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OTHER WORKS of OSCAR T. SHUCK
California Scrap Book, 1868 Representative Men of ttie Pacific, 1870 California Anttiology, 1882 Bench and Bar in California, 1889 Official Roll of San Francisco, 1894 The San Francisco Historical Abstract, 1897 Eloquence of the Far West, 1 899- 1 900:
Masterpieces of E. D. Baker. Pocket
Edition
'' You are making good books. c4 novel is no-where in comparison ivith the reminiscences in "Bench and Bar. " —"Dr. "Bonte, Secretary Board of Regents, University of California.
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HISTORY OF THE BENCH AND BAR OF CALIFORNIA
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'^■^TORY
HE
AND Bar
OF
-ORNIA
its of . y Cases
nn oiAin
HISTORY
OF THE
Bench and Bar
OF
CALIFORNIA
BEING
biographies of many ^markable cMerit a Store of Humorous
and bathetic '^collections^ (Accounts of Important
Legislation and Extraordinary Cases^
COMPREHENDING
THE JUDICIAL HISTORY OF THE STATE
EDITED BY
OSCAR T. SHUCK,
Editor of "Col. E. D. Baker's Masterpieces", and other Works.
U08 BnaclcB, Cal.
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1901
c, I
Entered according to Act of Congress, in the year iqco, by M. M. Miller and Ulrich Knoch. in the office of the Librarian of Congress, at Washington, D. C.
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THIS HISTORY
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Ibon. 5obn ©. /iRcCullougb, %%.W>.,
Now A DiSTiNGUisirKD Puhlic Max of Vekmont,
REMEMBEHED AS
A Light of the P^AHiiT Bar of California,
AND FOR his HHILLIANT ADMINISTRATION OF THE OFFICE OF
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PREFACE
To the Hon. M. M. Miller, of the San Francisco Bar, belongs the credit of originating the idea of presenting such a "History of the Bench and Bar of Cali- fornia" for the first half century as the present volume ofifers. It was early in the year 1899, that this conception became developed in the mind of Mr. Miller, who thereupon enlisted the co-operation of the enterprising publishing house of Los Angeles, whose name appears on the title page of this work. Much material was gathered and the plan was pursued by its originator, until the success of the undertaking was assured, through the favorable reception given to the projected work by the profession. Then Mr. Miller, under alluring inducements held out to him to settle in Honolulu and take part in the transformation of the Hawaiian Islands into a portion of the American Union, was led in the spring of 1900, to resume his legal practice, and thereupon disposed of his interest under an advan- tageous sale to the publisher. The undersigned author of the only like work then extant, that entitled, "Bench and Bar in California," issued in 1889, was then engaged to edit the present work. In the twelve months which have since elapsed, the Editor has given, substantially, all of his time and endeavor to make the book answer to its aspiring title. The historical articles, which make up a large part of the volume, have familiar signatures, — those of experienced and devoted men who command the admiration of the bar, and of the judiciary as well, for the learning and dignity which they have brought to their calling. Their valued contributions belong not only to the story of the bar, but to that of the State. The Publisher and Editor join in acknowledging their great obligation to these fruitful minds, and now give into the hands of a great profession a most engaging and instructive History.
OSCAR r. SHUCK.
San Francisco, March 25th, 1901.
TABLE OF CONTENTS
Introductory : Historical View of the Judiciary System of Cali- fornia. Henry H. Reid xv
A Review of Military-Civil Government, 1846-50. Samuel //'. Holladay 3
The Birth of the Commonwealth. Prof. Rockzcell D. Hunt 35
Adoption of the Common Law. The Editor 47
Treaty of Guadalupe Hidalgo and Private Land Claims. John Currcy 57
The Death Penalty for Larceny. The Editor 75
Recovery of the Pious Fund. John T. Doyle 81
The Bonanza Suits of 1877. John H. Burke 95
Irrigation Laws and Decisions of California. John D. Works loi
The Tragic History of the Sharon Cases. 77?^ Editor 173
The California Code of Laws. The Editor 191
The Strange Story of an Old Bank Deposit. The Editor 197
The Broderick Will Case. The Editor 209
The Horace Hawes Will Case. The Editor 215
Legal Education in the State University. Gnstav Gutsch 221
The Field of Honor: Historic Duels in California. Tlie Editor .... 227
Lynch Law in California. John G. Jury 267
The History op the Mining Laws of California. JoJm E. Davis .... 279
The Celebrated Trust Will of James G. Fair. The Editor . 335
The State Supreme Court From its Organization 349
Attorney-Generals of California 357
Our First Water Rights Decision. The Editor 361
The Remarkable Contempt Case of Philosopher Pickett. The Editor 367 Reminiscences of California Judges and Lawyers. M. M. Estec:
E. IV. McKinstry; William T. Wallace; The Editor ^yy
Men of the First Era. The Editor 417
Veterans Surviving in 1900. The Editor 483
Necrology of Recent Years. The Editor 537
Masters Who Followed the Pioneers. The Editor 559
The Adventurous Career of L. A. Norton. The Editor 5()5
Some of the Strong Men of Today. The Editor 617
Federal and State Judiciary — Past and Present, llie Editor 653
Seniors of the Collective Bar. The pAiitor 771
The Junior Rank. The Editor 993
Citizenship of Chinamen. Marshall B. Woodii'orth 1099
The Early Bench and 1)Ar of San Jose. JoIdi E. Richards 1 107
California Law Books — Complete List 1131
Stephen M. White — In Memoriam 1 137
INTRODUCTORY: HISTORICAL VIEW OF THE JUDICIARY SYSTEM OF CALIFORNIA
HENRY H. %EID
Henry H. Reid
L5'a-j3&dSi>&<2fow3&&&
HISTORY of the BENCH and BAR of CALIFORNIA
e*3eraaso«jetactp«i«if^>e^c5|n
INTRODUCTORY: HISTORICAL VIEW
of the JUDICIARY SYSTEM of
CALIFORNIA
What could I)e more interesting and instructive than to trace the origin and development of the judicial system of a great modern State? And among the "American Commonwealths" — of whose institutions that eminent scholar and acute observer, Professor James Bryce, has written with a knowledge and ability not elsewhere equalled — what state has a history more attractive and of more value and importance than that of California?
The philosophic and historic truth, that in order to understand the present we must study the past, finds no stronger confirmation than in the realm of jurisprudence. But we must be circumspect in our search for the beginnings of things, lest we find ourselves following the example of Dicdrich Knicker- bocker, in his "History of New York from the Beginning of the World to the End of the Dutch Dynasty," in which the author, having been "bred to the law," and giving due regard to precedents, historical and otherwise, devotes the five chapters constituting his first book to a history of the world and its cosmogony, with references to the famous navigators, Noah. Columl)us, and Captain Lemuel Gulliver, the origin of the aborigines, and the peopling of America. We shall therefore refrain from exploring the vast field of Spanish and Mexican law — based upon the laws of the Romans, as modified 1)\" the Canon law — and from describing, except with the utmost brevity, its practical application and administration in California prior to the American occupation in July, 1846.
Shortly after Mexico had won her independence from Spain, the new gov- ernment formed the two Californias (territories) out of the old Mexican states of Sonora and Sinaloa. The Californias were then made to comprise the sixth judicial circuit of the Mexican Kcpublic. and Alta, oi- I'ppi-'i' Cali- fornia (our California), was made one of the districts of that circuit. In 1828, a court for the circuit was installed at Rosario. with Jose Joa<|nin .\\ ilcs as judge, but no district court had been organized for Alta California. There was an i^cclesiastical Court, presided o\er by Tadic |ose J^ancluv, then presi- dent of the missions and riairio furiiiwo, oi" represcntatixc ol the I bishop of Sonora.
xvi. History of the Bench and Bar of California.
Under the Mexican law of December 29, 1836, the alcaldes exercised juris- diction (in civil law nomenclature) over cases of conciliation, oral litigation, and preliminary proceedings, of both civil and criminal nature. There were several attempts to establish a Superior Court, and in June, 1845, the matter of the reorganization and regulation of a superior tribunal of justice was taken up. This was to consist of two judges {ministers) and an attorney general (fiscal), and to be divided into two chambers.
As to inferior jurisdictions, there was to be in each capital of a partido a court of first instance, presided over provisionally by the First Alcalde, where there was an Ayuntamiento (or town council), and elsewhere bv a justice of the peace of first nomination.
There was but brief oi^jjortunity to test the wisdom of this judicial system by actual practice; for war with the United States quickly followed, resulting in American occupation and annexation.
The transition from the old regime to the new was sudden as well as permanent, and the efificient administration of affairs by the military officials, until the establishment of civil government and formal tribunals for the administration of justice, put to shame the history of high officials in later periods of our national life.
The first of these military governors was Colonel Richard B. Mason, whose administration began on May 31, 1847, ^^^ terminated on April 13, 1849. He appears to have been a man of excellent judgment, and, as far as possible, he acted upon the American principle that the military should be subordinate to the civil power. He ordered that cases should be tried by jury — consisting, in ci\-il cases, of six, and in criminal cases, of twelve jurors. As illustrative of his determination that all classes should be equal before the law, Hittell. in his History of California, gives the following account :
"In November, 1847, Father Real, of Santa Clara, was suerl before the Alcalde of San Jose, for a breach of contract. In defense, he pleaded that, as an ecclesiastic, he w^as not amenable to the profane judgment of a civil court. The question being referred to the Governor, the latter (Mason) replied that he did not know what peculiar privileges his Reverence enjoyed, but it was very evident that if he departed from his religious calling as a Catholic priest, and entered into a secular bargain with a citizen, he placed himself upon the same footing with the citizen, and should be required, like everybody else, to comply with his agreement. By this decision, unimportant as it might have appeared. Governor Mason wiped out from California jurisprudence the abuse of clerical privilege, which had grown up as a part of the Civil Law."
Colonel Mason was succeeded as Governor by General Bennet Riley. Judge E. W. McKinstry has observed of this first-class officer, in an address before the Society of California Pioneers, on September 9. 1871. that he "was not too scientific a soldier to fight, and not so much of a constitution-monger .as to interfere with the natural course of events. He employed without osten-
History of the Bench and Bar of California. xvii.
tation, and surrendered without delay, such civil powers as were thrust upon him by an extraordinary combination of circumstances.''
On June 3, 1849, Governor Riley issued a proclamation for the election of a Superior Court of four judges and a fiscal, a judge of first instance for each district, alcaldes, and justices of the peace. The election took place August I, i<S49, and John W. Geary was chosen first alcalde, receiving all the votes cast in San Francisco, to-wit, 15 16. Frank Turk was chosen ivs second alcalde. Peter H. Burnett was chosen from San Francisco and San Jose as one of the four judges of the Superior Court; Pacificus Ord, Lewis Dent, and Jose M. Covarrubias were the other three. Governor Riley then appointed Frederick Billings as fiscal, or attorney-general, of California. In October, Judges Burnett and Dent resigned. One of Governor Riley's appointments was that of William B. .Mmond as judge of a special court of first instance, with civil jurisdiction only. Hittell will not be accused of hyperbole when he observes concerning Almond, that "he was what may be called an original character." The historian continues: "He was a man of quick discernment, and, as far as it went, clear judgment. But when he made up his mind, which he often did before he heard any evidence, nothing could change him. He had a sovereign contempt for lawyers' speeches, legal technicalities, learned opinions, and judicial precedents. He had an idea that he could see through a case at a glance, and imagined that he could, with a shake of his head or a wave of his hand, solve questions which would have puzzled a Marshall or a Mansfield."
In the address by Judge McKinstry, from which 1 have already (|uote(l his opinion of Governor Riley, the speaker gave the following graphic and humor- ous account of the rough and ready administration of justice at this period, which could hardly be improved upon :
"The immense immigration which followed the discovery of gold brought into conflict two principles of international law. The first is, that a coloi:y from a civilized nation carries with it the laws and usages of the parent state. The second is, that the laws and usages of a conquered country remain in oper- ation until changed by the conqueror. Some parts of California had been long settled and inqjroved, while in much the larger part the ATexican ponula tion was so inconsiderable as hardly to constitute an element in the numerical estimate of the whole.
