IX
EDUCATION AND TAXATION
:
In this chapter education and taxation will be considered
under the following heads: (1) educational provisions in
general, with special reference to the section establishing a
school fund, (2) land grants made by Congress for educa-
tional purposes, (3) grants made by that body for internal
improvements which were diverted by the constitution to
the support of schools, (4) the connection between the sub-
ject of education and that of taxation, and (5) the discussion
of the section on taxation.
Article on Education
The article on education as reported by the Committee
on the Constitution contained five sections. The first of
election of a superintendent of public instruction who should
hold office for three years. The second, with arguments
for and against it, is given below. The third required the
Legislature to maintain a school in each school district at
least three months in every year. An attempt was made to
change the term to six months instead of three, but this
failed and the third section as reported by the Committee
Browne, Debates, 202.
193
194
STATE GOVERNMENT IN CALIFORNIA
YE
was adopted.1 Section four provided for using for educa-
tional purposes or for the establishment of libraries the
“clear proceeds of all fines collected in the several counties,
for any breach of penal laws,” the funds thus raised to be
divided among the school districts of the counties in pro-
portion to the number of inhabitants in each district. This
section was voted down, however, because it was thought
(1) that juries might be inclined to punish by fine occa-
sionally when imprisonment should be inflicted; (2) there
was a feeling against using money for educational purposes
which had been taken from criminals; (3) it would be unwise
to reserve solely for educational purposes a fund which
might become very large and which might be needed in
other departments of the government.? An attempt was
then made to substitute for the fourth section another which
provided for the apportioning of all funds collected in the
state for educational purposes among the different school
districts according to the number of school children in each.
But this also failed. The fifth section as reported by the
Committee which became section four under article nine of
the constitution, was adopted without debate. It required
the Legislature to take "measures for the protection, im-
provement, or other disposition of such lands as have been
or may be granted by the United States or by any person or
persons, to this state, for the use of a University; and the
1 Browne, Debates, 206. Section 5 of Article IX of the constitution of
1879 requires at least six months of school in each school district every year.
2 Ibid., 207–209.
3 Ibid., 209-210.
EDUCATION AND TAXATION
195
funds accruing from the rents or sale of such lands, or from
any other source, for the purpose aforesaid, shall be and
remain a permanent fund, the interest of which shall be
applied to the support of said University, with such branches
as the public convenience may demand for the promotion
of Literature, the Arts and Sciences, as may be authorized
by the term of such grant.” It also required the Legislature
to provide effectual means for the improvement and perma-
nent security of all university funds.1
The sections given above aroused little or no opposition
when they came up in the committee of the whole. The
second section, however, stirred up a protracted discussion,
but it was finally passed as amended and still remains in
the constitution of California as part of the article on educa-
tion. It was reported by the Committee on the Constitution
as follows:
“The Legislature shall encourage by all suitable means
the promotion of intellectual, scientific, moral and agricul-
tural improvements. The proceeds of all lands that may be
granted by the United States to this state for the support
of schools which may be disposed of; and the five hundred
thousand acres of land granted to the new states under an
act of Congress distributing the proceeds of the public lands
among the several states of the Union, approved A. D. 1841;
and all estates of deceased persons who may die without
leaving a will or heir; and also such per cent as may be
granted by Congress on the sale of lands in this state, shall
be and remain a perpetual fund, the interest of which, to-
1 Browne, Debates, 210-211.
196
STATE GOVERNMENT ÎN CALIFORNIA
.
gether with all the rents of the unsold lands, and such other
means as the Legislature may provide, shall be inviolably
appropriated for the support of public schools throughout
the state: Provided, That the Legislature may, if the ex-
igencies of the state require it, appropriate to other purposes
the revenue derived from the five hundred thousand acres of
land granted by Congress to new states, A. D. 1841; also
the rents and profits of all the unsold lands not granted by
Congress for the support of education.” i.
The amended section was the above, minus the proviso
clause, and it was this clause which stirred up the opposi-
tion. Before taking up the discussion, however, the signifi-
cance of the section with the proviso will be better under-
stood if we consider briefly (1) the land grants made by
Congress for purely educational purposes, (2) the grants
made for internal improvements which were diverted by
the Convention to the cause of education.
Congressional Grants for Educational Purposes
The idea of reserving one thirty-sixth of the land within
the state for educational purposes dates back to the Ordi-
nance of 1785.2 Those states entering the Union after 1850
had one-eighteenth of the land within their borders reserved
for schools. Just how this more liberal policy originated is
1 Browne, Debates, 203.
2 Channing, History of the United States, III, 540, also Treat, The National
Land System, 38.
3 Hart, Practical Essays on American Government, 245. California had
more than one-seventeenth reserved for schools. See note 2, p. 23.
EDUCATION AND TAXATION
197
difficult to determine. In a report dated December 10, 1846,
Walker, Secretary of the Treasury, forwarded to John Davis,
the Speaker of the House of Representatives, a paper signed
by James H. Piper, acting commissioner of the general land
office, in which the author urged further provision for the
support of common schools in the new states springing up in
the West. He pointed out that the grant of one section in
each township as provided by Congress in the early period
of the nation's history, was inadequate for the support of
schools in the sparsely settled regions of the West, and rec-
ommended that further grants be made for that purpose. 1
Just a year later Walker referred to the subject again and
recommended the grant of one section in every quarter of a
township. This, he said, would place a school within a mile
and a half of the remotest settler, if the section granted were
placed in the center of each quarter township. The recom-
mendation was made with special reference to Oregon, and
Congress adopted the suggestion to the extent of granting
two sections in each township.2
In December, 1848, the Secretary of the Treasury, for the
third time, called the attention of Congress to the insufficient
provisions for schools, and repeated his former recommenda-
tion for meeting the difficulty. In this report he referred
especially to California and New Mexico. He said the addi-
tional revenue which the government would receive by
granting a section in each quarter of a township would more
1 Bancroft, History of California, VI, 298, note and H. Ex. Doc., 2nd sess.,
29th Cong., No. 9, 6.
2 Ibid.
198
STATE GOVERNMENT IN CALIFORNIA
.
than compensate for the extra land thus granted. Each
quarter of a township contained nine sections. According
to his plan, the middle section would be appropriated for
school purposes. But the eight remaining sections, "each
adjoining a school section, would be of greater value than
when separated, by many miles, from such opportunities
(i. e., the opportunities for schools which the grant would
provide); and the thirty-two sections of one entire township,
with these benefits, would bring a larger price to the govern-
ment than the thirty-five sections out of thirty-six where
one section only, so remote from the rest, was granted for
such purposes.” This, he continued, would lead to an
earlier settlement of the public domain. The increasing
amount of products which would result from the early settle-
ment would produce a corresponding increase in the national
wealth. The “diffusion of education" would increase the
power of mind and would thus give an added knowledge to
be applied to the industrial pursuits of the country, and the
nation would be happier and more prosperous as a result. 1
Such were the arguments urged upon Congress by the
Secretary of the Treasury in behalf of larger land grants to
western states for school purposes. California doubtless
owes more to these persistent recommendations than to
any other one influence for her liberal grants in school lands.
By an act of Congress passed March 3, 1853, sections sixteen
and thirty-six in each township were set apart for the sup-
port of common schools. If these particular sections had
been taken when the township was surveyed, other lands
1 H. Ex. Doc., 2nd sess., 30th Cong., No. 7, 33-34.
EDUCATION AND TAXATION
199
.
might be selected in place of these by the proper state offi-
cials. But these were not to be all of the lands devoted to
educational purposes by the new state.
Other Grants Made by Congress
On September 4, 1841, an act was passed by Congress
providing that, after deducting ten per cent of the net pro-
ceeds of the sales of the public lands within the states of
Ohio, Indiana, Illinois, Alabama, Missouri, Louisiana,
Arkansas, and Michigan, all the net proceeds subsequent
to December 31, 1841, should be divided pro rata among the
twenty-six states and among the territories of Wisconsin,
Iowa, Florida, and the District of Columbia according to
their respective federal population as ascertained by the
sixth census. With the distribution were to go so-called
"state-selections,” to the amount of five hundred thousand
acres. The five hundred thousand acres were to be devoted
to internal improvements, and were granted under the con-
dition that to each of the said states, which had already
received grants for such purposes, there should be granted
only such additional amounts as would total five hundred
thousand acres. The selection in all the said states was to
be made within their respective limits in such manner as
their legislatures should direct, and was to be “located in
parcels conformably to sectional divisions and subdivisions,
1 Fifth Annual Report of the Superintendent of Public Instruction, 5-6.
2 Shosuke Sato, History of the Land Question in the United States, 154-59.
In Johns Hopkins University Studies, Vol. IV.
200
STATE GOVERNMENT IN CALIFORNIA
of not less than three hundred and twenty acres in any one
location, on any public land except such as is or may be
reserved from sale by any law of Congress or proclamation
of the President of the United States, which said location
may be made at any time after the lands of the United
States, in said States respectively, shall have been surveyed
according to existing laws." The act also provided that
each new state admitted into the Union subsequent to Sep-
tember 4, 1841, should receive similar grants on these same
terms. 1
It was under this act that the Convention expected to
receive the grant of five hundred thousand acres referred
to in section two of article nine as quoted above.2 Section
* Laws of the United States, 27th Cong., 1842–43, ch. 16, sections 8 and 9.
2 In addition to the 500,000, California received another grant by an act
of March 3, 1853, already referred to. The grant amounted to 6,765,504,
from which were to be deducted 46,080 acres which were to be devoted to a
“Seminary of Learning" and 6,400 granted for public buildings. This would
leave 6,713,024 acres (the document gives the amount as 6,712,924 acres)
to be devoted to the use of common schools. Add to this the 500,000 acres
devoted by the constitution to the educational fund, and the state had a sum
total of 7,213,024 acres of school land out of a total area of 120,947,840
acres, or more than one-seventeenth of the area of the state devoted to the
support of schools.
Of the 500,000 acres granted by the Act of 1841, 231,680 had been sold
at two dollars an acre by January, 1855, so the Governor's message for Jan-
uary of that year reported. The unsold lands, if disposed of at one dollar
and twenty-fivecents anacre, would bring $8,726,555. Counting the interest,
at seven per cent on this and the funds from other lands already sold at the
above date, California's annual income for the support of schools would be
$643,345.22. "Such is the princely legacy awaiting the next and succeeding
generations, unsurpassed by any of the states of the confederacy, and per-
haps not equalled by the endowment of any throne, principality or kingdom
EDUCATION AND TAXATION
201
nine of the act of 1841, provided that the land thus granted
should not be sold for less than one dollar and twenty-five
cents an acre, and that the proceeds from the sale of the
lands should be devoted to internal improvements. There
seems to have been no doubt in the minds of the members
of the Convention, however, that the income from this grant
could be turned permanently into the educational fund, and
section two of the article on education, as we have seen,
devoted it to school purposes.
.
Should so Much of the State Lands be Set Aside for Education?
This brief sketch will assist the reader to understand what
it meant to the new state establishing an expensive govern-
ment, to strike out the proviso clause of section two. It
meant the sacrifice of a large income which might have been
used for governmental purposes. As already indicated the
of the old world.” See Governor Bigler's Message in the Senate Journal,
1855, pp. 38–39. Also H. Ex. Doc., ist sess., 33rd Cong., Vol. I, Part I,
p. 108 for a table showing the land grants to, and the area of, the different
states.
Despite this glowing report of the Governor's on the educational advan-
tages to be bestowed on future generations of California youths, the Fifth
Annual Report of the Superintendent of Public Instruction (1856) indicated
that the existing needs were far from adequate. “We are nominally pos-
sessed of a large School Property,” he wrote, “but practically do not receive
enough to pay the salaries of three hundred and six teachers for two weeks'
work in the six months of their labor, for which the small sum of $28,269.60
was apportioned by the State board of education on the first instant (Jan-
uary ist), being the entire income to the State school fund for the past half
year.” See p. 3.
1 Laws of the United States, 27th Cong., (1842-43), ch. 16, sections 8 and 9.
202
STATE GOVERNMENT IN CALIFORNIA
202
as
proviso was struck out and the section as amended was
adopted. The first vote, following a short discussion, stood
eighteen to seventeen 1 in favor of the amended section,
but the majority increased to twenty-six and the minority
dropped to nine after a more prolonged argument following
the second reading.
Some of those favoring the omission of the proviso were
extremely radical in their support of a large school fund.
Even if the lands to be granted by Congress could be located
in the gold regions and an income secured sufficient to edu-
cate every child in the state, McCarver thought it should
be reserved for that purpose.3 Semple said it was especially
important for California, with her extensive resources, to
utilize every advantage which the state possessed for estab-
lishing a well-regulated system of education. To secure
good teachers, a liberal and permanent school fund would
be absolutely necessary. Provision should be made also for
a uniform system. If any surplus fund should be collected
in a district it should not be appropriated in that district,
but the aggregate fund from all the districts should be ap-
propriated strictly to school purposes and distributed equally
throughout the state. The fund for educational purposes
could not be too large. California might procure the ser-
vices of "the President of Oxford University” if the state
could offer him sufficient salary.4
1 Browne, Debates, 206.
2 Ibid., 354.
3 Ibid., 203.
4 Ibid., 204. Semple's speech.
EDUCATION AND TAXATION
203
A munificent school fund would give another advantage
of paramount importance to the new state. It would induce
families having children to immigrate to California. The
inducement would be still stronger when it was known that
the fund appropriated for this purpose could not be utilized
for any other. It would add greatly to the permanent settle-
ment and prosperity of the country, and would make Cali-
fornia one of the most desirable states in the Union in which
to live. Men would come, not only to dig gold and return
with it to their homes in the East, but they would bring
their families with them and establish homes in California.1
Halleck thought the principal question was whether the
Legislature should be allowed to interfere with lands set apart
for educational purposes. He could find no precedent for
such action in any other state constitution. He thought the
proviso should be rejected and that the fund should be left
inviolate. After a few years the fund derived from these
lands would not be needed by the state government at all,
but if the proviso remained the income from this source
would certainly be used. If there were any time more than
another when the state needed a large fund for educational
purposes, it was during this early period. Families in Cali-
fornia were even sending their children to “the United States,
or Chili, or Peru” to complete their education. The Conven-
tion should make provision for an adequate school system
in order to make such action unnecessary in the future.2
1 See Lippitt's, Gwin's, Bott's and Hoppe's speeches in Browne, Debates,
346-47, 384, 350 and 351.
2 Browne, Debates, 351-352.
204
.
STATE GOVERNMENT IN CALIFORNIA
Furthermore, he continued, to leave the proviso as part
of the second section would be to encourage the Legislature
to make lavish expenditures. There would undoubtedly be
difficulty in meeting the expenses of government during the
first few years if the state were deprived of the use of this
income for governmental purposes, but this would teach
the new state a lesson in economy. “Suppose we place at
the disposition of the Legislature these lands, and this fund,
and also the civil fund, or what remains of it, and let us, if
port this government, what will be the result? Extrava-
gance and bankruptcy. Let us lay the foundation here of
an economical government; and if the new government
is obliged to support itself by raising a fund out of the
pockets of the people, it will be an economical govern-
ment.” 1
But, the opposition replied, why burden the people with
extra taxes when, by including this proviso, a sufficient fund
might be realized, not only for providing adequate school
facilities, but for meeting all necessary expenses of the gov-
the establishment of a liberal school fund. That was clearly
evident. But if the five hundred thousand acres of land
granted by Congress in 1841 under the “State-selection act”
should be extended to California, and if those lands should
be located along the rivers in the state, they might include
the principal mining sections of the territory. In that case
the income from this source alone might be so large that
1 Browne, Debales, 351.
EDUCATION AND TAXATION
205
all of it would not be needed solely for educational purposes. 1
The Convention had been called to provide a government for
men, and not merely to establish schools for children. The
school fund was not particularly needed just then because
was not probable that the number would be greatly increased
for some time. On the other hand the government they
were establishing would be an expensive one, and under
such circumstances it was not only fair but necessary to ap-
propriate all available funds for supporting it. The con-
gressional land grants should not be tied up by constitu-
tional enactment so that the state Legislature would be un-
able to use them for state purposes. It was not improbable
that California's first senators and representatives in Con-
gress would be able to obtain a grant of another five hundred
thousand acres of land solely for the support of schools in
the state. With this and with the one or two sections in
each township which Congress would appropriate for the
support of schools, and which the proviso did not touch,
the needs for educational purposes would be liberally met.3
If the proviso were struck out all the income from land
grants, except the one or two sections in each township,
would be tied up for school purposes. It had been proposed
by some that the miner, who was guaranteed in his rights
* Browne, Debates, 203.
2 Ibid., 205–206. Jones's speech.
3 Ibid., 204-205. Sherwood's speech. Later he proposed an amendment
so that a two-thirds vote of the Legislature would be necessary for appro-
priating this fund for any other than school purposes, hoping in this way to
gain over a part of the majority, but the scheme failed. Ibid., 348.
206
STATE GOVERNMENT IN CALIFORNIA
US
by the state government, should pay a poll tax. This would
be an uncertain source of revenue because the Convention
could not tell just what the Legislature would do. The mem-
bers of that body might impose a poll tax on miners as the
entire tax or they might collect rent from a portion of the
lands in the mining regions, or again they might demand a
certain percentage of the amount of gold extracted. In
any case, if the proviso were omitted, the entire income so
collected would have to be appropriated for school purposes.
The people living in the mines would therefore be con-
tributing nothing to the support of the government. In
other words, a large majority of the people within the state
would be contributing nothing to support the actual ex-
penses of providing a government for the state. The whole
expense of the civil government would be thrown upon the
landholders,' living in the southern part of the territory.
Connection Between Education and Taxation
It was doubtless this prediction made by Sherwood which
led to the introduction of a constitutional provision regulat-
ing the valuation and collection of taxes. On Tuesday,
September 25th, when the discussion began on reserving for
educational purposes the income from all lands which Con-
gress should grant, Sherwood intimated that such a consti-
tutional enactment would throw the burden of taxation on
the landowners living in the southern part of the state. On
Browne, Debates, 349 and 205. Sherwood's speech.
2 Ibid., 205. As already indicated, some of the members of the Con-
EDUCATION AND TAXATION
207
the following Thursday, the article on miscellaneous provi-
sions was before the Convention for consideration. To
"satisfy the opinions of southern members in regard to taxa-
tion,” Halleck offered the following which was to be inserted
between sections twelve and thirteen of that article: 1
“All lands liable to taxation in this state shall be taxed in
proportion to their value; and this value shall be appraised
by officers elected by the qualified electors of the district,
county or town in which the lands to be taxed are situated.” 2
The subject received little consideration at that time,
but on October 5th, the day after section two of article nine
had been adopted, the above section was again brought for-
ward. It was amended, discussed and finally adopted as
amended. The amended section is given below.
Thus we have Sherwood's speech on Tuesday. On
Wednesday the article on miscellaneous provisions as drawn
up by the Committee on the Constitution was brought before
the Convention for consideration. On Thursday, after the
first twelve sections of that article had been adopted, a mem-
ber of the Convention who had been active in reserving the
lands granted by Congress for educational purposes, brought
forward, at the suggestion of delegates from the southern
vention believed that the Legislature would locate the congressional land
grants in the mining region. Outside of the Sacramento valley, which
would be largely occupied with these grants, they probably thought the
northern part of California would never be valuable as an agricultural
center, and therefore that very little could ever be realized from a land tax
in that part of the state.
* Browne, Debates, 256.
2 Ibid., 256 and 364.
208
STATE GOVERNMENT IN CALIFORNIA
STATE Coved
part of the territory, a section placing in the control of each
community the election of men who were to value the prop-
erty and collect the taxes of each local unit. Then both
subjects-education and taxation-were dropped for a week.
On Thursday of the following week, October 4th, the section
on education was passed by an overwhelming majority. On
the morning of the next day the section on taxation was
brought forward, and after a discussion which occupied the
forenoon it was also adopted, but by how large a majority
we do not know.1
This suggests a close connection between section thirteen
of article eleven and section two of article nine; that the con-
stitutional enactment on taxation grew out of the constitu-
tional provision on education. It is true that a large ma-
jority of the southern delegates who requested the section
on taxation voted for the establishment of a permanent
educational fund, but this does not necessarily contradict
the supposition. It will be remembered that section two
of article nine was adopted after the first reading by a ma-
jority of eighteen to seventeen. At the end of the discussion
following the second reading it had passed by a majority
of twenty-six to nine. In the former case the names of the
voters are not given, so that we have no way of determining
whether the southern delegates supported or rejected the
section upon that occasion. It is possible, if not probable,
that a majority of delegates representing southern districts
had opposed the measure when the first vote was taken
and finally came to its support with an understanding that
1 Browne, Debates, 203-06; 239-57; 346-54; 364–76.
EDUCATION AND TAXATION
209
they would be protected from over-taxation by a constitu-
tional provision permitting them to elect their own ap-
praisers. The southern delegates must have realized that
the school fund section would pass whether they supported
it or not.1
Section on Taxation
The section on taxation, which became section thirteen
of article eleven, was amended as follows: “Taxation shall
be equal and uniform throughout the State. All property
in this State shall be taxed in proportion to its value, to
be ascertained as directed by law; but assessors and collec-
tors of town, county and State taxes, shall be elected by
the qualified electors of the district, county, or town, in
which the property taxed for State, county or town purposes
is situated.”
Opposition to this section arose on the ground (1) that
the subject of taxation should be left to the state Legislature,
and (2) that the local election of town and county assessors
and collectors would, if the measure were passed, offer an
almost irresistible temptation to commit fraud.
Lippitt thought the Legislature, representing the whole
people of the state, should be left perfectly free in the matter.
Everything pertaining to taxation, the object of the tax
and the rules to be adopted in collecting it, should be left
in the hands of the people's representatives elected to the
1 The final vote on the section shows a sufficient majority to have passed
it even if every southern delegate who supported, had voted against it.
210
STATE GOVERNMENT IN CALIFORNIA
VI
Legislature. Emergencies which the members of the Conven-
tion could not foresee, even the welfare, and the preserva- .
tion of the state, might depend on the power of taxation."
The second objection to the section was summed up for-
cibly by Botts. He said it would practically give every
man a right to fix his property at whatever rate he pleased.
In the southern part of the territory a whole county might
be in the hands of two or three landowners. Suppose the
inhabitants of the county were dependent on these men,
would it not give them an opportunity to exert an undue
influence in the election of appraisers and collectors of taxes?
If the interest of all sections of the state were alike, there
would be no difficulty or danger in the proposal, he thought,
but the delegates from the southern part of the territory
had already expressed an opinion that their interests were
directly opposed to those of the people living in the northern
part of the country. If these local interests did exist, they
should be restrained from doing injustice to others with
contrary interests. "If the northern portion of the country
is to be charged with a design to throw an undue burden of
taxation of the state upon the southern portion, why may
not, upon the very same foundation, the charge be thrown
back?” As a minority of the whole people these same
southern delegates had claimed permission to sit in judgment
on the amount of taxes they should pay. “Why may we
not aver that these gentlemen, in assessing their own lands,
may avoid their proportionate burden of taxation?” 2
1 Browne, Debates, 365.
2 Ibid., 370-73.
EDUCATION AND TAXATION
2II
In reply to these arguments it was urged by the other
party that common justice demanded the protection of the
weaker class by the stronger,--the Californians by the
Americans. Any proposition which could not in itself or
in its consequences work injury to the American settlers,
and which was of vital importance to the native Californians,
should receive the unanimous approval of the Convention.
For the first few years at least, taxation under the govern-
ment they were establishing would be necessarily burden-
some. Under such circumstances it would be very unwise
for the Convention to reject the section and place unlimited
power of taxation in the hands of the Legislature, thus mak-
ing it possible for that body to place an unjust proportion
of the expense of government upon the native Californians
who were the large landowners of the state. It would not
be republican to send officers from one section of the state
some two or three hundred miles into another for the purpose
of appraising property with which they were unacquainted.
Property should be assessed by men who were familiar with
it and by no others. The section before the House provided
for just such an assessment of all property; it provided
further that all property should be assessed according to its
value. If local assessors failed to comply with that provi-
sion, the Legislature could punish such officers by penal
enactment.2
As formerly stated, the amended section was finally
adopted. The last part of the proposal, as one of the mem-
1 Browne, Debates, 365-67, Tefft's speech.
2 Ibid., 369–70, Sherwood's speech.
212
STATE GOVERNMENT IN CALIFORNIA
bers pointed out, was doubtless an unusual provision. The
mere fact of inserting a clause in the constitution which per-
mitted each local unit to elect its own appraisers and collec-
tors of taxes hardly seems reasonable. Halleck declared
that the constitution of Alabama contained a similar provi-
sion, but this, as Botts pointed out, was a mistake. Its
insertion in the California constitution of 1849 seems to
have resulted from a chivalrous desire on the part of certain
American delegates to protect native Californians, who
owned most of the land in the southern part of the state,
from over-taxation. When a new constitution was drawn
up in 1879, this part of the section was omitted.
? Browne, Debates, 371, Botts's speech.
2 Ibid., 371.
CHAPTER X
THE CONVENTION'S WORK COMPLETED
A FEW other provisions must be considered briefly before
dismissing this part of the subject. Among these are sections
or proposed sections dealing with the following: lotteries,
dueling, property of married women, state debt, right of
suffrage, apportionment of representation, and the time at
which the state government should go into operation. The
consideration of these topics will be followed by an account
of a few miscellaneous provisions and by a brief characteriza-
tion of the completed constitution.
Lotteries
Should lotteries be permitted in the state? Section
twenty-seven of article four as submitted by the Committee
on the Constitution declared that “No lottery shall be au-
thorized by the state, nor shall the sale of lottery tickets be
allowed.” 1
Price wanted to omit the section. He was opposed to the
system of lotteries as a rule, but he believed them to be
necessary evils at that time. The Californians were essen-
tially a gambling people. Every public house had its monte
and faro tables, and "hundreds of men might be seen at
1 Browne, Debates, 90; Tuthill, History of California, 276.
213
214
STATE GOVERNMENT IN CALIFORNIA
these houses casting their money on the chances of the
game.” Lotteries could not be prevented, and it would be
better to legalize them than to have them operating secretly.
Three thousand dollars a year could be raised by granting
lottery privileges, and this would be quite an asset under
the embarrassing position in which the state would be placed
when the new government went into operation. To or-
ganize a perfect system of taxation at first would be very
difficult indeed. Shannon thought the subject should be
left entirely in the hands of the Legislature; therefore he
would oppose it.2 And Moore said "he had received no
instructions from his constituents directing him to prescribe
the particular amusements at which they should pass their
time; when they should go to bed or when they should get
up.” He came here to lay down the broad and general
principles of religious freedom. 3
Dimmick could not see how permitting lotteries had any-
thing to do with establishing “broad and general principles
of religious freedom," unless gambling was to be considered
religious freedom. It certainly took the largest possible
liberties known in any community where religion existed.
Such an argument was a new theory of morals which he
hoped would be omitted in the constitution of California.
