A HISTORY OF MILITARY GOVERNMENT IN NEWLY ACQUIRED TERRITORY OF THE UNITED STATES BY DAVID YANCEY THOMAS, M.A. Sometime University Fellow in History SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE FACULTY OF POLITICAL SCIENCE, COLUMBIA UNIVERSITY IRew Ji>orfe 19O-4 LIBRARY UNIVERSITY OF CALIFORNIA DAVIS A HISTORY OF I MILITARY GOVERNMENT IN NEWLY ACQUIRED TERRITORY OF THE UNITED STATES BY DAVID YANCEY THOMAS, M.A. Sometime University Fellow in History SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE FACULTY OF POLITICAL SCIENCE, COLUMBIA UNIVERSITY IRew 19O4 LIBRARY UNIVERSITY OF DAVIS COPYRIGHT, 1904, BY DAVID YANCEY THOMAS PREFACE WHEN the Constitution of the United States was drafted and adopted no specific provision was made for expansion. In consequence of this, some have doubted whether we had the power to acquire new territory, and especially to incor porate it with the old. In spite of this, however, we have acquired a domain much larger than that comprised within the boundaries of the original thirteen States. The govern ment of such territory before its incorporation has pre sented some interesting problems. The framers of the Constitution probably thought that they had subordinated the military to the civil power in almost all cases, but a century has seen a remarkable growth in the scope of the former. It would be absurd to think of a civil power in hostile territory superior to the military power occupying the country; but upon the transfer of sovereignty the territory ceases to be hostile, unless a serious insurrection is raised, yet the military continues to admin ister affairs until Congress provides some form of govern ment. Even in territory acquired by treaties of purchase in times of peace the military, or at least the Executive pre rogative, which is generally based upon military authority, has played a more or less important part until such action by Congress. For that reason the governments of Louisiana and Florida in the transition stage have been included in this study, though there may be some doubt as to whether they were strictly military. At any rate they were so re garded by some at the time, and perhaps they were more military than civil. 191] 7 8 PREFACE [ IQ2 The legal status of new territory, and the legal basis for military government and its various administrative activi ties, must receive much attention in this book, but those topics are not all that is included in the purpose of the work. It is designed to present also an account of the actual management of new acquisitions from the time of occupation until the organization of territorial or state gov ernments. As to Louisiana, Florida, .New Mexico, and California, this plan involves practically a political his tory of those regions during that period. In the case of Texas, there was no transition stage, strictly speaking. In the case of Alaska, Hawaii, Porto Rico, the Phil ippines, and Samoa it has seemed unnecessary, not to say improper, to go into details upon the same scale. The treat ment accorded to them is intended to show the development in military government since the Mexican War, or its ap plication under modern conditions; also to show how the constitutional questions involved were met, that the reader may compare recent action in this matter with earlier cases. What has been the character of these later governments, what they have accomplished for good or evil, is left, for the most part, to the reader's memory of partisan accounts, or to the researches of a later historian, when the air shall have cleared and the evidence shall be complete and acces sible. Cuba is not included because not yet a part of the United States, though she has felt the arm of our military power. Despite the fact that military government is coming to be circumscribed more and more by rules and regulations, the prejudice against it seems to be as strong to-day as ever. This is true not only in the South, where the military governments are remembered chiefly for the evil they wrought, but throughout the country in general. The author is unconscious of having started out with any pre- 193] PREFACE conceived notions or prejudices one way or the other re garding- the subject here treated. He has endeavored to set forth in their proper relations the facts as found, that they might tell their own story. What has been the char acter of military governments over occupied hostile territory and over new cessions, except our latest, he hopes the reader may be able to gather from a perusal of the following pages. In making acknowledgments, the author cannot fail to mention Professor Frederick W. Moore, Ph. D., of the Van- derbilt University, who first suggested this field as a good one for investigation. The Hon. M. A. Otero, Governor of New Mexico, and the Hon. L. B. Prince, President of the New Mexican Historical Society, have been very cour teous in answering letters of inquiry. The officials of the War and Treasury Departments at Washington also, especi ally the Hon. Charles E. Magoon, of the Bureau of Insular Affairs, have been very kind in supplying information by letter and through their official publications. Professor J. B. Moore, LL. D., of Columbia University, has piloted the author past several rocky shoals in the sea of international law, and has rendered invaluable assistance in seeing the book through the press. But thanks are due first of all to Pro fessor Wm. A. Dunning, Ph. D., of Columbia University, who has taken an interest in the book from its inception, has read the manuscript, and has made many valuable sug gestions. To him also, as well as to Dr. Alvin S. Johnson, of Columbia University, the author is indebted for assist ance in reading the proof. HENDRIX COLLEGE, ARKANSAS, May i, 1904. TABLE OF CONTENTS PAGE INTRODUCTION 15 BOOK I LOUISIANA AND FLORIDA IN TRANSITION CHAPTER I LOUISIANA I. Taking Possession 23 II. Social and Political Condition of Louisiana 25 III. Constitutional Basis of the New Government 30 IV. The Work of Administration and Its Effects 38 CHAPTER II THE ANNEXATION OF WEST FLORIDA I. How the Conquest was Effected 45 II. Legal Aspects of the Annexation 49 CHAPTER III > THE CONQUEST OF EAST FLORIDA I. Gradual Encroachment and Final Seizure 54 II. Justification of the Seizure 59 III. The Military Administration 62 CHAPTER IV THE FINAL ACQUISITION OF FLORIDA I. Taking Possession of the Country. Its Condition. Reor ganization 65 II. Review of the Governor's Action 72 195] I* 12 CONTENTS [ I9 6 PAGE CHAPTER V THE ADMINISTRATION OF AFFAIRS IN FLORIDA I. The Callava-Fromentin Affair 77 II. The Heirs of Vidal vs. Innerarity 81 III. Opinions and Counter Opinions . . . 84 IV. East Florida and Other Affairs 91 V. Departure of Governor Jackson. Effects of His Adminis tration 94 VI. The Territorial Government Organized 97 BOOK II MILITARY GOVERNMENT IN NEW MEXICO AND CALIFORNIA CHAPTER I THE OCCUPATION OF NEW MEXICO I. The Conquest and Reorganization 101 II. The Conquest in Congress. Acts of the Conqueror Reviewed. 106 III. The Conquered Country. Its New Government 114 IV. The Revolt and Reconquest U7 CHAPTER II THE MILITARY ADMINISTRATION OF NEW MEXICO I. The Struggle for a Free Government 128 II. Review of the Military Regime 149 CHAPTER III THE OCCUPATION OF CALIFORNIA I. The First Conquest and Reorganization 159 II. California at the Time of the Conquest 168 III. The Revolt and Reconquest 172 CONTENTS I3 PAGE CHAPTER IV DIVISION OF THE SPOILS I. The Quarrel of the Victors 176 II. Fremont's Administration 181 III. Fremont Ousted by Kearny 185 CHAPTER V THE FINAL REORGANIZATION I. Setting up the " Civil " Government . 193 II. The Regulation of Foreign Trade 195 III. The Status of California before and after the Treaty 203 CHAPTER VI THE MILITARY RULE IN CALIFORNIA I. The Administration of the Customs and the " Civil Fund " . 218 II. Internal Administration: a. Legislative Decrees, b. Courts and Municipalities, c. The Indian, Mission, and Land Policy of the Occupants 228 III. Efficiency of the Military Government 239 CHAPTER VII THE END OF THE MILITARY REGIME I. Manifestations of Discontent and the Call for a Constitutional Convention 254 II. Formation of the State Government 271 BOOK III ALASKA AND OUR INSULAR POSSESSIONS CHAPTER I ALASKA .... 279 CHAPTER II HAWAII 281 14 CONTENTS [ I9 8 CHAPTER III THE PHILIPPINES, PORTO Rico, SAMOA, AND PANAMA I. The Occupation of the Philippines 282 II. Military Rule in the Philippines 289 III. Military Rule in Porto Rico +>&*& 33 IV. The Occupation and Government of Tutuila, Samoa . . . , 311 V. The Panama Canal Zone 3! 4 VI. The Instruments of Government 318 CHAPTER IV THE POLITICAL STATUS OF AND CIVIL RIGHTS IN OUR NEW POS SESSIONS 321 INTRODUCTION THE United States have acquired new territory in sev eral different ways: by treaties of purchase, by conquest followed by treaties of cession, and by occupation and par tition. In practically all important acquisitions of territory, except in the case of Texas and Hawaii, there was a transi tion stage, during which the new territory was held and gov erned in a manner not expressly provided for in the Con stitution. In most cases the transition stage has ended in some form of territorial government; in one case it ended in a state government. During the transition stage the new territory was held under what is commonly called military government. This fact necessitates at the very beginning of this study an examination of what is meant by military government. Chief Justice Chase has attempted to define three kinds of military jurisprudence: military law, military govern ment, and martial law proper. The first consists of the rules and articles of war as used for the regulation of armies in the field. His definitions of the other two are almost too vague for formulation, but he makes the second apply to occupied hostile territory, the third to domestic territory in time of invasion or special danger. 1 It is only within the last century that the distinction between military law and martial law has been clearly drawn in England and America. The difference has been well 1 Dissenting opinion, Ex parte Milligan, 4 Wall., 141 et seq. 199] 15 1 6 INTRODUCTION [ 2O O stated by Chief Justice Chase, and it is hardly necessary to add anything here to what he has said on the subject. But the vagueness of his distinction between military govern ment and what he styles martial law proper renders doubt ful the propriety of his divisions. Indeed, it can be shown that what the learned judge has endeavored to set off into two distinct classes are but different manifestations of one and the same thing. With military law we shall have no further concern. Neither the Constitution nor the statutes of the United States give us much help in the definition of martial law, for it is not mentioned in either, at least in a definitive way. " According to every definition of martial law," said Attor ney-General Cushing, " it suspends, for the time being, all the laws of the land, and substitutes in their place no law that is, the mere will of the commander." 1 Such was the old view, probably based on a similar statement by the Duke of Wellington. Such is practically the view to-day also; but of late there has been a tendency to move away from the bald statement that martial law is the mere will of the mili tary commander, and to justify it by " the common law of acts done by necessity for the defense of the commonwealth where there is war within the realm." ' 2 Martial law is the basis of military government, and necessarily applies in occupied hostile or foreign territory. It may be applied to domestic territory under certain conditions, but its applica tion in the one case differs materially from that in the other. The latest authoritative declaration of what is allowable in the former may be found in the second convention of the Hague Conference, where it is said that " the occupant shall take all steps in his power to re-establish and insure, 1 Opinions of Attorneys-General (Cushing), viii, 374. * Pollock in London Times, March 10, 1902. 201 ] INTRODUCTION 17 as far as possible, public order and safety, while respect ing, unless absolutely prevented, the laws in force in the country." 1 This simply means that the machinery of government falls into the hands of the military occupant, who may permit it to continue in operation, or alter it, or abolish it altogether. If the local laws remain and the native officials continue in office, it is only by his direc tion, or on sufferance. It is true that only extreme necessity, the welfare and safety of the army of occu pation, will justify violent changes, but the occupant is practically the judge of the necessity. In any case, the responsibility for the management of the government de volves upon the commanding general. The last century has seen a decided tendency to limit his powers, and this has found expression in the quotation from the Hague Convention. While he is still left rather free under the law of necessity, he must be able to substantiate the neces sity under the laws of nations. The course of this study will show that measures have been taken by military occu pants within the last century which could not be justified under this rule. In addition to these limitations, the gen eral may be, but commonly is not, limited by special laws enacted by the legislature of the country to which his army belongs. Such a system we call military government. After the acquisition of conquered territory, the military government continues de facto until altered by the new sovereignty. The nearest approach which the Constitution makes to a mention of martial law is in that clause which authorizes 1 Article xliii. Holls, The Peace Conference at The Hague, 447. A more elaborate statement may be found in the "Instructions for the Government of the United States Armies in the Field," issued April 24, 1863. Offic. Rec. (Reb.), Serial no. 124, pp. 148 et seq. 18 INTRODUCTION [ 2O 2 the suspension of the privilege of the writ of habeas corpus when in cases of rebellion or invasion the public safety may require it. Such a suspension does not bring- about a complete state of martial law. On the other hand, the proclamation of martial law suspends the writ, whether any mention is made of the suspension or not; for the will of the commander can never be supreme so long as the writ may be used against him. These facts might produce some doubts as to whether it was intended that martial law should ever be proclaimed on domestic territory. When any part of the country has, by insurrection or rebellion, defied and thrown off the home government, such region is, for the time being, no longer domestic territory, but has, to all intents and purposes, become hostile or foreign. The enforcement of martial law over such a district, when con quered, until the civil power can be re-established, cannot be questioned. But martial law is often proclaimed over territory confessedly domestic. Such must inevitably be the case where an insurrection covers the entire area of a state. In this instance the proclamation is but the an nouncement that the civil authorities are insufficient to cope with the disorders, and must be supported by the military. Again, martial law has been proclaimed in territory not in insurrection at all, but threatened by foreign invasion, as at New Orleans by General Jackson. Finally it has been enforced, at least certain features of it, where there was neither insurrection nor danger of invasion, as in the North ern States during the Civil War, and in the Southern States long after the insurrection was declared at an end. In all these cases the ostensible purpose was to uphold the de jure government. And herein lies the distinction between military govern ment and martial law on domestic territory. The former supplants the existing government, whether it be de jure 203 ] INTRODUCTION 19 or de facto; the latter professedly supports the de jure government. In giving this support the military commander rises superior to the laws of ordinary times. He may arrest and detain individuals not connected with his army, and even punish them; he may interfere with the established courts; he has even gone so far as to disperse a state legis lature; but he does not formally assume the management of civil affairs. These go on as before, except in the par ticular cases in which he interferes. But his will is supreme wherever he sees fit to make it so. Such a condition in France is known as the " state of war," and is recognized in the French law. 1 That it has no distinctive name in American and English jurisprudence is the fault of our nomenclature or of our jurists. While recognizing the fact that, in England and America, martial law on domestic territory is, and can be, regulated by no constitutional or statutory law, commentators say that it must be exercised with due moderation and justice, in accordance with the " paramount necessity " which alone calls it into being, and with the general rules of public law as applied to the state of war. It cannot, therefore, they say, be despotically or arbitrarily exercised any more than any other belligerent right ; and in case of abuses redress may be had in civil courts, or by impeachment, after the restor ation of the civil law. 2 It is spoken of as the " dominant military rule exercised under ultimate military and civil responsibility." That there is some possibility of redress is evidenced by the fact that the legislatures of the United States and 1 The three conditions are : E'tat de paix, etat de guerre, et etat de siege. Block, Dictionnaire de V Administration Frangaise (1898), pp. 1109 et seq. a Halleck, International Law (London, 1893), ii, 544; Birkhimer, Mil Govt. and Mar. Law, 338. 20 INTRODUCTION [204 Great Britain have passed bills of indemnity, after the ex ercise of martial law, in order to protect officers from prosecution for acts done by virtue of their extraordinary powers. Though generally very sweeping in its terms, this indemnity legislation has not always been construed by the courts to cover every conceivable act. In a few cases sub ordinates have had to suffer for unwarranted acts, in spite of bills of indemnity. 1 But all this qualification of the commander's power de pends upon the return of the previously existing civil conditions. Happily such has always been the case in England and the United States, but, theoretically at least, the fact remains that the military commander, in the United States, the President, can rise superior to all laws, except possibly the law of humanity. Unusual cruelty might provoke foreign intervention. If he is the judge of the necessity of proclaiming martial law, he is likewise the judge of the time for withdrawing it. During the reign of martial law he might think that the public safety or his own subsequently required the abolition of the old system and the installation of himself as a king or a permanent dictator. In that event his work could be un done only by a counter revolution. In practice the com mander usually is guided by motives based on the highest patriotism, but a bad man might be restrained only by fear, or by the extent of the obedience he could command in his army. Such are the distinctions between military government and martial law on domestic territory. With the latter we shall not be much concerned in this study, though it may be necessary to notice it now and then. 1 N. Y. World, Oct. 5, 1865 ; Appleton's Ann. Cyc. 1863, p. 487 et seq. BOOK I LOUISIANA AND FLORIDA IN TRANSITION CHAPTER I LOUISIANA I. TAKING POSSESSION BY the treaty of San Ildefonso, concluded October i, 1800, Spain agreed to retrocede the province of Louisiana, which had been given to her by the secret convention of 1762, to the French Republic. In 1803 Napoleon agreed, in consideration O'f fifteen million dollars, to cede the prov ince, not yet in the possession of France, to the United States. The treaty of cession was concluded April 30, and proclaimed October 21, 1803. The third article of the treaty stipulated that the inhabitants of the ceded territory should be incorporated into the Union and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and that in the meantime they should be maintained and protected in the free enjoyment of their liberty, property, and the religion which they professed. The seventh article granted, for twelve years, to the ships of France and Spain such privileges as were accorded to those of the United States in all ports of Louisiana. Possession was to be given and evacuation effected as soon as possible. 1 In his message 2 transmitting the treaty to the Senate, President Jefferson said : " With the wisdom of Congress it will rest to take those measures which may be necessary ^Treaties and Conventions (U. S.), 276 et seq. 2 October 17, 1803. 207] 23 24 MILITARY GOVERNMENT [ 2 o8 for the immediate occupation and temporary government of the country." In response to this suggestion, a bill of two sections was passed and became a law October 31. The first section authorized the President to employ the army and navy, and so much of the militia as he might deem necessary, to effect occupation and to maintain the authority of the United States in the new territory. The necessary funds were appropriated, to be applied under the President's direction. The second section read : Until the expiration of the present session of Congress or unless provision be sooner made for the temporary govern ment of the said territories, all the military, civil and judicial powers exercised by the officers of the existing government of the same, shall be vested in such person or persons, and shall be exercised in such manner as the President of the United States shall direct, for maintaining and protecting the inhabitants of Louisiana in the full enjoyment of their liberty, property and religion. February 24, 1804, an act was passed, to take effect in thirty days, extending to Louisiana several laws of the United States, among them those relating to revenue and coinage. March 26, the President approved an act dividing the territory and creating a territorial government for the lower portion, to take effect October i, 1804. Until that time the powers conferred in the first act mentioned above were to be exercised by the Executive. A law provided funds to meet the expenses of this temporary government. Mr. W. C. C. Claiborne, then governor of the Missis sippi Territory, and General Wilkinson, of the army, were commissioned to take possession of Louisiana for the United States. As opposition was apprehended, they were author ized to use force, and the army and militia were ordered to be in readiness to move. However, no opposition was 209] LOUISIANA 25 encountered, and the formal transfer of sovereignty was effected at the Cabildo, with some attempt at eclat, on December 20, 1803. Our commissioners reported that the American flag" was raised in New Orleans " amidst the acclamations of the inhabitants." x The same day Governor Claiborne issued a proclama tion, reciting that the President had commissioned him to exercise the powers of government in Louisiana to the extent and purpose for which they were conferred in the act quoted above. All laws and municipal regulations then in force would be continued; all civil officers, except those who-se duties were vested in him, and the collectors of the revenue, would continue in office during the pleasure of the governor. The inhabitants were exhorted to show true allegiance to the United States and obedience to their laws and authorities, and were assured of protection from vio lence from within and without. In a separate address to the citizens of Louisiana he promised them protection, and exhorted them to seek political information, to guide the rising generation in the paths of republican virtue and economy, without which their descendants could not know the true worth of the government transmitted to them. 2 II. SOCIAL AND POLITICAL CONDITION OF LOUISIANA The geographical limits of the Louisiana Territory were but vaguely denned in all the treaties of cession and retro cession, but the extent of the country actually acquired by the United States in 1803, as finally defined in the Spanish treaty of 1819, is familiar to all students of American his tory, and may be seen at a glance by reference to historical maps. As soon as it was known that the treaty of cession had been concluded, Mr. Jefferson sought detailed infor- 1 Ann. 8 Cong., 2 Sess., 1230. 2 Ibid., 1232 et seq. 26 MILITARY GOVERNMENT [ 2 io mation respecting the territory. This information had not been obtained when the act of October 31 was passed, but it was secured before possession was effected. The population in 1803, according to a statement made up from the latest documents obtainable, amounted to 41,- 275, of whom about 16,000 were slaves and 1,303 free people of color. The census of New Orleans in 1803 gave it a population of 8,056. But these figures were believed to be too low. The Spanish governor was fully persuaded that the entire population of Louisiana was considerably in excess of 50,000. Upper Louisiana, included in the above figures, with settlements from St. Louis to New Madrid, contained 6,028 souls, of whom 883 were slaves and 197 free negroes. Figures for about 16,000 Indians were given, but their real number was unknown. The white inhabitants were chiefly descended from the French and Canadians. There were a few German settle ments, and a considerable number of English and Amer icans resided at New Orleans. In the Baton Rouge dis trict, east of the Mississippi river, the Americans were greatly in the majority; in Upper Louisiana they were be lieved to constitute at least two-fifths of the whole. There were no colleges in the country. New Orleans had one public school, and a few private schools for children. Not more than half the [white?] inhabitants were supposed to be able to read and write, of whom, perhaps, not more than two hundred could do it well. They were said not to be litigious, and crimes of great atrocity were rare. In re ligion they were Catholics. The chief industry was agriculture, but some manufac turing was carried on. The trade of the country was con siderable. Of two hundred and sixty-eight vessels which entered the Mississippi in 1802, one hundred and seventy were American, ninety-seven Spanish, and only one French. 21 1 ] LOUISIANA 27 The imports from the United States had declined about half since 1799, but the exports to the United States had increased in the same ratio. The province had been so long in the hands of Spain that all the French regulations had disappeared, and the machinery of government had become entirely Spanish, ad ministering Spanish laws and ordinances made expressly for the colony. The French held actual possession in 1803 only about three weeks, and this possession was taken merely to effect the formal transfer to the United States. But in that brief time the prefect issued several decrees relating to the political organization. One of these de clared the code given to the province by Louis XV. to be in force, excepting such parts as were inconsistent with the Constitution and laws of the United States. His authority to do this might very reasonably be questioned. One change was actually effected by the appointment of a mayor and council for New Orleans. The chief object of these changes was confessed by the French prefect to be to add some dignity and respectability to his position by a show of authority, and so to prevent his taking posses sion from being a ridiculous farce. 1 The governor was at the head O'f the military and judicial departments, and was vested with some legislative powers. He could not levy new taxes without the consent of the inhabitants, but how that consent was secured is not stated. Presumably it was through the Cabildo, or Provincial Coun cil, over which the governor presided. This body was com posed of twelve members, said to be of the most wealthy and respectable, who secured their offices by purchase. The intendant, who looked after matters pertaining to the rev enue, admiralty, and the granting of land, was entirely 1 Martin, Hist. La., ii, 197; Gayarre, Hist. La., ii, 606 et seq. 28 MILITARY GOVERNMENT [212 independent of the governor. The lieutenant-governor superintended the administration of Upper Louisiana, in which he was practically supreme in everything, except that his decisions were subject to appeal. The several districts were placed in charge of commandants, generally military men, who were supposed to look after almost everything of which a government takes cognizance. The procurer- general had, among other things, to indicate the punish ment provided by law for any particular crime. Besides these, there were numerous other officers not necessary to mention, all of whom, except those whose salaries were less than thirty dollars per month, were appointed by the king. Not a single officer was chosen by the people. Nearly every officer the governor, intendant, command ants, alcaldes, and others had some sort of judicial power. In civil cases, small suits were decided in a summary way by the auditor or judge, after hearing both parties in viva voce testimony. In more important suits the litigants r&- duced their testimony to writing, all of which was taken before the keeper of the records of the court. They then had opportunities of making remarks upon the evidence, by way of petition, and of bringing forward opposing proofs. When the auditor thought the cause mature he issued his decree. Appeals were allowed, in some cases to Havana. The proceedings in criminal cases were very sim ilar. Trials were not public, but the accused had every kind of privilege in making his defense, the testimony being written. Trial by jury was unknown. Fees were small. Such was the judicial system in theory. In practice it was said to be very corrupt. Important suits were rendered expensive by delays. Appeals to Cuba and Madrid were slow and ruinous. The favors of the officials, from the governor to the constable, were subject to purchase. 1 1 Gayarre, ibid., 584. 213] LOUISIANA 29 The Catholic Church was a part of the government. Its officials also had certain judicial powers. Some of them were paid from the public treasury. The expenses of the government, including the pay and support of the troops garrisoning the country, and other items, such as repair of forts and public buildings, salaries, and Indian presents, were far in excess of the revenue. The chief source of income was the six per cent, tariff on all im ports and exports, yielding about $120,000 annually. There were a few taxes, for example, on inheritances and legacies, salaries of civil officials, saloons, conveyances of real estate, and there were fees for pilotage, but all these did not yield more than five or six thousand dollars annually. Instead of paying local taxes, each inhabitant was bound to make and repair roads, bridges, and embankments through his own estate. A part of the deficit was met by the importation of about $400,000 in specie from Vera Cruz, but there was still a yearly deficit of about $150,000. At the time of the transfer it had amounted to' $450,000. To* meet this, cer tificates, called liberanzas, were issued, bearing no interest. They usually passed at a discount of from twenty-five to fifty per cent. This deficit, it was declared, was largely due to the criminal negligence of the officials, who openly coun tenanced smuggling. The income from the six per cent, duties alone should have produced $279,480, as the imports and exports amounted to $4,658,ooo. 1 About the best way to characterize such a government is to say that it was " Spanish colonial." It was spoken of by some historians of Louisiana as more military than civil. 1 The material for this section has been taken almost wholly from reports prepared for President Jefferson and submitted by him to Con gress. They may be found in Ann., 8 Cong., 2 Sess., 1498 et seq. A few statements have been taken from Martin, Gayarre, and from Stoddard, Hist. Sketches of La. 30 MILITARY GOVERNMENT [214 III. CONSTITUTIONAL BASIS OF THE NEW GOVERNMENT When the Louisiana Territory was acquired our Gov ernment was in the absolute control of the ultra-constitu tional, or strict constructionist party. Their efforts to find a constitutional justification for everything connected with the transfer are interesting, not to say amusing, in view of the fact that they ultimately had to do several things for which there was no direct warrant in the Constitution, but which were not, for that reason, necessarily unconstitu tional. Whether any act really did transgress the funda mental law will come up later. The situation seemed to some of the men who had to deal with it somewhat anom alous, the newly acquired country being considered neither entirely domestic, nor yet wholly foreign. This was the view of Mr. Jefferson, who drafted an amendment begin ning : " Louisiana, as ceded by France to the United States, is made a part of the United States." * However, the domestic theory so far prevailed as to obviate the necessity of an amendment, but some of the measures adopted to carry it out savored somewhat of the opposite theory. When the act of October 31 2 came up in the House, Mr. Roger Griswold, of Connecticut, seconded by Mr. Elliott, of Vermont, moved to strike out the second section. The objection brought out by these gentlemen, and those who sided with them, was that the bill proposed to confer on the President all the powers, military, civil, and judicial, then exercised by the existing government in Louisiana. Just what those powers were nobody knew, but they cer tainly were legislative, executive, and judicial. The union of the three departments of government in one man was repugnant to the Constitution. Nor could the legislature delegate its powers of legislation to the President. Even 1 Writings (Ford), viii, 241. See also p. 262. 2 Supra, p. 24. 215] LOUISIANA 3! if allowable, such a delegation of powers was bad policy. While it was not apprehended that the President would abuse them, it would be possible for him, under cover of this authority, to establish the whole code of Spanish laws, however repugnant to our own, and become practically a despot. If such a despotism was necessary, as some argued, let the military power be exercised by the President as commander-in-chief of the army. 1 Those favoring the bill argued that the extent of powers proposed to be conferred arose from necessity, it being feared that turbulent spirits might resist the transfer of sovereignty. Such a delegation was objectionable on gen eral principles, though not unconstitutional, but this was an exceptional case, and the powers were not to be parted with for a long time. Had we acquired the territory by war, would any one say that we could not have driven out the Spanish government and appointed officers to admin ister the laws ? When a territory was ceded its inhabitants had, according to the law of nations, a right to all the existing laws until they were amended by the new sov ereignty. The entire government of Spain would cease the moment we took possession. Should the people be aban doned to anarchy? * This argument from expediency and necessity could be supported by appeal to precedent. So far as the act dele gated and united powers, it followed the Ordinance of 1787. There was in this no delegation or union of the powers of the general government. Indeed, no executive or judicial powers appear to belong to Congress as a national legislature, consequently it had none to delegate. The delegation and union, then, was the act of Con gress as a sovereign, a constitutional sovereign, it is true, 1 Ann., 8 Cong., i Sess., 499 et seq. 32 MILITARY GOVERNMENT [ 2 l6 but a sovereign in whom inhered all the powers of gov ernment so far as they related to territory, in virtue of being empowered to make all needful rules and regula tions for the same, and a sovereign who might even govern directly. It has already been stated that the powers of govern ment were vested in the President. They were drawn from two sources. Since he was authorized to use the army and navy in effecting and maintaining possession, he could, in case of necessity, have governed as a military commander. The other source was found in the powers exercised by the existing government, which were conferred on the Presi dent. Mr. Jefferson's opinion of these powers may be gath ered from some of his letters and official acts. The first quotation is from a letter to Albert Gallatin, Secretary of the Treasury, dated November 9, 1803. After enumerating several things for which Congress should make provision, such as the administration of justice, the naturalization of ships and the prohibition of the importation of slaves from abroad, he continues : Without looking at the old territorial ordinance, I had imagined it best to found a government for the territory or territories of lower Louisiana on that basis. But on examin ing it, I find that it will not do at all ; that it would turn all their laws topsy turvy. Still I believe it best to appoint a governor and three judges, with legislative powers; only pro viding that the judges shall form the laws, and the governor have a negative only, subject further to the negative of a national legislature. The existing laws of the country being now in force, the new legislature will of course introduce the trial by jury in criminal cases, first; the habeas corpus, the free dom of the press, freedom of religion &c., as soon as can be, and in general draw their laws and organization to the mould of ours by degrees as they find practicable without exciting 217] LOUISIANA 33 too much discontent. In proportion as we find the people there riper for receiving these first principles of freedom, Con gress may from session to session confirm their enjoyment of them. 1 To Mr. Madison, Secretary of State, under date of July 14, 1804: The third article provides that they shall continue under the protection of the treaty, until the principles of our constitution can be extended to them, when the protection of the treaty is to cease, and that of our own principles to take it's place. But as this could not be done at once, it has been provided to be as soon as our rules will admit. Accordingly Congress has begun by extending about 20 particular laws by their titles, to Louisiana. 2 October 31, 1803, Secretary Gallatin wrote to W. C. C. Claiborne, who was that day commissioned governor of Louisiana : It is understood that the existing duties on imports and exports, which by the Spanish laws are now levied within the province, will continue until Congress shall have other wise provided. 8 November 14, he issued instructions to H. R. Trist, col lector at Fort Adams, and designated collector at the port of New Orleans, to execute the Spanish customs laws, mentioning specifically export duties, and the collection of duties to and from the Mississippi district and New Orleans, 4 i Writings of Jefferson (Ford), viii, 275. 2 Ibid., 313. Writings of Gallatin (Adams), i, 167. 4 Book " G," Jan. I, 1803 to Dec. 31, 1808, Collectors Small Ports, in Office Secretary of Treasury. Quoted in Attorney-General Griggs's Brief (October, 1900), 82. 34 MILITARY GOVERNMENT [218 In the course of the debates in Congress the maxim of international law, that the inhabitants of ceded territory are entitled to all the existing laws until they are amended by the new sovereignty, was quoted by one of the speakers. He probably meant to exclude such laws as are political in character. At a later date the Supreme Court affirmed that the political laws necessarily changed, though the municipal laws remained. l Accepting this principle, it is hard to find any justification for the adoption of the Spanish customs laws. The course adopted by the Executive was indirectly ap proved by Congress in the act of February 24, 1804, which purported to extend our revenue laws to the recently ac quired territory, the same to take effect in thirty days. The logical inference is that, in the opinion of Congress, these laws did not apply to Louisiana before that date. That they extended there the moment the territory came into our possession does not seem to have occurred to anybody. Yet there were in the Senate, and voting with the administra tion, Jonathan Dayton, Pierce Butler, and Abraham Bald win, all of whom had sat in the Constitutional Convention. And Mr. Madison, one of the most conspicuous members of that body, was Secretary of State. The apparent reason why the Spanish revenue laws were enforced is that they were believed to remain operative until altered by the new sovereignty. Such a view appears un tenable; for those laws certainly were political in character. A new sovereign might possibly adopt the political laws of the old, but it is assumed that he already has laws defining his relation to his subjects, and that these at once operate over new subjects when no other stipulation is made. The sovereignty of the United States had already adopted such 1 Amer. Ins. Co. vs. Canter, I Peters, 511. 219] LOUISIANA 35 laws, applicable to all subjects, and these necessarily applied to the people of Louisiana, subject only to the modifica tions to which the sovereignty had assented in the treaty of cession. Not only did the President have no authority to enforce the Spanish customs laws, but he was in duty bound to enforce our own. Not even necessity can be appealed to in justification of what was done. The fact that New Orleans was not within a collection district did not prevent the execution of some revenue laws, and that, too, by civil officials; then why not the revenue laws of the United States? The seventh article of the treaty, granting special privi leges to French and Spanish ships in Louisiana ports for twelve years, does not appear to have been extensively discussed at the time, but a similar provision in the treaty of Paris (1898) has been assailed as violating that clause of the Constitution which requires that duties, impo-sts, and excises be uniform throughout the United States. From some diplomatic correspondence of later years we learn that the constitutionality of the seventh article was considered by the Senate. In a communication of March 29, 1821, John Quincy Adams says to the French minister, de Neuville, that whether Article VII was compatible with the Constitution or with Article III " might be, and was, a question to the Senate in deliberating upon the treaty. It was a question of construction upon a clause of the Constitution; and that construction prevailed with which the terms of the treaty were reconcilable to it and to them selves." At this point the Secretary of State is forced to admit that, after the admission of Louisiana as a State before the end of the twelve years, the continued observance of Article VII was an open violation of the Constitution, to which objections might have been raised, but adds that 36 MILITARY GOVERNMENT [ 2 2O the States waived such objections and admitted the inhabi tants of Louisiana " to all the rights of American citizens, a friendly grant in advance of that which, in the lapse of three short years, might have been claimed as an undeniable right." 1 Something has already been said concerning the char acter of the local government in Louisiana prior to the ac quisition by the United States. In the opinion of Laussat, the Spanish governor might have used the words frequently, but erroneously, ascribed to Louis XIV., "L'etat, c'est moi" This was a somewhat exaggerated view, but it must be con fessed that there was much in the political system of Louisi ana not in harmony with republican ideals. Mr. Jeffer son's opinion of the fitness of the people of Louisiana for self-government was expressed in a letter to De Witt Clinton, December 2, 1803 : "Although it is acknowledged that our new fellow-citizens are as yet as incapable of government as children, yet some cannot bring themselves to suspend its principles for a single momait." 2 Still it is hard to believe that Jefferson thought they could be governed without reference to the most sacred guarantees of the Constitution. But what else were he and his gov ernor-general and intendant now doing in proclaiming that all their laws should remain in force? How was the cut ting out of a man's tongue and the confiscation of his prop erty for reviling the name of Christ to be harmonized with the clause forbidding the infliction of cruel or unusual pun ishment? or the exemption of certain classes from certain kinds of punishment, with our democratic principle of equality before the law? It does not appear that either of these particular provisions of the Spanish law was ever 1 Amer. State Papers, For. Rel., v, 652. 2 Writings (Ford), viii, 283. 221 ] LOUISIANA ^7 invoked under our authority, nor is it probable that they would have been enforced. Still they were a part of the laws declared to be in force. Again, the Catholic religion was the state religion in Louisiana, no other being tolerated in public. It was supported in part by the public treasury. Yet the first amendment to the Constitution says that " Con gress shall make no law respecting an establishment of re ligion, or prohibiting the free exercise thereof." Surely Congress cannot delegate powers prohibited to it. But the adoption of the Spanish law certainly meant the establish ment of the Catholic religion to the exclusion of others. The stipulation of the treaty that the inhabitants should be protected in the enjoyment of their religion did not mean that the Catholic religion must be supported by the state, and had it meant this it could not rise superior to our fundamental law. Halleck makes an excellent comment regarding what municipal laws remain in force upon the completion of conquest and the transfer of sovereignty: When it is said that .... the law municipal continues till changed by the will of the conqueror, it is not meant that these laws, proprio vigore, remain in force, but that, it is pre sumed, the new political sovereign, has adopted and continued them as a matter of convenience When, therefore, we come to pronounce upon the force of a law of the conquered people after the conquest, and to determine whether it has been tacitly adopted by the conqueror, we must look to the character of its provisions, and compare them with the laws and institutions of the conquering state, that is, the will of the conqueror as expressed by himself in similar matters. Whatever is in conflict with, or directly opposed to, such ex pressions of his will, we cannot presume to have been adopted by his tacit consent. Hence, Lord Coke says, if a Christian 38 MILITARY GOVERNMENT [ 222 king should conquer an infidel country, the laws of the con quered country, ipso facto, cease, because it is not presumed that a Christian king has adopted the laws of an infidel race. 1 Of course the principle just enunciated applies to terri tory acquired by peaceable cession as well. It will be noticed that Halleck spoke of tacit adoption. Perhaps we might say that the same principle would apply to adoption by actual proclamation, it being assumed even in this that the new sovereign does not mean to adopt laws and cus toms at variance with such as are already in force. This certainly would be a liberal interpretation; but Mr. Jeffer son's course in Louisiana cannot be defended even on this interpretation, for we find him speaking of introducing, " as soon as can be," 2 the habeas corpus, freedom of the press, and freedom of religion, all of which are guaranteed by our Constitution. IV. THE WORK OF ADMINISTRATION AND ITS EFFECTS. The French and Spanish in Louisiana did not take " French leave " after the delivery of the territory to Gov ernor Claiborne, a fact which caused some annoyance and uneasiness to the Americans. So early as February 20, 1804, Secretary Madison wrote to the governor that it would be well to get Morales, the former Spanish intendant, out of Louisiana in a discreet way. Laussat embarked April 21, 1804, and the Spanish commissioners made their adieus three days later. About three hundred Spanish troops had been sent to Pensacola a few weeks before this, up to which time the American troops had to make out as best they could 1 Int. Law, ii, 488 ; cf. Chicago, Rock Island & Pacific Ry. vs. Mc- Glinn, 114 U. S. f 542-546. 2 Supra, 32. 223] LOUISIANA 39 in the redoubts surrounding the town and under their tents. 1 But other prominent Spaniards still lingered. Spain had been very reluctant to see the province pass into the hands of the United States, and it was commonly believed, with apparently good reason, that these delays were occasioned by the hope of profiting by disaffection in Louisiana, or by some turn in the political wheel of fortune. It was not until July 9 that the powder magazine opposite New Orleans was delivered. In the Natchitoches district the operations of the Spanish emissaries were particularly offensive. 2 Fin ally (August 28), Secretary Madison authorized Governor Claiborne to say that their prolonged stay had not met with approbation, and suggested October i as a suitable day for letting it be known. 3 October 9 the governor in formed Don Casa Calvo, the leader of the Spanish, of the secretary's desires. Regarding the internal administration of Louisiana up to the organization of the territorial government under the act of Congress, there is not much to be said. The first step taken (December 30) related to the organization of the judiciary, in which Governor Claiborne exercised his legis lative powers by creating a court of pleas, composed of seven justices, with certain defined collective and individual jurisdictions in both civil and criminal cases. 4 Another act of some consequence was the effort to* establish the Louisi ana Bank to meet the demand for a circulating medium. Still another was his effort to organize the militia. 5 In January, 1804, a contingency arose for which the governor had received no instructions and for which he 1 Madison's Works (1884), ii, 199. 2 Amer. State Pap., For. Rel., ii, 689 et seq. Works (1884), ii, 203. 4 Martin, Hist. La., ii, 238. 5 Gayarre, iv, 15 et seq. 40 MILITARY GOVERNMENT [224 had made no provisions. It was nothing less than the arrival of a slaver at New Orleans with some fifty negroes for sale. Turning to the late Spanish contadore, Mr. Leon ard, he learned that such importations had been allowed by Spanish law and custom since 1793, whereupon he left the importer to pursue his own course. 1 According to some accounts there was no little discon tent among the people over their new situation. The reader will recall that our commissioners said the American flag was raised " amid the acclamations of the inhabitants." Martin tells us that " a group of citizens of the United States, who stood on a corner of the square, waved their hats in token of respect for their country's flag, and a few of them greeted it with their voices. No emotion was man ifested by any other part of the crowd." After the trans fer there were some open expressions of discontent. The general causes of discontent were said by Laussat to be " the sudden introduction of the English language, which hardly anybody understands, into the daily exercise of public authority and in the most important acts of private life; the affrays and tumults resulting from the struggle for pre-eminence, and the preference shown for American over French dances at public balls; the invasion of bayonets into the halls of amusement and the closing of halls; the active participation of the American general and governor in those quarrels; the revolting partiality exhibited in favor of Americans or Englishmen, both in the audiences granted by the authorities and in the judgments rendered ; the marked substitution of American for Creole majorities in all ad ministrative and judicial bodies; the arbitrary mixture of old usages with new ones, under pretext of change of domi nation; the intemperate speeches; the scandalous orgies; 1 Amer. State Papers, Misc., i, 390. 2 Hist. La., ii, 199. 225] LOUISIANA 4I the savage manners and habits; the wretched appointments to office what more shall I say, Citizen Minister?" 1 More specifically, it appears that some American patrols were guilty of insolence toward some of the inhabitants. 2 The native militia had dissolved. The governor's efforts to encourage its maintenance by enrolling Americans were only looked upon with suspicion. His plan to' relieve the financial stringency by an institution entirely unknown to the people, a bank, only aroused their fears of more assig- nats and liberanzas. The official use of the English lan guage, of which suitors were ignorant, was particularly annoying. The judges were almost wholly ignorant of the Spanish laws. In former times appeals lay to Cuba and even to Madrid. But now, said the plaintiffs, their gov ernor, who was not even attended, as the Spanish governors were, by a legal adviser, was their court of last resort; and the errors into which he could not help falling were with out redress. 3 These causes of discontent finally found expression in a French pamphlet, " A Sketch of the Political and Civil Situation of Louisiana, November 30, 1803, to October i, 1804," which had a wide circulation. Yet this paper, though it attacked unsparingly the administration of affairs in Louisiana, spoke respectfully of Governor Claiborne's in tegrity and the purity of his motives. In a letter to Secre tary Madison, the governor tried to vindicate himself, and denied in to to many of the charges brought against him, both in this pamphlet and in Laussat's letter, though he knew nothing of the latter. 4 1 Gayarre, iv, 10. 2 Marbois, Hist, de la Louisiane, 360 ; Eng. trans., 335. 3 Martin, Hist. La., ii, 246. 4 Amer. State Papers, Misc., i, 399 ; Gayarre, iv, 24 et scq. 42 MILITARY GOVERNMENT [ 22 6 But the chief source of discontent seems to have been the form of government proposed to be put into operation by the act of Congress, October i, 1804. According to Laussat, the excitement became intense when the contents of this act became known at New Orleans. Placards were put up in which insurrection was openly preached, and pub lic officers were driven away when they attempted to tear them down. 1 Several public meetings were held to protest against the act, and a deputation was sent to Washington to present their grievances. And this reveals much concerning the causes of general irritation. The people of Louisiana had supposed that they were to be given at once all the blessings of liberty and self-government, whatever they were, of which the Spanish had kept them in utter ignorance. Had no such promise ever been made, and had the province been ruled with an iron hand, it is not at all improbable that the open expres sions of discontent would have been fewer, especially at first. Yet these people were exercising one of the very fundamentals of freedom, the right of petition and free speech. Mr. Jefferson had spoken of the freedom of the press as though it was not to be guaranteed at first, but Governor Claiborne does not seem to have interfered with this, although it added somewhat to his embarrassments. 2 The situation of the country demanded that it be American ized, consequently a change of language was inevitable; but it could have been accomplished with less friction had men been sent who were familiar with Spanish and French. Perhaps the Americans were numerous enough to justify the bestowal of office upon some of them, but it must have been trying to the natives to be ruled by these gentlemen according to American notions of right and 1 Gayarre, iv, n, 17. 2 Ibid., 26. 227] LOUISIANA 43 wrong, supported by occasional bits of American law, rather than under the familiar Spanish laws, as the governor had promised them. The aspersions cast upon Governor Claiborne by Laus- sat do not appear well founded. About the most serious charge that can be brought against him is his ignorance of French and Spanish. This, it must be confessed, was a serious one in the position he occupied. But his subse quent career, continuously governor of the Territory, first governor under the State constitution, and elected to the United States Senate, is a high testimonial to his character and to the esteem in which he was finally held by the people he had been sent to train in the first steps of liberty. After all has been said, it does not appear that the causes of dis content were much more than suc^ as are naturally incident to a transfer of sovereignty, especially where great expec tations have been raised which cannot be suddenly realized. Very little remains to be said respecting the administra tion of Upper Louisiana, that vast domain where society was then in the primitive state which characterizes the out posts of civilization. It was not until January 16, 1804, that the French and Spanish commissioners gave orders for the delivery of the posts in Upper Louisiana. 1 Captain Amos Stoddard was detailed to receive them. There cannot have been much for him to do in the way of administration. June 16, 1804, he forwarded to President Jefferson some documents re lating to the inhabitants and the resources of the coun try. 2 Instead of manifesting displeasure at the pres ence of troops, the people protested on learning that 1 Amer. State Papers, For. Rel., ii, 690. * Messages and Reports, 1804. 44 MILITARY GOVERNMENT [228 some of the few soldiers then among them were to be withdrawn. 1 The troops were wanted for protection against the Indians. However, the soldiers were not so well pleased, finding it difficult to live on their small pay where prices were so high. November 8, 1805, a memorial was sent to Congress praying for increased pay on this ground. The act of March 26, 1804, which divided the Louisiana country, consigned the people of the upper portion to the executive and judicial authority of the governor of the Indiana Territory. The people were so dissatisfied with the prospects of this quasi-ioreign bondage that they chose delegates to a convention to protest against it. This body, composed of sixteen members from five settlements, met at St. Louis on September. 13, 1804, formulated their griev ances, and selected two delegates, Augustus Chonteau and Eligius Fromentin, to present them to Congress. Captain Stoddard attested the genuineness of their credentials, which were signed by the president and secretary of the conven tion. 2 March 3, 1805, an act was approved creating a territorial government of the first grade. General Wil kinson, still an officer of the army, was appointed governor. His position was sometimes spoken of as that of military governor, 3 but the mere fact of his being a military man hardly justifies the application of the term to an office not so regarded when held by a civilian. 1 Amer. State Papers, Misc., i, 403. 2 Ibid., 400 et seq. 3 Claiborne, Miss, as a Province, etc., 246 ; Schouler, Hist. U. S., iii, 82. CHAPTER II THE ANNEXATION OF WEST FLORIDA I. How THE CONQUEST WAS EFFECTED THE story of the acquisition of the Floridas is almost continuous with that of Louisiana. Even before the ratifi cation of the Louisiana treaty, the Americans began to cast longing eyes upon West Florida, and to wonder if it could not be included in the cession. In fact, as soon as the treaty was signed the American negotiators began to lay claim to this territory. Congress, by the act of February 24, 1804, authorized the President to erect the Mobile country, as far west as the Pascagoula, into a separate collection dis trict, although possession had not then been obtained. No boundary was designated toward the east. When this act was published it aroused the wrath of the Spanish minister, Yrujo, who went to the State Department and commented upon it in tones which clearly revealed his anger. As an effort was being made to conciliate Spain and win the sup port of France to our claims, Mr. Madison gave him such assurances as were consistent with the expression of a claim as far as the Perdido. 1 May 20, 1804, President Jefferson issued a proclamation creating the district, but defined it in rather vague terms as the " shores lying within the boundaries of the United States." Fort Stoddard, which was on the Mobile river above the thirty-first parallel, was 1 Amer. State Papers, For. Rel., ii, 576. 229] 45 46 MILITARY GOVERNMENT [230 made the port of entry. But the Spaniards retained pos session of Mobile, where their customs regulations, partic ularly the collection of duties on goods passing the town to and from different parts of the United States, continued for several years to be a source of no little annoyance to the Americans. The authority and power of Spain in West Florida were now very weak, but she succeeded in putting down an in surrection in 1804, when the inhabitants of the West and East Feliciana and East Baton Rouge parishes, who were largely of English and American origin, rose in the hope of securing American intervention. 