Hence arose a pleasing variet}" in the modes of determining litigation. In Los Angeles and San Jose there were officials, accomplished, and familiar with the sources of their own beautiful system, and with the Mexican decrees and statutes by which that system had been moditied. I'Jsewhere in the South, a rude justice, fitted to the business am! affairs and suited lo the tastes ot a pas- toral people, was dispensed sometimes by a jiie:: del pa:: as dusky as the sujjremc judge of a reconstructed American state after our Civil W'ar, who was said to be so dark that the whole bar could not enlighten him. In Sacramento, where "Pike county" was once in the ascendant, judgments were rendered according
xviii. History of the Bench and Bar of California.
to the course of the Common Law of England, and the Acts of the Alissouri Legislature, while in San Francisco was a wonderful tribunal. Here the Judge of First Instance assumed a jurisdiction unlimited as to parties or subject matter. All was iish that came to his net. His w^as a court, civil and crim- inal, taking- cognizance of matters spiritual or in probate, matters maritime or in admiralty, matters at common law or in e(|uitv, vet always recognizing the rule of the Civil Law as paramount when auvbodv could tell what was the rule of the Civil Law. Towards the last, just thirty minutes were allowed to each trial. Now. in the winter of 1849-50, it rained incessantly four months and a half. In default of jury-room twelve sufferers were not infrequently corralled in the back yard, to find a verdict upon the opening of plaintiff's counsel, or the testimony of the first witness. They generally found it. The clerk's name was Pomeroy, and the judicial opinion ended with the invariable formula, 'Pom., what's our fees?' Yet pioneers have no call to be ashamed of their courts. As a rule, excellent common sense guided their actions, and they gave what was then more desired than elaborate opinions, prompt and decisive judgments."
The ])ractical wisdom shown in the work of the convention which framed the constitution of 1849 ^""^^ never failed to evoke the wonder as well as the commendation of all who have given due consideration to the abnormal con- ditions and circumstances under \\hich it was constituted and performed its labors. And not the least valuable and admirable result was that portion of the organic law which provided for the judicial administration of the laws by which the people of California were to be governed.
The judicial department under that constitution consisted of a Supreme Court, District Courts, County Courts, Probate Courts, Justices of the Peace, and such municipal and other inferior courts as the legislature might deem necessary. The Supreme Court was composed of a chief justice and two associate justices, their term of office being six years. The District Courts were given original jurisdiction in law and equity in all civil cases where the amount in dis]uite exceeded $200, exclusive of interest, and in all criminal cases not otherwise provided for, and in all issues of fact joined in Probate Courts. The first district judges were chosen by the legislature, for a term of two years ; their successors to be elected by the people, their terms to be six years. The County Courts were given jurisdiction of cases arising in Justices' Courts, and in such special cases as the legislature might prescribe. They were to exercise no original civil jurisdiction except in such specified cases. The judges of the County Courts — their terms of office four years — were to perform the duties of surrogate or probate judge, and also, with two Justices of the Peace, to hold courts of sessions, with such crinu'nal jurisdiction as the legislature might prescribe.
-As authorized l)y the constitution, the legislature chose as judges of the vSuj)reme Court. S. C. Hastings, chief justice, and Henry A. Lyon and Na- thaniel P)ennett. associate justices.
History of the Bench and Bar of California. xix.
On March 30, 1850, after dividing the State into nine judicial districts, tlie legislature elected the district judges, and on April 5th, after the erection of a Superior Court for San Francisco, they elected three judges for it. The first district judges thus chosen were, O. S. W'itherby, for the First District, Henry A. Tefft, Second District, John H. Watson, Third District, Levi Par- sons, Fourth District, Charles N. Creaner, Fifth ]3istrict, James S. Thomas, Sixth District, Rol)ert Hopkins, Seventh District, William R. Turner, Eighth District, and W. Scott Sherwood, Ninth District. The first judges of the Superior Court of San Francisco were P. H. Morse, Chief Judge, Hugh C. Murray and James Caleb Smith, associates.
By the amendments to the constitution of 1849, i"itified September 3, 1862, the Supreme Court was reorganized by increasing its members from three to five, and extending their term of office from six to ten years, with appellate jurisdiction in all cases in e(|uity. all cases at law, in\T)lving title to real estate, cases in which the demand or value of the property in controversy amounted to $300, cases arising in probate courts and also in criminal cases amounting to felony on questions of law alone. Power was also gi\-en to it to issue writs of mandamus, certiorari, prohibition and habeas corpus. By the constitution of 1849, the Supreme Court was not given any original jurisdiction. The State was divided into fourteen judicial districts, with power in the legislature to make such alterations as the public good might re(|uire; such alterations could not be made, however, except by a two-thirds vote of all the members elected to both houses of the legislature. In addition to their jurisdiction in cases of law and equity, the District Courts, and the judges thereof, were authorized to issue writs of habeas corpus on behalf of any person held in actual custody in their respective districts.
The County Courts were given original jurisdiction in cases of forcil)le entry and detainer, insolvency, actions to prevent or abate nuisances, special cases and proceedings, not otherwise provided for, and such criminal juris- diction as the legislature might prescribe. They also had appellate jurisdic- tion in cases arising in justices and other inferior courts. The county judges were also to hold Probate Courts and perform such duties as Probate Judges as might be prescribed by law. Power was given them to issue writs of habeas corpus in their respective counties. In neither the original constitution nor by the amendments were the salaries of the judges fixed. Their salaries were to be fixed, from time to time by the legislature, with the proviso that the com- pensation should not be increased nor diminished during the term tor which the judges had been elected.
.\t the election of judges, after the amendments to the constitution of 184Q. Silas W. Sanderson, Lorenzo Sawyer, John Currey, .\ugustus L. Rhodes, and Oscar L. v^hafter were chosen, as justices of the reorganized Supreme Court. Of these able and eminent jurists, but two survive. Judge Currey remains a notable figure — although merely as a priwite citizen — in San l^^ran- cisco, where he has resided since his retirement from public office, jndge
XX. ' History of the Bench and Bar of California.
Rhodes is now (1900) by the appointment of the Governor, and with the approval of every lawyer in the State, a judge of the Superior Court of Santa Clara County, and has been nominated and will be elected by botli of the great political parties of the county — a tribute not less honorable to those who pay it, than to him to whom it is paid.
For a period of seventeen years, justice was administered in our courts, as thus constituted, by a l)ody of judges, the majority of whom were honest and capable and some of whom achieved well merited fame. Like all other human institutions, our judicial system developed some objectionable fea- tures in its actual working and some changes were imperatively demanded. Opinions were variant as to how and how far the changes should be effected ; but the view which generally ol)tained among the members of the bar was against any radical reconstruction of the judicial system. But when the Con- stitutional Convention met in 1879 ^^ ^^^s found that a majority of its mem- bers were in favor of as many "brand new" provisions in the constitution as could i)ossibly be secured, and the judiciary was dealt with accordingly. The Supreme Court was still further enlarged in membership, seven judges instead of five, which has since been (actually if not nominally) extended by the appointment of five commissioners, who examine and give written opinions upon cases referred to them by the Court.
Their terms were also extended to twelve years and their salaries fixed at $6000 a year. The Court is divided into two departments — but also sits "in banc," to consider such cases as are deemed of sufficient importance to justify it. The concurrence of all the judges sitting in a department is necessary to pronounce a judgment therein; and in banc, the concurrence of four judges is necessary. All decisions of the Court, in banc or in department, are required to be in writing, stating the grounds of the decision. Complaints having been made because of delays in the decision of causes under the old system, the framers of the new constitution endeavored to correct the evil by providing that no judge of a Superior Court nor of the Supreme Court, shall after the first day of July, 1880, be allowed to draw or receive any monthly salary unless he shall take and subscribe an affidavit before an officer entitled to adminis- ter oaths, that no cause in his court remains undecided that has been sub- mitted for decision for the period of ninety days.
Shakespeare in Hamlet's soliloquy, where he enumerates some of the poign- ant ills which affect humanity, speaks of the "law's delays" — and every lawyer knows the chapter of Magna Charta where King John undertook that he would neither sell, nor deny, nor defer right or justice to any one — NiiUi vendeinus, nitlli negabinms, ant diiferenuis, rectum vel jnsticiani. The inten- tion of the constitution makers was therefore praiseworthy — but it may be questioned whether the means they adopted were really efficacious. They at- tempted to stimulate promptitude of decision by making the payment of salaries dependent thereon ; but at the same time, they greatly increased the difficultv in the way of rendering judgment promptly, by re(|uiring that reasons
History of the Bench and Bar of California. xxi.
in writing be given in each case for the conchision at which the court has arrived.
No one will deny that there were just causes for complaint under the old system by reason of unreasonable delays in deciding cases ; but the delays were usually in the trial courts. As to them, the salary provision of the new constitution was probably wise, for they are not required to give reasons for their decisions. But as to the requirement that the Supreme Court should give the grounds of their decision in every case, I think there can be but one opinion, that it is unwise in the extrenie. An attempt was made by the legislature of 1854 to compel appellate courts to give in writing the reasons for their de- cisions, and upon the question as to the policy of such a requirement Judge Field, speaking for the Supreme Court, said, that, "the practice of giving reasons in writing, for judgments, has grown into use in modern times. Com- monly, the reasons, if any were given, were generally stated orally, by the judges, and taken down by the reporters in shorthand. In the judicial records of the Kings Courts, 'the reasons or causes of the judgments,' says Lord Coke, 'are not expressed, for wise and learned men do, before they judge, labor to reach to the depth of all the reasons of the case in cjuestion, but in their judgments express not any; and, in truth, if judges should set down the reasons and causes of their judgment within every record, that immense labor should withdraw them from the necessary services of the commonwealtli and their records should grow to be like clcphantiui libri. of infinite length, and, in mine opinion lose somewhat of their present authority and reverence, and this is also worthy for learned and grave men to imitate. (Coke's Rep., part 3, Pref. 5.) The opinions of the judges setting forth their reasons for their judgments, are of great importance in the information they impart as to the principles of law which govern the court, and should guide litigants and right-minded judges in important cases — and where the pressure of other business will permit, such o])inions should be given. It is not every case, however, which will justify the expenditure of time necessary to write an opinion. Many cases involve no new principles, and are appealed only for delay. It can serve no purpose of public good to repeat elementary prin- ciples of law which have never been (juestioned for centuries." Nothing in the experience of courts since these words were written furnishes any answer to the views thus set forth by Judge Field, with his characteristic clearness and force.
Besides the great and important changes thus made in the Su[)rcme Court, a sweeping revolution followed as to the remainder of the judiciary. All the old courts of original jurisdiction except those of Justices of the Peace were swept away, and in their place, a Superior Court for nearly every county in the vStatc was organized. To this court all cases then pending in the District Courts, County Courts, Probate Courts, and all other inferior courts, except justices of the ])eace. were transferred, and all cases in which those C(^urts had exercised inrisdiction were tlicnceforth to bt- bronqlit. heard, and deter-
xxii. History of the Bench and Bar of California.
mined in the new Superior Court. To the same judge are confided the powers exercised in other communities by separate tribunals. He is to perform all' the duties of tlie judge in cases at common law, both civil and criminal ; he is. as chancellor, to apply all the rules and remedies of equity jurisprudence; he is to perform the functions of the spiritual courts, as to wills, and estates of decedents, and matrimonial cases, besides determining- all special proceed- ings, and. in the absence of federal legislation, dealing with cases of insol- vency. Considering the learning and labor necessarily involved in the per- formance of these multifarious duties, it must be conceded that the administra- tion of justice in our courts is far better than could reasonably have been ex- pected.
Among the new things contained in the ccMistitution of 1879, are the pro- visions making the judges of Superior Courts ineligible to any other ofiice or employment than a judicial office or employment during the term for which they shall ha\e been elected, and making their salaries payable, one-half by the county and one-half by the State. One of the most important provisions, how- ever, is that which authorizes the legislature to remove justices of the Supreme Court and judges of the Superior Court. This can be done by a concurrent resolution of both houses of the legislature, adopted by a two-thirds vote of each house. A copy of the complaint must be served on the party complained of, and an opportunity given him to be heard. An attempt w-as made by a dis- appointed litigant to secure the removal of two of the justices of the Supreme Court, under this provision, but the attempt ignominiously failed. There may be occasions when the exercise of this summary method of getting rid of an objcctional)le judge would be justifiable, but it is a very dangerous expe- dient, and more likely to be used to remove from oftice a judge wdio is un- popular rather than one who is ignorant or unjust. That the judiciary should as far as possible be indei)endent of both the other departments of the govern- ment— executive and legislative — is shown by the history of every government in w hich iudicial tril)unals have existed. The duties of judges and the reasons why they should not be controlled by any fear of legislative action which might result from any unpopular decision, have never been stated more cc^i- vincingly than by Daniel Webster, in the Massachusetts Constitutional Con- vention, in words that should never be forgotten. After some reference to English judicial history, he said:
"It cannot be denied that one great object of written constitutions is to keep the departments of government as distinct as possible, and for this purpose to impose restraints designed to have that effect. And it is equally true, that there is no department in which it is more necessary to impose restraints than the legislature. The tendency of things is almost always to augment the power of that department, in its relation to the judiciary. Tlie judiciary is composed of few persons, and those not such as mix habitually in the pursuits and objects which most engage public men. They are not, or never should be, political men. They have often unpleasant duties to perform, and their conduct is often liable to be canvassed and censured, where their reasons for it are not known, or cannot be understood. ... It is the theory and plan of the constitution to restrain the legislature as well as other departments, and to subject their acts to judicial decision, whenever it appears that such acts infringe constitu- tional limits. Without this check, no certain limitations could e.xist on the exercise of legislative power. . . . The Judge is bound by his oath to decide
History of the Bench and Bar of Califoniia. xxiii.
according to law. The constitution is the supreme law. Any act of the legis- lature, therefore, inconsis^tent with that supreme law, must yield to it; and any Judge, seeing this inconsistency, and yet giving effect to the law, would violate both his duty and his oath. But it is evident that this power, to be useful, must be lodged in independent hands. ... If the legislature should unhappily be in a temper to do a violent thing, it would probably take care to see that the bench of justice was so constituted as to agree with it in opinion. There is nothing, after all, so important to individuals as the upright administration of justice. This comes home to every man; life, liberty, reputation, property — all depend on this. No government does its duty to the people which does not make ample and stable provision for the exercise of this part of its powers. Nor is it enough that there are courts which will deal justly with mere private questions. We look to the judicial tribunal for protection against illegal or unconstitutional acts, from whatever quarter they may proceed. The courts of law, independent Judges, and enlightened juries, are citadels of popular lib- erty, as well as temples of private justice.