He thought it might be expedient to license gambling in
certain parts of the country, but not lotteries. He sincerely
hoped that the new state would not adopt an immoral sys-
1 Browne, Debates, 90 and 91.
2 Ibid., 91.
3 Ibid., 92; Hittell, II, 764.
THE CONVENTION'S WORK COMPLETED
215
tem of taxation as a source of revenue. The question of
revenue he considered of trifling importance, compared with
the deep and lasting injury which institutions of that kind
would inflict upon the community. Hoppe, Halleck and
Dent also urged the Convention not to adopt, for the sake
of revenue, a measure which would encourage vice and
immorality throughout the state. These arguments were
effectual and the section prohibiting lotteries was adopted. 3
Dueling
The second section of the article on miscellaneous provi-
sions deprived of suffrage and of holding office all who should
take part in dueling. Dent said the section should be omitted
because no constitutional enactment could prevent men from
fighting duels, and the proposal before the House might de-
prive the state of the services of some good men.4 Shannon
wanted to omit it because it was a subject which should be
left to the Legislature. Steuart thought public opinion only
could prevent dueling, 6 and Hastings objected to it because
it was unconstitutional. If the section were included, said
the latter, a citizen of California might be tried and punished
in another state for fighting a duel there, but if he should
ever return to California he would be condemned again
1 Browne, Debates, 92.
2 Ibid., 91 and 92.
3 Ibid., 93.
4 Ibid., 246.
5 Ibid., 247-8.
6 Ibid., 249.
216
STATE GOVERNMENT IN CALIFORNIA
without trial by the state constitution. This would violate
the clause in the United States Constitution which provided
that no person, after acquittal, should be tried for the same
offence again.1
In opposition to these views, Sherwood declared the sec-
tion should be included because it would establish a high
standard of citizenship, and would take away a certain
license for street broils and other evils which those states
experienced that permitted dueling. Gwin said that the
practice had not been introduced into California, and its
evil effects in those states where it existed induced him to
make its introduction impossible if he could. Moore sar-
castically remarked that it would have one advantage-it
would at least afford men a pretext for not engaging in
duels. Semple said that the provision, so far as he indi-
vidually was concerned, was unconstitutional because his
constitution forbade it. However, he was in favor of re-
taining the proposal if the punishment were decreased. The
punishment to be inflicted according to the section as it
stood, he considered more severe than the death penalty.5
The section was adopted practically as reported by the
Committee.6
* Browne, Debates, 251-2.
2 Ibid., 246—7.
3 Ibid., 248.
4 Ibid., 250.
5 Ibid., 253.
6 Ibid., 255.
THE CONVENTION'S WORK COMPLETED
217
Separate Property for Married Women
No small degree of interest was manifested in the question
of separate property for married women, and “many amus-
ing arguments were advanced which throw a sidelight on
the social status of the country.” i The section provided
that all property, both real and personal, of the wife, owned
or claimed by her before marriage, and that acquired after-
wards by gift or otherwise, should remain her personal prop-
erty, and that laws should be passed more clearly defining
the rights of the wife "in relation as well to her separate
property as that held in common with her husband.” 2
Lippitt and Botts opposed this measure because they con-
sidered it a subject which should be left to the Legislature.3
At the time of marriage, argued the former, the husband is
supposed to come into possession of the wife's property,
according to the common law, and is thus made responsible
for her debts. Let us not experiment in this constitution,
but leave the subject for the Legislature. If the section
must be included, let us insert another freeing the husband
from all responsibility in so far as his wife's debts are con-
cerned. 5
On the other hand Norton denied the "relevancy of both
common and civil law," 6 and Dimmick pointed out that
1 Hunt, Genesis of California's First Constitution, 44.
2 Browne, Debates, 257.
3 Ibid., 257 and 259.
4 Ibid., 262; Hunt, Genesis of California's First Constitution, 44.
5 Browne, Debates, 262.
6 Ibid., 265-66; Hunt, Genesis of California's First Constitution, 45.
218
STATE GOVERNMENT IN CALIFORNIA
the proposal simply embodied in the constitution a provision
which was already recognized in the country. Tefft thought
that such a provision would be a safeguard, for the period
of speculation upon which California was entering would
make some such clause necessary to prevent the husband
from squandering the wife's property.2 Halleck was not
"wedded either to the common law or the civil law nor, as
yet, to a woman,” but he advised all bachelors to vote for
the section because it would be the means of inducing women
of wealth to come to California.3 Whether this was the
most effective argument to be offered or not, the section was
finally adopted as proposed, and it is believed by one au-
thority to be the first instance on record when "a section rec-
ognizing the wife's separate property was embodied in the
fundamental law of any state.” 5
Similar sections were those prohibiting the Legislature from
granting divorces and requiring it to enact a homestead law.
State Debt, Suffrage, and Apportionment of Representation
The question of permitting the Legislature to create a
state debt of more than $100,000 as proposed by the Com-
mittee on the Constitution, was changed without much op-
1 Browne, Debates, 262–63; Hunt, Genesis of California's First Constitution,
45.
2 Browne, Debates, 258; Hunt, Genesis of California's First Constitution,
45.
3 Browne, Debates, 259.
4 Ibid., 269.
Hunt, Genesis of California's First Constitution, 45.
6 See the Constitution of 1849, Article IV, section 26 and Article XI, sec-
tion 15.
THE CONVENTION'S WORK COMPLETED
219
position to $300,000 when the subject came before the Con-
vention. As finally adopted the article provided that in
case of war, insurrection, or an invasion of the state, or in
case the appropriation were to be used for some single object
or work, a larger debt might be contracted. In the latter
case, however, ways and means, exclusive of loans, must be
S
principal within twenty years. Furthermore, no such law
was to be effective until it had been approved by a majority
of the voters at a general election.Sherwood wanted to
make the amount $500,000 instead of $100,000, while Gwin
urged retaining the section as reported by the Committee
on the Constitution. The compromise of $300,000 was
adopted upon the motion of Lippitt.2
The right of suffrage was extended to every white male
citizen of the United States and every white male citizen of
Mexico who should choose to become a citizen of the United
States under the treaty of peace of 1848, of the age of twenty-
four years, and who should have been a resident of the state
six months next preceding the election, and thirty days in
the county or district in which he claimed his vote. A pro-
viso clause attached to the section permitted the Legislature
by a two-thirds vote to admit Indians or the descendants
of Indians to suffrage “in such special cases as such a pro-
portion of the legislative body may deem just and proper."
This was inserted as a concession to the native Californians.3
1 Browne, Debates, 166.
2 Ibid., 165-66.
3 Ibid., 305-08 and 341; Bancroft, History of California, 296–97.
X
220
STATE GOVERNMENT IN CALIFORNIA
The schedule which was attached to the constitution con-
tinued the existing laws in force until altered or repealed by
the Legislature, and transferred to the courts created by the
constitution on the admission of the state, all cases which
might be pending. In the fourteenth section, delegates
to the Senate and Assembly of the state Legislature were
apportioned as follows: to the Senate, Sacramento and San
Joaquin were assigned four members each; San Francisco,
two; Monterey, San José, and Sonoma, each one; San Diego
and Los Angeles were jointly to elect two; and Santa Bar-
bara and San Luis Obispo were to elect one together. In
the Assembly, Sacramento and San Joaquin were to be repre-
sented by nine members each; San Francisco, by five; San
José, three; Monterey, Santa Barbara and Los Angeles,
each by two; and the other districts, by one member each.2
When Shall the State Government go into Operati
overnm
At eleven o'clock on the evening of September 28th,
Norton, at the request of the Committee on the Constitution,
asked the Convention for instructions “as to whether the
government established by this constitution shall go into
operation from and after the day of its ratification by the
people, or not until official news is received of the admission
of California into the Union as a state.” In order to get
the opinion of the Convention on the subject as soon as pos-
1 Schedule at the end of the constitution, and Bancroft, History of Cali-
fornia, VI, 300-302.
2 Browne, Debates, 400.
THE CONVENTION'S WORK COMPLETED
221
sible, he offered a resolution that the government should go
into operation as soon as practicable after the ratification
night, however, and on the following morning, Friday, this
resolution was the first subject to come before the Conven-
tion.1
Botts rose immediately to attack an imaginary opposition.
That there was any government in California at that time,
he denied. He quoted at length from the proclamation of
Governor Riley, from the messages of the President of the
United States for July and December, 1848, and from the
letter of the Secretary of State, Buchanan, to the people of
California, to show the contradictions in the statements of
those officials as to the existing form of government in the
territory after the treaty of peace was signed by Mexico
and the United States.2 To show that Governor Riley had
no right to assume charge of a civil government, as he claimed
to do in his proclamation, Botts then cited the decision of
Chief Justice Marshall in the case of the American Insurance
Company vs. Canter, 1 Peters.3
He then took up the question of the legal effect of the con-
gressional legislation on the constitution which they were
Browne, Debates, 274.
2 According to Riley, who referred to the Secretary of War as his author-
ity, California had a civil government at this time; according to the messages
of the President and the Buchanan letter, a de facto military government
existed with "the presumed consent of the inhabitants.” See Browne, De-
bates, 275–78. The letter may be found in California Message and Corre-
spondence, 6-9.
Browne, Debates, 275–79.
222
STATE GOVERNMENT IN CALIFORNIA
forming. The decision of the Supreme Court just referred
to based its authority for asserting congressional control
over the inhabitants of acquired territory on that clause in
the Constitution which asserted that “Congress shall have
power to dispose of and make all needful rules and regula-
tions respecting the territory and other property belonging
to the United States.” Botts declared that this clause in
the United States Constitution was not to be construed in
any such way. The clause gave Congress control of the
territory, but not of the inhabitants in the territory,1 “This
right of absolute government, claimed for the Congress of
the United States and supported by the decision of the
Supreme Court, involves exactly the question between Great
Britain and the colonies.” 2
In conclusion he declared there was no existing govern-
ment in California; “that the right to institute one is in-
herent in the people; that by exercising this right, they can
1 Browne, Debates, 281.
2 Ibid., 283. Thorpe, Constitutional History of the American People, II,
338–47. Thorpe's treatment of this is misleading. He paraphrases Botts's
speech in full and gives it as the opinion of the leaders in California in 1849
(p. 339). He then appears to show that a large party in the Convention
opposed putting the government into operation immediately after the rati-
fication of the constitution by declaring that the resolution was passed by
a vote of twenty-three to seventeen (p. 347.) As a matter of fact, Norton's
resolution was carried by a unanimous vote. (Browne, Debates, 288.) The
indications are that Botts only annoyed members of the Convention by his
long speech. (See Halleck's remarks, Browne, Debates, 284.) Jones ex-
pressed a mild doubt as to the right of the people of California to put the
state government into operation without the consent of Congress (p. 284)
and Lippitt thought the question should be left open a while for reflection.
The other members appear to have been decided from the beginning.
THE CONVENTION'S WORK COMPLETED
223
alone prepare themselves for admission” into the Union;
that Congress has no authority over them until they become
members of the Union; and that from the moment of its
ratification, the constitution which they were forming be-
came the supreme law of the land, and the government
created by it was the only one to be recognized in California."
Halleck thought that the Convention had enough to do
“without attempting to reconcile conflicting decisions of the
Supreme Court.” He thought that the state government
should go into operation as soon as the constitution was
ratified by the people.2 McCarver, Snyder, Hastings and
McDougal likewise thought so.3 A motion was then made
to lay the question on the table in order to give time for
reflection, and it was rejected. Lippitt then moved a recess
until three o'clock in the afternoon. This was carried. At
three o'clock when the Convention came together, a vote
was taken on Norton's resolution and it was adopted by a
unanimous vote. 4
Miscellaneous Provisions
A committee was appointed by the Convention to receive
and consider proposals and designs for a seal for the state.
On Saturday, September 29th, Mr. Price, chairman of the
committee, reported that but one design had been sub-
1 Browne, Debates, 284.
2 Ibid.
3 Ibid., 284-85, 286, 288.
4 Ibid., 288.
224
STATE GOVERNMENT IN CALIFORNIA
mitted. This was offered by Caleb Lyons, though Rob-
ert S. Garnett has been given credit by some authorities for
designing it. In the foreground stands Minerva having
sprung full grown from the brain of Jupiter, while at her
feet crouches a grizzly bear feeding upon bunches of grapes.
Beside the bear stands a miner with rocker and bowl. Ships
are seen on the waters of the Sacramento river, and the
background is formed by the snow-clad peaks of the Sierra
Nevada mountains. At the top of the design is the Greek
motto “Eureka" surmounted by thirty-one stars, the last
representing the new state of California. Wozencraft of-
fered a resolution to strike out the miner and the bear, and
substitute therefor bags of gold and bales of merchandise;
and Vallejo, who retained unpleasant memories of the
bearflag movement, proposed to eliminate the bear only,
or at least to represent the animal as secured by a lasso
in the hands of a vaquero.4 But both proposals were re-
jected.
Some discussion had taken place over the compensation
which delegates should receive, but the Convention finally
fixed on a rate of $16 a day and $16 for every mile traveled
as a fair sum for each member. A liberal allowance was
1 Browne, Debates, 302; Taylor, Eldorado, I, 154-55, says that there were
eight or ten designs submitted.
2 See Hittell, History of California, II, 773; Hunt, Genesis of California's
First Constitution, 51; Taylor, Eldorado, I, 154-55.
3 Browne, Debates, 304; Hittell, History of California, II, 773; Hunt,
Genesis, etc., 51; Taylor, Eldorado, I, 154-55.
4 Browne, Debates, 322 and 323; Hittell, History of California, 773.
5 Browne, Debates, 289-92.
THE CONVENTION'S WORK COMPLETED
225
OW
also provided for the various officers. The secretary and
interpreter were voted $28 per day each; the assistant secre-
tary and the engraving clerk, each $23; the sergeant-at-arms,
$22; the interpreter's clerk, $21; the chaplain and door-
keeper, each $16; and the page, $4.1 The proposition of
J. Ross Browne "to print and publish, for the use of the
state, one thousand copies in English and two hundred and
fifty copies in Spanish, of a stenographic report of the pro-
ceedings of the Convention for $10,000,” was accepted.2 On
the last day of the session the Convention adopted, by a
unanimous vote, a resolution offered by Sherwood granting
to General Riley an annual salary of $10,000 for his services
during his term as chief executive of California. And Cap-
tain Halleck, secretary of state, was voted a salary of $6000
per year.3
Various plans were suggested and discussed for meeting
the expenses of the Convention,4 and for providing funds to
start the new state government which was being organized. 5
The former was paid by General Riley from the “civil
fund,"—a fund raised from the collection of import duties
during the interregnum. For meeting the latter demand,
an ordinance was passed by the Convention just before its
1 Browne, Debates, 107; 363-364.
2 Ibid., 163–64; Hunt, Genesis of California's First Constitution, 52–53;
Taylor, Eldorado, I, 155.
3 Browne, Debates, 476.
4 Ibid., 94-108 and 289.
5 Taylor, Eldorado, I, 155–56.
6 Bancroft, History of California, VI, 303. For the history of the fund see
ibid., 300, note.
226
STATE GOVERNMENT IN CALIFORNIA
adjournment which was to be submitted to Congress. It
provided (1) that one section in every quarter township of
the public lands should be granted to the state for the use
of schools; (2) that seventy-two sections of the unappro-
priated land within the state should be granted to the state
for the establishment and support of a university; (3) that
four sections, selected under the directions of the Legislature,
should be granted for the use of the state in establishing a
seat of government and erecting buildings; (4) that five hun-
dred thousand acres of public lands, in addition to the same
amount granted to new states by the act of 1841, should
be granted for the purpose of defraying the expenses of the
state government, and five per cent of the proceeds of the
sale of public lands, after deducting expenses, should be
given for the encouragement of learning; and (5) that all salt
springs, with the land adjoining, should be granted to the
use of the state. 1
Certified copies of the constitution, in English and in
Spanish, were to be presented to the chief executive of the
territory, and eight thousand copies in English and two
thousand in Spanish were ordered to be printed for general
circulation.? A unanimous vote of thanks was extended “to
the Honorable Robert Semple, for the faithful and impartial
manner in which he has discharged the arduous and re-
sponsible duties of the chair," 3 and the “kindness and
courtesy which marked the intercourse with General Riley
1 Taylor, Eldorado, I, 156; Browne, Debates, 467.
2 Browne, Debates, 462.
, 156; Bro
3 Ibid., 473.
Ibid. Debates
THE CONVENTION'S WORK COMPLETED
227
1
were likewise recognized.” i A committee of three was
appointed to transmit a copy of the constitution to General
Riley with instructions to forward the same to the President
of the United States as soon as possible. The sum of $500
was voted Hamilton for engrossing the constitution on
parchment. A rhetorical “address to the people of Cali-
fornia” was unanimously adopted upon its submission by
Steuart, chairman of the committee appointed to draw it
up. It dealt in a general way with the nature and scope
of the constitution which had just been completed, the
heterogeneous composition of the Convention's personnel,
the spirit which had prevailed throughout the deliberations
and the motives which had actuated members in the settle-
ment of some of the more important questions, the rapid
growth and complex nature of California's population, and
closed with an urgent appeal to the voters of the state, re-
questing them to affix their approval to the Convention's
work by voting in favor of adopting the constitution at the
election to be held on Tuesday, November 13th, following. 4
The Convention completed its work in the afternoon of
Saturday, October 13th. “At a few minutes past three,
preliminary matters being disposed of, the delegates com-
menced the signing. Scarcely had the first man touched his
pen to the paper when the loud booming of cannon resounded
1 Browne, Debates, 474; Hunt, Genesis of California's First Constitution,
53.
2 Browne, Debates, 473.
3 Ibid., 475; Taylor, Eldorado, I, 163.
4 Browne, Debates, 474-75.
228
STATE GOVERNMENT IN CALIFORNIA
through the hall. At the same moment the flags of the dif-
ferent Head-Quarters, and on board the ships in the port,
were slowly unfurled, and run up. As the firing of the na-
tional salute of thirty-one guns proceeded, ... and the
signing of the constitution went on, ... the captain of
an English bark then in port paid a most beautiful and be-
fitting compliment to the occasion and the country, by hoist-
ing at his main the American flag above those of every other
nation, making, at the moment that the thirty-first gun was
fired, a line of colors from the main truck to the vessel's
deck. And when, at last, that thirty-first gun came—the
first gun for California !-three as hearty and as patriotic
cheers as ever broke from human lips, were given by the
Convention for the new state.” 1
The document signed at this time remained the funda-
mental law of California for thirty years. On the whole
it was a constitution of which its framers might well be
proud. Within its articles were embodied those provisions
for personal freedom and individual protection for which
the English race has contended since the meeting of king
and nobles at Runnymede, and the sections comprising the
completed document were based on models embodying fund-
amental laws and principles whose soundness had been
thoroughly tested. A unique situation had called the mem-
bers of the Convention together, and they met it, usually,
in an admirable manner. Criticisms were freely exchanged
1 This account is quoted by Hunt, Genesis of California's First Constitu-
tion, 53-54 and taken by him from Gilbert's article in the Alta Californian
for November 22, 1849.
THE CONVENTION'S WORK COMPLETED
229
on occasion, and at one time the Convention had to intervene
in order to prevent Tefft and Jones from participating in an
affair of honor, but on the whole the meeting was a har-
monious one.
Representing all sections of the Union, they had to a
wonderful extent laid aside sectional prejudices and given
the new state a thoroughly liberal constitution. The clauses
protecting the property of wives, providing for the election
of a judiciary, and prohibiting slavery, at the same time
refusing to provide against the immigration of free negroes,
pledged the state to a progressive policy, and "gave the
most magnificent illustration of the wonderful capacity of
this people for self-government.” 1 The sources of such a
document will be interesting.
1 Von Holst, Constitutional History of the United States, III, 463. See fur-
ther Colton, Three Years in California; Bancroft, History of California, VI,
302-303; Hunt, Genesis of California's First Constitution, 56-57; Taylor,
Eldorado, I, 167–168.
CHAPTER XI
SOURCES OF THE CONSTITUTION
On the third day of the session, Wednesday, September
5th, McCarver offered a resolution that the Convention re-
solve itself into a committee of the whole and take the
constitution of Iowa into consideration as a basis for that
of California. He was immediately followed by Gwin, who
explained that he had exerted himself to have a printing-
press there, but found it impracticable. After consulting
with various members of the Convention, he had done the
next best thing; he had provided copies of the constitution
of Iowa so that each member might have one and write in
the margin any amendments which should occur to him. He
had selected that particular constitution because it was one
of the latest and shortest.1
Sherwood thought there would be enough to do in dis-
cussing propositions consolidated by a committee without
bringing the whole of any single constitution before the
entire Convention. Furthermore he opposed following any
single state constitution; "It was desirable to have the
cream of the whole the best material of the constitutions
of the thirty states.” 2 This was also Gilbert's opinion. He
opposed adopting any one constitution as a basis unless it
1 Browne, Debates, 24.
2 Ibid., 25.
230
SOURCES OF THE CONSTITUTION
231
came through the hands of the Committee. The best thing
to do would be to let the Committee "take all the constitu-
tions and report what they deemed best.” 1
It was a mere matter of convenience, Gwin explained.
“He wanted nothing better than to form a constitution
from the thirty constitutions of the Union." He had lived
in three of the old states and had carefully examined all
the state constitutions. He preferred the constitution of
No vote seems to have been taken on McCarver's resolu-
tion, but doubtless the Committee on the Constitution made
use of the various copies of the Iowa constitution prepared
by Gwin. That they also used other constitutions appears
equally true. Certainly they did not pretend to originate
one. The document completed at Monterey was practically
a compilation of articles and sections from other state con-
stitutions. The suggestions of Sherwood and Gilbert appear
to have been adopted, but the labors of Gwin were not exer-
cised in vain as we shall see.
The Convention was admirably suited for compiling just
such a document as it finally submitted. Thirty-eight of
the forty-eight delegates had been citizens of twenty-one
different states in the Union. Of the total number fourteen
were lawyers who were natives of eleven of the twenty-one
states represented. Of the twenty members of the Com-
mittee on the Constitution five were lawyers, two of whom
1 Brown, Debates, 25.
2 Ibid., 27 and 28.
3 See table in Browne, Debates, 478-479.
232
STATE GOVERNMENT IN CALIFORNIA
came from New York, and one each from Missouri, Wiscon-
sin and Vermont. Gwin had taken part in the convention
that drew up the constitution of Iowa in 1846,1 and came to
Monterey supplied with printed copies of that document
which, it has been said, he hoped to have the Convention
adopt, after introducing slight changes, as the constitution
for the new state of California.
While the Convention did not adopt the constitution of
Iowa, the one completed resembled that document more
than any other. There are, however, traces of half a dozen
different state constitutions in the California constitution
of 1849, and references made in the debates indicate that
the Convention had access to many more. In fact such
references show that the constitutions of the thirty states
of the Union were doubtless available and that they were
probably used. Both Ord and Tefft, during the first week of
the Convention, while the bill of rights was under discussion,
imply that they had used them.3 The former says distinctly
that he “had looked over the whole thirty constitutions." 4
On September 8th Shannon proposed two additional sec-
tions to be placed at the beginning of the bill of rights. In
connection with these, he said that he “had carefully ex-
amined the constitutions of the different states" before
making his selection. And during the third week of the
CON
Hunt, Genesis of California's First Constitution, 39.
2 Browne, Debates, 24; Royce, California, 263; Bancroft, History of Cali-
fornia, VI, 289; Crosby, Events in California, ms., 38-40.
3 Browne, Debates, 36 and 40; see ibid., 25, 27.
4 Ibid.
SOURCES OF THE CONSTITUTION
233
Convention, September 25th, Halleck states clearly that
the Committee appointed to draw up the constitution was
doing its work “with the constitutions of every state in the
Union before it.” 1
There can be little doubt, therefore, that the Convention
that drew up the constitution of California had available for
making their compilation the constitutions of practically
all the states in the Union. To determine, in a general way,
which of these exercised influence in the debates, and which
left a permanent impress on the document completed in
1849, will be the aim of this chapter.
Constitutions Influencing Debates
Y
A
The Committee on the Constitution was appointed on
Thursday afternoon, September 6th. On the following
day they submitted a declaration of rights consisting of
sixteen sections. The first nine of these were copied almost
verbatim from the bill of rights in the New York constitution
of 1846, and the last seven were selected at random from
the constitution of Iowa for the same year.2 Norton, the
chairman, stated that the Committee did not intend to have
the sixteen sections reported comprise a complete bill of
rights. Obviously the limited time the House had given the
Committee in which to prepare this part of the constitution,
1 Browne, Debates, 221. References were made frequently during the de-
bates to various state constitutions. See Browne, Debates, 77, 110, 165,
248, 250, 235, 371, 380, 384, 292, 70, 132, 37, 56, and 69.
2 Browne, Debates, 30-31. Compare Poore, Charters and Constitutions, II,
1351-1352 and Parker, Iowa as it is, 207–211.
234
STATE GOVERNMENT IN CALIFORNIA
if the first article were to be a desirable one, would necessi-
tate careful revision and a few additions by members of
the Convention.1 Shannon had already suggested the first
two sections from Iowa's bill of rights as sections one and
two for the first article of California's constitution, and
after Ord had failed in his attempt to have a section from
the Virginia constitution substituted for one of these, they
were accepted by the Convention. The first of the sixteen
sections proposed by the Committee on the disfranchise-
ment of "members of the state,” was stricken out. One of
the arguments which Gwin used against it was the fact that
such a section had not been inserted in the constitutions of
Louisiana, Arkansas, Missouri, or Florida—states whose
populations contained foreign elements at the time of their
admission similar to the native population of California in
1849.3 Botts then tried to have the sixteenth section of the
Virginia bill of rights inserted in the California constitution,
but it was rejected.4 Jones was more successful in his at-
tempt to substitute the twentieth section of Iowa's bill of
rights for the ninth proposed by the Committee, and the
fourth amendment of the Constitution of the United States
was inserted as an additional clause. A vain attempt was
1 Browne, Debates, 34.
2 Ibid., 33 and 34. The section proposed by Ord was taken from the Vir-
ginia bill of rights. Compare Poore, Charters and Constitutions, II, 1908.
3 Ibid., 37. The meaning is that the foreign element like the natives of
California were unfamiliar with the United States laws.
4 Ibid., 38–39. Cf. Poore, Charters and Constitutions, II, 1908.
5 Ibid., 42. Cf. Parker, Iowa as it is, 210.
6 Ibid., 47-48. Cf. U. S. Constitution, 4th amendment.
SOURCES OF THE CONSTITUTION
235
0
made to insert as an addition, the last section from the bill
of rights in the constitution of Arkansas, and a similar fate
met the proposal to add the sixth amendment from the
United States Constitution.2
The point we are considering here, however, does not con-
cern the omissions or insertions of sections from other con-
stitutions, but is rather to determine which of those docu-
ments were clearly used by the Convention in drawing up the
constitution of 1849. It will be seen from the above that
the bill of rights was compiled from the constitutions of
the United States and from the states of New York and
Iowa; and that attempts were made to insert, either as
additions or as substitutes, sections from the state constitu-
tions of Virginia and Arkansas. And as a reason for reject-
ing one section, the constitutions of Louisiana, Arkansas,
Missouri,; and Florida were cited. Or briefly, it will be seen
that eight constitutions were used in preparing the Bill of
Rights.
If we examine briefly the discussions over various sections
of the articles on the departments of government, we shall
find there also that the Convention consulted several state
constitutions before completing its work. While the very
first section of article four on the legislative department was
before the committee of the whole, Gwin referred to the
provisions made for biennial sessions of the legislatures of
1 Browne, Debates, 50.
2 Ibid., 293-94.
3 There can be no doubt that the constitution of Missouri was accessible.
See Browne, Debates, 331, McCarver's speech.
236
STATE GOVERNMENT IN CALIFORNIA
1
Mississippi, Arkansas, Tennessee, Illinois, Missouri, Iowa,
Wisconsin, and Michigan as an argument in favor of biennial
sessions for the California Legislature. Shannon referred to
the constitution of New York when section five was under
consideration,” and Jones put forward the constitution of
Iowa as a desirable model to follow in determining the
number of days a bill might be retained by the governor
before returning it to the Legislature.3 Semple at the same
time had the constitution of Illinois before him and quoted
from it a few minutes later.4 Gwin read the eighteenth
section of the constitution of Michigan, and it was embodied
in the California constitution, minus the last clause, as the
twenty-fourth section of article four.5 References were
made to the constitutions of Louisiana and Wisconsin while
1 Browne, Debates, 77. What Gwin means evidently is that these new
states had profited by the experience of the older states that had adopted
annual sessions during their early statehood, and suffered from excessive
legislation as a result.