1 A later attempt was more successful. The insurgents, or " patriots," led by Captains Thomas and Depassau, and Reuben Kemper, who lived on the American side, marched against the fort at Baton Rouge, which was garrisoned by about thirty sol diers, and captured it at the first assault. 2 This act was soon followed by a convention, September 26, 1810, which proceeded to act for the people in a sover eign capacity. They recited a number of grievances in a gen eral way, and declared that they were without hope of protection from the mother country. Appealing to the Supreme Ruler for the rectitude of their intentions, they then declared the several districts composing West Florida to be a free and independent state, with all the powers of a sovereign nation. An official copy of this declaration was ordered to be forwarded to Governor Holmes, of the Mississippi Territory, to be by him forwarded to the Presi dent of the United States, with the hope that it might " accord with the policy of the Government to take this State under their immediate and special protection, as an integral and inalienable portion of the United States." In 1 Gayarre, iv, 18. 2 Claiborne, Miss, as a Prov., 304. 231] THE ANNEXATION OF WEST FLORIDA 47 a separate letter addressed, under authority of the con vention, by John Rhea, its president, to Mr. Robert Smith, Secretary of State, it was presumed that the claims of the State to the unlocated lands would not be contested by the United States, as they had tacitly acquiesced in the claims of France and Spain for seven years. A loan of one hun dred thousand dollars was solicited from the Government, to be repaid by the sale of these lands. 1 The convention seems to have been confined to the Baton Rouge district, but it assumed to speak for the other par ishes, and proceeded to subdue them. Colonel Kemper was sent to the Tombigbee settlement, in the United States, to recruit a force and move against Mobile. Receiving much encouragement from the Americans, he called upon the Spanish commandant to surrender Mobile. While waiting near the city his men became intoxicated, fell into confusion, and were killed or captured by a squad of Spanish troops. Colonel Kemper escaped. He and some of his followers were afterwards arrested by Judge Toulmin, of Mississippi, for waging war against the subjects of a nation at peace with the United States. However, the historian Claiborne assures us that this proceeding of the judge met with no> approbation in high quarters. Indirectly the government applied for the pardon of the men who were captured. 2 The appeal of the Baton Rouge convention to Washington for assistance received no direct answer. October 27, President Madison issued a proclamation reciting the claims of the United States to West Florida, and giving the reasons for not taking possession of it sooner. Now the condition of affairs there, which threatened the security and tranquility of our adjoining territory and afforded new facilities to violators of our revenue laws and of 1 Ann., ii Cong., 3 Sess., 1252 et seq. 2 Miss, as a Prov., 308. 4 g MILITARY GOVERNMENT [232 those forbidding the importation of slaves, made it impera tive for the United States to occupy the country. The final status of the country was still to be a subject of fair and friendly negotiations. In view of these facts, Governor Claiborne would proceed to exercise over the said territory the functions legally appertaining to his office as Governor of the Orleans Territory. The good people were invited to pay due respect to him and to obey the laws, and were promised protection in liberty, property, and religion. The same day Secretary Smith transmitted this procla mation to Governor Claiborne, with orders to print it in English, Spanish, and French, and circulate it exten sively. " The Secretary of War," said he, " will order the officers of the frontier posts to assist you in passing the wilderness. You will lose no time in organizing the militia of the district, bounding parishes, and establishing parish courts. Do all your powers allow to maintain order and protect the inhabitants. The Legislature of Orleans may enlarge your powers and give the district representation in the general assembly. Should you be opposed, the com manding officer of the regular troops on the Mississippi will have orders from the Secretary of War to afford the requisite aid upon your requisition. Do not use force against any particular place which may still be in the hands of the Spaniards, You are authorized to draw up to $20,000." 1 Governor Claiborne was just returning from a visit to the States. When he appeared at Baton Rouge, December, 1810, supported by two companies of Mississippi militia, the convention government dissolved. He then hoisted the United States flag and issued a proclamation incorporating the territory into that of Orleans. The next step was to organize parishes and appoint administrative officers. In 1 Ann. Cong., ibid. THE ANNEXATION OF WEST FLORIDA 49 the latter work he pursued a policy of conciliation by ap pointing John Rhea, " General " Thomas, and others who had been prominent in the convention and the government instituted by it. Early in January he sent flags, proclama tions, and commissions to> the remoter parishes of Biloxi and Pascagoula. In the latter place the bearer, finding none of the inhabitants able to read or write, prevailed upon Captain George Farragut, sailing-master of the navy, to accept a commission as justice of the peace. 1 In all of these operations no opposition appears to have been encountered from the Spanish authorities. Indeed, Governor Folch wrote, December 2, 1810, to Secretary Smith, to say that he would deliver Mobile to the United States upon equitable terms of capitulation if he did not receive aid from Havana during the month. At the same time he asked that the commandant at Fort Stoddard might be directed to assist him in driving back Colonel Kemper, whose movements have already been mentioned. No de livery of Mobile appears to have been made. II. THE LEGAL ASPECTS OF THE ANNEXATION The action of our administration in West Florida did not elicit so much as a diplomatic protest from Spain. Indeed, that unfortunate country was hardly in a position to assert her rights, owing to her own internal disorders incident to the schemes of Napoleon. But the British charge d'affaires, Mr. J. P. Morier, entered a protest in her name. His letter, however, received no reply until he wrote again asking for one. Mr. Smith then merely referred to the public documents to show that the act was not hostile to Spain, and added that our representative at London had been instructed to give the 1 Claiborne, Miss, as a Prov., 305 et seq. 50 MILITARY GOVERNMENT [234 necessary explanations to the British Government. July 2, 1811, Mr. Foster, the British minister, wrote Mr. Monroe, then Secretary of State, to say that Mr. Pinkney had offered no explanation, and that, if the military occupation was persevered in, he must protest against it as contrary to every principle of public justice, faith, and national honor, and injurious to the alliance subsisting between the British and Spanish nations. 1 Mr. Monroe denied the right of Great Britain to inter fere, and proceeded to justify the seizure. It had not been made, as Mr. Foster had intimated, through selfish motives at a time when Spain was known to be impotent. Many injuries suffered at the hands of Spain, spoliations and the suspension of the right of deposit at New Orleans in par ticular, would have justified reprisals. But the United States did not rely on these; their claims were based on the treaty by which Louisiana was acquired. Since 1805 the government of Spain had hardly been felt in West Flor ida, consequently that province had fallen into disorder. Only when the inhabitants rose and took matters into their own hands did the United States interfere. Though it was now easy enough to get up some sort of justification as against foreign protests, Mr. Madison had not been so sure of his ground at home. October 19, 1810, when he knew something of what was going on, but had not yet received any " communication from the successful party at Baton Rouge," he wrote to Mr. Jefferson to say that the crisis in West Florida presented serious questions as to the adequacy of the laws of the United States for territorial administration. He feared that the near approach of Congress might subject any intermediate interposition of the Executive to the charge of being premature and dis- 1 Amer. State Papers, For. Rel., iii, 542. 235] THE ANNEXATION OF WEST FLORIDA $i respectful, if not illegal. Still he thought the exigencies of the case, the country to the Perdido being ours and in danger of foreign seizure, would justify him in taking pos session. 1 But his doubts about the legality and propriety of occu pation soon vanished. What he actually did has already been told. October 30, he wrote to Pinkney, our minister in Lon don, that his action was " understood to be within the author ity of the Executive." 2 In his annual message, December 5, he explained that this action had been taken because " the Spanish authority was subverted, and a situation produced exposing the country to ulterior events which might essen tially affect the rights and welfare of the Union. In such a conjuncture I did not delay the interposition required for the occupancy of the territory west of American occupation. 5 About three months after the Americans en tered Pensacola, General Gaines reported that the Spanish 1 Ann. 15 Cong. 2 Sess., 1907, 1945. 2 j^., 2317. 3 Amer. State Papers, Misc., ii, 902. * Niles, xiv, 337. 6 Ann., ibid., 2300. 247] THE CON Q UEST OF FLORIDA 63 who remained had found no fault with the authorities estab lished by General Jackson, and that the utmost harmony prevailed among all classes of citizens. The order to General Gaines to deliver Florida to the Spaniards was issued as early as August 14, iSiS, 1 but the actual delivery of Pensacola did not take place until February 8, iSiQ. 2 Amelia Island does not appear ever again to have passed out of the hands of the United States. Concerning the administration of this island a few more details have been preserved. Soon after Fernandina was occupied, Major Bankhead, the commanding officer, issued a series of ordinances (Jan uary 5, 1818) for the government of the island, to be effective until the further pleasure of the United States was known. One related to the customs, and required that duties on goods subject to duty in the United States should be paid to the commanding officer for the benefit of the United States. It was recommended, however, that such goods be landed and entered at St. Mary's. Another made certain regulations for the collection of debts. Two jus tices of the peace, with power to appoint a sheriff, were in stalled to administer the laws, but were directed to make no decision in a criminal case affecting the life of the accused. The commanding officer reserved the right to decide all cases of riot. Direction was further given that the usages and customs of the United States should be fol lowed in all cases. In reporting these regulations, Major Bankhead said that necessity had impelled him to make them in order to settle disputes. The people seemed to be determined to avoid the payment of debts and to plunder wherever they could. The two justices whom he had appointed in conjunction 1 Ibid., 2174. 2 Niles, xvi, 40, 160. 64 MILITARY GOVERNMENT [248 with Commodore Henly had discharged their duty in a satisfactory manner. 1 Mail facilities were not very good in those days, but this report (dated January 10, 1818) can hardly have been four months in reaching Washington. May 14, 1818, Secretary Calhoun ordered the major to discontinue taking bonds on goods imported into Amelia Island, and to turn over the bonds already taken to the collector at St. Mary's, at which place goods were to be landed thereafter. The purpose of this order is not definitely stated, but appears to have been merely to stop the irregular collection of duties at Fernan- dina on goods intended for importation into the United States. If any goods were carried from St. Mary's to Fernandina, they probably went in free of duty. No fur ther directions appear to have been issued from Wash ington. In spite of the conditions of war brought on by the occupants, they endeavored to manage affairs on a peace basis. This is illustrated by a demand made by General Gaines, December 28, 1818, then in Amelia Island, of Gov ernor Coppinger for the release of a soldier and two citi zens reported to have been captured at St. John's by a body of armed men led by a Spanish officer. Explanations and the punishment of the offender were expected. The gov ernor's reply is not given. The inhabitants of Amelia Island were in bad odor, it not being believed that they had gone there simply for the sake of the climate. They were few in number, and about the only government needed was one of strict police con trol. This was maintained by the commanding officer until the island was finally ceded with Florida in 1821. 1 H. Ex. Doc., 15 Cong., 2 Sess., no. 117. CHAPTER IV THE FINAL ACQUISITION OF FLORIDA I. TAKING POSSESSION OF THE COUNTRY. ITS CONDI TION. REORGANIZATION THE treaty by which the Floridas finally came to the United States was signed February 22, 1819, but ratifica tions were not exchanged for two years. It was proclaimed at Washington on the second anniversary of its signature. The stipulation regarding the inhabitants was substantially the same as that in the Louisiana treaty, with the addition that such as desired to remove to the Spanish dominions should be permitted to sell or export their effects, at any time whatever, without being subject to any duties. March 3, 1821, an act of Congress was approved authorizing the President to take possession of and govern the Floridas under substantially the same terms as those granted in the act of October 31, 1803, for Louisiana. In the same act the revenue laws were extended and the President was authorized to appoint such officers as he might think neces sary for their execution. After this no action was taken by Congress until March 30, 1822, when the act estab lishing the Territory of Florida became a law. The inter vening time was for Florida one of " great productivity of documents," as was wittily remarked at the time. In a sort of poetic justice to, and justification of, General Jackson, that worthy was commissioned to receive the new territory and become the governor of the same when re ceived. It must have afforded the general no little pleasure 249] 65 66 MILITARY GOVERNMENT [250 to return to Pensacola and bid a final farewell to the Spanish Dons as he received from them the country he had once taken by force of arms, and against the surrender of which he had vigorously protested. The delivery of the Floridas was to be made in six months after the exchange of the ratifications of the treaty, or sooner, if possible. General Jackson left Nashville April 24, 1821, to carry out his commission, and was on the Florida border in about a week. He was too familiar with the Spaniard's ever-ready hasta manana to expect an imme diate fulfilment of the treaty, but this did not mollify the irritating influence which the numerous delays had upon his irascible temper. The transfer was finally effected at Pensacola, July 17, 1821, with some dramatic effect, by General Jackson and Don Jose Callava. Still further delay had been expected in East Florida, but the transfer there was effected a week earlier than at Pensacola, by Colonel Robert Butler and Don Jose Coppinger. Everywhere the Spanish claimed the cannon in the fortifications, but the Americans would not allow them to be carried off, and they were left for further negotiations. At St. Augustine the archives were left under the same conditions. 1 The proclamation, furnished from Washington, issued by General Jackson was of the same general tenor as that published in Louisiana by Governor Claiborne. 2 At the time of the transfer the population of Florida was very small. The only towns of any importance were Pensacola and St. Augustine. The former had the finest harbor in Florida and once enjoyed a considerable overland trade with St. Augustine, but its greatness had long since passed away. Its dignity now depended chiefly on the fact 1 Niles, xx, 404; Ann. 17 Cong, i Sess., 1918, 1950. 2 Ibid., 1924 et seq. 251] THE FINAL ACQUISITION OF FLORIDA 67 that the governor still resided there and kept a few troops with him to garrison Fort Barrancas, six miles distant at the entrance to the bay. Nearly all the houses were in a state of dilapidation, and hardly more than half were occu pied. The government building, a frame structure propped up with unhewn timber, was considered unsafe. At St. Augustine some government buildings had been begun on a pretentious scale years before, but had been allowed to fall into decay. 1 The inhabitants consisted mainly of West Indian traders, smugglers, privateersmen, Indians, runaway negroes, and renegade white men from the States. In Mrs. Jackson's opinion the last two formed the worst element. The people did not observe the Sabbath according to her notions of propriety, the noise, swearing, and bustling trade being especially jarring to her nerves. 2 The general's report was slightly different. He found the inhabitants a sober, or derly, peaceable, and well-meaning people. His opinion of the Spanish population was favorable, " excepting of such as have been employed by the government, which seems to have had everywhere the same corrupting influence over the minds and morals of those engaged in its admin istration/' 3 Little needs to be said about the laws and political sys tem beyond the statement that, theoretically, they were much like those of Louisiana. The political organiza tion, however, was very defective. An elaborate system had been provided for in the Spanish constitution, which was proclaimed in Cuba 4 and Florida, but it never was put 1 Ann., 17 Cong., i Sess., 1938; Forbes, Sketches of Fla. (1821), 87 et seq. 2 Parton, Jackson, ii, 603 et seq, 3 Ann, ibid., 2539- 4 Niles > xviii ^ 68 MILITARY GOVERNMENT [252 into full operation. Colonel Callava explained the defective organization by saying that, considering the probability of an early transfer of sovereignty, he had not thought it worth while to remedy the defect. The military officers often performed the duties of civil magistrates. At the time of his appointment, Governor Jackson was an officer of the army, but his commission expired June i. After that date the commanding officer in Florida was directed to honor his requisition for such military assist ance as might be necessary to enforce his authority. 1 The commission given to General Jackson as governor, author ized him "to exercise all the powers and authorities hereto fore exercised by the governor and captain-general and in- tendant of Cuba, and by the governors of East and West Florida, within the said provinces, respectively," under such limitations as had been, or might be, prescribed by the President, or by law. The power to lay or collect any new taxes or to confirm any land titles was expressly denied. 2 The country was divided into three collection districts, and revenue officers were appointed for them. A list of these officers, together with another civil list, which in cluded two " judges of the United States " and two Terri torial secretaries, was sent to Governor Jackson, 3 presum ably simply for his information, as they were appointed according to an act of Congress and he had no direct con nection with, or control over any of them, except the secre taries. The day after the transfer of sovereignty was effected, " Major-General Andrew Jackson, Governor of the prov inces of the Floridas, exercising the powers of the Captain- 1 President's Message of April 5, 1822. * Ann., 17 Cong., i Sess., 1922 et seq. 3 Ibid., 1927. 253] THE FINAL ACQUISITION OF FLORIDA 69 General," etc., etc., proceeded to the business of legislation. The first act ordained that there should be appointed an nually by the governor a chief officer, to be called the mayor, and six subordinate officers as councilmen, endowed with the powers necessary for the good government of Pensa- cola. They were to impose fines and levy such taxes as were necessary for the support of the town government. To remove doubts as to the powers of the mayor and coun cil in regulating the observance of the Sabbath, they were expressly empowered to make proper ordinances for that purpose. The ordinance further prohibited, under severe penalties, public gaming-houses and public gaming of every description, except billiards. A similar inhibition was laid upon the sale of liquor to soldiers of the United States. Another ordinance prescribed certain quarantine regula tions. 1 At some time, probably before this, it occurred to General Jackson that it might be well to know something of the laws he had promised to maintain and of the machin ery of the government he was expected to administer. On the way down he met Mr. H. M. Brackenridge, of Pennsylvania, a gentleman of some accomplishments, well versed in French and Spanish, and asked him to take part in forming the government. 2 Mr. Brackenridge was ap pointed alcalde of Pensacola, and was directed to inves tigate and report upon the Spanish law and political system. But the governor was not idle while waiting for this report. July 21, he issued a decree dividing the territory into two counties, and ordering the establishment of county courts, with five justices of the peace for each. The pro ceedings in all civil cases were to be conducted according to the Spanish law, except in the examination of witnesses; 1 Ann., 17 Cong., I Sess., 2547 et seq. - Parton, Jackson, ii, 615. 70 MILITARY GOVERNMENT [254 in criminal cases, according to the common law, that is, on indictment by a grand jury. Criminal trials were to be public, and by a jury of the county. The examination of witnesses was to be viva voce in open court. Indictments were to be made in the name of the United States. The judges were empowered to impose such taxes as were neces sary to carry this ordinance into effect. Five days later another ordinance was promulgated explaining the method of procedure in the county courts, and fixing the fees to be received by their officers. 1 In a few days Mr. Brackenridge was ready to report.. According to this report there was, besides the governor, only one provincial officer, the alcalde, actually in the exer cise of any civil functions. While the duties of this officer were defined by law, he had, in Florida, exercised some functions not strictly belonging to his office, such as chief of police, sheriff, superintendent and inspector of prisons, and notary public. Mr. Brackenridge's predecessor had summed it up by saying that the alcalde had more power than the governor. By the decrees of the Cortes, passed under the Spanish constitution, the viceroys and ultra marine commandants were limited to functions of a political and military nature, and the intendant to the management of the revenue. This was done in the expectation that they would be aided by other officers and tribunals, but, as a matter of fact, such officers were never appointed in Florida, and this left the civil administration, especially in the judiciary, very defective. There was at the time no authority in the province to decide a law-suit. The gov ernor still exercised the powers of an admiralty judge, by virtue of what law was not known. It was the only judicial power exercised by him since the adoption of the consti- 1 Ann. 17 Cong, i Sess., 2551, 2554. 255] THE FINAL ACQUISITION OF FLORIDA 7! tution. In towns of less than one thousand souls, all the civil functions were generally discharged by the alcalde; in larger towns the constitution gave the right to a cabildo, or mayor and aldermen. To these Pensacola was entitled, inasmuch as it was a capital city. It once had a corporation, but this had fallen into disuse. In view of these facts, Mr. Brackenridge was at a loss how to proceed. To require an election for the cabildo he thought would be to require an impossibility, as there was no officer to hold an election, nor any way to find out the qualified electors. He was also at a loss to know whether he was to be governed by the Spanish laws in force before the promulgation of the constitution, or by those passed since that period. If by the latter, to what period were those de crees to be considered in force; to the ratifying of the treaty, to the present time, or until the establishment o>f a govern ment by act of Congress? It might, perhaps, admit of a doubt whether the Constitution of the United States did not extend its authority over this country by virtue of its coming under the American government; if so, that would secure to American citizens an open and public trial by jury. In completing the organization he thought that the interests of the Americans, who already outnumbered the Spanish, should be considered. 1 The Spanish organization in East Florida was not quite so defective. Besides the governor, there were an alcalde, a cabildo, and a judge, all in the exercise of the functions of their offices. Governor Jackson directed that they should not be disturbed, if they were of good moral character and would take the necessary oaths of office. Captain Bell was commissioned to act as governor pending the arrival of Mr. W. G. D. Worthington, commissioned Secretary and 1 Ann., 17 Cong., i Sess., 2540 et seq. 72 MILITARY GOVERNMENT [256 Acting Governor of East Florida, and was directed to ap point new officers in all cases where the incumbents refused to take the necessary oaths. 1 II. REVIEW OF THE GOVERNOR'S ACTION In justification of his course, Governor Jackson said (July 30) : " The commission under which I act does not define my powers; and, I assure you, I am not a little at a loss when left to collect them from the nature of the office. Judging from the practice in Spanish colonies, the viceroy, or captain-general, possesses legislative as well as executive powers over the provinces placed under his gov ernment. O'Reilly, in Louisiana, of his own authority, in troduced the Spanish law, and established tribunals exactly modeled after those of Spain. But, according to the de crees passed under the constitution, those officers are strictly confined to the exercise of military and executive or polit ical power. ... In this uncertainty, I have contented my self with merely organizing a government from the mate rials at hand, with as little change as possible; promul gating the same by way of ordinance, in order that the people may have some knowledge of the system to which they must conform. These ordinances I now transmit for the approval of the President." 2 The legal justification of the governor's acts depended on what laws were in force in Florida. In his proclamation the general had promised to preserve the local laws and institu tions. The Spanish constitution 3 had been proclaimed in Florida, but he afterwards found it convenient to deny that it had any force there. We have met the statement that public 1 Ann., 17 Cong., I Sess., 2029. 2 Ibid., 2537. 3 This lengthy document may be found entire in Niles, xviii, 196 et seq. THE FINAL ACQUISITION OF FLORIDA 73 law ceases to be operative upon the transfer of sovereignty. This statement must be qualified to mean such public law as defines the relations of subject and sovereign. It cer tainly will not be contended that the body of public law which provides the machinery of local administration ceases with the transfer of sovereignty, for that would leave the country in a state of anarchy. So much of the Spanish con stitution, then, as defined the relations of the inhabitants of Florida to the Spanish sovereign ceased with the transfer, and only this. The rest of it, which was concerned with local organization and defined private law relations, so far as not contrary to our own laws, remained, or ought to have re mained, in full force until changed by the new sovereignty. Governor Jackson was not the sovereign. The laws relating to local organization and administration had not, indeed, been put into full operation in Florida, owing to the negligence of the Spanish officials, who excused themselves by refer ence to the impending transfer, but this did not alter their binding force. For the government to limp along in the maimed con dition in which he found it seemed intolerable to Governor Jackson. He began the process of healing by appointing an alcalde, an office made elective by the constitution (Art. 312). The same was true of the aldermen (regidors). The municipal councils were to be established by the pro vincial council, which latter body also was elective. The direction as to how justice should be administered was left to the Cortes. General Jackson said that, his ordinances made known the rules rather than prescribed new ones, ex cept the requirement for pronouncing decrees in open court and the giving of testimony viva voce. The statement may be true in part, but it is open to doubt. Mr. Brackenridge said that the judge, according to Spanish law, regulated his own charge for an order or decree, and that whatever 74 MILITARY GOVERNMENT [258 the theory, the practice in Florida had depended on the in dividual in office. If this was the law, General Jackson had changed it in himself fixing the scale. But Mr. Bracken- ridge was wrong. Under the constitution (Art. 256) the fees were to be fixed by the Cortes. The governor said that trial by jury, which he had decreed, was in the contemplation of the Spanish constitution, as well as that of the United States. A careful examination of the former document hardly justifies this claim. The clause in the first ordinance giving the town council power to make such regulations as they deemed proper for the observance of the Sabbath was afterwards attacked by the general's opponents as violating, or authorizing the council to violate, the treaty and his commission, by which he was bound to protect the people in the free enjoyment of their religion. The council might even deem it proper to close the Catholic church. 1 This charge was really too silly to deserve notice. Such powers were not supposed to rise superior to statute regulations of superior authority. The ordinance simply meant, says Par ton, that Mrs. Jack son wished, and Governor Jackson ordained, that the theatre and gambling-houses be closed on Sunday. And this was done. The taxes authorized to be levied by the council, said the governor, were such as had usually been paid. While complaint was frequently made about the defective organization, little was said about a lack of Spanish law on the subject. The general probably had a copy of the constitution. If not, it was his own fault, for it had been published in English in the United States nearly a year be fore he started for Florida. Mr. Brackenridge furnished him with a copy of the laws regulating alcaldes. These laws had been passed under the constitution in 1812, and, 1 Parton, Jackson, ii, 608. 259] THE FINAL ACQUISITION OF FLORIDA 75 upon its restoration, were, with other laws passed under it, revived. 1 But these the governor deliberately disregarded, in spite of the promises in his proclamation. His justification for this was that " the greater part of the population of this country are Americans; the active commerce is carried on by Americans; hence the necessity of assimilating the present institutions to something which they can understand, and of administering the laws by means of tribunals not altogether foreign to their habits and feelings." 2 If, as claimed, the Americans already outnumbered the Spanish (in Pensacola), it would not have been contrary to justice to give them no small share of the offices, pro vided they were bona fide residents, especially as the gov ernment was ultimately to be assimilated to the American system. Yet Governor Jackson says that, in making up his civil list, he was desirous to give preference, where pos sible, to the old inhabitants. However, he found but few- willing to accept any situation, owing to their unwillingness to lose their rights as Spanish subjects. The governor attributed this to the fact that the greater part had been connected with the government in some way, or that they had private claims which might be prejudiced by any act evincing their intention to become American citizens. 3 The first reason seems incredible, in view of the fact that he found it necessary to have a special commissioner search for the government! Attention has not been called to these irregularities be cause they prove that the general was guilty of high crimes and misdemeanors. There was, indeed, no legal ex cuse for them, for he was bound, both by his commission and the law of nations, to preserve the existing municipal 1 Ann. 17 Cong, i Sess., 2547. 2 Ibid., 2537. 8 Ibid., 2539. 76 MILITARY GOVERNMENT [ 2 6o regulations. He was not the new sovereignty authorized to change them, nor could he do it under his commission as captain-general, that office having been stripped of legislative powers. But the changes were bound to come, and then probably was the best time to begin. The chief lesson, then, lies in the warning against making promises the meaning of which is not known, and against sending out governors to strange situations with powers so hedged about as to render their office a nullity, if the limitations be observed. CHAPTER V ADMINISTRATIVE WORK IN FLORIDA I. THE CALLAVA-FROMENTIN AFFAIR WE now come to one of the most serious, and at the same time the most ludicrous, of the acts committed by Gov ernor Jackson during his stay in Florida, August 21, 1821, Mr. Brackenridge, the alcalde of Pen- sacola, informed Governor Jackson that he had satisfactory evidence that important documents relating to estates which belonged to his office were in the possession of a Spaniard named Sousa, and requested authority to make a regular demand for them. 1 . The governor immediately granted the request, and appointed George Walton, Secretary of West Florida, H. M. Brackenridge, and John Miller, county clerk, a committee to make the demand. When these gen tlemen called upon Sousa, he produced several boxes of papers and allowed them to be examined. Among these the committee found four sets of papers relating to prop erty which they considered of importance and demanded their possession. This Sousa refused on the ground that he was the servant of the late Governor Callava, and could not surrender the papers without an order from him. The committee then wrote out a statement for Sousa, saying that they regarded him only as a private person, with no authority to retain the documents, and again demanded possession. This communication he refused to receive. 1 Ann. 17 Cong, i Sess., 2301 et seq. 261] 77 78 MILITARY GOVERNMENT [262 When the situation was reported to the governor, he ordered Colonel Butler, of the army, and Mr. Miller to seize Sousa, together with the papers, and bring him before the governor for examination. In a short time they pro duced Sousa, but reported that he had carried the papers to Callava's house to relieve himself of the responsibility for them. Sousa was now committed for contempt, and an order was issued to the military to secure the papers from Callava, or to take him into custody. Colonel Callava was soon found, but refused to deliver the papers, and asserted his rights to immunity as a com missioner of Spain. After a considerable parley, he was taken in charge and carried before Governor Jackson. The statements of the two parties to this affair were diamet rically opposed. The colonel declared that he was treated throughout with the utmost discourtesy and contempt. On the other hand, Mr. Brackenridge declared that Colonel Butler, who had charge of the military, used the utmost delicacy. Both were supported by " many respectable wit nesses." About ten o'clock at night Colonel Callava was carried before Governor Jackson, now sitting in his judicial capac ity. The colonel refused to answer any questions relating to the papers, and protested against the proceedings as a violation of his rights. Whereupon the judge informed him, with considerable warmth, that such pretensions could not be allowed. Callava's ire also warmed up and he only remained the more obstinate. His steward, Fullarat, was then questioned, and answered that his master had the papers desired. Judge Jackson now offered to send an officer with any one Callava might name to bring the boxes, in order that they might be opened and the papers specified taken out. After repeated refusals, the colonel and his steward both were committed to prison about midnight. 263] ADMINISTRATIVE WORK IN FLORIDA 79 In both instances he complained of bad interpretation, but there can be no doubt that he understood very well what was wanted. The next day the papers were taken out and the box re- sealed. Thereupon an order was issued for the release of the prisoners. During all this time Colonel Callava's house was carefully guarded by a squad of soldiers. When he returned he found nothing to complain of except that the documents so often demanded had been taken away. But before the curtain was rung down upon this act by the release of the prisoners, another actor was heard ap proaching behind the scenes. This was none other than Eligius Fromentin, 1 " Judge of the United States for West Florida, . . . empowered to execute and fulfil the duties of that office according to the Constitution and laws of the United States." Finding their companion in prison, some of Colonel Cal lava's friends applied to the above-named judge for a writ of habeas corpus in his behalf. This was soon issued, and 1 A little knowledge of this man's antecedents may add something to our understanding of the situation. Eligius Fromentin was a native of France, was educated in a Jesuit college, and entered the priesthood. Being expelled from France dur ing the Revolution he came to America. Soon after he married into an influential family in Maryland, acquired a smattering of law, and began to practice in New Orleans. Education, suavity of manner, and family influence finally raised him to the dignity of a United States Senator. When the Bourbons were restored he abandoned his wife and returned to France in the hope of ecclesiastical preferment. Dis appointed in his expectations there he returned to America, but his prospects were now ruined at New Orleans. His wife accepted his explanations and again lived with him. It was largely through the influence of her family that President Monroe, ignorant of his true character, appointed him to the temporary judgeship in West Florida, thereby rejecting General Jackson's application for one of his friends. Parton, Jackson, ii, 616 et seq. 80 MILITARY GOVERNMENT [264 Lieutenant Mountz was directed to produce the body of the prisoner. But instead of doing this the lieu tenant handed the writ to Governor Jackson, who immediately cited Judge Fromentin to appear before him and ex plain why he had attempted to interfere with the gover nor's authority. The judge accordingly appeared and signed a statement that he had granted the writ without any affidavit, merely upon the verbal application of a num ber of gentlemen, among them Mr. Innerarity, and that it had been delivered to one of the applicants to be served upon Lieutenant Mountz. 1 This acknowledgment, together with what was said orally, was considered a sufficient apol ogy, and the judge was released with a lecture on his duties and prerogatives, and a threat of imprisonment for a repe tition of the offense. One more act and the central part of the tragi-comedy closes. Soon after his release, Colonel Callava started for Wash ington to lay his grievances before the Spanish minister. Certain Spanish officers, eight in number, who remained behind, published a criticism of Governor Jackson's course in dealing with the colonel, in which they " shuddered at the violent proceedings exercised against their superior." As Governor Jackson considered the language of their state ment offensive and believed them to be sowing discontent in the minds of the good people of the province, he ordered (September 29) them to depart before October 3, which they ought to have done long before, conformably to the seventh article of the treaty. 2 Another paragraph may be added here to give the sequel to the above, though General Jackson was not directly con cerned in it. In January of the following year two of these * Ann. 17 Cong, i Sess., 2318 et seq., 2374. 2 Ibid., 2327. 265] ADMINISTRATIVE WORK IN FLORIDA gl officers returned to Florida, and were promptly arrested by Colonel George Walton, Secretary and Acting Governor of West Florida, although they declared that they had not re turned in defiance of the proclamation, but had come to ask permission to attend to the settlement of their private affairs, and that they were ready to submit to any order which might be made in their case. The calaboose not being fit to receive them, they were simply confined to their own houses while the matter was reported to General Jackson, and through him to Washington. When President Monroe heard of the situation he ordered their release. 1 II. THE HEIRS OF VIDAL vs. INNERARITY The papers which had caused all this trouble related to the case of the Heirs of Vidal vs. Innerarity. The case arose in the following way: Nicholas Maria Vidal, auditor of war, died in Pensacola in the year 1806. His will was found in New Orleans. This document directed that his debts, which were consider able, should first be paid, after which any residue of property should fall to some mulatto women, who were his children. The case had been in the courts ever since and was not yet settled, though numerous decrees had been issued. In August, 1821, the heirs appeared before Governor Jackson and prayed that John Innerarity, who, as counsel for a firm concerned in the settlement, had been possessed of some of the estate, be commanded to render an account in obe dience to a decree to that effect issued by Governor Cal- lava, July i, 1820. At the same time they expressed the belief that he was about to withdraw his person and effects from the jurisdiction of Pensacola. The chief claimant, 1 Ann. 17 Cong, i Sess., 2038 et seq. g 2 MILITARY GOVERNMENT [266 Mercedes Vidal, affirmed that the will and inventories had been missing for several years from the public archives of Pensacola, that she had made repeated applications to have them restored, and that this was finally done under a decree. That just before the change of sovereignty she had de manded them of Colonel Callava, but that he refused, say ing that he must take them to Havana. 1 While Governor Jackson was aware that much corrup tion characterized the Spanish judicial proceedings, he was horrified at this unparalleled wickedness. He was fully satisfied that Colonel Callava had been bribed by Innerar- ity. 2 Such oppression must not be tolerated, and the papers were sought, with the result already described. The case was now called up before Governor Jackson, sitting as a court of chancery. Counsel for the defendant entered a plea of want of jurisdiction, because, by the Spanish constitution, the judicial authority once exercised by the governors had been taken from them and vested in other officers. In rebuttal, the attorney for the plaintiff held that the powers executed by the officers of Spain, not the officers, were retained by the act of Congress, and that the President, in conformity to that act, had made an entirely different distribution of them. The Spanish constitution was not in force in Florida, because it had not been pro mulgated until Spain had parted with the sovereignty of the territory. Besides, it merely provided a form of govern ment, and consequently had no application to the new gov ernment. An examination of the act of Congress and of the governor's commission showed that the President had intended to give him the same powers as had been exercised by Governor Claiborne in Louisiana. Under the Spanish constitution the governors of Florida were only military 1 Ann. 17 Cong, i Sess., 2414, 2417, 2360. * Ibid., 2298 et seq. 267] ADMINISTRATIVE WORK IN FLORIDA 83 officers under the captain-general of Cuba. To reduce the governor to that position now would leave the country with out government of any kind. 1 Counsel for plaintiff was sustained by Governor Jack son, who said that the plea of the defendant would fall upon proof that the Spanish constitution was not in force in Florida. This he then endeavored to prove. It was first promulgated in Spain, said he, not in the provinces, by the Cortes in 1812, while Ferdinand VII. was a prisoner. May 4, 1814, the king, who had returned to Spain, annulled all the decrees of the Cortes, and this was the situation when the treaty was concluded, February 22, 1819, by which Spain parted with the sovereignty of the Floridas. The ratification was delayed two years, but in the ratification, assented to by the Cortes, it was provided that the treaty should have the same effect as if it had been ratified within the time originally specified. As there was no constitution in existence in 1819, this would exclude that document from the Floridas. Besides, the constitution was not promul gated in Cuba until January, 1821, and if ever in Florida, certainly after that date, more than three months 2 after Spain had surrendered the sovereignty of Florida, The plea of the defendant, therefore, was overruled, and he was ordered to show why the decree of the late Governor Cal- lava, by which he had been ordered to render to the heirs of Vidal an account of how the estate had been handled, should not be carried out. 3 The defense now brought forward decrees of the courts down to 1810, by which the estate was supposed to have 1 Ann. 17 Cong. I Sess., 2328 et seq. 2 Presumably referring to the ratification by the king of Spain, October 24, 1821. 3 Ann. 17 Cong. I Sess., 2332 et seq., 2416. 84 MILITARY GOVERNMENT [ 2 68 been finally settled, leaving it indebted to the defendant for $i57- 1 But several of the claims made therein were not allowed by this court, and the defendant was ordered to pay over the sum of $1,027.19 to the alcalde within thirty days. The alcalde was to advertise that creditors would be allowed sixty days in which to file their claims, after which the residue should be turned over to the heirs of Vidal. 2 At the expiration of the sixty days, the counsel for de fense endeavored to get a review of the whole case, but Colonel Walton, Acting Governor, paid no attention to his plea, but gave him to understand that the money must be forthcoming unless he wanted to go to prison. 3 III. OPINIONS AND COUNTER-OPINIONS Several questions arose in connection with the foregoing proceedings which deserve further notice. Colonel Cal- lava's claim to the disputed papers may be disposed of first. This claim was based on the fact that Vidal was in the military service. For that reason the papers fell under the military court and captainship-general, which, by the evac uation of Florida, had resumed the authority of the Spanish government of Pensacola. Besides, the creditors of the estate were Spaniards, and the right of presenting their claim in the proper tribunals could not be denied them. So far from attempting to wrong any one, he had ordered the papers to be given to the mulatto, that she might make a copy. 4 It was not denied that the property involved was within the jurisdiction of the United States, and that the claim ants were presumptive, or at least prospective, citizens of the same. To say, then, that the estate should be adminis- 1 Ann. 17 Cong, i Sess., 2476. 2 Ibid., 2457. Ibid., 2036. * Ibid., 1969. 269] ADMINISTRATIVE WORK IN FLORIDA 85 tered by a Spanish court for the benefit of Spanish creditors was a claim too absurd to be noticed. When Mr. Salmon, Spanish charge d'affaires at Washing ton, heard of the treatment meted out to Colonel Callava, he at once lodged a protest with Secretary Adams. In every way, he declared, the proceedings o-f General Jackson were irregular, illegal, unconstitutional, and violent. Both the American and Spanish constitutions, which guaranteed to every individual his property and person, had been violated in the informal process and inhuman execution of the decrees relating to Colonel Callava, even when he was regarded as a private individual. But he was, in fact, a commissioner of his Catholic Majesty for carrying into effect the treaty, and as such was under the protection of the law of nations. 1 The reply of Secretary Adams was marked by the vigor usually found in his state papers. Colonel Callava' s claim to exemption as a commissioner was inadmissible. The treaty provided that the surrender should be made and the evacuation accomplished in six months. The surrender had been made and the six months had passed. Spanish officers who remained after that date were there on sufferance, and were, according to the Spanish laws existing before the cession, liable to removal or imprisonment, at the discretion of the governor, for the mere fact of being there. Colonel Callava's act was an undisguised effort to prostrate the authority of the United States in the province; Governor Jackson had to pursue the course adopted, or else see the sovereign power of his country trampled under foot and exposed to derision by a foreigner remaining there only upon his sufferance. 2 The expulsion of the Spanish officers called forth another 1 Ann. 17 Cong, i Sess., 1959 et seq., 2010. 2 Ibid., 2006, 2045. 86 MILITARY GOVERNMENT [270 note from Mr. Salmon. He maintained that General Jack son's charges were false and that the expulsion disregarded the laws, and also the respect due to a friendly power. 1 The secretary's reply was not less pointed than polite. The charge of falsity he hoped had been admitted inad vertently to the communication he had received. The offi cers ought to have departed in accordance with the pro visions of the treaty; having remained they were subject to removal, even if guilty of no offense whatever. Simple expulsion was the most lenient penalty General Jackson could inflict for the offense o>f which they were guilty. 2 When Judge Fromentin learned that Governor Jackson had used the word apology in connection with the state ment he had signed in regard to the issuance of the writ, a breezy correspondence ensued between them, the gist of which was : " I didn't." " You did." " I did." " You didn't." Both then poured their troubles into the ear of the Secretary of State. From the very first they had disagreed as to the extent of the judge's jurisdiction. Governor Jackson held that Judge Fromentin was limited to cases arising under the two laws of the United States which had been extended to the territory, those relating to revenue and the impor tation of slaves. The judge himself maintained that he was a territorial judge, with the additional jurisdiction vested by the act of March 3, 1805, in such judges where no dis trict court of the United States had been established. He was confirmed in this opinion by an examination of his commission, in which he was styled a " judge of the United States for West Florida, with power to execute and fulfil the duties of that office according to the Constitution and 1 Ann. 17 Cong. I Sess., 2009 et seq. 2 Ibid., 2049. 271] ADMINISTRATIVE WORK IN FLORIDA 87 laws of the United States," and by a sentence in the Secre tary's letter transmitting the commission, in which he said that it might be important to have the judicial department of the temporary government under General Jackson put into operation immediately. 1 But the governor had fore stalled him, and had the judiciary in operation when Judge Fromentin arrived. While he was waiting to hear from Secretary Adams, the troubles recited above occurred. The question of jurisdiction was now overshadowed by that of the judge's right to issue the writs of habeas corpus. Governor Jackson did not trouble himself to enter upon any arguments respecting the judge's right. With his in terpretation of the judge's jurisdiction it was assumed that the right to issue the writ fell to the ground. The irregular way in which the writ had been issued was, he declared, enough to strike him forever from the roll of judges, un less ignorance of the law was no bar to judicial station. 2 A considerable part of the judge's letters was taken up with a denial that he had ever apologized to Governor Jack son. The spectacle of the courts set up by the governor de ciding not trying cases every day, coram non judice, and the governor himself engaged in the same business, all of which the judge considered without a shadow of legality, fairly set his blood to boiling. He waxed eloquent over the " revolting system of inquisition " which prevailed there, and declared the despotism of Morocco 1 and Algiers to be preferable to the existing government in Florida. When Secretary Adams sustained Governor Jackson's interpreta tion of the judge's jurisdiction nothing was said about the right to issue the writ of habeas corpus the excitable Frenchman went into hysterics, and delivered himself of a lengthy " exposition," setting forth the reasons for his view 1 Ann. 17 Cong, i Sess., 2374 et seq. 2 Ibid., 2300, 2340. 88 MILITARY GOVERNMENT [272 of the situation, and still declaring that he would continue to consider himself the only judge in Pensacola. The thought that he was to be denied the right to issue the writ o-f habeas corpus seemed unendurable and drew from him an apostrophe to liberty. The people of Florida had been stripped of their liberty and subjected to Jacksonian- ism, a term which henceforth would be more odious than ever tyrant had been. But he would not tamely submit. If not allowed to introduce the habeas corpus, that " legit imate knight of American liberty," under the protection of the Constitution of the United States, he would introduce it under that of Spain. Fleeter e si nequeo superb os, Ache- ronta movebo.' 1 The judge's claim that he was a territorial judge, in opposition to the views of President Monroe and Secretary Adams, who issued his commission, merits but little atten tion. By his commission he was denominated a " judge of the United States for West Florida," with power to execute the same " according to the Constitution and laws of the United States." This does not look much like the com mission of a territorial judge. Indeed, it would be difficult to say what it does look like. It is immaterial to inquire whether he had the same right to issue the writ of habeas corpus as belonged to the district courts of the United States, conferred upon them by name in the statutes creat ing them, for, in any case, he had no right to issue it against Judge Jackson in a case in which the United States was not concerned. However, in palliation of Judge Fromentin's conduct, it may be said that the last sentence in Secretary Adams's letter transmitting the commission was a little confusing: " Towards the organization of the temporary government 1 Ann. 17 Cong. I Sess., 2400, 2463 et seq. ADMINISTRATIVE WORK IN FLORIDA 89 under his [Jackson's] direction, it may be important that the judiciary department should be put into operation imme diately/' But a " judge of the United States " can have nothing to do with the judiciary of a territory. Governor Jackson's misstatement of fact in regard to the promulgation of the Spanish constitution gave Judge Fro- mentin an opportunity to excoriate him unmercifully. The judge declared that he held in his hand an official copy of the oath administered to Governor Callava, May 26, 1820, when the constitution was promulgated at Pensacola. Many citizens were ready at the trial to testify that this had been done in the midst of rejoicings and illuminations lasting several days, but every application for such testimony had been overruled. General Jackson, then, in Fromentin's opinion, had deliberately stated a falsehood. 1 The line of reasoning by which the general satisfied him self that the Spanish constitution was not in force in Florida was more worthy of a Greek sophist than of an American statesman or general. That a sovereign cannot legislate for territory ceded by a treaty signed, but not ratified and exchanged, is a proposition too absurd to be discussed. 3 It probably would not have occurred to anybody else that that clause in the ratification which provided that the treaty should have the same effect as if it had been ratified within the time originally specified, was meant to annul all laws passed for the regulation of the territory since February 22, 1819. The argument adopted by counsel for the heirs of Vidal that the powers of the existing government had been retained, not the officers' (meaning offices), of which a new distribution had been made would have justified the governor in sitting as a judge but for the fatal wording of his commission, by which he was limited to the powers 1 Ann. 17 Cong. I Sess., 2410. z Ibid., 2027. 9 MILITARY GOVERNMENT [274 and authorities exercised by the governor and captain- general and intendant of Cuba, and by the governors of East and West Florida. The only reasonable interpreta tion of this is that it meant the powers exercised at the time of the transfer. Now the governor's own alcalde, Mr. Brackenridge, had informed him that the only judicial power exercised by the governor since the promulgation of the constitution related to admiralty. A legal justification, then, of the governor's judicial proceedings seems to be wanting. Nor does the necessity for them appear to have been imperative. He had already organized some courts; if they were inadequate, why not others? The constitution appears to have left the direction as to how these should be organized to the Cortes. The law of that body on the sub ject is not known to the writer, but it must have been com petent for the governor to bring about their organization in some way, probably by election on Sunday, after high mass, as in the other elective offices. The conduct of General Jackson in Florida attracted the attention of Congress, and the House of Representatives, after a considerable debate, which trenched upon the merits of the case, called upon the President for information in regard to it. When the correspondence was received it was laid on the table and ordered to be printed. A series of resolutions arraigning the general administration of Florida and declaring the treatment of Colonel Callava to have violated the laws of nations, and that of Judge Fro- mentin a proceeding not warranted by any legal authority, was refused consideration. 1 The country, says Parton, 2 judged the governor leniently, though some papers were severe in their criticism. Parton himself is a little severe, but he lays the blame on old 1 Ann. 17 Cong, i Sess., 610 et seq.; 627, 1195. 2 Jackson, ii, 642. 275] ADMINISTRATIVE WORK IN FLORIDA 91 prejudice (against the Spanish), and chronic diarrhoea, which made the general irritable. " Nevertheless, after giving due weight to these extenuating circumstances, many readers will feel that General Jackson's treatment of Sousa, Callava, and Fromentin was only saved from being atrocious by being ridiculous." IV. EAST FLORIDA AND OTHER AFFAIRS The question of religious toleration appears to have been the first one to present itself in East Florida, but it was settled without so much as an appeal to the officials. Hardly had the substitution of flags been effected when a Methodist minister appeared and began to distribute Protestant tracts. This called forth an indignant protest from a Catholic priest, but when the preacher pointed to the American flag the priest retired in dismay. 1 While Captain Bell was acting-governor he " found it necessary, in the absolute want of all law regulation, police or magistracy, to exercise his authority, upon the occurrence of some peculiar circumstances respecting the carrying off of slaves, to confine for a very short time one o>f the citizens in the fort of Saint Augustine." 2 In doing this the cap tain said that he did not deem it necessary to ascertain with legal precision whether his powers were to be measured by the limits imposed by the old or new constitution of Spain, but that the good of all, the peace of the whole community, was his only rule of conduct. This occurred only a few days after the transfer of sovereignty. The extent to which the civil power was allowed to supersede the military, even before the organization of the territorial government under the act of Congress, is illustrated by the fact that in about 1 Parton, Jackson, ii, 6081. 