"The most essential rights connected with political liberty are there can- vassed, discussed and maintained; and if it should at any time so happen that these rights should be invaded, there is no remedy but a reliance on the courts to protect and vindicate them. Tliere is danger, also, that legislative bodies will sometimes pass laws interfering with other private rights than those con- nected with political liberty. Individuals are too apt to apply to the legislative power to interfere with private cases or private property; and such applications sometimes meet with favor and support. There would be no security, if these interferences were not subject to some subsequent constitutional revision, where all parties could be heard, and justice be administered according to the standing laws."
That these dangers to the independence of the judiciary were not imagin- ary, was shown in the siihsequent history of the old Bay State, when a judge was deprived of his office hecause he executed a hiw of the United States which was disHked by the Massachusetts legislature at that time.
The constitution of 1879, with many undeniable merits and some demerits, as the people have already perceived, and have endeavored to remedy in some respects, was duly ratified and went into operation in the following year. The results, as might have been expected, have not been such as were predicted by either friends or enemies of the new organic law ; the millennium has not dawned upon us, neither has "chaos come again." A people with the traditions and experiences of self-government may be interfered with by bad or imper- fect laws, but will in practice so admini.ster their affairs that substantial justice will in most instances be attained. This truth has been illustrated by the people of California for the past fifty years, and, T have no doubt, will ct)ntintio to be so in the future.
The justices of the Sui)reme Court chosen at the first election were Robert F. Morrison, chief justice, and K. W. McKinstry. Samuel B. McKee. James D. Thornton, John R. Sharjjstein, M. II. Myrick and iCrskine M. Ross, asso- ciate justices. The Chief Justice and Justices McKinstry, McKee. Thornton and Sharpstein, had been judges of District Courts, and Justice Myrick had been Probate Judge in San Francisco for many years. Justice Ross alone had held no judicial office: but after distinguished and honorable service as Justice of our Supreme Court he was ai)pointed, first. District and then Circuit Judge of the United States, in both of which positions he has won addition;d laurels by the learned, a1)le and laithrul performance of the duties of his exalted station, both as trial judge and in the United States Circuit Court of Appeals. Chief Justice Morrison and Justices McKee and Sharpstein have passed to a still higher tribunal, but McKinstry, Thornton and Myrick still remain with
xxiv. History of the Bench and Bar of California.
us. Recent public addresses and arguments by Judge McKinstry before the court of vvhicli he was formerly a very important part, show no failure of in- tellectual strength and brilliancy.
This sketch has already exceeded its proper limits, and therefore even a brief statement and consideration of the jurisprudence of the State, made up of the legislative enactments and judicial decisions of a half century, cannot be given here. It deserves and will repay all the attention that the juridical student may bestow ui)on it. This comix)site structure is formed of materials drawn from the history and experience of the ages, of governments ancient and modern, in the old world and the new. Notwithstanding the somewhat flamboyant rhetoric employed in the report of the judiciary committee of the first legislature in exalting the Common Law of England above the Civil Law, our law-makers have not failed to make use of the rules and maxims of the Civil Law, so far as they have commended themselves to good sense and good morals and have met the exigencies of the common weal. In framing our law as to crimes and criminal procedure, humanity and wisdom were their guides. The legislature and the courts united in the endeavor to perfect . system by which the community would be protected, and the individual, wdien charged with crime, be heard before being condemned ; and they avoided the infliction of punishments so severe as to beget sympathy for the accused rather than for the accuser. Thus California has no share in the reproach of the fero- cious system of the English Criminal Law — a system which fully deserved the denunciation of that great jurist, Edward Livingston, styled by Sir Henry Maine, "the first legal genius of modern times.'' After enumerating" some of the shocking instances of the savagery of the English law, he says : "The statute gave the text, and the tribunals wrote the commentary in letters of blood, and extended its penalties l^x' the creation of constructive offenses. The vague and sometimes unintelligible language, employed in the penal statutes, and the discordant opinions of elementary writers, gave a color of necessity to this assumption of power; and the English people have sulimitted to the legis- lation of the courts, and seen their fellow subjects hanged for constructive felonies, quartered for constructive treason, and roasted alive for constructive heresies, with a patience which would be astonishing, even if their written laws had sanctioned the butchery."
The concluding words of this passage point to the wisdom of a code which enumerates and defines all criminal offenses, and leaves no shoreless sea ot so-called "common law crimes," in which to submerge the citizen, by the exercise of judicial discretion — or indiscretion. In codification of the laws, as well as in other respects, the people of California may claim enrollment with the pioneers.
Those in our state who have labored in this field of human endeavor for the betterment of our law and its administration, though they may not rank in fame with such law reformers as Bentham. Austin. Romilly. Bethel, and
Field, deserve well of their fellow-men.
—HENRY H. REID. San Francisco. Cal.
A REVIEW OF MILITARY-CIVIL GOVERNMENT ^^^ 1846-50 ^^J^
ulb 'Jjb (^ (^ (^ ^ ^ qEs ^ ^
HISTORY of the BENCH and BAR of CALIFORNIA
REVIEW of MILITARY- CIVIL GOVERNMENT— \ 846 - 50
The frame and working machinery of a modern civilized state, compose a complex and subtle institution, evincing the highest social invention; and It is also the most important institution, for it involves the safety^ happiness and elevation of mankind.
This is especially so with a republican state, as it is devised and constructed by its framers, for the intended use and benefit of themselves and their chil- dren and successors forever.
In considering the subject indicated in the title of the present paper, that is, the civil government of California from 1846 to 1850, carried on by the peo- ple, under such laws as there were at the time, and yet within the control of the chief military head of the land forces here, it seems proper preliminarily, to .show the condition of the country and people, that we may better understand the situation to which such authority applied — a period beginning with July 7th, 1846, and ending with the year 1849. '^h^ main facts and causes will be noticed, which preceded and tended to shape the government of California from Jul}', 1846, to 1850, with references to some of the actors in the scene. The acquisition of California finally came by formal cession in our treaty with Mexico, concluded in May, 1848; but it was the result of the war with that nation, which was brought on by various causes, motives and pretexts.
California stands unique in the history of political government, as an instance where the whole people, not entirely homogeneous, of an unorgan- ized territory, of their own free will, by the light of their own wisdom, organ- ized and put into successful and permanent operation, in a peaceful and orderly manner, at the close of the year 1849, a great and prosperous State, embracing seven hundred miles of frontage on the Pacific ocean, with a sparse popula- tion, variously estimated at from 175,000 to 200,000. chiefly of the Anglo- Saxon type, but including representatives from almost every part of the globe.
It was a time of profound peace, and most of the people had arrived since the discovery of the marvelously rich gold mines shortly before, which had electrified the commerce of the world. The great majority had no settled
4 History of the Bench and Bar of California.
intention of making this their permanent place of residence ; this region had lately passed from the domain of Mexico to that of the United States.
The wonderfnl productiveness of the soil, in greatest variety, of the most valued fruits of the earth, for the comfort and support of mankind, seemed until some time after the year 1849, to have been almost unnoticed. Those substantial things, of which the State at present is so proud, attracted little attention until after the gold excitement began to decline.
Prior to 1846, the Mexican government of Upper California, consisted of the departmental assembly, with the Governor as chief executive of the depart- ment. Its sessions were held at Monterey, the capital. The various other officers were mainly Judges of the Court of First Instance, the prefects, sub- prefects, alcaldes and justices of the peace.
The simple habits of the thinly scattered population required very little legislation; the acts of all officers were generally subject to the revisory power of the Governor and assembly, whose proceedings were in many respects sub- ject to the approval of the Mexican congress ; all this was at once suspended when our forces took possession of the country. There remained no settled or well-defined form of government or system of legislation, or laws, or courts or magistrates.
The revenue laws and the postoffice laws were tardily extended by Act of Congress to California, in 1849, ^"<^1 the corresponding officers were appointed to and took their respective places in the autumn of 1849, i^^ several of the large towns; prior to which time the import duties had been collected by officers appointed by, and under direction of, our military Governors. Of tiie officers 'of the regular army present, as a rule, the senior in rank was the acting Governor in civil affairs ; and he was the ultimate authority in all local disputes, though his action was seldom invoked or exercised ; all ques- tions referred to him from alcaldes or municipalities were promptly disposed of. with reasons briefly stated, indicating a clear understanding and regard for justice and good order. In other cases the judgments in the Alcaldes' Courts were reversed ; with a reservation, in cases involving real property, that the decision was without prejudice to review when the courts should be finally established.
Some of the decisions of the Governors sent down to the alcalde, contain the suggestion that the judgment would be duly enforced, if necessary. That was final : no time or money was wasted in further contention.
Several of our warships lingered about the coast, with little to do, and their presence was almost unfelt. Not the slightest apprehension or incon- venience was suffered from the military or naval officers or men, but on the contrary, where their presence was felt at all, it was in the way of the agree- able society of those officers and the pleasant sense of their protection, should that become necessary.
In the meantime, after 1848, the three thousand miles of unbroken wilder-
History of the BencJi and Bar of California. 5
ness between the "States" on the East, and California on the West, was marked by ahnost continuous caravans of immigration into the gold fields; and by sea, "around the Horn," and from every inhabited quarter of the globe; by steam and sail and land, the Argonauts were eagerly hastening to this Colchis of their hopes. ]\Ierchantmen, from our Atlantic ports, from Europe, from all the islands of the Pacific, and from China, came laden with passengers and goods, including miners' supplies, things of utility, and also with articles the most costly and superb, to please the fancy and satisfy the appetite; and especially came by clipper-ships from China, cargoes of silks and novelties, which latter, for a time, were in great demand as "presents to send home" ; for the w^ord had gone abroad, that gold w-as in plenty and that things brought fabulous prices. Manv articles were new to us — toys as it were, with which we were not familiar — from regions of the globe, with the geography of which we knew but little — of whose people and their domestic habits, and products, we knew less; besides all this, the extreme scarcity of money, that for years had preceded the times of which we are now speaking, having suddenly changed to affl'uence, it gave the new settlers the pleasurable opportunity of accom- panying their "letter home" wdth something beautiful, costly, new — to family, sweetheart or friend. It W'as at first considered quite venturesome and even heroic, for strong young men to start for this strange and unexplored region ; and as for women to come, that w-as generally out of the question ; so that in 1848 and 1849, '^ woman among miners w^as a very rare and delightful object of attention.
MORAL EFFECTS OF IMMIGRATION.
The trials, dangers and sufferings by sea and by land, bravely sustained and patiently endured by the early immigrants ; the sympathy, kindness, assist- ance and generosity, lent by the stronger to the weaker, ever gratefully received, were not without their ennobling effect in developing the better nature of them all. Such a schooling, such a chastening of the minds and hearts of that great concourse on their long, toilsome and perilous journey to this promised land, have not been lost; but have given a quickening and lasting impulse to the evolution of the race. Was there not visible, some of its first fruits in the manhood and generosity of these people here, whether in mart or mine, in the golden years of the fifties?
SUTTER, N'AEEEJO. COOPER AND EARKIN.
Amongst the elements that tended to create and foster the friendly dispo- sition of the Mexican inhabitants of California towards the United States, in preference to other nations, there are several men whose character, conduct and influence, seem worthy of special mention.
Captain John A. Sutter, a German-Swiss, of culture and military educa- tion, was a local magnate in his fort on the American river, near the site of the
6 History of the Bench and Bar of California.
present Sacramento city. Having a grant from the Mexican government of eleven leagues of land, with the labor of Indians whom he taught to work for a better subsistence than their native habits could supply, and with the help of superior employes, all well armed, Sutter kept up a sort of military estab- lishment at "the Fort" ; he had herds of horses and cattle, with the freedom of unlimited pasture, and he raised large quantities of wheat and "threshed it easily by turning into a spacious corral an hundred or so of horses upon the wheat in the straw already piled as higii as the horses' l)acks," (as General Bidwell described it). The horses were driven around violently, the grain quickly threshed out from the straw, but the much greater difficulty remained, to slowly winnow out the chaff, in those calm, sultry days, without our modern fanning mills.