The constitution of the republic of Texas had provided for annual ses-
sions, but changed to biennial when it came into the Union in 1845. (Poore,
Charters and Constitutions, II, 1754, 1769). Mississippi under her first con-
stitution likewise held annual, but in the constitution of 1832 changed to
biennial sessions (ibid., 1059, 1071.) The Michigan constitution of 1835
and that of Wisconsin for 1848 both provided for annual sessions (ibid., I,
986; II, 2031). The first two sessions of the Missouri and Tennessee legis-
latures (1820–21 and 1796–97) were annual, after which biennial sessions
were held (ibid., II, 1108, 1668).
2 Ibid., 84.
3 Ibid., 87.
4 Ibid., 88.
5 Ibid., 90.
SOURCES OF THE CONSTITUTION
237
Article five on the executive department produced little
discussion and few changes were made, the recommenda-
tions of the Committee being accepted practically as sub-
mitted. There was no lack of discussion over the sixth
article, on the judiciary, but few specific references were
made to state constitutions. It was in connection with the
consideration of this article, however, that Halleck made
the statement to which reference has been made already,
that the “Committee, with the constitutions of every state
in the Union before it, has been at work three days on this
report.” 1
Two more references remain to be noticed. While the
section on taxation was under consideration, Botts consulted
the constitution of Alabama to prove that Halleck had mis-
quoted a section from that document.2 And very much
earlier, on the second Wednesday of the session, while the
subject of apportionment was before the House, Jones speaks
of having consulted briefly "within the past few minutes"
the constitutions of Maine, Pennsylvania, Delaware, Ken-
tucky, Tennessee, Indiana, Louisiana, Illinois, Alabama,
Missouri, Michigan and Arkansas.3 The constitution of
South Carolina was consulted at the same time by Shannon.4
To summarize, then: the constitutions of the United
States and of twenty individual states were cited during
the proceedings of the Convention, and reference to them
I Browne, Debates, 221.
2 Ibid., 371.
3 Ibid., 56.
4 Ibid.
238
STATE GOVERNMENT IN CALIFORNIA
was made, in the majority of cases, in such a way as to leave
little doubt of their accessibility. No attempt has been made
here to give the number of different references to each con-
stitution. The Committee, in performing its part of the
work, evidently consulted nearly if not all of them, pre-
sumably many times, but drew their material from only a
few. On the whole comparatively few changes or additions
were made in the Committee's recommendations. It was
in debating these, however, that reference to the individual
state constitutions occurred. The constitutions of all the
thirty states were not named individually in the discussion,
but a general reference to them was made on four different
occasions. This can leave no doubt as to their influence.
It remains to be seen how much the completed document of
1849 resembled the constitutions of other states.
Constitutions Compared
The preamble of California's constitution is taken from
the New York constitution of 1846.3 The general arrange-
ment of articles is different from that of any of the state
constitutions, but resembles that of Iowa more than any
other. The third and fourth articles of the California con-
1 Doubtless the constitutions of Iowa and New York were cited more
frequently than others. Reference was made to the Louisiana document,
however, on at least six different occasions. See Browne, Debates, 248, 250,
371, 380, 384, and 385.
2 Browne, Debates, 36, 40, 72, 221
3 For a comparison of the constitutions see Poore, Charters and Constitui-
tions.
SOURCES OF THE CONSTITUTION
239
stitution are combined under the third article of the Iowa
document. Both constitutions contain twelve articles, but
the latter includes the schedule as a part of the constitu-
tion, whereas the former does not. The California document
gives an article to the boundary, but Iowa includes the
boundary with its preamble. Corporations and banks are
treated separately in the latter, but in the former are in-
cluded among the sections in the legislative department.
With these exceptions the articles in the constitution of
California, their arrangement, and the headings of each are
similar to the constitution of Iowa.1
Also in content the two constitutions are very similar.
Article one of California's Bill of Rights has fourteen of its
twenty-one sections taken almost verbatim from the bill
of rights of Iowa's constitution. Section four of article two
was taken from article two, section three of the constitution
of New York, but the other five sections on the suffrage
undoubtedly came from the second article of Iowa's consti-
tution. Articles three and four of the constitution of 1849
on the distribution of powers and the legislative department
are combined in the constitution of Iowa, as already indi-
cated. The California document, however, has twenty-five
of the thirty-eight sections included in the two articles taken
from article three of the constitution of Iowa. Of the re-
maining sections, the twenty-fourth was copied from article
five, section eighteen of the constitution of Michigan, 1835,2
1 The references made to Iowa and New York will be to the constitutions
of those states drawn up in 1846 unless otherwise stated.
2 Browne, Debates, 90.
240
STATE GOVERNMENT IN CALIFORNIA
and sections thirty-one to thirty-seven inclusive were taken
doubtless from the constitution of New York. Article five,
on the executive department, contains twenty-one sections,
of which thirteen came from article four of the constitution
of Iowa.
The article on the judiciary is more difficult to trace.
The sections were selected apparently from different sources.
The first two doubtless came from sections one and two of
the article on the judicial department in the constitution
of Iowa. Section five may have been taken from the sixth
section of the fourth article of the constitution of Texas,
1845; and the seventeenth section evidently comes from the
constitution of Tennessee (1834), article four, section nine.
The seventh article is taken clearly from article nine of the
constitution of Michigan, 1835, the second section of the
latter being omitted when copied into the California consti-
tution. The article on the state debt is just like article
seven of the constitution of Iowa, except that the maximum
amount of the debt to be incurred is $100,000 in Iowa and
$300,000 in California. Again, articles nine in the constitu-
tions of these two states are similar, except for the omission
of one section in the organic law of California which the
Iowa document contains. The constitution of New York,
article thirteen, was taken as a guide by the Convention for
article ten of the constitution of 1849.
In the miscellaneous provisions, article eleven, there is
difficulty again in discovering sources. Some of the sections
may be original, but the sources of more than half of them
are tolerably clear. The second section is undoubtedly
SOURCES OF THE CONSTITUTION
241
copied from article one hundred and thirty, title six, of the
constitution of Louisiana, 1845.1 Sections thirteen, seven-
teen, eighteen, nineteen and twenty-one were probably taken
from the same source.2 Section three is like article twelve
of New York. The fifth, sixth and ninth sections are prac-
tically the same in content as section nine, article thirteen
of the constitution of Wisconsin. Section eleven may pos-
sibly be taken from the seventh article of section ten of the
Mississippi constitution of 1832, or it may come from Wis-
consin, article four, section twenty-seven.
Statements of Historians
Frost, History of California, published in 1857, says that
the constitution of 1849 "combines the best features of the
constitutions of the states east of the Rocky mountains,
and is in most respects similar to that of the state of New
York." 3
In his History of California Tuthill declares that Iowa's
was the only state constitution accessible at the beginning,
but "as the session advanced, the constitution of New York
was oftener consulted, and when the Convention finished
its labors their perfected instrument resembled more that
of the Empire State than any other." 4 Royce says that in
general character the constitution adopted followed that
1 Browne, Debates, 248.
2 Compare these with the Louisiana constitution, title six, articles 127, 91,
92, 98, and 132.
Frost, History of California, 125.
4 Tuthill, History of California, 266-67.
242
STATE GOVERNMENT ÎN CALIFORNIA
of New York state.1 Bancroft's statement is more general,
The members of the Convention, he says, chose their material
from the constitutions of the several states with the workings
of which they were familiar.2 Willey declares that the con-
but implies thať those of “Iowa and New York” were more
frequently used than the others. That the constitutions of
Michigan, Virginia, Louisiana, and Mississippi left their
influence on the California constitution Dr. Hunt admits,
but says “the two great models” were the “constitutions
of New York and Iowa." 4 In this he is right, but the order,
as we have seen, should be Iowa and New York.
There are, excluding the article on the boundary, one
hundred and thirty-six sections in the California constitu-
tion. Of these about seventy are taken from the constitution
of Iowa and about twenty from that of New York. The
other state constitutions, whose influence is discernible in
the finished product of the Monterey Convention, are those
of Louisiana, Wisconsin, Michigan, Texas, and Mississippi.
To summarize briefly: the constitutions of all the states in
the Union were doubtless accessible to members of the Con-
1 Royce, History of California, 270.
2 Bancroft, History of California, VI, 290.
3 Willey, Transition Period, 94.
4 Hunt, Genesis of California's First Constitution, 56.
$ The exact numbers as I have counted them are sixty-six and nineteen
respectively. I am inclined to think, however, that there are more. I make
no pretence of having traced the exact source of every section in the consti-
tution, but I have traced the large majority of them.
SOURCES OF THE CONSTITUTION
243
vention; all of them, together with the United States Con-
stitution, exercised influence in the debates; and the in-
fluence of eight, besides the Constitution of the United States,
is discernible in the California constitution adopted at Mon-
terey in 1849.
PART III
THE ORGANIZATION OF STATE GOVERNMENT
CHAPTER XII
ELECTION AND ORGANIZATION OF THE FIRST LEGISLATURE
In anticipation of an early rainy season the Convention
had provided for submitting the constitution for ratification
as soon as possible after their adjournment. Copies were
printed in San Francisco and scattered throughout the coun-
try, together with an address to the people signed by the
delegates and a proclamation from the Governor. The elec-
tion of members for the first Legislature was to be held on
the same day that voters expressed their acceptance or re-
jection of the constitution–Tuesday, November 13th.2
The Governor's proclamation directed the prefects of the
several districts, or the sub-prefects or senior judges of first
instance in case the former office should be vacant, to see
that the elections were held in their respective districts on
the day specified. The rules governing elections were to
be the same as those given in the Governor's proclamation
of June 3rd, except that the prefect in charge (or his substi-
tute) should have power to designate any additional num-
ber of places for opening the polls. A regular poll list was
to be kept by the judges and inspectors in each voting pre-
cinct. It was to be the duty of such judges and inspectors
to receive the votes of the electors qualified to vote at such
elections. Each voter was to express his opinion by deposit-
1 See section six of the schedule attached to the constitution for 1849.
2 Bancroft, History of California, VI, 303.
247
248
STATE GOVERNMENT IN CALIFORNIA
ing a ticket in the ballot-box on which was to be written or
printed “For the constitution” or “Against the constitu-
tion," or some similar expression which would convey his
intention. At the close of the election the inspectors were
to count the votes immediately, and make duplicate returns
to the presiding officer of the district, who was to transmit
the same, "by the most safe and rapid conveyance, to the
Secretary of State.” Upon receipt of the returns, or if the
returns were not received earlier, on the roth of December,
the Secretary of State, acting with one of the judges of the
superior court, the prefect, judge of first instance, and an
alcalde of the Monterey district as a board of canvassers,
or any three of the officers named, were to compare the
votes given at the election in the presence of all who should
care to attend, and publish an abstract of the same in one
or more newspapers. If the constitution were ratified, the
Governor was to make the fact known by a proclamation to
that effect, and was to forward a copy of the same to the
President of the United States.
At the same election votes were to be cast for a governor,
lieutenant governor, members of the state Legislature, and
two members of Congress. The Legislature, providing the
constitution were adopted, was to meet at the capital (San
José) on the 15th of December. A president pro tempore
was to be elected by the Senate until the lieutenant governor
was installed in office. Two senators to Congress were to
be chosen by the Legislature within four days after its or-
ganization.
See schedule appended to constitution.
1
249
Electioneering
Oino
There seems to have been no doubt that the constitution
would be ratified, and political aspirants for office began
active canvassing as soon as the Convention adjourned. The
large majority of candidates ran independently and little
attempt was made to draw party lines. On October 25th
the Democrats held a mass meeting in San Francisco over
which John W. Geary presided. So large was the attendance
that the people had to adjourn from a hall to the public
square. In their resolutions they rejected “partyism for
the sake of party merely," but declared themselves in favor
“of principles, which have for their object the preservation
of our glorious constitution, ... and ever looks to an
honorable extension of the area of freedom.” They declared
further that they could not consistently support any one
NA
war as unjust and unnecessary or who "would have refused
to vote supplies for our gallant little army." while that strug-
gle was in progress. The "union of Californians for the
sake of California,” they declared to be well, but "a union
of Californians for the sake of California and the Union”
was better. “We are for our country first, our country last,
and our country all the time; not a section, not a circum-
scribed locality, not a limited interest, but the whole coun-
try.” A resolution passed at an adjourned meeting held on
October 27th declared in favor of electing eleven delegates
by party vote whose business it should be to select a ticket
1 Davis, Political Conventions, 5.
250
STATE GOVERNMENT IN CALIFORNIA
ASS
to be recommended to the Democratic party. The candi-
dates were to be "pledged to vote for no man for United
States senator unless he would uphold exemption of house-
hold for debt, and would vote for the formation of a railroad
through our own territory in preference to any other.” 1
No candidates appear to have been nominated by the
party, however, and its importance seems to be due solely
to the fact that it was the first political mass meeting held in
California.
A non-partisan meeting was held at Monterey five days
later at which General Riley was nominated for governor,
but he declined to run and Sherwood was named in his place.
Lippitt was nominated for lieutenant governor, and Gilbert
and Ord for Congress. Among the other candidates for
governor, all of whom ran independently, were Peter H.
Burnett, John A. Sutter, W. M. Steuart, and John W. Geary;
for lieutenant governor, John McDougal, Richard Roman,
John A. Frisbie, A. M. Winn, and Pablo de la Guerra. Some
of these had been indorsed or recommended by public meet-
ings in different parts of the state, but with the exception
of the effort at San Francisco no attempt was "made to
organize a party, or fight the battle upon the old issue of
Democrat and Whig.” 2 The candidates seem to have done
their canvassing independently, and to have confined their
efforts largely to the mining regions. With their bundles
of tickets and their copies of the constitution they moved
from mining camp to mining camp soliciting votes, and occa-
1 Davis, Political Conventions, 2-4.
2 Ibid., 5.
THE FIRST LEGISLATURE
251
sionally assembled in a common tent in the evening to smoke
their cigars and talk over the prospects of election."
The Election
The rainy season during the winter of 1849-50 began a
month earlier than usual and was exceptionally severe.
The morning of November 13th was a dismal one, and the
outlook for a satisfactory vote was most discouraging. To
expect much enthusiasm under such conditions was out of
the question. The mud and swollen streams made journey-
ing, for any great distance at least, very trying indeed. The
election was held as planned, however, and considering the
circumstances a fairly good vote was polled.
An eye-witness of the election in one of the mining towns
has left a description of some incidents of the day which
illustrate the Argonaut's love of chance even in an election.
"The choosing of candidates from lists, nearly all of
whom were entirely unknown, was very amusing. Names,
in many instances, were made to stand for principles; ac-
cordingly a Mr. Fair got many votes. One of the candidates,
who had been on the river a few days previous wearing a
high-crowned silk hat, with narrow brim, lost about twenty
votes on that account. Some went no further than to vote
for those whom they actually knew. One who took the
opposite extreme, justified himself in this wise: “When I
left home,' said he, 'I was determined to go it blind. I went
1 See the description of a knot of politicians in Taylor, Eldorado, 1, 237.
2 Davis, Political Conventions, 5; Taylor, Eldorado, II, 6.
252
STATE GOVERNMENT IN CALIFORNIA
it blind in coming to California, and I'm not going to stop
now. I voted for the constitution and I've never seen the
constitution. I voted for all the candidates and I don't
know a damned one of them.” 1
The native Californians and the resident Mexicans who
were entitled to vote, seem to have taken a special interest
in casting their first ballot. It made little difference to them
what the ticket was, their self-esteem seems to have been
flattered and their self-importance increased as a result.2
There was a total vote on the constitution of 12,872 of
which number 12,061 were in favor of and 811 against it. 3
The votes by districts were as follows: 4
.
Against Constitution
For Constitution
242
315
184
San Diego
Los Angeles
Santa Barbara
San Luis Obispo
Monterey
San José
San Francisco 5
Sonoma
Sacramento
San Joaquin
44
357
567
2051
602
chure wooh
5296
2403
1 Taylor, Eldorado, II, 6-7.
2 Ibid., 7.
3 There were from 1200 to 1500 blank votes in addition which were thrown
out because they did not have the words "For the constitution” or “Against
the constitution” on the ballot. See Browne, Debates, Appendix XXI.
4 The data for this information was taken from the Election Returns for
1849, ms., in the archives of the state library.
6 San Francisco expected to poll 5000 votes, but the disagreeable weather
interfered. Davis, Political Conventions, gives the number of votes polled
as 3169. See p. 5.
THE FIRST LEGISLATURE
253
The votes for governor were as follows: Peter H. Burnett,
6783; W. Scott Sherwood, 3220; J. W. Geary, 1358; John A.
Sutter, 2201; Wm. M. Steuart, 619; scattering, 32.
For lieutenant governor: John McDougal, 7374; R.
Roman, 2368; Francis J. Lippitt, 1127; J. B. Frisbie, 1558;
A. M. Alwin (or Winn), 802; P. de la Guerra, 129; Burnett,
242; scattering, 121.
For Congress: G. W. Wright, 5451; Edward Gilbert, 5300;
Rodman M. Price, 4040; P. A. Morse, 2066; Lewis Dent,
2127; E. J. C. Kewen, 1826; Wm. M. Sheppard, 1773;
W. E. Shannon, 1327; Peter Halstead, 593; L. W. Hastings,
215; P. B. Reading, 232; W. H. Russell, 92; J. Thompson,
86; K. H. Dimmick, 41; scattering, 299.
Burnett and McDougal were therefore elected governor
and lieutenant governor, and Wright and Gilbert became
the first representatives to Congress.?
The population of California at this time has been esti-
mated at 107,000 by Bancroft, of whom 76,000 were Amer-
icans; 18,000, foreigners; and 13,000 natives. Omitting the
twelve or fifteen hundred votes that were thrown out on
account of being defective, it will be remembered that a
total vote of 12,872 was cast on the constitution, or a vote
1 Election Returns for 1849, ms. These returns may be found, with some
slight variations, in Journals of California Legislature, 1850, 12–14; Davis,
Political Conventions, 5; and in part in Bancroft, History of California, VI,
305-06.
San José gave Burnett 517 and Sherwood 36 votes. According to Hall,
History of San José, 203-04, this was due to the fact that Burnett had a
family, and especially that in the family were two beautiful daughters. “At
that time men stood on tip-toe to get a sight of a female; she appeared as
novel as a curiosity shop.”
mo
254
STATE GOVERNMENT IN CALIFORNIA
equalling a little over one-sixth of the American population."
Considering the shifting character of the people, the gold
suits, and the increased difficulty of communication as a
result of severe rains, the total vote polled was probably as
large as could have been expected. 2
Organizing the Machinery of Government
California's first Legislature met at Pueblo de San José
on Saturday, December 15, 1849. There were present at
noon on that day but five senators and fourteen assembly-
men, an insufficient number in both cases to constitute a
quorum, so that both Houses adjourned until the following
Monday. In the meantime several additional members
arrived. When the two Houses met on December 17th,
there were fifteen in the Senate and thirty-two in the As-
sembly. The seat in the Upper House for the district of
Sonoma 5 was claimed by Jonas Spect and M. G. Vallejo.
The dispute was placed in the hands of a committee on elec-
tions, and on December 19th, Crosby, chairman of the com-
* Bancroft, History of California, VI, 305.
2 In the mining camp where Taylor spent election day, 105, or about one-
half of those entitled to the franchise, exercised their privilege. Taylor,
Eldorado, II, 7.
3 Journals of the California Legislature, 1850, 3 and 575.
4 Ibid., 8 and 576.
6 The state had not been divided into counties, of course; so the districts
into which California had been divided by Governor Riley's proclamation
were used as political units.
THE FIRST LEGISLATURE
255
mittee, recommended that Spect be admitted as Sonoma's
representative until the election returns could be procured
by the committee and the dispute satisfactorily settled. On
December 22nd, after having examined the official returns,
the committee through its chairman declared that the result
of the election for state senator in the Sonoma district was
as follows: M. G. Vallejo, 199 votes; Jonas Spect, 181.2
Spect was therefore succeeded by Vallejo.
The Upper House as finally organized contained a total
membership of sixteen, the various districts being repre-
native of Connecticut; Los Angeles by A. W. Hoppe, a
native of Virginia; Santa Barbara and San Luis Obispo by
Pablo de la Guerra, a native of California; Monterey by
S. E. Woodworth, a son of the author of the "Old Oaken
Bucket," and a native of New York; San José by W. R.
Bassham, a native of Tennessee; San Francisco by Nathaniel
Bennett 3 of New York and G. B. Post of New Jersey, both
of whom resigned a little later and were succeeded by D. C.
Broderick, a native of New York, 4 and E. Hydenfeldt, a
native of South Carolina; Sonoma by Vallejo, a native of
California; Sacramento by John Bidwell and E. O. Crosby,
both of New York, H. E. Robinson of Connecticut and T. J.
Green of North Carolina; San Joaquin by D. F. Douglass of
Tennessee, B. S. Lippincott of New York, Nelson Taylor of
1 Journals of the California Legislature, 1850, 16.
2 Ibid., 398.
ber 22nd. Journals of California Legislature, 1850, 620.
4 Broderick was born in Washington, D. C., but was raised in New York.
256
STATE GOVERNMENT IN CALIFORNIA
LLC
Connecticut (succeeded a little later by W. D. Fair of Vir-
ginia), and T. A. Vermeule of New Jersey.1
As originally organized, therefore, there were eleven men
from northern states in the Senate, three from southern, and
two natives. The proportion was changed by resignations
so that there were nine northerners and five southerners.
The mining districts had just half of the total represen-
tation.
In the Assembly ? San Diego was represented by 0. S.
Witherby of Ohio; San Luis Obispo by H. A. Tefft of Wis-
consin; Los Angeles by A. P. Crittenden of Kentucky and
M. Martin, nativity unknown. Martin resigned January
28th, and his place remained vacant throughout the re-
mainder of the session. Santa Barbara was represented by
John Scott of Scotland and J. M. Covarrubias of France;
Monterey by T. R. Per Lee of New York and J. S. Gray of
Pennsylvania; Sonoma by J. E. Brackett of New York and
J. T. Bradford of Illinois; San José by Joseph Aram of New
York, Benjamin Corey of Ohio, and Elam Brown of New
York; San Francisco by Edmund Randolph of Virginia,
Alexander Patterson of New York, L. Stowell, probably of
Washington, D. C., Samuel J. Clarke, probably of New
York, and W. Van Voohies. The last named resigned to
become secretary of state. A new member, John H. Watson,
1 The data for this was collected from various sources. See p. 258,
note 5.
2 The names of thirty-two of the assemblymen are given in Journals of
California Legislature, 1850, 576. There were other members who came in
later as will be seen.
THE FIRST LEGISLATURE
257
a southerner, entered December 18th, and was succeeded
on March 7th by Alfred Wheeler of New York.1 The repre-
sentatives from Sacramento were H. C. Cardwell of Ver-
mont, J. T. Hughes of Kentucky, E. W. McKinstry of Michi-
gan, W. D. Dickinson, who was succeeded on December 18th
by John Bidwell of New York, G. B. Tingley of Ohio, Madi-
son Walthall of Virginia, J. F. Williams of New York, John
Bigler of Pennsylvania, who entered December 18th, and
succeeded White as speaker of the Assembly later, P. B.
Cornwall of New York, and J. F. White, speaker, probably
of Florida. Cornwall and White resigned and were suc-
ceeded by Grove Deal of Pennsylvania and John Henley
of Indiana 3 respectively. From San Joaquin came B. F.
Moore of Florida; R. W. Heath of Maryland; D. P. Baldwin
of Alabama; C. M. Creaner of Pennsylvania (he had lived
in Louisiana so long that he had become a southerner in sym-
pathy) 4; J. S. K. Ogier of South Carolina; James C. More-
head of Kentucky; and J. N. Van Benschoten of New York.
Van Benschoten's name does not appear among those pres-
ent on December 17th, but he entered within three days
after that date.5 J. F. Stevens, nativity unknown, had
likewise entered by December 20th.6 San Joaquin thus had
a total representation of eight members. On February 18th,
1 Journals of California Legislature, 1850, 580 and 966.
2 Ibid., 582.
3 Ibid., 935 and 1010. Deal entered March 2nd and Henley, .
March 15th.
4 This is reported by his daughter who at present works in the state library.
5 Journals of California Legislature, 1850, 594.
6 Ibid.
258
STATE GOVERNMENT IN CALIFORNIA
N
Van Benschoten and Heath resigned,' and, on March 2nd
and 30th respectively, Stevens and Creaner tendered their
resignations, the latter to become district judge. E. B.
Bateman of Missouri was elected to succeed Stevens and
took his seat March 29th.3 John Cave of Kentucky and
W. M. Shepherd, nativity unknown, entered March 26th.4
The first Legislature was thus composed of thirty-six
members, of which number the mining districts, Sacramento
and San Joaquin, had just half. Nineteen were men from
northern states, ten from southern, the nativities of five are
unknown, and two were foreigners. As a result of resigna-
tions and subsequent elections, the total number was re-
duced to thirty-four during the last half of the session.
Nineteen of these, as formerly, were from northern, ten from
southern states, three unknown, and two were foreigners.5
1 Journals of California Legislature, 1850, 869.
2 Ibid., 1093.
3 Ibid.
4 Ibid., 1078 and 1079.
5 The nativities of the members of the first Legislature are not given in
any one place so far as the writer knows. Bancroft, History of California,
VI, 309-10, notes 3 and 4 gives most of them. Thompson and West, History
of San Joaquin County, 24, (Oakland, 1879), contains a complete table of
the senators giving the names of the members from the various districts, the
states in which they were born, the states from which they emigrated to
California, and the date of their arrival. The Assembly list given there is
practically the same as that given in Alley, Bowen & Company, Histories
of Sonoma and Santa Clara Counties, pp. 136–38 and 153-55 respectively,
and Slocum's History of Contra Costa County, 211–14. With the exception
of the list of senators given in the history of San Joaquin County, the names
and data given in these county histories were taken from the Sacramento
"Society of California Pioneers" ms. This contains thirty-one autobiogra-
phies of members of the first Legislature written in their own hand writing,
THE FIRST LEGISLATURE
259
On Monday, December 17th, a resolution passed the
Upper House requiring the president to appoint a committee
to inform the Assembly that the Senate had organized and
had elected E. K. Chamberlin, president pro tempore; James
F. Howe, secretary; Wm. B. Olds, assistant secretary;
Bela Dexter, engrossing clerk; Thomas S. Austin, sergeant-
at-arms; and Eugene F. Russell, doorkeeper; and that they
were now ready to proceed to business. Green and Lippin-
cott were appointed on the committee. During the after-
noon session of the same day, the Senate received a similar
message from the Assembly.2 On the following day the two
Houses met in joint session for the purpose of examining
the original returns of the recent election for governor,
lieutenant governor, and members of Congress; 3 and on
Wednesday another communication came from the Assembly
notifying the Senate that the House had “concurred in their
ONC
VULU
that of Vallejo and de Guerra appearing in Spanish, and was given to the
state library by the Sacramento Society of California Pioneers. The list was
evidently collected by Bradford, a member of the Assembly from Sonoma.