2 Vignoles, Observations upon the Florida* (1823), 30. 9 2 MILITARY GOVERNMENT [276 five months damages were awarded against Captain Bell by the county court, and that its decision was acquiesced in. However, the " inhabitants and proprietors " of St. Augus tine raised the amount of the fine, and begged of Captain Bell the privilege of paying it as a testimonial of their esteem and their unshaken belief in the uprightness of his conduct. 1 Mention has already been made of the fact that the archives were left in the hands of the Spanish. When Mr. Worthington arrived he deemed the immediate possession of these papers of sufficient importance to demand their de livery, according to the terms of the treaty. They were in the hands of a Mr. Entralgo, the Spanish alcalde, who continued to exercise the functions of that office and re ceive the fees, although he had refused to take the oath of allegiance to the United States. Secretary Worth ington now appointed Mr. Edmund Law to be alcalde, and demanded possession of the archives and office. This Mr. Entralgo refused, saying that they were his private property, as he had bought them at a public sale, and that he would not part with them until satisfactorily indemnified. The secretary replied that he must seek indemnification from the government which had sold him the office. Upon his persistent refusal, the secretary sent three men as a com mission, with authority to call upon the military for help, to seize the documents in question. This brought about the desired result. 2 Captain Bell, the president of the commission, reported that the conduct of the officers in seizing the papers was approved by citizens having property in East Florida. 3 In deed, it was to allay their uneasiness that the prompt action 1 Vignoles, Observations upon the Floridas (1823), 31 et seq. 2 Ann. 17 Cong. I Sess., 2512 et seq. 3 Ibid., 2018 et seq. 277] ADMINISTRATIVE WORK IN FLORIDA 93 was taken, for many feared that frauds would be perpe trated against property rights, if these papers were allowed to be shipped to Havana. Governor Jackson approved these proceedings, declar ing that " nothing could be more absurd than that Spanish officers, as such, should administer the government. The true meaning [of the proclamation] is, that whenever the incumbent will take the oath to support the Constitution of the United States, and abjure that of Spain, and take the oaths of office, he shall continue therein," subject, how ever, to removal at any time. 1 In October of 1821, the city council of St. Augustine so far exceeded its authority in levying taxes upon the inhab itants that Congress took notice of the matter and annulled the ordinance. 2 A few days after taking possession of Pensacola, Gover nor Jackson took an important step in regard to the sixth article of the treaty. It was nothing else than to prescribe the manner and limit the time in which the inhabitants were to elect their citizenship. Such as desired to become Amer ican citizens were ordered to appear and have their names enrolled in a register within twelve months, after which time all who had not so registered were to be considered as foreigners. The keeper of the register was allowed to exact one dollar for every name recorded, and his secretary another dollar for every certificate of citizenship issued.* His reasons for the requirement were: (i) For the con venience of such as desired to become citizens of the United States. (2) To prevent persons from claiming both the privileges of citizens and the exemptions of foreigners, as suited their convenience, of which he had had no little ex- 1 Ann. 17 Cong. I Sess., 2027. 2 Act of May 7, 1822. Ann. 17 Cong. I Sess., 2550. 94 MILITARY GOVERNMENT [278 perience in Louisiana. But these reasons for usurping- powers expressly delegated to Congress in prescribing rules of naturalization do not appear to have satisfied that body. May 7, 1822, the ordinance was annulled, and provision was made to reimburse any who had suffered in conse quence of it. V. DEPARTURE OF GOVERNOR JACKSON. EFFECTS OF His ADMINISTRATION In a few weeks Governor Jackson had made more his tory for Pensacola than had before fallen to its lot in years. His administration was now drawing to a close. In obe dience to the wish of Secretary Adams, he transmitted a report conveying such information as he thought would serve to enlighten Congress in legislating for the territory. As for government, he recommended an organization sim ilar to that adopted for Louisiana. 1 And now Governor Jackson, who had accepted the posi tion with some reluctance, 2 disgusted with the whole busi ness, and with health considerably impaired, prepared to return to his home in Tennessee. October 6, he sent to the Floridian an address to the people of Florida as a kind of parting message. In the organization and execution of the present temporary government he had, he affirmed, kept steadily in view the securing to the inhabitants the protection of their persons, property, and religion, as guaranteed by the treaty, until they should be incorporated into the Union and become entitled to all the privileges and immunities of citi zens of the United States. In performing this important part of his functions he had endeavored to observe the spirit of our political institutions. During his absence Secretary 1 Ann. 17 Cong, i Sess;, 2560. 2 Monroe, Message of December 3, 1821. 279] ADMINISTRATIVE WORK IN FLORIDA 95 Worthington would administer the affairs of East Florida, and Secretary Walton those of West Florida, subject to instructions from the President, through him. 1 The next day the governor left for Nashville, where he arrived November 5. Shortly after this his resignation was sent in and accepted. The secretaries were left in charge, under the instructions given them by Governor Jackson, until Congress should make further provision. 2 Judge Fromentin thought that General Jackson wished to exploit the offices in Florida for the benefit of his friends. Certain letters written by Mrs. Jackson while at Pensacola indicate that he was somewhat vexed at not being able to dispose of the more important offices, the President having made the appointments in Washington. But, in any event, it cannot be charged that he wished or attempted to exploit the Floridians simply for his own benefit, or that of his friends. The ordinances for the government of Pensacola were reported by Mr. Brackenridge, a few days after their pro mulgation, to have been productive of the happiest results. Peace, quiet, and order had taken the place of continual disturbance and disorder. The military force was almost entirely dispensed with and its place supplied by civil offi cers. Attention to the health and comfort of the city had succeeded the total neglect with which these important con siderations were treated for months before the change of sovereignty. 3 Mrs. Jackson was so annoyed with the bois terous way in which the Sunday preceding the transfer of sovereignty was kept that she sent Major Stanton to warn the people that the next would be differently kept. " Yes- 1 Niles, xxi, 171 et seq. 2 Ann. 17 Cong. I Sess., 2039. 3 Ann. 17 Cong. I Sess., 2541. g6 MILITARY GOVERNMENT [ 2 8o terday I had the happiness of witnessing the truth of what I had said. Great order was observed ; the doors kept shut ; the gambling-houses demolished; fiddling and dancing not heard any more on the Lord's day; cursing not to be heard." a This same lady thought the change of sovereignty not so very welcome to the natives. " How did the city sit solitary and mourn!" she exclaims. But she was given to reflection and introspection, and wrote as though her im pressions were received from gazing out of a window. The Floridians had had some experience with General Jackson as a conqueror a few years before. This fact, together with stories which they had heard respecting his character, and his hatred for Spaniards in particular (which he denied), caused them to stand somewhat in awe of him. This was illustrated by an occurrence which hap pened shortly after his arrival in Pensacola. One night a fire broke out, and the Spaniards rushed out to witness it, but did nothing. When General Jackson arrived and took in the situation he uttered one of his fiercest yells to arouse them to action. The Spaniards, however, not comprehend ing the phrase employed, and having received impressions respecting the ferocity of his disposition which rendered him an object of terror, turned and fled, leaving him the sole spectator of the fire until the soldiers arrived. 2 His treatment of Colonel Callava and Judge Fromentin, and the expulsion of the Spanish officers, aroused some fear and excitement, but these soon subsided. The sense of humor must have prevailed over that of fear in the manager of the theatre who headed his play-bills, " Jacksonian Com monwealth." 3 1 Parton, Jackson, ii, 604. 2 Ibid., 613. 8 Ann. 17 Cong. I Sess., 2524, 2403. 2 g I ] ADMINISTRATIVE WORK IN FLORIDA 97 VI. THE TERRITORIAL GOVERNMENT ORGANIZED After the departure of Governor Jackson the secretaries seem to have had fairly smooth sailing. The House of Representatives again grew interested in their work, and asked the President " whether that portion of the United States army now in Florida is commanded by the officers of the said army, or by the secretaries of the territory; and if by the latter, by what authority he is invested with such command." In reply President Monroe said: . . . The secretaries of both the Territories have occasion ally required and received the aid of the military force of the United States, stationed within them, respectively, to carry into effect the acts of their authority. The government of East and West Florida was, under the Spanish dominion, almost exclusively military; the governors of both were military officers, and united in their persons the chief authority, both civil and military. [The principle upon which the act for the temporary gov ernment of our new territory was carried into effect] was to leave the authorities of the country, as they were found exist ing at the time of the cession, to be exercised until the meet ing of Congress, when it was known that the introduction of a system, more congenial to our own institutions, would be one of the earliest and most important subjects of their deliberations. From this, among other obvious considerations, military offi cers were appointed to take possession of both Provinces. But, as the military command of General Jackson was to cease on the 1st of June, General Gaines . . . received from me verbal directions to give such effect to any requisition from the Governor for military aid, to enforce his authority, as the circumstances might require. The President furthed explained that the secretaries had no authority to command the troops, and that whatever aid gg MILITARY GOVERNMENT [282 had been required by them had been secured by written requisitions to the commanding officers. Colonel Brooks had written to know how far these requisitions were to be considered authoritative, 1 but the near approach of the re organization of the government was considered a sufficient reason for giving no specific reply. 2 The act for the organization of the territorial govern ment became a law March 30, 1822. William P. Duvall, then " Judge of the United States for East Florida," was immediately commissioned governor of the new territory, 8 and with the organization of the new government under him in July, the quasi-military government came to an end.* 1 This officer had sided with Callava in his trouble with Governor Jackson. 2 Message of April 5, 1822. Niles, xxii, 132. 4 Niles, xxiii, 23. BOOK II MILITARY GOVERNMENT IN NEW MEXICO AND CALIFORNIA CHAPTER I THE OCCUPATION OF NEW MEXICO I. THE CONQUEST AND REORGANIZATION MAY 13, 1846, the Congress of the United States de clared that war existed with Mexico " by her own act." June 4, Mr. W. L. Marcy, Secretary of War, sent copies of a proclamation to General Taylor, who was already on the border, to be used by him according to his judgment. This proclamation assured the Mexicans that the United States only sought indemnity for past injuries and security for the future; that their purpose was not to make war on the people, but to liberate them from the tyrants who had usurped their government and destroyed their liberties. Nothing would be demanded of them except food for the army, which would be paid for in cash at full value. Such as remained neutral should be protected by the republican army of the Union. 1 The instructions to Brigadier-General Kearny for the conquest of New Mexico and California were in keeping with the determination of the administration to obtain the " indemnity and security " just mentioned by taking per manent possession of those dominions. His orders, dated June 3, ran: Should you conquer and take possession of New Mexico and Upper California, or considerable places in either, you 1 H. Ex. Doc. 29 Cong. 2 Sess., no. 19, pp. 17 et seq. 285] ioi I0 2 MILITARY GOVERNMENT [ 2 86 will establish temporary civil governments therein abolish ing all arbitrary restrictions that may exist, so far as it may be done with safety. In performing this duty it would be wise and prudent to continue in their employment all such of the existing officers as are known to be friendly to the United States, and will take the oath of allegiance to them. The duties at the custom-houses ought, at once, to be reduced to such a rate as may be barely sufficient to maintain the neces sary officers without yielding any revenue to the government. You may assure the people of those provinces that it is the wish and design of the United States to provide for them a free government, with the least possible delay, similar to that which exists in our Territories. They will then be called on to exercise the rights of freemen in electing their own repre sentatives to the territorial legislature. 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. In your whole conduct you will act in such a manner as best to conciliate the inhabitants, and render them friendly to the United States. It is desirable that the usual trade between the citizens of the United States and the Mexican provinces should be con tinued, as far as practicable, under the changed conditions of things between the two countries 1 Similar instructions were sent to the naval commander. Copies of the proclamation sent to General Taylor were given to General Kearny also, but the next day he was re quested not to, use them in New Mexico and California, as parts of the ' proclamation would not " answer our pur pose" in those countries. 2 Such were the preliminaries to General Kearny's march of conquest. August 2, he sent Captain Cooke in advance 1 H. Ex. Doc. 29 Cong. 2 Sess., no. 19, p. 6. 2 Ibid., 18, 81. 287] THE OCCUPATION OF NEW MEXICO to Santa Fe with a flag of truce to proclaim the purpose of his coming. 1 August 15, the general reached Las Vegas, where he explained to the people the object of the invasion, and assured them of protection in life and property so long as they remained quiet and peaceable. The alcalde, on taking the oath of allegiance to the United States, was confirmed in his office. At Tecolete similar proceedings were gone through with while the horses were being wat ered, and again at San Miguel. Exaggerated reports of General Kearny's strength caused the Mexican governor, Armijo, with about four thousand men, to retreat, and the Americans entered Santa Fe August 18, without opposition. The formal transfer of the city government was effected at the Palace, where the lieutenant-governor, Juan Bautista Vigil, met General Kearny for that purpose. The next day the American general assembled the people in the plaza and gave them some assurances through an interpreter. August 22, he issued a proclamation of a somewhat remarkable tenor. It recited that he came with instructions to respect the religious institutions of New Mexico, and to protect the persons and property of all quiet and peaceable inhabi tants against their enemies, the Eutaws, the Navajos, and others. It continued: And he requires of those who have left their homes and taken up arms against the troops of the United States to return forthwith to them, or else they will be considered as enemies and traitors, subjecting their persons to punishment, and their property to seizure and confiscation for the benefit of the public treasury. It is the wish and intention of the United States to pro vide for New Mexico a free government, with the least pos sible delay, similar to that in the United States; and the 1 Prince, Hist. N. Mex., 290 et seq. MILITARY GOVERNMENT [ 2 g8 people of New Mexico will then be called on to exercise the rights of freemen in electing their own representatives to the Territorial legislature. But until this can be done, the laws hitherto in existence will be continued until changed or mod ified by competent authority ; and those persons holding office will continue in the same for the present, provided they will consider themselves good citizens and are willing to take the oath of allegiance to the United States. The United States hereby absolves all persons residing within the boundaries of New Mexico from any further alle giance to the republic of Mexico, and hereby claims them as citizens of the United States. Those who remain quiet and peaceable will be considered good citizens and receive pro tection ; those who are found in arms, or instigating others against the United States, will be considered as traitors, and treated accordingly. Don Manuel Armijo, the late governor of this department, has fled from it; ... for the present the undersigned will be considered as governor of the Territory. 1 In a few days the new governor began to exercise his functions by repealing the law which required the use of stamped paper, by fixing the cost of licenses for stores, tav erns, balls, etc., and by laying duties on wagons, the revenue from which licenses and duties was to accrue to the city. The treasurer and collector having become incapacitated, the former through sickness, the latter through deafness, were removed and their places supplied by new appointments. He then, " being duly authorized by the President of the United States," proceeded to organize a civil government by the appointment of a full list of officers, and, September 22, 1846, proclaimed the same, together with an "Organic Law of the Territory," from the old Adobe Palace. 1 H. Ex. Doc. 29 C. 2 S., no. 19, pp. 20 et seq. 289] THE OCCUPATION OF NEW MEXICO 105 The document just mentioned began : " The government of the United States of America ordains and establishes the following organic law for the Territory of New Mexico, which has become a Territory of the said government." Then followed a transcript of the Organic Law provided by Congress for the Missouri Territory. After this came forty pages of laws for the government of the territory. These were compiled b'y Colonel A. W. Doniphan and a private, Mr. W. P. Hall, who received notice of his election to Congress from Missouri while engaged on the work. The compilation was made from the laws of Mexico, modi fied to confo'irn to the Constitution of the United States, and from the laws of Missouri, Texas, and Coahuila, the statutes of Missouri, and the rest from the Livingston Code. These, among other things, defined crimes and fixed their punishment, provided for the administration of justice, with trial by jury, prescribed the fees, and introduced the habeas corpus. Nearly three pages were devoted to revenue regulations. An election was to be held on the first Monday in August, 1847, f r a delegate to Congress, and for members of the general assembly. 1 Meanwhile the executive and judicial officers were ap pointed and entered upon the discharge of their duties. The governor, secretary of state, the judges of the supreme court (three), the United States attorney and marshal, eight prefects, the speaker of the assembly, and the mem bers of the legislature (twenty-one) were to be paid by the United States; the auditor, treasurer, attorney-general, and two district attorneys were to receive one-half of their sala ries from the United States and the other half from the territory. 1 H. Ex. Doc. 29 C. 2 S., no. 19, p. 26 ct scq. I0 6 MILITARY GOVERNMENT [290 II. THE CONQUEST IN CONGRESS. ACTS OF THE CON QUEROR REVIEWED. When the news of General Kearny's high-handed pro ceedings was received in Washington, General Scott wrote him (November 8) a letter of commendation, with further instructions regarding operations in California. This letter contained one paragraph which might have been construed as disapprobation : " As a guide to the civil governor of Upper California, in our hands, see the letter of June the 3d (last) addressed to you by the Secretary of War. You will not, however, formally declare the province to be annexed. Permanent incorporation of the territory must depend on the government of the United States." * In his annual message (December 8), President Polk said that the right of a belligerent, recognized in the laws of nations, to govern conquered territory during his military occupation had been exercised by our military and naval commanders in " the establishment of temporary govern ments in some of the conquered provinces of Mexico, assim ilating them, as far as practicable, to the free institutions of our own country." As soon as the motion to print the message had been dis posed of, Mr. Garrett Davis, of Kentucky, rose and ob served that there was one point in the message which he did not consider sufficiently explicit. He then asked leave to introduce a resolution calling upon the President for copies of all orders and instructions given to the mili tary and naval officers in relation to the establishment or organization of civil governments in any portion of the territory of Mexico which had been, or might be, taken possession of by our forces; also for information as to what forms of government such officers had established, 1 H. Ex. Doc., 29 C. 2 S., no. 19, p. 14 et seq. 291] THE OCCUPATION OF NEW MEXICO and as to whether the President had approved and recog nized said governments. 1 Nobody appears to have had any special objection to the motion, but a spirited debate at once arose on it and lasted nearly two days. The speeches, some hysterical, some angry, some a bit humorous and sarcastic, included a great variety of subjects, ranging from the boundary of Texas and the right of annexation by treaty, by joint resolution, and by proclamation, to the powers of the President under the Constitution and the laws of nations. The last ques tion was so mixed up- with that of annexation and natural ization by the act of a commanding general that it is a little hard to get at the real merits of the debate. Mr. Davis started off with pyrotechnics. What! Was our American President an emperor, sending forth his Agrippa and Marcellus as his proconsuls to conquer and govern by force of arms? Was he, an officer deriving his breath and being from the Constitution, to authorize his satraps and tetrarchs to set up governments and make laws at their pleasure? The country should be informed whether these things had been done with his sanction. Some had spoken of the government as military. Would any one refer him to a book of established authority which declared that the President might establish a temporary government in a conquered province while holding it in military occu pation pending a treaty on the subject of boundary? Mr. Douglass, of Illinois, saw no reason why the gentle man from Kentucky should not be enlightened on the sub ject concerning which he grovelled in such profound dark ness. General Kearny, under the laws of nations, had a clear right to do what he had done, whether so ordered by the President or not. The country was ours by conquest; 1 Globe, 29 Cong. 2 Sess., 12. I0 8 MILITARY GOVERNMENT [292 his proclamation had merely announced that fact. If we should conclude a treaty with Mexico without boundaries, all these territories would remain a part of the territory of the United States. The establishment of a civil govern ment was necessary for the protection of the inhabitants. Mr. Rhett, of South Carolina, maintained that the Presi dent's power to govern conquered territory was plenary, subject only to moral and international law. Sic volo sic jubeo was his rule. This did not apply to territory within the limits of the Union. But California 1 and New Mexico were not any part of the Union the Constitution did not extend over them. Mr. Davis here interrupted to say that both had been proclaimed to be such, whereupon Mr. Rhett retorted that those proclamations only proved that the gentlemen issuing them were " gumps." It was not to be expected that Captain Stockton * should know anything about the Constitution. Indeed, there were some who main tained that Congress could not annex territory, yet here they quoted General Kearny and declared that he had done so. Mr. Schenck, of Ohio, quoted from the President's mes sage to show that he regarded Santa Fe as within the bounds of Texas. Yet his general had gone there and set up a government, an imperiwn in imperio. Could Governor Stockton's proclamation as given in the papers be authen tic? It might have been treated as a hoax at first, but it was a serious thing. Yet gentlemen contended that Congress must vote supplies and send out generals to regulate con quered peoples subject only to moral and international law. Such a doctrine would not stand. Suppose Captain Stock ton had declared himself emperor of California, would Con gress have nothing to do with it? 1 Stockton's proclamation annexing California had also been re ceived. See infra, p. 160 et seq. 293] THE OCCUPATION OF NEW MEXICO Mr. Holmes, of New York, held that a conqueror could only do what self-defense required. If the people sub mitted, he was bound to treat them with clemency, not with military rigor. He had only the rights of the dispossessed sovereign, no more; he was bound to administer the laws as he found them. To say that the inhabitants could be punished for treason was untenable. Mr. Seddon, o oo > car ~ ried on with 230 wagons, yielding from $50,000 to $80,000 in annual revenue. But the central Mexican government received very little benefit from this, as nearly half of it was embezzled by the customs officers. Because of troubles arising from this trade, Santa Anna issued a decree, in 1843, closing the northern ports to foreign commerce. For a few years Governor Armijo established a tariff rate of his own $500 per wagon, regardless of size or value. The traders soon learned to take advantage of this by carrying costly goods in large wagons, whereupon the governor went back to ad valorem rates, but without regard to the Mexi can imposts, which averaged about one hundred per cent, upon the cost in the United States. The judiciary was a Spanish inheritance, consequently much like that we have already met with in Louisiana and Florida. Further notice of it at this point is unnecessary. In 1853, Mr. Phelps, a member of Congress, speaking of the officials of the government set up by General Kearny in place of the one he had overthrown, said that they were Americans residing in New Mexico. While this was true in part, it is likely to create a wrong impression. They were not mere adventurers. Some of them had resided there many years, ten or fifteen, and had become bound to the country by marital and other ties. This was true of the governor, Charles Bent, a native of Virginia, who had 1 Sen. Doc., 30 C. I S., no. 26; Report of Gov. N. Mex. to Sec. Int., 1900, p. 49. ! ! 6 MILITARY GOVERNMENT [300 been in New Mexico since 1832. The secretary, Donan- ciana Vigil, was a native of New Mexico, had held a num ber of public offices, both military and civil, and enjoyed the confidence and respect of the whole people. Francis P. Blair, Jr., district attorney, was a member of the Mis souri Blair family, and was afterwards prominent in public life at Washington. Two members of the supreme court, Joab Houghton and Charles Beaubien, were Americans, but the latter had been a resident of Taos, New Mexico, since 1827, had married a native, and was widely known and respected. The other member, Antonio Jose Otero, was a member of an old Mexican family, a man of high char acter and reputation, and of influential connections. The Oteros are prominent in public life to this day. Nearly all the other officers, judging in some instances only by their names, were natives, some of them members of prominent families. 1 Twice in his reports General Kearny spoke of the feel ing with which the change had been received. August 24, two days after his famous proclamation, he says : " The people are now tranquil, and can easily be kept so. The intelligent portion know the advantages they are to derive from the change of government, and express their satis faction at it." Again, in reporting (September 16) a jour ney of one hundred miles down the Del Norte to Tome: " The inhabitants of the country were found to be highly satisfied and contented with the change of government, and apparently vied with each other to see who could show us the greatest hospitality and kindness. There can no longer be apprehended any organized resistance in this Territory to our troops; and the commander of them, whoever he may be, will have nothing to attend to but to secure the 1 N. Mex. Blue Book ; Prince, Hist. N. Mex., 307 et seq. 3 0i] THE OCCUPATION OF NEW MEXICO 1 17 inhabitants from further depredations from the Navajoe and Eutaw Indians; and for this object paragraph three of Orders No. 23 was this day issued." * Soon after this the general set out for fresh fields of conquest. How far his sanguine hope for the peace and. prosperity of the country he was leaving were justified the sequel will show. IV. THE REVOLT AND RECONQUEST About three hundred troops were to follow General Kearny to California. Colonel Doniphan was directed to remain in New Mexico with his regiment until relieved by Colonel Price, then daily expected with a regiment from the United States. 2 September 25 the movement for Cali fornia was begun. Hardly had the general passed beyond the scenes of his conquest when signs of unrest began to manifest them selves among the people he had left so happy and con tented. While the people generally, says the historian Prince, 3 had apparently submitted to the new order with good grace, yet there was naturally much discontent be neath the quiet exterior, especially among those who had been leaders and who thought that the attainment of their ambition or the pursuit of their pleasure might be interfered with by the new regime. Chafing at the thought that others had superseded them, some of the former leaders formed a wide-spread plot to kill or drive out of the terri tory all Americans and all Mexicans who had taken office under them. The date of the uprising was first set for December 12, but was postponed a week for the better per- 1 H. Ex. Doc., 29 C, i S., no. 19, pp. 19, 24. 2 Sen. Ex. Doc., 30 C. i S., no. 7, P- 45- 3 Hist. N. Mex., 313 et seq. MILITARY GOVERNMENT [ 3O2 fecting of plans, and then again till December 24, when it was thought the soldiers would be engaged in festivities at the various saloons and could, while thus dispersed and unarmed, be easily killed or captured. This delay proved fatal, for a Mexican friendly to the new order of things informed Governor Bent of the plot a week before the day for the uprising. Colonel Price also had heard of the movement, and both the civil and military authorities now took active measures to seize the conspirators. Some of the supposed leaders were arrested and left with the mili tary authorities to be summarily dealt with, but two of them escaped in the direction of Chihuahua. 1 In reporting this occurrence to Washington, Governor Bent said that the conspiracy was confined to the four northern counties, and that the leaders were men of little standing. 1 The latter statement is contradicted by Prince, who gives the names and standing of several. Among them he mentions Diego Archuleta, who had sat in the Mexican Congress for New Mexico; Tomas Ortiz, who had been second in command to Armijo both men of considerable influence and two priests, Jose Manuel Gallegos and Juan Felipe Ortiz. The priests in particular were active. Archu leta and Tomas Ortiz, who were to have been commanding' general and governor respectively, escaped. No convictions appear to have been made. In his report Governor Bent took occasion to say that he considered this attempted revolt as conclusive evidence of the necessity of keeping an efficient military force about one thousand men in the territory for several years. It was now thought that the insurrection was suppressed, but such was not the case. January 14, 1847, Governor 1 Sen. Ex. Doc., 30 C. I S., no. i, p. 520; H. Ex. Doc., 30 C J S., no. 70, p. 17. 303] THE OCCUPATION OF NEW MEXICO ng Bent, supposing all danger past, left Santa Fe for his home in Taos. There, says Secretary Vigil in a report sent to the Secretary of State, Mr. Buchanan, he was assailed on the morning of January 19, in his private dwelling, by a company of Indians of the Taos Pueblo, together with a number of Mexican inhabitants of the town, and slain with all the horrible details of savage barbarity. On that and the following day twelve other Americans and two Mexicans suffered a similar fate. Among them were the governor's brother-in-law and a son of Judge Beaubien, the circuit attorney, the sheriff, and prefect (Cornelio Vigil) of the county. Whether this was the preconcerted opening of a general uprising is not known, but the insurrection soon became general. The lower classes of Mexicans in the valley of Taos and of the small towns in the vicinity rose en masse and joined the pueblos in pillage and murder. At Arroyo Hondo, twelve miles above Taos, seven Mexicans were killed; at Mora, Mr. L. Waldo, who had translated the Mexican laws for General Kearny, known and respected for some years as a merchant in the territory, suffered death, together with several other Americans. A revolu tionary army was now organized and circulars were sent to different parts of the territory to excite the people to arms. When Colonel Price heard of Governor Bent's murder he at once took active measures. The resident Americans and some natives came to his aid. Ceran St. Vrain, a native of Missouri, raised a volunteer company of fifty- seven men in Santa Fe, composed of all the American resi dents and a few natives, which brought the colonel's imme diate command up to three hundred and ten. His entire force in and about Santa Fe amounted to only four hun dred and twenty-seven men, rank and file. But with these I20 MILITARY GOVERNMENT [304 forces Taos was soon captured, after two battles in which one hundred and eighty-six of the insurrectionists were slain; seven Americans were killed and forty wounded. 1 When the alcalde of Las Vegas received the news of the uprising and the call to arms he consulted with some of the leading men, who advised him to keep faith with the United States. He then assembled the people, reminded them of his oath, which they had witnessed, and said that he considered them bound through himself. " As for me, I assure you that I am determined to live and die by that oath." This, with the action of Captain Hendley, who occupied the town next day with two hundred and fifty men, prevented an uprising there. January 24 the captain attacked Mora, now occupied by one hundred and fifty armed Mexicans, but fell in the assault and his command withdrew. February i, Captain Morin captured the town and demolished a considerable part of it. By February 16 the central and southern districts had been pacified, and the insurrectionists were confined to the north, where hardly a man of wealth or consequence, says Secretary Vigil, was concerned. 1 The cost of the insurrection was estimated by Vigil at something over $100,000 in loss of property to Americans and natives. The loss of life amounted to more than two hundred, mainly on the side of the insurgents. Two leaders of the revolt were slain in battle. One, Pablo Montoya, was court-martialed and hanged. An other, Tamos, a Pueblo Indian, was shot by a private while in the guard-room at Taos. February 7, fourteen others were tried for complicity in the murder of Governor Bent, found guilty and executed. At the March term of the United States district court for New Mexico four were 1 Prince, ibid.; H. Ex. Doc., 30 C. I S., no. 70, pp. 18 et seq.; ibid., no. 8. 305] TH E OCCUPATION OF NEW MEXICO I2l indicted for treason. One, Antonio Trujillo, was found guilty and sentenced to death, one was discharged under a nolle prosequi, and the other two obtained continuance to the adjourned term in the following May. By April i, twenty-five of those confined at Santa Fe had been dis charged, the jury not finding sufficient evidence to indict for treason. Fifty were still confined at Taos awaiting trial. Immediately after Trujillo was sentenced, a petition, signed by the court, by the " United States district attor ney," the counsel for defense, most of the jury, and many respectable citizens, was laid before Secretary Vigil, now governor, by the Organic Law of the territory, praying for a stay of the execution until a petition could be laid before the President for the pardon of the prisoner on account of his age and infirmity. The governor granted the request, though satisfied that the accused had had a fair trial, and had been legally convicted and justly sen tenced, and reported (March 23) the matter to Secretary Buchanan. Mr. Blair, the "United States district attorney," also made a report (April i) to the Attorney-General. He, doubtless, was aware how General Kearny had declared the inhabitants of New Mexico to be citizens of the United States, and liable to penalty for infraction of their laws in the same way as citizens of any other territory; how he had established a superior court, with jurisdiction as a United States district court. As " district attorney," Mr. Blair had, he said, felt it to be his duty to prosecute all acts of treason committed by the inhabitants of the territory. He added : In nearly all the cases tried, the counsel for the defence have entered pleas to the jurisdiction of the court, which the court 122 MILITARY GOVERNMENT over-ruled, and in the case of Trujillo, who was convicted, the defence plead the jurisdiction of the court before the jury, declaring it to be unconstitutional to try any native inhabitant of New Mexico for the crime of treason against the govern ment of the United States, until by actual treaty with Mexico he became a citizen. The court ruled out any consideration of this point by the jury, leaving it only the evidence and facts upon which to make its verdict. Considering that it was constituted, the court was bound by its oath to view all the inhabitants of New Mexico as citizens of the United States, and to execute the laws in regard to them as such, leaving the responsibility of the question of its constitutionality to fall back upon the power which constituted it. I am anxious to receive your counsel and advice at the earliest possible moment in regard to all the matters above referred to. 1 January n, 1847, Secretary Marcy addressed a letter to General Kearny, commanding the United States army in California, Mexico, and sent him at the same time a copy of the President's message, with the documents accom panying it, in answer to the resolution of the House dis cussed in a preceding chapter. In this letter he informed the general that, in conferring political rights upon the people of the territory, he had gone beyond the lines desig nated by the President, as such rights could be conferred only by Congress. " So far as the code of laws estab lished in New Mexico, by your authority, attempts to confer such rights, it is not approved by the President, and he directs me to instruct you not to carry such parts into effect." * When Governor Vigil's letter was received, Secretary 1 H. Ex. Doc., 30 C. i S., no. 70, pp. 24 et seq. 2 H. Ex. Doc., 31 C. i S., no. 17, p. 244. 307] THE OCCUPATION OF NEW MEXICO Buchanan turned it over to the War Department. June n, 1847, Secretary Marcy wrote to Colonel Price, command ing at Santa Fe, to the effect that the government there was purely military, not deriving its authority from the laws of Congress or the Constitution of the United States; that the President could not exercise any authority over it other than as commander-in-chief, and that he would not interfere beyond the instructions of June 3, 1846. The appointment of a governor (which Vigil had urged) was left to the commanding officer. The petition for the par don of Trujillo had not been received, but that matter also was left to the colonel, with an expression of the hope that the prisoner would be spared. 1 Upon the receipt of Mr. Blair's letter the Attorney- General turned it over to Secretary Marcy, who again (June 26) wrote to Colonel Price: I perceive that down to the 1st of April last . . . some mis taken views still prevailed in New Mexico concerning the civil government there established; and I am, therefore, apprehen sive that you are not in possession of my letter of the nth of January last, relative to that subject, ... a copy of which was sent to the commanding officer at Santa Fe The territory conquered by our arms does not become, by the mere act of conquest, a permanent part of the United States ; and the inhabitants of such territory are not, to the full extent of the term, citizens of the United States. It is beyond dispute that, on the establishment of a temporary civil government in a conquered country, the inhabitants owe obedience to it, and are bound by the laws which may be adopted. . . . Those in New Mexico, who, in the late insurrection, were guilty of murder, or instigated others to that crime, were liable to be punished for these acts, either by the civil or military author- X H. Ex. Doc., 30 C i S., no. 70, p. 32. 124 MILITARY GOVERNMENT ity ; but it is not the proper use of legal terms to say that their offence was treason committed against the United States; for to the government of the United States, as the government un der our constitution, it would not be correct to say that they owed allegiance. 1 Again it was the decided wish of the President that Tru- jillo should be spared. Ladd tells us that Trujillo was hanged as a traitor, 2 but, in view of what has been quoted above, the writer is in clined to doubt this unsupported statement. It can hardly be necessary to say anything further on the question of allegiance and the right to prosecute for treason. We can only regret that President Polk's promise to correct General Kearny's mistakes was not sooner ful filled. But a word may be added upon the subject of in surrection and the right to punish for this. According to the writers on international law, the in habitants of a country which has submitted or formally surrendered are virtually in the condition of prisoners of war on parole. To the conqueror they owe submission and obedience so long as he does not treat them with unmerited harshness confiscate or destroy their property, take away the liberty of some, the lives of others. Says Halleck: The right of insurrection in war, therefore, rests upon the same principle as the right of revolution against an established government. . . . The insurgents taken in arms, as well as their instigators, may therefore be put to death, and their property confiscated or destroyed Such severe rights should always be used with moderation, and their exercise tempered with mercy. Hence, in modern wars, only the lead ers and instigators of a military insurrection are usually pun- 1 H. Ex. Doc, 30 C i S., no. 70, p. 33 * Story of N. Me*., 293. 309] - THE OCCUPATION OF NEW MEXICO ished with death, while the common people who are engaged in it are more leniently dealt with. Sometimes, heavy contribu tions are levied by way of punishment upon the place or district of country where the insurrection occurs. 1 The Supreme Court of the United States had already recognized the principle of temporary allegiance in the case of Castine, Maine, occupied by the British in 1814. " By the surrender the inhabitants passed under a tem porary allegiance to the British government, and were bound by such laws, and such only as it chose to recog nize and impose." 2 The question now is whether there had been provocation sufficient to justify the insurrection. Unfortunately the Mexican sources upon the subject are scant, and their glar ing inaccuracies cast doubt upon their statement of matters concerning which little is known. One writer speaks of " horrible crimes " and the exaction of a contribution of 80,000 pesos. The same writer says that the outbreak orig inated in the killing by a New Mexican of his wife, whom a Yankee had seduced. A mob formed to support the native, whom the soldiers were trying to secure. The Sonorense (March 5, 1847) speaks of frequent " conflicts caused by the outrages of the soldiers, who, except 300 veterans (the dragoons), were chiefly Irish and Italians"! 8 Shortly after the revolt accounts of the lawlessness on the part of the soldiers began to appear in the American press. " The soldiery have degenerated into a military mob, are the most open violators of law and order, and daily heap insult and injury upon the people. . . . One-half the captains do not know the number of their men nor 1 Halleck, Int. Law, ii, 450 et seq. 2 U. S. vs. Rice, 4 Wheaton, 254. 3 Quoted in H. H. Bancroft, Ariz, and N. Mex. (Works, xvii), 434. 126 MILITARY GOVERNMENT [310 where they are to be found; and they themselves are to be seen nightly in fandangos and even less reputable places of dissipation. . . . About one-fifth of the whole command have died from the effects of dissipation. . . . The want of ability and military knowledge in the commander, added to his inability to control his officers and soldiers, can only produce the strongest feelings of disgust and hatred, and desire to rebel among the native inhabitants. ... It is certain that if such a state of things were to be found in any of the territories of the U. S., neither civil nor mili tary govt would exist for a week." * The letter just quoted was written after the revolt, but if such a condition of affairs existed then, it is reasonably fair to assume that something of the kind was experienced before. The complaints of lax discipline became so loud and persistent that Secretary Marcy referred to< them, in his letter of June 26, stating that while he did not give credence to all newspaper reports, they could not pass en tirely unnoticed. A rigid enforcement of discipline was recommended. 3 Later in the year the reports were con firmed, at least by innuendo, in an official report made by Mr. Thomas Fitzpatrick, Indian agent for Upper Platte and Arkansas, who had visited Santa Fe. 3 Governor Vigil, however, gives quite a different view of the causes of the revolt. He finds that one of the leaders, Pablo Montoya, was the head of a similar insurrection in J 837, when he brought his followers to Santa Fe and then basely deserted them for pay. In 1843, tne Taos Indians rose and sacked the tithe granaries, but the government 1 Quoted in H. H. Bancroft, Ariz, and N. Mex. (Works, xvii), 439, quoting letter in Niles, Ixxii, 252. 2 Supra, 123. H. Ex. Doc., 30 C. I S., no. 8, Append., 240 et seq. 4 3 i i ] THE OCCUPATION OF NEW MEXICO took no notice of the affair. Other pillagings of the same year also went unpunished. The apathetic and criminal conduct of the previous government in not dealing out jus tice to these offenders Vigil declared to have been the chief cause of this last insurrection. * The manner in which the attack was begun does not indicate any special resentment against the soldiers. It rather shows a predetermined plan to wipe out those, both native and American, who had accepted office under the new regime. Resentment on the part of those who had been displaced was only natural. Besides, " carpet-bag gers " and " scalawags," to borrow terms from later polit ical history, are not always held in high esteem, even when they have done nothing particularly criminal. Just what " horrible crimes " were referred to by the Mexican writer quoted above is not clear, but he probably had the excesses of the soldiers in mind. His statement about the contribution of 80,000 pesos is unsustained. In deed, there is much evidence that no such contribution was levied. One historian tells us that no requisitions could be made upon the inhabitants to supply the wants of the troops, as they had been declared citizens, and that this worked some hardships, as supplies could only be had for cash, with which the army had not been bountifully supplied. 1 No official report was ever made of the requisition re ferred to. This was the last revolt. Later in the year the Amer ican forces were strengthened. This may have been a very strong reason for keeping quiet, but the natives appear to have soon realized that they really had more of freedom under the American flag, and so became reconciled to the change. 2 i H. Ex. Doc., 30 C. i S., no. 70, pp. 21, 23. * Prince, 299, 313. CHAPTER II THE MILITARY ADMINISTRATION OF NEW MEXICO I. THE STRUGGLE FOR A FREE GOVERNMENT ACCORDING to the Organic Law, as we have already seen, Secretary Vigil became governor upon the death of Governor Bent, but he sought the appointment of another from Washington. This, however, was left to the com manding officer. December 17, 1847, Vigil was appointed governor by Colonel Price, and served in that capacity until October n, 1848, when Colonel J. M. Washington, then in command at Santa Fe, assumed the duties of " civil and military governor." October 23, 1849, ne was relieved by Colonel John Munroe, who served in that capacity until the end of the military regime. 1 1 N. Mex. Blue Book. John Marshall Washington (born in Virginia, 1797; died at sea, 1853) was graduated at West Point in 1814 and appears to have served in the army continuously. At the outbreak of the Mexican War he held the rank of captain, but was subsequently brevetted lieutenant-colonel for meritorious conduct at Buena Vista. From June 24 to December 14, 1847, he acted as governor of Saltillo, Mexico. John Munroe (born in Scotland, 1796; died in New Jersey, 1861) was a classmate of Colonel Washington at West Point; was brevetted lieutenant-colonel for gallantry at Monterey, and colonel for the same reason at Buena Vista. Sterling Price (born in Virginia, 1809; died in St. Louis, 1867) was a member of Congress from Missouri at the outbreak of the war, but resigned and raised the second regiment of Missouri cavalry. He was afterwards governor of Missouri and a general in the Con federate army. 128 [312 313] MILITARY ADMINISTRATION OF NEW MEXICO I2 g Governor Vigil's administration does not seem to have been very eventful nor lucrative to the office-holders. The governor called Secretary Marcy's attention to the fact that the officials were to be paid from the United States treas ury, but that no officer appeared to have been empowered to make such disbursements. A year's term had expired September 22. The officers had performed their duties faithfully, duties sometimes onerous and perplexing, and now deserved their pay. In some cases they were dependent upon it for a living. 1 The Secretary does not appear to have made any reply. In December, 1847, tne territorial legislature, which had been elected according to the Kearny Code, met at Santa Fe and continued in session twenty days. The gov ernor's message gave prominence to the need of public edu cation, but of course the legislature could not then accom plish much for that cause. The laws passed were printed in pamphlet form, to which was added Order No. 10, im posing a duty of six per cent, on imports. February 5, 1848, Colonel Price, by special Order No. 5, approved the acts and ordered them to be observed. However, another order (No. 10) abolished the offices named in the statutes as secretary of the territory, United States district attor ney, and United States marshal. 2 One act passed was to authorize the election of delegates to a convention to con sider the question of annexation to the United States. 3 Whatever may have been the efficiency of this civil- military government for good or its power for oppression, the people submitted to it as one of the fortunes of war, But after the ratification of the treaty of peace with Mexico, 1 H. Ex. Doc., 30 C. i S., no. 70, p. 35. 2 N. Mex. Blue Book ; Report of Gov. N. Mex., 1900, p. 14. * Niles, Ixxiii, 305. MILITARY GOVERNMENT [314 May 30, 1848, they began to think of the free territorial gov ernment which had been promised them. A distinguished United States senator, Mr. Benton, of Missouri, took it upon himself to give some advice to the people of California and New Mexico on this subject. In a letter of August 28, 1848, he advised them to meet in convention, provide for a cheap and simple government, and take care of them selves until Congress could provide for them. 1 The War Department does not appear to have issued any orders up to this time defining the status of affairs in New Mexico. In a letter to Colonel, then Brigadier-General, Price, dated May 22, 1848, Secretary Marcy had made some general suggestions, among them that he should see " that whole some regulations in relation to the civil government should be established," in case the province was ceded to the United States. 2 Seemingly one of the first grievances to be dealt with was connected with the matter of taxation. After the treaty of peace, General Price ordered that the six per cent, imposts be still collected on goods from the United States. This did not seem to the inhabitants to be quite in accord with the privileges of citizens of the United States, and they held meetings to protest against it as un constitutional, New Mexico being considered a part of the United States. General Price replied that the tax had been imposed to support the civil government, that it had been approved by the President, with whom the matter now rested, and that, in view of these facts, he was not disposed to modify or abolish it, however much his feelings might incline him to do so. 8 November 8, Colonel Washington, 1 Niles, Ixxiv, 244 et seq. 2 H. Ex. Doc., 31 C. i S., no. 17, p. 257. * Niles, Ixxiv, 259 et seq. * * 3 ! 5 ] MILITARY ADMINISTRATION OF NEW MEXICO now in command, wrote to Secretary Marcy in favor of continuing the tax, saying that the government would be without funds if it was not collected. 1 But the Secretary had already received and acted upon the protest. On October 12 he ordered the collection of imposts on goods from the United States to be stopped and all funds so collected since May 30 to be refunded. 2 April 3, 1849, Colonel Wash ington stopped the collection, " in consequence of the views of the President in his last annual message to Congress relating to the collection of customs in New Mexico." 3 As the military governor did not provide " wholesome regulations " satisfactory to the people, Governor Vigil issued a call for a convention, which met at Santa Fe October 10, 1848. This body " respectfully petitioned Con gress for the speedy organization, by law, of a territorial government, one purely civil in character." They repre sented that the Kearny Code and statute laws, with a few alterations, would be acceptable. They also asked to be protected against the introduction of slavery. Copies were forwarded to Senators Benton and Clayton (of Delaware), to be presented by .them to Congress. When the petition was read in the Senate it produced something of a tempest in a tea-pot. Mr. Calhoun objected to it as " disrespectful " to the people of the slave States, and a heated debate ensued. Some feared that " We, the people of New Mexico," simply meant fourteen free-soilers who were endeavoring to impose upon Congress. No one could give any information as to how truly representative the convention had been, but the petition was finally re- 1 Sen. Ex. Doc., 31 C. i S., no. i, p. 104. 2 H. Ex. Doc., 31 C. i S., no. 17, p. 262. MS. in War Department. J32 MILITARY GOVERNMENT ferred to the Committee on Territories, where it seems to have rested in peace. 1 How far the convention represented the people of New Mexico it is impossible to say, but it certainly was not a gathering of Americans. Several members of the existing government signed the petition; most of the other names betray a Mexican origin. 1 Just three days before this petition was read in Congress (December 13), Secretary Marcy took tardy steps to make known to the people of New Mexico the views of the ad ministration in regard to their civil affairs. He reaffirmed the position which Mr. Buchanan, as Secretary of State, in a previous letter, had taken : 2 that, at the conclusion of peace, the military government which had been established under the laws of war ceased to derive any authority form that source of power, but was continued as a de facto gov ernment, with the presumed consent of the governed. After assuring the people that this government could exercise no powers inconsistent with the Constitution of the United States, the Secretary continued : Congress will be in session within sixty days, and their at tention will be at once directed by the President to the sub ject of providing an adequate civil government for this Terri tory ... In the meantime it will be the duty of the commander of our military force to recognize the present government de facto, to respect the officers of it, and to lend the aid of the military power to protect the rights of persons and property of the inhabitants of the Territory. Though he had not the right 1 N. Mex. Blue Book, 99 et seq.; Globe, 30 C. 2 S., 33 et seq. * Letter from Mr. Buchanan, Secretary of State, dated October 7, 1848, to Mr. Voorhies on the eve of his departure for California as agent of the Postoffice Department. See infra, p. 214, for a lengthy quotation from this letter. MILITARY ADMINISTRATION OF NEW MEXICO to change the existing civil government, it will be his duty to regard it as an existing government until it is changed by competent authority. He is directed to quiet any uneasiness which may arise in the minds of the people on account of their anomalous state by assurances that the executive of the United States will do what appertains to him to remedy any in convenience which they may now experience, to secure their rights, and to extend to them in the amplest manner all the benefits of our political institutions. 1 A sentence in President Folk's message of December 5, 1848, seems to mean that Secretary Buchanan's letter was sent to California and New Mexico at the same time. It might have relieved some uneasiness had it been sent still earlier, for in his message of July 22 the President had said that " these temporary governments necessarily cease to exist " upon the exchange of the ratifications of the treaty of peace. This statement, made as it was with out any qualifications, certainly sounded as though the people were to be left to shift for themselves. Senator Benton's letter of advice was but an amplification of this idea. But in the message of December 5, the qualification was added that the temporary military governments had ceased to derive any authority from the rights of war. The very limited power possessed by the Executive had, however, been exercised to preserve the inhabitants from a state of anarchy. These messages were appealed to later by cer tain leaders in justification of measures hereafter to be de scribed. Briefly stated, the policy of the administration was simply this: While, in its opinion, it had no authority to continue the military governments, they would be main tained upon the "presumed consent of the governed." *H. Ex. Doc., 31 C. i S., no. 17, PP- 271, 258. MILITARY GOVERNMENT What would be done in case that presumption was discov ered to be ill-founded was not indicated. But with a change of administration, through the in auguration of President Taylor, March 5, 1849, there seems to have come a slight change of policy toward New- Mexico. In the spring, James S. Calhoun went to New Mexico as Indian agent; but upon his arrival, says a his torian of New Mexico, 1 he declared that he had secret in structions from the government at Washington to induce the people to form a state government. Confirmatory evi dence of this statement is found in the fact that the ques tion was discussed in public meetings shortly after his arrival at Santa Fe. 2 At one of these meetings (August 21, 1849) Colonel Washington was requested to call a con vention to formulate plans for a government. In the tem porary absence of Colonel Washington, Lieutenant-Colonel B. L. Beall ordered an election to be held, September 10, for delegates to such a convention. This body met at Santa Fe, September 24, 1849, a date following rather close upon the call. The writer can give no information as to how the delegates were elected, but they appear to have been apportioned to the counties accord ing to the Organic Law. The names of nearly all the nineteen members have the Mexican sound. Five were then serving the existing government, and five others were ex- members of it. One of these was Antonio J. Otero, a justice of the supreme court. The secretary of the con vention, J. H. Quinn, who was not a member, had served as " attorney-general " for the southern district. A. J. Mar- 1 Davis, EL Gringo, in et seq., quoted in Bancroft, Ariz, and N. Uex., 446, 447, n. *Mr. Calhoun appears to have arrived at Santa Fe about the last of July. Ex. Doc., 31 C I S., no. 18, p. 191. 