With his wheat and cattle and horses galore. Captain Sutter was ever most hospitable and generous to all who came ; and they were not a few. History and tradition tell of his benevolence to the exhausted immigrants arriving; and of his sending supplies and succor to meet others on the way. too much reduced in strength and food to complete their journey.
Captain John Baptist Roger Cooper is another who should be gratefully remembered in this relation. He was a native of Alderney Island. England, whence as a boy, he came with his widow^ed mother to Boston, where he grew up and became a shipmaster, and as such he brought his vessel, the Ro^•er, from Boston to Monterey in 1823, with a cargo of merchandise.
He sold his ship to Luis Arguello, the Governor of California, in whose service he commanded the Rover three years, on voyages to the ports of the South x\merican coast, to the Islands, and to China, from his home port. Monterey; and finally he settled and became an extensive land-owner about Monterey and elsewhere in the State.
On August 24, 1827, in the chapel of the Presidio of Monterey, as the record reads, Captain Cooper married Encarnacion Vallejo, sister of the late General Marino G. Vallejo. then a young military officer of much local influ- ence. Vallejo's name, as that of one who rendered distinguished services in early times to his own people, and later to ours, is recorded in letters of bronze on monumental granite in the City Hall Place. San Francisco.
The writer, now, by way of episode, may be permitted to record the fact that he has the honor of a personal acquaintance with Mrs. Cooper, the lady above named, his near neig"hbor. She still retains all her faculties, now above the age of four score and ten, and in the daily enjoyment of the converse and reverence of a large circle of her children and friends.
Thomas O. Larkin, whose name stands conspicuous in history as having rendered eminent services to the United States in the acquisition of California, was a half-brother of Captain Cooper above mentioned. They were sons of the same mother, who came to Boston a widow, bringing her young son, John, as before related. By a second marriage, she became the mother of Thomas O. Larkin in Massachusetts. When a young man, Mr. Larkin came from Boston
History of the Bench and Bar of California. 7
to California, in 1832, and joined his prosperous older brother at Monterey. In 1844, Thomas became United States consul, accredited to that then Mexican port, where he so continued, down to the change of flags.
Cooper and Larkin were ever in favor with the Californians; and being also allied to the influential family of the Vallejos and others of their class, we can easily understand how it helped to create a friendly feeling, with some of the people at least, in favor of the Americans. We may well suppose that the spirit of freedom imbibed by those brothers, under the Stars and Stripes, while boys in Boston, was later felt for good in their adopted home in California.
TIIK FIRST CONSTITUTION AND ITS FRAMERS.
Prior to the sudden influx of people, on hearing of the gold discovery of January 24th, 1848, (which was shortly before the treaty of peace, and while our army was holding the City of Mexico under the armistice), the meager population of this region was in a few small towns and at the missions, and on the cattle ranches at remote distances from each other. It was in the autumn of 1849 ^^^^ ^^e constitution was adopted by a vote of the people, including the latest comers, with but little, if any, restriction on the franchise. The framing and adoption of that instrument came of the people's own motion — of their own free will, without the slightest dictation from Federal power, as to what it should contain. The idea of State organization, direct, instead of the usual territorial probation, certainly had the tacit consent and encour- agement of the executive of two administrations, viz.. President Polk and President Taylor successively. This idea most naturally was imparted by the executive to immediate subordinates, though no sign of dictation to that end is visible of record.
The substantial features of that constitution, remain to this day, though it has been renewed and changed in some particulars. Under it the people have continued in peace, prosperity and happiness. That work was mainly the product of the American mind. Its chief promoters were lately from "the States" — there were also a number of the leading native Californians in the convention, as also in the legislatures following. The members of that constitutional convention were imbued with a love of country and liberty ; with an ardent devotion to the spirit of the Declaration of Independence, and of the Federal Constitution. California, although newly acquired territory, was confessedly as much a part of American soil as any of the original states that first struck for liberty; and there was no doubt in the minds of the framers of that instrument, but that the State was directly to become a member of the Union. Those men were eminently select and representative, including miners, lawyers and physicians, with a variety of other callings, some of whom already had experience in politics and affairs of State. The constitution they framed manifests their clear understanding of the dignity of the work com- mitted to their hands.
8 History of the Bench and Bar of California.
The native Californians in the convention, naturally were anxious lest the new-comers might by invidious legislation in the matter of taxation, dis- criminate to the disadvantage or ruin of the native land-holders, as, for instance, so as to make their large unproductive ranches pay most of the taxes. To allay their fears in this, besides all other provisions for the equal protection of persons and property, it was especially provided in the constitution, that all property should be taxed — only excepting State property — according to value. That its value should be ascertained by assessors, elected by the voters of the district wherein the property is situated; thus securing equality and fairness in taxation, in so far as by legislation it was possible. This gave satisfaction and a sense of security and contentment to the native Californians especially, thus eliciting their co-operation and friendship in the affairs of state.
A full and fair proportion of the native Californians, consisting of their most trusted and experienced men, were elected members of the first and next succeeding legislatures, all of whom were the most loyal and cheerful supporters of the State government, and enjoyed a full share of its legislative, judicial, and executive offices and honors, in both State and county govern- ment.
The framers of our first constitution did not prepare simply a sketcli or outline of the proposed State government, to send to Congress, to be neg- lected or carped at, as did New Mexico about the same time — while New Mexico to this day remains a territory merely; but they completely framed the fundamental law, providing for a fully equipped State, to go into imme- diate operation, to be admitted into the Union or not, as Congress might deter- mine at leisure; but in the meantime they organized a State, and put it to work fn^m its inception. It became such, and instantly upon the meeting of the Governor, senate and assembly, and being sworn into office, the military Governor, General Riley, in December, 1849, resigned all claims to civil authority. Since that event, California has exercised completely all the func- tions of a State, though it was not formally admitted into the Union by Act of Congress until September 9th, 1850.
FIRST COLLECTOR OF CUSTOMS AT S.\N FRANCISCO.
Colonel James Collier arrived at San Francisco (via San Diego) on November 10, 1849, ^""^ having been appointed collector for this port, in Ajiril, 1849. Two days after taking possession of the office, he makes his first report of date November 13. 1849, to Mr. Meredith, ySecretary of the Treas- ury, wherein he speaks of "having suffered much of hardship, of privation, and toil, and encountered no little peril." he adds: 'AVe were compelled for several days in succession to fight our way through hostile bands of Indians, with but one man wounded . . . both bones of his arm broken." In crossing the Colorado, four persons were drowmed ; one of the number was Captain Thorne, of New York, who was in command of the dragoons."
History of the Bench and Bar of California. 9
Tliis report describes the frightful prices of labor, provisions and rents of tenements in San Francisco, saying "flour is this day selling for $40 per barrel and pork at $60, boarding $5 a day, without rooms or lodging; a small room, barely sufficient to contain a single bed, rents for $150 a month, and every article of food at a like rate. "I am perfectly astonished at the amount of business in this office. I took possession of it yesterday. The amount of tonnage on the loth inst. (Nov. 10, '49), in port was 120,317 tons; of which 87.494 were American, and 32,823 were foreign."
These figures give a faint idea of the sudden growth of shipping caused by the gold discovery of January 24, 1848; they also indicate the presence in this port at that time, of tonnage equal to 120 ships of a thousand tons each. The country he traversed in coming seemed to him of little value; and especially he says : "The valley of the Gila is utterly worthless, I would not take a deed of the whole country tomorrow."
The rates of wages in San Francisco, which he specifies, would absorb a large share of the current revenue.
In this letter Colonel Collier says : "You are doubtless already advised that the people of California, in convention, have adopted a constitution of State government, and the election for governor and for other officers is this day being held."
Previous to the coming of Colonel Collier, the import duties had been collected by officers under appointment and direction of the military governors. Of the local merchants, seventeen of the heaviest firms presented the new- collector with a most cordial letter of congratulations upon his safe arrival at this port.
Prior to the time of the events we are now reviewing, some fifty-four years ago, there were no railroads, no telegraphs, no steamers, no roads or known ways across the continent; sailing vessels very seldom rounded the Horn, and most of such as there were, came as "hide droggers," gathering hides and tallow, hoofs and horns of cattle, paid for in goods, chiefly from our Atlantic cities ; ships' voyages being very long, occupying one or two years. (See Dana's Two Years Before the Mast.)
It took the better ])art of a year to march an army across the plains; it was practically three thousand miles of wilderness, beset by hostile Indians, with great rivers to cross, no roads, no ferries, no boats, no bridges and no base of supplies.
Colonel ]\Iason at Monterey, under date of September i8. 1847, ^vl■iting to Adjutant General Jones, in Washington, says: "It must be remembered, that it ref|uires now six months to send a letter to the United States, and as long to receive an answer; and again, under date of December 27th, i8_i8. Colonel Mason writes from California to ihe war department, saying. "The ship Hunt- ress has just brought latest dates of .April i8th" — eight months.
Colonel Fremont with a stafY of officers and scientists and a few soldiers.
10 History of the Bench and Bar of California.
sent out by our government on his exploring expedition, as to the resources of this Western slope, was moving about with celerity, between Oregon and Monterey, with an eye to political conditions. This had excited the jealousy of the local Mexican authorities as to what was his business here. Some Euro- pean powers were casting wishful eyes to the acquisition of California, then in the nominal but feeble possession of Mexico. Captain Sutter, wdiile loyal to Mexico, saw the crisis approaching, and felt a strong preference in favor of the United States, above all others. Thomas O. Larkin, residing at Monterey, California, was United States consul for ]\Ionterey from 1844, and later became confidential agent and correspondent of our government. Meantime. Mr. Larkin, together with Cooper. Vallejo and others, was courting the respect and friendship of the most enlightened and influential residents of this depart- ment, to stand in with us in preference to all others, in the event of a change of rulers, which began to appear probable. The actual commencement of war with Mexico was not heard of here till long after it had actually begun.
Early in March, 1846, Colonel Fremont was ordered peremptorily by General Jose Castro to leave California immediately, before actual hostilities on the Atlantic side had commenced. Fremont at first disregarded the order to depart ; but soon after, he started for Oregon ; was overtaken somewhere about the Klamath Lakes by Alajor Gillispie, with orders from Washington to return to support Commodore Sloat and his navy in the capture and pos- session of Monterey. Fremont did so. He got back to Sacramento valley May 29, 1846. What those orders were has never particularly become public. They are to be understood only by succeeding events.
In the years 1846-7-8, occurred a number of momentous affairs, which largely affected the destiny of these westerly possessions of our nation. The chief of these were : The first battles of the war : those of Palo Alto, Mon- terey, Buena Vista, and others of lesser note, under General Taylor, and the capture of Vera Cruz, with its so-called impregnable fortress, San Juan de Ulloa ; the march to the City of IMexico and its capture, after the fearful battles of Molino del Rey and Chapultepec ; and the surrender of the city to General Scott in February, 1848. Thence the city was held in our quiet possession pending the armistice until the final exchange of the treaty of peace in May, 1848, when our army evacuated the city, while saluting the American and Mexican flags.
THE GOLD DISCOVERY.
Perhaps the most important local event which distinguished those years, was the discovery of gold in the mill race of Captain Sutter's sawmill, as it was about being finished, under the direction of his foreman, James W. Mar- shall, on the North Fork of the American river, at the present town of Coloma, El Dorado county. California. The date of that discovery is fixed as of Jan-
History of tJic Bench and Bar of California. 1 1
uary 24th, 1848, our army still being in possession of the City of Mexico. That discovery was immediately followed by the spread of placer and river- bar mining, far and wide throughout the mineral region, with almost electrical rapidity. The towns and settlements of California were nearly depopulated of their male inhabitants; the sailors deserted the ships, and soldiers their ranks, all flocking to the mines, and prices of labor, and of all supplies rose to incredible figures, — all these are matters of popular history, merely adverted to here as features of the picture.
James K. Polk was President of the United States from March 4th, 1845, till March 4th, 1849; ^^^ of his cabinet James Buchanan was Secretary of State, William L. Marcy was Secretary of War, and Geo. Bancroft Secretary of the Navy.
The great mass of correspondence in the conduct of the Mexican War, relating especially to California, was under signature of that very masterly statesman, Mr. Marcy, as Secretary of War. To his wisdom is largely due the policy which guided that important state afifair, from its beginning till the final treaty of peace. This seems manifest from the public documents, from first to last, of that war, called out by the resolution of the House of Repre- sentatives, passed December 31st, 1849. This resulted in developing in much detail, documents embracing all the correspondence, orders, etc., emanating from the heads of departments, which are appended to the answer of the Pres- ident to that resolution, so far as California is concerned ; covering the years 1846 to 1850 inclusive.
RESOLUTION OF DKCEMBER 3I, 1849.