(See Sonoma County History, 136.) The fact that it is so incomplete would
indicate that it was collected after the first Legislature adjourned. Tink-
ham's History of Stockton, 125–26, gives a list of delegates from the district
of San Joaquin, but gives no data on nativity. Additional data on the
nativities of assemblymen may be found in Bancroft's Pioneer Register and
Index; Smythe's History of San Diego, 292; Cornwall's Biography of Corn-
wall; Shuck's Bench and Bar; Wood's History of Alameda County, 186–7;
San Francisco Call, July 18, 1859; and December 27, 1882; Alta Californian,
September 7, 1866; Sacramento Union, February 1,. 1861; Annals of San
Francisco, 710; Upham, Scenes in El Dorado, 592.
1 Journals of the California Legislature, 1850, 8.
2 Ibid., 10.
3 Ibid., 12-14.
260
STATE GOVERNMENT IN CALIFORNIA
resolution appointing a joint committee to wait upon the
Governor elect (Burnett), and notify him that the two Houses
of the Legislature” were organized and were ready to pro-
ceed to the inauguration, as soon as it was convenient for
him." Also they reported that they “concurred in the resolu-
tion appointing a joint committee to wait upon his Excel-
lency Governor Riley, informing him of the organization of
both Houses of the Legislature," and that they were ready
to receive any communication which he might desire to
make. They further agreed to the Senate resolution request-
ing Colonel Allen, the general post-office agent for California,
to establish a daily mail line from San José to San Francisco.2
On December 20th (Thursday) the two Houses met in con-
vention in the assembly hall, the president of the Senate pre-
siding. Hon. Peter H. Burnett was introduced, and the
oath of office was administered to him by Chief Justice
Dimmick. Hon. John McDougal also took the oath of office
as lieutenant governor. An inaugural address was delivered
by Governor Burnett, and the convention was dissolved.
McDougal, when the Senate assembled in its own hall, im-
mediately assumed his duties as president of that body.3
In the afternoon of the same day the two Houses again
assembled in convention for the purpose of electing United
States senators, McDougal, the president of the Senate,
presiding, 4 The candidates were John C. Frémont, William
1 Journals of the California Legislature, 1850, 16.
2 Ibid.
3 Ibid., 20.
4 Ibid., 23.
THE FIRST LEGISLATURE
261
M. Gwin, H. W. Halleck, Thomas J. Henley, Thomas Butler
King, J. W. Geary, and Robert Semple. Each member of the
Legislature voted viva voce and for two men for the Senate.
As a result of the first vote John C. Frémont received twenty-
nine votes and Gwin, twenty-two. Frémont was declared
elected and the voting for the second senator continued. On
the third joint vote Gwin received twenty-four, and was
also declared elected.
On December 21st, William Voorhies was nominated
secretary of state by Governor Burnett, and the nomination
was immediately confirmed by the Senate. Voorhies re-
signed his seat in the House on the same day.2 On the fol-
lowing day the two Houses met in convention and proceeded
to the election of a state treasurer, a comptroller, an attorney
general, a surveyor general, a chief justice of the Supreme
Court, and two associate justices. The following men were
were
1 Journals of the California Legislature, 1850, 23-24. The candidates
for the United States Senate had come to the capital early, and just preced-
ing and during the election "kept ranches, as they were termed—that is,
they kept open house. All who entered drank free, and freely. ... Every
man who drank, of course, wished that the owner of the establishment
might be the successful candidate for the Senate. That wish would be ex-
pressed half a dozen times a day, in as many different houses.” Hall, His-
tory of San José, 220-21. It was doubtless due to this that the appellation
of the "Legislature of a thousand drinks” was applied to California's Senate
and Assembly of 1849-50. See ibid., 218 and Bancroft, History of California,
VI, 309–11.
2 Ibid., 27. There is in the state archives a letter signed by Myron Nor-
ton, written from San Francisco, November 20, 1849, and addressed to the
Governor, requesting the appointment of secretary of state. It was accom-
panied by a petition signed by about half of the members of the Senate.
The petition is dated December 17, 1849.
262
STATE GOVERNMENT IN CALIFORNIA
elected to fill the respective positions: Richard Roman, John
S. Houston, E. J. C. Kewen, Charles J. Whiting, S. C. Hast-
ings, Henry A. Lyons, and Nathaniel Bennett. Committees
were appointed on claims, on finance, on the judiciary, on
the militia, on counties, on privileges, on engrossed bills,
on a state library, on public printing, and on public build-
ings.2 On December 21st was added to these a committee
of commerce. The organization completed, the two Houses
waited in their respective places for the Governor's first
annual message before beginning the active work of legisla-
tion.
1 Journals of the California Legislature, 1850, 48–55.
2 Ibid., 28.
3 Ibid., 595.
CHAPTER XIII
THE GOVERNOR'S MESSAGE AND FINANCE
THE first annual message of Governor Burnett was re-
ceived by the Legislature on Friday, December 21st, the
same day on which the organization of that body was com-
pleted. It dealt at some length with the following subjects in
the order named: the right of the Legislature to proceed with
business; the adoption of a civil and criminal code of law
for the government of California; the question of revenue;
the admission of free negroes; the election of certain
officers; and the establishment of city and town govern-
ments.
After a eulogy on California and its rapid progress during
the past twenty months, the Governor said the first question
that the Legislature would have to determine was whether
they should proceed at once with the general business of
legislation or await the action of Congress upon the question
of California's admission into the Union." He thought they
had a perfect right to proceed. The governments of Missouri
and Michigan were in full operation, he said, when those
1 The members of the Legislature seem to have had no doubt of their right
to proceed with the business of the state before its formal admission into
the Union. That question had already been settled at the polls by the adop-
tion of a state constitution, and in consenting to their election they accepted
the responsibility of proceeding with legislation.
263
264
STATE GOVERNMENT IN CALIFORNIA
states were admitted, and afforded ample precedents for the
action of California.
This question settled, the Legislature should turn its at-
tention to providing the state with necessary laws. The
adoption of a civil and criminal code of some kind was im-
perative. It was the more important because the action of
the first would hardly be disturbed by succeeding legisla- -
tures. California was in a position to adopt the most im-
proved and enlightened code of laws to be found in any of
the states. The Governor claimed to have given the matter
serious study, and recommended the adoption of the fol-
lowing--at least in so far as they were applicable to condi-
tions in California, and were not modified by the constitu-
tion or by the acts of the Legislature: (1) the definition of
crimes and misdemeanors contained in the common law of
England; (2) the English law of evidence; (3) the English
commercial law; (4) the civil code of the state of Louisiana;
and (5) the Louisiana code of practice.
Particular attention was called to the “grave and delicate
subject of the revenue.” The current expenses of state
government for the first year would be $500,000 or more.
This would have to be raised either by loan or by taxation.
The exorbitant rate of interest which the state would have
to pay together with the moral obligation which such an act
would place on posterity rendered the first too objectionable
for consideration. He therefore recommended the imposi-
tion of a poll tax, and a tax upon real and personal property
in proportion to its value, and, further, that the revenue
law be so framed as to require the collector to accompany
THE GOVERNOR'S MESSAGE AND FINANCE
265
the assessor. If this were not done "one-half the revenue,
in some districts, would be lost, in consequence of the fre-
quent change of residence.”
A reasonable and sound system of taxation would operate
most beneficially upon the agricultural resources of the
country in a very short time. "Most of the fine agricul-
tural lands of California are now in the hands of a few per-
sons, who suffer them to remain wild and uncultivated. A
few months ago when the population was small, and the
wants of the community few and simple, the natural pas-
turage of the country, with a limited cultivation of the soil,
was ample for all the purposes of life; but under the changed
circumstances, when our country teems with people who
must be fed, and when the population is so rapidly aug-
menting, it is unreasonable, if not impossible, that the
country should remain in a state of nature.”
· When the people who owned these rich, fertile lands were
obliged to pay taxes on the same in proportion to their
value, they would find it to their interest to sell a part to
others who would cultivate them. Thus the system of taxa-
tion which he suggested would encourage the agricultural
industry of the country, and at the same time greatly in-
crease the value of the land.
The native Californians might at first object to such a
system of taxation, but they would soon become accustomed
to it. They would also see that the Legislature had no power
or right either to favor or to oppress any class of persons,
but looked to the property itself regardless of the owner.
“They will also learn that the same American manufactures,
CO
266
STATE GOVERNMENT IN CALIFORNIA
upon which they are accustomed to pay such high duties,
now come into our ports duty free, and that they are com-
pensated for the direct taxes they pay in the increased value
of their property, and the decreased prices of the merchan-
dise they consume.”
On the admission of free negroes into the state, the Gov-
ernor spoke most urgently. He had no patience with that
“weak and sickly sympathy--that misplaced mercy, that
would hesitate to adopt salutary measures to-day, but would
suffer all the inevitable consequences of to-morrow.” There
was but one of two consistent courses which could be taken
with reference to free negroes: it was necessary either to
admit them to the full and free enjoyment of all the privi-
leges guaranteed by the constitution to others, or to exclude
them from the state. If the first course were adopted they
would be inevitably consigned to a subordinate and degraded
position which in itself would be a species of slavery. This
position would make them enemies to the society and gov-
ernment of the state and render them "fit teachers in all
the schools of ignorance, vice, and idleness." He thought
the time was rapidly approaching when the natural increase
in population in the states east of the Rocky Mountains
would render slave labor of little or no value. As a result
of this, slaves would be manumitted in the slave states and
contracts made with them to labor as hirelings for a given
number of years in California, unless measures were taken
to keep them out. As to the right of the state to do this,
there was no question. The people had a perfect right to
prevent any class of population from settling in the state
THE GOVERNOR'S MESSAGE AND FINANCE
267
se
if they considered such people injurious to society. He
therefore urged "most serious attention to this subject,
believing it to be one of the first importance."
The message called attention to the immediate need of
minor officials, and recommended that arrangements be
made for the election of judges of county courts, clerks of
the Supreme Court, district attorneys, sheriffs, coroners,
assessors, collectors, justices of the peace, and other officers
as soon as possible.
Great distress and inconvenience had been experienced
already by the inhabitants of many towns because an effi-
cient system of city government had not been established.
It was therefore recommended that some general enactments
applicable to the organization of cities and incorporated
villages should be passed as soon as possible.
A few other things were recommended, such as the pas-
sage of a law to prevent the desertion of seamen from mer-
chant vessels, “the establishment of an inspector for pro-
visions at San Francisco," the division of the state into
counties, provision for the acknowledgment and registra-
tion of deeds and the registration of separate property of
the wife, and the protection from forced sale of a certain
portion of the homestead and other property of all heads
of families. 1
As soon as the message was read in the Senate, a resolution
was adopted to print one thousand copies in English and
five hundred in Spanish for the use of the Senate, and five
1 Journals of the California Legislature, 1850, 31-41; Stryker, American
Register and Magazine, July, 1850, Vol. IV.
268
STATE GOVERNMENT IN CALIFORNIA
hundred additional copies in English for distribution among
the senators and representatives of Congress. Copies were
also to be forwarded to the President of the United States.
Portions of the message were referred to the various stand-
ing committees for their consideration.
The various subjects treated in the message were not con-
sidered by the Legislature in the order in which the Governor
presented them, and will not be so treated here. The present
chapter deals with finance 2 and will be followed by others
on civil and criminal codes and the organization of courts;
the organization of counties, cities, and towns; the failure
of old line sectionalism; and the admission of California into
the Union.
Finance
eri
The state government that went into operation in De-
cember, 1849, was without funds to pay the ordinary ex-
penses, or even to buy the little necessaries with which to
begin active business. Naturally, therefore, one of the first
subjects to be considered by the Legislature was that of
finance. That part of the Governor's message dealing with
1 Journals of the California Legislature, 1850, 41-42. For the various com-
mittees to which different parts of the message were referred, see pp. 65 and
66. On the following day Governor Burnett transmitted to the Senate
two proclamations from General Riley, one dated December 12th and the
other December 20, 1849. Both were addressed to the people of California.
In the first General Riley declared the constitution ratified on November
13th, to be ordained and established as the constitution of the state of Cali-
fornia, and in the second he resigned his position as civil governor. Ibid., 45.
2 Ibid., 65.
THE GOVERNOR'S MESSAGE AND FINANCE
269
the question of revenue was referred to the committee on
finance in the Senate on January 3rd.1 It had been referred
to the committee on ways and means in the Assembly, on
December 21st. Before that, however, on December 20th,
a resolution was passed by the latter body authorizing the
committee on ways and means to report, by bill or otherwise,
the most practicable method of raising sufficient revenue for
supporting the civil government of the state for one year,
and a proper sinking fund for paying the debt which it would
be necessary to incur thereby.3 The following day the com-
mittee was authorized to confer with General Riley and see
whether he had any money which belonged to the state and
which he would be willing to turn over to the state authori-
ties. The Assembly received a communication from the
Senate on the 22nd saying that the latter had passed a reso-
lution appointing a committee for a similar purpose. On
the same day, Walthall, chairman of the ways and means
committee of the House, reported the result of his conference
with General Riley. The latter said that he had neither
money nor evidence of debt belonging to the state, but that
he had under his control several hundred thousand dollars
which he thought belonged to the state, and had written to
the proper department at Washington for instructions. As
soon as he heard from there he would communicate with the
1 Journals of the California Legislature, 1850, 65.
2 Ibid., 608.
3 Ibid., 591.
4 Ibid., 595.
5 Ibid., 610.
270
STATE GOVERNMENT IN CALIFORNIA
Legislature on the subject. On the 24th of December,
Walthall reported a bill authorizing a loan on the faith and
credit of the state, which was read a second time and referred
back to the committee for further consideration.2 A resolu-
tion offered on the same day, to permit the various state
officials to procure such blank books and stationery as they
needed, was lost.3
The Legislature adjourned from December 24th to 28th,
but immediately after the Christmas recess Walthall again
submitted a report from the committee. The same bill pro-
posing a plan for raising money to meet the immediate needs
was offered, “with an amendment, and also a bill for a tem-
porary loan.” The latter seems to have been the only one
considered. The bill was entitled “an act authorizing a loan
of money to pay the immediate demands on the treasury
until a permanent fund can be raised for the purpose.” The
bill passed the first and second reading, during which time
one amendment was made and two rejected. It was then
laid on the table. The next day, December 29th, the bill
was again brought forward, amended and ordered to be
engrossed. It passed the House December 31st, and on
UT
1 Journals of the California Legislature, 1850, 612.
2 Ibid., 621.
3 Ibid., 622. On February 9th, however, an act was passed for this pur-
pose. It was entitled "an act authorizing the Secretary of State, Comp-
troller, Treasurer, etc. to rent offices and procure necessary office furniture
for their respective offices.” See Statutes of California, 1850, 56.
4 Ibid., 624.
5 Ibid., 626-27.
6 Ibid., 629.
THE GOVERNOR'S MESSAGE AND FINANCE
271
the same day was read in the Senate. After undergoing
slight amendments it passed the second and third readings
in that body on January 2, 1850, and was returned to the
House for concurrence in the amendments:2 It was ac-
cepted in its amended form by the House on the same day.3
On January 5th it was reported to be properly enrolled in
both Houses, 4 and on the 7th the committee on enrolled bills
reported that it had been presented to the Governor.5 Bur-
nett notified the Assembly on the with that he had signed it.6
The bill is dated January 5th. It provides that the state
treasurer shall receive proposals in writing until noon, Janu-
ary 25, 1850, “from any and all persons to loan to this state
a sum of money not exceeding $200,000, for a term not more
than twelve nor less than six years, payable at the pleasure
of the state any time after six years.” In the afternoon of
the appointed day, the treasurer was to open the various
proposals submitted in the presence of the chairman of the
finance committee of the Senate and chairman of the com-
mittee on ways and means of the House, and the three were
to select from the bids “such one or more as they may deem
most reasonable and best calculated to secure said loan,"
provided all proposals so selected should be placed before
the Legislature for their approval. If the Legislature decided
to accept any of the proposals, it would be the duty of the
1 Journals of the California Legislature, 1850, 61.
2 Ibid., 63.
3 Ibid., 630.
4 Ibid., 73 and 638.
5 Ibid., 640.
6 Ibid., 650.
272
STATE GOVERNMENT IN CALIFORNIA
treasurer of the state to prepare and execute bonds in such
form as he might deem proper and for such amounts as
might be agreed upon between him and the lenders, in sums
not less than $5000, and “payable to the lender or lenders
at the time stipulated by the parties, and bearing such rate
as may be contracted for by the parties, and approved of
by the Legislature, payable quarter-yearly out of any money
in the treasury not otherwise appropriated.” The bonds
were to be signed by the Governor and countersigned by the
treasurer and were to be delivered to the successful bidder
of the loan whenever the money so loaned was paid into the
treasury. The faith and credit of the state were pledged for
the payment of such a loan.1
Such was California's first bill for raising revenue. On
January 26th, Thomas J. Green, representative in the Senate
from Sacramento and chairman of the committee on finance, 2
reported that "in accordance with the loan law of the 5th
instance, in company with the chairman of the committee on
ways and means of the Assembly and the treasurer, upon
examination (he had) found that there were no propositions
of loan under said law.” He also promised, at an early date,
to present a more elaborate report accompanied by a bill
for a temporary state loan.3 This he did two days later.
Green's report dealt both with the subject of a temporary
1 Statutes of Californta, 1850, 458–59.
2 Green came from Texas evidently in 1849. (See above pp. 110–11 and
note 2.) Bancroft, History of California, VI, 315 calls him "the irrepressible
senator to whom everything was a huge joke.” He "had been elected in a
frolic, and thought legislation a comedy."
3 Journals of the California Legislature, 1850, 423.
QO
THE GOVERNOR'S MESSAGE AND FINANCE
273
loan and with taxation. In regard to the latter, he believed
that a "tariff of taxes” might be imposed which by July,
1850, would produce an income of from $600,000 to $700,000.
The tax bill had been drawn up in consultation with the ways
and means committee of the House, and presented a list of
taxable goods large in amount upon which the collection of
taxes would be easy. The ad valorem principle imposed
by the constitution would develop resources such as "no
state ever witnessed, and means of payment would be easy
because the new state was so rich in resources." He recom-
mended that both the assessment and collection of taxes be
made in July, 1850. He also recommended a poll tax of $5,
which would be about one-half the average of the per diem
value of labor.
For the purpose of creating a fund for the "immediate
of the state, to be used before the taxes could be
collected in July," he recommended the issue of bonds, not
to exceed $300,000 in amount, bearing an interest of one
per cent per month 1 and payable six months after date, but
redeemable at any time there should be money in the treas-
ury or in the hands of a tax collector. In the absence of coin
the bonds might be paid to any state creditor who desired
them, and the bonds "shall be at all times received by the
treasurer or any tax collector for any due or demand upon
the state.” The confidence of the holder in the ability of the
state to redeem these bonds, the ease with which they could
nel
as
1 Bancroft, History of California, VI, 315 says that Green's bill proposed
"a loan at ten per cent per annum when the lowest bank rate was five per
cent per month."
274
STATE GOVERNMENT IN CALIFORNIA
M
be carried, and their accumulative character at one per cent
per month would, he felt sure, prevent any depreciation in
their value. 1
The bill with some modifications passed the Senate by
vote of six to five, January 29th, 2 was accepted in the House
on the following day by a majority of nine in a total vote
of twenty-seven, and was presented to the Governor and
signed by him on February ist. According to the terms
of the bill the treasurer of the state was authorized, as soon
as practicable, to issue bonds of the state in sums of $100,
$225, $500, and $1000 payable six months after date at the
rate of three per cent interest per month, the total issue not
to exceed $300,000. The bonds were to be signed by the
treasurer, endorsed by the governor, and countersigned by
the comptroller. They were to be tendered in payment
for any debts against the state, providing there was no coin
in the treasury. The treasurer was not to pay out the bonds
at less than their par value, but was to accept them "for
the par value, and all the interest which may have accrued
thereon, from all persons, including public collectors, up
to the time of the receipt thereof." They were to be dated
at the time of issue. “If any collector of the public revenue
or state dues, having money in hand sufficient, shall refuse
to exchange for such bonds when applied to for that purpose
by any bondholder, he shall be fined ... in a sum not ex-
Journals of the California Legislature, 1850, 424-7.
2 Ibid., 117.
3 Ibid., 738.
4 Ibid., 754 and Statutes of California, 1850, 53.
THE GOVERNOR'S MESSAGE IVNE
275
AND FINANCE
ceeding $400." 1 The treasurer, as soon as he had sufficient
money in the treasury, was to advertise, “by giving six
months' notice in some newspaper, requiring them to be
brought in for redemption, and any such bonds which shall
not be returned to the treasury in that time shall cease to
bear interest.” 2
That part of Green's report dealing with taxation ap-
parently did not receive consideration at this time, but the
recommendations there made were partially embodied in
two other bills brought forward by Tingley of the ways and
means committee in the House on January 30th. They were
entitled “a bill prescribing the mode of assessing and col-
lecting public revenue," and "a bill defining the amount of
revenue to be collected to defray the expenses of the govern-
ment of the state of California for the year 1850.” 3 The
latter became a law February 25th; the former was not
passed until March 30th.4 The act defining the amount of
revenue to be collected to defray the expenses of the govern-
ment of the state for the year 1850 says that “there shall be
levied and collected in the manner prescribed by law, the
sums of money hereinafter specified, to defray the expenses
of the government of the state of California for the year
1850, to wit: on each one hundred dollars' worth of taxable
property, fifty cents; and a poll tax of five dollars on every
male inhabitant of this state over twenty-one years of age
1 Statutes of California, 1850, 53-54.
2 Ibid., 54.
3 Journals of the California Legislature, 1850, 736.
4 Statutes of California, 1850, 54.
IA
X
276
STATE GOVERNMENT IN CALIFORNIA
and under fifty years, and not exempt from the payment
of a poll tax by law.” 1
The statute of March 30th enacted that all real and per-
sonal property within the state should be liable to taxation
except the following: real and personal property of the United
States and of the state; lands sold by the United States until
the term of five years from the date of sale; schools and court
houses; jails and the land on which such buildings were lo-
cated, not exceeding ten acres; churches and cemeteries;
buildings erected for the use of literary, benevolent, chari-
table or scientific institutions and tracts of land on which
such buildings were situated, not exceeding twenty acres, and
the personal property belonging to such institutions; lands
granted for the use of common schools, so long as the same
shall remain unsold; the personal property and real estate
of every manual labor school or college incorporated within
the state, when used for the purpose for which it was incor-
porated, such real estate not to exceed three hundred and
twenty acres; and the personal property of widows and
orphans to the extent of $1000. The term real estate was
defined as including “all lands within this state, and all
buildings or other things erected or affixed to the same; and
the terms land or real property” should be construed as
having the same meaning as the term 'real estate'." Per-
sonal property was "to include all household furniture,
goods, chattels and moneys; all ships, steamboats, vessels
and water craft of any and every description whatever ...;
all moneys at interest owing to the person to be taxed more
1 Statutes of California, 1850, 65.
THE GOVERNOR'S MESSAGE AND FINANCE
277
than they pay interest for, and other debts owing to them
from solvent persons more than they are indebted for, and
all public stock in turnpikes, bridges, insurance companies
and monied corporations ...; also such portion of the
SE!
their capital, as shall not be vested in real estate.” Stock-
holders in corporations were not to be taxed as individuals
for such stock. Enlistments for poll tax and for tax on
personal estate and lands were to be made in the county
where the persons resided who were subject to such taxes.
When personal property was mortgaged it was to be con-
sidered the property of the person who had possession; in
case of mortgage in real estate the mortgager was to be con-
sidered the owner until the mortgagee should take possession.
Provision was also made for enlisting the individual real
estate of deceased persons. The bill further contained direc-
tions for making out the assessment roll, directions for de-
termining the value of property, directions for making out
lists of taxable property in each county together with various
other directions, both general and detailed in character,
on assessment, collection and auditing.
On the same day (January 29th) that the bill for a tem-
porary state loan was taken from the table where it had
been consigned immediately after its first reading, another
was brought forward entitled a bill “authorizing a loan on
the faith and credit of the state, to pay the expenses of the
civil government thereof." 2 It was considered in the House
1 Statutes of California, 1850, 135-42.
2 Journals of the California Legislature, 1850, 731.
UDUTO
278
STATE GOVERNMENT IN CALIFORNIA
vas
on January 31st,' February ist and 2nd, and on the 4th was
amended and laid on the table. On the 6th it came up again,
and vain attempts were made to amend and finally to table
the bill.3 It ultimately passed by a vote of fifteen to four-
teen.4 It was read in the Senate February 7th, and referred
to the committee on finance. On the IIth the committee
reported, recommending numerous amendments. It was
up again on the 13th, 14th' and 16th, when it finally passed,
after other amendments were inserted, by a vote of eight
to five. The original bill as reported by the committee
in the House had provided for a loan of $750,000,9 but this
had been changed in the Senate to $1,000,000. The loan was
to be for twenty years, -subject to payment by the state
at any time after ten years, either in full or in part-and
was to bear interest not exceeding ten per cent. The bonds
to be issued for the payment of the loan were to have certifi-
cates for the payment of interest attached to them. Bids
were to be received by the treasurer, the same to state the
1 Journals of the California Legislature, 1850, 744.
2 Ibid., 754-5; 773.
3 Ibid., 783. In the discussion Ogier of San Joaquin and Watson of San
Francisco became involved in a difficulty and were conducted without the
bar by order of the speaker. A committee was appointed to report on the
case, and recommended that an apology be demanded from each one. Both
members apologized and were readmitted to their seats, p. 788.
4 Ibid., 784.
5 Ibid., 135.
6 Ibid., 145-46; 457–58.
Ibid., 152 and 155.
8 Ibid., 161.
9 Ibid., 160.
THE GOVERNOR'S MESSAGE AND FINANCE
279
interest on and the amount of the loan. All bids were to be
in the hands of the treasurer within twenty days after the
date of the bill. No bid was to be received for less than
$10,000. Bonds were not to be issued for less than $5000,
and were to bear interest from the date of issue. “The faith
and credit of the state, and all the public lands which may
be granted to the state by Congress not heretofore otherwise
appropriated, and all public revenues, are hereby pledged
to pay the interest punctually and redeem the principal of
said loan.” 1
A few other financial measures were passed by the first
Legislature, the majority of them explanatory in character
or dealing with the management and disbursement of funds.
On January 31st was passed an “act prescribing the mode
of receiving, keeping, and paying out the public funds,” 2
which is explained in a general way by its title. An act was
passed February 12th, appropriating the sum of $750,000
out of the general fund to pay the expenses of the govern-
ment for the fractional fiscal year ending on the last day of
June, 1850, and $250,000 to pay partially the expenses of
the half year beginning July ist.3 Another act passed
February 20th entitled "an act concerning the revenue,
funds, expenditure and property of the state, and manage-
ment thereof,” 4 was supplemented by an explanatory act
passed April 18th. According to the act regulating the rate
1 Statutes of California, 1850, 69–70.
2 Ibid., 51.
3 Ibid., 56.
4 Ibid., 63.
5 Ibid., 459.
I
enn-
280
STATE GOVERNMENT IN CALIFORNIA
ar
of interest on money, passed March 13th, parties might
arrange by contract for any rate of interest, but if the amount
of interest was not specified in the contract, the rate was to
be ten per cent.' April 4th there was passed "an act in rela-
tion to money or accounts of this state" ? and on the 16th
another“ relating to bills of exchange and promissory notes."3
If these measures appear extravagant it must be remem-
bered that money was plentiful in California at the time, that
the members of the first Legislature were young men, and
that the environment was such as to create an unexampled
state of optimism. Whatever the opinion held, the fact re-
mains that the financial measures passed by the first Legis-
lature proved insufficient to meet the needs of the govern-
ment during the first year of its existence.4
1 Statutes of California, 1850, 92.
2 Ibid., 459.
3 Ibid., 247.
4 See Bancroft, History of California, VI, Chapter 22.
CHAPTER XIV
CIVIL OR COMMON LAW?