3 ! 9 ] MILITARY ADMINISTRATION OF NEW MEXICO tinez, the president, a cura * and teacher at Taos, had pre sided over the convention of October 10, 1848. The first thing done by the new convention after organiza tion was to elect Hugh N. Smith a delegate to Congress. A committee of five was then appointed to report the basis of a constitution for the territory and to draw up instruc tions for the consideration of their delegate. On the second day Colonel Washington, " military and civil governor," Secretary Vigil, and the members of the supreme court were invited to seats in the convention. The first two accepted. As the petition of grievances adopted by this body was substantially adopted in a more elaborate paper by a later and more important convention, it will be omitted here. Some special features were set forth which they wished to have incorporated in the territorial act. Their delegate was instructed to oppose the formation of a terri torial government, which was preferred to a state, unless the making of laws was confined to a bicameral legislature. 2 February 4, 1850, Mr. Smith's credentials were pre sented to the House of Representatives and referred to the Committee on Elections. Two months later the committee reported against seating Mr. Smith, because " New Mex ico [though a department of the republic of Mexico and entitled to representation in the national Congress] was not acquired as a political division, but as a part of a large tract of country. . . . Upon that transfer all political laws, all governmental organizations, ceased to have any legal existence." * Attention was also called to the fact that Texas claimed a large part of the territory. The report came up for discussion several times, -but a resolution to 1 The spelling regularly used in the official correspondence. 2 Ex. Doc., 31 C. i S., no. 17, pp. 93 et seq. 8 H. Rep. of Com., 31 C. i S., no. 220. 136 MILITARY GOVERNMENT [320 admit Mr. Smith was finally (July 19) laid on the table. September 9, Mr. Smith and Mr. Albion W. Babbitt, of Utah, were allowed a per diem of five dollars up to the time of their rejection and two thousand dollars for mile age. No action was taken in response to the appeal of the convention. The change of policy in regard to civil affairs was fur ther indicated in a letter, dated November 19, 1849, from Mr. George W. Crawford, Secretary of War, to Lieutenant- Colonel George A. McCall, then about to join his regiment in New Mexico. The Secretary adverted to the difficulty under which the people labored. " To remove it may, in some degree, be the part of the duty of the officers of the army, on whom, under the necessities of the case, has been devolved a partial participation in their civil affairs. It is, therefore, proper that I should say that it is not be lieved that the people of New Mexico are required to await the movements of the Federal government in relation to a plan of government proper for the regulation of their own internal concerns. The Constitution of the United States and the late treaty with Mexico guarantee their admission into the Union of our States, subject only to the judg ment of Congress. Should the people of New Mexico wish to take any steps toward this object, so important and necessary to themselves, it will be your duty, and the duty of others with whom you are associated, not to thwart, but advance their wishes." * It is alleged that Colonel McCall, upon his arrival at Santa Fe in the spring of 1850, informed the people that no territorial government would be granted by Congress, and that President Taylor was determined that New Mexico should be erected into a state government, in order to settle 1 Ex. Doc., 31 C i S., no. 17, P- 281. 3 2i] MILITARY ADMINISTRATION OF NEW MEXICO the question of slavery, and also that of the boundary with Texas, The delegate in Congress, Mr. Smith, wrote home to the same effect. April 20, 1850, a public meeting held in the court-house at Santa Fe adopted resolutions in favor of a state gov ernment, and requested Colonel Munroe, the commanding officer, to call a convention. Meetings were also held in other counties for this purpose. Three days later he com plied by ordering the qualified electors to assemble May 6, and elect delegates to a convention to be held at Santa Fe May 15, for the purpose set forth at the public meeting. President Fillmore supposed that he adopted this course in consequence of the instructions contained in Secretary Crawford's letter quoted above. 1 For some time a dispute had been in progress with Texas in regard to the boundary. As the region about El Paso had been included in the ninth military district, Colonel Munroe sent Major Van Home, with a battalion, to take charge of that post. When the major arrived he was called upon by representatives of Texas and of New Mexico for assistance in enforcing the laws of their respective gov ernments, especially in regard to taxation. In this dilemma he asked the advice of Colonel Munroe, who directed him (December 28, 1849) to sustain the civil jurisdiction of New Mexico over such places east of the Rio Grande and south of the ancient limits of New Mexico as Texas had not taken under civil jurisdiction. This, he explained, was done in order that the people might have protection until Texas officially assumed jurisdiction or the boundary dis pute was settled. 2 This order, simple enough on its face, appears to have been misunderstood by the Secretary of War, Mr. Craw- 1 Sen. Doc., 31 C. i S., no. 60, p. 2. * Ibid., no. 67, p. 8. I3 g MILITARY GOVERNMENT ford, who disapproved (March 8, 1850) of it as "mani festly assuming to decide" the boundary dispute, and " professing to extend a ' code ' of laws which had not been accepted by the people even while under military authority." The colonel was further informed that the only regulations applicable to the conditions were the laws in force at the time of the conquest of New Mexico, or such as Texas might establish, so far as they were not repug nant to the Constitution of the United States. In support of this a quotation was made from the Supreme Court's deliverance in the case of the American Insurance Company vs. Canter, to the effect that local laws remain until altered by the proper authority. As for New Mexico, it was pre sumed that a government de facto remained, or had been established, resting upon the consent of the inhabitants. Such a government he must aid and respect. 1 Now it so happened that a Major Robert S. Neighbors, a commissioner of the state of Texas, was in Santa Fe in April for the purpose of extending the jurisdiction of his state to that place. An article in the New Mexican extra of April 10, 1850, calling upon the people to form a state government and declare explicitly for or against slavery (which was the disturbing factor in Congress in the way of territorial legislation), attracted his attention, as also some posters three days later calling the public meeting men tioned above. These he inclosed to Colonel Munroe, April 15, and entered a solemn protest against the contemplated action, claiming the territory for Texas until Texas had extended her jurisdiction, or until her will was known. 1 He also reported the matter to Governor Bell, of Texas, who addressed (June 14) the President about the opposition to the authority of his state, and asked if Munroe's procla- 1 Sen. Doc., 31 C. i S., no. 56, pp. 3 et seq. 323] MILITARY ADMINISTRATION OF NEW MEXICO 139 mation calling the convention was approved. The Secre tary of State, Mr. Webster, endeavored (August 5) to smooth away the difficulties by explaining that the order, though approved as having been issued apparently in con sequence of the order of the late Secretary of War, dated November 19, did not invade the rights of Texas by assuming any boundary, as the territory of New Mexico was undefined. 1 The convention, however, did not wait for any adjust ment of difficulties, but met on the day appointed, May 15. Of the nineteen members, eight were then serving the ex isting government and four others had been in its ser vice, while two had sat in the legislative assembly of 1847. The secretary of the former convention, J. H. Quinn, was elected president of this one. Two judges of the supreme court, the attorney-general, and Secretary Vigil were members. The last named acted as one of the sec retaries. The writer has found nothing indicating any interfer ence by the military with the election or with the free action of the convention. Colonel Munroe did assume authority to make a slight change in the election law, but it was one of no consequence. He merely ordered the re turns to be made within four days after the election to the secretary of the territory, instead of within eight days, as provided in the Kearny Code. He also exercised his discretionary power to direct the prefects to appoint judges of election. It is probably of no significance that three prefects were elected to the convention. The work of the convention was finished so quickly in ten days that the instrument adopted must have been copied from the constitutions of some of the states without 1 Sen. Doc., 31 C. I S., no. 56, pp. 7 et seq. MILITARY GOVERNMENT [324 much change or debate. Only a few provisions need be noticed. The legislature alone, by special act, could grant divorce. This body was also empowered to levy an in come tax. No soldier of the United States army could be allowed to vote in the state. The clause forbidding the introduction of slavery was adopted unanimously and made the subject of a special address to the people. The east ern boundary was fixed at the one hundredth parallel, with out regard to the claims of Texas. 1 In response to the request of the convention, Colonel Munroe submitted (May 28) the constitution to the people to be voted upon on June 20; he also ordered an election of officers to carry it into effect in case of its adoption. How ever, in doing this he made the reservation that "all action of the governor, lieutenant-governor, and of the legislature shall remain inoperative until New Mexico be admitted as a state under said constitution, except such acts as may be necessary for the primary steps of organization, and the pre sentation of said constitution properly before the Congress of the United States. The present government shall re main in full force until, by the action of Congress, another shall be substituted." 2 According to the election returns, the constitution was adopted by a vote of 8,371 to 39. Dr. Henry Connelly was elected governor by 4,604 votes to 3,465 received by his opponent, a man by the name of Baca. Manuel Alverez received 4,588 votes for lieutenant-governor against 3,465 for Ceran St. Vrain. 3 The legislature to be elected was ordered to convene July i. Three days thereafter a joint committee informed 1 Sen. Doc., 31 C. I S., no. 74, where the constitution is given in full. 2 Sen. Doc, 31 C. 2 S., no. i, pt. ii, p. 93. 3 Sen. Doc., 31 C. 2 S., no. 26, p. 16. 325] MILITARY ADMINISTRATION OF NEW MEXICO I4I Colonel Munroe that both houses were organized and ready to receive any communication he had to make. In reply, the colonel said that he had nothing to communicate be yond what was contained in his proclamation of May 28.* For some reason the governor-elect failed to qualify, and the lieutenant-governor-elect took his place. July 4 he de livered his inaugural address as governor of New Mexico to the legislature, which had " met for the first time under the constitution just adopted by the people;" and a manly inaugural it was. 2 July 8, " Governor " Alvarez sent a message to the " legislature " in which he made certain recommendations. This communication has an air of soberness, and probably is a fair index to the condition of the country. According to it the most pressing needs of the country were : 2 Laws to regulate the system of peonage, for the good of both the employer and the employee ; stringent laws against the prev alent crime of larceny; a plan to summon jurymen to secure to litigants a fair adjudication of cases; and some system to prevent the delay of cases from term to term and to secure speedy, uniform, and regular adjudication. The general diffusion of knowledge through common schools was spoken of as the noblest gift of a new state to her people. A stringent law to punish " all public officers who may be so hardy, so lost to duty, as to attempt to curtail or to infringe the sacred right" of voting was recom mended for consideration. Colonel Munroe now seems to have become alarmed at the course political affairs were taking, and summoned the "governor" to a conference. Several letters were ex- 1 Sen. Doc. 31 C. 2 S., no. i, pt. 2, pp. 94 et seq. * Ibid., 31 C. i S., no. 76, pp. 5 et seq. 142 MILITARY GOVERNMENT changed, July 11-13, in which the rights of each in the premises were discussed at some length. Alvarez first gave Munroe official information that he was proceeding to put the state government into operation and had nominated the officers provided for by the con stitution. Thereupon Munroe called his attention to the restrictions imposed in the proclamation of May 28, and declared that, according to the principles of the Constitu tion, the decisions of the Supreme Court, an extract from a decision of the Supreme Court which had been transmitted, and the laws of Congress, the nomination of officers to supersede those then in commission was an act unwarranted by law. He then announced that he would, with all the means at his disposal, support the existing government until it was superseded by one legally con stituted. In reply, the " governor " said that the election might have been held under the proclamation of a private citizen as well as under that of the military commandant, who had no authority whatever in civil matters. The proclamation had no binding force. Quotations were given from two of President Folk's messages, and from Secretary Crawford's report of November 30, 1849, as we ^ as a reference to Colone\ McCall's instructions, in support of the view that the legality of the military, or temporary civil, government ceased with the treaty of peace. Since that time it had only been continued on the " presumed consent of the inhabi tants." " That consent," he continued, " is now with drawn." He then cited the formation of a state govern ment in California as a precedent, and announced his de termination to proceed with the work of organization. The work of reform, so far as a change in the personnel of the government was concerned, he declared had al ready been effected quietly and satisfactorily, and no col- 327] MILITARY ADMINISTRATION OF NEW MEXICO 143 lisions would occur, unless provoked by military inter ference. 1 The "legislature," in view of the fact that a letter signed by John Munroe, styling himself civil and military gov ernor of New Mexico, had expressed a determination to maintain the civil authorities previously administering the government, and had threatened the use of force to resist the effective operation of the state government now in com plete organization, resolved that the contentions of " Gov ernor " Alvarez were correct and that he should be sup ported. 2 They also proceeded to enact laws among them, to procure a state seal, and to regulate the election of state officers and of United States senators. Senators were then elected and a memorial prepared for presentation to Con gress. September 12, 1850, " Senator " R. H. Weightman ad dressed this memorial, together with that of the conven tion, and some other papers to the President of the Senate. The memorial contained a rather severe arraignment of the treatment accorded to New Mexico. It represented that, by the treaty of Guadalupe Hidalgo, the faith of the United States had been pledged to protect the people of New Mexico in their lives, liberties, property, and the free ex ercise of their religion; and in one year to invest them with the rights of citizens of the United States, with all their privileges and immunities, not one of which promises had been kept, " owing to disturbing causes which have embarrassed the action of Congress." The memorial con tinued : The existing government is indefinite and doubtful in its character, inefficient to enforce its laws for the welfare of the people, and unable to protect them against the Indians, because i Sen. Doc., 31 C. 2 S., no. i, pt. ii, 95 .et seq. * Ibid., 105 et seq. 144 MILITARY GOVERNMENT of which industry is paralyzed, and discontent and confusion prevail throughout the land. Since February 2, 1848, we have groaned under a harsh law forced upon us in time of war when we were thought unde serving of confidence. The military is independent of and superior to the civil power. We have no voice or influence in making the laws by which we are governed. Some power other than the Congress of the United States has subjected us to a jurisdiction foreign to the constitution, and unacknowledged by our laws. We are taxed without our consent, and the taxes, when col lected, are not appropriated for the public benefit, but are em bezzled by officers irresponsible to the people. Judges are unlearned in the law. Prefects and alcaldes im pose fines and incarcerate without the intervention of juries. Alcaldes assail the right of the people freely to exercise their religion without restriction, and dictate to congregations what priests shall administer the sacraments of the church. We have been encouraged by the President to set up a state government, and in so doing have done nothing inconsistent with respect to the Government of the United States. In presenting the prayer for statehood, " Senator " Weightman used high-flown language about freedom and tyranny, and quoted the Declaration of Independence and the Constitution to the effect that Congress had not the right, though they might have the power, to deny the petition. Exercise of the power would be tyranny. The colonial system had been represented to his people as re pugnant to the Constitution and laws of the United States. The question of the capacity of the people of New Mexico for self-government was not a subject for discussion, as the doctrine of the incapacity of the people was not of re publican, but of monarchial origin. 1 Kt ' i ''. 1 Sen. Doc., 31 C. I S., no. 76. 329] MILITARY ADMINISTRATION OF NEW MEXICO 145 Following the " senator " to Washington has carried us a little in advance of affairs in New Mexico. There gov ernment by proclamation and counter-proclamation was still going on. July 20, " Governor " Alvarez, in virtue of an act of the " legislature/' approved July 12, ordered an election to be held the second [Monday] of August to fill the county offices. Three days later Vigil, who, though he had sat in the constitutional convention, continued to act as secretary under the military government, ordered the pre fects to disregard this proclamation and to transmit to him any further communications from the same source. August 8, the " governor," by virtue of a joint resolution of July 15, issued a proclamation to the effect that no officer elected, or thereafter to be elected, or holding by appointment under the state of New Mexico, should attempt to exercise the functions of his office until after November i, 1850, or until duly commissioned to act as such. The next day Sec retary Vigil came out with another circular to the prefects in which they were ordered not to oppose, or take any part in the election of August 12, in their official character; neither were they to recognize any person elected as having any right to office until the matter was sanctioned by competent authority. 1 While these papers were signed by Vigil, they were issued " by order of John Munroe, mili tary and civil governor of the Territory of New Mexico." In reporting (July 16) to Washington the resolutions of the " legislature " endorsing the action of the " gov ernor," Colonel Munroe took occasion to say that the New Mexicans in the "legislature" would have adopted a policy of reasonable delay, had not opinions been prepared for them there by those who had no ties binding them to the terri tory, except the possession and expectation of office, and 1 Sen. Doc., 31 C. 2 S., no. i, pt. ii, 102 et seq. I4 6 MILITARY GOVERNMENT who, if any serious consequences arose from the adoption of their advice, would be found safely beyond its limits. 1 When this communication was received it was submitted to President Fillmore, who directed the Secretary of War, Mr. Conrad, to make a reply (September 10), the sub stance of which was: It is desirable to keep the civil and military departments of the government separate and dis tinct. Temporary departure from this principle may be re quired occasionally, but it should close with the passing of the necessity. No necessity now seems to exist in New Mexico. The government formed was without authority of Congress, but its members do not appear to have any designs of acting against the United States, hence the President does not feel called upon to suppress it by military force. He regrets the misunderstanding which has arisen there, but Congress yesterday provided for a territorial gov ernment, and this will be put into operation as soon as possible. This government is conditioned upon the agree ment of Texas to the proposed boundary. Meanwhile you will abstain from all further interference in the civil or political affairs of New Mexico, unless the inhabitants, or a portion of them, should demand of you the protection guaranteed by Article IX of the treaty of Guadelupe Hidalgo. 2 This certainly was a remarkable order. The colonel was directed not to meddle with civil and political affairs, but no order was given as to who should direct the affairs of the territory. Had the military dissolved, the only thing left would have been the Alvarez " state " government. Now the act of Congress creating a territorial government had robbed this body of all possibility of subsequent legal- 1 Sen. Doc., 31 C. 2 S., no. I, pt. ii, p. 92. 2 Ibid., 107 et seq. 33 1 ] MILITARY ADMINISTRATION OF NEW MEXICO ization. President Taylor had told the people that they might set up the machinery of a state government, subject to legalization in the form of admission to the Union by act of Congress. But here President Fillmore seems to go further and say that the people of a territory not yet organ ized by an act of Congress have the right to alter or abolish the existing government and institute a new one, " laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." Not even Mr. Doug lass could have improved upon this except by saying that " popular sovereignty " was a right which not even Con gress could abridge. However, in spite of these instructions, the colonel still continued to style himself " civil and military governor." The Alvarez government appears to have dissolved with out causing any further trouble. The agreement of Texas to the proposed boundary was transmitted to Congress December 13, 1850. The terri torial government of New Mexico went into operation about March 3, 1851, at which time the civil functions of the commanding officer ceased. 1 The territorial legislature recognized the former mili tary government by passing acts (June- July, 1851) articu lating the new government with the old. A great part of the Kearny Code was adopted, and remains in force to this day. Provision was made that bonds, writs, and pro cesses begun in the courts established under it should be carried to final adjudication in the new courts as they would have been in the old. Quotations have been given here and there which show i Ex. Doc., 32 C. i S., no. 71, p. 2. 148 MILITARY GOVERNMENT that many thought that the legality of the provisional mili tary government ceased with the treaty of peace. Presi dents Polk and Taylor thought that the de facto govern ment continued of necessity, but President Fillmore seems to have thought that even this basis of legality had van ished when the people organized a government for them selves. Upon the general question of legality after the treaty of peace, without any reference to Fillmore' s posi tion, we have a deliverance from the Supreme Court. The case in question arose under a law embodied in the Kearny Code, the details . of which do not concern us. July 30, 1849, su it was instituted under this law by James J. Webb against Eugene Leitensdorfer and Joab Houghton, the last named a member of the supreme court of the mili tary government. By various delays judgment was de ferred until the territorial courts were organized. In September, 1851, the case was transferred to one of the new courts, where judgment was rendered in favor of the plaintiff. On appeal, this judgment was affirmed by the supreme court of the territory. The case was now carried on a writ of error to the United States Supreme Court. There the defendants, now the plaintiffs in error, appear to have held that, whatever may have been the rights of the conqueror as such, these were all terminated by the termin ation of hostilities, and that with the close of the contest every institution which had been overthrown or suspended was revived and re-established. Mr. Justice Daniel, in de livering the opinion of the court, said : The fallacy of this pretension is exposed by the fact that the territory never was relinquished by the conqueror, nor re stored to its original condition of allegiance, but was retained by the occupant until possession was matured into absolute 333] MILITARY ADMINISTRATION OF NEW MEXICO 149 permanent dominion and sovereignty ; and this, too, under the settled purpose of the United States never to relinquish the possession acquired by arms. We conclude, therefore, that the ordinances and institutions of the provisional government would be revoked or modified by the United States alone, either by direct legislation on the part of Congress, or by that of the Territorial Government in the exercise of powers delegated by Congress. 1 II. REVIEW OF THE MILITARY REGIME One of the first things promised the people of New Mexico was protection in life, liberty, and property, but the failure to provide this very protection was the principal indictment against the military government in the various petitions sent to Congress. And these complaints are well sustained by official testimony. Not long after the suppression of the insurrection the Indians began to give trouble. July 5, 1847, an officer at Santa Fe says : " The Indians are depredating on the citi zens in every direction, and no steps have been taken to suppress their incursions; they have become very bold, and a day or two since drove off many animals eleven miles from this place." 2 A few weeks later (September 18) Thomas Fitzpatrick, who, as Indian agent, had traveled over parts of New Mexico, wrote : " New Mexico is in a deplorable condition. The Indians are ravaging the coun try and carrying off inhabitants to a much greater extent than heretofore. They carry their hostilities (which seems very strange) almost within gunshot of the headquarters of 1 Leitensdorfer vs. Webb, 20 Howard, 176 et seq. 2 H. Ex. Doc., 30 C. 2 S., no. i, p. 220. 150 MILITARY GOVERNMENT the army of the west, except when they want presents, when they are as gentle as lambs." * What really appeared strange to Mr. Fitzpatrick seems to have been the wretched discipline maintained among the troops. They were few enough in number to begin with, and this condition subtracted the more from their efficiency. An effort was made to remedy the lack of a sufficient force by giving permission to the people of New Mexico to march against the Navajoes. After the treaty of peace they were commanded to organize and hold themselves in readiness to march against the Indians, repel incursions, and rescue stolen property. 2 Toward the close of 1848, Colonel Washington reported a state of comparative peace and quietude, but in the following spring the Indian raids broke out afresh and he had to call for more volunteers. The New Mexicans responded readily, and four companies were mustered into service. With the force now at his command Colonel Washington made a rather lengthy cam paign and succeeded in bringing the Navajoes to terms with a treaty. 3 But in 1850, the " legislature " complained that the Indians were again robbing, killing, and carrying the people into captivity. About the same time Colonel McCall reported a deplorable condition of affairs. He declared that the population had decreased somewhat in the last six years. Mining, stock-raising, and agriculture were the chief pursuits; but little was then being done in the first, while the second was much decreased both because of Indian raids. Hillsides and plains formerly covered with sheep had become bare, so that less than a thousand sheep were 1 H. Ex. Doc., 30 C. i S., no. 8, App., 240. 2 H. Rep. Com., 36 C. i S., no. 537. 8 H. Ex. Doc., 31 C. i S., no. 5, pp. 104 et seq. 335] MILITARY ADMINISTRATION OF NEW MEXICO i$i sent from districts which formerly sent them by the hun dred thousand. Still the plundering went on, chiefly by Navajos and Apaches, even in the close vicinity of the military posts. The Indians pounced down and were away before the loss was known. Within three months between fifteen and twenty thousand sheep and several hundred cattle had been carried off. Statistics were hard to obtain, but it seemed certain that eighty-three people had been killed and thirteen captured, and these numbers might be safely increased by from fifteen to twenty per cent. The property loss (chiefly in sheep, mules, cattle, and horses) was esti mated at $114,050, which should be increased by fifty per cent. 1 The letters written by Mr. Calhoun from Santa Fe in the latter part of 1849 made no direct charges against the military, but one can easily read in them hints at criminal inactivity on the part of Colonel Munroe. 2 One cause of Indian activity he finds in the traveling merchants and " wicked priests," who were inciting them to rapine and murder with tales of Mexican reconquest and threats of extermination of all found claiming the protection of the United States. 3 The day following the date of Colonel McCall's letter, Colonel Munroe sent in a report, from which we have al ready quoted. In this he also said : " As charges, both gen eral and specific, have been made, and will be urged at Washington, against those who have administered the affairs of this Territoiry, an investigation into their con duct is due both to the people and themselves. If such an investigation should be ordered, I am satisfied it will be shown that the persons and property of the inhabitants of 1 Sen. Ex. Doc., 31 C. 2 S., no. 26, pp. 5 et seq. 2 H. Ex. Doc., 31 C. i S., no. 17, pp. 228 et seq. * Ibid., 220. I5 2 MILITARY GOVERNMENT [336 New Mexico have been protected to the full extent of the guarantee provided by the treaty with Mexico." 1 A few weeks after he ceased to act as governor, Colonel Munroe used some strong language about the various statements emanating from persons in the Ter ritory and circulated in the public prints of the United States, statements which, he declared, teemed with direct violations of truth, or with gross misrepresen tations intentionally made, having in view the disparage ment of the military force and more particularly the com manding officers. The object of this was, he thought, to prepare the public mind and Congress to consider favor ably the claims proposed to be set up for the payment for all the stock which had been, or which would be repre sented to have been, driven off by the Indians through the supposed neglect of the government to give the protection which had been promised to the people of the Territory. Another object was to disparage the regular army, in the expectation that Congress would authorize the creation of a local force as a substitute, or partial substitute, the official positions of which there was already a surplus of aspirants ready to fill. 2 Possibly there was some justification for the last charge. August 31, 1851, Mr. Calhoun, then governor, wrote the Secretary of War that there would be no quiet in the Terri tory until the Executive was authorized to call out the militia. 3 Several months before Colonel McCall's report was writ ten, President Taylor said : "It is undoubtedly true that the property, lives, liberties, and religion of the people of New Mexico are better protected than they ever were be- 1 Sen. Ex. Doc., 31 C. 2 S., no. I, pt. ii, 92. 2 Sen. Ex. Doc., 32 C. i S., no. I, p. 127. 3 Ibid., 36. 337] MILITARY ADMINISTRATION OF NEW MEXICO 153 fore the treaty of cession." x Possibly later reports would have caused him to change his opinion. It is true that the plundering had been going on for a long time twenty years, according to Colonel McCall. The Navajoes, said he, gave as their only reason for not exterminating the New Mexicans long before that it was to their interest to keep them as shepherds. But the evidence goes to show that the losses sustained at the hands of the Indians had increased considerably within the last few years. Yet even this may have been true and the fault not have been wholly that of the commanding officer. The military force at his disposal was never adequate, and this fact was constantly kept before the administration. While the war with Mexico lasted only small garrisons appear to have been kept in New Mexico. A few reinforcements were sent in, but the force was again weakened by withdrawals and by the return home of volunteers whose term of enlistment had expired. Colonel Washington made his expedition in 1849 with on ly 3 2 5 men > f whom 54 were Pueblo In dians. About the close of that year only 885 were stationed in the seven posts occupied in New Mexico. 2 Later the number was raised to 1,739, but this force Colonel McCall declared insufficient by about 500 men. The failure to re spond to these repeated calls for more troops reveals a reprehensible carelessness on the part of the administration, if more troops were to be had; if not, it accentuates the folly of waging a war of conquest with volunteers whose term of enlistment expires with the treaty of peace. But with all this, it must be remembered that to protect from savage foes whom it is not allowed to exterminate is no easy task. The depredations of these Indians have con- 1 Message of January 23, 1850. 2 Sen. Ex. Doc., 31 C. I S., no. i, p. 184. I54 MILITARY GOVERNMENT [338 tinued at intervals down to times within the memory of men still young, and our government has hardly been ac cused of negligence in dealing with them. The charges against the judicial arm of the government have already been quoted. How far these generalizations were true it is impossible to say. That one member of the supreme court was not above taking advantage of the tech nicalities of the law is shown by the position assumed by Joab Houghton as one of the defendants in the case of Leitens- dorfer vs. Webb, referred to above. One is not surprised to hear that the judges were unlearned in the law. Indeed, it is doubtful if many of the citizens had much learning in the law or anything else, if we may trust Colonel McCall as authority. If any of the judges were Americans, it was hardly to be expected that they should have any profound knowledge of the Spanish law. Incarceration without a jury was nothing new to the Spanish law, but Kearny's Organic Law provided that the right of trial by jury should forever remain inviolate, and his laws provided a regular plan for summoning jurors. Curiously enough, we find " Governor " Alvarez, in July, 1850, calling the attention of the "legislature" to the need of a plan for this very purpose. This would seem to indicate that he did not know of the provision in the Kearny Code, or else chose to ignore it. It also suggests that pos sibly the law had not been strictly observed. That some juries had been summoned is well attested. The insurrec tionists of 1847 were tr i e( * by jury. At least one civil suit decided by a jury came up on appeal before the supreme court of the Territory as organized by Congress. The orig inal decision was affirmed, with only a slight correction in the amount for which judgment was rendered. 1 1 i N. Mex. Reports, 19 et seq. 339] MILITARY ADMINISTRATION OF NEW MEXICO The charges against the prefects and alcaldes, so far as related to their dealings with the Pueblo Indians, are sub stantiated by official evidence. Said Mr. Calhoun : " It is a matter of no moment whether an Indian is in debt or not; a judgment can be obtained against him, which must be paid in cash, or the spirit of the 6th article of the ordi nance of 1787 is immediately violated. Again, the prefects ... do not, in my opinion, use their authority, whatever it may be, without abusing it. Contributions upon their [the Pueblos'] labor and property are frequently made by the law, or laws, which alcaldes and prefects manufacture to suit the occasion." The charges, however, did not apply to all. 1 Nothing has been found either to substantiate or to re fute the charges against these officers in regard to inter ference with religious worship. Financially the military regime appears to have been a dismal failure. The imposition of taxes without the con sent of the law-making body, and the embezzlement of the public funds, were among the charges made against it by the " legislature " of 1850. We have already seen that a duty of six per cent, was levied on imports soon after the occu pation and was continued until the treaty of peace. 2 From a letter written by Colonel Munroe, December 30, 1850, we learn that " $16,073.32 has been received into the Terri torial treasury from the six per cent, and the twenty per cent, imposts, and expended for the general prosperity of the Territory." 3 Nothing else relating to the twenty per cent, impost has come to the notice of the writer. In 1849 the Secretary of War made a report of the Mexican Mili tary Contribution Fund, but does not appear to have men- 1 H. Ex. Doc., 31 C. i S., no. 17, P- 216. 2 Supra, 127. 9 Sen. Ex. Doc., 31 C. 2 S., no. 71, p. 2. MILITARY GOVERNMENT [340 tioned any funds collected or disbursed at Santa Fe. 1 They evidently were paid into the Territorial treasury and no re port was made of them. The Kearny Code provided a more or less elaborate scheme of taxation, both municipal and Territorial. It probably was some of these taxes, the col lection of which was resisted in the strip of country north of El Paso. 2 What was realized from this source is not clear. The sum of $12,098.64 was paid from the treasury on the salaries of civil officials. This seems to have formed no part of the $16,073.32 expended for the " general pros perity of the Territory," whatever that may have been; consequently it must have been raised from some source other than the imposts. The prosperity of the office-holders does not appear to have kept pace with that of the Territory, for Munroe's letter was accompanied by a tabular statement of salaries due the officers of the government, with an appeal for their payment as an act of long-deferred justice. The total amount due was represented as $31,562.37. This was for services up to March 22, 1851. Accounts were included for the United States district attorney and marshal, though these offices were considered abolished by the order of the War Department, January n, 1847. Still the men were recommended to Congress for payment up to June 22, 1847, as they had discharged their duties in good faith. Secre tary Conrad included $4,391.30 for the military officers act ing in a civil capacity evidently only the governors bringing the total up to $35,953.67, to which he also added $650 for certain officers up to June 22, 1851, though these did not come under the military regime. Besides this there was due the territorial treasury the sum of $12,098.64, which had been used to pay salaries made payable by the 1 H. Ex. Doc., 30 C. 2 S., no. 47- 2 Supra, 137. 341 ] MILITARY ADMINISTRATION OF NEW MEXICO i$j Kearny Code at the treasury of the United States. A few of the officers had received their salaries in full, some only in part; others had received nothing. The salaries ranged from $2,000 per annum down, the highest being that of the governor. 1 In 1852 the Senate asked why these accounts had not been paid out of the balance in the treasury belonging to the Mexican military contribution fund. To this Secretary Conrad replied that he knew of no authority in his or any other department to make such payment. 1 July 17, 1854, Congress authorized the Secretary of War to pay the offi cers from September 22, 1846, to March 3^ 1851, at the rate fixed by the Kearny Code, deducting such sums as had already been paid by the Territory, and allowing noth ing to military officers for performing civil functions. The Territorial treasury does not appear to have been reim bursed for the accounts already paid. The individual claims for service against the Indians were settled much earlier. February 27, 1851, Congress appropriated $135,530.20 to pay the New Mexican volun teers who had served in the Territory. Other claims aris ing from this service, believed 1 by Secretary Belknap to be fraudulent, were before Congress as late as i874. 2 One thing seems certain, that the Territorial treasury was not left in a flourishing condition. October 19, 1851, Mr. Calhoun reported that there was not a dollar in it, and that the collection of taxes was resisted, with no pros pect of an early adjustment of the question. 3 As to the moral influence of the military, the testimony 1 Sen. Ex. Doc., 32 C. I S., no. 71, pp. i et seq. 2 See H. Rep. Com., 36 C. i S., no. 537; H. Ex. Doc., 43 C. I S., no. 272. * Sen. Ex. Doc., 32 C i S., no. 71, p. 3- I5 8 MILITARY GOVERNMENT is a little conflicting or perhaps we should say that the direction and character of the influence changed. Mr. Fitz- patrick, in the letter already quoted, 1 said : " Many are surprised at the death-rate of the volunteers in a climate known to be so healthy. Let them observe for one week the life led in Santa Fe and they will be astonished that so many have lived." The troops then at Santa Fe were the Missouri volunteers, who had enlisted for only one year. At the expiration of their service they went home, leaving no very savory reputation behind them, and were replaced by others. Whether the new troops were less subject to temptation, or were better disciplined, or whether there was any difference in their conduct, the writer cannot say, but later evidence is to the effect that general moral and social conditions showed some improvement. September 4, 1847, tne fi rst English newspaper was started at Santa Fe. A little more than two years later the first number of the New Mexican, which is still published, made its appearance. In December, 1847, Governor Vigil devoted one section of his message to the legislature to the educational needs of the country. In the following August the first English school was opened at Santa Fe, and the next year another was opened by a Baptist mis sionary. 2 Not quite four years after the conquest Colonel McCall, in the report already quoted several times, said : " Changes in the habits and customs of the natives, due to intercourse with our people, are already perceptible. This is shown in Santa Fe in the diminution of filth in the streets, im proved dress and personal cleanliness of the people, together with the cloaking of immorality, showing that precept and example are not altogether thrown away upon them/' 1 Supra, 149. 2 N. Mex. Blue Book. CHAPTER III THE OCCUPATION OF CALIFORNIA I. THE FIRST CONQUEST AND REORGANIZATION THE first avowedly official operations in California were conducted by naval officers in pursuance of orders issued June 24, 1845, m anticipation of a rupture with Mexico. The orders were directed 1 to Commodore John D. Sloat, commanding the United States naval forces in the Pacific, who, in case of the rupture, which he was to do everything consistent with national honor to avoid, was to seize San Francisco and blockade or occupy such other ports as his force would permit. He was particularly enjoined to pre serve friendly relations with the people of California and to encourage them to adopt a course of neutrality. 1 In later instructions (May 15, July 12, and August 13, 1846) the object of preserving friendly relations with the Cali- fornians was again emphasized by Mr. Bancroft, the Sec retary of the Navy. The government desired to be in actual possession of Upper California at the close of the war, so as to be able to claim it on the basis of the uti possidetis. This was thought to necessitate a civil admin istration, which Commodore Sloat was directed to estab lish under his protection. In doing this he was to pay due respect to the wishes of the people of California, as well as to the actual possessors of authority in that province. The 1 H. Ex. Doc., 29 C. 2 S., no. 19, pp. 75, 79 ** seq. 343] '59 !6o MILITARY GOVERNMENT oath of allegiance to the United States might be exacted of those entrusted with authority. In short, the people were to be " allowed as much liberty of self-government as was consistent with the general occupation of the coun try by the United States." Only the orders of June 24 reached Commodore Sloat before he went to California, but it is only fair to assume that he was reasonably familiar with the course which the administration desired to have pursued there. Certainly he knew the treatment which was to be accorded the Cali- fornians in case they were well disposed toward the United' States, which was believed to be the case. The reader will do well to hold this in mind in connection with later de velopments. About the first of June, 1846, Commodore Sloat received at Mazatlan reliable information that hostilities had begun, and immediately sailed for California. July 2 he arrived in the harbor at Monterey and prepared to take possession of the town. Before landing, a general order was read to the marines, informing them that it was of the first im portance to cultivate the good opinion of the inhabitants, whom it was desired to conciliate. No act of hostility was to be committed without express orders from the com manding officer, nor was any one to leave the ranks or enter any home without similar authority. The landing was effected July 7, with two hundred and fifty men, and possession was taken of the town without opposition. A proclamation to the inhabitants of California was read at the custom-house, and the United States flag was hoisted " amid three hearty cheers by the troops and foreigners present." 1 In the proclamation the commodore assures the people j. * H. Ex. Doc., 30 C. 2 S., no. I, p. 1006 et seq. 345] THE OCCUPATION OF CALIFORNIA that, though he comes " in arms with a powerful force," he does not come as an enemy, but as their best friend, and informs them that " henceforward California will be a portion of the United States, and its peaceable inhabitants will enjoy the same rights and privileges as the citizens of any other portion of that territory, with all the rights and privileges they now enjoy, together with the privilege of choosing their own officers for the administration of jus tice among themselves, and the same protection will be ex tended to them as to any other state in the Union." Re ligious freedom is promised and an era o*f prosperity is predicted. Such of the inhabitants, native or foreign, as are not disposed to " accept the high privileges of citizen ship " will be allowed to dispose of their property and de part in peace; or to remain, if they will observe a strict neutrality. " With full confidence in the honor and integ rity of the inhabitants of the country," "the judges, alcaldes, and other civil officers " are invited " to retain their offices, and to execute their functions as heretofore, that the public tranquillity may not be disturbed; at least, until the gov ernment of the territory can be more definitely arranged." Provisions would be paid for at fair rates. 1 A more pronouncedly " peace policy " it would be hard for a conqueror to pursue. Under Sloat's direction the same course was followed at San Francisco and in the north generally by Commander Montgomery. The militia were organized and supplied with arms to protect their persons and property, and with the flag of the United States. The revolutionists at Sonoma were quieted, and an effort was made, but without success, to get into communication with Captain J. C. Fremont, of the United States topographical engineers, who was known to be operating in the north. 1 H. Ex. Doc., 30 C. 2 S., no. i, p. 1010. MILITARY GOVERNMENT [346 On the same day that Monterey was entered, Commodore Sloat summoned Don Jose Castro, commandant-general of California, to surrender, and invited him to a conference at Monterey. Two replies were received from Castro. One called attention to the barbarous practices of the adven turers under Captain J. C. Fremont, and expressed the belief that they could not belong to the commodore's command. 1 The other declared that the governor and assembly would have to be consulted in regard to the surrender, but as for Castro himself, he would stand by the Mexican cause as long as a single individual would join him in it. 2 Sloat then invited Governor Pico to a conference at Monterey, in order that he might satisfy the governor and the people that the Americans had come as their friends; and he also gave an assurance that everything in his power had been done to stop the sacrifice of life " by the party in the north." At the request of the foreigners at San Jose, a flag was furnished to be hoisted there, and a justice of the peace was appointed to preserve order in the town, the alcaldes declining to serve. Captain Fremont was found in pos session of St. John's and was left there to dig up the guns buried by Castro and to garrison the place. July 23, Mont gomery was advised to appoint two justices of the peace at San Francisco to administer justice in minor matters, with directions to conform to the existing laws of the terri tory. Further than this Commodore Sloat does not seem to have gone either in the work of conquest or organiza tion. The same day he yielded the command on shore to Commodore Stockton, and a few days later left California on account of ill health. The departure of Commodore Sloat marks the beginning- 1 H. Ex. Doc., 30 C. 2 S., no. I, 1012 et seq. 2 Sen. Ex. Doc., 29 C. 2 S., no. i, p. 647. 347] THE OCCUPATION OF CALIFORNIA of a more " vigorous foreign policy." The first thing the new commander, Stockton, did was to organize the " California battalion of mounted riflemen," under Captain Fremont and Lieutenant Gillespie, and send them off to San Diego to cut off Castro's retreat into Mexico. This must have been done with Sloat's approval, certainly with his acquiescence, since he had not left the harbor. July 28, an " Address to the People of California " was ready, in which the influence of Fremont is clearly discernible. It begins with a severe arraignment of the Mexican government in general, and of General Castro in particular, who is accused of having " violated every principle of international law and national hospitality, by hunting and pursuing, with several hundred soldiers, and with wicked intent, Captain Fremont, of the United States army, who came here to refresh his men (about forty in number) on a scientific survey." " For these repeated hostilities and outrages, military possession was ordered to be taken of Monterey and San Francisco until redress could be obtained of the government of Mex ico." There was no intention to interfere with the civil authorities, the commodore continued, but they had aban doned the people to a state of anarchy. Abuse was then heaped upon General Castro as a usurper, and he was prac tically denounced as an outlaw. In closing, the commodore declared that he did not desire to possess himself of one foot of California for any other reason than to protect the lives and property of the foreign residents and citizens of the territory who had invoked his protection, and that he would withdraw as soon as the officers of the civil law re turned to their duties under a regularly organized gov ernment. 1 This pronunciamento, in which the commodore held out 1 H. Ex. Doc., 30 C. 2 S., no. i, p. 1035 et seq. 164 MILITARY GOVERNMENT [348 the sword and the olive branch in the same hand, must have been confusing enough in itself; it was rendered still more so when read in connection with the one issued by Sloat a few days before. Sloat himself declared, as soon as he read it, that it did not express his reasons for taking possession of California, nor his intentions towards that country. 1 Nobody knew that war had been declared, but Sloat acted on the presumption that the hostilities of which he had heard meant war. If the " reports of rapine, blood and murder " were the causes of Stockton's intervention, the logical course for him to pursue would have been to chase the murderers, instead of driving out the officers of the civil government, on the r establishment of which he promised to withdraw. One of his objects was to prevent the extermination of the American settlers and immigrants, which had been threatened in a proclamation. The com modore also tells us his reason for refusing to enter into negotiations with General Castro, who demanded as a pre liminary that he should advance no farther. The Mexican government had not authorized the local functionaries to treat, consequently their action could not have been final. Nor would it have been wise to stop the American arms, and thus give the enemy a chance to recuperate and drive them out of the country a country with which they were not at war, and in which their only object was to restore public tranquillity! Besides, it was rumored that the offi cials would dispose of the public domain and property in anticipation of the American occupation, and " to prevent that was one of the chief objects " of the expedition against them. 2 Some time about the middle of August news was re^ 1 H. Ex. Doc, 30 C. 2 S., no. i, p. 1034. 2 Ibid., 1037 ct seq. 349] THE OCCUPATION OF CALIFORNIA ^5 ceived of the actual declaration of war, and after that the commodore's actions and proclamations are more compre hensible. By August 28, he was able to inform the Secre tary of the Navy that the flag of the United States was flying from every commanding position in California. How that was accomplished was summed up in a somewhat ver bose and bombastic paraphrase of Caesar's famous dispatch. He also assured the secretary that a civil government had been put into successful operation. 1 This " proclamation government " was set up at Los Angeles in a series of papers issued about the middle of August. One of these reads: I, Robert F. Stockton, commander-in-chief of the United States forces in the Pacific Ocean, and governor of the Terri tory of California, and commander-in-chief of the army of the same, 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 California, do now declare it to be a Territory of the United States, under the name of the Territory of California. The proclaimer, continuing, " ordered and decreed " a regular territorial government, with a governor and secre tary to hold office four years, and a legislative council to hold for two years, unless sooner removed by the President of the United States. Municipal officers were directed to regulate their proceedings by the Mexican laws until other wise provided by the governor and council. A separate address to the people of California (August 17) requested them to meet and elect officers to fill the places of such as declined to serve. In case they failed to do so, the governor would appoint. All persons who would not agree to sup- 1 Sen. Ex. Doc., 29 C. 2 S., no. i, p. 668. MILITARY GOVERNMENT [350 port the existing government were informed that they would not be permitted to remain in the territory. Until the civil government was put into operation, martial law would prevail, and during that time all persons were re quired to be within their houses from ten o'clock at night until sunrise. 1 The governor now turned his attention to revenue. All foreign vessels arriving in the ports of California were re quired (August 15) to pay tonnage duties at the rate of fifty cents per ton. Goods arriving from foreign ports were to be taxed fifteen per cent, ad valorem, payable in three instalments, at the end of thirty, eighty, and one hundred and twenty days. Two disinterested persons, one selected by the government and one by the owner of the goods, were to make the appraisement. Without waiting for the voluntary elections, the gov ernor ordered a general election to be held September 15, to elect alcaldes and other municipal officers. Soon after this a general order was promulgated (Sep tembers) looking to the organization of the army of Cali fornia. The territory was divided into three departments, for each of which a military commandant was to be ap pointed. Superior to these would be a military command ant of the territory, subject to* orders from the governor. Captain Fremont was appointed to this position, and Cap tain Gillespie was made commandant of the southern de partment. The instructions to Captain Gillespie informed him that martial law would prevail throughout the territory until otherwise ordered by the governor. However, he was directed not to interfere with civil officers, except when the public peace and safety demanded it. One part of his 1 Sen. Ex. Doc., 29 C. 2 S., no. i, p. 669 et seq. 35 1 ] THE OCCUPATION OF CALIFORNIA task was to see that the proclamation of August 17 was strictly observed, but he was authorized to grant written permits to disregard the curfew regulation. In case the people failed to elect prefects and alcaldes, he was directed to appoint them. 1 Having completed the civil organization, Commodore Stockton now decided to leave the government in Captain Fremont's hands and seek other fields of conquest. Ac cordingly, the captain was informed of his intentions and ordered to meet him at San Francisco, October 25, that they might there complete the arrangements. A report of his proceedings was now (September 19) transmitted to the Secretary of the Navy, with the state ment that, if the government approved of them, a publica tion of such approval in the Calif ornian would have a good effect. 2 No reason appears to have been given at this time for what had been done. About eighteen months afterwards, in defense of his conduct, which was then called in question, the commodore said: It appeared to me that the existence of such a government, under the authority of the United States, would leave no pre tence upon which it might be urged, that the conquest of the country had not been accomplished. While merely the military power exercised power, enforcing its authority by martial law, and executing its functions through the instrumentality of a regular military force, nothing could be regarded as settled, and opposition to its power would be considered as a lawful opposition to a foreign enemy. When, however, the whole frame of civil administration should be organized courts and judges performing their accustomed functions public taxes and imposts regularly collected and appropriated to the ordinary 1 H. Ex. Doc., 30 C. i S., no. 70, pp. 43 et seq. a Ibid., 2 S., no. i, p. 1044. 