President Polk and his cabinet had passed out of office at the date of that resolution. The inquiry was addressed to the then President of the United States, General Zachary Taylor. Its scope was so extensive that the answer necessarily eml^raced many documents, making nearly one thousand pages. The answer was under date of January 21st, 1850. The questions were of great significance, when we consider them in the light of the fierce political strife of the times, and the matters of national history which that resolution caused to be disclosed — direct from the e.xecutixe archi^'es — and it was "ordered that 10,000 copies extra be printed."
The resolution of the House of Representatives of the above date, and just alluded to, is of great significance, in view of the current events of those daws, touching the most exciting (|ucslion of the times, pending lictwcon prop- agandists of slavery on the one hand and opponents thereof on the other, which gave rise to acrimonious debates and corresponding jealousies of the respective sides towards tlieir adversaries. The three successive Presidents, Tyler, Polk and Taylor having been elected from the slave states, were naturally supposed ])}• the free states, to be in sym])athy with the ])ri)pagandists. Ha\-ing this C(^n-
12 History of the Bench and Bar of California.
dition of public sentiment in view, we can better understand the spirit and full inside meaning of the resolution of inquiry — requesting the President of the United States to communicate to the House of Representatives as early as he conveniently could, as follows: "Whether since the last session of Con- gress, any person has been by him appointed either a civil or military Governor of California and New Mexico; if any military or civil Governor has been appointed there, and their compensation ; if a military and civil Governor has been united in one person, whether any additional compensation has been given for said duties and the amount of the same. Also that he be requested to communicate to this House whether any agent or agents, or other persons, have been appointed by the President or any of the departments of this government, and sent to California or New Mexico, or recognized in said territories by this government, authorized to organize the people of California or New Mexico into a government, or to aid or advise them in such organization ; or whether such agent, civil or military Governor, was instructed or directed to aid, preside over, or be present at the assembly of a body of persons called a convention, in California, to control, aid, advise, direct, or participate in any manner in the deliberations of that body of persons ; if any, the names of such agent or agents and their compensation. Also, tliat the President be requested to inform the House whether any advices had been given the people of California or New Mexico, as to the formation of a government for themselves, and if so, what agents were sent, and their compensation, and to communicate to the House all the instructions to such Governor, civil or military, or to any officers of the army, or to any other persons who may have been sent, and all the correspondence, proclamations, or appointment of elections, and as to the formation of a government for said territories by the inhabitants, etc. "Also, all similar instructions that were given to similar officers or agents by the late executive,'' (meaning President Polk).
The resolution became significant also, in that it brought forth into open public recorded history, all the documents, orders and correspondence called for ; they are annexed to the President's answer, forming a fund of accurate and authentic history of the founding of a new State out of territorv lately acquired from a people of other type, laws and language than our own — a history of unquestionable authority.
One cannot resist an expression of commendation of the entire propriety and wisdom of conduct which distinguish the three successive Presidents, Tyler, Polk and Taylor, and their cabinets, during the period which changed this blessed land from the fading power of Mexico, into the more prosperous and enlightened State of California under our Nation's banner.
President Taylor's reply to the resolution of inquiry is clear, candid, and fully responsive; frank, and characteristic of the man withal. It is in full as follows:
I
History of the Bench and Bar of California. 13
PRESIDENT ZACHARY TAYLOR'S RESPONSE TO THE INQUIRIES OF THE HOUSE OF REPRESENTATIVES.
To the House of Representatives of the United States :
I transmit to the House of Representatives, in answer to a resolution of that body passed on the 31st of December last, the accompanying reports of heads of depart- ments, which contain all the official information in the possession of the Executive asked for by the resolution.
On coming into office, I found the military commandant of the Department of California exercising the functions of civil governor in that territory; and left, as I was, to act under the treaty of Guadalupe Hidalgo, without the aid of any legislative, provision establishing a government in that Territory, I thought it best not ta disturb that arrangement, made under my predecessor, imtil congress should take some action on that subject. I therefore did not interfere with the powers of the- military commandant, who continued to exercise the functions of civil governor as before ; but I made no such appointment, conferred no such authority, and have al- lowed no increased compensation to the commandant for his services.
With a view to the faithful execution of the treaty, so far as lay in the power of the Executive, and to enable congress to act. at the present session, with full knowl- edge and as little difficulty as possible, on all matters of interest in these territories, I sent the Honorable Thomas Butler King as bearer of dispatches to California, and certain officers to California and New Mexico, whose duties are particularly defined in the accompanying letters of instruction addressed to them severally by the proper departments.
I did not hesitate to express to the people of those territories my desire that each territory should, if prepared to comply with the requisitions of the constitution of the United States, form a plan of state constitution and submit the same to congress, with a prayer for admission into the Union as a state; but I did not anticipate, sug- gest or authorize the establisment of any such government without the assent of congress ; nor did I authorize any government agent or officer to interfere with or exercise any influence or control over the election of delegates, or over any conven- tion, in making or modifying their domestic institutions or anj' of the provisions of their proposed constituton. On the contrary, the instructions given by my orders were, that all measures of domestic policy adopted by the people of California must originate solely with themselves; that while the Executive of the United States was desirous to protect them in the formation of any government republican in its charac- ter, to be, at the proper time, submitted to congress, yet it was to be distinctly under- stood that the plan of such a government must, at the same time, be the result of their own deliberate choice, and originate with themselves, without the interference of the Executive.
I am unable to give any information as to laws passed by any supposed govern- ment of California, or of any census taken in either of the territories menliimed in the resolution, as I have no information on those subjects.
As already stated, I have not disturbed llv* arrangements which I fmuid had existed under my predecessor.
In advising an early' application by the people of these territories for admission as states, I was actuated principally by an earnest desire to afford to the wisdom and patriotism of congress the opportunity of avoiding occasions of bitter and angry dissentions among the people of the United States.
Under the constitution, every state has the right of establishing, and. from time to time, altering its municipal laws and domestic institutions, indeiiendently of every other state and of the general govermnent; subject only to the prohibitions and guar- anties expressly set forth in the constitution of the United States. The subjects thus left exclusively to the respective states were not designated or expected to become topics of national agitation. Still, under the constitution, congress has power to make all needful rules and rcgulatinns rcsjiecting the territories of the United States, every
14
History of the Bench and Bar of California.
new acquisition of territory has led to discussions on the question whether the system of invohmtary servitude which prevails in many of the states should not be prohibited in that territory.
The periods of excitement from this cause which have heretofore occurred have been safely passed; but during the interval, of whatever length, which may elapse before the admission of the territories ceded by Mexico as states, it appears probable that similar excitement will prevail to an imdue extent.
Under these circumstances, I thought, and still think, that it was my duty to endeavor to put it in the power of congress, by the admission of California and New Mexico as states, to remove all occasion for the unecessary agitation of the public mind.
It is understood that the people of the western part of California have formed a plan of a state constitution, and will soon submit the same to the judgment of con- gress, and apply for admission as a State. This course on their part, though in ac- cordance with, was not adopted exclusively in consequence of any expression of my wishes, inasmuch as measures tending to this end had been promoted by the officers sent there by my predecessor, and were already in active progress of execution before any communication from me reached California. If the proposed constitution shall, when submitted to congress, be found to be in compliance wth the requirements of the constitution of the United States, I earnestly recommend that it may receive the sanc- tion of congress.
The part of California not included in the proposed State of that name is believed to be uninhabited, except in a settlement of our countrymen in the vicinit}' of Salt Lake.
A claim has been advanced by the State of Texas to a very large portion of the most populous district of the territory commonly designated by the name of New Mex- ico. If the people of New Mexico had formed a plan of state government for that terri- tory as ceded by the treaty of Guadalupe Hidalgo, and had been admitted by congress as a state, our constitution would have afforded the means of obtaining an adjustment of the question of boundary with Texas by a judicial decision. At present, however, no judicial tribunal has the power of deciding that question, and it remains for con- gress to devise some mode for its adjustment. Meanwhile, I submit to congress the question whether it would be expedient, before such adjustment, to establish a ter- ritorial government, which, by including the district so claimed, would practically decide the question adversely to the State of Texas, or, by excluding it, would decide it in her favor. In my opinion, such a course would not be expedient, especially as the people of this territory still enjoy the benefit and protection of their municipal laws, originally derived from Mexico, and have a military force stationed there to protect them against the Indians. It is undoubtedly true that the property, lives, liber- ties, and religion of the people of New Mexico are better protected than they ever were before the treaty of cession.
Should congress, when California shall present herself for incorporation into the Union, annex a condition to her admission as a State affecting her domestic institu- tions, contrary to the wishes of her people, and even compel her, temporarily, to com- ply with it, yet the State could change her constitution at any time after admission, when to her it should seem expedient. Any attempt to deny the people of the State the right of self-government, in a matter which peculiarly affects themselves, will infallibly be regarded by them as an invasion of their rights; and, upon the principles laid down in our own Declaration of Independence, they will certainly be sustained by the great mass of the American people. To assert that they are a conquered peo- ple, and must, as a State, submit to the will of their conquerors in this regard, will meet with no cordial response among American freemen. Great numbers of them are native citizens of the United States, not inferior to the rest of our countrymen in intelligence and patriotism; and no language of menace, to restrain them in the ex- ercise of an undoubted right, guaranteed to them by the treaty of cession itself, shall ■ever be uttered by me, or encouraged and sustained by persons acting under my au-
History of the Bench and Bar of California. 15
thority. It is to be expected that, in the residue of the territory ceded to us by Mexico, the people residing there will, at the time of their incorporation into the Union as a State, settle all questions of domestic policy to suit themselves. No material incon- venience will result from the want, for a short period, of a government established by congress over that part of the territory which lies eastward of the new State of California; and the reasons for my opinion that New Mexico will, at no very distant period, ask for admission into the Union, are founded on unofficial information, which I suppose, is common to all who have cared to make inquiries on that subject.
Seeing, then, that the question which now excites such painful sensations in the country will, in the end, certainly be settled* by the silent effect of causes independent of the action of congress, I again submit to your wisdom the policy recommended in my annual message, of awaiting the salutary operation of these causes, believing that we shall thus avoid the creation of geographical parties, and secure the harmony of feeling so necessary to the beneficial action of our political system. Connected as the Union is with the remembrance of past happiness, the sense of present blessings, and the hope of future peace and prosperity, every dictate of wisdom, every feeling of duty, and every emotion of patriotism, tend to inspire fidelity and devotion to it, and admonish us cautiously to avoid any unnecessary controversy which can either en- danger it or impair its strength, the chief element of which is to be found in the regard and affection of the people for each other.
Z. TAYLOR.
Washington City, D. C, January 21, 1850.
Annexed to the foregoing letter or reply of the President, were the official reports from several cabinet officers, including those from the Department of State, of January 7, 1850, John M. Clayton, Secretary; from the Treasury Department of January 21, 1850, W. M. Meredith, Secretary; from the War Department, of January 18, 1850, Geo. W. Crawford, Secretary; reporting documents dated May 14, 1846, by W. L. Marcy, then Secretary, including copies of instructions to "Colonel S. W. Kearny, First Regiment of Dragoons, or officer commanding Fort Leavenworth,'' and other papers.
Those are peculiarly interesting and instructive documents, as they disclose the whole plan, from the beginning of preparation for the invasion of New Mexico and California by the land forces, to meet and support the naval squadron on their arrival at Monterey; and Colonel S. W. Kearny was the confidential, trusted agent, selected by the government to carry out that difficult undertaking.
The plan embraced the task of increasing the strength of the army then under command of Kearny at Fort Leavenworth ; of marching it across some three thousand miles of wild and almost uninhabited country to the Pacific Coast; crossing mountains, rivers and deserts; of subduing and holding en route, the sparsely settled province of New Mexico, and garrisoning its capital, Santa Fe. It is refreshing to observe the implicit confidence imposed by Secretary Marcy in Colonel Kearny; and it is admirable to behold how per- fectly the latter executed in letter and spirit the orders of the former ; not only to take and hold the territory, but to protect the inhaliitants in their persons, property and religion.
They were also assured of the early opportunity of electing their own State or territorial officers, the same as in the other territories of the United States.
16 History of the Bench and Bar of California.
It required the time of several weeks to communicate between the War Department at Washington, and Colonel Kearny, who was supposed to be at Fort Leavenworth, on the Missouri River, May 14, 1846, at the opening of the correspondence on the subject of the contemplated expedition.
The foregoing resolution of the House of Representatives, and the Presi- dent's answer thereto, with documents annexed, were accordingly printed. All these were products of the great slavery agitation ; the questions were, whether slavery should be propagated or extinguished; and whether it should be con- fined within its then existing limits, or extended into new states and terri- tories, under all the legal and constitutional protection of the National govern- ment, as sacredly and efficiently as any property or personal rights of citizens are protected ; and were the judicial magistrates and ministerial officers in the free states legally Ijound to lend their services in the arrest and restitution of fugitive slaves to their masters, under all the pains and penalties of the Fugi- tive Slave Law, however much their own private opinion or conscience might revolt at such, to them, humiliating service ; and should no state be admitted as a free state, or unless at least coupled with a slave state, to keep up the "balance of power" in the Senate, which w^as then equally divided on the slavery question — and several other questions of a kindred nature — consti- tuting "the question which now excites such painful sensations in our country," as President Taylor just above expresses it.