VERY naturally the great majority of the people in Cali-
fornia in 1849-50 would favor the system of common law
and would oppose the adoption of a civil code. They were
English and for generations had lived under a modified sys-
tem of the common law. The lawyers had been trained
under this system and doubtless knew little of the civil law.
But there was a small minority of the legal profession who
had practised law in California while it was a part of the
Mexican territory, and were therefore more familiar with
the civil law. To them the Governor's message offered en-
couragement, and especially was this true among the lawyers
of San Francisco.
During the period of the first Legislature there were ap- ·
proximately one hundred men practising law in the city of
San Francisco. They held two or three meetings after the
Governor's message was issued for the purpose of uniting
their influence against that part of the message which recom-
mended the adoption of a civil code. Unanimity of action,
however, could not be determined upon, and the result was
the forwarding of two petitions, the one to the Assembly
and the other to the Senate.
The Assembly petition was received by that body on Jan-
281
282
STATE GOVERNMENT IN CALIFORNIA
11
uary 30, 1850, and was signed by about eighty of the lawyers
of San Francisco. It informed the Assembly that a meeting
of the legal profession of San Francisco had been held over
which Colonel Mumford had presided and for which John
Satterlee had acted as secretary. After full discussion and
deliberation the following resolutions had been adopted by
a large majority.
"Resolved, That we would respectfully recommend the
adoption and establishment, by the Legislature, of the com-
mon law of England, as modified by most of the states of
the Union, and that we are opposed to the adoption of the
civil law, except so far as the same has been engrafted upon
the common law, in relation to mercantile and marine juris-
.prudence, and may be necessary in chancery and admiralty
proceedings.
"Resolved, That the Legislature be recommended to adopt
the simplest forms of practice and pleadings compatible
with the common law system.
"Resolved, That the chairman and secretary be author-
ized and requested to transmit to the Legislature the resolu-
tions adopted by this meeting; and that the proceedings be
published.” 1
On February 1, 1850, Douglass of San Joaquin presented
a petition in the Senate signed by John W. Dwinelle and
seventeen other lawyers of San Francisco, “praying the
Legislature to retain in its substantial elements the system
of civil law” as proposed by the Governor, instead of the
1
1 Journals of the California Legislature, 1850, 735-36.
CIVIL OR COMMON LAW?
283
menort 2
of a committee of the judiciary,' and on Wednesday, Febru-
ary 27th, Crosby from the district of Sacramento, chairman
of the committee, made a lengthy report.2
He said the committee were of the opinion that the proper
settlement of this question was “by far the most grave
and serious duty” which the first Legislature would have to
perform. In settling it members of that body would be
laying the foundation of a system of law which, if adapted
to the needs of the people, would probably endure for genera-
tions to come.
Two or three meetings of the one hundred lawyers in San
Francisco had been held recently, he continued, and the
legal profession there had declared almost unanimously in
favor of the common law, and had passed resolutions propos-
ing its adoption. In fact the eighteen who had signed the
petition before the Senate were the only ones who had ex-
pressed opinions unfavorable to it. The percentage of those
favoring the common law in San Francisco and throughout
the state was about the same. In other words about four-
fifths of the legal profession in California would favor the
adoption of the English common law.
1 Journals of the California Legislature, 1850, 126.
2 Ibid., 180 and Appendix 0,-p. 459 et seq.
3 Brackett, a representative in the Assembly from Sonoma, introduced a
resolution in that body on January 26th instructing the committee on the
judiciary to report to the House a brief and comprehensive act, substantially
enacting that the common law of England and all the statutes and acts of
Parliament down to a certain reign, which were of a general nature and not
inconsistent with the constitutions of the United States and California,
should henceforth be the rule of action and decision in the state of Cali-
fornia. Journals of the California Legislature, 1850, 723.
284
STATE GOVERNMENT IN CALIFORNIA
The committee did not favor adopting the whole body
of either civil or common law. There were in each principles
and doctrines, political, civil and criminal, which were repug-
nant to American feelings and inconsistent with American
institutions. In Louisiana, the only state in the Union where
the civil law prevailed, and in the other states where the
common law was recognized, great and radical additions
and alterations had been made in the particular system
which each had taken as the foundation of its jurisprudence.
The report then offered a long explanation of both the
civil and the common law. Briefly stated, the latter had its
origin in England and developed gradually from the blend-
ing of the Saxon and Norman customs and laws with "valu-
able portions of the civil law, modified and enlarged by
numerous acts of the English parliament, smoothed in its as-
perities and moulded into shape by a succession of as learned
and wise and sagacious intellects as the world ever saw,"
softened by religion and English literature and amended by
American legislation so as to adapt it to republican principles.
The former was a system based upon the crude laws of a
rough, fierce people, which received "in its progress through
the various stages of civilization from barbarism to luxurious
and effeminate refinement, a variety of additions and altera-
tions” from the acts of Roman senates and assemblies, and
from the decrees of consuls and tribunes and the edicts of
Roman tyrants, until the whole chaotic mass was system-
atized by Justinian. The civil law was adopted by the
various countries of continental Europe except Russia and
Turkey, but was rejected by England. The colonies founded
CIVIL OR COMMON LAW?
285
by the countries of continental Europe had accepted the
civil law; the English colonies had adopted the common
law. It was from the latter that we inherited such institu-
tions as trial by jury and the right of habeas corpus; nothing
of the kind was to be found in the former. The domestic
relation was differently defined in the two systems. The
civil law regarded the husband and wife, "connected it is
true by the nuptial tie, yet disunited in person, and with
dissevered interests in property.” The union was regarded
as a partnership in mercantile and commercial life. The
common law, on the other hand, considered the union of
husband and wife so indissoluble in its nature that they
became one in person, and, for most purposes, one in estate.
Under the civil law man did not attain his majority until
he was twenty-five years old, and sometimes he was subject
to parental authority for a much longer period; but the
common law recognized man as an independent and respon-
sible being after the age of twenty-one. Equally important
differences might be noticed in mercantile and commercial
life. Under the common law trade was protected and a
rapid change of commodities fostered; under the civil law
both were restricted.
These differences afforded strong reasons for the adoption
of the common instead of the civil law in California, but
there were others even more potent in character. More
than twenty-nine thirtieths of the immigrants in the state
came from that part of the Union where the common law
was recognized. More than twenty-nine thirtieths of the
business of the state was carried on by men acquainted with
286
11
STATE GOVERNMENT IN CALIFORNIA
the common law. The large majority of the lawyers and
judges of California were familiar with the common law,
but knew very little about the civil law. Reference books
could be procured easily by those practising if the common
law were adopted; this would not be true if the civil law
were made the permanent code. The committee therefore
recommended that the prayers of the petitioners should not
be granted, and requested that they might be discharged
from further consideration thereof.
The Senate accepted the report and ordered five hundred
copies of the same printed.1 Following this, April 2nd,
Brackett, a representative from the district of Sonoma,
introduced in the Assembly a “bill concerning the common
law.” 2 After being slightly amended it passed the Assembly
on April 4th. It was read in the Senate on the 5th of April, 4
and passed the second and third reading in that body on the
6th and 12th respectively, receiving the Governor's signa-
ture on April 13th. The act as finally adopted declared
that the “common law of England, so far as it is not repug-
nant to or inconsistent with the Constitution of the United
States, or the constitution or laws of the state of California,
shall be the rule of decision in all the courts of this state.” 7
On April 20th was passed "an act to regulate proceedings
y
7
1 Journals of the California Legislature, 1850, 180.
2 Ibid., IIII.
3 Ibid., 1123-1124.
4 Ibid., 281.
5 Ibid., 289 and 323.
6 Ibid., 1204-05.
Statutes of California, 1850, 219.
CIVIL OR COMMON LAW?
287
in criminal cases.” It is divided into seven parts: the first
gives general definitions and provisions; the second relates
to the prosecution of public offences; the third, to proceed-
ings for the removal of public officers by impeachment or
otherwise; the fourth, to proceedings in criminal actions
prosecuted by indictment; the fifth, to proceedings in the
court of sessions; the sixth, to special proceedings; and the
last, to costs in criminal proceedings.1
Organizations of Courts
Closely related to the above enactments, although pre-
ceding them in time, was the bill organizing a Supreme
Court. The act was passed February 14th, 1850, and pro-
vided for the organization of a Supreme Court with a chief
justice and two associate justices, any two of whom should
constitute a quorum. Without the permission of the Legisla-
ture, they were not to leave the state for a longer period
than thirty days. The first justices were to be chosen by
the Legislature; beginning with 1851 they were to be elected
by the people at the general elections every second year, and
were to hold their office for a term of six years from Janu-
ary ist next after the election. If occasion required the
governor could appoint to fill temporary vacancies.
1 Statutes of California, 275. The act was slightly amended on the same
day. Ibid., 332.
2 S. C. Hastings was chosen chief justice at a joint session of the Legisla-
ture held December 22, 1849, and Henry A. Lyons and Nathaniel Bennett,
associate justices. Journals of the California Legislature, 1850, 618–20. Hast-
ings was to hold office for two years from January 1, 1850; Lyons was to
TV
288
N
STATE GOVERNMENT IN CALIFORNIA
The Supreme Court was to have appellate jurisdiction in
all cases where the matter in dispute exceeded $200; in all
cases where the legality of any tax, toll, impost, or municipal
fine was in question; and “in all criminal cases amounting
to felony, on questions of law alone.” The first term of the
Supreme Court was to be held in San Francisco on the first
Monday in March, 1850, and after that two regular terms
each year, on the first Mondays of June and December, were
to be held at the seat of government. Each term was to be
held for eight weeks, “unless all causes and proceedings
ready for hearing shall be sooner disposed of; and may con-
tinue until the first day of the next succeeding term." There
was to be a clerk of the court-at first appointed by the
Legislature, later elected by the people—who was to make
an official report to the governor within ten days after the
expiration of each term. Such report was to give the num-
ber of causes and proceedings on the calendar, the number
tried or heard, the number decided, the number remaining
undisposed of, and the length of the term. The Supreme
Court was given the usual power to reverse, affirm, or modify
the decisions of lower courts. 1
On February 28, 1850, was passed "an act to supersede
certain courts, and to regulate appeals therefrom to the
Supreme Court.” This act abolished courts of second in-
stance and courts of third instance which had been organized
hold office for four years, and was to be chief justice the last two; and Ben-
nett was to serve for six years from the same date. Statutes of California,
1850, 462.
Statutes of California, 1850, 57-58.
CIVIL OR COMMON LAW?
289
upon occupation of the territory by American troops, but
retained temporarily the court of the first instance and pro-
vided for transferring the business from the abolished courts
to the one retained and to the Supreme Court. 1
By an act passed March 16th entitled "an act to organize
the district courts of the state of California,” nine judicial
districts were formed and provision was made for a resident
judge in each district. As in the case of the justices of the
Supreme Court, the first district judges, according to the
constitution, were to be chosen by the Legislature. The act
fixed the time for holding courts in the various judicial dis-
tricts, prescribed the number of terms for each, and limited
their jurisdiction.2 District courts were to have "original
jurisdiction in law and equity in all civil cases, where the
amount in dispute exceeds $200, exclusive of interest; in all
1 Statutes of California, 1850, 77.
2 The judicial districts were named according to their respective numbers.
The first comprised the counties of San Diego and Los Angeles; the second,
Santa Barbara and San Luis Obispo; the third, Branceforte, Santa Clara,
Contra Costa, and Monterey; the fourth, San Francisco; the fifth, Cola-
veras, Tuolumne, San Joaquin, and Mariposa; the sixth, Sacramento and El
Dorado; the seventh, Marin, Sonoma, Napa, Solano, and Mendocino; the
eighth, Yolo, Sutter, and Yuba; and the ninth, Butte, Colusi, Trinity, and
Shasta. Statutes of California, 1850, 93.
The judges chosen by the Legislature for the preliminary term of two
years as prescribed by the constitution (the regular term from January, 1853,
was to be six years) were as follows: for the first district, 0. S. Witherby;
the second, Henry A. Tefft; for the third, John H. Watson; for the fourth,
Levi Parsons; Charles M. Creaner for the fifth; and J. S. Thomas, Robert
Hopkins, Wm. R. Turner, and W. Scott Sherwood for the sixth, seventh,
eighth, and ninth respectively. Journals of the California Legislature, 1850,
1097-1103.
290
STATE GOVERNMENT IN CALIFORNIA
criminal cases not otherwise provided for; and in all issues
of fact joined in the probate court; and in all cases involving
the title or possession of real property their jurisdiction
shall be unlimited.” The county clerks were to be ex officio
clerks of the district courts in and for their respective coun-
ties. 1
An act to organize county courts was passed April 13th.
The county judges were to hold annually at the county seats
of their respective counties four terms, commencing on the
third Monday of January, April, July, and October, for the
trial of appeals from justices of the peace, and such special
cases as were pending therein. Special terms might be held
for the transaction of probate business when the county
judge considered such special sessions necessary.
Two days earlier, April 11th, was passed an act to organize
the court of sessions in each county. It was to be composed
of the county judge who was to preside, and two justices
of the peace of the county. The latter were to be styled
associate justices, and were to be chosen by the justices of
the peace of the county, who were to be called together for
that particular purpose by the judge of the county. The
court of session was to have jurisdiction throughout the
county over all “cases of assault, assault and battery, breach
of the peace, riot, affray, and petit larceny, and over all
misdemeanors punishable by fine not exceeding $500, or
imprisonment not exceeding three months.” Power and
jurisdiction in certain other cases were specified, and the
1 Statutes of California, 1850, 93-96.
2 Ibid., 217.
CIVIL OR COMMON LAW?
291
terms of the court fixed for the second Monday of the months
of February, April, June, August, October, and December
of each year.
Other related acts passed by the first Legislature were
the following: "an act to fix the terms of the superior court
of the city of San Francisco" passed April 17th; "an act
to regulate proceedings in criminal cases;” and an amend-
ment to the same passed April 2oth; "an act defining the
time for commencing civil actions,” April 22nd; and "an act
to abolish all laws now in force in this state, except such as
have been passed by the present session of the Legislature,"
April 22nd; 2 "an act to regulate proceedings in courts of
justices of the peace in civil cases," passed April roth. A
joint resolution : was passed requiring the appointment of a
committee of three from each House to designate what laws
of a general character should be immediately published under
the act providing for the early publication of laws.4 Joint
resolutions were also passed classifying the justices of the
superior court of the city of San Francisco and the justices
of the Supreme Court.5
1 Statutes of California, 1850, 210–II.
2 Ibid., 179, 257, 275, 332, 343 and 342.
3 Ibid., 465.
4 Ibid., 92.
5 Ibid., 468 and 462.
CHAPTER XV
LOCAL GOVERNMENT AND OTHER LEGISLATIVE ENACTMENTS
Counties
THE Senate committee on county boundaries was com-
posed of De la Guerra, Green, Bidwell, and Lippincott.1
On January 4th the committee, through its chairman, De
la Guerra, made its first report. A subdivision of the state
into eighteen counties was recommended by the committee,
and seats of justice were named in all the counties with
three exceptions. The committee reported that they had
not thought it advisable to form an entire county within
the mining districts because of the transitory character of
the mining population. Such districts were therefore placed
within those counties most accessible, "and with which their
trade and communication” were chiefly connected. 2
The report was not considered until the seventh when,
after some discussion, it was returned to the committee for
their reconsideration. A few days later, January 16th,
the Senate received a petition from one hundred and forty-
one citizens of Santa Cruz “protesting against the attach-
* Journals of the California Legislature, 1850, 28.
2 Ibid., 72, 411-19.
3 Ibid., 77.
292
LEGISLATIVE ENACTMENTS
293
ing to, or including in, the county of Monterey, the district
of Santa Cruz, and praying that a county may be granted
to them known and styled as the county of Santa Cruz."
The petition was referred to the committee on county bound-
aries, and influenced the report made by them on January
18th. There were evidently protests from other places
besides Santa Cruz, so that the second report was entirely
different from the first. Instead of eighteen, the committee
now recommended subdividing the state into twenty-five
counties, and in several instances names were changed. San
Joaquin county became Calavera; Oro was changed to
Tuolumne; Benicia, to Solano; Frémont, to Yolo; and Read-
ing to Shasta. The seven new counties formed were Coloma,
Yuba, Coluse, Trinity, Marin, Mendocino and Santa Cruz.3
Among numerous amendments imposed on the bill during its
passage through the Senate was one changing the name of
Santa Cruz to Branciforte.4 The amended bill was returned
to the Assembly on January 25th, but did not receive con-
sideration until four days later. The House amended, re-
ceded from its amendments, and finally passed the bill with
a few changes on February 13th, the vote for its adoption
being unanimous. A notice of its passage was sent to the
Senate on the 14th, and the next day the amended bill passed
1 Journals of the California Legislature, 1850, 92.
2 Ibid., 95.
3 Ibid., 420–21.
4 Ibid., 100-101.
5 Ibid., 719.
6 Ibid., 735.
7 Ibid., 849.
294
STATE GOVERNMENT IN CALIFORNIA
that body. It was presented to the Governor and signed by
him February 18th.2
In its final form the bill provided for the subdivision of
the state into twenty-seven counties. County-seats were
designated in all except four. Marin and Mendocino were
attached to Sonoma for judicial purposes; Colusi was joined
to Butte; and Trinity to Shasta.3 Two bills, passed on April
6th and 18th respectively, changed the boundaries in several
instances, and restored the name Santa Cruz, as originally
proposed, for that of Branciforte. 4
On April 16th Vallejo, chairman of a committee appointed
January 22nd to report on the "derivation and definition
of the names of the several counties of California,” gave a
report not only explaining the origin and meaning of the
names in most cases, but giving a description of the coun-
ties and, in some instances, accounts of early explorations,
with estimates of the population at that date.5
On the 14th of February a bill passed the Assembly pro-
viding for holding the first county election. It was reported
in the Senate on the following day, and was passed with some
amendments. The Assembly would not agree to accept
the amendments, however.8 Committees were appointed
1 Journals of the California Legislature, 1850, 156.
2 Statutes of California, 1850, 58.
3 Ibid.
4 Ibid., 155-56 and 262–63.
5 Journals of California Legislature, 1850, 522–37.
6 Ibid., 853.
7 Ibid., 157–58.
8 Ibid., 871.
LEGISLATIVE ENACTMENTS
295
from both Houses and the disagreement was soon settled,
the Governor signing the bill on March 2nd. This was
followed by a supplementary act on March 9th.
The act of March and required the prefects throughout
the state immediately to designate a suitable number of
election precincts in each county in their respective districts,
and to give proper notice of the same in the respective coun-
ties. The prefects were also to give notice of county elec-
tions to be held on the first Monday in April for the purpose
of electing the following officers: a clerk of the Supreme
Court, a district attorney for each judicial district, a county
judge, a county clerk, a county attorney, a surveyor, a
sheriff, a recorder, an assessor, a coroner, and a treasurer.
If county precincts were not properly established by the
day indicated, elections might be held at any place where
not fewer than thirty electors were present. On the second
Monday in April, or one week after the election, the inspec-
tors in each county were to meet at the county-seats of
their respective counties as a board of canvassers. Upon
determining the results of the election, notices were sent
to the successful candidates by the president of the board.3
The bill of March gth-the supplement of the above-pro-
vided that in case the act of March and failed to reach any
prefect in time for him to give proper notice of the regular
election on the first Monday in April, such prefect should
arrange for holding the election within fifteen days after
1 Journals of the California Legislature, 1850, 172, 871, 191.
2 Statutes of California, 1850, 85.
3 Ibid., 81-83.
296
STATE GOVERNMENT IN CALIFORNIA
TY
the receipt of the notice.1 County elections, according to
the act regulating elections passed on March 23rd, were to
be held every two years on the day designated in the act of
March 2nd—the first Monday in April. In the act regu-
lating elections, general directions were given also as
to the qualifications of electors, places of holding elec-
tions, and other things common to enactments similar
in character. The officers elected in April, 1850, were
to assume their duties as soon as possible after the
election.
Still no provision had been made for organizing a govern-
ment in Marin, Mendocino, Colusi, and Trinity counties.
An act was passed for this purpose on the 18th of April. It
provided, in certain cases where county officials were not
elected under former enactments, that judges of adjoining
counties, providing there were no county judge or county
clerk in said county, should order elections in such counties.
Officers elected under this act would be considered to have
begun their term on the first Monday in April. City officers
might be similarly elected at the command of county judges,
if such had not been elected at the first election. On April
22nd, the last day the Legislature was in session, another act
was signed by the Governor declaring Marin county to be
organized with San Rafael as the county seat. Those coun-
ties that had not completed their organization according to
law were to remain under the jurisdiction of the counties
1 Statutes of California, 1850, 85.
2 Ibid., 101-II.
3 Ibid., 259-60.
LEGISLATIVE ENACTMENTS
297
to which they had been attached until such organization
was complete. 1
The Incorporation of Cities
The first Legislature incorporated six cities by special
acts, and declared three others incorporated under a general
law passed March 11th. In the first group were Sacramento,
incorporated February 27th; Benicia, San Diego, and San
José, March 27th; Monterey, March 30th; and San Fran-
cisco, April 15th. In the second group were Sonoma and Los
Angeles, incorporated April 4th, and Santa Barbara, on
April 9th.2 The Senate bill to incorporate Los Angeles had
passed both Houses of the Legislature as early as Janu-
ary 28th, but had been vetoed by the Governor, and the As-
sembly could not muster the necessary two-thirds majority to
pass the act over his veto. When the Assembly bill to incor-
porate Sacramento, however, met the same fate at the hands
of the state's chief executive, it was passed by both Houses on
the same day. Closely connected with the act to incorporate
Sacramento was a general act providing for the incorpora-
tion of towns and villages, while the act of March aith,
providing for the incorporation of cities, to which reference
has been made, doubtless grew out of the recommendations
found in the Governor's message accompanying his veto of
the Los Angeles bill and reiterated in the Sacramento veto
message. It may be well, therefore, to consider somewhat
1 Statutes of California, 1850, 406.
2 The acts of incorporation may be found in Statutes of California, 1850.
298
STATE GOVERNMENT IN CALIFORNIA
SN
in detail the incorporation of Sacramento and Los Angeles,
and to outline briefly the general laws for incorporating
cities and towns.
As early as Thursday, December 20, 1849, Cornwall, a
member of the Assembly from Sacramento, gave notice that
he would, on the following Monday, offer a bill to incor-
porate that city. It was read at the appointed time (De-
cember 24th) and immediately after the Christmas recess
(December 28th) it was brought forward again and referred
to the committee on corporations, “with instructions to
inquire into the propriety of establishing a general law on
the subject of incorporated cities and villages.” 2 The com-
mittee's report therefore dealt with the last subject and not
with the incorporation of Sacramento. On January 12,
1850, the Sacramento proposal was placed in the hands of a
special committee composed of delegates from that district.3
When the committee reported three days later, January 15th,
the report and the bill were temporarily tabled. It was ·
taken from the table on the 19th, read a second time and
amended, and on the 21st was passed unanimously. 5 On
the 24th it was amended in the Senate and passed, and the
bill in its amended form was accepted by the Assembly the
next day. Nearly a month later, February 21st, the Governor
dr
1 Journals of California Legislature, 1850, 591.
2 Ibid., 625-26.
3 Ibid., 652.
4 Ibid., 660.
5 Ibid., 699 and 701-702.
6 Ibid., 109.
LEGISLATIVE ENACTMENTS
299
returned the bill with his veto.1 The objections offered
were practically the same as those which he had submitted
when he vetoed the bill incorporating Los Angeles about
three weeks earlier, and as these will be given presently
they need not detain us here. On February 27th the bill
was passed over the Governor's veto by both Houses in the
Assembly by a vote of sixteen to five, and in the Senate by
nine to two.2 The provisions for government laid down in.
the bill were practically the same as those enacted under
the general law of March 18th.3
A bill was introduced in the Senate by Hoppe on Janu-
ary 14th to incorporate Los Angeles. 4 On the 15th it was
read a second time and laid on the table. The next day it
was taken from the table and referred to the committee on
corporations, and the committee reported on the 22nd.6
“The city of Los Angeles already has a charter or grant from
the former government,” they believed, "which gives the
inhabitants of that place, to a certain extent, the rights and
privileges of a municipality.” They further reported the
extent of lands claimed by said city, “according to verbal
information obtained,” to be four square Spanish leagues.
The old charter, if there had ever been one, was not acces-
sible, however, and if it were, the committee doubted whether
1 Journals of California Legislature, 1850, 890.
2 Ibid., 183 and 914.
3 The bill will be found in the Statutes of California, 1850, 70-74. It is
there dated March 11th.
4 Journals of California Legislature, 1850, 87.
5 Ibid., 91.
6 Ibid., 93, 103-104.
300
STATE GOVERNMENT IN CALIFORNIA
there was any tribunal in the country that could adjudicate
its merits. Furthermore they were of the opinion “that no
law passed by this Legislature can affect any right or privi-
lege claimed by any town or city under a written grant or
charter from the former government.” They therefore
er
ments. 1
The committee's report was accepted by the Senate and
the bill was sent to the Assembly. Further amendments
were introduced there and these were accepted by the Senate
on the 28th. On the 31st the bill was presented to the
Governor for his signature.3
But the advocates of the bill were doomed to disappoint-
ment. On February 8th it was returned to the Senate with
the Governor's veto. He offered two reasons for opposing
it: it was a special act to incorporate a city, and it was un-
constitutional. He recommended the passage of some gen-
eral act for the incorporation of cities. Such an act should
provide for two classes: cities upon navigable waters, and
inland cities. Two kinds of general provisions could be
embodied in one bill which would provide for the incorpora-
tion of both classes. If this were done, the Legislature would
not have to pass special acts of incorporation so frequently.
The second objection, however, was more serious than the
first. The act as passed was a direct violation of the thirty-
seventh section of the fourth article of the constitution,
1 Journals of California Legislature, 1850, 538.
2 Ibid., 112, 114.
3 Ibid., 126.
LEGISLATIVE ENACTMENTS
301
which said "it shall be the duty of the Legislature to pro-
vide for the organization of cities and incorporated villages,
and to restrict their power of taxation, assessment, bor-
rowing money" etc. The bill submitted granted "unlimited
powers of taxation under a condition, not a restriction; and
thus defeats the end and object of the constitution.” 1
Five days later, February 13th, the Senate passed the bill
over the Governor's veto by a unanimous vote.2 On the 14th
it was sent to the Assembly with the Governor's message, 3
where it failed to pass with the necessary two-thirds ma-
jority—the vote being fourteen in favor to eleven against. 4
It was reconsidered the next day, and a second time failed to
pass, the vote being sixteen in favor of passing to twelve
against.5 A notice was then sent to the Senate that the bill
had not been accepted by two-thirds of that body, and on
March 6th Hydenfeldt, a member of the Senate from San
Francisco, gave notice that he would again at the expiration
of five days introduce a bill to charter Los Angeles.? This
was done on the 13th, and the bill passed by a vote of ten
to none. It was sent to the Assembly and referred to the
committee on corporations. On the 25th it passed the As-
sembly with amendments,' and on the 27th was returned to
1 Journals of California Legislature, 1850, 137-41.
2 Ibid., 151-52.
3 Ibid., 854.
Ibid., 855.
5 Ibid., 857-58.
6 Ibid., 167.
7 Ibid., 199.
8 Ibid., 1010 and 1013.
9 Ibid., 1073.
302
STATE GOVERNMENT IN CALIFORNIA
the Senate. The amendment was accepted by the Senate,
and on April 4th the bill was signed by the Governor.?