168 MILITARY GOVERNMENT [352 objects and purposes of government any opposition might be justly deemed a civil offence, and appropriate punishment in flicted in the ordinary course of administering justice. He further thought the law military (meaning martial law) inadequate, there being many objects over which it could not exercise a salutary control. But a civil govern ment which should, through its various functionaries, per vade the entire country, seemed essential to the attainment both of the objects which he had in view and of the ends of the government. He further wished to subordinate the military to the civil, its proper position, to accustom the Californians to our institutions, and to give to Americans the law and justice they had enjoyed at home. 1 II. CALIFORNIA AT THE TIME OF THE CONQUEST The California of 1846 may be regarded as substantially the same geographically as the California of to-day, though the eastern boundary had not then been marked as it now stands. Very little of it except the west coast will play any part in the events to be narrated. The historian Hittell estimated the population at 5,000, of whom 4,000 were California^ descendants of Europeans and 360 Americans from the United States. 2 Bancroft's estimate is a little higher, but appears to have been made up in a different way. Accurate statistics were not to be had. The small population was scattered along the coast from San Fran cisco in the north to San Diego in the south. Monterey, the capital and chief commercial city, had a population of 750; outlying settlements brought the population of the district up to i,95O. 3 1 H. Ex. Doc., 30 C. 2 S., no. i, p. 1043. 2 Hist. Cal, ii, 469 et seq. 3 Bancroft, California, iv, 650. 353] THE OCCUPATION OF CALIFORNIA ^9 The inherited Spanish love of pleasure was everywhere evident. The Rev. Walter Col ton, who accompanied Stock ton to California as a chaplain in the navy and served as alcalde at Monterey, says that so many devoted their Sun days to the bottle and to dancing that few were left for the church, though some attended mass before dressing for the ball. 1 They had few advantages in education, but made up for this in part by a natural quickness of wit. In hos pitality they were as free and open-handed as the South in the olden time. Marriages were contracted in youth and families were large, several of more than twenty members in each being on record. The life was largely pastoral, and the rancheros measured their possessions by leagues. They were reputed to be passably honest, though a little slow in settling with foreign traders. In religion the Calif ornians were Catholics; in politics they were revolutionists. This habit of changing their government so often makes it a little hard to describe the political system. Not every change of leaders was followed by a change in the system, but such changes were frequently made. The country was a department of Mexico and was entitled to representation in the Mexican Congress. It had a governor, when not in the hands of a military usurper, and usually a departmental assembly, but the governor not infrequently issued regulations and orders which had the force of law. The pay and glory of assemblymen could not have been very great, for we find them excusing themselves from attendance on various pretexts; not long before the American occupation they adjourned and went home to earn a living. Sometimes there was a prefect (executive officer) for the districts, and sub-prefects for the smaller divisions; sometimes these offices were abolished for the 1 Three Years in California (1850), 33, 46. I 7 o MILITARY GOVERNMENT [354 sake of economy. The towns were supposed to be cared for by ayuntamientos. The law provided for a supreme court, and several attempts were made to organize one, but with ill success. Of the inferior judicial officers the alcalde seems to have been the most important. The total revenue from customs in 1845 was $140,000; yet at the end of that year the total indebtedness of California was about $158,- ooo, none of which dated back more than two or three years. This probably accounts for hints thrown out by some that the government officials were dominated by other than patriotic motives. In addition to the home-bred revolutions, which were not always very sanguinary, there was another disturbing ele ment in Californian life the foreigner. The treatment accorded him was not always consistent; sometimes he was encouraged to come, sometimes to stay away, more often the former. He was looked upon with suspicion and fear, it being believed that he had designs upon the country. In the spring and summer of 1846 a few adventurers at the north showed that this fear had not been ill-grounded. The story of the " Bear Flag Revolt," the inner history of which has always been wrapped in more or less mystery, has no proper place in this narrative. 1 It is mentioned here only because of the later prominence of one of its chief promoters, and because of the influence it must have had on later events. It will suffice here merely to say that cer tain lewd fellows of the baser sort, encouraged, if not actually instigated, by Captain J. C. Fremont, of the United States topographical engineers, ostensibly on a scientific ex pedition, raised the flag of revolt in the north and com mitted atrocities more common in the earlier stages of civi- 1 A very good, but somewhat tedious account of this disgraceful episode will be found in Royce's California. 355] THE OCCUPATION OF CALIFORNIA iji lization. This was the event referred to in the correspond ence between General Castro and Commodore Sloat. When Commodore Stockton assumed command the revolutionists were adopted by him, and when the work of conquest was supposed to be complete, announcement was made that this same Captain Fremont would be made governor of the territory. In consequence of the conflicting proclamations and incomprehensible acts already mentioned, it is not sur prising that, in some cases, the inhabitants fled in terror before the Americans, not knowing what to believe, or what to hope. 1 It is not strange, then, that the Calif ornians did not fall at the feet of the Americans and thank them for coming. Commodore Sloat thought that they abandoned all hope of ever seeing the Mexican flag again flying in California as soon as the British Admiral Seymour came in and de clined to interfere. 2 Great satisfaction was reported to prevail at Sonoma among all classes. 8 Almost any con dition would have been preferable to the reign of terror instituted there by the revolutionists. At Monterey real estate advanced in value immediately after the occupation, and at least one Californian expressed his satisfaction with the consequent increase of his own wealth to the extent of forty thousand dollars. But in reporting the comple tion of the conquest in September, Commodore Stockton said that many still hoped that, by some chance or accident, the United States would again give up California to Mexico. 4 1 H. Ex. Doc., 30 C. 2 S., no. i, pp. 1021, 1028. * Ibid., 1008. * Ibid., 1023. 4 H. Ex. Doc., 30 C i S., no. 70, p. 45. MILITARY GOVERNMENT [356 III. THE REVOLT AND RECONQUEST The course of events soon showed that Commodore Stockton had good cause to doubt the security of his posi tion. His dispatch announcing the completion of the con quest was but little more than a week old when news was received at Monterey that the southern district had risen in revolt and that Captain Gillespie was besieged at Los Angeles. The news reached Stockton at San Francisco, and he, now breathing out threatenings and slaughter against the rebels, immediately started for the scene of conflict. The mere announcement that Captain Fremont was to be made governor ought to have been regarded by any man acquainted with the events of the three or four months preceding the announcement as a sufficient cause of un easiness and discontent, if not revolt, on the part of the inhabitants. To them this must have seemed to be noth ing more nor less than an official endorsement of the bar barities which they had laid at the captain's door. What then could they promise themselves under this man as governor? And yet this was not the immediate cause of the outbreak. Indeed, it began far away from the gov ernor's camp, though near that of one of his lieutenants. Although Captain Gillespie had been instructed to miti gate to some extent the harshness of martial law, the accounts generally agree that he began with a series of measures which caused him to< be regarded as a tyrant. He forbade two persons to go about the streets together, and would not allow the people to have reunions at their homes under any pretext whatever. The provision shops were closed at sundown, houses were searched for arms, people were imprisoned on suspicion, and cases were de cided by the captain instead of by the justices of the peace. The " bewildering speeches and proclamations," and " the 357] THE OCCUPATION OF CALIFORNIA banding together of a few mongrel bodies of volunteers, who enhanced the pleasures of their otherwise agreeable society by pillaging the natives of horses, cattle, etc., in quite a marauding, buccaneering, independent way, all, O'f course, under the apparent legal sanction of the United States," were supposed to have had their effect. 1 That par ticularly galling manifestation of contempt which Amer icans frequently display toward other people as their in feriors also played a part. The trouble began when a turbulent fellow, Serbulo Varela, who had some trouble with Gillespie, or was unwilling to submit to the stringent police regulations, got up a band of a dozen or more kin dred spirits and ranged about the vicinity oi the town to annoy Gillespie's troops. Many arrests were made and the people found themselves branded as rebels. Flo-res, a paroled Mexican officer, narrowly escaped arrest and then joined the insurgents, The rising was popular, though probably fomented by the paroled officers, who now availed themselves of what they were pleased to regard as a breach of faith on the part of Gillespie to join the opposition. The rising at the north does not appear to have been directly connected with the movement about Los Angeles, and the immediate causes for it were a little different from those operating in the south. The open revolt did not begin until December, when Alcalde Bartlett left San Francisco (Yerba Buena) to "purchase" supplies in the usual Fremont fashion, that is, by " taking " them from the ranchero'S. 2 One Francisco Sanchez, and a few others, who did not like this method of trade, captured Bartlett and his companions and decided to hold them as hostages. Colton tells us that those engaged in this undertaking were men of the better stamp men who had a permanent in- 1 Bancroft, op. cit., v, 306 et seq. 2 Ibid., 378 et seq. MILITARY GOVERNMENT [358 terest in the country. " They stated that they had taken up arms not to make war on the American flag, but to protect themselves from the depredations of those who, under color of that flag, were plundering them of their cattle, horses, and grain ; and that on assurance being given that these acts of lawless violence would cease, they were ready to return quietly to their homes." * The whole country may now be said to have been in a blaze, if it is not too great a stretch of rhetoric to apply that term to so vast a region with so few people. The Americans were threatened from San Francisco to San Diego. Flores summoned the departmental assembly, which met October 26, and, in the absence of Pico and Castro, elected him governor and commander-in-chief. 2 But the undertaking was almost hopeless from the beginning. Arms and ammunition were lacking; the camp itself was distracted with internal dissension, which actually led to the imprisonment of Flores for a few days; and the evap oration of patriotic zeal followed as a necessary conse quence. A few successes were secured, the most notable of which were the expulsion of Gillespie from Los An geles, and the battle at San Pascual (December 6) with General Kearny, who had just entered California, after a march of two thousand miles from Santa Fe, with a tatter demalion company of about one hundred dragoons, and with Captain Gillespie, who had joined the general with about thirty-five volunteers. But the battle was not a decisive victory, resulting only in a check to the Americans, and on January 8 and 9 the contest was practically decided against the Calif ornians in the engagement at San Gabriel river. Before this Flores attempted to negotiate with Stock ton, but the only hope held out to him was that of being 1 Three Years in California, 152. a Bancroft, op. cit., v, 327 et seq. 359] THE OCCUPATION OF CALIFORNIA shot as a rebel, if caught. 1 After the battle Flores trans ferred the command to Andres Pico, in the hope that he could secure better terms of peace, and set out with Castro for Mexico. Captain Fremont now appears to have attempted to undo some of the mischief of his previous career by adopt ing a policy of conciliation. By some means Pico had found out that better terms could be secured from him than from Stockton and hastened to conclude a capitulation, January 13, 1847. Th e Californians agreed to give up their arms, to take no further part in the war, and to assist in placing the country in a state of peace and tranquillity. Captain Fremont, on the other hand, released all prisoners, includ ing those on parole, promised protection to life and prop erty, the right to leave the country without let or hind rance, that no oath of allegiance to the United States should be exacted until the conclusion of peace, and pardoned all who had violated their parole. The last in particular was displeasing to Stockton, but he created no disturbance about it. 2 1 Bancroft, op. cit., v, 403 ; Sen. Ex. Doc., 30 C. 2 S., no. 31, p. 19. 2 Ibid., 20 et seq. CHAPTER IV r DIVISION OF THE SPOILS I. THE QUARREL OF THE VICTORS SCARCELY was the work of conquest ended when the victors began to quarrel over the spoils if the governor ship of such a country may be classed as spoils. Commo dore Stockton does not appear ever to have had any in structions from Washington regarding the establishment of a civil government in California. The first mention of a civil government by the Navy Department is found in the instructions o monopoly of the administration of the laws of nations. And if, as is affirmed elsewhere, the President may establish courts under the laws of nations, why may he not establish courts to administer those laws? 1 Jecker vs. Montgomery, 13 How., 515. 2 Halleck, ii, 402. 208 MILITARY GOVERNMENT One hardly knows whether to be the more surprised or confused on finding that the Supreme Court afterwards cited this case as illustrative of the principles applicable to military occupation, and in the next breath, without a word of comment, sustained the exercise of admiralty jurisdiction by the provisional court established in Louisiana by Presi dent Lincoln in virtue of his authority as a military com mander. The decisions of this court had already been legal ized by Congress, but the Court affirmed that it was "right fully established by the President in the exercise of his constitutional authority during war." 1 This was not a case of prize, but the difference would seem to be in favor of the court at Monterey. If the President cannot estab lish a court in foreign territory to administer the laws of nations, much less, it would seem, can he establish such a court on domestic territory, even when hostilely occupied, and still less one to administer the laws of the United States. During the armistice, pending the conclusion of peace, the former Mexican governor of California, Pio Pico, appears to have thought that he was, by the terms of the armistice, which allowed the Mexican civil officials freely to exercise their functions, to be restored to his position as governor. July 22, 1848, he addressed a letter to Governor Mason, " requesting that you will be pleased to expedite your orders to the end that, in the places in California occupied by the forces of the United States of America, no impediment be placed in my way towards the establishment of constitu tional order in a political, administrative, and judicial man ner." 2 The letter closed with protestations of friendship and good will, but as the return of the ex-governor was creating excitement among the natives, Governor Mason 1 The Grapeshot, 9 Wall., 133. 2 H. Ex. Doc., 31 C. i S., no. 17, p. 602. 393] THE FINAL REORGANIZATION 209 ordered his arrest. He appears to have been confined a week or more and then released. 1 After the conclusion of peace it may very reasonably be assumed that Colonel Mason was almost nonplussed at his anomalous position. He could find no authority for a mili tary officer to exercise civil control in time of peace in a territory of the United States; but, believing that to throw the management of affairs upon the alcaldes, the only civil officials in the country, would lead to endless confusion, he determined to maintain his position and keep order, if pos sible, with the rapidly diminishing force at his command. He also felt it his duty to attempt the collection of duties according to the United States tariff law of 1846. Re garding this he said: I am fully aware that in taking this step, I have no further authority than that the existing government must necessarily continue until some other is organized to take its place But the calamities which would surely follow the the absolute withdrawal of even a show of authority, impose on me, in my opinion, the imperative duty to pursue the course I have in dicated, until the arrival of despatches from Washington . . . relative to the organization of a regular civil government. In the meantime, however, my force is inadequate to compel obedience. 2 The views of the administration were somewhat tardily set forth by Secretary Buchanan in a letter (October 7) to Mr. W. V. Voorhies on the eve of his departure for California to establish postoffices and post routes. After congratulating the Calif ornians upon the glorious future before them, he expresses the President's regret that Con gress did not establish for them a territorial government 1 Bancroft, v, 588 et seq. 2 Ibid., 591 et seq. 2io MILITARY GOVERNMENT [394 and hopes that this will soon be done. Continuing he said: In the meantime, the condition of the people of California is anomalous, and will require, on their part, the exercise of great prudence and discretion. By the conclusion of the treaty of peace, the military government which was established over them under the laws of war, as recognized by the practice of all civilized nations, has ceased to derive its authority from this source of power. But is there, for this reason, no gov ernment in California? Are life, liberty and property under the protection of no existing authorities? This would be a singular phenomenon in the face of the world, and especially among American citizens, distinguished as they are above all other people for their law-abiding character. Fortunately, they are not reduced to this sad condition. The termination of the war left an existing government, a government de facto, in full operation; and this will continue, with the presumed con sent of the people until Congress shall provide for them a territorial government. The great law of necessity justifies this conclusion. The consent of the people is irresistibly in ferred from the fact that no civilized community could possi bly desire to abrogate an existing government, when the alter native presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest. This government de facto will, of course, exercise no power inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the land. ******** But, above all, the constitution of the United States, the .safeguard of all our civil rights, was extended over California on the 30th of May, 1848, the day on which our late treaty with Mexico was finally consummated. From that day its inhabitants became entitled to all the blessings and benefits 395 ] THE FINAL REORGANIZA TION 2 1 1 resulting from the best form of civil government ever estab lished amongst men. 1 Yet all this contained no very definite statement as to the character of this de facto government and the extent of its powers. Subsequent instructions sent out by the next administration (Taylor's) " presumed that a de facto gov ernment remained .... on the consent of the inhabitants .... to protect persons and property." Only the laws in force in California at the time of the conquest were thought to be still operative. Of course no regulations in opposition to the Constitution and laws of the United States could be enforced by the de facto government. With this limitation the government was to be aided and respected in the exercise of its functions by the commanding officer. 2 When General Riley heard of the failure of Congress to provide any government for California he issued a procla mation (June 3, 1849), m which he said: In the absence of a properly appointed civil governor, the commanding officer is, by the laws of California, ex officio civil governor of the country ; and the instructions from Washing ton were based on the provisions of these laws. This subject has been misrepresented or at least misconceived, and currency given to the impression that the government of the country is still military. Such is not the fact. The military govern ment ended with the war, and what remains is the civil government, recognized in the existing laws of California. Although the command of the troops in this department and the administration of civil affairs in California are, by the existing laws of the country and the instructions of the President of the United States, temporarily lodged in the hands 1 Doc., no. 17, pp. 6 et seq. 2 Secretary Crawford to Brigadier-General Riley, April 3 and June 26, 1849. Doc., no. 17, pp. 273, 276. 212 MILITARY GOVERNMENT of the same individual, they are separate and distinct The instruction of the Secretary of War made it the duty of all military officers to recognize the existing civil govern ment, and to aid its officers with the military force under their control. Beyond this any interference is not only uncalled for, but strictly forbidden. 1 The foregoing quotations show that the authorities both in Washington and California believed that at the conclu sion of the war the military government became merged into a sort of de facto civil government subject to the laws of California at the time of the conquest and of the Con stitution and laws of the United States. After the treaty the most important civil business in California the phrase ology is designedly chosen so as not to say whose business it was was the regulation of foreign trade. In regard to this General Persifor F. Smith, for a while senior officer in California, but never acting as civil governor, instructed Colonel Mason (March 15, 1849) that no duties could be exacted of any vessel or on any goods, but that if merchants so preferred, they might deposit the amount of the duties subject to the disposition of Congress and then land their wares. 2 No one appears to have made any claim that the de facto government in California had any legal right to collect duties, though General Riley appears to have come very near it in his claim, hardly well founded, that the " civil fund," which grew out of this source of revenue, had been collected and disbursed by the " governor of Cali fornia " and could be expended only on his orders. He also held that not a cent of this fund had been collected under the authority of any department of the army. 3 What ever their rights in the matter, the successive heads of the 1 Doc., no. 17, p. 776 et seq. 2 Ibid., 713. 3 Infra, 233 et seq. 397] THE FINAL REORGANIZATION 213 civil government did assume that it was their duty to pre vent the violation of the United States revenue laws by the landing of goods without the payment of duty. This assumption probably grew out of the fact that the collection of the military contribution was by the President entrusted to the so-called " civil " government. A circular of May 3, 1849, sent out to the various collectors by Halleck as " sec retary of state," referred to the original division of duties between the military and naval officers by the President's orders as though those orders were still in force. 1 Yet no claim was ever made to the right to collect revenues, either in virtue of these orders, which did originally impose this as a duty, or of any law. When paid voluntarily they were passed to the credit of the civil fund, subject to orders from Washington. The somewhat confused reasoning of the Supreme Court in the celebrated case of Cross vs. Harrison does not help us much in the search for a legal basis for the collection of this revenue. This case may be briefly stated as follows : Cross et al. wished to land goods at San Francisco with out the payment of any duties. When Mr. Harrison, one of the collectors appointed by Governor Mason after the treaty of peace, refused to allow this they paid the duties under protest and brought suit to recover them. They con tended: i. That from February 3, 1848, the date of the treaty with Mexico, until March 3, 1849, when, by act of Congress, California was erected into a collection district, no duties on foreign goods could accrue to the United States in California. 2. That from March 3 to November 13, 1849, when the collector entered office under the act of Congress, the exaction of duties by Mr. Harrison was illegal, he not being a legally appointed collector. 2 1 Doc., ibid., 757. 2 Cross v. Harrison, 16 How., 164 el seq. 214 MILITARY GOVERNMENT The Court held that duties under the war tariff were legally exacted until August, 1848, when news was received of the ratification of the treaty. For, said the court, Up to that time .... duties had been collected under the war tariff, strictly in conformity with instructions which had been received from Washington. It certainly will not be denied that those instructions were binding upon those who administered the civil government in California, until they had notice from their own government that a peace had been finally concluded. But further on it is affirmed that By the ratification of the Treaty, California became a part of the United States. And as there was nothing differently stipu lated in the treaty with respect to commerce, it became in stantly bound and privileged by the laws which Congress had passed to raise a revenue from duties on imports and tonnage. Subsequently a qualification is added to this, with no ap parent idea, however, that it was needed to harmonize the two preceding irreconcilable rulings, and it is affirmed that The territory became subject to the Acts which were in force to regulate foreign commerce with the United States, after those had ceased which had been instituted for its regulation as a belligerent right. The next question related to the time at which the war tariff ceased to be legally binding. This the Court found to be August 9, 1848, when the collector at San Francisco was informed by Secretary Halleck that the revenue laws of the United States would be substituted for the war tariff. If authority to make this change be sought, the Court think it is to be found in the civil government of Cali- 399] THE FINAL REORGANIZATION 215 fornia, which did not become defunct with the treaty of peace. This government, we are told, was instituted by command of the President, and was continued over a ceded conquest, without any violation of the Constitution or laws of the United States, until Congress should legislate for it. Now, since California was still held and governed as a con quest, the right inference is that the substitution of the United States revenue laws was made in virtue of the war power, and not because California became " bound and privileged " by these laws. That President Polk, through his " civil " government in California, might have con tinued the war tariff is the conclusion to which this part of the reasoning leads, especially when attention is called to the fact that he gave no intimation that a change was to be made until several months after sending notification of the treaty. In any event, it was his right or duty to make the change. In regard to the civil government, the Court affirmed that it was bound by the municipal laws and usages in force before the country was ceded to the United States. But in the matter of commerce, Foreign trade had been changed in virtue of a belligerent right before the territory was ceded as a conquest, and after that had been done by the Treaty of Peace, the inhabitants were not remitted to those regulations of trade under which it was carried on whilst they were under Mexican rule; because they had passed from that sovereignty to another, whose privilege it was- to permit the existing regulations of trade to continue, and by which only they could be changed. We have said in a previous part of this opinion that . . that sovereignty is . . Congress. To harmonize this statement with the preceding reasoning- of the Court is left to the ingenuity of the reader. Following the reasoning of the Court, we aifirm that if 2i6 MILITARY GOVERNMENT [400 the government of California was civil, the President had no more right to call upon Governor Mason to enforce the United States revenue laws as such than he had to call upon the governor of New York or Oregon. Even if the gov ernment of California had been charged with the collection of the revenue under Mexican rule, that law would have become a nullity by the treaty of cession, for that duty in the United States belongs only to those upon whom it has been imposed by our legislature. That the President could require the " civil " government to enforce the war tariff during the continuance of the war nobody will deny. But if, as the Court affirmed in one place, the treaty carried our revenue laws to California, to call upon it to enforce any other would have been to violate his oath to see that the laws are faithfully executed. On the other hand, to call upon Colonel Mason, not Governor Mason, to see that the revenue laws of the United States were not violated, would only have been to observe this oath. Rejecting the confused reasoning of the Court, but accept ing its conclusion that Colonel Mason acted rightly, we may confidently conclude that the " civil " government of California had no legal right to collect the customs rev enues after the treaty, either for itself or for the United States, for our revenue laws were binding there as soon as the country was finally ceded. Only a few weeks before announcing the change Colonel Mason had occasion to call attention to the fact that statutes are binding from the date of their passage, when no other time is fixed, though their retroactive effects in remote districts might sometimes be harsh. Treaties do not seem to be any exception to this rule, though Halleck cites the action of the court in ap proving the collection of duties under the war tariff until August 9 as evidence that our revenue laws do not, ex pro- prio vigore, extend over new territory from the date of 4 0i] THE FINAL REORGANIZATION 217 the treaty making- the cession. 1 Since then, however, the Supreme Court has held that our general laws do take effect in new territory from the date of the treaty. 2 This being true, no duties could be legally collected by anybody in California between May 30, 1848, and March 3, 1849, an( ^ all goods landed there were liable to confiscation. But in stead of following the strict letter of the law the authorities very wisely allowed goods to be landed, upon the deposit of the amount due on them, an act which could only be legalized by a subsequent law of Congress. The appro priation of the funds so collected to the " civil " govern ment of California could only be legalized in the same way. 1 International Law, ii, 490 et seq. 2 Dooley vs. U. S., 182 U. S., 232. CHAPTER VI THE MILITARY RULE IN CALIFORNIA I. ADMINISTRATION OF THE CUSTOMS AND THE CIVIL FUND AT first the customs department was administered on the theory that it was a part of a civil government, and for that reason civilians were appointed to act as collectors. Those appointed by Stockton and Fremont were confirmed in office by General Kearny when he assumed the office of governor. Nearly a year after the first appointments were made Governor Mason directed certain officers to settle and audit the accounts of these collectors. 1 Shortly after this orders were received from Washington which made it clear that the army officers should serve as collectors, a change which caused some grumbling. The only consolation Gov ernor Mason could give Captain Folsom was, " I am in for it here, as well as yourself at San Francisco." 2 After the treaty of peace civilians were again appointed, no doubt on the supposition that the government had again become civil. The pay of these officers was $1,000 to $1,200 per annum, in one case conditioned upon the receipts amounting to that much. 8 After the outbreak of the gold fever it was hard to secure competent men, especially at such salaries. One man refused to serve at San Francisco for less than $3,000, H. Ex. Doc., 31 C. i S., no. 17, p. 385. 2 Md., 404. Ibid., 298, 305. 218 [402 . 403] MILITARY RULE IN CALIFORNIA 219 with full authority to " appoint ancj pay such deputy col lector, clerks, appraisers, inspectors, weighers, and gaugers as may be necessary to conduct the business of the custom house." Mr. Edward Harrison, whom we have already met in the Cross vs. Harrison case, was more modest in his demands and received the appointment, September 3, I848. 1 The next year several lieutenants of the regular revenue service resigned in despair O'f being able to live upon their salaries. 2 The complaints about shortages in accounts or irregulari ties in making out accounts were very numerous and indi cate that the collectors were either dishonest, ignorant, or careless, probably the last two. Fremont's appointees gave trouble in this respect, but their irregularities must have been due to inexperience, for Colonel Mason spoke well of them in his report to Washington when they were thrown out of office by the change already mentioned, and prom ised to reinstate them, should another change make it pos sible. One was reappointed after the close of the war and appears to have served with satisfaction. 8 The other showed his zeal for his new flag by collecting $395.25 from a Chilian brig which had put in at Santa Barbara under stress of weather and reporting the same to Colonel Mason, though he was not then a collector. But the conduct of Mr. William Richardson, collector at San Francisco dur ing the first year of the American occupation, was not so satisfactory, his delinquencies amounting to several thousand dollars. The way in which this case was dealt with indicates that there must have been still some confusion in Colonel Mason's mind as to his own position and rights. Novem ber 8, 1847, he instructed the auditor at San Francisco, 1 H. Ex. Doc., 31 C. i S., no. 17, p. 660 et seq. 2 Ibid., 58 et seq. s Ibid., 410, 654, 679. 220 MILITARY GOVERNMENT [404 Captain Folsom, to secure all the evidence possible against the collector as a preliminary to putting his bonds in suit when the " proper courts " were established. 1 Just why a military occupant should await the establishment of " proper courts," probably meaning civil courts under the authority of the United States, does not appear. Several peremp tory demands for a settlement were made upon Mr. Rich ardson, but without much effect. Finally, nearly two years after dismissal from office, he offered to pay $5,000 of the amount still due in Peruvian money, and Governor Riley authorized Captain Folsom to receive that sum. 2 And yet he was described nearly a year before this offer was made, while efforts were in progress to obtain a settle ment from him, as a man who had " always been most friendly disposed towards the American government." This was given by Colonel Mason as a reason for complying with Captain Folsom' s request to admit free of duty a box of liquors and a piece of silk sent by the admiral of the French squadron as a present to Mr. Richardson and family. 3 But civilians were not the only collectors who gave cause for complaint. The army officer designated to relieve the civilian at San Diego in 1847 was described by Colonel Stev enson, commanding at Los Angeles, as "perfectly ignorant of mercantile matters and scarcely able to write his name." 4 No report was ever received from him until the com mand was changed, some eight months later, and then only upon a special order. The accounts of Lieutenant Carnes, at Santa Barbara, were sent back to him as incorrect. After repeated calls for their return, Colonel Mason finally had to threaten him with arrest. 5 Later still other irregulari ties were found. The colonel's greatest trouble seems to 1 H. Ex. Doc., 31 C. i S., no. 17, p. 417. 2 Ibid., 567, 669, 781. Ibid., 664. 4 Ibid., 426- 5 Ibid., 57Q. 405] MILITARY RULE IN CALIFORNIA 221 have been to induce his subordinates to follow the ordinary principles of careful and exact business, particularly the sending of receipts for disbursements. He seems to have been watchful even in the smallest details, such as dis allowing an account of $5.00 for blanks. Yet some of the irregularities were of a serious nature. It was found that Captain Folsom had retained $9,789.72 from the civil fund, for which he had rendered no account. This the treasurer was ordered by General Riley to charge to the captain's account on his books. 1 Numerous com plaints were made of unauthorized transfers of sums from one department to another. But Colonel Mason himself sometimes found it necessary to borrow from the " civil fund." In fact, he left California with something over two thousand dollars charged to his account. Since attempts at frauds on the revenue and smuggling are more or less common in older societies, it would have been unreasonable to 1 expect anything else in a country where society was so unsettled as in California. In Novem ber, 1847, Colonel Mason reported that there had been a great deal of smuggling and that it probably would con tinue, as the numerous bays and coves gave every facility for the landing of merchandise. The difficulty of prevent ing this was enhanced by the fact that there were no mili tary posts near several places where it had been customary to land goods. One or two good revenue cutters would, he thought, render effective aid. As a reward to informers, he and Commodore Shubrick had offered them one-half of all smuggled goods seized upon their information. 2 When an army officer presented a claim under this rule the colonel first disallowed it on the ground that he had been detailed to look after the collection of the customs. Later, how- 1 H. Ex. Doc., 31 C. i S., no. 17, p. 857. 2 Ibid., 399. 222 MILITARY GOVERNMENT [406 ever, on finding that revenue officers of the United States were entitled to a share of the condemned goods, he re versed his ruling, subject to the approval of the War De partment. 1 In case of seizure, confirmation by the com manding officer before sale was not deemed necessary. 2 Sometimes goods landed without a permit were restored when it was clear that there was no intention to smuggle. But in general Colonel Mason was not disposed to let off offenders caught violating regulations, even when they offered to pay after landing without a permit, as the regu lations had been published and such leniency would estab lish a bad precedent. 8 Indirect means of smuggling were sometimes resorted to, such as carrying several different sets of papers. The allowing of soldiers to buy for their own use goods which had not paid the duty opened another source of fraud. December 24, 1847, Colonel Mason had to instruct Lieutenant Carnes, at Santa Barbara, to look more sharply after the enforcement of the rules. One soldier, he thought, could not possibly want $400 worth of comestibles. A few months later he ordered the lieutenant to collect duties on two barrels of rum, valued at $1,240.46, which a pri vate had bought " for his individual use and consump tion." When twenty men clubbed together and bought $505 worth of merchandise, one item of which was two hundred and forty caps, " for their own individual use," he ordered the collector at San Diego to exact duties on $201, and not to tolerate such clubs in the future. 4 In some cases the collectors excused themselves by saying that they had been instructed to " let the soldiers have what they want." !H. Ex. Doc., 31 C. i S., no. 17, pp. 411, 453, 497. 2 Ibid., 449. 3 Ibid., 458, 679. * Ibid., 449, 489, 496. 407] MILITARY RULE IN CALIFORNIA 223 After the close of the war there was a rapid increase in business, especially after the discovery of gold, in conse quence of which the prevention of frauds became more difficult. August 14, 1848, Captain Folsom gave a gloomy account of the prospect before him at San Francisco: "Acts of disgraceful violence occur almost daily on board the shipping and we have no power to preserve order. To morrow morning the volunteers will be mustered out of service, and we shall be utterly without resource for the protection of public property. ... If it is possible to send a vessel of war here, it should be done at once. . . . This is now a United States port, and we are bound by our treaties to protect the commerce in it. ... This we can not do at present, and our utterly powerless condition and the lawless transactions in this port and neighborhood are a constant theme of reproach to our flag." * When Mr. James Collier, the first United States col lector, arrived in San Francisco he expressed himself (November 13, 1849) as astonished at the amount of busi ness in his office. The city was reported to contain thirty thousand people and to equal Philadelphia in its commerce. Owing to the lack of warehouses, nineteen vessels were employed for the stowing of goods, a practice which opened a wide door for smuggling. After San Francisco, San Pedro, a town of three buildings, was next in commercial importance, being the chief entrepot for smugglers. An additional cutter would be needed to stop this. As the town was twenty-five miles from Los Angeles, Mr. Collier recommended that it be made a port of entry and given a deputy collector. 2 Certain vessels built in California, both before and after the American occupation and before the treaty of peace, 1 H. Ex. Doc., 31 C. i S., no. 17, p. 613. 2 Ibid., 26. 224 MILITARY GOVERNMENT [408 were licensed by the military authorities to engage in the coast trade. After the close of the war licenses were con tinued to these vessels, some of which had been bought by Americans. This was done because the American-built ves sels were not sufficient to meet the needs of the country, and Commodore Jones recommended to Mr. Collier the continuance of the practice. Some claimed that the ves sels were naturalized by the treaty, but the collector held that they were still foreign, since California was foreign ter ritory until the ratification of the treaty, in which there was no mention of the vessels, and that they could be naturalized only by Congress. As for continuing the licenses, he had no discretionary power and could only enforce the law. He regretted that some of his countrymen might be injured by a rise in freight rates and the price of provisions, but the American ship-builders and ship-owners would receive the protection which the law intended to give them. 1 A little more than a year after Colonel Mason made his gloomy report, General Riley presented (September 30, 1849) quite a different picture: "No difficulty has been experienced in enforcing the tariff of 1846, and the revenue has been collected at a very moderate expense, considering the peculiar circumstances of the times." * Several references have been made to the " civil fund." A good account of this fund was given by General Riley, then acting governor of California, in two letters dated August 30, 1849, m which he combatted certain preten sions of General Persifor F. Smith, then the ranking officer on the Pacific coast. " In the instructions issued from Washington," said he, " to General Kearny in 1846 . . . it was directed that the duties at the custom-houses should 1 H. Ex. Doc., 31 C. i S., no. 17, pp. 29 et seq. * Ibid., 751. 409] MILITARY RULE IN CALIFORNIA 2 2$ be used for the support of the necessary officers of the civil government. The ' civil fund ' was commenced in the early part of 1847, an< 3 has been formed and used in the manner directed. The collectors have been appointed by the governor and have been subject to his orders alone. . . . The authorities at Washington were informed of what was being done and no objection was ever raised by them or by Congress. . . . On assuming command in this country as civil governor, I was directed to take Governor Mason's instructions and communications for my guidance in the administration of civil affairs. I determined to con tinue the collection of the revenue and to add the proceeds to the ' civil fund/ ... as it formed my only means of defraying the expenses of the government. The expenses are daily increasing, and, as I have no power to impose taxes in this country, I cannot carry on the government without this ' civil fund.' . . . Not a cent of it has been collected under the authority of any department of the army; nor can any officer of the army, simply in virtue of his military commission, have any control, direct or indirect, over it. ... It has been collected and disbursed by the ' governor of California,' and can be expended only on his orders. ... I am both surprised and mortified to learn that, at this late hour, an attempt is to be made to remove this money from my control, and to place it at the disposition of officers who have had no responsibility in its collection and who of right can exercise no authority over it. ... If I mistake not, the opinion that the governor of Cali fornia has no control over the ' civil fund ' is of recent origin. If, however, it now be General Smith's wish to assume a military control of the collection of duties on im ports into California, I will immediately discharge the col lectors appointed by the governors of California and sur render the entire direction of the matter to such military 226 MILITARY GOVERNMENT [ 4IO officers as he may direct. But for the money already col lected by the civil officers under my authority I alone am responsible; and until further instructions from Washing- ton, I shall continue to hold it subject to my orders only, and to expend, as heretofore, such portions of it as may be required for the support of the existing- civil government/' * The "civil fund" received increments from a few sources other than the customs revenue, such as the sale of con demned ordnance stores at Los Angeles, presumably the property of California or Mexico, the sale of certain mis sion property at San Diego, and the rents arising from the leases of the mission estates. 2 Those who had charge of it were directed to keep it separate and distinct from all other funds. Occasional neglect to do this, or transfers of sums from one fund to another without authority, brought forth the governor's rebuke. Owing to the fact that the army and navy in California were not always well supplied with funds, loans were some times made to them from the civil fund. The largest aj>- pears to have been one of $70,000 to the navy to pay the expenses of bringing emigrants from Lower California. In addition to these loans individuals borrowed sums ranging from $100 by S. E. Wood worth to $2,500 by Colonel Mason. 8 May 10, 1849, General Canby, assistant adjutant- general, ordered the immediate refunding of all sums which had been transferred to the pay, quartermaster's, and sub sistence departments. 4 The civil government of California was a success from the beginning so far as concerned the amassing of a sur plus. The collections during the continuance of the war amounted to $75,566.01. The expense of collecting this 1 H. Ex. Doc., 31 C. i S., no. 17, pp. 791 et seq., 815 et seq. 2 Ibid., 628, 796, 818. 3 Ibid., 813. 4 Ibid., 907. 4 i i ] MILITARY RULE IN CALIFORNIA amounted to only $3,342.52, leaving a net revenue of $72,- 223.49. This included $3,259.62 collected at La Paz, in Lower California. 1 After the conclusion of peace the re ceipts rose by rapid strides. Before the close of the mili tary regime the so-called civil government was able to lend the army and navy sums amounting to $978,736.67. 2 The total collection amounted to about $1,500,000." Governors Mason and Riley both appear to have en deavored to be economical and careful in their expendi tures. Up to the proclamation of peace the disbursements for the " civil " government, as reported, amounted to only $7,088.51. However, the total must have exceeded this sum, as the accounts cover only a part of the year 1847.* This did not include the salaries of collectors, which were included in the expense of collection. Army officers serv ing in a civil capacity received no extra pay. However, a subsequent act of Congress (March 3, 1849) provided that they might receive extra compensation, the amount to be de termined by the President. Officials such as Indian agents, secretaries, clerks, interpreters, judges, and jurors were the chief cause of expense. Extravagance on the part of courts in particular was guarded against, exorbitant fees being disallowed. 4 In a few cases Governor Mason was called upon to pay the expenses of some "irregular" tribu nals, but he declared that he could pay no expenses incurred in trials not strictly legal. 5 He also practiced retrench ment in the matter of pensions, declaring (June 4, 1847) that the funds in the custom-house at Monterey belonged to 1 H. Ex. Doc., 30 C. 2 S., no. 47, p. 13. 2 H. Ex. Doc., 31 C. i S., no. 72, pp. 13, 75 ** seq. 8 H. Ex. Doc., 31 C. i S., no. 59, p. 3- 4 H. Ex. Doc., 31 C. i S., no. 17, p. 419. 6 Ibid., 489, 691. 228 MILITARY GOVERNMENT [ 4I2 the United States and could not be paid out in the way of pension to anybody until his name had been placed on the pension list by act of Congress. 1 In the latter part of the military regime small sums were expended in various parts of the territory to construct jails, the lack of which had caused no little inconvenience. 2 The largest single item of expense was the constitutional convention which met in 1849. The members of this were liberally paid by General Riley sixteen dollars per day and sixteen dollars for every twenty miles of travel to and fro after which the rest of the " civil fund " was turned into the treasury of the United States. 3 II. INTERNAL ADMINISTRATION As already noticed, it was announced, both at the time of the conquest and after the conclusion of peace, that the existing laws and institutions, so far as not inconsistent with the Constitution and laws of the United States, would continue in force. Such a limitation was hardly within the competency of the conqueror even then he might have said the constitution and laws of Great Britain, or of Ger many, as well and to-day, as we have already seen, it is not allowable. July 27, 1847, General Scott's General Orders No. 20, which directed that all cases of certain enumerated crimes to which a soldier was a party, either as plaintiff or as defendant against another soldier, or a citizen of the country occupied, should be tried by court-martial or by military commissions, was proclaimed in California. But just what the local laws were was hard to determine, for not a copy could be found in print. To obviate this 1 H. Ex. Doc., 31 C. i S., no. 17, p. 320. 2 Ibid., 754, 790. 8 Ibid., 850 ; Bancroft, Hist. Cal, vi, p. 302. 413] MILITARY RULE IN CALIFORNIA difficulty Governor Mason prepared a code and sent it to the press, but failed to get it out before the treaty of peace, owing to the fact that the printers had left their shops to search for gold. 1 May n, 1849, ne announced that, in the absence of both law and precedent, the laws and usages of the states and territories in like cases should be consulted for guidance. 2 When it was learned that Congress had failed to legislate for California the code was again taken up and was published, but not in time to be of much service, as the state government soon went into operation. 3 Orders and decrees were issued from time to time as the exigencies of the case demanded, and these had all the force of law. Among them were the orders forbidding the sale of liquor to Indians and announcing the creation of offices unknown to the Mexican laws; the abolition of the Mexican law concerning the denouncement of mines, the practical aboli tion of the privileges of the clergy by declaring them amen able to the civil courts, and the introduction of trial by jury; and the defining of the right of suffrage. 4 The extraordinary officers must have been appointed to serve temporarily, for at the announcement of the treaty we find Colonel Mason writing that there were no civil officers in California save the alcaldes appointed or con firmed by himself. The alcalde was supposed to preside over the town council, when there was such a body, and to execute its ordinances. In the absence of a judge of first instance he might assume criminal jurisdic tion. This imperfect organization satisfied in a way the simple needs of the pastoral Calif ornians, but soon the con querors outnumbered the conquered, and when the popula- i H. Ex. Doc., 31 C. i S., no. 17, P- 677. 2 Mid., 762. Ibid., 795, 807. * Ibid., 294, 435, 437, 452, 476, 779- 2 3 MILITARY GOVERNMENT tion, under the influence of the " cursed thirst for gold," leaped from about 10,000 or 12,000 in 1847 t something like 300,000 in three years, it may well be imagined that the need of a better organization was keenly felt. In the course of events an effort was made to meet some of these needs by extending the jurisdiction of the alcaldes. The commission of murder on board a ship in the autumn of 1847 ted Colonel Mason to declare that such crimes could not go unpunished through lack of a higher judicial officer than the alcalde, and ordered that officer to take charge of the case. In all such cases trial was to be by jury, and the whole proceedings were to be submitted to the governor for his approval. At San Jose three men, charged with highway robbery and assault with intent to kill, were tried by a jury in an alcalde's court, found guilty, and executed without reference to the governor. When the matter was reported to him he approved what had been done, but said that it was not in his power to pay the costs of a trial not strictly legal. Just what was illegal does not appear, unless it was the execution of the death penalty, for which the governor said there was no competent civil court in California. Yet he had already authorized the ex ecution of this sentence at San Miguel without reference to himself. 1 Captain Bring, of the British barque "Janet," was tried before an alcalde for receiving deserters from tha United States navy, was found guilty and fined. Governor Mason, finding that " the fine had been imposed in a reg ular course of law," declined to interfere and directed the alcalde to imprison the captain until it was paid. 2 What the law was that authorized a court of California to try a foreigner for violating the laws of the United States it would be hard to determine. 1 H. Ex. Doc., 31 C i S., no. 17, pp. 653, 691. 2 Ibid., 595 415] MILITARY RULE IN CALIFORNIA 231 To meet emergencies special tribunals were sometimes appointed. In the autumn of 1847 sucn a court was can- vened in the Sonoma district to try three men charged with the murder and kidnapping of Indians. The bill of costs presented to the governor by the members of this court was so enormous that he refused to pay it and made out one of his own, disallowing two charges altogether one for Cap tain Brackett, who as a military officer was entitled to no extra pay in civil service, and $200 for Mr. Green as " attorney for the government," since he had not been ap pointed, and had not appeared in court. 1 In April, 1848, a special court was convened at Monterey to try three men for passing counterfeit gold coin purporting to be the coin of the United States. It is presumed that they were tried according to the Mexican law, as the governor asked the alcalde to look up that law on the subject. 2 In the place of courts of appeal the governor sometimes heard appellants. Few cases came before General Kearny, nor did he seem disposed to interfere in such as did come. Governor Mason usually refused to interfere where the cases had been decided by a jury. In a few instances Gov ernor Riley ordered a stay in execution until the case could be investigated, or carried to a higher court. 8 Sometimes appellants were curtly told to abide by the decision of the alcalde or await the organization of courts of appeal. At last the needs of the growing country for a better judiciary became so pressing that the governor appointed some judges of first instance and decided to organize the supreme court. It was the prerogative of the governor to appoint the members of this court, but he requested the people to vote for them and promised to appoint the men 1 H. Ex. Doc., 31 C. i S., no. 17, pp. 421 et seq. 2 Ibid., 540 et seq., 571. 3 Ibid., 391, 761, 681, 770, 782 et seq., 853. 232 MILITARY GOVERNMENT of their choice, if competent and eligible. Two of the three elected soon resigned and others were appointed. How ever, this court was organized only a short time before the state government went into operation and probably never accomplished much. 1 A session was held at Monterey in September, 1849, but the business before the court was very small, as no appeals had been taken. 2 It will be recalled that Sloat and Stockton allowed the officials to hold over and promised the right of election to the people. Office-seekers were not wanting, for in the election at Monterey, September 15, 1847, seven candidates appeared for the office of alcalde. The Rev. Walter Colton was elected by a plurality of sixty-eight out of three hun dred and thirty-eight votes. Some of the hold-over alcaldes refused to take the oath of allegiance to the United States imposed by General Kearny, whereupon others were ap pointed. After this the offices were filled irregularly, some times by election, sometimes by appointment. When elec tions were held the governor approved or disapproved the results before the alcalde could begin the discharge of his duties. In at least one case, at Los Angeles, he dis approved for no other stated reason than that he had not authorized the election. From other sources we learn that Colonel Stevenson thought the men elected unworthy to serve, one on account of his hatred of Americans, the other because of his ignorance and viciousness. The removal of these and the appointment of Foster produced considerable discontent at first, but this gradually wore away. 3 Some thing of a tempest was stirred up by one arbitrary removal. *H. Ex. Doc., 31 C. i S., no. 17, pp. 778, 832, 867. 2 Burnett, Recollections and Opinions of an Old Pioneer, 346. 3 Bancroft, v, 626. MILITARY RULE IN CALIFORNIA 233 At the election of September 15, John H. Nash was elected alcalde of Sonoma. For some unknown reason, not improbably favoritism, General Kearny ordered his removal from office, April 10, 1847, an d appointed L. W. Boggs in his place. But Nash refused to vacate on the ground that he had been elected under Sloat's [Stockton's?] procla mation, and denied Kearny's right to remove him. Now this Boggs was an ex-governor and had known Mason in Missouri. When he appealed to his old friend, who had succeeded Kearny, the colonel refused to revoke the order, although the people of Sonoma had petitioned for its rev ocation, saying that, while he did not know the reasons for it, he felt bound to presume that they were good and sufficient. He then ordered Captain Brackett to help Mr. Boggs search the premises of Mr. Nash and seize the papers belonging to the alcalde's office. This order created much excitement in Sonoma and Captain Brackett asked to be excused from executing it inasmuch as he expected to settle there and did not wish to incur the ill will of the people. This aroused the ire of Colonel Mason, but Lieutenant W. T. Sherman appeased him somewhat and asked to be sent up to Sonoma to make a test case of it. His request was granted and he went, taking only one man, a private. He secured his prisoner at night and left with him early next morning for Monterey. When he explained to Nash that the government was military and that the will of the commander was supreme, the alcalde confessed that he had never seen it in that light and, being now thoroughly fright ened, expressed his willingness to surrender his office. Colonel Mason treated him kindly and released him on his promise to return to Sonoma, surrender his office to Boggs, and give an account of his acts while in office. 