The free states had opposed the annexation of Texas, while it was an inde- pendent sovereign republic, because it was already a slave state, and as such while it would widen our national domain and power, and in that respect was (lesiral)le, yet on the other hand, it would essentially enlarge slave terri- tory, and strengthen the power of that institution in the national legislature and polity. Texas was admitted, as we have stated, by Act of Congress of March ist, 1845. ^Pl^roved by President John Tyler, and that act of admission was ratified by vote of the Texan people, February 19th, 1846. Texas con- tained a territory about seven times as large as Pennsylvania ; the Act of Ad- mission provided that it might be divided into five states, thus placing ten Senators more in Congress.
The question was still undecided whether the Rio Grande del Norte or the Nueces river should be the boundary between the United States and Mex- ico. The f|uestion alone might have been settled by peaceful negotiations: but in its relation to other interests it was an element of constant irritation; and yet its importance was magnified by the desire of statesmen of the time, to extend our domain from the northern borders of Mexico and Texas, to Oregon and to the Pacific Coast.
Where there is a will there is a way, as between a stronger nation and a weaker one; as it is in most other affa'irs. Such extension was in a large sense very desirable on our part, especially as viewed in the light of later events. That expansion, besides enlarging our borders, would open a new field for
History of the Bench and Bar of California. 17
the possible extension of the "pecuHar institution." This hope may have been a further inducement to the acquisition of the new territory of Cahfornia, or the reverse would resuh, should the new state decide, as they did later, in favor of free soil.
vSome cruelties and wrongs had been perpetrated on our people by Mexico ; but whether with or without justification, it is not the present purpose to dis- cuss or determine. It is sufficient to say, that in such condition of public senti- ment, the Mexican War began, with the battle of Palo Alto, May 8th, 1846, and ended with the treaty of peace concluded February 2nd, 1848; ratification being exchanged at Queretaro, May 30, 1848. This gave us clear and quiet title and possession of this vast territory, against all the world.
I.EADING EVENTS PRECEDING STATE ORG.VNIZATION.
Clreat events were crowded into the very few years preceding the organization of California. Unlike the states of Europe, of different lan- guages and ancient nationalities and laws, with their monotonous quarrels and ceaseless wars about church creeds and royal succession, the great stretch of territory of California and New Mexico, newly acquired, was free from all such embarrassments. It was mostly inhabited by merciless Indians, sav- age beasts, herds of buffalo and wild horses; and it came to pass, as the result of that acquisition that new states arose, ruled by free men, self-governed under a system of written constitutions and laws of their own choice and construction, designed to secure equal rights to one and all. The church was made subordinate to the State. In the class of modern states last mentioned. California stands as the first-born of the family.
The state-builders of our lately acquired insular possessions of Cuba, Porto Rico, Hawaii, and the Philippines, may yet find some useful hints in studying the history of California, to aid them in their new field, for the exercise of statesmanship; in adapting the principles of republican government, under written constitutions and laws, to foreign territory, peopled by those whose customs, laws, leligion, habits, education, or the want of education, are so different from one another, and all of them so \'ery different from tliDse who from first to last, framed our earlier American constitutions.
If our dominion over those insular possessions had been acciuired under the consolidating pressure of foreign enemies, as was the case with our patriotic ancestors of '76, and with less of the spirit of con(|uest, trade and commercial profit, and less of political and military aml)ition, would not our success in gaining the confidence and respect and aid of the heterogeneous mass of humanity, so suddenly broiight under our banner, have been much greater, more rapid, at less cost of blood and treasure, and more to the safety and credit or our nation? Who shall be our judge? One thing is certain, 1. e., that the events of the last three years of the nineteenth century seem fraught with the destiny of our country and of mankinrl.
18 History of the Bench and Bar of California.
Unlike the early history of ancient nations, we have not to depend on myths or traditions for the origin of the State of California; nor for a clear account of the valor and wisdom of most of its early founders; nor yet is there any uncertainty as to circumstances which gave birth to the military-civil govern- ment of the first four years succeeding our first possession ; for, happily, the fierce sectional contention prevailing in Congress, arising from the slavery question, caused to be introduced into the House of Representatives, and passed on December 31, 1849, the resolution before referred to. There was, at the time, an equal number of free states and of slave states; so that the main question was equally balanced in the Senate. And in each house of Congress, there was eager desire for, and determined opposition to. the exten- sion of slave territory.
Prior to the annexation of Texas, the free states were outgrowing the slave states in territory, population, power and wealth. When that vast independent state, of seven times the extent of Pennsylvania, came in as a slave state, reserving the right to be divided into five states, it presaged a great preponderance of the slaveholders, and caused deep anxiety to the free- soilers, for it seemed to threaten an enlargement and perpetuity of an "insti- tution"' under the protection of the Constitution, which the latter regarded as a menace to the welfare of the nation, and which they hoped might in a rea- .sonable time be abolished. The acquisition of California, adjacent to Texas (for California, as then understood, included everything as far east, at least, as Salt Lake City) was designed to immensely enlarge the slave-holding terri- tory. Such result was regarded by the opposition, with the utmost jealousy, and so w^as stubbornly resisted. President Polk, having favored the annexa- tion of Texas, and active in prosecuting the war with Mexico, ending with the acquisition of this large domain, was naturally thought by the free-soilers to have been covertly shaping affairs in California so as to bring it into the Union as a slave State. This is plainly indicated in the resolution of the Plouse of Representatives. The published state documents, called out by that resolution, prove that such apprehension was c|uite imfounded ; and yet the passage of the resolution as it turned out, served a most valuable purpose, for if sought to rake the state archives to bring to light and put Ijefore the world what seems to exhibit every line of correspondence in the executive depart- ment, touching the acquisition of California, during the term of President Polk's administration, extending also into the first part of the term of President Zachary Taylor.
By the paper of May 14, 1846, above mentioned. Secretary Marcy informs Kearny that Air. G. T. Howard is the bearer of a communication "to the caravan of traders en route to Santa Fe, and he must overtake them with the least possible delay," and requires Kearny to furnish Howard with a detach- ment of dragoons, sufficient in strength to insure his safety through the countrv.
History of the Bench and Bar of California. 19
By another letter to Kearny of May 27th, Mr. Marcy advises him of the re- Hgious prejudices of the Mexican inhabitants of Santa Fe and its vicinity, against the United States, and authorizes assurances to be given "that their rehgious institutions will be respected, the property of the church protected, their worship undisturbed — in fine, that all their religious rights will be in the amplest manner preserved to them." In a letter of June 3rd, 1846, Secretary Marcy writes to Kearny that "it has been decided by President Polk to be of the greatest importance in the pending war with Mexico, to take the earliest pos- session of Upper California. An expedition with that view is hereby ordered, and you are designated to command it. . . . This additional force of a thousand mounted men has been provided, to follow you in the direction of Santa Fe to be under your orders. ... In case you conquer Santa Fe
provide for retaining safe possession of it — garrison it, and wMth the re- mainder press forward to California," and he is "authorized to make a direct requisition for still more troops upon the Governor of Missouri" ; further, he is "desired to use all proper means to have a good understanding with the body of Alormon emigrants en route to California for the purpose of settling the coun- try" ; and he is also "authorized to muster into service as many [Mormons] as one-tbiird of your entire force" ; that "a considerable numlier of American citi- zens are now settled on the Sacramento river, near Sutter's establishment, called Xueva Helvetia, well disposed towards the United States." "A large discretionary ])ower is invested in you" : "the choice of routes to enter California" is left to Kearny.
"It is expected that the naval forces of the United States which are now. or will soon be in the Pacific, wnll be in possession of all the towns on the sea-coast, and w'ill co-operate with you in the conquest of California: arms, ordnance, munitions of war, and provisions to be used in that country will be sent by sea to our squadron in the Pacific, for the use of the land forces." "Should you conquer and take possession of New Mexico and Upper Cali- fornia, or considerable places in either, you will establish temporary civil gov- ernment therein — abolishing all arbitrary restrictions that may exist, so far as it may be done with safety,' . . . 'and continue in their employ- ment 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- house ought at once to be reduced to barely sufficient to maintain the neces- sary officers, without yielding any revenue to the government.' . . . 'As- sure the people of the wish and design of the United States to provide for them a free government similar to that in our territories.' . . . 'They \v\\\ then be called on to elect their own representatives to the territorial legislature."
"It is foreseen that w^hat relates to tlie civil government will l)e a difficult and unpleasant part of your duty, and much must necessarily be left to your own discretion," and "you will act in such a manner, as best to conciliate the inhabitants and render them friendly to the United States.' 'The usual trade
20 History of the Bench and Bar of California.
between the citizens of the United States and the Mexican provinces should be continued as far as practicable," etc.
"You will be furnished with a proclamation in the Spanish language, to be circulated among the IMexican people on entering into or approaching their country. . . . You will use your utmost endeavor to have the pledges and promises therein contained, carried out to the utmost extent."
"I am directed by the President to say that the rank of Brevet Brigadier- General will be conferred on you as soon as you commence your movement toward California, and sent around to you by sea or over the country, or to the care of the commandant of our squadron in the Pacific. In that way, can- non, arms, ammunition, and supplies for the land forces will be sent to vou." This is dated June 3rd, 1846, and is still addressed to Colonel S. W. Kearny, Fort Leavenworth, twenty-four days after the battle of Palo Alto of ]\Iay 8th, 1846 — the first battle of the war.
The communication is marked "confidential" — but it is now of national interest as disclosing how support of this overland army was anticipated by our government in sending in advance to meet them, "the naval forces (which Secretary ]\Iarcy says) now or soon will be in the Pacific, and will be in pos- session of all the towns on the sea-coast, and will co-operate with you (Kearny) in the conquest of California."
The foregoing quotations may be taken as samples of many documents relating to California emanating from the respective departments in the begin- ning and course of the war and down to the organization of the State. They are cited to show the sagacity which marked the whole proceeding. They explain how land and naval forces got along, with no means of rapid trans- continental communication between this Coast and the War Department short of several months; and yet it came to pass that our squadron, after a leisurely stay in ports along the coast, timed it so nearly right as to have ships and armies meet at Monterey and take the town and plant our flag on the old Mexi- can custom-house on July 7th, 1846; that day giving official date to the acquisi- tion of California. The old custom-house still remains in its pristine pride, and the flagstaff which first bore the colors and official honors of "Old Glory'' in California, is divided into sections which are sacredly preserved in the hall of the Society of California Pioneers, and in the State Mining Bureau at San Francisco.
How that flag was kept afloat, by the valor and patriotism of our army and navy, it is not the present purpose to recount; suffice it to say that the numbers opposing us and their means of resistance were ^•ery slim; besides, as a matter of fact the native people rapidly became reconciled to the new con- dition of things.
The Americans in furtherance of their publishctl proclamation of safety and protection of person, property and religion to all peaceable inhabitants, verified that assurance by their acts of kindness and good will ; paving for
History of the Bench and Bar of California. 21
whatever they took in the way of supplies ; thus making money more plentiful ; and it is no strain of imagination to think that the sudden ingress of so many young, strong, heroic, handsome fellows, was not without a pleasant effect upon the minds of the ladies of the land, to say nothing of the charm of the dazzling uniforms of the graceful, polite and cultured officers, whose native impulses that way had been quickened by orders from the \\'2.r Department to make themselves as agreeable as possible — which orders turned out to be supererogatory, for on a short acquaintance, the ladies of the Departmental capital, proved to l)e not only fascinating, but irresistible — as did many later marriages attest.
Immediately after raising our flag, the fast assembling land forces under Fremont, with some of the Bear Flag captors of Sonoma, and Kearny's regi- ments and others — the arrival of further troops by sea, including the J. D. Stevenson regiment, soon made the conquest of California an established fact, in which the inhabitants, finding themselves prosperous and happy, seemed cheerfully to acquiesce.
On review, it seems probable and safe to believe, that the pleasing excite- ment and flush times which attended the discovery of gold, caused a diversion of the popular attention from all questions of politics and change of flag, to the more safe and profitable employment of gathering w^ealth, more ra])idly than their brightest dreams had ever pictured ; besides all of wdiich, their new condition was so peaceful, the new government rested so lightly over all the land — almost unfelt — they must soon have become reconciled to a change so beneficial.
This was the condition of the people which followed by progressive steps, the capture of California as above related. It made the management of the civil government much more simple and easy than it might have been, had conditions been otherwise.
It is said by General Grant in his memoirs, that the army officers engaged in the Mexican War, were all gentlemen, educated to their profession. Tliis was eminently true of l)oth army and navy officers wIk* particii)ate(l in the cap- ture and early government of California.