As passed the bill declared the city to be "incorporated
according to the provisions of the act entitled 'An act to pro-
vide for the incorporation of cities' approved March 18th.”
Boundaries were named, the number of councilmen fixed
at seven, and the rights of the corporation declared to be
all those exercised by the city under Mexican rule.3
The general act under which Los Angeles was finally
incorporated probably grew out of the Governor's recom-
mendations accompanying his veto of the Los Angeles bill,
as already indicated. It was introduced in the Assembly
the day after (February 15th) the Governor's veto message
was received by that body,4 and was brought forward by
a man-Crittenden, a representative from Los Angeles
who had voted against passing the Los Angeles bill over
the Governor's veto. On the 19th it passed the Assembly
by a vote of eighteen to two, and on the same day was sent
to the Senate with the notice that the Assembly had been
unable to pass the Los Angeles bill over the Governor's veto.
The bill providing for a general act to incorporate cities
was referred to the committee on corporations, and on Febru-
ary 27th, Bidwell, chairman of the committee, reported the
bill without amendments and recommended that it be
1 Journals of California Legislature, 1850, 250.
2 Ibid., 282.
3 Statutes of California, 1850, 155.
4 Journals of California Legislature, 1850, 855, 857.
5 Ibid.
6 Ibid., 167.
LEGISLATIVE ENACTMENTS
303
“speedily passed." i It was amended somewhat in the
committee of the whole in the Senate and passed March ist.2
The amended bill was referred to the committee on corpora-
tions in the Assembly March 4th, and the first of the amend-
ments proposed by the Senate, slightly changed. The
Senate accepted the amendment to their amendment March
5th by a vote of seven to three. On the 16th the bill was
presented to the Governor, and was signed by him two days
later. As already indicated, it is dated March 11th in the
Statutes of California for 1850. The dates given in the
journals of the Senate and Assembly, together with the refer-
ence in the Los Angeles bill already cited, indicate clearly
that it should be dated March 18th.
As finally adopted the bill provided that any city having
a population of more than two thousand might be incorpo-
rated upon application, either by the Legislature or by the
court of the county in which it was located. Special acts of
incorporation were to define boundaries and declare cities
incorporated under this act, “with such changes as may be
specially named.” A town or village desiring incorporation
should present a petition signed by the majority of the
electors in the town to the county court, setting forth the
boundaries of the town and asking to be incorporated under
the act of March 18th. If the court were satisfied that the
1 Journals of California Legislature, 1850, 181.
2 Ibid., 190.
3 Ibid., 944, 945-46.
4 Ibid., 196-97.
5 Ibid., 226.
6 Ibid., 229 and 1026.
304
STATE GOVERNMENT IN CALIFORNIA
population exceeded two thousand and that a majority of
the qualified electors had signed the petition, the court
would declare the town incorporated as a city. In no case
was a city to have more than four square miles of territory.
All incorporated cities were to be governed by a mayor,
a recorder and a common council consisting of not more
than twenty nor fewer than seven members, a city marshal,
a city attorney, an assessor, and a treasurer. The number
of councilmen to be elected at the first election was to be
determined by the Legislature or by the county court. A
residence of thirty days in the city was required both to
hold office and to vote. The duties of the various officials
were given at some length, and provision was made for the
city council to create other offices when necessary. The
direct taxes imposed by the city council were not to exceed
“two per centum of the valuation of property within the
city.” 1
It will be remembered that the bill brought forward in the
Assembly December 28th on the incorporation of Sacra-
mento was referred to the committee on corporations with
instructions to inquire into the advisability of establishing
a general law on the subject of incorporated cities and vil-
lages. The committee's report did not recommend the
adoption of a single general law for the incorporation of all
cities and towns, but rather discouraged the enactment of
such a bill. They did submit a bill, however, which they
believed would "afford to almost all the villages and towns
1 Statutes of California, 1850, 87-91.
2 See above pp. 298 and 299.
LEGISLATIVE ENACTMENTS
305
of the state a charter suited to their circumstances.” i The
committee's report was accepted, and from their recommen-
dation came the “act to provide for the incorporation of
towns" passed March 27th.
Under this act any town or village with a population of
two hundred or more might be incorporated by the county
court of the county in which the town was situated when
the majority of the electors of the town petitioned for such
incorporation. Those towns desiring incorporation before
the organization of county courts should send petitions to
the governor, who was given authority to act on such peti-
tions. In no case was the area of a town to include more
than three square miles. The corporate powers of all such
towns were to be vested in a board of trustees to consist of
five members who were to be elected on the first Monday in
May of each year. A detailed account of the duties and re-
sponsibilities of the board is outlined in the bill.? They
were to be similar to those of the city council: that is the
board was to constitute the legislative department of the
town government. With the trustees were to be elected a
treasurer, an assessor, and a marshal, the last named to serve
also as a tax collector. The board of trustees was to provide
for other offices when necessary. Any town might be disin-
corporated upon the petition of three-fourths of the legal
voters of such town. Like incorporated cities, such towns
could sue and were subject to be sued in all courts.
11
1 Journals of California Legislature, 1850, 643–44.
2 Statutes of California, 1850, 128–31.
306
STATE GOVERNMENT IN CALIFORNIA
Other Acts Passed by the Legislature
While those already considered were the most important
acts passed by the first Legislature dealing with the establish-
ment of state government, they by no means constituted
the entire work of that body. Many others pertaining to
various subjects were enacted. An act providing for the
appointment of pilots for the different ports and harbors
of San Francisco; an act creating the office of state printer
and defining his duties; an act providing for the safe keeping
of the public records; acts affecting the purchase of all neces-
sary furniture, the rental of rooms for different state officials,
and the erection of court houses in the different counties;
an act to regulate elections; acts governing corporations and
authorizing the formation of limited partnerships; an act
for the creation of marine hospitals; an act defining the duties
of the state librarian and prescribing rules for the govern-
ment of a state library; acts providing for the organization
of militia, for the inspection of steam-boats, for the upkeep
of roads and highways, for the incorporation of colleges, to
take the sense of the people on the permanent location of
the seat of government, these and many others. In all
one hundred and forty-six acts and nineteen joint resolu-
1 Statutes of California, 1850.
A permanent capital was not provided until 1854 (Bancroft, History of
California, VI, 321-325). The inadequate facilities provided for the ac-
commodation of the first Legislature by the citizens of San José led to an
early agitation in favor of providing a permanent seat of government else-
where. As early as December 21st, Woodworth gave notice that he, on
the following day or at some future time, would introduce a bill to provide
for the removal of the capital to Monterey. (Journals of California Legisla-
ture, 1850, 29.) The subject did not assume definite form until April 3,
TC
LEGISLATIVE ENACTMENTS
307
tions passed the two Houses and were signed by the Governor
between December 15, 1849 and April 22, 1850. The num-
ber and character of these in themselves afford adequate
testimony of the high ability, sincere earnestness, and faith-
ful industry of the members of California's first Legislature.
1850. On that day Broderick, from the committee on public buildings
and grounds, presented a bill entitled "an act to take the sense of the people
of California upon the subject of the permanent location of the seat of
government.” It was accompanied by a "memorial” from Vallejo and by
propositions from the citizens of San José, Monterey, and San Francisco.
(Ibid., 268.) Vallejo proposed, if the Legislature would establish the Capi-
tol on land which he owned“ upon the straits of Carquines and Napa river,"
to lay out a city to be called “Eureka or such other name as the Legislature
might suggest.” Further, he would give to the state, as soon as the Legisla-
ture accepted his offer, fourteen different sections of land to be used for vari-
ous state buildings and institutions, the total grant amounting to one hundred
and fifty-six acres. In addition he would give twenty-two different sums of
money to be used for as many different specified purposes, and ranging in
amount from $3000 to $125,000, the total being $370,000. San Francisco of-
fered buildings and grounds such as the Legislature might select, providing
the whole did not cost more than $100,000. Various citizens of San José of-
fered several tracts of land aggregating several hundred acres, and the muni-
cipal authorities of Monterey made an offer of the building used by the Con-
stitutional Convention together with all necessary land for erecting public
buildings. The committee recommended the acceptance of Vallejo's pro-
posal. (Ibid., 498–510.)
Vallejo's offer was accepted by the people also, and the second Legislature
met at Vallejo, but adjourned to San José after a few days because of the
remoteness and lack of hotel accommodations in the former place. A little
later a bill was passed making Vallejo the permanent seat of government
and the third Legislature assembled there. After a few months, however,
they removed to Sacramento "to procure such accommodations as were
indispensably necessary for the proper discharge of their legislative duties.”
On June 1, 1852, the capital was again removed to Vallejo. In 1853 an act
was passed making Benicia the capital. The fifth Legislature met there in
1854, and in February of that year again located at Sacramento. Here it
has remained. The judiciary, however, fought the matter for more than a
year before it finally yielded. (Bancroft, History of California, VI, 321-25.)
CHAPTER XVI
THE LAND QUESTION
To enact statutes providing for the incorporation of cities
and towns was easy, but to put such laws into operation,
in some instances, was more difficult. This was due to the
insecurity of the land titles in some of the cities. It would
be out of place here to attempt to give even a general ac-
count of land disputes. A settlement of the various claims
which arose was not made until several years after the state
government was put into operation. A very brief summary
of the origin of these disputes may be of value, however,
in order that the reader may understand something of this
important problem which awaited solution.
Spanish and Mexican Grants
Under Spain and Mexico it was not difficult for citizens
Spanish occupation of 1769 was a colonization scheme, the
presidio being a temporary device to protect settlers, and
the mission, an expedient to prepare the natives to become
settlers and citizens. Ultimately California was to be a
country of towns and farms occupied by the descendants of
soldiers, civilized Indians, and settlers from various foreign
countries. Three pueblos were founded and naturally the
308
THE LAND QUESTION
309
first land grants were in the form of town lots. The gov-
grants were made until after 1800. A few farms were occupied
under licenses before the latter date, and about twelve more
were taken up between 1800 and 1822. “From the advent
of Governor Figueroa in 1833,” says Bancroft, “under the
1828, land grants numbered on an average fifty-three each
year to 1846, when the total number was nearly eight hun-
dred.” 1
Under Mexican regulations any citizen, whether native
or naturalized, might take up unoccupied land and apply
to the governor for a grant. Usually such an application
was accompanied by a rude map and was submitted by the
governor to the prefect, alcalde, or some other local official
for investigation. If the local officer found the land un-
claimed, and no objections were raised by citizens, he re-
ported accordingly to the governor. The latter then ap-
proved the grant, and the secretary of state made out a
duplicate copy which was kept on file in the toma de razon
or record book. The grant was not valid, however, until
approved by the assembly, or if they refused, by the govern-
ment of Mexico. After approval the grantee presented his
tituto to the alcalde, who put him in formal possession. Not
more than eleven square leagues could be granted to one
man or one family unless an agreement was made to estab-
1 Bancroft, History of California, VI, 529-30. These figures were taken
by the author from Hoffman's Reports of 1862, which, he says, are only
approximately correct. See note 2 on p. 530.
310
STATE GOVERNMENT IN CALIFORNIA
lish a colony.1 Most of the grants made were from one to
five leagues.
But lands were cheap and plentiful, and the people and
officials indolent and careless, so that in few if any cases
were all of these formalities observed. The important point
with petitioners was to get a titulo and settle on the rancho.
Such quarrels and litigations as came up were usually over
boundaries and were generally settled by arbitration. Some-
times there was no diseno or map, no informe or report of
local officials, no approval by the assembly. Few cases
were submitted to the national government. Frequently
1 Grants made to establish foreign colonies were to be at least ten leagues
from the coast and twenty leagues from the frontier. No grants were made
for this purpose, however, except the McNamara grant of 1846. Bancroft,
History of California, VI, 531, note.
An official account of Mexican procedure in issuing land grants is given in
Jones (William Carey), Report on the Subject of Land Titles in California,
Washington, 1850, pp. 4-5. He was sent out by the department at Washing-
ton in the summer of 1849 as “confidential agent of the government, to pro-
ceed to Mexico and California for the purpose of procuring information as
to the condition of land titles in California.” (Ibid., 3.) He sailed from New
York on July 17th, and reached Monterey September 19th following. From
that date until December 7th, he remained in California. His report is
dated March 9, 1850, and includes, in addition to his information on land
titles, the following in the order named: “Articles VIII and IX from the
treaty of February 2, 1848; Mexican colonization laws and rules taken from
an 'Act of the Mexican government, 4th January, 1823'; ‘Decree of the
Mexican Congress, of 18th August, 1824, on colonization'; 'Government
regulations for the colonization of territories, pursuant to the preceding law,
adopted 21st November, 1828'; 'Decree of November 4th, 1833'; 'Decree
of Spanish Cortes of January 4th, 1813”; “Acts governing the early settle-
ment of California'; 'Extract from the Regulation and Instruction for
Presidios of the peninsula of California, etc. 1779 and 1781?;" together with
a few other documents on California missions, etc.
THE LAND QUESTION
311
there was no survey of the claim at all; never an accurate
one. The grant was for so many leagues, usually at a place
indicated by name; "or a certain area more or less between
defined natural boundaries; or a fixed extent to be located
within certain larger bounds, the surplus being reserved."
In brief, the Spanish provisions for land grants were excel-
lently outlined on paper, but they also had the equally
common Spanish characteristic of being poorly executed
under the Spanish régime. Although the irregularities were
frequently deplored in the official communications of the
time, “even to the extent of declaring the titles technically
illegal, it seems clear that under Mexican law and usage
they were practically held as valid; that is, that under con-
tinued Mexican rule the governor's written concessions duly
recorded in the archives, not invalidated by regrant after
abandonment or by direct act of the supreme government,
would always have been respected as perfect titles of owner-
ship.” 1
The Alvarado Grant
One of the best known of these early grants was made to
Sutter by Governor Alvarado in 1841. This grant of eleven
leagues in the Sacramento valley was to include Sutter's
“establishment at New Helvetia." The southern boundary
was expressly stated as latitude 38 degrees, 41 minutes,
32 seconds. This would place the southern boundary some
1 Bancroft, History of California, VI, 533.
2 See the article by Royce in the Overland Monthly for September, 1885,
pp. 229, 232 and 233, on the Squatter Riot of 1850 in Sacramento.
312
STATE GOVERNMENT IN CALIFORNIA
miles north of Sacramento, crossing the river of that name
not far above its junction with the Feather river, and ob-
viously could not include Sutter's establishment at New
Helvetia, which was south of Sacramento city. The northern
boundary as indicated by the line of latitude was similarly
impossible when compared with the natural land marks-
Sutter's Buttes or the Tres Picos, mentioned in the grant."
Sutter supposed himself to be entitled to more land by virtue
of promises made to him by Governor Micheltorena in
1845, although no valid grant whatever was made by that
official.2
When the gold-seekers began to come in 1848, “Sutter
began to lose his wits. He was later accused of signing
any paper that was brought to him. At all events, he be-
haved in as unbusinesslike a fashion as could well be ex-
pected, and the result was that when his affairs came in
later years to more complete settlement, it was found that
he had deeded away, not merely more land than he actually
owned, but, if I mistake not, more land than even he him-
self had supposed himself to own." 3
Whether these charges made against Sutter were true or
not, the confusion of boundaries stated in his grant afforded
sufficient grounds for certain classes of idlers and frontiers-
men to build up cases against him. Some of the radicals
claimed that Mexican grants were invalidated by the con-
quest. The country had just been conquered from Mexico
1 Royce in Overland Monthly for September, 1885, 232 and 233.
2 Ibid., 227.
3 Ibid.
THE LAND QUESTION
313
and was therefore public property. They accordingly be-
gan to put their theories into practical operation by “squat-
ting" upon land held by the speculators. They even com-
bined into a “Settlers' Association,” employed a surveyor,
and issued to their members "squatter-titles.” 2 Such action
could lead to but one of two things: either the speculators
would have to recognize the squatter claims, or resist them.
The Sacramento squatter riot of 1850 was the result.3
Legislative Enactrient
This came, however, after the first state Legislature had
adjourned. On the last day of the session, April 22nd, that
body passed an "act concerning forcible entries and unlaw-
ful detainers.” It required that entries into lands, tene-
ments, or other possessions should be made by law only.
Forcible entries were to be inquired into by justices of the
peace and, if necessary, restitution was to be insisted upon.
A jury trial might be demanded by either party, but if no
such demand were made the dispute was to be settled by
the justice of the peace. The complainant on trial “shall
only be required to show, in addition to forcible entry or
detainer complained of, that he was peaceably in actual
possession at the time of a forcible entry, or was entitled
1 Royce in Overland Monthly for September, 1885, 234.
2 Ibid., 234–35.
3 Ibid., 225-46. This is probably the best account of the squatter riot
in Sacramento. A somewhat briefer treatment is given by the same author
in his California, Ch. VI, also in Bancroft, History of California, VI, 329,
note 25. See references given there for further accounts.
314
STATE GOVERNMENT IN CALIFORNIA
to the possession of the premises at the time of a forcible
holding over. The defendant may show in his defence that
he, or his ancestors, or those whose interest in such premises
he claims, have been in quiet possession thereof for the space
of one whole year together next before the said inquisition,
and that his interest therein is not then ended or determined,
and such showing shall be a bar to the prosecution, and in
no case when the title of the land is necessarily involved,
shall a justice of the peace have cognisance.” The defend-
ant was to be subject to a maximum fine of one hundred
dollars and cost. On a verdict for the complainant, dam-
ages for waste, etc., were to be assessed, and the rent was
to be ascertained and trebled for the period during which
the defendant had held the property. 1
This act, it is evident, was intended to meet the case of
the naked trespasser who took possession of the land with-
out pretence of title. The squatters declared that it was
passed solely to protect Sutter.3 In fact it was asserted that
the legislators and judges were not only anti-squatter in
sentiment, but even withdrew state support when the squat-
ter attempted to appeal to the federal courts. This was
due to a case brought up in the county court during the
second week of August, 1850, under the “act concerning
forcible entries and unlawful detainers." 5
d
co o
California Statutes, 1850, 425–28.
2 Overland for September, 1885, 238.
3 Bancroft, History of California, VI, 333, note.
4 Quoted in Ibid. from the Settlers' and Miners' Tribune.
5 Overland Monthly, September, 1885, 239.
A
er
THE LAND QUESTION
315
Judge Willis, after peremptorily deciding the case against
the squatters, declared informally to the attorneys “that
it was not clear to him whether the act in question or any
other law permitted appeal from the county court's decision
in a case like this. He took the matter under advisement.” 1
The remark was made in reply to a question put to him by
the squatter attorneys in regard to a stay of proceedings
just after he had rendered his decision pending an appeal
to the state Supreme Court. The squatters present rushed
from the court room and spread the news that Judge Willis
had decided against them and had declared that no appeal
from his decision was possible.3 Under the leadership of
Doctor Charles Robinson, the future free-soil governor of
Kansas, they appealed to the higher law, and precipitated
the squatter riot already mentioned.
United States and Land Titles
Y
.
The laws of civilization required the United States to
recognize existing land titles in California, and later the
obligation was made more binding by the treaty of 1848.4
During the period of the interregnum the governors had
assured property owners that all rights would be preserved,
and they had permitted the distribution of town lots under
municipal authorities, but suspended grants of new ranchos.
1 Overland Monthly, September, 1885, 240.
2 Ibid.
3 Ibid.
4 See articles VIII and IX of the treaty of Guadalupe Hidalgo.
316
STATE GOVERNMENT IN CALIFORNIA
They refused to settle the numerous boundary disputes
which naturally came up, but urged the claimants to await
the action of the national government. 1
Bills were reported in Congress in July, 1848 and in Janu-
ary, 1849 which provided for quieting land titles in Cali-
fornia and New Mexico, but they failed to pass. The matter
came up again in September, 1850 after reports on the land
situation had been received from Halleck and Jones, and
on March 3, 1851, a bill was passed. This provided for a
board of three commissioners with a secretary and an agent
skilled in law and in the Spanish language. This board was
appointed by the president for a term of three years, and
held sessions at places named by him. Each claimant under
1 For the attitude taken by Mason in some of the land questions which
came up see California Message and Correspondence, 1850, 435, 436, 438,
440, 453, 458.
2 This act may be found in Minot, Public Laws of the United States, and
session, 31st Cong., 631-34; also published in pamphlet form with Treaty
Stipulations between the United States and Mexico and Instructions to the Com-
missioners, San Francisco, 1852. See also Bancroft, History of California,
VI, 537–38, 540 et seq. Halleck's Report on Land Titles in California is in
the United States Government Documents, ist sess., 31st. Cong., H. Ex. 17,
pp. 118–82. It was sent by Governor Mason to the adjutant general at
Washington on April 13th, and is dated March 1, 1849. It was devoted to
three topics: (1) laws and regulations for granting public lands; (2) mission
lands; (3) lands likely to be needed by the United States government for
fortifications. The author's conclusions were, among others, that no grant
within ten leagues of the coast was valid; that none was valid without the
approval of the assembly or the government of Mexico; that many grants
existed which had been antedated; that mission lands belonged to the gov-
ernment unless they had been legally sold; and that coast lands granted by
order of Mexico did not include bay islands.
Jones's report made later has been noticed already. He made use of the
work done by Halleck in collecting his information.
THE LAND QUESTION
317
a Spanish or Mexican title had to present his claim to the
board with all evidence on which it was based, within two
years. A prompt decision on the validity of the claim was
one of the board's most important duties, and to accomplish
this its members were authorized to administer oaths and
take testimony. Appeals might be made by either party
to the district court, and from there to the Supreme Court.
The tribunals in all cases were to be governed “by the treaty
of Guadalupe Hidalgo, the law of nations, the laws, usages,
and customs of the government from which the claim is
derived, the principles of equity, and the decisions of the
Supreme Court of the United States, so far as they are ap-
plicable.” Those towns to which grants had been made
or which were standing on lands granted to individuals were
to have their claims presented by the municipal authorities
or by the original grantee.?
1 A concise account of these early land titles may be found in Bancroft,
History of California, VI, Ch. 20. A summary of the act of 1851 and the
claims which came before it are given on pp. 540-45 and notes.
CHAPTER XVII
THE
THE SECTIONAL CHARACTER OF THE FIRST LEGISLATURE
ECTIONAL CHARACTER OF THE
FIRST
T LEGISLATURE
Oven
It will be remembered that the question of excluding free
negroes from California produced considerable discussion in
the Convention. The subject was revived by the first Leg-
islature. Just how much Governor Burnett was responsible
for the movement would be difficult to determine. We have
seen that he urgently opposed their admission in his first
annual message, and he is reported to have been most hostile
in his attitude toward the race whether slave or free. He
had been instrumental in inserting an anti-negro admission
clause in the constitution of Oregon in 1844,3 and the failure
of California's first Legislature to pass a prohibitive act was
not in compliance with his expressed desire. The attempt
to pass such an act may or may not have been the result
of his recommendation, but assuredly those favoring such
an enactment received encouragement from his message.
VI
I–The Attempt to Exclude
On Saturday, January 26th, a member of the Assembly
from Sacramento gave notice that he would introduce a bill
1 See Chapter VI above.
2 Bancroft, History of California, VI, 312–13.
3 Ibid.
318
SECTIONAL CHARACTER OF LEGISLATURE
319
on the following Monday proposing the exclusion of free
negroes, mulatto servants, and slaves." It was brought
forward on the appointed day, but was immediately re-
jected on a motion from Randolph, a native of Virginia and
a representative from San Francisco. The vote was a close
one, thirteen to twelve, the speaker voting in favor of rejec-
tion. Of the thirteen votes favoring rejection, seven were
cast by men from northern states, three by men from south-
ern, one by a foreigner, and two by men whose nativity the
writer has been unable to learn. Five northerners, six
southerners, and one, nativity unknown, voted against re-
jection. San Francisco cast its three votes in favor of rejec-
tion; Sacramento cast three in favor and four against the
measure; San Joaquin, one in favor and five against; San
José, one for and one against; Sonoma and Monterey, the
same; Los Angeles, Santa Barbara, and San Luis Obispo
each cast its single vote in favor of rejection. - In other
words San Francisco, Los Angeles, Santa Barbara, and San
Luis Obispo were unanimous in their opposition to a bill
which would exclude free negroes; San José, Monterey, and
Sonoma were equally divided on the subject, each cast-
ing one vote in favor of and one against rejecting the bill;
while Sacramento and San Joaquin each furnished three
and one respectively in favor of rejection, and four and five
respectively against rejecting the same. The mining dis-
tricts thus contributed nine of the twelve who voted against
rejecting a bill to exclude free negroes. It will thus be seen
r
1 Journals of California Legislature, 1850, 723.
2 Ibid., 729.
.
320
STATE GOVERNMENT ÎN CALIFORNIA
ven-
that the feeling in the first Legislature at this time indicates
the same division between the mining districts and the other
parts of the state that existed in the constitutional Conven-
tion. Of the eleven northern votes cast, six were for and five
against the rejection of the bill; while the eight southerners
whose nativities are known voted two for and six against it,1
thus showing a lack of sectional feeling on the subject so
far as the Old North and the Old South were concerned.
On April 15th, Ogier, a South-Carolinian and a representa-
tive from San Joaquin, brought forward another bill "to
prevent the immigration of free negroes and persons of color
into this state." It was read a first and second time and
referred back to the committee on the judiciary. The
next day it passed the Assembly by a vote of eighteen to
seven.3
The vote analyzed above was on the rejection of the bill,
while this vote was on the passage of a similar bill. In favor
of enacting a law against the immigration of free negroes or
persons of color were seven northerners, six southerners,
one foreigner, and four whose nativities are unknown; while
five northerners, one southerner, and one of unknown na-
tivity voted against the bill. San Francisco voted one in
favor of the bill and four against it; San José, three in favor
and none against; Santa Barbara one in favor of passage;
Monterey, one against; Sonoma, one for and one against;
Sacramento, one for and one against; San Joaquin, seven
1 See above p. 258, note 5.
2 Journals of California Legislature, 1850, 1223.
3 Ibid., 1233.
SECTIONAL CHARACTER OF LEGISLATURE
321
for and one against the bill. Stowell of San Francisco had
voted in favor of rejecting the first bill, but declared him-
self in favor of passing the second. Aram of San José, who
had formerly voted in favor of rejection, now came out in
favor of the second bill. Covarrubias of Santa Barbara
made a similar change. The delegates of Monterey and
Sonoma assumed the same attitude in regard to the second
bill that they had taken toward the first. Tefft of San Luis
Obispo did not vote in the second instance. San Joaquin
cast eight votes on the second bill against six on the first,
but only one of her delegates on each occasion indicated an
attitude favoring the admission of free negroes. Only five
of the Sacramento delegates voted on the second bill against
seven on the first, but the same number (four) in both cases
expressed themselves against admitting free negroes. In
other words, the representatives from the mining districts
held firm and won over to their side one delegate from San
Francisco, two from San José (there had been only two
delegates present in the first instance but the whole number,
three, were present in the second), and one from Santa Bar-
bara. The same lack of sectionalism in so far as the Old
North and the Old South were concerned was apparent in
the second instance as it was in the first.
The bill was sent to the Senate on the same day it passed
the Assembly, April 16th. On the following day, Wednesday
(the Legislature adjourned the following Monday), Broderick
of San Francisco moved to postpone the free negro bill in-
definitely. The motion was carried by a vote of eight to
1 Journals of California Legislature, 1850, 337.
322
STATE GOVERNMENT IN CALIFORNIA
five. Of the eight votes cast in favor of indefinite postpone-
ment, five were by men from northern states, two were by
natives, and one was by a southerner. All five of the dele-
gates voting against postponement were from southern states.