1 1 Sherman, Memoirs, i, 30 et seq.; H. Ex. Doc., 31 C. I S., no. 17, pp. 295, 317 et seq. 234 MILITARY GOVERNMENT The right to appoint and remove from civil office, says Sherman, was never again questioned in California during the military regime. By this he must have meant before the treaty of peace, for after that not a little discontent did arise on that score, as we shall see later. When elections were held the governor insisted that they should be regular. Alcaldes had to be instructed not to allow candidates to be judges of the election, as had been done at San Jose. Shortly after the proclamation of the treaty an election was held at San Francisco by Alcalde Leavenworth, who imposed property qualifications on the voters and excluded Mexican citizens. In consequence of this, and because due notice (three weeks) had not been given, Governor Mason declared the election void and ordered another to be held. 1 Immediately after assuming command Governor Mason issued orders to the commanding officers at all posts and stations to aid the civil magistrates, when called upon, in executing the laws and carrying into effect their judicial decrees, directing them at the same time to perform this duty in a civil and courteous manner, using no more harsh ness than was absolutely necessary. Special orders for such assistance were occasionally given. The lack of prisons fre quently rendered it necessary for the civil authorities to call upon the military to guard their prisoners. In one case a bill was presented against the municipality of Santa Bar bara for the support of prisoners by the subsistence de partment. 2 Sometimes the governor had to restrain his military subordinates from interfering with civil officers. At Santa Barbara the alcalde informed Captain Lippitt that the evi- 1 H. Ex. Doc., 31 C. i S., no. 17, p. 662. 2 Ibid., 302, 317, 334, 565, 569, 657. 419] MILITARY RULE IN CALIFORNIA 235 dence did not warrant the conviction of two men charged with insulting some camp women, whereupon the captain took the men out of his jurisdiction. He also proposed to have a Calif ornian tried according to martial law for steal ing a rope from one of his soldiers. The alcalde resigned, but Governor Mason asked him to take charge again and ordered Captain Lippitt to cease from interfering in such trifling matters, citizens being amenable to military tribu nals only for high crimes. But the captain again caused trouble, all about a saddle which he demanded of the alcalde until proof was furnished that no soldier had any claim upon it. As the alcalde did not deliver it with sufficient alacrity, the captain sent a squad of men to arrest him, if the saddle was not immediately given up. The alcalde did not appreciate such high-handed proceedings and again re signed. Governor Mason then ordered the captain to re store to the alcalde his insignia of office, as also the saddle, and to allow the civil law to operate in all cases of traffic between citizens and soldiers. Colonel Stevenson also in terfered in a case where an alcalde had fined a woman for selling liquor to an Indian contrary to 'Mason's proclama tion, and ordered a stay in the execution of sentence until the matter was referred to him for approval. When Gov ernor Mason heard of this he ordered the colonel to let the law take its course. 1 But the superiority of the military was constantly asserted and sometimes acted upon. An alcalde was informed that even the order of a district commander must be obeyed. Nor did the governor hesitate to interfere directly with the decisions of the courts, when such interference seemed just and necessary. The Californians thought it no perversion of justice to retry cases which had already been decided, i H. Ex. Doc., 31 C. i S., no. 17, PP- 563, 575- 236 MILITARY GOVERNMENT [ 42O and the governor found it necessary several times to for bid this. 1 So far as concerns the legal right of the commander to interfere, nothing need be added to the words of the Supreme Court already quoted. 2 The town of Santa Barbara appears to be the only place on which a military contribution, aside from the import duties, was levied and this was done as a punitive measure. It appears that a gun disappeared from the brig "Elizabeth," which was lying at anchor there. As the thieves could not be apprehended, Colonel Mason ordered a contribution levied on the town, exempting such Americans as had, during the late revolution, contributed to the American cause. 3 The lawfulness of such an act was questionable even then. In the Franco-German war, however, still severer punitive measures were resorted to by the Germans. 4 The law as agreed upon by the Hague Conference is that " No general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible." 5 The money thus collected at Santa Barbara, $500.50, Governor Riley offered (April 30, 1849) to return to the town for the purchase or erection of a jail. A few months later he offered to duplicate from the " civil fund " what ever sum the town might raise for the erection of a jail and court-room, the sum not to exceed $6,000. 6 As good jails were scarce and very much needed, similar proposi tions were made to several other towns. 7 1 H. Ex. Doc., 31 C. i S., no. 17, pp. 292 et seq., 301, 412, 507, 565. 2 Supra, 211. 3 Doc., no. 17, pp. 573, 615. 4 Hall, Int. Law, 491 et seq. 5 Holls, 449. Doc., no. 17, pp. 754, 804. 7 Ibid., 558 ; Doc., no. 52, pp. 19, 38. 42 1 ] MILITARY RULE IN CALIFORNIA 237 In the spring and summer of 1847 several Indian agents were appointed whose duty it was to advise the gentile In dians to "be good" and look to the President of the United States as their great father, with the assurance that he always took care of his good children. The agents were also to look after the " neophyte " or Christian Indians of the missions and see that they were not oppressed by their employers. 1 The story of the missions, their secularization, the fraud ulent sales, and the consequent litigation would fill a con siderable volume. The secularization had already been made and sales had begun, had been suspended, and had begun again at the time of the conquest. In consequence of this it was hard to determine the true ownership, and the con querors adopted the policy of maintaining them in statu qua until the question of title could be settled by competent authority. But some changes were made where rights seemed incontestable, or the public good required them. Several claimants appearing for the missions of San Jose, Santa Clara, Santa Cruz, and San Juan, General Kearny ordered the Catholic priest to take charge. A special order of ejectment was issued against the American immigrants at Santa Clara, but the priest finally made terms with them and allowed them to remain as tenants. Later this priest, " Padre " Real, was inhibited from selling the mission lands under a permit given by General Castro, dated May 25 and June 16, 1846. September 17, 1849, he was re - moved from the agency of the missions for maladministra tion and for selling and leasing the mission property. After this the management of the property was entrusted to a responsible citizen. In some cases alcaldes had to be en joined from making sales of mission lands. Some immi- : H. Ex. Doc., 31 C. i S., no. 17, pp. 294, 358 et seq. 238 MILITARY GOVERNMENT [422 grants wished to settle upon the mission lands still unsold, supposing that they were subject to the preemption laws, but Governor Riley would not allow this. 1 Practically the same policy was adopted in regard to other lands. When several claimants appeared the gov ernor would only tell them to await the organization of tribunals competent to handle such matters. As the United States courts were rather slow in making their appearance, the people, in a few instances, endeavored to establish tribu nals to try cases in which the government was interested. Gold-seekers were told that they had no legal right to dig on the public lands, but would not be molested until the United States government took action on the matter, and that the right of individuals to work in particular localities of which they were in actual possession would be left to the local judicial authorities. The Mexican law on the " denouncement " of mines was abolished by Governor Mason, February 12, 1848. Soon after this he made an exhaustive examination of two denouncements made just before the abolition of the law; one was declared void be cause the law had not been complied with, and the other was left for further investigation. 2 March 10, 1847, General Kearny, as governor of Cali fornia, issued a decree purporting to " grant, convey, and release unto the town of San Francisco ... all the right, title, and interest of the government of the United States, and of the territory of California, in and to the beach and water lots" in a certain locality of said town, excepting such as might be selected by army and navy officers for government use, said lots to be sold at public auction for !H. Ex. Doc., 31 C. i S., no. 17, pp. 291, 334, 433, 436, 453, 78?, 810, 829. 2 Ibid., 476, S5i e* seq. t 740, 789. 423] MILITARY RULE IN CALIFORNIA 239 the benefit of the town. The validity of this act is dis cussed elsewhere in its relation to the character of the gov ernment under which California was held. September 30, 1847, Lieutenant W. T. Sherman informed the alcalde of San Francisco which lots had been selected for the United States. 1 Some of these lots sold as high as $600. Before the end of 1848 some changed hands at $10,000. About a week after assuming charge of affairs Governor Mason said that he had no authority to grant lands in Cali fornia, since he held only by a belligerent right, and that any grant he might make would be null and void if, at the definitive treaty of peace, Mexico should retain California. There was, indeed, not the slightest possibility that Mexico would ever recover California, but that made no difference. But, it being customary for the alcaldes to sell lots within the limits of their towns, the alcalde of Sonoma was author ized to carry out so much of General Vallejo's instructions from the Mexican government as related to the sale of lots in that town. May 9 and 15, 1849, Governor Riley in formed the alcaldes of Monterey and San Diego that they could sell such municipal lands as had been regularly granted to the town, but that the pueblo or common lands could not be sold without the authority of Congress. 2 III. EFFICIENCY OF THE MILITARY ADMINISTRATION A military governor must have troops to enforce his de crees and, on the other hand, to give protection to such as submit to his authority. The first thing to be done in California was to secure its conquest. No large force was required to do this, for in April, 1847, there were only 1,059 soldiers in the territory. iH. Ex. Doc., 31 C. i S., no. 17, PP- 291, 361. 2 Ibid., 321, 761, 765- 240 MILITARY GOVERNMENT [424 The major part of these consisted of the New York volun teers who had been mustered into service with the under standing 1 that they were to be discharged in California or Oregon at the end of the war. The fleet, of course, ren dered invaluable service on the coast. These forces were indeed sufficient to hold the country against a foe who never came to dispute it after the local insurrections described in an earlier chapter, and to overawe such of the inhabitants as may not have liked the new regime; but to give protection was another thing. Here, as in New Mexico, the Indians caused no little annoyance, especially on the frontiers, where they would swoop down upon the settlers and drive off their livestock. General Kearny said that the Indians, both wild and Chris tian, had been badly treated by most of the Calif ornians and thought themselves entitled to what they could steal as a rec ompense. He thought that a few presents, such as beads, red flannels, and tobacco 1 , would help to appease them, and made a recommendation to that effect to the Secretary of War. A few such presents were given from time to time by the governor, and agents were appointed to deal with the In dians, but their depredations continued, especially in the neighborhood of San Luis Obispo. The people could not even protect themselves for lack of ammunition, the impor tation and sale of which was prohibited by executive order. Colonel Mason did not send any troops there, but advised the alcalde to organize a company of twenty-five or thirty men and hold them in readiness to move at a moment's warning. They would be supplied with ammunition, for the proper use of which the alcalde would be held respon sible. 1 Some of the trouble with the Christian Indians arose out 1 H. Ex. Doc., 31 C. i S., no. 17, pp. 287, 496, 569. 425] MILITARY RULE IN CALIFORNIA 241 of disputes about the lands on which they resided. This was true in the San Luis Rey district in particular. Here Colonel Mason ordered the status quo to be maintained until the disputes could be settled by the proper tribunals. Captain Hunter, sub-Indian agent, was ordered to let the chiefs know that, if they desired the friendship and pro tection of the American government, they must not only abstain from depredations upon the citizens of California, but must also endeavor to prevent other Indians from committing them. He was further advised to establish some kind of police among the Indians, making them ap point their own alcaldes, and to endeavor to induce them to gain a comfortable living by cultivating the soil. 1 The difficulty of affording adequate protection may be realized by glancing at the map. The population was not numerous and the settlements were scattered from San Francisco to San Diego. In July, 1848, Colonel Mason de clared that his forces were hardly adequate to protect public property. 2 Soon after this the volunteers, who had en listed for the war, were discharged; the regulars deserted for the gold fields. The dragoons in the south, who had followed Kearny across the continent, had remained faith ful, but the colonel felt that they could not be counted on when brought to San Francisco. By September i he ex pected to have fifty soldiers fit for duty in California. 8 A rather gloomy view of the conditions in the south was presented by Colonel Stevenson at Los Angeles (August 20, 1848). For months past the Indians had frequently come boldly into the country and shot down the people in the road and in the fields, taking from them their horses and other movable property. Now that the volunteers had been dis- 1 H. Ex. Doc., 31 C. i S., no. 17, P- 438. * Ibid., 625. *Ibid., 603, 643. 242 MILITARY GOVERNMENT [426 charged and the dragoons were to be withdrawn, there was nothing to prevent them from plundering the town itself. The very best people of the town, those who had been the fast friends of the Americans in 1846, complained that, after all the sacrifices they had made, they were now to be abandoned to the mercy of the Indians and the worthless of their own countrymen. Their arms had been taken from them and now not more than forty-five old muskets, left by Fremont's battalion and repaired at the expense of the town, were to be had fit for use. The ammunition Colonel Mason had authorized him to issue would be worth less without guns. This picture he declared was not imag inary, but a true one ; and he begged, in the name of human ity and our country, that, as soldiers could not be sent, arms might be issued to the people. In consequence of these representations the order to Captain Smith to bring the troops from Los Angeles to San Francisco 1 was counter manded and they were left there until December. The in habitants of the Sonoma district were told to rely upon themselves to put down Indian depredations. 1 In addition to this paucity of troops Colonel Mason re ported (August 25) that there was not a war vessel on the coast of California. He was expecting one, but did not believe that she would remain long through fear of losing her crew. 2 A few months later he reported that while troops were needed, it would be useless to send them unless Congress provided them with pay bearing some proportion to the amount they could make in the country, and at the same time devised some laws by which deserters and those who enticed them away could be summarily and severely punished. Of the forty-six men who arrived in September 1 H. Ex. Doc., 31 C. i S., no. 17, pp. 556, 642, 645, 650. 2 Ibid., 603. 427] MILITARY RULE IN CALIFORNIA 243 only twelve remained. The dragoons did not wait to be brought to San Francisco before deserting. Of course no one was surprised at this when laborers were seen to re fuse eight dollars per day. 1 In May, 1849, practically all the forces had been concen trated in the placer district, Sacramento valley, to assist in maintaining order, in consequence of which the request for troops at San Luis Obispo could not be met. San Juan Bautista was requested to elect an alcalde, who would be entrusted with ammunition. The government practically confessed itself helpless so early as March by issuing an order to the alcaldes, Indian agents, and others, begging them to take some measures to protect society from the Mission Indians and to save from destruction the Indians themselves who*, freed from the restraints formerly imposed by the military and ecclesiastical authorities, had contracted habits of indolence and vice. The Indian agents were later said to have been of great service among the wild tribes. 2 But the Indians were not the only enemies to law and order in California. The defect in the judiciary has already been noted. Yet this, assisted by the military, seems to have met the needs of the country for a while as well as could reasonably have been expected in a new and remote country. But the discovery of gold attracted adventurers from all parts of the world, and among these were many of the most lawless class, the flotsam of the social sea. They came, too, just at the time when the military authorities were least able to cope with them. Captain Folsom and Lieutenant Har- die, writing from San Francisco under date of August 14, 1848, represented existing conditions as intolerable and the outlook as hopeless. "The most mortifying state of things 1 H. Ex. Doc., 31 C. i S., no. 17, pp. 648, 650, 711, 740. 2 Ibid., 689, 702, 758, 767, 789- 244 MILITARY GOVERNMENT [428 prevails here at this time," said the former. " Offences are committed with impunity ; and property,, and lives even, are no longer safe." In the governor's own town, Mon terey, houses were forcibly entered and property taken from the owners in broad daylight, and the public stores were pillaged with impunity. A band of outlaws ravaged the country about Santa Barbara, murdering no less than twelve persons in two weeks. Yet it was the citizens, not the military, who brought them to justice. Finally, May 6, 1849, Governor Riley issued a proclamation calling atten tion to this lamentable state of affairs, laying most of the blame for it on "General Apathy" and the auri sacra fames. In closing he expressed the hope that all good citizens would assist the civil and military officials in preserving public order. 1 At this very time there was a flourishing organization of citizens in San Francisco, but with a constitution based on principles very different from those outlined by General Riley. It was composed of the riffraff of the New York volunteers and other kindred spirits, was called the Hounds, and had its headquarters in a tent called Tammany Hall. Its object was the support of its members at the expense of the community and the general promotion of vice. On election days the members were on hand early and voted often, as in the old Bowery days, and guarded the ballot- box while it was being stuffed. Their favorite color was copper, whether in Mexican, Chilean, or Chinaman. On the night of July 15, 1849, a ^ ter ^ all-day orgy, they raided every Chilean tent that could be found and despoiled and scattered the occupants. The next morning General Apathy awoke with a start, rubbed his eyes, and speedily took what little of the law had been left into his own hands, along 1 H. Ex. Doc., 31 C. i S., no. 17, pp. 613, 680, 691, 760. 429] MILITARY RULE IN CALIFORNIA 245 with such of the Hounds as could be captured. Nobody seems to have thought of appealing to the governor for help, nor is there any evidence that he ever thought of giving any. 1 Color antipathy was also active in some of the min ing districts, where the Americans and Europeans banded together and drove out all Mexicans and South Americans. In the summer of 1849 General Riley visited the mines and reported that peace and order were in general well pre served. However, he claimed no credit for this to the de facto government of California, as the miners in each locality elected their own judicial and police officers and sustained their decisions and official acts with regularity and energy. No doubt these officers sometimes exercised powers not strictly legal, but the general result had, he affirmed, been for the preservation of order and the dis pensation of justice. 2 Regarding the character of the higher officials in Cali fornia little need be added to what has been brought out in the narrative. Perhaps enough has already been said about the adventurer Fremont, who tried to exercise the functions of governor for a while. General Kearny's term was short, but apparently satisfactory to the Californians and to his superiors. Colonel Mason ruled longest and as acceptably as could have been expected while occupying a position then regarded by everybody as so anomalous and at the same time facing problems becoming more and more complex. He had been in the army some thirty years, but had never occupied such a position before and probably had read very little about it in the books on war. A careful reading of his official papers must convince any one that he 1 Bancroft, Popular Tribunals, i, 76 et seq. 2 H. Ex. Doc., 31 C. i S., no. 17, Pp. 77 et seq. 246 MILITARY GOVERNMENT [430 realized the importance of the trust committed to him and that he desired to perform his duties in such a way as to meet the approval of his superiors and, so far as possible with the defective machinery at his command, to give the Californians a good government. He was something of a watch-dog over the treasury, but the writer is unable to say whether the sum which he borrowed from the " civil fund " was ever paid back. No detail or appeal seemed too trivial to merit his notice, whether is was ordering a man to stop taking tiles from an old uninhabited mis sion to repair a house said by him to have been burnt by Fremont's order, or directing another to return two mill stones to a Catholic priest. Just what his views were on the temperance question is not known, but he issued very per emptory orders to Captain Lippitt to break up the gambling dens and grog-shops at Santa Barbara. General Riley also was an old soldier, likewise watchful of public and private interests in small affairs. 1 Sometimes the mind which looks so closely to the smaller details lacks what is requisite for larger things. However, it would hardly be fair to attrib ute the mistakes made by the governors in their appoint ments to office to their inability to estimate men. They probably did the best they could with the information and material at hand, with society in a state of flux and flow, and under conditions which they did not feel at liberty to alter. For his subordinates Colonel Mason, in his reports, had only words of praise. H. W. Halleck, then a lieutenant of engineers, served as secretary of state from August 13, 1847, to tne en( i * tne military regime and wrote many of the executive orders and letters. Of all the men in Cali fornia he was, perhaps, the best informed respecting the 1 H. Ex. Doc., 31 C i S., no. 17, pp. 550, 649, 702. 43 1 ] MILITARY RULE IN CALIFORNIA 247 rights and duties of a military occupant. A few years after leaving California he published a book on international law, generally recognized as a standard work, in which these matters are thoroughly discussed. General W. T. Sher man also>, then a lieutenant, was in California for a while and sometimes rendered his services to the " civil " gov ernment, though never an official in it. Colonel Mason was especially warm in his praise of Colonel J. D. Stevenson, who had command of the southern district, declaring that he possessed in a peculiar degree the tact and firmness required to preserve discipline among his men and harmony among the inhabitants. Colonel Mason probably had forgotten the occasion on which he had to restrain this very officer from interfering with the civil affairs of his district, though this was done in a very courteous manner, with the statement that his motives were not questioned. The New York volunteers made no very enviable reputation in California, but those stationed at Los Angeles under the immediate command of Colonel Stevenson appear to have been more orderly than some of the others. " The time for discharge," said Colonel Stev enson, " found many a poor fellow, after two years of faith ful service, without a dollar beyond the small amount due as wages; and if they pay the few small debts they owe here, they will not have money sufficient to buy a pair of shoes ; and I know that many, if not all at this post, possess so high a sense of honor that they would go barefooted rather than leave in debt to any one in the town. Thank God, all here have acted honorably and fairly to the people of the country, and I trust they will do so to the end!" Concerning the efficiency of the service at this place Colonel Mason said : " I will warrant that at no previous time in that district were life or property so secure, the magistrates of the country so effectually supported, and industry en- 248 MILITARY GOVERNMENT [432 couraged, as during the past two years; one common cry of regret arose at the order for their disbandment; the little petty (sic) causes of complaint were forgotten in the re membrance of the more substantial advantages they had en joyed under the protection of the military." * In the spring of 1849 some friction arose between the civil and military authorities in this district, but the trouble does not appear to have been serious. But one officer of Colonel Stevenson's regiment, Captain F. ]. Lippitt, stationed at Santa Barbara, was not so suc cessful. His readiness to interfere with the civil authori ties has already been noticed. 2 When he called upon Colonel Mason (July 16, 1847) f r reinforcements to repel a threatened attack by the Calif ornians the colonel declared that this state of affairs was due entirely to the lawless acts of violence committed upon the people by the New York volunteers. Some months later Colonel Mason again wrote that he had heard many unfavorable reports of these men, one of which characterized their conduct as a " disgrace to their country." 3 Discharged soldiers were, of course, no more subject to military control than were the citizens, but some of them seem to have taken their discharge as a special license. When the three companies from Lower California were dis charged at Monterey some of them committed gross acts of pillage upon public and private property, and took forc ible possession of a public building belonging to the town authorities, which they occupied for some days and wantonly injured to a considerable extent: Deserters also affected to retain for a while the right to levy contributions upon public and private property, plundering ranches on the road 1 H. Ex. Doc., 31 C. i S., no. 17, pp. 644, 651, 767. 2 Supra, 235. 8 Doc., ibid., 330, 482. 433] MILITARY RULE IN CALIFORNIA 249 to the gold fields because unable to carry provisions with them. 1 Throughout the greater part of the military regime about the only subordinate officials were the alcaldes. The elec tion of the Rev. Walter Colton at Monterey has already been referred to. 2 He tells us that he was elected by the citizens of Monterey, but does not say how many sailors considered themselves as citizens on election day. He dis pensed justice for some time as best he could from his sense of right and a very imperfect knowledge of Spanish and American law and Californian custom. He summed up his power by saying that there was not a judge on any bench in England or the United States with powers so ab solute. A few days before the election he had already been appointed alcalde by Commodore Stockton Mr. Colton summoned the first jury ever impaneled in that part of the country. One-third of this jury were Mexicans, one-third Calif ornians, and the rest Americans. With the exception of the Americans they spoke the Spanish language. The plaintiff spoke English, the defendant French, and the wit nesses all the languages known to California. The parties to the suit accepted the verdict without a word of dissent and the inhabitants expressed their satisfaction with jury trial as affording no opportunity for bribery. But juristic duties were not allowed to interfere with ecclesiastical. " I often plan my sermons," says the alcalde, " while some plaintiff is spinning a long yarn about things in general, or some defendant is losing himself in a labyrinth of apol ogetic circumstances, . . . My text might often be, ' And he fell among thieves,' " 3 Either the alcalde's sense of right or Californian custom must have been somewhat per- 1 H. Ex. Doc., 31 C. i S., no. 17, PP- 651, 899. 2 Supra, 232. 8 Colton, Three Years in California, 45, 47, 55. 250 MILITARY GOVERNMENT [434 verted at times, judging by his own account. Fining a man ten dollars for charging eight dollars for a pair of prison- door hinges and for using angry words when arraigned by the alcalde for the excessive charge can hardly have been according to either Mexican or American law. 1 When we consider his varied duties and pursuits fishing, hunting, and running a newspaper, in addition to those already named it can hardly be surprising if irregularities some times crept in. About the time of the proclamation of peace a native lodged a formal complaint against his official conduct, but Governor Mason replied that interference was now unnecessary, as peace had been proclaimed; besides, the proper courts for the settlement of litigation would soon be established. Mr. Colton's successor, Alcalde Esquer, found the books of the land office in bad shape, the record not showing what lands had been sold by his predecessor and what were still saleable. 2 May 28, 1847, George Hyde was appointed alcalde of San Francisco, the third since the American occupation. By October i, Colonel Mason had received three petitions for his removal. As charges of a serious nature were made against him, the colonel appointed the town council a committee to investigate them and report to him. Some months later they reported that they, " having been by you entrusted with the affairs of Mr. George Hyde, would re spectfully recommend his removal from office." Thereupon the colonel called for the record of their proceedings, with the evidence on each charge. Their reply showed that only two charges had been investigated, nor was the evidence in regard to these given. 3 Bancroft thinks that most of 1 Colton, Three Years in California, 240. 2 H. Ex. Doc., 31 C. i S., no. 17, pp. 594, 761. 3 Ibid., 306, 494, 499 ** ^eq. 435] MILITARY RULE IN CALIFORNIA 2 $I the trouble was due to personal enmities, business cliques, and newspaper rivalries. About this time Mr. Hyde re signed, but later he took a prominent part in the " legis lative assembly," of which we shall hear more hereafter. Mr. Hyde's successor soon left for the mines, whereupon the people petitioned for the appointment of Lieutenant Edward Gilbert, but this Colonel Mason refused on the ground that his duties as an officer of the army would not allow it. Another man was then asked for, but the colonel refused this also and ordered an election. After two elec tions, the first being annulled by the governor for reasons given elsewhere, Dr. T. M. Leavenworth, who was elected both times, assumed the duties of the office. This gentle man seems to have been careless in some respects and arbi trary in others. His conduct was one of the causes which led to the " legislative assembly." The sweeping charges made by that body against alcaldes in general, but evidently aimed at Dr. Leavenworth, will be set forth later. The ex cuse given by Governor Riley for not investigating these charges was that there was no " legal tribunal " for that purpose; besides, there being no other magistrate in that district, he could not with propriety remove him. A specific charge was for assuming authority to order the transfer of an important prisoner to Sonoma and allowing him to escape. For this he was rebuked by Governor Riley, who informed him that only the governor could authorize such orders. Complaint followed complaint, one being from a native that the alcalde was trying to deprive him of his property with out legal measures, until Governor Riley finally overrode his scruples about a " legal tribunal " and appointed a committee to investigate the charges and see if there was sufficient cause for his removal. The same day Dr. Leaven worth was suspended from office, but was restored June i. 252 MILITARY GOVERNMENT [436 Soon after this his resignation was sent in, and was ac cepted to take effect upon the election of his successor. 1 William Blackburn served as alcalde of Santa Cruz nearly two years, being appointed by Governor Mason in June, 1847. A few weeks after this appointment a jury found Pedro Gomez guilty of wife-murder and Blackburn had him hanged two days later. When Governor Mason repri manded him for not following the law and custom of re ferring serious cases to the governor, the alcalde replied that there was no doubt of the man's guilt and that there was no use to make any fuss about it. On another occa sion he administered the Mosaic law of " an eye for an eye and a tooth for a tooth " in a trivial case which should have been settled in the nursery. 2 Among Governor Ri ley's last appointments was that of William B. Almond, whose commission was dated October i, 1849, but who did not open court until December 12, just eight days before Governor Riley laid down the reins of government which had long been slipping from his hands. Almond had been a peanut-vender, but was recom mended by the members of the supreme court, and by the Hounds, too, if we may believe Bancroft, though that fra ternity had been broken up some months before according to the same author. His jurisdiction was limited to civil cases only, and the rendering of justice in these was soon made far more lucrative than peanut selling. The judge's " ounce " (venality) became a by- word. His trials were never long drawn out. One witness would be singled out and asked to tell a straightforward story, after which the decision was rendered. In one case he assumed admiralty jurisdiction and awarded one hundred dollars salvage to a 1 H. Ex. Doc., 31 C i S., no. 17, pp. 568, 662, 749, 755, 758, 774, 782. 2 Hittell, History of California, ii, 659 et seq.; Colton, 388. 437] MILITARY RULE IN CALIFORNIA 253 boatman who had picked up a dismantled launch. But on learning that the boatman's counsel fees and court costs amounted to two hundred dollars he raised the judgment to that amount. The owner refusing to pay, the launch was sold for one hundred and fifty dollars and he was compelled to pay the other fifty. 1 But it would not be fair to estimate the character of all the alcaldes in California by those just mentioned. The few soldiers and sailors who served in that capacity do not call for notice for anything specially good or specially bad. Several Mexican names occur in the correspondence with the alcaldes. They appear to have been about on a par with others, both as to the uprightness of their intentions and knowledge of how to conduct their offices, a little better in the former, perhaps, than some who have claimed more space. 1 Bancroft, California Inter Pocula, 591 et seq.; H. Ex. Doc., 31 C. i S., no. 17, p. 832. CHAPTER VII END OF THE MILITARY REGIME I. MANIFESTATIONS OF DISCONTENT AND THE CALL FOR A CONSTITUTIONAL CONVENTION WHEN the period under review is considered as a whole, real grievances and causes of discontent are not hard to find. Nor is the reason for this far to seek. Perhaps some of the troubles might have been avoided by prompt action on the part of those with whom the responsibility rested at the end of the war, but that all of them could have been is not a conclusion so easily reached. Viewed in the abstract, the rights and duties of the mili tary occupant are simple enough. The natural inference is that the political system and private law of a country en joying a fair degree of internal peace are suited to the needs of the inhabitants and acceptable to them. Even if not, it does not appear to be the duty of the military occu pant to alter them, nor his right, except so far as his own interest and safety may be concerned. Under ordinary cir cumstances, then, one would expect the old system to be continued with a reasonable degree of satisfaction to the inhabitants. Had there been nobody in California between the years 1846 and 1850 except the people whom Commo>- dore Sloat found there when he first raised our flag at Monterey, the story of those years would have been far different from that which has been related. But suddenly California awoke from a long and dreamy sleep and her 254 [438 439] END OF THE MILITARY REGIME 255 joints cracked and her bones ached as did those of Rip Van Winkle after his long sleep beside the Hudson, with this difference, however her pains were those of growing youth, not of decrepit old age. The bonds of society began to loosen with the very land ing of the Americans; or perhaps it would be more nearly correct to say that the new society which was forming there soon realized the necessity of again drawing closer the bonds which had been loosened or broken in the weary trail over the plains or the long voyage by sea. A gov ernment administered under the old laws and on the old principles might have satisfied the needs of the Calif ornian asleep in the sun or of the Mexican twanging the strings of his guitar or dancing the gay fandango, but a new life was pouring upon the shores of the Pacific. To endeavor to confine this in the old shackles was only to repeat the mistake of putting new wine into old bottles. Where the saving strength lay we shall soon learn. 1 We are told that some discontent was manifested by the Calif ornians over the failure of their new masters to keep Commodore Stockton's promise that they should share in their own government, at least to the extent of electing their own local officers, but if such discontent ever really existed, it never became serious on the part of the natives. A question of vital concern was that of the taxes. Alcalde Colton has left us an epigrammatic, not to say hysterical account of California's woes in this respect : " Through the exactions of the customs-house the comforts and neces saries of life were oppressively taxed. No article of food or raiment could escape this forced contribution ; it reached 1 It is hardly necessary to repeat here that the delay on the part of Congress in providing a government for California was caused by the inability of the political parties in that body to come to an agree ment over the question of excluding slavery from the new territory. 256 MILITARY GOVERNMENT [440 the plough of the farmer, the anvil of the smith ; the blanket that protected your person, the salt that seasoned your food, the shingle that roofed your cabin, and the nail that bound your coffin." 1 There is other evidence that the tariff pro claimed by order of the President in 1847 was slightly bur densome, but it was generally acquiesced in, at least till the end of the war. 2 What was done by the authorities in California to lighten the burdens that were most oppressive has already been brought out in the course of the narrative. Nevertheless, some of the policies connected with the tariff appear to have been in effect oppressive. One of these was to exact duties in lawful money. Since the amount of circulating medium was small and the expenses of the government were very light, this policy soon resulted in the congestion of a large part of the ready money in the territorial chest. To relieve this situation the governor for a while allowed the collectors to receive gold dust on de posit, apparently at a higher rate than the dust then com manded in San Francisco, its value having depreciated owing to the lack of coin and of- minting facilities. Still one must believe that not a little of the discontent was due to the previous training of the Americans, for it was they by whom the restiveness was manifested. Recalling the lessons conned in their school histories, they now declared that they were being taxed without their consent, and, a thing which aggravated the situation all the more, were not compensated with a government competent to secure liberty and property. The American mind is nothing if not legal, a fact which added all the more to the odium with which the government of California was regarded, since many be*- 1 Three Years in California, 397. 2 Memorial by California's Senators and Representatives elect, H. Misc. Doc., 31 C i S., no. 44, p. 3. 441 ] END OF THE MILITARY REGIME 257 lieved that its right to existence ceased with the conclusion of peace. 1 Moreover, the very name of military govern ment was odious to Americans. Had they not carefully subjected the military to the civil power in their funda mental law? To the feeling of hatred of military govern ments in general was added that of contempt for this ona in particular; for had it not confessed its weakness in acknowledging that it had no powers of legislation and in telling the people that they must look to themselves for protection ? The feeling of need for a government of defined powers found expression so early as February, 1847, m * ne de mand of Dr. Robert Semple, editor of the California Star, for a constitutional convention. The doctor justified the demand by the declaration that alcaldes all over the country were " assuming the power of legislatures, issuing and promulgating their bandos, laws and orders, and op pressing the people." 2 If there was any alcalde assuming such powers at the time, it must have been the doctor's own partner, the Rev. Walter Colton, for we have seen elsewhere that he boasted of powers greater than those of any judge in England or the United States. But such of the natives as had held over probably were astonished at this charge. Sometimes complaints were made of stretches of authority, in the abuse of which American officers must share the blame; but complaint was also made of the powerlessness of the alcaldes, and the governor occa sionally had to order them to assume greater authority. Later on the alcaldeship became the centre around which gathered a struggle of no little import. !H. Misc. Doc., 31 C. i S., no. 44, PP- 4 ** seq.; Burnett, Recol lections and Opinions of an Old Pioneer, 294, 311 et seq. 2 Bancroft, vi, 261. 258 MILITARY GOVERNMENT [442 About the time that the tariff began to be something of a real burden, Dr. Semple published an article (October 21, 1848) in which he argued against the legality of these ex actions, declaring that the ports of California were " as free as the island of Juan Fernandez " until the revenue laws of the United States were extended over them. 1 At the same time the discontent was being fomented from with out. The motives back of the letter of Senator Benton to the people of New Mexico and California may not have been probably were not very bad, but the letter itself must be characterized as remarkable, not to say seditious. Writ ing under date of August 27, 1848, he said: While your condition is anomalous and critical and calls .... for the most exalted patriotism on your part, the tem porary civil and military government established over you, as a right of war, is at an end. The edicts promulgated by your temporary Governors (Kearny and Mason, each an ignoramus) so far as these edicts went to change the laws of the land, are null and void, and were so from the beginning . . . Having no lawful government, nor lawful officers, you can have none that can have authority over you except by your own consent. Its sanction must be the will of the majority. I recommend you to meet in convention* provide for a cheap and simple government and take care of yourselves until Congress can provide for you. Imports which have paid no duties to the United States should pay them to you moderately, so as not to repress trade, OT burthen consumers: say 20 per centum on value whence imported. 2 Just when this letter was received in California is not known to the writer. It was published in the Alia Call- 1 Bancroft, vi, 266. * Niles, Ixxiv, 244. 443 ] END OF THE MILITARY REGIME 259 fornia of January n, 1849. A month before this the local movement for the organization of a government for Cali fornia had begun to take definite shape. December n, 1848, a public meeting was held in the alcalde's office at San Jose, over which Charles White, the former alcalde, presided. This assembly called a convention to meet at San Jose on the second Monday in January to form a civil government, and elected three delegates to it. This call was concurred in by meetings held at San Francisco December 21, at Sacramento January 6 and 8, and at Mon terey some time in January. The resolutions adopted at San Francisco claimed that the duties collected in California since the treaty of peace rightfully belonged to California. Those adopted at Sacramento recited that, Congress having failed to extend the laws of the United States to California, the citizens were left without any laws for the protection of life and property; and that, in view of the frequency and impunity with which crimes were committed, it was neces sary and proper to form a provisional government to enact laws and appoint officers to administer them until Con gress should see fit to extend the laws of the United States. Both of the latter assemblies appointed committees of corre spondence and suggested March 5, 1849, as tne day o * meeting. Soon afterwards, however, the San Francisco committee proposed a postponement to May 6, on account of the inclemency of the weather and the prospect of action by Congress. The postponement was carried over the pro tests of the Sacramento delegates, and later the meeting was again deferred till the first Monday in August. Noth ing ever came of this call. 1 The chaotic condition of affairs was now pressing so heavily that three districts, Sonoma, Sacramento*, and San 1 Bancroft, vi, 269 et seq.; Burnett, 296, 317; Colton, op. cit., 373. 2 6o MILITARY GOVERNMENT [444 Francisco, took measures for the organization of local legis lative bodies. Those of Sonoma and Sacramento soon dis solved, but that of San Francisco deserves more extended notice. December 27, 1848, an election was held at San Fran cisco for a town council, an instrumentality of government authorized by Governor Mason more than a year before. A majority of the old council declared this election void because unqualified voters had been allowed to participate, and ordered a new one for January 15, 1849. The Alta California tells us that four-fifths of the citizens regarded this as an unwarranted assumption and refused to partici pate in the January election. However, an election was held and resulted in two sets of councilmen claiming office at the same time. The situation soon became serious and a public meeting was called for February 12. When this body met it was asked to pass upon a sort of constitution, consisting of a preamble and two articles of several sec tions, prepared in advance by Mr. Hyde, the former alcalde. This constitution provided for the election of a legislature to make laws not repugnant to the Constitution of the United States or the common law, and of three justices of the peace, all to hold office one year, unless sooner super seded by competent authorities of the United States gov ernment, or by the prospective provisional government, or by action of the people of the district. After adopting this constitution the assembly called for the resignation of both the town councils and appointed a committee to see that the request was complied with. Monday evening, March 5, 1849, tne " Legislative As sembly of the District of San Francisco " met at the Public Institute and proceeded to business. It was a unicameral body of fifteen members and organized by the election of Francis J. Lippitt as speaker. A special committee of three 445] END F THE MILITARY REGIME 2 6l was then appointed to confer with the judges of the dis trict and report a code of laws as soon as practicable. A temporary treasurer was appointed and empowered to re ceive the funds from the officers of the late government. A committee was then appointed to wait upon General Per- sifor F. Smith and Commodore Thomas C. Jones, the senior military and naval officers in California, and secure their approval of the " assembly's " work. In justifying the "assembly" the committee said in sub stance : The Mexican law had been declared to be in force, but had never been promulgated to the people. The only ex isting judicial officer, the alcalde, never could, and never did, administer that law; but all civil and criminal cases were determined according to his notions of right and wrong. His will alone was law, and this arbitrary power had been abused for the purpose of gratifying personal malice and of promoting his aggrandisement. Appeals were sometimes heard by the governor, sometimes the right of appeal was denied or evaded. This condition of affairs led inevitably to the conclusion that the Mexican law had never been actually in force since the American occupation and that there was no sanction of government in California. The committee further were of the opinion that this was the view of the President and of Congress; for, if the Mexican law had been in use, there must necessarily have been a government organized de facto, requiring an executive power to see that the law was duly administered. It would have been the duty of the President to nominate, and of the Senate to confirm, an executive for that purpose. The President had said in his last annual message that he had " advised " the people of this territory, upon their " pre sumed consent," to submit to the government set up by the military as the government de facto, which it was not. This advice, though never received until this time, had been 262 MILITARY GOVERNMENT [445 followed to a certain degree until the system became too oppressive. As the President had merely advised, and left the matter to the consent of the people, it was clear that the consent of the people must first be obtained before the government could be de facto in force; and, without that consent being given, they had the right to create any gov ernment deemed necessary for their protection. General Smith merely expressed his opinion as to the legality of their action and gave some advice for the future. The military government set up in the course of the war had, he said, been continued, after the treaty of peace, as a government de facto, which could be superseded by Congress alone, that body having exclusive power to legislate for the territories. The consent of the people must be pre sumed, because no people would intentionally fall into a state of anarchy, which would be the only alternative were the de facto government abrogated before Congress pro vided another. He did not question their motives, but thought that the opinion of those in authority at Wash ington, which was decidedly against the proposed action, should be deferred to. There was not only the disposition, but also the law and power, to remove and punish any officer clearly proved to be guilty. 1 This was not, however, the kind of advice which the "legislature" was seeking and it pursued the uneven tenor of its way. May i General Smith reported that judges were being appointed with a view to trying certain cases in which the government was interested before the estab lishment of the United States court. It was not his pur pose to employ the military force to overthrow these usur pations, unless absolutely driven to it, but he asked for the 1 H. Ex. Doc., 31 C. i S., no. 17, pp. 729 et seq.; Bancroft, vi, 271 et seq.; Burnett, 307 et seq. 447] END OF THE MILITARY REGIME opinion of the attorney-general as to what course Governor Riley should pursue to stop the proceedings of these illegal tribunals. 1 At last Governor Riley appears to have realized the neces sity of taking some action. The course adopted was to suspend Alcalde Leavenworth, the chief occasion of the trouble, and order an investigation of his conduct, with the results already described. 2 On the same day he issued a soothing proclamation, saying that he had been directed by the Secretary of War, while acting as governor of Cali fornia, to use the military to assist the civil authorities in executing the laws and maintaining public tranquillity. All good citizens were called upon to give their cordial aid and cooperation in this work. 3 Meantime the " legislative assembly " continued its ses sions, enacting laws, creating and filling offices, such as register, sheriff and treasurer, and imposing and collecting taxes. The office of alcalde was abolished, and when the people had elected three justices Dr. Leavenworth was ordered to hand over the records of his office to one of these, Myron Norton, who had presided at the primary assembly. Dr. Leavenworth, however, was not so ready to obey and had to be forcibly dispossessed. This action called forth another proclamation (dated at Monterey, June 4) from Governor Mason, in which he re cited the misdeeds of " a body of men styling themselves ' the legislative assembly of the district of San Francisco ' : and warned all persons " not to countenance said illegal and unauthorized body, either by paying taxes or by sup porting or abetting their officers." All good citizens were further called upon to assist in restoring the alcalde's rec ords to their lawful keeper, and in sustaining the legally l H.Doc.,idid.,740. * Supra, 251. 3 H. Doc., idid., 758, 760. 264 MILITARY GOVERNMENT [448 constituted authorities of the land. The next day he gave notice of the acceptance of Dr. Leavenworth's resignation, appointed judges and inspectors of elections, among whom were some who had taken part in the " assembly," and ordered them to see that all vacancies in the town govern ment were filled. 1 Along with these appeared another and more important proclamation, dated June 3, 1849. The first part of this paper, which attempted to justify the general's claim to the position of governor and to remove the prejudice against the de facto government by declaring that it was civil and not military, has already been quoted. 2 As some endeav ored to justify the proceedings of the legislative assemblies by comparing the condition of California to that of Oregon, where the people had assumed legislative powers, the gov ernor now pointed out that their conditions were not sim ilar. Oregon was without laws, while California had a system of laws which, as in the case of Louisiana, con tinued in force, so far as not in conflict with the Consti tution and laws of the United States, until altered by com petent legislative authority. As Congress had failed to organize a new territorial government it had become his imperative duty to take some active means to provide for the existing wants of the country. This could best be done by putting in full vigor the administration of the existing laws and completing the organization of the civil govern ment by the election and appointment of all officers recog nized by law. Accordingly it was ordered that elections be held for certain officers, especially the judges of the supe rior court, prefects and sub-prefects. At the same time delegates should be chosen to a convention which should 1 H. Ex. Doc., 31 C. i S., no. 17, pp. 773 et seq. * Supra, 211 et seq. 449] END OF THE MILITARY REGIME 2 6$ meet September i, to form a state constitution, or a terri torial organization, to be submitted to the people and then to Congress, The districts were named and a specific num ber of delegates was allotted to each, with the proviso that, if any district should think itself entitled to a greater num ber of delegates, it might elect additional ones whose ad mission would depend upon the will of the convention. The places for holding the election and the qualifications for suffrage also were prescribed. The proclamation closed with the statement that this was the course advised by the President and by the Secretaries of State and War as most likely to avoid the innumerable evils which would neces sarily result from any attempt at illegal local legislation. For this reason it was hoped that the good citizens would approve the plan and unite to carry it out. 1 The information upon which this action was taken must have been unofficial, for the Hon. Thomas Butler King, the confidential agent of the new administration, did not reach San Francisco until June 4. As he did not stop at Mon terey his instructions cannot have been communicated by him to General Riley. 2 However, the general's action was in harmony with those instructions which ordered Mr. King to " assure them [the people of California] of the sincere desire of the Executive of the United States to pro tect and defend them in the formation of any government, republican in its character, hereafter to be submitted to Congress, which shall be the result of their own deliberate choice. But let it be, at the same time, distinctly under stood by them that the plan of such a government must originate with themselves, and without the interference of the Executive." 3 1 H. Doc., ibid., 776 et seq. 2 Ibid., no. 59, p. 5. s Ibid., no. 17, p. 10. 266 MILITARY GOVERNMENT June 14, the Alta California contained an " Address to the People of California from the * Legislative Assem bly/ " a paper prepared several days before. After speak ing of the mixed character of Californian society, the ad dress continued: But, perfectly anomalous as may be the state of our popu lation, the state of our government is still more unprecedented and alarming. We are in fact without government a com mercial, civilized, and wealthy people, without law, order, or system, to protect and secure them in the peaceful possession of those rights and privileges inestimable, bestowed upon them by their Creator, and holden by the fundamental principles of our country, to be inalienable and absolute. For the first time in the history of the " model republic," and perhaps in that of any civilized government in the world, the Congress of the United States, representing a great na tion of more than twenty millions of freemen, have assumed the right, not only to tax us without representation, but to tax us without giving us any government at all thus making us feel, endure, and bear all the BURTHENS of government, with out giving us even a distant glimpse of its BENEFITS Under these circumstances, and impressed with the urgent necessity of some efficient action on the part of the people of California, the Legislative Assembly of the district of San Francisco have believed it to be their duty to earnestly recom mend to their fellow citizens the propriety of electing twelve delegates from each district to attend a general convention to be held at the Pueblo de San Jose on the third Monday of August next, for the purpose of organizing a government for the whole Territory of California, .... and to form, if they upon mature deliberation should deem it advisable, a State Constitution, to be submitted to the people for their ratification or rejection by a direct vote at the polls From the best information, both parties in Congress are anxious that this should be done. 1 1 Burnett, 320. 