Strange as it may seem. Congress, having then lately extended the revenue laws to California, Colonel Collier, the first collector, came not till November, 1849. Congress stopjjcd tliere, and made no prox'ision for a ci\-il go\-ernnicnt : but rested content with the civil authority in the hands of the people, and municipal and judicial magistrates, under th.e ultimate jurisdiction of the Commanding Generals of the military department, who chiefly were Kearnv, Mason and Riley, successively. How wisely and how well they performed those functions we may not now eulogize as they deserve; but some future historian will, we trust, emblazon their just and patriotic deeds on immortal pages.
From the confusion incident to the sudden change of flag, all the municipal and (Iciiartmcntal records of the former go\-crnmcnt fell into great disorder.
rin
History of the Bench and Bar of California.
\
they were scattered, and many of them lost; besides the further embarrassment of their being written wholly in the Spanish language, which was understood by very few of our people.
A week after the raising of our flag on July 7th, 1846, there sailed from New York, the United States transport ship Lexington, wnth military officers and above one hundred troops and stores for California, arriving at Monterey, January 26th, 1847, under Captain C. O. Tompkins, master. m
The army officers aboard were Lieutenants William T. Sherman, E. O. C. Ord, Lucien Loeser, Colville J. Minor and H. W. Halleck, all graduates of West Point, and of some military experience ; and Dr. James L. Ord, then a '
late graduate of Jefferson Aledical college, Philadelphia, who bore the com- mission of physician and surgeon for these officers and troops of the ship. He used to relate with a proper degree of self-satisfaction, that on the next day after their arrival at Monterey, every man who started on that voyage, was w'ith them in sound health, and that the officers, wnth their men shoulder- ing arms and knapsacks, marched into the tow'n and relieved the marines then in charge, wdio returned to their ships in port.
The officers just named, were all young men, who had already seen some hard military service in the Seminole Indian War in Florida, and elsewhere. They became very active and efficient factors under the government of the newly acquired territory, in various capacities. This appears in the report of President Taylor, showing their map of Lower California, with its towms, and the bays and islands in the Gulf of California. With the map, there is also a full report descriptive of the people, the soil, climate and productions of the country, surpassing in fullness, anything since written in connected form. One of those officers also became Secretary of State, in charge of the public archives under the military Governors; and all of them, and many others, appear in the President's report, as conserving good order, in subduing hostile Indians and aiding the alcaldes in the arrest and punishment of crimi- nals and outlaw^s.
INSTRUCTIONS, PROCLAMATIONS AND ORDERS.
A brief notice of some of the orders and proceedings of the military-civil Governors, their proclamations, and the instructions under which they acted, may serve as samples of all they did in the line of civil government from July, 1846, to December, 1849.
Soon after his arrival. Lieutenant IT. W. Halleck was employed by the successive Governors in the civil department as secretary of the Territory of California, including the care, collation and arrangement of the records and pa]:)ers of the former government, and he also "in his proper profession as an engineer officer, acquitted himself with great credit in every situation" — as the military-civil Governor, R. B. Mason expressed it in his report to the War Department under date of December 27th, 1848.
History of the Bench and Bar of California. 23
We must omit the good things said in the same report of other officers, and of their services, including the punishment of hostile Indians. Colonel Mason says in the same report, after describing his visit to the mines, "that several most horrible murders have of late been committed in this coun- try," describing the massacre of ten persons, men, women and children, at the mission of San Miguel, doubtless by white men ; no mention of any arrests. He speaks of three men being "hung in Pueblo de San Jose, for assault with intent to kill, and for robbing the assaulted, who were bringing gold from the mines. On complaint to the alcalde at San Jose, three of the assailants were arrested, tried before a jury, who convicted them." The evidence against them was clear, so they were sentenced to death by hanging; the sentence was executed on Monday last. "You are aware that no competent civil courts exist in this country, and that strictly speaking there is no legal power to execute the sentence of death." The Governor adds to the above : "I shall not disapprove of the course that was taken in this instance, and shall only endeavor to restrain the people, so far as to insure to every man charged with a capital crime, an open and fair trial by a jury of his countrymen."
And touching the San Miguel crimes and the murder of Mr. Reed's fam- ily, the Governor reports : "I despatched Lieutenant Ord with a couple of men, to that mission to ascertain the truth, and if need be, to aid the alcalde in the execution of his office." Colonel Mason closes his report of December 27th, 1848, at Monterey, with this :
"The latest dates from the departments are of the i8th of April, l)r(^ught out by the ship Huntress ; and to illustrate how completely we are cut off from any communication with the United States, I wall merely mention that Major Graham's command received orders and marched across the continent, bring- ing with them the first intelligence of their coming."
The Indian agents then, as now, were appointed by the authorities in Wash- ington, but they were entirely under the direction of the Governor, who appointed assistants where necessary.
And so, with the custom-house officers, as appears by his "circular"' of June 1st, 1847. "R- B. Mason, Colonel First Dragoons, Governor of California," directs that "the military officers of Upper California, who have been directed to settle the accounts of the custom-house officers, etc., to receive from them the funds arising from the customs" will keep an account with these head- quarters, a])art from all other public funds in their possession. "These funds will be applied only upon the order of the Governor, to the civil department of California."
It appears that General Kearny left California for the East. May 3Tst, and Colonel Mason took charge as Governor on June ist, 1847, when he issued the above circular — and the next day he is giving the alcalde of Sonoma some aid and comfort as to the duties of his office, promising him the necessary military aid ; and adds that he having been only two days in office as Governor,
24 History of the Bench and Bar of California.
is not prepared to define the extent of the alcalde's powers and jurisdiction, and adds, "You must, for the time being, be governed by the customs and laws of the country, and by your own good sense and sound judgment."
The Governor regrets that he cannot afford any greater mail facilities than the military express, which has been established once in two weeks between San Francisco and San Diego, which carries the letters and papers for all persons free of charge."
The foregoing, taken promiscuously from hundreds of the like examples, will serve to show that the office of Governor of California was one of unlim- ited scope — and that it was one of great care and labor, which required both readiness and vigor of judgment; and that those duties were performed by each and all of those Governors and all oflficers under them, with distinguished ability and with perfect purity of motive, with an eye single to the highest public good. In fact, it seemed to have been their only purpose and intention to carry out in good faith, all that had been promised in the several proclama- tions to the Mexican people, in the way of freedom, justice, protection and rights, to be enjoyed by them equally with all other citizens of the United States.
These promises, so faithfully performed, resulted in the cheerful acquies- cense and co-operation of the inhabitants in the administration, until and including the fully organized government of the new State of California.
It will be sufficient to give the date and substance of a few of a multitude of orders, etc., of the military Governors, taken promiscuously, which may serve as samples of a thousand similar ones. ]\Iost of Governor Mason's papers run thus : "Governor ]\Iason directs me," thus and so, concluding thus : "I have the honor to be, very respectfully, your obedient servant, W. T. Sherman, First Lieut. Third Artillery, A. A. A. General."
Governor R. B. Mason appoints John Foster an alcalde in the District of San Juan, embracing the ranches of San Juan, San Luis and Pala. in Upper California. July 14th. 1847.
Governor Mason promises Alcalde George Hyde he will soon come up to San Francisco from Monterey to adjust the survey of 100 vara lots or else will appoint commissioners. Dated July 14th. T847.
Governor Mason informs Don Miguel de Pedrorena. collector of customs at San Diego, that his salary will be at the rate of $1000 per annum, "provided revenue to that amount be collected and received in your office."
"Edwin Bryant, Esq.. is hereby appointed alcalde of the town of Verba Buena and of the District of San Francisco, vice Lieutenant W. A. Bartlett, who returns to his naval duties.
"Given at Yerba Buena, Upper California, this 22nd day of February, 1847. and in the seventy-first year of the independence of the United States.
"S. \V. Ke.\rnv, "Brigadier-General. United States ,'\rmy."
"Know all men by these presents, that L Richard B. Mason, Colonel First Dragoons, United States .\rmy and Governor of California, by virtue of author- ity vested in me, do hereby appoint J. S. Hunter a sub-Indian agent for the Indians in the lower district of Upper California.
History of the BencJi and Bar of California. 25
"Given at Santa Barbara, Upper California, this ist day of August, 1847. and the seventy-second of the independence of the United States.
"R. B. Mason."
The Governor ordered municipal elections at different times and places, set aside those he deemed irregular, ordered elections for prefects and sub- prefects, etc., too numerous to even refer to here in detail ; appoints numerous notary publics at San Francisco and other places.
Captain John A. Sutter, under date of July 12th, 1847, writes from New Helvetia to Governor Mason, recounting outrages at three places widely sepa- rated, perpetrated on peaceful Indian camps, murdering some and carrying away some as slaves ; that he has ordered complaints made to the local alcaldes, and asking written instructions from the Governor, as to how he as sub-Indian agent, is to act in these cases, and in the general management of the Indians.
The Governor replies, July 21st, expressing regrets at the outrages; he directs Captain Sutter "to call on the military officer near you for all the assistance in his power to afford," adding "when arrested I will organize a tri- bunal for their trial, and if sentence of death is passed upon them. I will see it executed," . . . and directs Captain Sutter to restore the captured Indians to their people," etc.
August 19th, 1847, Governor Mason sent a commission to General Vallejo and Captain vSutter to hold a special court for the trial of Armijo, Smith and Eggar, charged with committing the outrages on the Indians mentioned by Sutter, (with particular directions for a fair trial).
In Robidoux vs. Lease, in June, 1847, Governor Mason refused a change of venue, a second time, the case being in the alcalde's court, giving good, lawyer-like reasons.
Stockton's proclamation.
Commodore Sloat left California for the Atlantic states on July 22nd, 1846 (some fifteen days after raising the flag at Monterey), leaving Com- modore Stockton in command of his s(|uadron.
Commodore Stockton, on August 17th, 1846, issued a proclamation to the people of California, saying, "it is soon to be governed by laws and officers similar to those of other territories — but until the Governor, the Secretary and Council are appointed, . . . military law will prevail, and the com- mander-in-chief will be the Governor and protector of the territory."
The proclamation "requests the people in the meantime to meet in their several towns and departments when they see fit, to elect civil officers, to fill the places of those who decline to continue in ofi'ice, and to adnu'nister the laws according to the former u.sages of the territory. In all cases where the people failed to elect, the commander-in-chief and the Governor will n\akc the appointments himself."
26 History of flic Beiicli and Bar of California.
MARCY TO KEARNY.
Mr. Marcy, Secretary of War, under date of January nth, 1847, writes 10 "Brigadier General S. W. Kearny, commanding in California," saying:
"The war with Mexico exists by her own act and the declaration of the congress of the United States; that the possession of the enemy's territory acquired by justifiable acts of war, gives us right of government during the continuance of the possession, and imposes on us a duty to the inhabitants, who are thus placed under our dominion." He shows that if the conquest i.= approved by subscf|uent treaty, 'then the imperfect title acquired by conquest is made absolute, and the inhabitants are entitled to all the benefits of the- federal constitution, to the same extent, as the citizens of any other part of the Union."
"During our military possession, the inhabitants should be permitted to participate in the selection of agents to make or execute the laws to be en- forced."
GENERAL KEARNy's PROCLAMATION TO THE PEOPLE OF CALIFORNIA.
This paper is dated at Monterey on March ist. 1847, in which he says in his opening words :
"The President of the United States, having instructed the undersigned to take charge of the civil government of California" — he adds that his instruc- tions are to respect and protect all religious rights, property and institutions, etc., and to see that they are preserved to the people in the amplest manner. That until further legislation by congress, the existing laws will be continued until changed by competent authority; and "those who hold ofifice will con- tinue in the same for the present," providing that they swear to support the Constitution, etc. The proclamation continues, saying, "when Mexico forced war upon us, we had no time to invite Californians as friends, to join our standard, so that we were compelled to take possession of the country to pre- vent any European power from seizing upon it. The Americans and Califor- nians are now but one people.''
KEARNY GRANT.
On March loth, 1847, General Kearny granted "to the town of San Fran- cisco, the people or corporate authorities thereof, all the right, title, and in- terest of the government of the United States and of the territory of Cali- fornia in and to the beach and water lots on the east front of the said town," etc. This purports to have been done "by virtue of the authority in me vested by the President, etc." Of course that act was void for want of power to make it. But the State legislature of California, by Act of March 26th, 185 1> confirmed the grant for ninety-nine years.
On March 27th, 1847, General Kearny ordered Colonel R. B. Mason
I
History of the Bench and Bar of California. 27
to proceed to the Southern Military District of this territory, at Los Angeles, to ins])ect the troops in that (juarter. "Yon are hereby clothed with full authority to give such orders and instructions, in that country, upon all matters whatever, both civil and military, as in your jndgiuent you mav think con- ducive to the public interest."
A note by Kearny, dated next day after the above order, was addressed to Colonel Fremont, at Los Angeles. The latter about those days, was him- self claiming to be Governor of California; but that claim was not sustained by the naval or military officers present, nor by the administration.
DIVORCKS.