Among these was Thomas Jefferson Green of Texas fame.
San Francisco voted one in favor and one against postpone-
ment, San José cast its single vote against; Sonoma, Santa
Barbara, and San Diego each voted on the affirmative;
Sacramento gave one vote to the affirmative and one to the
negative; and San Joaquin, two to the affirmative and one
to the negative. In other words the six votes cast by the
mining districts were equally divided on the subject. Brod-
erick and Hydenfeldt from San Francisco had also voted,
the former for postponement, the latter against. San José
took the same attitude in the Senate that it had taken on
the second bill in the Assembly-i.e., it voted against post-
ponement.
Briefly, three of the five votes cast against indefinite post-
ponement were by men from the mining districts; five of
the eight votes favoring such action were from regions out-
districts-Vermeule from San Joaquin and Bidwell from
Sacramento-were not present when the votes were cast.
It must also be remembered that the total representation
in the Senate from the mining districts just equalled that
from the other districts in California. Despite the absence
of two members from the mining region, the majority of the
votes cast against indefinite postponement were cast by men
1 Journals of California Legislature, 1850, 347.
SECTIONAL CHARACTER OF LEGISLATURE
323
from that section; while the majority of the votes on the
opposite side were cast by delegates outside of the mining
sections. That there was a distinct rivalry between the
mining and other districts on the free negro question, there-
fore, seems to be indisputable. There can also be little doubt
that this was due to the fact that the miners objected to
working side by side with the negroes.
II—The Failure of Old Line Sectionalism
Some time before the adjournment of the Legislature,
"an address by the people of California to the citizens of
the United States on the application of California for ad-
mission into the Union” was drawn up by a committee of
three from each House. In view of the content of the ad-
dress, an analysis of the committee will be interesting.
The three Senate members were Douglass and Fair from
San Joaquin district and Hydenfeldt of San Francisco, na-
tives respectively of Tennessee, Virginia, and South Carolina.
The Assembly representatives were Baldwin and Shepherd
of San Joaquin (Baldwin was from Alabama, and the na-
tivity of Shepherd I have not found); and Walthall of Sacra-
mento, a native of Virginia. Five of the six were thus from
southern states and the nativity of one is unknown. Five
also were from the mining districts and one from San Fran-
cisco.
The Address
The committee spoke in the name of the people of Cali-
fornia, and requested an audience "such as Americans may
324
STATE GOVERNMENT IN CALIFORNIA
ask and Americans will give.” Regrets were expressed
“that the agitation” which prevailed in the country was
attributed to the application of California for admission into
the Union. “The occasion," the committee asserted,“ has
been used to excite your minds to a degree which directs all
true patriots, and, indeed, all genuine friends of liberty
throughout the world, to look to the hazards and jeopardy
of the Union, and to reproach in their very souls the bad
spirits that conspire its ruin.” Their highest boast, they
declared, was allegiance to the Union, "and a right to an
equal participation in the glory and constitution of our
country.”
Continuing, the committee declared that California
seemed to experience less favor from the United States than
from other nations; "for, while our golden valleys and moun-
tains are exciting universal wonder, and attracting the bold
and hardy from every quarter of the globe, and our institu-
tions, modeled after the American structure, are calling
forth the admiration of the nations of the earth-its people
congregated here from every part of the Union-Americans,
all, are made the subject of bitterest debate and most
reckless legislation in the halls of Congress. This ought
not to be so. They who have employed their time in this
way could have served their country far better, we humbly
believe, had they been engaged in the enactment of a law
uniform in operation, prohibiting, under the penalties of
high crimes and misdemeanors, all persons from creating
the unholy excitement that menaces the Union.”
As citizens of California they claimed all the privileges
SECTIONAL CHARACTER OF LEGISLATURE
325
and benefits of American citizenship, and whatever evils
should result to the United States or to any portion thereof
from the agitation of the slavery question would not be the
work of their hands. “We repel the charge, or the suspicion
of any and all participation on our part in the schemes now
in agitation, affecting the integrity of the Union, planned,
continued, and advocated, as we believe, by vehement par-
tisans, and often, we grieve to add, by bad men and silly
fanatics, who appear to us not to feel the impulse of pure
patriotism, and to be incapable of rising in sentiment to the
dignity of honest devotion to the Union."
They asserted their claim to admission into the Union as
a state because California was thoroughly ripe for admission
and had conformed to all the requirements of the constitu-
tion. Any act that any free people could do, they could do.
Even under the construction that California was a territory
and not a state of the Union, they declared that Congress
had no power to exercise jurisdiction or authority over
them. They had been American citizens in the states from
which they emigrated; they remained citizens after coming
to California. They repudiated “the dogma that mere
change of residence from one part of the Union to another
vitiates or impairs our claims to the political privileges
and benefits conferred by the constitution upon all citizens
equally.”
They asserted (I) that the government of the United
States was a government of limited powers; (2) that even
the powers granted to Congress by the constitution could
not be exercised arbitrarily; (3) that Congress had no power
326
STATE GOVERNMENT IN CALIFORNIA
to interfere with the domestic institutions of any state; and
(4) that interference on the part of Congress with the domes-
tic institutions of a territory, after the people thereof had
framed a constitution and afterwards adopted the same,
was unauthorized by the constitution, was "wrong in itself,
dangerous in tendency, and destructive of the inherent
rights of a people to establish and ordain their own govern-
ment, or to abolish or alter an existing one."
These "truths” were evidently intended for the North,
but it is difficult to see why the committee thought it neces-
sary to include such. A similar reply, they asserted, could
be made to any opposition which the South might make to
that clause in the constitution of California which forbade
slavery. “But the good sense of our brethren of the South,
we trust, renders any remarks on this point unnecessary.
We, as well as they, have witnessed the fanaticism of certain
classes of ultra abolitionists in the states, few in number,
and powerless to consummate their wicked purposes; we
too have condemned the abolition gang that is waging an
unholy crusade against the constitution and integrity of
our glorious Union; we, too, have marked their progress,
and prayed for the day when these enemies to all that Amer-
icans hold most dear should be arraigned before the tribunal
of an outraged people, and forced to suffer the severities of
punishment due to national crimes and treason against the
constitution.”
California had drawn up a constitution to establish a state
government. It was true that Congress had a right to alter
this and force California to remain in the territorial stage,
SECTIONAL CHARACTER OF LEGISLATURE
327
but the exercise of such power would be very unwise. Ad-
mission into the Union as a state was what they wanted.
“Yet, whatever be the fate of our prayer, we will not despair,
nor will the continued neglect of Congress shake our attach-
ment to our country or love for our countrymen. Nor will
we reproach the legislators of the Union who, in the discharge
of their responsible duties, at one time leave their country-
men to the mercy of laws written in a foreign language, and
unsuited to their government, and then, when these laws
are overthrown by Americans fresh from the states,' and
American laws and institutions established in their place,
cry out against their brethren, and denounce the constitu-
tion as the work of ignorant and unworthy men, ... we
will not attempt any supplication--we need not-we would
not. But we have one request which, we beg, will be de-
liberately and patriotically considered, that is to say, should
Congress refuse to admit California as a state into the Union,
we pray that their action will cease with the refusal, and
that, as heretofore, they will neglect to pass any law for
California. Upon the happening of this event, we will not
further ask the attention of Congress to our interests, and
beg that our wishes will be considered as embodied in a
simple request contained in three words, Let us alone.” 1
The address, however, was not accepted by the Assembly.
It was rejected by a vote of eighteen to nine at the evening
session on April 22nd. The attempt at old line sectionalism
thus failed.
1 Journals of California Legislature, 1850, 1277-83.
2 Ibid., 1286–87.
CHAPTER XVIII
ADMISSION TO STATEHOOD AND INFLUENCE IN THE SENATE
WHEN the Legislature adjourned on April 22nd, the people
of California were by no means sure that Congress would
recognize the government established on the Pacific coast;
and until such recognition should take place the state could
not be considered permanently organized. It will be neces-
sary, therefore, to follow briefly the proceedings in Congress
in so far as they pertain to the admission of California into
the Union as a state.
The Subject Before Congress
On January 29, 1850, Clay introduced his famous com-
promise resolutions in the Senate, the first of which declared
that “California, with suitable boundaries, ought, upon her
application, to be admitted as one of the states of this Union,
without the imposition by Congress of any restriction in
respect to the exclusion or introduction of slavery within
those boundaries." 1 Although Clay had requested mem-
bers of the Senate to give some time to considering his resolu-
tions before discussing them, and even fixed a day for their
special consideration, his colleagues were not willing to let
the subjects pass without immediate objections. Rusk of
1 Journal of the Senate, ist sess., 31st. Cong., 118; Cong. Globe, ist sess.,
31st. Cong., pt. I, 244; Von Holst, Constitutional History of the United States,
III, 484; Rhodes, History of the United States, I, 122.
328
ADMISSION TO STATEHOOD
329
Texas, Foote and Davis of Mississippi, and Mason of Vir-
ginia objected in turn. Foote immediately answered Clay's
eight resolutions with eight objections. In these he expressed
his willingness to admit all of California north of 36 degrees,
30 minutes as a free state, providing a "new slave state can
be laid off within the present limits of Texas." 1 The discus-
sion was renewed February 5th and 6th, and during the rest
of the month it was before the Senate almost every day.2
On February 13th, President Taylor forwarded to both
Houses of Congress copies of California's constitution which
had been given to him by Gwin.; Douglas moved that the
message and accompanying papers be referred to the com-
mittee on territories, but withdrew his motion when Benton
suggested that Clay be given the opportunity for moving
the appointment of a special committee to consider the
subject. Despite the urgent requests from Benton, however,
Clay refused to make the motion. The senator from Mis-
souri 4 then moved the appointment of such a committee,
of which Clay was to act as chairman. Foote objected be-
cause he proposed to offer a resolution during the day which
would include the consideration of the subject under dis-
1 Cong. Globe, ist. sess., 31st Cong., pt. I, 244-52.
- See Ibid. under following dates: February 8, 11, 12, 13, 14, 18, 19, 24, 25
and 28. The famous speeches of Clay, Calhoun and Webster on the com-
promise measures were made respectively on January 29th, March 4th and
March 7th.
3 Journal of the Senate, ist sess., 31st Cong., 151; Journal of the House,
ist sess., 31st Cong., 529.
4 Benton was especially interested in procuring the admission of Cali-
fornia ir to the Union. Of course it is well known that his son-in-law, Fré-
mont, was senator-elect from that state.
330
STATE GOVERNMENT IN CALIFORNIA
11
OW
S
cussion, by a special committee.1 At the end of the day's
session he offered a resolution to refer the message and accom-
panying papers to a select committee of fifteen to be chosen
by ballot, whose duty it should be to consider the same; "and
also to take into consideration the various propositions now
before the Senate relating to the same subject, in connection
with the question of domestic slavery in all its various bear-
ings; and to report, if they found it practicable to do so, a
plan for the definite settlement of the present unhappy con-
troversy, and rescue from impending perils the sacred Union
itself.” 2 The Senate adjourned, however, without taking
action on the subject.
On the 28th of February, another set of compromise resolu-
tions was submitted by Bell of Tennessee. Each of the
nine resolutions was accompanied with arguments in favor
of its adoption. The sixth provided that “the constitution
recently formed by the people of the western portion of Cali-
fornia, and presented to Congress by the President . . ., be
accepted, and that they be admitted into the Union as a
state upon an equal footing in all respects with the original
states.” And the ninth provided that the committee on
territories “be instructed to report a bill in conformity with
the spirit and principles of the foregoing resolutions." 3
The principal objections offered to the admission of Cali-
fornia, according to Bell, were (1) that the boundaries in-
Cong. Globe, ist sess., 31st Cong., pt. I, 355.
2 Ibid., 356; Journal of the Senate, ist sess., 31st Cong., 151.
3 Cong. Globe, ist sess., 31st Cong., pt. I, 436–39; Journal of the Senate,
ist sess., 31st. Cong. 184-85.
ADMISSION TO STATEHOOD
331
331
cluded in her constitution embraced too much territory,
(2) the manner in which the constitution was framed”
was irregular, (3) many of the residents of California were
not citizens of the United States, (4) that the constitution
“was framed under the exercise of an improper influence on
the part of the President of the United States."
So far as the boundaries were concerned, Bell did not think
them too extensive. He even wished that they had included
the country around the Great Salt Lake. In answer to the
second objection, he said it should be remembered that the
constitution was satisfactory to the inhabitants of California.
It was not acceptable to him or to the South generally in one
particular (the slavery question), but he thought that Con-
gress would have to concede that point because the people of
California wished them to do so. The third objection he
thought was not well founded. It was true that there were
many foreigners and transients in California, but there was
also a class of permanent inhabitants, excluding Mexicans,
and they were the ones who drew up the constitution which
had been submitted by that state. And coming to the last
objection, he said that he had seen no evidence to sustain it.
"The initiative in the formation of that constitution was
taken before any message or even any ship arrived from the
United States conveying a message from the President; be-
fore any intelligence had reached their shores as to what were
the opinions and policy of the President upon that subject.” 1
1 Cong. Globe, ist sess., 31st Cong., pt. I, 438. Bell's resolutions, like
Clay's, were discussed at frequent intervals in the Senate up to the time of
the appointment of the committee of thirteen.
332
STATE GOVERNMENT IN CALIFORNIA
Nearly a month later, March 25th, Douglas, on behalf
of the committee on territories, submitted a bill for the ad-
mission of California into the Union, and another for the
establishment of territorial governments in Utah and New
Mexico, “and for other purposes." i It came up again as a
result of a motion made by Benton on April 18th, but was
immediately tabled on the motion of Clay. On the follow-
ing day it was again brought forward, read a second time,
and made the order of the day for Monday, May 6th. It
did not come up on the appointed day, however, but was
evidently placed aside temporarily to give place to another
bill then being prepared by the committee of thirteen, and
submitted by them two days later. It will be necessary,
therefore, to go back a little and consider the appointment
and work of this committee.
The Committee of Thirteen Appointed
On December 27, 1849, Foote offered a resolution as fol-
lows: "That it is the duty of Congress, at this session, to
establish suitable territorial governments for California, for
Deseret, and for New Mexico." 4 When this resolution was
up for consideration on February 25, 1850, Foote moved
“that that resolution be taken up for the purpose of being
referred to a committee of thirteen, six of whom to be
1 Journal of the Senate, ist sess., 31st Cong., 234; Cong. Globe, ist sess.
31st Cong., pt. I, 592.
? Journal of the Senate, ist sess., 31st Cong., 234.
3 Ibid., 292.
4 Ibid., 34.
ADMISSION TO STATEHOOD
333
selected from the slave states and six from the free states,
and one to be chosen by these twelve,—with instructions
to take upon themselves the duty of endeavoring to procure
a compromise embracing all the questions now arising out
of the institution of slavery.” i Hale of New Hampshire
offered an amendment as follows: "Securing to the inhabit-
ants of those territories all the privileges and liberties se-
cured to the inhabitants of the North-west territory by the
ordinance of July 13, 1787."2 These resolutions were passed
over informally at the morning session, but in the afternoon
Foote requested permission to renew his motion when the
Senate took up consideration of the compromise resolutions
offered by Clay on January 29th preceding. 3 Foote ex-
plained that the acceptance of his resolution need not inter-
fere with the discussion of the compromise measures before
the Senate, and with the bill for the admission of California.
He also strongly intimated that unless it were accepted
within a week, a dissolution of the Union would result.4
His attention was called to the fact that Hale's amendment
was first in order, and as Hale was absent from the Senate,
the subject was postponed. On March 5th, Foote gave
notice that he intended to "press very earnestly” his recom-
Cong. Globe, ist sess., 31st Cong., pt. I, p. 416. As quoted on p. 418 the
wording is somewhat different.
Von Holst, Constitutional History of the United States, III, 490, says that
· Foote moved the appointment of this committee on February 21st. The
mistake is probably due to the fact that he saw the incorrect date, a printer's
error, of "February 21" on p. 418 of the Globe.
2 Ibid., 418.
3 Ibid.
4 Ibid.
334
STATE GOVERNMENT IN CALIFORNIA
mendation for the appointment of the committee of thirteen
after Webster had delivered his address on March 7th.1 The
day following that speech he brought forward his motion
and attempted to have Bell's resolutions included for the
committee's consideration. Again, however, the motion
failed to come before the Senate.2 On March 12th, Foote
pushed his motion vigorously as he had promised to do on
the preceding day, but it was objected to and discussed by
various senators until time to proceed with the business of
the day, when it was again postponed. He succeeded, how-
ever, in having it made the order of the day for March 13th.3
On that day it came up at the appointed time, but was
amended by Benton so as to prevent such a committee from
considering the admission of California. Again the senators
made long speeches and discussed things not connected
with Foote's motion or Benton's amendment, and the sub-
ject was postponed. This procedure continued for over a
month. On April bith and 17th, Foote's motion was
blocked by Benton, who was persistent in his effort to pre-
vent such a committee from connecting the admission of
California with any proposal that would "require the assent
of any other state to its completion."7 Finally on April 18th,
after Benton had submitted fourteen resolutions and re-
1 Cong. Globe, ist sess., 31st Cong., pt. I, 461.
2 Ibid., 496.
3 Ibid., 508–510.
4 Ibid., 517.
5 Ibid., 517–21.
6 Ibid., 527, 565, 587, and 617.
Journal of the Senate, ist sess., 31st Cong., 276–77, 289-90.
ADMISSION TO STATEHOOD
335
quired the yeas and nays on each one separately, it was
ordered that “the resolutions submitted by Mr. Bell ...
together with the resolutions submitted ... by Mr. Clay,
mittee of thirteen: Provided, That
the Senate does not deem it necessary, and therefore declines,
to express in advance any opinion, or to give any instruc-
tion, either general or specific, for the guidance of the said
committee.” 2 On the next day, the Senate proceeded by
ballot to appoint the following men on the committee of
thirteen: Clay, chairman, Dickinson, Phelps, Bell, Coss,
Webster, Berrien, Cooper, Downs, King, Mangum, Mason,
and Bright.3 Once more Benton attempted to prevent the
committee from connecting the question of California's
admission with any other subject, but his motion was passed
over. 4
The Committee's Report
This committee gave a report on May 8th. After some
general remarks on the various topics, they rendered their
report on the following subjects: California, the territory of
Utah, the territory of New Mexico, proposition to Texas,
fugitive slaves, and the slave trade in the district of Co-
lumbia. While the report was given under these six head-
ings, the committee recommended combining the first four
1 Journal of the Senate, ist sess., 31st Cong., 292-99.
2 Ibid., 299.
3 Ibid., 301; Cong. Globe, ist sess., 31st Cong., pt. I, 780.
4 Ibid.
Cong. Globe, ist sess., 31st Cong., pt. I, 947–48.
336
STATE GOVERNMENT IN CALIFORNIA
"in order more. certainly to secure” the establishment of
territorial governments in Utah and New Mexico. It is the
purpose of this work, however, to deal with only that part of
the report which pertains to the admission of California.
In their general remarks the majority of the committee
recommended the admission of California. Any "irregu-
larity by which that state was organized without the previous
authority of an act of Congress ought to be overlooked, in
consideration of the omission by Congress to establish any
territorial government for the people of California, and the
consequent necessity which they were under to create a
government for themselves best adapted to their own wants.”
It might have been better, the committee continued, to
have assigned the state a more limited front on the Pacific,
but the boundaries proposed in the constitution did not
embrace a “very disproportionate quantity of land adapted
to cultivation” and should therefore be accepted. If, after
further explorations of the territory, an increase of her popu-
lation and "an ascertainment of the relations which may
arise between the people occupying its various parts,” it
should be found necessary to form a new state in California,
they believed it could be done without much difficulty.
The bill of admission provided that California should
immediately become one of the states of the Union. It
was to have two representatives in Congress until the census
was taken, when a more accurate apportionment could be
made. The admission was to be upon the express condi-
tion that the people of said state, through their Legislature
1 Cong. Globe, ist sess., 31st Cong., pt. I, 945.
ADMISSION TO STATEHOOD
337
or otherwise, shall never interfere with the primary disposal
of the public lands within its limits, and shall pass no law
and do no act whereby the title of the United States to, and
right to dispose of, the same shall be impaired or questioned;
and that they shall never lay any tax or assessment of any
description whatsoever upon the public domain of the United
States; and in no case shall non-resident proprietors, who
are citizens of the United States, be taxed higher than resi-
dents; and that all the navigable waters within the said
state shall be common highways, and forever free, as well
to the inhabitants of said state as to the citizens of the United
States, without any tax, impost or duty therefor: Provided,
That nothing herein contained shall be construed as recog-
nizing or rejecting the propositions tendered by the people
of California as articles of compact in the ordinance adopted
by the Convention which formed the constitution of the
state:" It further provided for the enforcement of all United
States laws not “locally inapplicable.” 1
The Bill Passes
This was the part of the California bill—the so called
omnibus bill-dealing with the admission of that state into
the Union. The exact title was “A bill to admit California
as a state into the Union; to establish territorial govern-
ments for Utah and New Mexico; and making proposals
to Texas for the establishment of her western boundaries." 2
1 Cong. Globe, ist sess., 31st Cong., pt. I, 947.
2 Journal of the Senate, ist sess., 31st Cong., 327. This was senate bill
No. 225.
338
STATE GOVERNMENT IN CALIFORNIA
.
It was discussed at frequent intervals in the Senate from
the time of its introduction until August ist. By that time
it was found to be impossible to get a majority of the Senate
to support all the measures of the bill when taken collec-
tively; so the title was changed to "an act to establish a
territorial government for Utah.” i On the preceding day,
Douglas had again brought forward the bill for the admis-
sion of California proposed by the committee on territories
on March 25th. It had been left unconsidered since April
19th, the expectation being that the committee of thirteen
would provide a satisfactory bill for the admission of Cali-
fornia.
Douglas's bill was discussed in the Senate on August 2nd,
and Foote tried in vain to amend it by establishing the Mis-
souri compromise line as the southern boundary. While
the bill was under discussion on August 6th, a similar amend-
ment proposed by Turney was rejected. Four days later,
August ioth, Yulee proposed to amend the bill by practically
substituting another which would establish two territories,
one to be known as California and the other as South Cali-
fornia, the line of division to be 36 degrees, 30 minutes.
The government which had been established in California
was to be recognized as territorial, and provision was made
for calling a convention and establishing a state government.
The proposal was rejected, however, by thirty-five to twelve.
2 Ibid., 517.
3 Ibid., 520.
4 Ibid., 530.
ADMISSION TO STATEHOOD
: 339
This was followed by a proposed amendment offering ex-
ceptionally liberal land grants to California, providing she
would accept the line of 36 degrees, 30 minutes as her south-
ern boundary. The proposal was rejected by twenty-nine
to thirteen. A similar attempt to restrict the boundaries
failed on August 12th, and the next day the bill passed the
Senate by thirty-four to eighteen.2
Senate bill 169 was sent to the House of Representatives
August 14th.3 On September 7th, it came before the House
for discussion. Here, too, a vain attempt was made to con-
fine the southern boundary to the Missouri Compromise
line, and the bill was then passed by one hundred and fifty
to fifty-six.4 Two days later, September 9th, the President
signed it. The bill passed was practically the same which
had been proposed by the committee of thirteen, and which
is given above.?
How did California's Admission Affect the Comparative Repre-
sentation of North and South in the Senate?
There were, according to Professor C. E. Persinger, three
distinct groups of democrats in 1844. They were the south-
1 Journal of the Senate, ist sess., 31st Cong., 546-551.
2 Ibid., 553 and 557.
3 Journal of the House, ist sess., 31st Cong., 1264.
4 Ibid., 1423.
5 Ibid., 1438.
6 Minot, Public Laws of the United States, ist sess., 31st Cong., 452–53.
7 News of the admission reached San Francisco on the morning of Oc-
tober 18th, and on the 29th the event was formally celebrated in Ports-
mouth square. Bancroft, History of California, VI, 347-48.
8 See Professor Persinger's article on “The 'Bargain of 1844' as the origin
340
STATE GOVERNMENT IN CALIFORNIA
ern led by Calhoun; the northern under the leadership of
Van Buren; and the northwestern which wavered between
Cass, Douglas, and Allen. The first was recognizedly pro-
slavery and proslave soil. The second was antislavery and
free soil, and was about to unite with the liberty party to
form the free soil party of 1848. The third was also anti-
slavery and free soil, but was moderate in its views. It was
willing to see slave soil increased providing an equal, or
more than an equal amount of free soil was added to the
North. Hence when the South clamored for Texas, the
Northwest declared itself willing to assist in the acquisition,
providing the South would use its influence to assist the
Northwest in securing Oregon. This explains the origin of
the “Oregon and Texas plank” in the democratic platform,
and the “bargain of 1844."
Texas was brought into the Union under this agreement
in 1845 but after the acquisition of Texas the South refused
to fulfill its part of the bargain. This refusal, according to
the authority already quoted, led to the introduction of the
Wilmot proviso in the summer of 1846, the suggestion having
originated with a northwestern democrat, Brinkerhoff of
Ohio. Thus the northwestern democrats, in retaliation for
what they considered a breach of faith on the part of the
South, attempted to prevent the latter from extending slav-
ery over a territory which the South expected to procure
for that very purpose.
of the Wilmot Proviso" in the Annual Report of the American Historical
Association, 1911, Vol. I, pp. 189-95.
1 Ibid.
ADMISSION TO STATEHOOD
341
Does this opposition of the Northwest to the South mani-
fest itself in the compromise of 1850? Not on each of the
measures which made up the compromise, but it must be
remembered that the South itself was not united on all of
these. Indeed there were only four senators who voted
for all the measures in the Senate.1 So far as the opposition
concerned the admission of California, however, there is no
question. The northwestern democrats gave all the votes
cast from that section in both Houses in favor of admission.2
To say they would have cast their votes against admission
if the bargain of 1844 and the Wilmot proviso had not been
incidents in the relations of the two sections, would of course
be making an assertion which can not be proven. It is
possible, however, if the southern wing of the democratic
party had been in the hands of a skilful political leader dur-
ing the period from 1844-1850, that California's admission
might have been prevented.
But did the South lose its influence in the Senate by the
admission of California?
Of the twenty-four states in the Union after the admission
of Maine and Missouri in 1820, twelve were slave and twelve
were free. The admission of Arkansas in 1836 gave the slave
states a majority in the Senate, but this was offset by the
admission of Michigan in 1837. In 1845 the South secured
two more states-Florida and Texas. Again, however, the
North gained equal representation through the admission
* Rhodes, History of the United States, I, 183.
2 See U. S. Senate and House Journals, ist sess., 31st. Cong., under the
dates of August 13th and September 7th respectively.
342
STATE GOVERNMENT IN CALIFORNIA
of Iowa in 1846 and Wisconsin in 1848. The balance of
power in the Upper House of Congress, therefore, was to be
determined by California. The attitude which the state had
taken towards slavery in its constitution afforded sufficient
reason for expecting it to send anti-slavery members to the
Senate. This, however, it did not do. :
The first Legislature of California, as we have seen already,
was composed largely of men who had come to the Pacific
coast from northern states. They knew something of the
struggle which Congress was having over the slavery ques-
tion, and in order to appease southern opposition to some ex-
tent, elected one proslavery representative-Gwin , and one
antislavery member-Frémont. The latter's term expired
on March 4, 1851, and he spent the winter of 1850-51 in
California trying to secure reëlection. The Legislature,
however, did not agree on a successor until January, 1852,
when John B. Weller was chosen to succeed Frémont. Weller
was a proslavery democrat from Ohio.