45 1 ] END OF THE MILITARY REGIME On its face this appeared like an open defiance of Gov ernor Riley, since he had appointed a different time and place for holding the convention. An editorial paragraph explained that the " Legislative Address " had been pre pared and adopted before the publication of General Riley's proclamation in San Francisco, and that it therefore had no reference to* or necessary connection with that docu ment. Internal evidence shows that it was prepared after the arrival of the "Edith," May 28, and possibly after that of Mr. King, June 4, with the information that the revenue laws had been extended to the new territory. Mr. Peter H. Burnett, 1 who had presided over the Sacramento meet ing in January and had now become a leading member of the " legislative assembly," prepared the " Address," in entire ignorance, he says, of General Riley's intended procla mation. But whatever may have been the circumstances of its preparation, it could have been suppressed, had its sponsors been disposed so to do, for the governor's procla mation was known in San Francisco June 9, five days before the " Address " appeared. June 12, a " large and enthusiastic mass-meeting of the citizens of San Francisco" was held in Portsmouth Square. Mr. Burnett first addressed the meeting, and closed by pre senting the Hon. Thomas Butler King, who "responded 1 Peter H. Burnett was born in Nashville, Tennessee, November 15, 1807. Nashville was then a pioneer settlement and was thoroughly imbued with the pioneer spirit. As civilization moved westward he kept pace with it, and finally landed in Oregon, where he arrived in time to take part in the popular movement for the organization of a government and was elected a judge of the superior court. The dis covery of gold in California proved the magnet which drew him to that country. Here also he took a leading part in public affairs and sought to apply the principles of squatter sovereignty which he had seen carried out in Oregon. He was prominent in the movement for a state government and was elected first governor under the new constitution. 2 68 MILITARY GOVERNMENT [452 to the call with his accustomed eloquence and ability." After a few more speeches resolutions were brought for ward, the first of which declared that, as Congress had failed to act, the people of California had the undoubted right to organize a government for their own protection. Two others called for a convention to form a constitution for a state government and invited all to unite in the effort " to establish a government in accordance with the Constitu tion of our beloved country." If this resolution was adopted, a committee of five was to be appointed to cor respond with the other districts, fix an early day for the election of delegates, and appoint the time for the meet ing of the convention. Some slight opposition to these resolutions was manifested in the discussion. An amendment was proposed for the adoption of the days appointed by General Riley. This, however, was opposed by Colonel J. D. Stevenson and was voted down, whereupon the original resolutions were adopted. 1 Ten days after this meeting was held Governor Riley issued another proclamation making further regulations for the election of delegates and officials. In closing he said: " It may not be improper here to remark that the instruc tions from Washington, received by the steamer " Panama," since the issuing of the proclamation of the 3d instant, fully confirm the views there set forth; and it is distinctly said m these instructions that ' the plan of establishing an in dependent government in California cannot be sanctioned, no matter from what source it may come.' ' This warning from Secretary Crawford was called forth by a sentence in a letter from General Smith, dated Mazat- lan, February 15, 1849, which read: "I find some persons 1 Burnett, 322 et seq. 2 H. Doc., ibid., 785. 453] END OF THE MILITARY REGIME 2 6o going out armed with Colonel Benton's letter to set up a government for themselves." 1 Exactly what Mr. Craw ford meant by " independent government " is not clear. He does not appear to have had in mind a government absolutely independent of the United States, but one set up on the lines suggested by Senator Benton and in control of the revenue. Such a government, said Secretary Craw ford, would set aside the laws relating to the customs and the postoffice, which had been extended to California, a thing which the President could not tolerate. 2 Had Gov ernor Riley quoted the entire paragraph, the people might possibly have guessed at a meaning which would have harmonized it with the instructions to Mr. King, but with the one brief sentence given they could only be mystified and exasperated. The idea of instituting a government in dependent of the United States does not appear to have occurred to anybody and the thought of such a thing was repelled as a libel upon the people of California. If the quotation did not refer to this, what did it mean? Were they now forbidden to institute a government upon their own initiative, a thing they had been told by Mr. King to do ? 3 That the Administration had no notion of dis couraging the movement for a state government is shown by a letter from Secretary Crawford, dated June 26, 1849. In this he said : " The opinion is advanced that it is the right of the people of California to assemble by their dele gates and adopt a form of government which, if approved by Congress, may lead to their admission into the federal Union as one of the confederated States." * The publica tion of the brief extract was unfortunate and only added to the general irritation. The " legislative assembly " 1 H. Doc., ibid., 710. 2 Ibid., 273 et seq. 3 Burnett, 327 et seq. 4 H. Doc., ibid., 276. 270 MILITARY GOVERNMENT [454 took a parting shot at the governor by declaring his procla mations of June 3 and 4 "uncourteous and disrespectful." 1 Meantime the committee of five appointed by the public meeting of June 12 had gone to work and soon found that the other districts were disposed to concur in the dates fixed by Governor Riley. Then the committee not very grace fully retired by declaring that they did not recognize " the least power, as a matter of right, in Brevet Brigadier- General Riley to ' appoint ' a time and place for the elec tion of delegates and the assembling of the convention," but that, as these matters were subordinate to the great leading object the attempt to form a government in which all should be united, they recommended concurrence in the time and place mentioned by the general. They fur ther expressed the opinion that some localities, the mining districts in particular, had not been given a just proportion of the delegates and recommended the selection of an in creased number. 2 Before leaving this subject it is proper to remark that the friction appears to have been more formidable on paper than it was in reality. June 30, General Riley reported that he had visited San Francisco and had found that the mere respectable members of the so-called "district assem bly" were convinced of the impropriety of the course pur sued by that body and that all difficulties would be amicably arranged. All were desirous of securing a state govern ment, but they did not like the idea of being dictated to by a military man, a thing which they regarded as not only illegal, but as somewhat odious, considering that the mili tary should always be subject to the civil power. Neither appears to have seriously questioned the motives of the 1 Hittcll, History of California, ii, 716 et seq. 2 Burnett, 325 et seq. 455] END OF THE MILITARY REGIME 271 other and in the end it became mainly a question of tech nical legality. Speaking of General Riley, Mr. Burnett, one of the leaders of the assembly, said : " I bear a willing testimony to his integrity and patriotism. I afterwards met him in September, 1849, a ^ Monterey, during the sit ting of the Convention, and had several friendly inter views with him. In one of these he said to me very frankly : ' Burnett, you may be correct in your views in regard to the legal right of the people of California to form a pro visional government. I am no lawyer, but only a soldier, and I know how to obey orders; and when my superior officer commands me to do a thing, I am going to do it.' There was no occasion to argue against that conclusion; and, had there been such an occasion, it would have been idle to contest the determination of that honest and brave old man." 1 II. FORMATION OF THE STATE GOVERNMENT The elections were held on the appointed day, August i, 1849, an d by September 3 the delegates were ready to organize. The sessions were held at Monterey, in Colton Hall, a stone building erected by Alcalde Colton, with the help of convict labor, and used for school purposes. The convention organized by electing K. H. Dimmick chairman and Wm. G. Marcy secretary, both of whom were natives of New York. In transmitting the certified list of dele gates Secretary Halleck recommended the admission of cer tain additional delegates whose names were inclosed. The number of those who actually participated in the work of the convention was forty-eight. Of these six were natives of California; the rest had come from different parts of the United States, New York being represented by nine, 1 Burnett, 333 et seq. 272 MILITARY GOVERNMENT [456 and a few from foreign countries. . In the final organiza tion Dr. Robert Semple was made president. Among the prominent members were H. W. Halleck, still serving as secretary of state under Governor Riley, and Thomas O. Larkin, a native of Massachusetts who had gone to Cali fornia in 1832, had been our first and last consul there, and was at one time supposed to be the richest man in America. Several others were then, or afterwards became, prominent in the affairs of California. From the foregoing it may be surmised that the con vention was not lacking in ability, despite the conditions under which it had been brought together. Its work was done rapidly but reasonably well because of the " slavish copying " of the constitutions of New York and Iowa. No objection was raised by the southern delegates to the ex clusion of slavery, but the debate waxed warm over the settlement of the boundary, in which the question of slavery was involved. The insinuation raised in some quarters that the convention was awed or influenced by Governor Riley was denied by the first Senators and Representatives as an unjust assault upon the character of the members and upon the fame and integrity of the governor. 1 Mr. King also denied that he had any secret instructions from the President, or any one, to influence the people of California on the subject of slavery, and declared that they would bear witness that he had not sought to influence them. 2 The schedule attached to the constitution provided that all laws in force at the time of the adoption of the consti tution and not inconsistent therewith should continue until altered by the legislature, and that the legislature should provide for the removal of all pending causes to courts 1 H. Misc. Doc., 31 C. i S., no. 44, p. 14. * H. Ex. Doc., ibid., no. 59, p. 5. END OP THE MILITARY REGIME created by itself. The executive of the existing govern ment was requested to submit the constitution to the people for ratification or rejection on November 13. At the same time state officers and two members of Congress were to be elected. If the constitution should be ratified, the legis lature was to meet and the state officers were to be in stalled December 15, or as soon thereafter as practicable. The constitution was signed October 13, after which, says Bancroft, the members drew a sigh of relief and voted to have a ball. 1 Meantime Governor Riley continued to administer the government as before. Indeed, he appears to have looked after it more carefully than before the assembling of the convention. Many officers were appointed, such as judges of the first instance, district attorneys, prefects, and notaries public, and plaintiffs were now directed to lay their griev ances before the proper tribunals, instead of the governor, with the full assurance that justice would ultimately be done. The governor probably had some fears now that the remainder of the " civil fund " would not be turned over to the new state and began to administer it with a free hand, giving several large sums to municipalities for the erection of jails. This policy of administrative activity was followed up by Governor Riley to the very end of his term, so that by the time he surrendered the reins of power the new administration found a more or less organized system already in existence, though much creative and adjusting work still had to be done. 2 In accordance with the wish of the convention, Governor Riley issued a proclamation, October 12, submitting the constitution to the people for ratification or rejection. While 1 Bancroft, vi, 284-304; H. Doc., no. 17, pp. 822, 861 et seq. 2 H. Doc., no. 52, pp. 18-40. 2^4 MILITARY GOVERNMENT [458 expressing strong doubts as to the legality of putting the new government into operation before it was passed upon by Congress, he declared that he would, at the appointed time, cheerfully surrender his powers to whomsoever the people designated as his successor, unless otherwise ordered from Washington. 1 December 12, Governor Riley announced that the constitution had been ratified by an almost unan imous vote, in consequence of which he declared the con stitution of California ordained and established. In regard to this election the memorial of the Senators and Repre sentatives to Congress said : " No attempt was made to mis lead or control public opinion in relation to the constitu tion. . . . The truth is, that no political result in the his tory of any nation is more surely the honest expression of a public opinion founded in reason, reflection, and delib erate judgment than the ratification afforded by the people of California to their constitution." The legislature met about the middle of December. On the twentieth Governor Riley yielded his authority to the Hon. Peter H. Burnett, who had been elected governor, and was installed on that day. In announcing this fact Governor Riley said: A new executive having been elected and installed into office, in accordance with the provisions of the constitution of the State, the undersigned hereby resigns his power as governor of California. In thus dissolving his official connection with the people of this country, he would tender to them his most heart felt thanks for the many kind attentions, and for the uniform support which they have given to the measures of his admin istration. The principal object of all his wishes is now ac complished the people have a government of their own choice ; one which, under the favor of Divine Providence, will secure 1 H. Doc., no. 17, pp. 819, 861. 459] END OF THE MILITARY REGIME their own prosperity and happiness, and the permanence of the new state. 1 Thus the " anomalous " government which had admin istered the affairs of California for several years was suc ceeded by another hardly less anomalous. For, though a so-called state government was now in operation, California was not admitted to the Union until September 9, 1850. This solution of the difficulty was quietly acquiesced in at Washington. To General Riley's letter (October i, 1849) announcing his intention to yield to the new state government Secretary Crawford replied (November 28) : "As the arrangements contemplated by you may already have been made, any instructions from this department con trary to your views on the subject might militate against the peace and quiet of the community and be productive of evil. The first consideration is a due observation of law and order; and this, it is hoped and believed, will be attained under the new state of things. It is not doubted that Congress will either recognize the constitution which it is supposed the people of California have formed and adopted or provide a territorial government for them. In either event the officers of the army will be relieved of the necessity of participating in civil matters, so inconsistent with their appropriate public duties, and under circum stances so embarrassing, by the absence of legislative author ity to guide and control." * i H. Doc., no. 52, p. 40. * H. Doc., no. 18, p. 265. BOOK III ALASKA AND OUR INSULAR POSSESSIONS CHAPTER I ALASKA THE treaty by which Alaska was acquired from Russia was proclaimed June 20, 1867. Article III stipulated that such of the inhabitants as preferred to remain in Alaska, with the exception of uncivilized tribes, should be admitted to the enjoyment of all the rights, advantages, and immun ities of citizens of the United States and protected in the free enjoyment of their liberty, property, and religion. 1 The reader will at once notice that this treaty, while promising citizenship, differed from previous treaties of cession in making no promise of incorporation into the Union. The writer knows of no reason given at the time for this deviation, but supposes that everybody thought that the fitness of Alaska for statehood was a possibility too remote for consideration. The country was soon taken possession of by a small contingent of the army and a few treasury officials were sent out to enforce the United States customs laws, which were extended by act of Congress in July, i868. 2 The in ternal revenue laws were not extended till later. It would hardly be correct to say that a government of any kind was established. So much as existed for some time was pater nalistic, presumably with beneficent intentions. One of the commandants acknowledged himself unable to characterize 1 Treaties and Conventions (U. S.), 742. 2 See Reports of War and Treasury Departments, 1868. Also Atlantic Monthly, November, 1898. 463] 279 2 8o MILITARY GOVERNMENT [464 it, and recommended that either a military or a civil gov ernment be established with power and responsibility some where. It was not republican in the opinion of a recent attorney-general. 1 There was no need of an elaborate political system, for the civilized and half-civilized in habitants were few in number, about 2,000, besides 2,500 Aleuts, a child-like people whom our courts have since held :to be citizens. Nobody in Washington knew or appeared to care much about Alaska, and things went on in this way for some time. Occasionally Congress enacted or extended a law. In December, 1872, by Executive order, Alaska was added to the internal revenue district of Oregon, after which the Sec retary of the Treasury became its virtual ruler, if he was not already such before. The President, it is true, had a more direct representative there, a governor, but his duties were many and his powers were few. Trading companies and even individuals shared in governmental power, especially over half-civilized and wild tribes. Twenty-five years of such rule resulted in the practical extinction of some of the fur-bearing animals, a great de crease in the number of others, and the impending extinc tion of some of the native inhabitants. But the discovery of gold and the consequent rush to the Klondike gave a new aspect to the situation. As a somewhat tardy recog nition of this fact Congress passed the Civil Code Bill for Alaska, June 6, 1900, and gave it a territorial government. 1 J. W. Griggs, Argument in Goetze vs. U. S. (Sup. Court), 1900- 1901, p. 128. CHAPTER II THE ANNEXATION AND GOVERNMENT OF HAWAII JULY 7, 1898, the President signed a joint resolution of Congress for the annexation of Hawaii. This resolution directed the appointment of five commissioners, two of whom should be citizens of Hawaii, to devise a form of government. Meantime the existing government was to continue under the direction of the President, pending the action of Congress. The officers of this government were to be subject to removal by the President. The treaties of the United States replaced those of Hawaii, but the Hawaiian customs laws were retained. 1 During the administration of President Harrison a treaty was negotiated with Hawaii which contemplated its incor poration as a territory, with every prospect of ultimate statehood. It is worthy of note that no such promise was held out in the joint resolution. It may be that men were even then thinking that territory " appurtenant to " the United States could be held otherwise. These islands were held and governed according to the resolution for more than two years, April 30, 1900, a bill became law giving them a territorial government with the right to send a delegate to Congress. December 3, 1900, this government was inaugurated with Mr. Dole as governor. 1 Current History, viii, 319. 465] 281 CHAPTER III THE PHILIPPINES, PORTO RICO, AND SAMOA I. THE OCCUPATION OF THE PHILIPPINES ON the 20th of April, 1898, President McKinley signed a resolution of Congress which authorized him to demand the withdrawal of Spanish authority from Cuba and to use the army and navy in effecting this result. As a conse quence war followed the next day. Public attention was now almost wholly directed toward Cuba, but soon the country was startled to learn that on May i Commodore Dewey had destroyed the Spanish fleet in Manila Bay. Preparations were at once made in Washington to send an army to the Philippines and instructions were drawn up (May 19) for the guidance of the occupants. These instructions announced the severance of former political relations and the substitution of the military power of the United States, which was declared to be absolute and supreme, and to which obedience was now due. Municipal laws relating to private rights of persons, to property, and to the punishment of crime were to continue in force, so far as compatible with the new order of things. These laws were to be administered by the ordinary tribu nals substantially as they were before the occupation, but under the supervision of the American commander, pro vided the judges and other officers would " accept the authority of the United States." Native officials would be expelled and the freedom of the people to pursue their 282 [466 467] THE PHILIPPINES, PORTO RICO AND SAMOA 283 accustomed occupations abridged only in case of necessity. But the commanding general must be guided by his judg ment, his experience, and a high sense of justice, and he must pursue a course different from that outlined above, should the conduct of the people render it necessary. All public funds and securities belonging to the government in its own right were declared to belong of right to the occupant. The real property of the state he might hold and administer, enjoying the revenues thereof. Private prop erty was to be respected. It was further declared to be the right of a conqueror to levy contributions upon such sea ports, towns, or provinces of the enemy as might be in his military possession by conquest, and to apply the proceeds thereof to defray the expenses of the war, including those of administering the civil government of the conquered ter ritory, the right to be exercised in such a way as not to savor of confiscation. All ports and places in the actual possession of our forces were to be open to the commerce of all neutral nations, as well as our own, upon the pay ment of the prescribed rates of duty. 1 In the latter part of June the first troops reached Manila, and these were soon joined by a second expedition. July 26, Major General Wesley Merritt arrived with a third and assumed chief command. August 13 the city of Manila capitulated and was occupied by the American troops. On the 2Qth Major General Elwel S. Otis relieved General Merritt and became, by virtue of his rank, military governor of the Philippine Islands, which position he held until May 5, 1900. He was relieved by Major General Arthur Mac- Arthur, who was in turn replaced by Major General Adna R. Chaff ee, July 4, 1901. The first problem of importance to present itself was the 1 Richardson, Messages and Papers of the Presidents, x, 208 et seq. 284 MILITARY GOVERNMENT [468 question of joint occupation and participation in the con trol of municipal affairs with the insurgent forces, led by Aguinaldo, who had rebelled against Spain. This, pur suant to instructions from Washington, was promptly settled in the negative. 1 General Merritt then appointed General MacArthur pro vost-marshal-general of the city and instructed him to re lieve the civil governor of his functions, retaining his sub ordinates until it should be necessary to replace them. Colonel C. A. Whittier was appointed collector of customs and soon after was given charge of all fiscal matters. A proclamation made the promises and announcements of policy outlined in the President's instructions. 2 In the latter part of the year an attempt was made, at the request of certain of its citizens, to occupy Iloilo, when it was abandoned by the Spanish, but the attempt was thwarted for some time by the action of the insurgents. While waiting in the harbor there General Miller received President McKinley's instructions of December 21. This letter assumed that by the reduction of Manila the con quest of the islands and the suspension of Spanish sover eignty therein had been practically effected and that by the treaty of Paris, signed December 10, the future control of said islands was ceded to the United States. In view of this the military government must be extended to the whole territory as soon as possible. In doing this the beneficent intentions of the United States must be proclaimed. While the military government was supreme until Congress should act, the municipal laws would remain and be administered as before, so far as practicable. 3 1 Richardson, Messages and Papers of the Presidents, x, 217. 2 Report of War Department, 1899, vol. i, pt. 4, pp. n et seq. 3 Ibid., 355 et seq. 469] THE PHILIPPINES, PORTO RICO AND SAMOA 285 The letter thus epitomized was issued as a proclamation at Iloilo January 3, 1899, by General Miller, and was re ceived with derision. Before issuing it at Manila (Janu ary 4) General Otis amended it, leaving out such words as " sovereignty," " protection," etc., as likely to suggest a renewal of conditions which existed under Spain. General Otis reports that the better classes of the natives received it with satisfaction as the first authoritative declaration of the attitude and policy of the United States, the policy be ing one which they thought best for the interest of the Filipinos, who were incapable of self-government. But the amended edition also was bitterly attacked, and Aguinaldo met it with a counter-proclamation protesting against the claim of the United States to sovereignty over a people who had wrested it from. Spain by their own blood and treasure. 1 But the authorities at Washington seem to have acted on the assumption that the sovereignty of the United States attached to the whole Philippine Archipelago upon the cap ture of Manila. 2 As early as December 4, before the treaty had been signed, President McKinley assumed that the islands would be ceded and asked for the advice of Dewey and Otis regarding the force and equipment necessary to hold and govern them, a work likely to devolve upon the army and navy for some time. We have just seen that soon after the signing of the treaty instructions were given (December 21) for the occupation and government of the entire group, although, according to the treaty, Spain was not to begin evacuation until the ratifications had been ex changed. January 20, 1899, President McKinley addressed 1 Report of War Department, 1899, vol. i, pt. 4, PP- 66 et seq. 2 Magoon, Reports on Law of Civil Government in Territory Sub ject to Military Occupation, 247. 286 MILITARY GOVERNMENT [470 a letter to the Secretary of State intended as a guide for the civil commission appointed a few days before to assist in the peaceful extension of American authority and the establishment of civil government. This letter acknowl edged that the treaty had not been ratified, but expressed the belief that it would be by the arrival of the commission at Manila. The commission, consisting of three distin guished civilians and two military men, were informed that the temporary military government provided in the instruc tions of December 21 would continue until Congress should otherwise determine. Without interfering with this they were to study existing conditions, report upon them to the Secretary of State, and make such recommendations as they should see fit. 1 General Otis, however, not yet having received any such instructions, appears to have thought that the strict legal rights of the United States were not so great. Under date of January 16, 1899, ne wrote to General Miller: "Until the ratification of the treaty of peace the United States has not the legal right to occupy the port of Iloilo, except by the consent of Spain. Spanish authority over the southern islands of the Philippines remains intact until the treaty is ratified. . /. [The action of Spain in withdrawing from Iloilo], viewed in the mildest light, was that of simple abandonment, for which she is responsible. . . . Spain, under a strict interpretation of international law, has still the right to enter that port and collect duties until that right is terminated by treaty ratification." z The last day of the month he wrote that it was inexpedient to enter upon any course which might embarrass the United States, should the treaty fail of ratification. While it is not certain that 1 (First) Report Philippine Commission, i, 185. | 2 Report War Department, 1899, vol. i, pt 4, p. 86. 471 ] THE PHILIPPINES, PORTO RICO AND SAMOA 287 the President believed that our legal rights extended to the forcible assumption of control in abandoned places, the assumption of the attachment of sovereignty with the fall of Manila would seem to indicate such a construction of international law. If this be so, policy alone could have dictated his order not to use forcible means for collecting duties at Iloilo. 1 But the insurgents precipitated hostilities and Iloilo was captured February n. A conference between General Miller and several of the more prominent citizens resulted in a committee of the latter going to Manila to report con ditions and solicit aid. The troops asked for as protection against the Tagalos and the robber bands of the mountains were sent and Colonel J. F. Smith was detailed as military governor. A convention of delegates chosen by the people was then held ( May 2 1 ) at Bacalod, where, after two months of deliberation under the protection of Colonel Smith, a constitution was prepared for submission to the President of the United States. This curious document scarcely dis guised its acknowledgment of a military despotism, while attempting to provide for a quasi civil government. 2 With the exchange of ratifications of the treaty of peace all such questions of right passed away, and further occu pation was only a question of extending our influence by peaceable means where no resistance was encountered, or of overcoming resistance where offered by the Filipino in surgents. One case is deserving of notice, if for no other reason, because of the novel situation in which the United States were placed. It seems to have been doubtful just what rights the United States acquired in the Sulu Archipelago, the rights 1 Report of War Department, 1899, vol. i, pt. 4, P- 87. 2 Ibid., 123 et seq. \ ' ' 288 MILITARY GOVERNMENT [472 of Spain there not being clearly defined nor vigorously ex ercised. The Sultan of Sulu ruled by divine right of the Mohammedan sort, and was supported or opposed by his datos or feudal lords as they saw fit. The social fabric was built upon a system of peonage or serfdom, and a dato's clan or following submitted to his arbitrary will without protest. In letters dated July 3 and n, General Otis instructed General Bates how to deal with this great vassal of the United States. In general the relations for merly existing between the Sultan and Spain were to be adopted and continued. 1 August 20, 1899, a treaty was signed which became the subject of attack, both serious and comic, in the United States. By this treaty the Sultan acknowledged the sovereignty of the United States over the whole archipelago of Jolo and agreed to allow the flying of the stars and stripes. But his " rights and dignities " were to be respected, the lands immediately about the resi dence of his highness were not to be encroached upon, ex cept in case of military necessity, and all religious customs were to be respected. Any slave should have the right to purchase his freedom by paying to his master the usual market price. The trade of the Sultan and his people with the Philippines, when conducted under the American flag, should be free. Moros should be tried by the Sultan's gov ernment for all crimes against Moros, but all other cases should be disposed of by the United States authorities. Full protection against foreigners was promised to the Sultan, nor would the United States sell any of the islands without his consent. The last article provided a schedule of salaries for the Sultan and his datos. 2 1 Report of War Department, 1899, i, pt. 4, 154 et seq. 2 Current History, ix, 819 et seq.; Report War Department, 1899, i, pt. 4, pp. 152 et seq. 473] THE PHILIPPINES, PORTO RICO AND SAMOA 289 This agreement was approved by President McKinley, with the reservation that it should never be construed to give the consent of the United States to the existence of slavery or polygamy in the Sulu Archipelago. It was also transmitted to Congress " for its information and action/' but was not submitted to the Senate as a treaty. No action upon it was ever taken by Congress. It was continued as a sort of modus Vivendi until March 2, 1904, when it was abrogated by order of the President because the Sultan and his datos had "failed to discharge the duties and fulfill the conditions imposed upon them," and thus had " forfeited all right to the annuities therein stipulated to be paid to them." They were informed that " as residents of the Moro Province they are subject to the laws enacted therein under the sovereignty of the United States." II. MILITARY RULE IN THE PHILIPPINES The Executive order of May 19, 1898, directed the mili tary occupant at Manila to take charge of the customs and the public revenues, the proceeds of which were to be used in defraying the expenses of government and of the army. Another order (July 12) gave out a copy of the Spanish customs laws as revised by the Secretary of the Treasury and directed their enforcement at Manila, but before they were received General Merritt had proclaimed the old Spanish laws. The Secretary's revision, not being consid ered suited to existing conditions, was not enforced. The War Department then sent out an expert on revenue mat ters, Captain J. S. Evans, and the result of his study was the proclamation of the Spanish laws of January 7, 1891, which were put in force November 10, 1898, and so con tinued until the latter part of the following year. Of course the laws were so altered as to treat Spanish goods 290 MILITARY GOVERNMENT [474 as foreign. In the summer of 1900, by direction of the War Department, a board was convened at Manila to revise this tariff. It performed this task under directions from Washington, at the same time hearing complaints and sug gestions from natives and residents. The revised tariff proposed by them made no avowed discrimination in favor of American goods, which were treated as foreign. 1 In the course of the year 1901 the Philippine Commission prepared a new tariff, which, after being slightly amended by the War Department, went into effect November 15, and was made a law of Congress by act of March 8, 1902. The revised tariffs, as well as the old Spanish tariff first put in force, provided for an export duty, a tax which the Constitution forbids Congress to levy on goods exported from any State. The right of the Executive to impose these regulations in general and the export duty in particular was defended in the Bureau of Insular Affairs on the following grounds : The discretionary war power of the President, by which the tariffs were imposed, is not subject to judicial control, nor to domestic laws and the Constitution. The insurrec tion made the Philippines hostile territory. Congress may participate in such power, but until they act the right be longs to the Executive. His action has since been con firmed by the Spooner Amendment (March 2, 1901). As for export duties, they may be levied on goods passing from a State by the concurrent action of the State and Congress. In the territories the national government may exercise the powers of both State and Federal governments. Mexican and Civil War precedents can be cited for the levy of taxes to control trade with insurgents. 2 1 Magoon, op. cit., 217 ; Report War Department, 1899, i, pt. 4, p. 313; ibid., 1900, i, pt. 10, pp. 79 et seq. 2 Magoon, 210 et seq. 475 ] THE PHILIPPINES, PORTO RICO AND SAMOA 291 The insurgents also took a hand in customs affairs, levy ing heavy tariffs, especially on exports, in such ports as were in their possession. In defiance of the protest of General Miller, who controlled the harbor at Iloilo, trade was carried on with the insurgents there and duties amount ing to $15,200 were paid to them, thus enabling them to secure food and arms. 1 While the right to make trade regulations was an in cident of the right to levy customs duties, their enforce ment sometimes presented troublesome questions. When the port of Manila was thrown open merchants clamored for the renewal of inter-island trade. This the Americans were powerless to give, as Spain still held nominal possession of all ports except Manila. Through negotiations with the Spanish general, Rios, arrangements were effected whereby vessels flying either the Spanish or the American flag might engage in the trade. Fictitious sales by the Spanish to save their vessels from capture by the insurgents were winked at by the Americans. Inter-island trade, being free, naturally was forbidden to all except Spaniards, natives, and Americans during the war, and after that to all except natives and Americans. The right to regulate trade, even to the extent of for bidding it under the circumstances then existing, seems a matter too well established to be questioned, yet the owners of a British vessel, the "Will of the Wisp," lodged a complaint at the State Department because for bidden (May, 1899) to trade with the Sulu Islands, con trary, it was said, to the protocols of March n, 1877, and March 7, 1885, agreed to by Great Britain, Ger many, and Spain, which made such trade free to British ships. Damages to the amount of $10,000 were demanded. 1 Report War Department, 1899, i, pt. 4, pp. 45, 85. 2 9 2 MILITARY GOVERNMENT [476 The matter was referred to the War Department, which cited the well-known rule that treaties of commerce do not attach to the soil upon a change of sovereignty. 1 In the summer of the following year (1900) the German ambas sador lodged a similar complaint because of the contin uance of the restrictions and declared that the contention that the protocols ceased with the change of sovereignty was untenable. He further contended that Spain had never acquired sovereignty, or at least had never secured recogni tion of it over the Sulu Archipelago, hence the United States had not acquired complete sovereignty from her. He also said that the restrictions were contrary to the announced open-door policy. This, too, was referred to Secretary Root, who held that military necessity dictated the trade regulations and that they did not indicate anything regard ing the permanent tariff policy of the United States in those islands, or the position of the government concerning the treaties referred to. 2 The coastwise trade of the islands and of the interior ports was not opened until December 21, i899. 3 ^ n spite of watchfulness on the part of the military occupants, smug gling and illicit trade of a varied character were carried on, and men of every nationality, including Americans, seemed to be engaged in questionable enterprises promising individual gain or help to the insurgents. Heavy punish ments were meted out when offenders were detected. 4 The capture of the colonial treasury brought up ques tions of local and general import. Much annoyance was caused by the application of individuals for the return of money, bonds, or securities held by the former Spanish 1 Magoon, 302 et seq. 2 Ibid., 338. 8 Report War Department, 1900, i, pt. 10, p. 46. * Ibid., 1899, pt. 4, pp. S3, 160. 477] THE PHILIPPINES, PORTO RICO AND SAMOA 293 government for various purposes, some, it was claimed, on special deposit. But the funds in the treasury had been so mixed as to make segregation almost impossible, and Gen eral Otis held that the applicants appeared to have claims against the Spanish government, but none against the United States, as all funds in the treasury were surrendered as public funds. Whatever the source or nature of these funds, title to them was now vested in the United States by capture, and international law did not require return of funds to individuals who had claims against the govern ment from which they were captured. But when special deposits were recognized they were returned. 1 This posi tion was substantially approved by the War Department. 2 Although General Otis claimed the captured funds as the property of the United States, he placed them in charge of the " insular treasurer," an official of the military gov ernment, and, in order to meet the demands of trade, ordered him to exchange $600 of Spanish copper coins per week for local currency at par. The Philippine Commis sion formulated an act repealing this order and authorizing sale to the highest bidder. Governor Taft, however, had doubts as to the legality of the matter, and, in view of ob jections raised by General MacArthur, then in command, referred the question to the Secretary of War. The de cision of that officer was that captured property belonged to the United States and could be disposed of neither by a] general nor a civil government under his direction, but only by Congress. 3 This indicates that a distinction is made between funds captured at the time of occupation and those secured through administering the enemy's revenue, for text-writers on in- 1 Report War Department, 1900, i, pt. 10, 37 et seq. 2 Magoon, 624. 8 Ibid., 621. MILITARY GOVERNMENT [478 ternational law hold that the latter belong primarily to the civil (military) government, and they have been used by the United States in two wars to support such governments and to meet the expenses of war. Accounts have been ren dered to the War Department instead of to the Treasury. Another troublesome problem arose out of the applica tion of several individuals for the return of their estates, which had been " embargoed " by the Spanish authorities upon charges of treason. General Otis held (November 25, 1898) that the United States military occupation was of a temporary character and did not place upon the occu pant any obligation to redress or even inquire into griev ances alleged to have been imposed by Spain, especially if only property rights were affected. That the United States would not be justified in setting aside the laws of Spain and the decision of her courts where individual property rights alone were affected, nor even the war decrees of Spain promulgated to punish her refractory subjects; that the relief asked for was civil in its nature and should be sought in the civil courts of the conquered territory, which had been continued; that the case involved a question of United States revenue, since the petitioners, as Spanish sub jects, asked for the return to them of the public property of Spain, the usufruct of which now belonged to the United States. For the continuance of the embargo depended upon pardon or trial. Until such action had been taken the use of the embargoed property belonged formerly to Spain, now to the United States. Finally, the temporary occupant would be recreant to his trust should he knowingly divert, without just cause, properties the use of which would again inure to Spain upon the restoration of her sovereignty. Permanent possession by the United States would present the question in a new light. 1 1 Report War Department, 1899, i, pt. 4, pp. 38 et seq. 479] THE PHILIPPINES, PORTO RICO AND SAMOA 295 In the administration of the colonial treasury there was for a time a dual occupation of this office, the Spanish officials dealing with such fiscal matters as pertained to the parts still held by them, which did not owe obedience to the United States. But this arrangement proved un satisfactory and was soon abandoned. 1 The character of the revenue to which the United States were entitled demanded immediate attention. It was early decided that they could not collect taxes imposed for ser vice in any other part of the world. The railway tax, be ing a provincial tax, could not rightfully be collected while only Manila was held. A certificate of identification, called cedula personal, was required of every resident of the islands " without distinction of race, nationality, or sex, over eighteen years of age," except that the Chinese were put in a class by themselves. For issuing this certificate, which also served as passport, a fee was charged. This tax was discontinued as too oppressive and because the certificates were worthless beyond the American lines. Later, however, at the request of the inhabitants, it was revived and the certificates were issued for a sum sufficient to cover the cost. The special Chinese cedula was sus pended. No attempt was made to collect any revenue from licensed gambling and from such contracts as the United States courts would hold void on grounds of public policy. 2 Only a few words can be devoted here to the character of the revenue laws and the work of their administration. It was the policy of the authorities to support the Insular Government as far as possible by the revenue from customs and to expend the internal taxes for matters of local in terest. This was an innovation on the Spanish rule, under 1 Report War Department, 1899, i, pt. 4, 31, 281 et seq. 2 Ibid., 31, 159, 297. MILITARY GOVERNMENT [480 which all taxes collected were sent to Manila. Only about thirty per cent, of the Spanish revenue was derived from the customs, but this deficit was not made up by raising the rate. The administration of the customs before the transfer had been very imperfect. There were many ex emptions, and collusions between the officers and importers resulted in great losses every year. The principle of taxa tion was to load the necessities and put only a light burden on luxuries. The Americans reversed this whole policy and made an effort to give an honest administration. The following figures show the contrast in results : In 1894, the best year of Spanish domination, the customs yielded about $2,352,000 in gold. In 1899 the Americans made the same tariff, after important reductions, yield about $4,400,000. The public revenue was collected in the currency of the country, which was upon a silver basis. One officer thought it somewhat inconsistent for American officials in what he styled American custom-houses to refuse payment in Amer ican gold. The greatest hardship arising from this policy appears to have fallen upon the men of the army who were paid in gold, which, for some time, they had to exchange at less than its real value. 1 In legislating upon this sub ject Congress have not yet seen fit to introduce the gold standard. During the continuance of the war the revenue collected was sometimes expended for purposes other than the support of the so-called civil government. It was even used to help in prosecuting the war, one item of expense being for the subsistence of Spanish prisoners of war. 2 On the day following the fall of Manila a proclamation ordered the continuance of the municipal laws and their ad ministration substantially as before the surrender, but " by 1 Report War Department, 1899, i> P*- 4, 161. 2 Ibid., 131, 160, 281. 481] THE PHILIPPINES, PORTO RICO AND SAMOA 297 officers appointed by the government of occupation." The intention was to suspend the courts until they were reor ganized, but it was not so understood by all. Some of the Spanish officials sailed for Spain without giving any notice of their intention to depart, or taking proper care of the records of their offices, some of which could never be found; but in a few instances the courts were reopened and attempts were made to settle cases in litigation at the time of the surrender. This action caused indignant protests from both natives and foreigners and brought forth an order to close all such courts. Several conferences then followed between these officials and the military governor, the result of which was that the old officials were allowed to resume in civil affairs only such jurisdiction as was conferred by the Span ish laws. They were explicitly forbidden to exercise crim inal jurisdiction. This condition was not satisfactory to the Spanish judges and their courts were gradually aban doned, after which citizens had to resort to the military governor or the provost courts for legal processes in their business or do without them. But the provost courts were deemed insufficient, as the inhabitants needed processes of a strictly civil nature. Because of this the military gov ernor held conferences with Judge Arellano, a leading Fili pino lawyer, late secretary of state in Aguinaldo's cabinet, which resulted in the codification of the Spanish laws by the judge and the reorganization of the judiciary. Fol lowing the judge's advice General Otis appointed both natives and Americans (army officers) to the bench. As our lines were extended and order was restored inferior courts were organized with native officials. This was done through general orders issued by the military governor. In large cities, however, where there was likely to be liti gation between foreigners or Americans and Filipinos, American judges were usually appointed in order to save 298 MILITARY GOVERNMENT the necessity for a so-called United States court to which Americans and foreigners might resort. 1 Since the existing courts were deprived of criminal juris diction, a tribunal to administer the criminal law had to be provided and it was found in that all-powerful engine of justice (or injustice) invented during the Mexican War and carried to perfection in the Civil War and Reconstruc tion days, the military commission. Provost courts also assisted in this branch of justice. The civil courts appear to have been allowed to resume a part of their criminal jurisdiction, but the military commission was continued. In defining its sphere of action General Otis said: The local courts shall not exercise jurisdiction over any crime or offense committed by any person belonging to [or connected with] the Army of the United States, ... or upon the same by any inhabitant or temporary resident of this terri tory. In such cases, except when courts-martial have cogniz ance, jurisdiction to try and punish is vested in military com missions and provost courts For the purpose of provid ing for the prompt punishment of crime in cases where the civil courts may fail, from whatever cause, the military com missions and provost courts will .... be vested with juris diction concurrent with the civil courts to hear and determine all crimes and offenses committed by inhabitants or temporary residents within the United States occupation .... In all sentences imposed by military commissions and provost courts the punishments awarded shall conform, as far as practicable, in character and degree to the laws of the United States, or of either (sic) of the States, or to the customs of war. 2 These engines of justice do not seem to have been idle. 1 Report War Department, 1899, i, pt. 4, 12, 36, 145 et seq.; ibid., 1900, i, pt. 10, pp. 156 et seq.; Outlook, May 31, 1902, p. 308. 2 Report War Department, 1899, i, pt. 4, p. 58. 483] THB PHILIPPINES, PORTO RICO AND SAMOA 299 Some time after the occupation of Manila two Spanish officials who had been continued in charge of the larger city prisons were convicted of " embezzlement in violation of the laws of war." A Spanish editor was fined and im prisoned for " publishing news and circulating seditious newspaper articles in violation of the laws of war." The provost courts disposed of a great many cases. During the second year of the occupation an inferior provost court was organized in Manila and it alone tried 5,982 cases. The first year larceny and theft were the leading charges; dur ing the second, smuggling, of which there were only four cases the first year, came to the front. 1 The provost-marshal-general had charge of many matters not pertaining to the judiciary. Indeed, he appears to have been the general head of municipal government, having con trol of no less than sixteen departments. One of these was that of public instruction, and it is worthy of notice that the schools were reopened in about two months after the occupation. March 30, 1900, the department of public in struction for the Philippine Islands was created and Cap tain Albert Todd was put in charge. 2 Under Executive orders from Washington a postal sys tem was organized and the Spanish office of patents and copyrights was taken in charge and properly reorganized. Owing to the growing density and floating character of the population of Manila it was thought advisable to defer the reorganization of the municipal government there on civil lines. Other towns, however, were given local gov ernment under military supervision, and the sphere of activ ity for town councils was defined by general order. 8 This 1 Report War Department, 1899, i, pt. 4, 52 et seq.; ibid., 1900, pt 10, p. 282. 2 Ibid., 220 et seq. 3 Ibid., 1899, pt. 4, p. 143 et seq. 3 0o MILITARY GOVERNMENT [484 work was continued by the Philippine Commission under a reasonably liberal policy. For nearly two years a London firm pressed through diplomatic channels a claim for damages growing out of the failure of the municipality of Manila to keep an alleged contract. Damages were wanted from any source obtain able, the municipality, the insular military government, or the United States. The matter was referred to Secretary Root, who decided that the municipal officers installed by the military governor were as competent to bind the munici pality as their predecessors, and that if their action in this instance created a liability which would attach to the city under ordinary conditions, the liability attached under the extraordinary conditions then existing. The municipality, however, denied the existence of a contract and the London firm, seeing no hope of redress there, pressed their claim against the United States as ultimately responsible, the failure to keep the alleged contract being due to an order of the military governor. The secretary then held that the claim was one against the United States for unliquidated damages, which, the claimants being foreigners, he could not even transmit to Congress, the State Department be ing the proper channel for that. 1 May ii, 1899, tne War Department issued a circular (No. 1 6) directing collectors of customs in ports under military government to perform the duties formerly be longing to United States consuls or consular officers in such territory, so far as concerned seamen, vessels, clearances, etc. This course was necessary for purposes of commerce, and the action of collectors in this capacity was acquiesced in by customs officers of the United States and of other nations. The death at Iloilo of a citizen of the United 1 Magoon, 407 et seq. 485] THE PHILIPPINES, PORTO RICO AND SAMOA 301 States brought up the question of the powers of these con suls and of what government they represented. The com mandant of Iloilo, in a note addressed to the collector, said : " You are directed, in your capacity as United States con sular agent, to take charge of the estate of the late Mor timer Cook and dispose of the same in accordance with United States laws and consular regulations/' But when the collector made his report on the estate to the State Department, the usual channel of consular communication, the Secretary referred the matter to the War Department, with the remark that " as the Philippines have been taken possession of by the United States and are now under the control of the War Department, there can be no longer either actual or acting consular officers in these islands and that no reports can properly be made to this Department." The Secretary of War then acted as a private person and turned the property over to the heirs of the deceased. 1 The collectors continued to perform the consular duties indi cated in the order of May n, but in so doing they were representatives of the insular military government, and not of the United States. Throughout his administration, especially after the be ginning of hostilities with the insurgents, General Otis maintained a very rigid censorship of the press and of press dispatches. This was, perhaps, the cause of the loudest complaint against him in America. In the progress of hostilities with the insurgents a ques tion arose as to the power to punish for treason. The War Department held that, if it was intended to punish for offenses of a criminal character against the Federal Gov ernment of the United States, it was necessary for Con gress to define the crime, prescribe the penalty, and confer 1 Magoon, 487 et seq., 510 et seq. 302 MILITARY GOVERNMENT [486 the jurisdiction to inflict such penalties. But that citing the insurrection in New Mexico which was described at some length in a preceding chapter if it was intended to punish for offenses against the military government of the Philippines, the legislative branch of that government might provide the necessary legislation. All the departments of the military government being considered as instruments of belligerency, its courts might be used to condemn what its cannon had captured. 1 In November, 1901, the Philippine Commission passed an act to define and provide for the punishment of treason, insurrection, sedition, etc. This act was severely criticized by some, but in reality it compares very favorably with similar legislation in the States. 2 It is questionable, how ever, whether the Philippine government as such had a right to define and punish crimes against the United States, as was done in this act. Within a month after the occupation of Manila, orders were issued to apply there the United States laws control- ing Chinese immigration into United States territory. This does not appear to have been done under strict military necessity, but because it was thought to be for the general good of the country. The order was subsequently con firmed by the War Department and was kept in force. 8 After the ratification of the treaty American laws were applied with a freer hand. This was true in particular in the reorganization of the judiciary, new, that is, American, rules of procedure in the courts and for the practice of law being prescribed by general order. 4 In a letter of instruc tions, dated April 7, 1900, President McKinley directed the 1 Magoon, 264 et seq. 2 Ibid., 655 et seq. 3 Report War Department, 1899, i, pt 4, pp. 33 et seq. 4 Ibid., 1900, pt. 10, p. 159. 487] THE PHILIPPINES, PORTO RICO AND SAMOA 303 Philippine Commission to see that the Filipinos had full benefit of the bill of rights in the United States Constitu tion. 1 Some of these the Commission enacted into law, one being the right to the writ of habeas corpus. Not long after this law was passed General Chaffee attempted to de port a civil employee, whereupon recourse was had to the insular supreme court, which released the prisoner upon a writ of habeas corpus. 2 Others of the rights were extended from time to time until now practically all have been given. 8 III. MILITARY RULE IN PORTO Rico The first proclamation of beneficent intentions toward the Porto Ricans was issued by General Nelson A. Miles, July 28, 1898. This was followed by one the next day publishing the President's instructions of May 19 in rela tion to military government. October 18 the military gov ernment of Porto Rico was formally set up by Major- General John R. Brooke at San Juan. The story of our occupation and government of Porto Rico adds very little in point of principle or of practice to what was done in the Philippines, but a few things deserve particular notice. To aid the established judiciary, military commissions were created (December 8, 1898), with powers similar to those given to like bodies in the Philippines. The special object for which they were created was to deal with ban dits, who were very active in the island. Several offenders were adjudged guilty by these tribunals, and were incar cerated in the local jails. " But," says General Davis, " as the military commission is an instrumentality for the en- 1 Report War Department, 1901, pt. 10, p. 8. 2 Current History, xi, 596. 3 Act of Congress, July i, 1902. 