Thus California, a state that had voted unanimously
against slavery while drawing up a state constitution, elected
proslavery men to the Senate of the United States.
wa
CHAPTER XIX
STATISTICS ON CALIFORNIA IN 1850
What was the population of California in 1850? What
per cent was composed of recent immigrants? How were
the people distributed over the state? What different pro-
fessions and occupations were represented? Answers to
these questions will be attempted in this chapter, and some
data will be given on the wealth and on the meager educa-
tional and religious advantages afforded in the new state at
the time of its admission into the Union. The information
has been collected entirely from the United States census
for 1850, unless otherwise indicated. These reports, in so
far as they pertain to California, are incomplete in some
respects and are doubtless inaccurate in others, but the data
there given is the most reliable to be obtained on the subject
for the period treated.
Population
In the summer of 1850, the total population of California,
excluding Indians, was 92,597 plus the population of San
Francisco, Contra Costa, and Santa Clara counties. The
returns from the first were destroyed by fire, and those of
the last two were lost. These three were not as thickly
1 See the Seventh Census of the U. S., pp. 966-85.
343
344
STATE GOVERNMENT IN CALIFORNIA
populated in 1850 as some of the other counties farther east,
but undoubtedly they contained enough to bring the total
up to 100,000 people.
Of the 92,597 people given in the seventh census, 91,635
were white and 962 were colored. Divided according to
sex the men numbered 84,708 whites and 872 colored; and
the women 6927 and go whites and blacks respectively. The
six counties containing the largest white population were
El Dorado, with 19,908; Calaveras, 16,802; Yuba, 9607;
Sacramento, 8875; Tuolumne, 8288; and Mariposa, 4184.
The six containing the largest colored population were the
following: Sacramento county, 212; Mariposa, 195; El
Dorado, 149; Calaveras, 82; Yuba, 66; and Tuolumne, 63.
In other words 68,431, or more than seventy-three per cent,
of the total 92,597 people were living in or just east of the
Sacramento and San Joaquin valleys. That they were
1 The Annals of San Francisco (page 301) gives to that city a population
of about 25 or 30 thousand. This is undoubtedly too large, however. San
Francisco's population was so shifting at this period that it is almost im-
possible to get a correct estimate. The directory issued in September, 1850,
contained 2500 names, and the votes cast in the following October reached
3440. Bancroft, Hist. of Calif., VI, 168, note 14. The same authority
gives the population for January, 1848, as 800; in February, 1849, it had
reached 2000, and in August of the same year, 6000. During the winter of
1849-50 about 14,000 miners came in for the winter. Ibid., 6 and 168. The
state census for 1852 gives San Francisco county 36,154; Contra Costa,
2786; and Santa Clara, 6764. Seventh Census of U.S., 982.
2 Only ten of the twenty-seven counties in the state are given in subdivi-
sions in the Census reports. These were El Dorado, Los Angeles, Mon-
terey, Napa, Sacramento, Solano, Sutter, Trinity, Yolo, and Yuba. The
two largest towns in these counties were Sacramento City with a population
of 6820 and Placerville with 5632. Only seven other towns in the ten coun-
ties had populations of more than 1000. Seventh Census of the U.S., 970–71.
STATISTICS ON CALIFORNIA IN 1850
345
seventy-six per cent of the number of families and more
than seventy-two per cent of the number of dwellings in the
state were in the counties named.
• Comparatively few of the white population-7696-were
born in the state; 61,866 were natives of other states of the
Union; 21,629 were born in foreign countries; and the na-
tivities of 444 were not reported. Sixty-nine of the colored
population were born in the state; 709 were born in other
states of the Union; 173 in foreign countries and the nativi-
ties of eleven were not reported. That is, 84,377 or more than
ninety-one per cent of the 92,597 people reported were born
outside of the state. Of course a very much larger per cent
of the women than of the men were natives of California.
ending June 1.
Professions and Occupations
Two hundred and fifty-five different professions, occupa-
tions, and trades were filled by 77,631 men. By far the
largest number of these-57,797—were miners. Next in
numerical order were 3284 merchants-not including many
grocers, clothiers, etc., 2410 traders, 2159 laborers, 1486
farmers, and 1172 carpenters. The leading professions were
represented as follows: physicians (not including three sur-
teachers, 21 and 17 respectively; clergymen, 36; dentists,
20; actors, 14. Among other professions, trades, and occupa-
346
STATE GOVERNMENT IN CALIFORNIA
tions were 46 musicians, 7 editors, 2 students, 18 surveyors,
2 undertakers, 38 manufacturers, 199 packers, 457 “black
and white smiths,” 526 clerks, 413 cooks, 598 inn keepers,
besides watchmakers, tanners, millwrights, machinists, ma-
sons, and many others.
Farm Lands, Produce, and Live Stock
There were 32,454 acres of improved, and 3,861,531 acres
of unimproved farm land in the state valued at $3,874,041.
More than eighty-three per cent of these lands (estimat-
ing in cash value) were located in those counties along the
coast; while fifty-six per cent were to be found in Mon-
terey ($900,399), Santa Barbara ($745,032), and Los An-
geles ($649,900) counties alone. The farming implements
and machinery were estimated at $103,483.
For the year ending June 1, the produce was as follows:
17,328 bushels of wheat, 12,236 bushels of corn, 1000 pounds
of tobacco, 5520 pounds of wool, 2292 bushels of peas and
beans, 9292 bushels of white potatoes, 1ooo bushels of sweet
potatoes, 9712 bushels of barley, $17,700 worth of orchard
products, 58,055 gallons of wine, $75,275 worth of market
garden products, 705 pounds of butter, 150 pounds of cheese,
and 2038 tons of hay. Los Angeles county produced all of
the tobacco, 5926 bushels of the wheat, 8391 bushels of the
corn, 3440 bushels of the barley, 57,355 gallons of wine, and
$6550 worth of garden products. Santa Barbara county
produced most of the butter—655 pounds, 4790 pounds
of the wool, 3065 bushels of corn, and 2602 bushels of
STATISTICS ON CALIFORNIA IN 1850
347
wheat. Of the $17,700 worth of orchard products, Sonoma
county produced $13,000. All of the sweet potatoes were
raised in Sutter county. Sacramento county furnished
$41,000 worth of market garden produce, 7500 bushels of
wheat, goo bushels of potatoes, and 1780 tons of hay.
Schools and Churches
.
Five thousand two hundred and thirty-five of the total
adult population were unable to read and write. Of these
2318 were natives and 2917 were foreign born. There were
two so called public schools, one at Santa Barbara with one
teacher, twelve pupils, and an endowment of $3600; and the
other in Sonoma county with one teacher and thirty-seven
pupils. The six “academies and other schools” reported
were similar in character to the public schools. Two of the
former were in Napa county and one each in Sacramento,
Santa Barbara, San Joaquin, and Solano counties. They
contained an enrollment of 170 pupils, and the total annual
income from endowment and other sources was $14,270.
The Roman Catholics had the largest number of churches,
eighteen, with church property valued at $233,500. The
Methodists, Presbyterians, Baptists, and Episcopalians had
five, three, one, and one respectively with property valued
at $18,300, $11,000, $5,000, and value not reported. The
1 There were in the state about 12,000 under twenty years of age, of whom
about 5000 were under fifteen.
2 There were four daily and three weekly newspapers in the state, with
circulations of 2000 and 2600 respectively. Seventh Census of the U.S., 979.
348
STATE GOVERNMENT IN CALIFORNIA
Catholics were located in the counties as follows: six churches
in Santa Barbara, four in Monterey, three in Los Angeles,
and one each in Marin, Sacramento, Santa Cruz, San Joa-
quin, and Sonoma counties. Three of the Methodist churches
were in Sacramento, and one each in San Joaquin and El
Dorado counties. Sacramento, San Joaquin, and Solano
counties each contained one Presbyterian church; while both
the Baptist and Episcopalian were in Sacramento county.
All the protestant churches, with the possible exception of
one Presbyterian, were in the thickly populated area, while
sixteen of the Catholic denomination were strung along the
sea coast from Los Angeles to Sonoma county.
Thus the churches and farms of the state were confined,
for the most part, to the old settlements along the coast,
while by far the largest per cent of the population were to
be found where the gold fields lay.
CONCLUSION
OF the ninety per cent of the population born outside of
the state doubtless more than seventy-five per cent had been
in California less than two years. The predominating ele-
ment was of course American. In their home states they
had been whigs and democrats, northerners and southerners,
proslavery and antislavery advocates, but in California
they forgot their parties and their sections. Whatever their
opinions had been on the subject, in California they deter-
mined that slavery should not be introduced. There was
no form of sectionalism in the state that would preserve this
institution. Even the entrance of the free negro was op-
posed by antislavery and proslavery men alike when they
expected that he would become a co-worker with them in
the mines; and his free admission into the state was finally
secured through the coöperation of men who in their home
states had been bound by opposing sectional environments.
If southern men in the convention of 1849 ever attempted
to form a clique for the purpose of saving a part of California
for slavery, there is no indication of it in the proceedings of
that body. There was apparently no more union among men
from southern states than among those who came from the
North. Old interests created by old environments were re-
placed by new interests produced by new conditions, and
OT
en
1 See Prof. MacDonald's little volume, From Jefferson to Lincoln, p. 141.
349
350
STATE GOVERNMENT IN CALIFORNIA
these caused northerner and southerner to unite against
those whom they had formerly supported. The fact that
the state did permit itself to extend sympathy to the slavery
agitators of the Union soon after its admission was doubtless
due to the influence of politicians or should it be poli-
tician? For certainly the student of this early period has
occasion for feeling that California's history during the fifties
might have been different if Gwin had not been sent to Wash-
ington amidst the old proslavery surroundings of former
days.
INDEX
37, 38, 39, 44, 51, 56, 57, 58, 59 ff.,
Ackerman, J. Howard, clerk of
71 ff., 84, 85, 93, 130, 133, 166,
legislature in government or-
169, 197, 219, 220, 225, 229, 232,
ganized at San Francisco (1849), .
247, 258, 272, 273, 280, 306 n.,
68
307 n., 309, 310 n., 313, 314, 316,
Administration theory of govern-
317, 318, 339, 344; History of
Utah, cited, 160, 161, 162, 163;
"settler's theory," 74-75
quoted on sources of California's
constitution, 242
opposition to, voiced by news-
Banks, opposition to, declared by
papers, 63-66
constitutional convention of 1849,
Alvarado, becomes governor of
178–192
California, 9; grant of land made bautis
Bautista, Juan, leader of revolu-
to Sutter by, 311-313
tionary Californians, 8
Annual sessions of the legislature,
Bear Flag Republic, the, 12-14
decision in favor of, in constitu-
Bennett, Nathaniel, associate jus-
tional convention, 102-104
tice of supreme court, 287 n.
Appellate courts, question of union
Benton theory of government in
of district courts and, before con-
California, 75 -
stitutional convention, 95-96
Boundary question, settlement of, in
Appellate jurisdiction of supreme
constitutional convention, 133–
court, question of, 97-99, 288
174
Apportionment of representation in
Browne, Report of Debates in the
state legislature, 220
Convention of California, cited and
Argüello, Governor, quoted on illicit
quoted, 82, 83, 85, 86, 87, 88,
trade in California, 3; heads an
92 ff.
expedition against Americans, 4-5
Bryant, Edwin, appointed alcalde of
Arkansas, influence of constitution
San Francisco, 63 n.
of, on that of California, 234, 235,
Bryant and Sturgis, firm of, 6
236, 237
Australia, spread of California gold
quoted, 57-58; presides over Sac-
fever to, 57
ramento meeting, 73; elected first
governor of California, 253; first
В
annual message of, 263-268; ve-
Bancroft, History of California, cited toes bills for incorporating cer-
and quoted, 3 n., 4, 9, 10, 33, 34, tain cities, 297-301
351
352
INDEX
California, early interest of United
States in, 1-2; contraband trade
of Americans with, 2-3; fear of
Americans felt by Spanish, 4-5;
increase of American influence in,
with independence of Mexico,
5-8; early attempts at independ-
ence, 8-12; the Bear Flag revolt,
12-13; events attending conquest
and annexation of, to United
States, 13-17; period of military
rule in, 18 ff.; Congressional views
as to legal status of, 20-24; Sloat's
proclamation to people of, 25-26;
Stockton's proclamation, 28-29;
constitution for government of,
drawn up by Stockton, 30-33;
activities of Stockton and Fré-
mont as government officers in,
34-38; Kearny succeeds Frémont
and issues proclamation, 38–41;
Kearny's rule in, and report on
general conditions, 38-44; Mason
succeeds Kearny as governor of,
44-45; discovery of gold in, and
resulting problems, 51 ff.; immi-
gration to, 55-60; alcalde rule in,
61-63; administration theory vs.
settler's or Benton's theory as to
government, 74-75; convention
called to form a government for,
75-81; meeting and proceedings of
convention, 81 ff.; settlement of
eastern boundary question, 133-
174; first state election in, 251-
254; the land question in, 308–
317; question before Congress, of
admission of, to Union, 328 ff.;
passage of bill admitting, 339;
effect of admission, on compara-
tive representation of North and
South in Senate, 339-342; statis-
tics as to population, occupations,
products, and schools and
churches in 1850, 343-348
Capital, location of permanent,
306 n.
Catterall, The Second Bank of the
United States, cited, 176
Census statistics in 1850, 343-348
Channing, History of United States,
- cited, 196
:
Churches, numbers of, and wealth
in 1850, 347–348 :
Cities, incorporation of, 297–305
City government, necessity for es-
tablishment of system of, men-
tioned in governor's first annual
message, 267
Cleland, work by, on The Interest of
U. S. in California, 1835–46, 1 n.
Code of law, adoption of civil,
recommended in governor's mes-
sage, 264; majority of people op-
posed to civil, and in favor of
common law, 281; petition ad-
dressed to assembly asking for
adoption of common law, 281–282;
Senate petition requesting estab-
lishment of civil code, 282–283;
report by Senate committee of the
judiciary, and adoption of com-
mon law, 283–287
Colton, Walter, judge of admiralty
court, 41; quoted on extensive
powers of alcaldes in California,
61; quoted and cited, 62, 63, 229
Coman, Economic Beginnings of the
Far West, cited, 133 n., 169
Congress, opinions of members of,
on legal status of California after
conquest by United States, 20–24;
INDEX
353
grants by, for educational pur-
poses, 196–199; subject of admis-
sion of California before, 328 ff.;
passes bill admitting California,
339
Constitution, meeting and proceed-
ings of convention to draw up,
81–226; observances attending
signing of, 227–228; a just cause
sources of the, 230 ff.; constitu-
tions which influenced debates on
that of California, 233-238; state-
ments of historians concerning,
241–242; figures of vote in favor of
ratifying, 252
Constitutions of other states which
influenced debates in California's
constitutional convention, 233-
238; comparison of, 238–241
Convention for forming a govern-
ment in California, agitation
preceding, 71; public meetings
recommending a, 72-74; Governor
state debt, suffrage, and appor-
tionment of representation, 218–
220; decision as to when state
government should go into opera-
tion, 220-223; choice of a state
seal, 223-224; compensation of
delegates and officers, 224-225;
completion of work of, and signing
of constitution, 227–229; qualifi-
cations of members of, for com-
piling a constitution, 231-232
Cooper, John R., American trader in
California, 6
Corporations, restrictions placed
upon organization of, by conven-
tion of 1849, 178–192
Counties, location, names, and boun-
daries of, 292–294
County courts, organization of, 290
County elections, the first, 294–296
Courts, argument over union of
: district and appellate, in con-
stitutional convention, 95-96; or-
ganization of, 287–291
75–77; apportionment of repre-
sentation in, 77-79; election of
delegates to, and meeting of at
Monterey, 81-82; personnel of the,
82-86; organization of the, 86-88;
the three departments of govern-
ment as organized by, 91-107;
free negro question before the,
108-132; eastern boundary con-
troversy in, 133-174; provisions as
to corporations, banks, and paper
money, 178–192; provision for
education, 193–201; the subject of
taxation, 206-212; measures pro-
hibiting lotteries and dueling, 213-
216; question of separate property
for married women, 217–218;
early California, 2-6
Cutts, Conquest of California and
New Mexico, cited, 19, 35, 44
D
Davis, Political Conventions, cited
and quoted, 249, 250, 251, 252,
253; Sixty Years in California,
cited, 62
Debtors, question of exclusion of
state, from the legislature, 105–
107
Departments of government, as
organized by constitutional con-
Deseret, formation of state of, pro-
posed by Mormons, 160-163
354
INDEX
Dewey, Financial History of the and disposal of, in first legislature,
United States, cited, 175, 176
318-323
Dimmick, K. H., elected delegate to Frémont, John C., appearance of, in
convention, 72
California, II; connection of, with
District courts, organization of, the Bear Flag Republic, 12-13;
289-290
made military governor by Stock-
Dueling, measures in regard to, ton, 34; financial difficulties of,
passed by convention of 1849, 34-38; superseded by General
215-216
Kearny, 38–39; elected to U. S.
senate, 261
Frost, History of California, quoted
on constitution, 241
Eastern boundary question, settle-
ment of, 133–174
G.
Education, provisions for, by con-
Gale, William A., American trader
vention of 1849, 193 ff.; grants by
in California, 6
Congress for purposes of, 196-199;
Geary, John W., presides over San
Congressional grants for internal
Francisco mass meeting, 249;
improvements diverted to uses of,
candidate for governor, 250
199-201; connection between taxa-
Gilbert, Edward, elected representa-
tion and, 206–209
tive to Congress, 253
Election, the first, in California,
Gold, discovery of, and resulting
251-254
problems, 51 ff.
Elections in counties, 294–296
Executive department, as organized
Governor, provisions concerning
office of, made by constitutional
by constitutional convention, 92–
convention, 92-94; election of
first, 250–253; first annual mes-
sage of, 263–268
Green, General Thomas J., attempt
Farm lands, statistics of, in 1850, 346 to introduce negro labor in Cal-
Finance, discussion of subject of, in ifornia mines by, 110-112; loan
Governor Burnett's first annual bill reported by, 272-274
message, 264–266; measures of, Grigsby, John, 13
passed by first legislature, 268, Gwin, William M., elected to U. S.
280
senate, 261; effect of election as
Free negro question, debates on, in senator, 350
constitutional convention, 108, Gwin-Halleck proposal for an east-
II2-125; probable origin of the, ern boundary, 139-140
110-112; analysis of opposed
forces, 126-132; dealt with in
Governor Burnett's first annual Hart, Essays on American Govern-
message, 266-267; introduction ment, cited, 196
94
H
INDEX
355
charging of, discussed by con-
stitutional convention, 99-10I
к
Hastings, S. C., first chief justice of
supreme court, 287 n.
Hinckley, William, alcalde of San
Francisco district, 63 n.
Historians quoted on constitution of
California, 241-242
Hittell, History of California, cited,
93, 165 1., 214, 224
Hoppe, J. D., elected delegate to
convention, 72
Hunt, R. D., works by, cited and
quoted, 13, 64, 75, 167, 169, 217,
218, 224 ff.
Hyde, George, American alcalde in
California, 63 n.; elected member
of legislature by government or-
ganized by San Francisco citizens,
68
Kearny, General Stephen, com-
mands United States force in
California, 16-17; orders issued to,
concerning establishment of tem-
porary government, 18; succeeds
Frémont as governor of California,
38; principal work of, as governor,
41-42; report of, on general con-
ditions in California, 42-43
King, T. Butler, misstatements in
report by, concerning constitu-
tional convention, 84-85
T.
Ide, William B., a leader in the Bear
Flag revolt, 13
Immigration to California following
discovery of gold, 55-60
Internal improvements, grants made
by Congress for, diverted to the
support of schools, 199-201
Iowa, constitution of, in part a basis
for that of California, 231, 232,
234, 238–242
Land, grants of, for educational
purposes, 196-199
Land question in California, 308 ff.;
Spanish and Mexican grants,
308-311; Alvarado grant to Sut-
ter, 311-313; squatters and squat-
ter titles, 312-313; legislative
enactments, 313-314; treatment of
land-title question by United
States, 315-317
Larkin, Thomas, U. S. consul at
Monterey, II; member of con-
stitutional convention, 83
Law, question of civil code or com-
mon law, 281-287
Legislative department, organiza-
tion of the, by constitutional
convention, 101-107
Legislature, question of annual or
biennial sessions of the, 102-104;
proposal to exclude state debtors
from the, 105-107; election of the
first, 247–254; meeting and or-
Jones, Commodore T. C., com-
mands fleet against Mexico, 15
Jones, W. C., Report on the Subject of
Land Titles in California, 310 n.
Judiciary, organization of the, by
constitutional convention, 94-
101; sources of articles in Califor-
nia constitution dealing with, 240
Juries, provisions concerning the
356
ganization of, 254–262; receives
first annual message of the gover-
nor, 263; establishment of code of
common law by, 281-287; or-
fronted, 50; report of, on condi-
tions following discovery of gold,
52-55
Mass meeting, the first political, in
location and naming of counties, Merritt, Ezekiel, 12
292–294; provision for county Message, first annual, issued by
elections, 294–296; incorporation Governor Burnett, 263–268
of cities, towns, and villages, Mexican land grants, 309-311
297–305; other acts passed by Michigan, influence of constitution
first, 306–307; enactments con- of, on that of California, 236, 237,
cerning the land question, 313- 242
314; sectional character of first, Military rule, period of, in Califor-
318-327; question of excluding
free negroes, 318-323
Monterey, meeting of constitutional
Los Angeles, raising of the American convention at, 81 ff.; proposed for
flag at, 17; incorporation of, 297, permanent capital, 306 n.
299–302
Mormons, action taken by, regard-
Lotteries, prohibition of, by con ing boundary question and pro-
vention of 1849, 213-215
visions for a government, 160-163
Lyons, Henry A., associate justice of
supreme court, 287 n.
Ν
Negro question. See Free negro
question
Newspaper opposition to alcalde
rule, 63-66
New York, influence of constitution
of, on that of California, 233–
241-242
820
P.
M
MacDonald, From Jefferson to Lin-
coln, cited, 349
McDougal, John, elected lieutenant-
governor of California, 253 :
Maps of early California, 133-136
Marcy, Secretary, letter of, to
General Kearny, 18, 25
Marcy, Captain William G., secre-
tary of constitutional convention,
86
Married women, question of separate
property for, 217-218
Mason, General, succeeds Kearny as
governor of California, 44; ac-
tivities of, as governor, 44-49;
sane, common-sense qualities of,
but unusual problems which con-
Panic of 1837, effects of, 175–178
Paper money, opposition to, in any
form, declared by convention of
1849, 187-192
Poore, Charters and Constitutions,
cited, 177, 180, 234, 236, 238
Population of California, in 1849,
253; in 1850, 343–345
Professions and occupations, statis-
tics of, in 1850, 345–346
INDEX
357
Pueblo de San José, meeting of first
legislature at, 254
R
Rhodes, J. F., History of United
States, cited, 328, 341
Richardson, Messages and Papers of
the Presidents, quoted and cited,
19, 24, 32
Richman, California under Spain
and Mexico, quoted and cited, 3, 8,
12, 13, 14
Riley, Governor, calls convention to
provide government for Califor-
nia, 75–77; salary granted to, 225;
declines to run in 1849, 250
Rose's Bar, meeting of miners at, III
Royce, History of California, quoted
on the constitution, 241-242;
Overland Monthly article, cited
and quoted, 311, 312, 313, 314,
315
to yield and cooperate with the
governor, 81; mass meeting of
Democrats in, prior to first state
election, 249-250; makes bid for
permanent seat of state govern-
ment, 307 n.
San José, public meeting at, recom-
mending a convention, 72
San Pascual, battle of, 17.
Schools, provision made for, by
convention of 1849, 193–201;
conditions as to, in 1850, 347
Schouler, History of the United
States, cited, 177
Seal, adoption of a state, 223-224
Sectional character of first legisla-
ture, 318-327
Semple, Dr. Robert, 13; president of
constitutional convention, 86
Senators, election of first, 260–261
men, discussion of question, in
convention of 1849, 217–218
Settler's theory of government, 75
Shaler, William, quoted, 1, 2
Sherman, Major Edwin T., explana-
question in California, 110-112
Shubrick, Commodore, succeeds
Stockton in California, 38
Sloat, Commodore, American flag
Sacramento, incorporation of, 297-
299; permanent seat of govern-
ment located at, 307 n.; squatter
riot of 1850 at, 313
Salaries of members and officers of
constitutional convention, 224-
225
San Francisco, President Jackson's
attempt to purchase Bay of, for
an American port, 15; opposition
in, to alcalde rule, and attempt to
form a more efficient local gov-
ernment, 66–70; public meeting at,
recommending a convention to
organize a government, 72; hostile
reception in, of Governor Riley's
call for a convention, 80; decides
proclamation issued by, 25-26
Smith, Jedidiah, 6
Smith, General P. F., reply of, to
announcement of organization of
local government in San Francisco,
69–70
Solis, Joaquin, revolt of Mexican
Sonoma, taking of, by men of Fré-
mont's command, 12-13
358
INDEX
Taylor, Bayard, Eldorado, quoted
and cited, 58, 81 n., 82, 141, 165 n.,
224 ff., 251, 252
Thorpe, Constitutional History of the
American People, cited, 222
Towns, enactments concerning in-
corporation of, 303, 305
Trade, early illegal, of Americans
with California, 2-3
Treat, The National Land System,
cited, 196
Tuthill, History of California, cited,
165 n., 213; quoted on sources of
California's constitution, 241
V
Spanish land grants, difficult ties
over, 308–309
Spear, Nathan, American trader in
California, 6
Squatters and squatter-titles, 312–
313
State debt, question of creation of
before convention of 1849, 218-219
Stearns, Abel, American trader in
California, 7; member of con-
stitutional convention, 83
Stockton, Commodore Robert F.,
completes conquest of California
for the United States, 14; Sloat
turns command in California over
to, 27; letter from, to Secretary
Bancroft, and proclamation issued
by, 27-29; constitution drawn up
by, for government of California,
30-33; criticism of proclamation
of, 33; duration of governorship
and activities of, 34
Suffrage, right of, as granted by
convention of 1849, 219
Supreme court, question of appellate
jurisdiction of, before constitu-
tional convention, 97-99; or-
ganization of, 287–289
Sutter, John A., gives support to
Mexican governor, 10-11; candi-
date for governor in 1849, 250;
difficulties of, over land titles,
311-313
Vallejo, becomes commandante-
general of independent state of
California, 9; forced to surrender
to men of Frémont's command,
13; member of first legislature,
254-255; efforts of, to secure seat
of government at Vallejo, 307 n.
Vassault, F. I., Beginnings of
California, quoted, 166-167
Villages, incorporation of, 303, 305
Virginia, influence of constitution of,
on that of California, 234, 235,
242
Von Holst, Constitutional History of
United States, cited, 328, 333
Voorhies, William, chosen secretary
of state, 261
Vote in first California state election,
252-253
W
Taxation, connection between sub-
ject of education and, 206-209;
section relative to, passed by
constitutional convention, 209–
212; measures of, advocated in
governor's first annual message,
264–266
Willey, S. H., Transition Period,
cited and quoted, 61, 62, 64, 74,
76, 79, 80, 81, 82, 86, 125, 145, 167;
chaplain of constitutional con-
INDEX
359
vention, 86; quoted on sources of
the constitution, 242
Willis, Judge, decision of, in land-
title case, 315
Wilson, Observations on Early Days
in California and New Mexico,
cited, 113 n.
Women, separate property for mar-
ried, 217-218
Wozencraft, member of constitu-
tional convention, 83
Wright, G. W., elected representa-
tive to Congress, 253
MAR 31 1917

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