304 MILITARY GOVERNMENT forcement of the laws of war, the use of that means of administering justice ceased on April n, 1899, the date of the proclamation of the President announcing the termina tion of hostilities with Spain." * Early in 1899, when it appeared certain that peace would be definitively proclaimed, the American officials in Porto Rico began to look about for something to take the place of military commissions. Major A. C. Sharpe, acting judge advocate of the department of Porto Rico, recom mended that the President be requested to proclaim mar tial law wherever he should deem it necessary, in order that the military tribunals might continue to sit. The judge advocate general, however, thought this course one of doubtful legality, but intimated that the President had the power to establish a provisional court with competent jurisdiction, and cited Lincoln's provisional court in Louis iana as a precedait. In spite of the fact that this sugges tion was approved by the President, General Henry, suc cessor to General Brooke, forwarded a project for such a court to the Secretary of War with his disapproval. His successor, General Davis, however, approved the project, and the court was established by general order, June 27, 1899, and was duly installed with considerable eclat July i. This court was designed to meet exigencies arising in cases not properly cognizable in the local courts, such as violations of revenue laws and of statutes of the United States, and controversies between citizens of different States and between citizens of foreign nations. It was styled a United States provisional court, and the judges were clothed with the powers vested in the judges of the circuit or district courts of the United States. " The court shall," said the order establishing it, " as far as practicable, 1 Report War Department, 1899, i, pt. 6, pp. 504, 569. 489] THE PHILIPPINES, PORTO RICO AND SAMOA 305 conform to the precedents and decisions of the United States courts in similar cases which have been tried and determined in territories formerly acquired from Spain or Mexico." The employment of juries was left to the dis cretion of the court. If any litigant was dissatisfied with a decision, a stay of execution would be granted for ninety days to allow an appeal to the United States Supreme Court. If the appeal failed or was not prosecuted, exe cution would then issue. The department commander might exercise the power of pardon or commutation in criminal cases. All fees, fines, and costs were to be turned over to the treasurer of the island. During the ten months of its existence, which ceased with the installation of the civil government under Mr. Allen, this court transacted a large amount O'f business and is reported to have exerted a beneficial influence throughout the island. Equity, common law, and criminal cases were all brought within its jurisdiction. The death penalty was imposed in one case, but the military governor commuted this to life imprisonment. The total expense of the court was $20,455.08; the receipts from its fines and fees amounted to $6,320.49. There was also the sum of $10,- ooo collectable as forfeited bail. The sum of $1,215 was turned over to the Treasurer of the United States as the proceeds, less expenses, of $3,144, Mexican, captured by the troops at Mayaguez when that city was occupied. It was adjudged by the court to be good prize of war. 1 No comment is needed upon this decision beyond recalling to the reader the cases of Jecker vs. Montgomery and " The Grapeshot." 2 Soon after the provisional court was instituted a conflict 1 Report War Department, 1900, i, pt. 13, pp. 76 et seq. 2 Supra, pp. 207 et seq. 306 MILITARY GOVERNMENT arose between it and one of the local courts, as both claimed jurisdiction over Spanish subjects in cases provided for in Article XI of the treaty. The local court appeared in a body before the commanding general to protest against the interference of the provisional court, though the defend ants, who were charged with counterfeiting Porto Rican coins, preferred to be tried in the latter. The matter was then referred to Washington, and both courts were requested to suspend proceedings in the case pending a reply. 1 The writer made several efforts to find out definitely the grounds of the protest by the insular court, but without success. The War Department decided that the offence of counterfeiting Porto Rican coins did not lie within the jurisdiction of the provisional court, though the order establishing the court had sought to give it exclusive jurisdiction in such matters. General Davis then amended the original order according to these instructions. 2 The defendants were subsequently tried in the insular court. 8 At the same time General Davis in terpreted the treaty as not intending to give Spanish sub jects any special privileges, but as leaving them subject to the jurisdiction of the provisional court the same as other residents of the island. 2 In one case a litigant attempted to take advantage of the provision allowing appeals from the provisional court to the United States Supreme Court, but an application for leave to file a petition for a writ of ceriiorari was denied on the ground that the court was a military tribunal, and -not a court with jurisdiction in law or equity, within the mean ing of those terms as used in the United States. 4 Never- 1 Report, ibid., 1899, i, pt. 6, pp. 594, 688 et seq. 2 General Orders, No. 47, Department of Porto Rico, San Juan, March 6, 1900. 3 Letter from Judge N. B. K. Pettingill, of the provisional court. * In re Vidal, 179 U. S., 126. 49 1 ] THE PHILIPPINES, PORTO RICO AND SAMOA 307 theless, the existence of the tribunal was afterwards recog nized by Congress, which provided, in the act creating the civil government of Porto Rico, that the United States dis trict court established by that act should take charge of its records and assume jurisdiction of all cases pending therein. Three distinct periods are to be noted in the military government of Porto Rico. The first extends from the landing of troops under General Miles to the cessation of hostilities on August 14, following the peace protocol of August 12; the second extends from August 14, 1898, to the proclamation of peace, April n, 1899; the third ended with the installation of the civil government, May i, 1900. During the first period Porto Rico was a territory of Spain occupied in part by the troops of the United States. Dur ing the second period the sovereignty of the island was still nominally in the crown of Spain, though the peace protocol contained a promise of its ultimate cession. Dur ing the third period the island was a territory belonging to the United States, for the government of which Congress had made no provision. Soon after the occupation changes began to be made in the political and judicial system of government, some of which were not dictated by military necessity. The gov ernment was administered as though the island were a per manent possession of the United States, even before the treaty of peace had been signed, much less ratified. Indeed, one could hardly tell from reading the civil dispatches of the military governor whether there ever was a treaty. The natural inference from' this would be that the sovereignty of the United States was regarded as attaching to the island with the occupation of San Juan, October 18, 1898, or possibly with the signing of the peace protocol, August 12. Such a position would be untenable in international law, and still more so according to our own law, which MILITARY GOVERNMENT [492 does not legitimize the acquisition of territory by conquest without the sanction of the treaty- or law-making power. The explanation, however, of the policy pursued during the second period probably is to be found in the fact that, as the protocol of August 12, besides pledging Spain to cede Porto Rico, required her to evacuate it immediately, it was thought to be hardly worth while to delay the American ization of the island by standing upon the formalities of law. A more important problem presented itself in the third period. Some writers hold that after the conclusion of peace the military occupant has no power to legislate for the territory, but can only administer the existing laws. As many of the municipal laws of Porto Rico were in con flict with the political character, institutions, and Consti tution of the new sovereignty, it was no small task to de cide what laws must be superseded by the existing laws of the United States upon the same subject. Even here the military governor may be embarrassed by finding that cer tain regulations are in conflict with our Constitution, but that the national government has no legislation upon the subject. He is then left to choose among the laws of forty- five states and a still greater number of municipalities. The first change in local law by military order was made Octo ber 27, 1898. Among other things this order contained a paragraph abolishing the stamp tax and another abolishing an administrative court. 1 As the laws imposing the tax and establishing the court can hardly be said to have been in conflict with any provision of our own Constitution or laws, the order was unwarranted, if the military governor has no constructive legislative power. The provisional court already mentioned may be cited as another example 1 Report War Department, 1900, i, pt. 13, p. 47. 493] THE PHILI P p INES, PORTO RICO AND SAMOA 309 of legislative work. Many other changes of importance were made, the details of which need not be given here. These facts are not mentioned as revealing any great turpitude in the military governors in going beyond the powers defined in certain laws. Rather they reveal the constructive ability of the American. While a great stick ler for law, he is not shackled by the absence of law, nor always by an observance of its technicalities. It seems to have been the object of the military governors in Porto Rico to begin to adopt the system of local laws and ad ministration which Congress might reasonably be expected to provide for the island. To their credit be it said that, with two slight exceptions, their military orders were con firmed by Congress and declared to be a part of the law of the land. 1 The military governor in Porto Rico had control over all civil matters except the postal, quarantine, and marine hospital services. The first was administered by men ap pointed for that specific purpose by the President, but that fact does not remove it from the realm of military govern ment. The prerogative for this, as well as for every other branch of the insular governments, had its origin in the war power. It is a notable fact that the greatest scandals of the military regime arose in connection with the postal department in Cuba, which was administered by civilians in stead of army officers. 2 As in previous cases, Congress desired to know what the army officers were getting for administering civil affairs. Their inquiry revealed the fact that several in Cuba were receiving extra pay, the military governor $7,500 and three or four subordinates smaller sums, all from the insular revenues. These payments were authorized by the Presi- 1 Report War Department, 1900, i, pt. 13, p. 45- 2 Ibid., 27. 310 MILITARY GOVERNMENT [494 dent upon the oral advice of the Attorney-General that they were lawful. 1 In Porto Rico only one officer received any extra salary or allowance. This exception was in the case of an assistant surgeon, a civilian under contract with the army, who was detailed as a member of the board of edu cation and of the board of health. As he had had consid erable experience in educational matters the military gov ernor felt that his services were worth the extra pay ($100 a month), without which they could not have been secured. He was paid from the insular funds. The military gov ernors also " found it necessary to make some minor ex penditures for meeting expenses of reception of officials," amounting in all to $475. 36. 2 April 12, 1900, the Porto Rican Civil Government Bill became a law, to take effect May i, 1900. The officers of this government were to be appointed by the President and confirmed by the Senate, but on April 30 only two or three had qualified. As officers of the army on the active list were forbidden to hold civil office under penalty of loss of commission, it was necessary to make some provision for carrying on the government. The military governor was equal to the emergency and exercised his powers of legis lation and appointment on April 30 by reorganizing his military government so as to create the departments re quired in the act of Congress and by appointing civilians as heads of these departments. Six gentlemen thus ap pointed took the oath of office on April 30, and held over until their successors were duly installed. Governor Charles H. Allen was inaugurated on May i, and the military gov ernor published his last order that day announcing the transfer of the government to the civil authorities. 3 1 H. Doc., 56 Cong, i Sess., no. 696, p. 16. 2 Ibid., 22. 3 Report War Department, ibid., 56 et seq. 495 ] THE PHILIPPINES, PORTO RICO AND SAMOA 3II The Administration has been vigorously attacked in America, both as to its policy of expansion and the method of carrying it out. Charges of mismanagement at home and of corruption and misgovernment in the islands have been freely and persistently made. Investigations have re vealed some things not to be commended, but have accom plished little beyond revealing, and probably checking them. Some things have gone wrong in Porto Rico, but the loud est and most persistent complaints have been leveled against the government of the Philippines, especially the military administration under the direct supervision of the com manding general. The work of Governor Taft and the Philippine Commission has met with general commenda tion in most particulars, though the granting of such powers as were exercised by the Commission threw into hysterics some who were very loud in proclaiming their devotion to the Constitution. But, as stated in the Preface, and for reasons there given, no special attention will be given here to an inquiry as to the character and accomplishments of the military governments in our recent acquisitions. IV. THE OCCUPATION AND GOVERNMENT OF TUTUILA, SAMOA The first negotiations for a naval station at Pago Pago, island of Tutuila, Samoan group, date back to 1872. The right to one was acquired by treaty in 1878. The various troubles, local and international, which led to the partition of the islands do not concern us here. Suffice it to say that the partition was accomplished by a convention signed at Washington, December 2, 1899, by the representatives of Great Britain, Germany, and the United States. By this convention Great Britain renounced all her rights and claims in the Samoan group, while Germany renounced, in favor 312 MILITARY GOVERNMENT [496 of the United States, all her rights and claims in Tutuila and other islands east of longitude 171, west of Greenwich. Tutuila, the largest of the islands thus brought under the dominion of the United States, has an area of only fifty- four square miles, but the harbor of Pago Pago is consid ered one of the most valuable island harbors in the South Pacific. 1 About four thousand natives reside on Tutuila, and about one thousand five hundred on the Manua group, some seventy miles to the east. They are a branch of the Malay race and are in a very primitive stage of develop ment, though said to be of a tractable disposition. February 17, 1900, an order was forwarded through the Navy Department to Commander B. F. Tilley to take pos session of the islands in question and to act as their gov ernor. Pursuant to this order Captain Tilley hoisted the stars and stripes at Pago Pago, April 17, and published a proclamation of the President, dated February 16, 1900, which announced that the United States had assumed the sovereignty and protection of the islands and that they were assigned to the Navy Department for a coaling sta tion. 2 According to the captain's account the natives gladly swore allegiance to the United States. 3 As for government, Captain Tilley received no instruc tions beyond the statement that " a simple, straightforward method of administration, such as to win and hold the con fidence of the people," 4 was expected of him. The lack of a central administration was thought to be the chief cause of the constant tribal wars, and the captain, as supreme legislator and executive, first undertook to remedy this de- 1 Current History, ix, 829 et seq. 2 Report Secretary of Navy, 1900, pp. 99 et seq. 8 Ibid., 1901, p. 85. 4 Independent, Nov. 27, 1902, p. 2811. 497] THE PHILIPPINES, PORTO RICO AND SAMOA feet. Evidently he did not consider the Second Amend ment to the Constitution in force in Tutuila, for he at once proceeded to disarm the natives. The ease with which they were persuaded to give up their arms, even without compensation, was cited as a proof of their child-like sim plicity. 1 Subsequently these arms were paid for out of the emergency fund, by order of the President. For the pur pose of instituting a systematic government the country was divided into counties and districts and these were put in charge of native officials, who were selected by the gov ernor and elected by the people. The greatest trouble was in deciding between rival claimants among the chiefs. A general council was then held and some reforms were in stituted, the natives readily following the suggestions of the commandant. The reforms were mainly social and economic, touching the questions of marriage and divorce and certain customs not conducive to economic develop ment. In the course of the year 1901 serious charges of drunkenness and immorality were preferred against the commandant, but they do not appear to have been sus tained. 2 The Secretary of the Navy then forbade the sale of " wines or other refreshments at the hotels." The com mandant spoke approvingly of this order, but said it was of little use, since the natives were not addicted to liquor. The American consul at Apia, however, begged to have it rescinded on the ground that business had fallen off to such an extent as to cause the closing of the hotels. 3 Cap tain Tilley submitted his regulations to the Navy Depart ment for approval, but at the end of two years no formal action had been taken upon them. 4 1 Independent, July 11, 1901, p. 1602. 2 Current History, xi, 596. 3 Ibid., xii, 538. * Independent, Nov. 27, 1902, p. 2812. 314 MILITARY GOVERNMENT [498 The plan and policy instituted by Captain Tilley were followed by his successors in office, who had for his ad ministration only words of praise. The first year the native officials received no salary, but each was allowed a cotton duck uniform. The next year salaries were prom ised and a tax was levied to meet these and other expenses. The collection of this tax, which was paid in copra, the chief product of the island, caused no little trouble to the commandant. Although the tax was recommended by the chiefs, they sometimes advised resistance to its collection, usually because of a grudge for some imagined wrong. It was also found that native judges were not always to be depended upon when it came to abolishing old customs, which, although they were deemed pernicious by the com mandant, were dear to the people. Owing to this fact it became necessary to associate white judges with the natives. In one case where a native judge proved obdurate, he was sentenced to fine and dismissal. We have seen that Cap tain Tilley disregarded the Constitution in disarming the people, but his successor, Captain Sebree, appealed to that document to justify the abolition of an old custom which compelled a man who belonged to the London Mission Society's church and changed to any other to leave his village immediately. 1 V. THE PANAMA CANAL ZONE By the Clayton-Bui wer treaty of 1850 the United States and Great Britain agreed that neither party should ever secure or maintain any exclusive control over the inter- oceanic canal, the construction of which was then in con templation by way of Nicaragua. To this end they en gaged to extend to the canal their joint protection, and also 1 Independent, Nov. 27, 1902, p. 2821. 499] THE PHILIPPINES, PORTO RICO AND SAMOA to extend the same principle to any interoceanic communi cations by way of Tehuantepec or Panama. Chiefly as the result of the colossal failure of the French Panama Canal Company, the attention of the United States was for many years confined to the Nicaragua route; but, in 1899, the President was authorized to appoint a new commission to investigate this route and all others deemed worthy of study. The report of this commission favored digging the canal at Panama. Meanwhile, the American people had become very restive under the restrictions of the Clayton- Bui wer treaty, and in 1901 a new treaty was signed at Washington by Mr. Hay and Lord Pauncefote, by which the United States were left untrammeled. This treaty was followed up by an act of Congress, known as the Spooner Act, of June 28, 1902, which author ized the President to acquire for the United States the rights and property of the New Panama Canal Company, of France, and to secure from Colombia " perpetual con trol of a strip of land, . . . not less than six miles in width " from sea to sea, together with the right perpetually to maintain and operate the Panama Railroad. In case of failure to secure this concession from Colombia " within a reasonable time," he was directed to seek similar terms from Nicaragua for a canal through her territory. A treaty was then concluded with the Colombian gov ernment, was duly ratified by the United States Senate, but was rejected by the Colombian congress. President Roosevelt made no overtures to Nicaragua, though there was no prospect of a change of temper on the part of Colombia. Possibly this delay was due to the fact that he knew that a revolution was brewing in Panama, and wished to see what the result would be. The revolution came to a head November 3, 1903, and the Republic of Panama proclaimed its independence on 316 MILITARY GOVERNMENT [500 that day. In accordance with instructions previously re ceived from Washington, Commander Hubbard, of the gunboat " Nashville," landed fifty marines and gave the Colombian commander to understand that the United States would not allow fighting which would endanger the freedom of transit. The Colombian troops then withdrew and no serious effort was ever made to> subdue the coun try, owing to the fact that the United States would not allow the landing of troops. November 13 our govern ment recognized the de facto government of Panama by receiving its minister, M. Bunau-Varilla. The conduct of the United States government was de fended on the ground of the treaty of 1846 with New Granada, described by Secretary Hay as " a covenant which runs with the land/' and of " the interests of collective civilization." It was held that we had guaranteed the sovereignty of Colombia against a foreign power, but not against her own citizens. The government at Bogota can hardly have dreamed in 1846 that it was ceding away the right to put down rebellions anywhere within its borders, but it could do nothing but confess itself helpless before a much more powerful nation and appeal to diplomacy. All diplomatic remonstrances proving futile, recourse was fin ally had to the courts of France in the hope of restraining the Canal Company from disposing of its property, but with no better success. The recognition of the independ ence of Panama by the United States was soon followed by similar action on the part of the leading European and by some of the Spanish-American states. On November 18, 1903, Mr. Hay concluded with M. Bunau-Varilla a treaty between the United States and the Republic of Panama, ostensibly in pursuance of the pro visions of the Spooner Act, which President Roosevelt con strued to authorize him to treat with the power in control 501 ] THE PHILIPPINES, PORTO RICO AND SAMOA of the Isthmus, By this treaty the United States guarantee the independence of Panama. In return they secure in perpetuity a canal zone ten miles wide. Within the limits of this zone we also have " all the rights, power and authority . . . which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located, to the entire ex clusion of the exercise by the Republic of Panama of any such sovereign rights, power and authority." From this grant the cities of Colon and Panama are excepted, but the United States have the right to acquire and control property in them. A monopoly is granted in perpetuity for the construction and operation of railways or canals across the territory of the Republic. The canal is to be neutral, but we are empowered to use armed forces and to erect fortifications for its protection. In return for these concessions Panama is to* receive at once the sum O'f $10,- 000,000, and $250,000 per annum at the expiration of nine years. This treaty was duly ratified by both governments, and the ratifications were exchanged February 26, 1904. Or ders were at once given that troops should be sent to the Isthmus to relieve the marines on duty there. President Roosevelt then proceeded to appoint the Canal Commis sion as provided for in the Spooner Act, which required that four of the seven members should be men skilled in the science of engineering, and that one of the four should be from the army and one from the navy. In the latter part of March the President called the Commission together and gave them elaborate instructions previous to their de parture for Panama. May 9 he held a conference with the Secretaries of State and War and with the Attorney- General, after which he directed the Commission to report to the War Department. General George W. Davis, the MILITARY GOVERNMENT [502 army member of the Commission, was appointed governor of the American zone of the Isthmus, and was empowered to appoint one judge who should exercise judicial author ity. Legislative powers have by statute been delegated to the Commission until the expiration of the Fifty-eighth Congress, provided that the laws be made and executed in accordance with the principle of the bill of rights. VI. THE INSTRUMENT OF GOVERNMENT The instruments of government, both in Washington and in the islands, during the war with Spain have been men tioned incidentally in the course of the narrative, but it may be well to bring them into one view. First of all we have the President of the United States, in whom all power and responsibility centered. His orders were directed to such departments as were most intimately concerned, but practically all of them issued from the War Department. To assist in handling the ever-increasing business, especially to deal with legal questions as they arose, the Bureau of Insular Affairs, War Department, was created and the Hon. Charles E. Magoon was ap pointed its law officer. In the islands the commanding general was military gov ernor, and was clothed with executive, judicial, and legis lative powers. In most cases army officers at first usually performed all the civil duties, except such as were of a purely local character, and often these also; but sometimes civilians were employed. As the army officers received no extra pay for such work the expenses of the civil admin istration were comparatively low. But as the provinces became more and more pacified, a larger use was made of civilians. The first Philippine Commission, as already noted, was appointed in January, 1899. Though this was done under 503] THE PHILIPPINES, PORTO RICO AND SAMOA what is commonly known as the " war power," the Com mission was directed to report through the Department of State. The work of this Commission was interfered with by the insurrection, but it made an elaborate report to the President in 1900. Subsequent reports, however, were made to the War Department. In the spring* of 1900 the work of pacification had proceeded far enough to enable the Commission to enter upon administrative work, and it was ordered to return to the Philippines " to continue and perfect the work of organizing and establishing civil gov ernment already commenced by the military authorities." * The work of organizing local governments in the pacified districts was now confided to it. September i, 1900, it was entrusted with legislative power, in consequence of which we now have a large volume of laws, preceding each of which is the unusual expression, By authority of the President of the United States, be it enacted by the United States Philippine Commission. Certain executive powers were also given to the Commission, such as that of ap pointing officers in various departments, but the command ing general continued to be the chief executive, subject to the laws enacted by the Commission, until July 4, 1901. So far the President had acted untrammeled, or unaided, by any word from Congress. May i, 1900, he was re lieved of the government of Porto Rico by the organiza tion of civil government under act of Congress. March 2, 1901, by the Spooner Amendment, Congress ratified what had already been done in the Philippines, and ordered that, until Congress should otherwise direct, the power to govern them should be vested in such persons and exercised in such manner as the President might appoint and direct. July 4, 1901, the military yielded to civilians in the 1 Magoon, 229. 320 MILITARY GOVERNMENT [504 pacified districts of the Philippines, and the Hon. Wm. H. Taft, president of the Commission, was inaugurated first civil governor. One year later civil government was pro claimed for the whole Archipelago, in conformity with an act of Congress of July i, 1902, which left its inaugura tion to the discretion of the President. If the source of the power of the President to govern be sought, it is to be found, as has frequently been pointed out, in his war powers during hostilities. Before the ex change of ratifications of the treaty with Spain, hostilities were opened by the insurgents and a domestic war took the place of a foreign one. When the latter war ended, was left for the Executive to say. In Porto Rico and the paci fied districts of the Philippines he continued to govern after the close of hostilities, " from the necessities of the case," l until Congress acted. The English Parliament has grad ually encroached upon the prerogatives of the crown until but few residuary powers remain. In America we were supposed to have started out with an Executive with care fully defined powers, but we are now developing one with prerogatives which must be the envy of crowned heads. 1 Dooley vs. U. S., 182 U. S., 222 et seq. CHAPTER IV I. THE POLITICAL STATUS OF, AND CIVIL RIGHTS IN, OUR INSULAR POSSESSIONS THE treaty of Paris (1898) stipulated that the "civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be de termined by the Congress." There is here no promise of United States citizenship, much less of incorporation, as states. The Administration proceeded on the assumption that " Congress in legislating for territories outside of the boundaries of the several states of the Union is not bound by the limitations imposed by the Constitution," * and that until Congress should act the Executive had practically plenary power in governing such territories. As a matter of course the islands were treated as foreign during the continuance of the war, and duties were col lected on goods coming from them into the United States. But after the proclamation of peace the same policy was still pursued. In the case of De Lima vs. Bidwell 2 the Supreme Court held that duties so collected were unlaw fully exacted, since by the establishment of the permanent sovereignty and jurisdiction of the United States over Porto Rico, the latter ceased to be "foreign" territory, so that no duties could be levied under the Dingley Act. Four justices dissented on the ground that territory was foreign so far as related to customs until Congress made 1 Magoon, 120. a ^ U. S. 505] 321 322 MILITARY GOVERNMENT [506 it domestic by extending the customs laws. Louisiana and Tampico were cited as precedents, the absence of law being taken as the ground of the decision in regard to the latter in Fleming vs. Page. It naturally followed that the same majority should de clare, in Dooley vs. United States, 1 that duties collected by the President and his military government in Porto Rico after April n, 1899, upon goods coming from the United States, were unlawfully exacted. But they held that similar duties collected before the treaty of peace were law fully exacted. Also, that the military government was rightfully continued after the treaty. On May i, 1900, the act of April 12, commonly called the Foraker Act, which levied duties upon goods passing between Porto Rico and the United States, became oper ative. This act a majority of the Court, consisting of Mr. Justice Brown and the four dissenting justices in the De Lima case, held to be constitutional. 2 Mr. Justice Brown had sided with the majority in the De Lima case in saying that Porto Rico ceased to be foreign territory with the treaty of cession. He now held that Congress, in dealing with such parts of the United States as have not been erected into states, are not trammeled by the limita tions of the Constitution, except such as go to the root of their power to act at all. The requirement that " all duties, imposts and excises shall be uniform throughout the United States " applied, in his opinion, only to the States. The other four judges, however, based their decision on the contention that new territory can be incorporated into the Union, a union of States and Territories, neither by con quest nor by treaty, but only by act of Congress. As no such action had been taken in regard to Porto Rico, it was 1 182 U. S. 2 Downs vs. Bidwell, 182 U. S., 244 et seq. 507] POLITICAL STATUS AND CIVIL RIGHTS 333 still foreign " in a domestic sense/' at least so far as re lated to the customs. But this principle had been repudi ated and the opposite affirmed as law in the immediately- preceding De Lima case. As four of the justices prac tically, and the other four very strongly repudiated the position assumed by Mr. Justice Brown, the decision is not altogether satisfactory to the juristic mind. 1 In the second Dooley case the Court sustained that clause of the Foraker Act which levied duties in Porto Rico on goods coming from the United States. The plaintiffs con tended that this was an export tax, hence unconstitutional. But a bare majority cited the De Lima case, from which four of this majority had dissented, to show that Porto Rico was no longer foreign territory. This being true, a tax on goods carried from New York to Porto Rico could not be a tax on exports. For, as used in the Constitution, the word export referred only to foreign commerce. Chief Justice Fuller spoke for those dissenting. If Porto Rico was foreign, the case was, he declared, clear, for " no tax or duty shall be laid on articles exported from any State." Likewise if domestic, for the Court had held 2 that cus toms duties could be levied only on foreign commerce, while this tax purported to be a customs tax. It was, said the chief justice, a tax on exports. The idea that there was a sea change by which goods became imports on reaching Porto Rico, before they had mingled with the mass of common property, he ridiculed. As reasonably might the United States station revenue cutters off the coast to exact duties on all goods leaving the United States. 1 Professor John W. Burgess wittily expressed it in saying that " Mr. Justice Brown delivered the opinion of the court, eight justices dissenting." 2 Woodruff vs. Parham, 8 Wall, 123. MILITARY GOVERNMENT [508 The Fourteen Diamond Rings case was one affecting 1 the Philippines in the same way as the De Lima case affected Porto Rico, and it was decided in the same way. 1 March 8, 1902, the Philippine Tariff Bill became a law. This re quires that imports into the islands from the United States shall pay the duties laid by the Philippine Commission on like imports from all countries, and that imports into the United States from the Philippines shall pay a duty of seventy-five per cent, of the Dingley duties, less any ex port taxes laid by the Commission. It would seem that the De Lima case, while a particular one, as all cases are, settled principles general enough to have affected the action of the Treasury Department elsewhere than in Porto Rico, but not so, for duties were assessed on goods coming from the Philippines until the Fourteen Diamond Rings case was decided. 2 Now, of course, they are levied under the act of March 8, 1902. It may be that we have not yet seen the end of insular cases, for the exact status of Tutuila seems as yet unde termined. Even the Administration, judged by its con duct, does not seem to be quite sure of its ground. An im porter at Honolulu paid under protest duties assessed there on mats coming from Tutuila, and appealed to the Treas ury Department for a ruling that his goods had come from American territory and were therefore duty-free. Accord ing to published statements, the Department at first held that, by the convention of December 2, 1899, the United States had assumed a protectorate over the island, but had not "obtained title for sovereignty," 8 but the final decision was that such goods were not subject to duty. 4 1 183 U. S., 138 et seq. 2 Letter from Treasury Department to the writer, September 20, 1902. 3 Current History, xii, 30. * Letter from Treasury Department, Sept. 20, 1902. 509] POLITICAL STATUS AND CIVIL RIGHTS 325 The decision that we had not obtained title for sover eignty, if such a position ever was taken, does not seem to harmonize with the President's proclamation at the raising of our flag, for then it was announced that we had assumed the " sovereignty and protection " of the islands. On that occasion the sovereignty was formally ceded by the chiefs, but no action has ever been taken on this cession by either the treaty- or law-making power. The convention of 1899 contained no grant of sovereignty, but only one of the rights and claims of the other signatory powers. The third article did indeed stipulate that the three signatory powers should continue to enjoy, in respect of commerce and navi gation in all the islands of the group, privileges " equal to those enjoyed by the sovereign power, in all ports which may be open to the commerce of either of them," and this evidently refers to the " sovereign power " of the United States and Germany in the islands allotted to them re spectively. At best, however, this is a very shadowy title to sovereignty, and it is open to doubt whether we have any other than that which was " assumed " by the Exec utive in taking possession. The situation at this writing (April, 1904) is that no law of Congress has as yet been passed to regulate the commercial relations of the American islands in Samoa. Whatever the basis of our title to the sovereignty of Tutuila, the Secretary of the Treasury considered it valid enough to justify an order, in the absence of legislation by Con gress, to allow the products of, and importations into, the islands to be brought into the United States free of duty. 1 Granting that our title is good, there would have been no other course to follow in view of the law as laid down in De Lima vs. Bidwell. But one may be somewhat con- 1 Letter from Treasury Department, March 3, 1904. MILITARY GOVERNMENT fused on learning that the Secretary of the Navy admin isters the customs of Tutuila * without regard to our rev enue laws, and even collects duties on goods imported from the United States. Clearly there is a violation of the law in one department or the other. If the islands are a part of the United States, the Secretary of the Navy is acting in contravention of the law as laid down in Dooley vs. the United States. If not, the Secretary of the Treasury 19 violating our revenue laws in allowing the free importa tion of goods from a foreign country. By passing through Tutuila, goods from any foreign country may enter the United States without paying duties as high as those ex acted in our -ports, since the rates in Tutuila are consid erably lower than those imposed by our revenue laws, and without paying anything whatever into the national treasury. The situation is not much clarified when we learn, in the words of Captain Sebree, sometime governor of Tutuila, that " it has been decided that the islands are not foreign in the sense that the captain of an American man-of-war has the duties of a United States consul in regard to sailors on American merchant ships; on the other hand, that they are not domestic territory, in that our foreign consular in voices cannot be demanded or required." a On the question of citizenship and civil rights the courts have not yet pronounced judgment. The treaty of peace with Spain permitted such of the inhabitants of the ceded and the relinquished territories as were natives of the Spanish peninsula to elect to retain Spanish allegiance, but it was provided that, in default of such election, they should 1 Letter from Treasury Department, March 3, 1904. 3 Independent, Nov. 27, 1902, p. 2812. ijn] POLITICAL STATUS AND CIVIL RIGHTS 327 be held " to have renounced it [Spanish allegiance] and to have adopted the nationality of the territory in which they may reside." For Spanish subjects inhabiting the terri tories in question who were not natives of the peninsula, no opportunity for option of Spanish allegiance was re served, and it was obviously intended that their nationality, like that of natives of Spain who failed to make the requi site election, should follow the nationality of the territory in which they resided. It was also stipulated by the treaty of peace that " the civil rights and political status of the native inhabitants o*f the territories ceded " to the United States should be " determined by the Congress." In its attempt thus broadly to commit the determination of the rights and privileges of the annexed peoples to the dis cretion of Congress the late treaty of Paris differs from any of our previous treaties. Those who so elect are, by the treaty, given American nationality, but it is to be ob served that nationality and citizenship are not always iden tical. Whether and how far that distinction can be main tained in the United States is at least open to debate. But, while the courts have not yet pronounced judgment on the question of citizenship and civil rights, the question of nationality has been passed upon by the court of last resort. In August, 1902, Isabella Gonzales, a native of Porto Rico, was detained at Ellis Island and, upon examination, was excluded from the United States on the ground that she was an alien likely to become a public charge. She then applied to a United States circuit judge fcr a writ of habeas corpus, but this was refused on the ground that the act of Congress declaring the inhabitants of Porto Rico to be citizens thereof and to be entitled to the protection of the United States had not naturalized them as citizens of the United States, and that they were therefore aliens and subject to the law regulating the admission of aliens. 328 MILITARY GOVERNMENT The Secretary of the Treasury, who then administered the immigration laws, addressed the Secretary of War and called his attention to this decision in order that the neces sary steps might be taken to advise the citizens of the Philippine Islands that, upon their arrival at ports of the United States, they would be " examined as aliens under the Immigration and Chinese Exclusion Laws." In reply the Hon. Charles E. Magoon, law officer of the War Department, gave it as his opinion that, accord ing to the decision of the Supreme Court in the Insular Cases, the geographical limits of the United States had been extended so as to include Porto Rico and the Philip pines. This being true, the question in this case was not whether the inhabitants of the islands were aliens, but whether our laws respecting immigration restricted aliens lawfully residing within our geographical boundaries from passing freely from one place to another. The power to regulate the migration of aliens within our borders cer tainly belonged to Congress, but had it been exercised? The act of April 29, 1902, reenacted the Chinese Exclu sion Laws, and at the same time so amended them as to forbid Chinese laborers, not citizens of the United States, from emigrating from the islands to the mainland of the United States, As the enforcement of these laws then belonged to the Treasury Department, the War Depart ment was, said Judge Magoon, without jurisdiction or responsibility in the matter of the treatment accorded to such of the inhabitants as sought to leave the islands and pass to the mainland. Still it seemed proper and necessary for the War Department to cause it to be known that resi dents of the Philippine Islands, other than citizens of the United States, seeking to enter a port subject to the juris diction of the Treasury Department " will be examined as aliens under the provisions of the Immigration and Chinese 513]' POLITICAL STATUS AND CIVIL RIGHTS Exclusion Laws." The Supreme Court, in the Insular Cases, has held that, in the absence of Congressional legis lation to the contrary, the products of our new territory were entitled to free entry in the ports of the United States. Should not a like rule apply to the inhabitants ? * This view was sustained by the Supreme Court, which held that a native of Porto Rico, who was residing in the island at the time of cession, could not be excluded from the United States as an alien immigrant. 2 But, while the Court decided that the petitioner was not an " alien/' nothing was said upon the question of citizen ship. By the act of April 12, 1900, to establish a civil government for Porto Rico, the inhabitants of the island who were Spanish subjects when the treaty of peace was proclaimed, including natives of the peninsula who failed to elect Spanish allegiance, were declared to be " citizens of Porto Rico"; while, by the act of July i, 1902, to establish a civil government for the Philippines, the in habitants of those islands were, under like circumstances, declared to be " citizens of the Philippine Islands." The evident intent of Congress was to exclude them from citi zenship in the United States. If the inhabitants of the islands ceded by Spain have not become citizens of the United States, it logically fol lows that they are not entitled to all the rights, privileges, and immunities guaranteed to such citizens by the Con stitution. The Philippine act of July i, 1902, however, while not purporting to " extend the Constitution " to the Filipinos, does assure them of the substantial benefit of the 1 Opinion rendered Nov. 6, 1902. Kindly furnished in MS. by the author. 2 Gonzales vs. Williams, 24 Supreme Court Reporter, 177; decided January 4, 1904. See Magoon, op. cit., 120. 330 MILITARY GOVERNMENT bill of rights. How far they can acquire political rights by migrating to the States remains to be seen. Since the Fourteenth Amendment provides that all persons born or naturalized in the United States and subject to the juris diction thereof are citizens of the United States, it is hard to see how the " citizens " of Porto Rico and the Philip pines can, upon migration to the States, be denied political and civil rights any more than the citizens of New Mexico or Arizona. INDEX Adams, J. Q., 35, 60, 85 et seq. Admiralty Court in California, 202, 205 et seq. Aguinaldo, 284 et seq. Alaska, 279 et seq. Alvarez, Manuel, "Governor" of N. M ex., 141, 142, 145. seq.; character of the military administration, 239 et seq.\ manifestations of discontent, 254 et seq,; formation of state government, 266 et seq. Callava, Spanish governor of Flor- \ An ^ " - ' ERRATA. On page 132, footnote, read infra, 210. On page 176, footnote, read Supra, 101 et seq. On page 155, footnote, read Supra, 129, 131. On page 203, footnote, read Infra, 238. On page 212, footnote, read Infra, 225. [ex., 134, Caihoun"; J* S.', "m N! M 152, 157- California, conquest of, 159 et seq.; annexed by Stockton, 165, and by Kearny, 193; social and po litical condition, 168 et seq.; revolt and reconquest, 172 et seq.; Fremont'sadministration, 181 et seq. ; instructions for the government, 101, 186 et seq.; reorganized by Kearny, 193 et seq.; customs regulations, 195 et seq.; status of, 203 et seq.; internal administration, 228 et 515] uiyiilii9l!)uiuig., iuga^. Complaints against the military government, 143 et seq., 149 et seq., 250 et seq., 261 et seq. Conflicts with military government, 145, 233 et seq. Congress, acts of, relating to Louis iana, 24, 30 et seq. , 44; extend revenue laws to Louisiana, 34, and to Florida, 65; discuss the occupation of West Florida, 51 et seq.; acts of, relating to Florida, 54, 56, 65, 93, 94, 98; discuss the conduct of Jackson in Florida, 61, 90; debate on 331 33 MILITARY GOVERNMENT bill of rights. How far they can acquire political rights by migrating to the States remains to be seen. Since the Fourteenth Amendment provides that all persons born or naturalized in the United States and subject to the juris diction thereof are citizens of the United States, it is hard to see how the " citizens " of Porto Rico and the Philip pines can, upon migration to the States, be denied political and civil rights any more than the citizens of New Mexico or Arizona. INDRX Adams, J. Q., 35, 60, 85 et seq. Admiralty Court in California, 202, 205 et seq. Aguinaldo, 284 et seq. Alaska, 279 et seq. Alvarez, Manuel, "Governor" of N. Mex., 141, 142, 145. Amelia Island, 55, 56, 57, 63 etseq. American Ins. Co. vs. Canter, 138. Armijo, Governor of N. Mex., 115. Archives in Florida, 77, 84, 92. Bancroft, George, Secretary of the Navy, 159, 187. Bates treaty, 288. Bear Flag Revolt, 170. Bell, Captain, in East Florida, 71, 91. Bent, Charles, Gov. of N. Mex., 115, n8. Benton, T. H., 130, 258. Birkhimer, W. E., on martial law, 19. Blair, F. P., in N. Mex., 116, 121. Brackenridge, H. M., in Fla., 69 et seq. Buchanan, James, Secretary of State, 132, 209 et seq. Burnett, P. H., 267, 271, 274. Bunau-Varilla, 316. Calhoun, J. C., 57, 64, 131. Calhoun, J. S., in N. Mex., 134, 152, 157- California, conquest of, 159 et seq.; annexed by Stockton, 165, and by Kearny, 193; social and po litical condition, 168 et seq.; revolt and reconquest, 172 et seq.; Fremont's administration, j 181 et seq.; instructions for the government, 101, 186 et seq.; reorganized by Kearny, 193 et seg.', customs regulations, 195 et seq.; status of, 203 et seq.; internal administration, 228 et 515] seq.; character of the military administration, 239 et seq.\ manifestations of discontent, 254 et seq.; formation of state government, 266 et seq. Callava, Spanish governor of Flor ida, 66, 77, 80, 84. Captured funds, 293, 305. Castine, Maine, 125. Castro, D. J., in California, 162. Chase, Chief Justice, on military government, 15. Citizenship, 326 et seq. " Civil Fund," 212, 224, 273. Civil government, instructions for, loi, 186, 196, 282 et seq., 286. Civilian officers under military gov ernment, 62, 115 et seq., 128, 195, 200, 218. Civil rights, 321, 326 et seq. Claiborne, W. C. C., 24, 25, 39, 41, 43, 48. Clay, Henry, defends bill for gov ernment of Louisiana, 52. Collier, J. C., collector in Califor nia, 223. Colton, Walter, 232, 249. Columbia, negotiations with, 315. Commerce, regulation of, 130 et seq., 195 et seq., 289 et seq. Complaints against the military government, 143 et seq., 149 et seq., 250 et seq., 261 et seq. Conflicts with military government, 145, 233 et seq. Congress, acts of, relating to Louis iana, 24, 30 et seq., 44; extend revenue laws to Louisiana, 34, and to Florida, 65; discuss the occupation of West Florida, 51 et seq.; acts of, relating to Florida, 54, 56, 65, 93, 94, 98; discuss the conduct of Jackson in Florida, 61, 90; debate on 331 332 INDEX [516 the conquest of N. Mex., 106 et seq.', acts of, relating to N. Mex. and California, 157, 202, 227, 275; Alaska, 279; Hawaii, 281; insular possessions, 281, 290, 310, 319, 322, 328 et seq. Conrad, C. M., Secretary of War, 146, 156, 157. Constitution of Spain, 82, 83, 89. Constitution of the United States, 17, 30 et seq., 201, 210 et seq.; 3i3> 330. suls Consuls of U. S. in new territory, 300 et seq. Convention in West Florida, 46 et seq.; in N. Mex., 131, 134, 139; in California, 265, 268, 271 et seq. Courts, see Judiciary. Crawford, G. W., Secretary of War, 136, 138, 211, 268 et seq., 275- Gushing, Attorney-General, on martial law, 213. Customs laws in Louisiana, 33 et seq.; in Florida, 45, 55, 63, 64, 65; in N. Mex., 115, 129, 130; in California, 166, 170, 195 et seq., 212 et seq., 256; in the Philippines, 289 et seq., 296; in Porto Rico, 321 et seq.; in Tutuila, 324 et seq. Davis, Garrett, on annexation, 106. Davis, George W., 303, 306, 317. Dewey, George, 282. Doniphan, A. W., in N. Mex., 105, 117. Douglass, S. A., on annexation, 107. Elections in N. Mex., 105, 137, 139, 140; in California, 166, 231 et seq., 234, 251, 260, 264. Export duties in California, 199; in insular possessions, 290, 323 et seq, Fillmore, M., 137, 140, 147, 148. Fitzpatrick, T., Indian Agent, 149, 158. Fleming vs. Page, 112, 322. Florida, West, revolution in, 46; seized by U. S., 47 et seq. Florida, seized by U. S., 55, 56, 58; returned to Spain, 56, 63; ac- ?uired by treaty, 65; Governor ackson's administration of, 68 et seq. Fremont, J. C., in California, 161 et seq., 170, 172, 175, 180, 183, 190. Fromentin, E., "Judge of the United States for West Flor ida," 44, 79, 86 et seq. Gaines, General, in Florida, 64. Gallatin, Albert, on revenue laws in Louisiana, 33. " Grapeshot," The, 208, 305. Great Britain on occupation of Flor ida, 49. Griswold, Roger, on bill for gov ernment of Louisiana, 30. " Government Payment," 185, 197. Habeas Corpus, 32, 79, 87, 88, 105, 113, 303, 327. Hague Convention on martial law, 16; on oath of allegiance, 113; on military contributions, 200, 236. Halleck, H. W., on martial law, 19; on municipal and political laws in conquered territory, 37, in; on right of insurrection, 124; in California, 246, 271 et seq. Hawaii, 281. Hiiltman, F., debt of Fremont to, 185. Indian depredations, 149 et seq., 240 et seq. Indians, Christian, in California, 237 et seq. Insular Cases, 321 et seq. | Insurrection in N. Mex., 117; right of, 124; in California, 173 et seq.; in the Philippines, 285, 287. Instructions for civil government, 186, 188, 189, 282, 284 et seq. Jackson, Andrew, 18, 57, 59, 66, 68, 69 etseq., 73, 82 et seq., 86, 93 et seq. Jackson, Mrs. Andrew, 67, 74, 95. Jefferson, Thomas, 23, 30, 32, 33, 36, 45. Judiciary in Louisiana, 28; in Flor ida, 62 et seq. , 69, 70, 78 et seq.; in N. Mex., 115, i2oetseq., 144, 154; in California, 205, -228 et seq., 249 et seq.; in the Phil ippines, 297 et seq.; in Porto Rico, 303 et seq. Jury trial, 28, 74, 105, 154, 230, 249, 305. INDEX Kearny, S. W., 101, 105, 116, 174, j 177 et seq., 179, 180, 181, 189, 193, 194, 202, 203, 238, 245 et seq. Kearny Code, 105, 131, 154, 156. Kemper, Reuben, in West Florida, 46, 47, 49. King, T. B., in California, 265, 272. Land grants in California, 203 et seq., 238. Laussat in Louisiana, 36, 40. Legislation by the military gover nor, 63, 69, 70, 93, 105, 129, 139, 165, 196, 205, 228 et seq., 289 et seq., 296 et seg., 308 et seq. "Legislative Assembly" of San Francisco, 260 et seg., 266, 269. "Legislature" of N. Mex., 129, 141, 143, 145, 150. Leitensdorfer vs. Webb, 148. Louisiana, ceded to the U. S., 23; acts of Congress for the gov ernment of, 24, 34, 44; condi tion of, 25 et seg.; revenue laws in, 33 et seg.; Spanish ex pelled from, 39. McCall, G. A., in N. Mex., 136, 158. McKinley, William, 282, 284 et seg., 302. Madison, James, 38, 45, 47, 50, 54. Magoon, Charles E., 290, 318, 328. Marcy, W. L., 100, 122, izoetseq., 187, 201. Martial law, 15, 16, i&et seg'., 167, 172. Mason, R. B., military governor of California, 188, 198, 200, 202, 203, 209, 216, 218, 221, 226, 227, 229, 233, 235, 239, 240 et seg., 247, 250. May son, J. Y., Secretary of the Navy, 188. Matthews, George, in Amelia Island, 55. Mexico, War with, 101. Military Commissions, 228, 298,303. Military Contributions, 200, 236, 283. Military government, denned, 17 j et seg.; acts of annulled by Congress, 93, 309; continues after peace, 148. 333 Mission Lands in California, 237. Mitchell, Governor of Georgia, in Amelia Island, 56. Monroe, James, 50, 61, 81, 97. Mumford vs. Wardwell, 204. Municipal law in conquered terri tory, 37, 138, 215, 228, 296 et seg. Munroe, J. M., in New Mex., 137, 140, 141, 145, 151, 155, 156. New Mexico, conquest and annex ation of, 101 et seg.; debate in Congress on, 106 et seg.; con dition of, 114 et seg.; revolt of, 117 et seg.; trials for treason in, 121 etseq.; attempts to form a state government, 134 et seg.: Indian depredations in, 149 et seg. Oath of allegiance, 175, 203. Onis, Spanish minister, 60, 62. Otero, A. J., 134. Otis, E. S., 283 et seg., 293, 294, 301. Panama treaty, 316 et seq.; Canal Commission, 317. Philippine Commission, 286, 290, 293, 302, 311, 3i8. Philippine Islands, captured, 282; military rule in, 289 et seq. Philippine tariff, 290, 324. Pico, Pio, Governor of California, 208. Polk, James K., no, 133, 142, 196. Porto Rico, captured, 303; U. S. provisional court in, so^etseg.; given a territorial government, 310. Price, S. W., in N. Mex., 118, no, 130. Provisional court in Porto Rko, 304 et seq. Religion in Louisiana, 26, 29, 37; in Florida, 74, 91. Revenue laws of Spain in Louis iana, 33 et seq. and in the Philippines, 289 et seq., 295; of U. S. extended to Louisiana, 34, and to Florida, 65; of mili tary government in N. Mex. and California, 104, 129, 130, 1 66, 196 et seq., 215; of the U. S. in N. Mex. and California, 131, 214; of Philippine Commis sion, 290; of the Foraker Act, 334 INDEX 322; of the Philippine tariff law, 324; of the U. S. in insular possessions, 321 et seq.; in Tutuila, 324 et seq. Revolt in N. Mex., 117 et seq.; in California, 172 et seq. Roosevelt, T., 289, 315 et seq. Root, Elihu, Secretary of War, 292, 293, 300. Salmon, Spanish charge, 85. Samoa, see Tutuila. Scott, Winfield, 188. Sebree, Captain in Tutuila, 326. Seddon, of Virginia, on conquest of N. Mex., 109. Shubrick, Commodore, in Califor nia, 176, 188, 189, 198. Sloat, J. D., in California, 159, 160, 164, 171. Smith, H. N., elected delegate to Congress from N. Mex., 135, 137- Smith, P. F., in California, 212, 262, 268. Smith, Robert, Secretary of State, 48, 49- Spanish ordered out of Louisiana, 39; out of Florida, 80, 85. Spooner Act, 290. State Government in California, 271 et seq. Stoddard, Amos, in Upper Louis iana, 43. Sulu Archipeligo, 288. Supreme Court, of U. S., 34, 112, 125, 148, 204 et seq., 213 et seq., 306, 329; of N. Mex., 148; of California, 205. Taft, W. H., 293,320. Taney, R. B., on conquered terri tory, 112. Taylor, Z., 134, 147- j Tilley, B. F., in Tutuila, 312 et seq. j Trade with California, 195, et seq.; with Philippines, 283, 289 et seq. I Treason, trials for, in N. Mex., 103, 109, 121 ; in Philippines, 301 et seq. Treaty with France, 23, 35; with Spain, 65, 285 et seq., 306 et seq.; with Mexico, 200; with Russia, 279; with the Sultan of Sulu (Bates treaty) , 288 et seq.; with Great Britain and Ger many, 311; with Panama, 316 et seq. Troops, behavior of, in N. Mex., 150; in California, 241 et seq., 247. Tutuila, Samoa, acquired by treaty of partition, 311; government of, assigned to the Navy De partment, 312; sovereignty of, $24etseq.; revenue laws in, 324. Upper Louisiana, 28, 43. Vessels, naturalization of, 223 et seq. Vigil, D., Secretary and Governor of N. Mex., 116, 119 et seq., 126, 128, 131, 135, 139, 145, 158. Walker, R. J., 196, 201. Walton, George, Secretary of West Florida, 77, 81, 84, 95. Washington, J. M., in N. Mex., 128, 130, 135, 150. Webster, Daniel, 139. Weightman, R. H., "Senator" from N. Mex., 143, 144. West Florida, 53 et seq. Wilkinson, James, 24, 44, 56. Worthington, W. G. D., Secretary of East Florida, 71, 92, 95. VITA DAVID YANCEY THOMAS was bom in Fulton County, Kentucky, January 19, 1872. In the autumn of 1890 he entered Emory College, Oxford, Georgia, and was grad uated with the degree of A. B. in 1894. After leaving college he taught two years in the public schools of Ala bama and Georgia. During the years 1896-1898 he was a scholastic fellow in Vanderbilt University, where he re ceived the degree of M. A. in 1898. In September, 1898, he took charge of the department of Latin and Greek in Hendrix College, Conway, Arkansas, and remained there three years. The summers of 1899 and 1900 were spent in the study of history at the University of Chicago. In 1901 he was awarded a university fellowship in history at Columbia University, where the year 1901-1902 was spent in the study of history and political science. Before leav ing Columbia he was elected to the chair of history and political science in Hendrix College. He has published several articles on historical, educational, and literary sub jects. 335 THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW RENEWED BOOKS ARE SUBJECT TO IMMEDIATE RECALL LIBRARY, UNIVERSITY OF CALIFORNIA, DAVIS Book SJip-20m-8,'61(C1623s4)458 I Thomas, D.Y. History of military Call Number: E179.5 TU8