A married couple applied to an Alcalde for a divorce. The alcalde con- sulted (Tcneral Kearny. He advised the alcalde as follows: "That the hus- band and wife each should choose an arbitrator ; and the two thus chosen must choose a third, then let the three arbitrators, in your presence, hear what both ])arties have to say. and flecide whether the parties [naming them] shall be separated, for three, six, or twelve months, if separated at all." CouU' the wisdom of Solomon excel that judgment?
On May 28th, 1847, General Kearny appointed George Hyde alcalde of the District of San Francisco vice Edwin Bryant, resigned. Mr. Hyde, soon after this appointment, was elected alcalde by vote of the people of the town.
The governor ordered municipal elections at various times and places foi prefects, sub-prefects, etc. ; he also set aside other elections for irregularity. On July 14th, 1847, Govern.or Mason appointed "John Foster as alcalde for the District of San Juan, em1)racing the ranches of San Juan, San Luis and Tala in L^pper California."
In Robidoux v. Lease, in June, 1847, Governor Mason refused a change of x'enue a second time, the case being in the alcalde's court; giving good lawyer- like reasons for refusal.
GOVERNOR MASON PROCLAIMS PIvACK.
On August 7th, 1848, "Colonel R. B. Mason, Colonel First Dragoons, Governor of California." makes public proclamation of the ratification of the treaty of ])eace, and friendshi]) between the United States :nid Mexico, bv which Tpper California is ceded to the United States. He says, that until we shall have a regularly organized territorial government, the present c;\il officers will continue in the exercise of their functions as heretofore, and when \'acancics shall occur, they will be filled by regular elections held bv the peonle.
Mr. Marcy .says to Colonel Sterling Price, in letter of June iith. 1847: "The temporary civil government in New Mexico results from the conquest of the country. It does not derive its existence directlv from the laws of congress, or the constitution of the United vStatcs, and the President can not.
28 History of the Bench and Bar of California.
ill any other than that of Commander-in-Chief, exercise any control over it. It was first estaljlished in New Mexico, by the officer at the head of the miHtary force, sent to conquer the country under general instructions contained in the communication from this department of the 3rd of June, 1846. Beyond such general instructions, the President has declined to interfere with the management of the civil affairs of this territory." This letter is addressed to the "ofificer commanding the United States forces, at Santa Fe, New Mexico.'" Here, again, is an attempt to define the status of the military authority, relating to civil laws, unrepealed, which were admittedly in operation in all local municipal aft'airs, at least. New Mexico and California were both in rhe same legal condition. The validity of the local municipal laws, is prac- tically acknowledged retrospectivel}-, in recognition of the alcalde grants of town lots, by the various alcaldes in San Francisco, and also in the other pueljlos from 1846 to 1849, '^"<^1 '^'so by the recog-nition of a title to a parcel of 500 acres of the pueblo lands of San Jose, granted by an alcalde (the Chiboya claim) ; and the like recognition of title to a half-league of puelilo land, of Los Angeles, granted by the alcalde of that pueblo (the Rocha claim — 9 Wallace, 647). The law did not change, though land values, almost nominal at the times of the grants, rose enormously before the date of final decisions thereon by the Supreme Court of the United States.
ALCALDES AND LARLY LAND GRANTS.
In all the principal towns in California, including San Diego, Los Angeles, Santa Bar])ara, San Jose, San Francisco, Sonoma and some others, perhaps, the alcaldes were elected by the inhabitants of the place; and in case of a vacancy, for any cause, in that ofiice, it was filled by the Governor. The al- caldes, respectively, of those pueblos were the well recognized heads of the mu- nicipality.
By the laws and customs of Mexico, those towns or puel)los. as they were called, were entitled to imeblo lands, usually to the extent of four leagues to each pueblo, for the use and benefit of the inhabitants.
They were usually distributed to the inhabitants, by grants of lots, as needed. Grants were made by the alcaldes. Such was the practice in San Francisco, where the practice began as early as 1836 and continued down to the passage of the first city charter enacted by the legislature of the State, .April 15th, T850.
For a while before the charter of 1850 went into effect, town lots were sold at public auction by order of the town council; the deeds were made to the purchasers by the alcalde, in the name of the town. It is believed that such was the practice of distributing town lots by alcalde grants in all the other pueblos of California.
The alcaldes, under the new regime, who succeeded the first two already named, i. c., Bartlett and Bryant, were George Hyde, Thaddeus M. Leaven-
History of the Bench and Bar of California. 29
worth, and John \V. Geary. They were all elected by the inhabitants of the town. They all granted town lots. Those grants were entered" of record by them. The books containing the grants compose the record title of such lots, derived from the town and are a part of the city land titles in the official custody of the county recorder.
For a full and particular account of all the grants of town (or pueljlo) lots made by the alcaldes, ayuntamientos or other municipal authorities of the pueblo, town or city of San Francisco from the year 1836 to 1851, the reader i.s referred to "AMieeler's Land Titles." It is an abstract from the official records, made under the direction of the Towai Council. It shows the date of grant or sale; description of every lot granted; the name and title of the officer or authority bv which the grant was made.
CAl,L FOR A COXSTITUTIONAL CONVENTION.
General Rile3\ the Governor, on June 3, 1849, issued his proclamation for holding a special election August ist. next, "for the election of delegates to a general convention, and for filling the offices of judges of the Superior Court, prefects and sub-prefects, and all vacancies in the office of first alcalde (or judge of first instance), alcaldes, justices of the peace and town councils."
The Governor puts the reasons for his call on the ground that "congress has failed to organize a new territorial government." . . . "so that it becomes our imperative duty to take some active means to provide for the wants of the country." . . . "by putting in full vigor the administration of the laws as they now exist, and completing the organization of the civil government by the election and appointment of all officers recognized by law," "and a convention to meet and frame a State constitution or a terri- torial organization." to be ratified by the people and by congress. He repels "the im])ression that the government of the country is still military. Such is not the fact. The military government ended with the war, and what re- mains, is the civil government, recognized in the existing laws of California."
"Although the command of the troops in this department and the admin- istration 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 of the same individual, they are separate and distinct."
"No military officer, other than the commanding general of the depart- ment, exercises any civil authority by virtue of his military commission ; and the powers of the commanding general as ex-officio governor, are only such as are defined and recognized in the existing laws."
"The instructions of the Secretary of War, make it the duty of all military officers to recognize the existing civil government, and to aid its officers with the military force under their control." "The existing laws of the country must continue in force until replaced l)y others made and enacted by comi)e- tent power."
30 History of the Bench and Bar of California.
On September 19, 1849, Governor Riley tells E. O. Crosby, Thomas O. Larkin. and others, a committee of the constitutional convention, that the "accounts and affairs of the con\ention, should be certified by the president of the convention as just and true, and authori::cd by the convention; then on receiving my written approval, they will be paid by the civil treasurer, or his agents." The "civil treasurer" meant the keeper of custom-house receipts, etc. All monies so collected went not into the national treasury, but went to pay local expenses of California.
Had the author of the opinion in \Voodworth v. Fulton (i Cal. Rep., de- cided December, 1850) read this opinion of General Riley, and those of the other generals, and the opinions of Secretary Marcy and Secretary Buchanan, above Cjuoted, that opinion would never have been pronounced. Then the city would not have suffered the stunning effects of that decision, till it was finally corrected l)v the proper one in Cohas v. Raisin, some two years later. (3 Cal. 443.)
The foregoing copies and extracts of ofticial papers, are proft'ered, in evi- dence of the ardent jnu'ijose of the administration and its officers, to make our government both agreeable and profitable to our newly-adopted fellow- citizens.
The same spirit of peace and good will is manifest in every act and order of the officers who were expected to carry such policy into execution. The calm and unpretentious tone in the correspondence of these officers, with their sub- ordinates, is worthy of imitation. Their kind and courteous intercourse with the officers of the naval squadron, brought the two arms of the service in per- fect accord in all things they undertook in the concjuest and government of this territory.
The exceptional breach of such kindly intercourse among officers of the army and navy arose between Kearny and Fremont in 1847, fi'oni the question, which was governor, /. e., was it Kearny under the President's order of 1846, or was it Fremont, under Stockton's appointment in July, 1847.
It is foreign to present purposes to discuss the merits of that bitter quarrel, which aroused a contest of the ])arties and their friends, including cabinet officers, senators and others, of a very serious nature.
After California came into the possession of the United States, the alcaldes. Judges of First Instance, prefects, etc., in some of the principal settlements, continued to exercise their wonted Junctions as nearly as they could, in con- formity to the Mexican civil laws and customs; which, of course, were still unrepealed, and therefore unaffected by the change of flags. But more often the places of the native officers were filled by new-comers from "the States," while in the mines, where was the mass of population after mining began, the miners appointed their own alcaldes from their own numbers, and they, with the aid of a jury, when demanded, tried mining suits, criminal cas^s and the like, in general conformity to court procedure; and so administered justice with celerity, in a spirit of real fairness, and to the satisfaction of the com-
History of the Bench and Bar of California. 31
niunity. There were exceptions to the calm jury-trial practice, in some of the mining camps, where capital punishment was visited on certain criminals ; and scarcely less harsh and severe penalties were inflicted on others, without the form of a deliberate trial. It was to avert such consequences that alcaldes at times meted out severe correction.
The foregoing outline of California's history may prove useful to readers who desire to understand some of the chief events as they occurred in connec- tion with the Mexican War, as it related to the acquisition of the State, and to .show their relation to each other, and to the respective movements in Mexico and in California, as parts of a broad and general plan of action.
It indicates the vast powers confided, tacitly, not explicitly, to the military officers here, and shows the remarkable wisdom, patriotism and fidelity with which those duties were performed. It suggests that such duties, committed to talented, well-trained men, educated in our military and naval schools, are regarded by them as a sacred trust, never to be neglected or violated.
We have pointed to a reservoir of precedents, which may be useful to all who have a part in public rule, who may be dependent on their knowledge and mental resources to guide them in their fields of action.
The thoughtful statesman cannot study, without admiration and wonder, the even temper, the sustained moderation, with which our army officers for nearly four years, in the absence of legislation and almost beyond reach of the paramount authorities, administered all military and ci\'il affairs in the vast and conquered country.
SAMUEL W. IIOLLADAY.
San Francisco, Cal., Decemljer i, 1900.
JAMES BUCHANAN'S OPINION ON SOME CONSTITUTIONAL QUESTIONS.
In the autumn of 1848, the Postmaster-Cicncral appointed William \'an \drhies "an agent under the act to establish certain postal routes"' in California, approved August 14. 1848.
As Mr. Van Vorhies was about to start fo.- California on that mission, he received a letter of instructions from James Buchanan, then Secretary of State under President Polk ; the letter bearing date October 7, 1848, saying to Mr. Van Vorhies, among other things : "The President has instructed me to make known, through your agency, to the citizens of the United States inhabiting that Territory, his views respecting tlieir present condition and future prospects."
"The President congratulates the citizens of California on the annexation (^f tlieir fine province to the United States." . . . "On the 30th of May, 1848. the day on which the ratifications of our late treaty with Mexico were exchanged, California finally became an integral portion of this great and glorious republic; and the act of Congress to which I have already referred, in express terms recognizes it to be within the territory of the United States."
32 History of the Bench and Bar of California.
After some further congratulations upon their annexation, the letter saj'S :
"Under such a constitution and such laws, the prospects of California are truly encour- aging."
"The President deeply regrets that Congress did not at their late session, establish a territorial government for California." . . . that he "is convinced that Congress will at an early period of the next session provide for them a territorial government, suited to their wants." ...
"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 estab- lished 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 government in California? Are life, liberty and property under the protection of no existing authority? This would be a singular phe- nomenon 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 dc 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 inferred from the fact that no civilized community could possibly desire to abrogate an existing government, when the alternative presented would be to place themselves in a state of anarchy, be3^ond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest. This government dc 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. For this reason no import duties can be levied in California on articles, the growth, produce, or manufacture of the United States, as no such duties can be imposed in any other part of our Union on the prodticts of California. Nor can new duties be charged in California, upon such foreign productions as have already paid duties in any of our ports of entry, for the obvious reason that California is within the territory of the United States."
After dilating on the peaceful and prosperous conditions of California, the postoflfice laws extended to California ; the contemplated "monthly steamers on the line from Panama to Astoria, to stop and deliver and take mails at San Diego, San Francisco, and Monterey," that "appropriations have been made to maintain troops to nrotect the inhabitants against all attacks from civilized or savage foes," etc., etc., the letter adds :
"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 resulting from the best form of civil government ever established amongst men. . . .
"A considerable portion of the population of California were Mexican citizens before the late treaty of peace. These, our new citizens, ought to be, and, from the justice and generosity of the American character, the President is confident that they will be, treated with respect and kindness, and thus be made to feel that by changing their allegiance they have become more prosperous and happy."
In the opening lines of the foregoing letter, Mr. Buchanan says that the President has instructed the writing of it (in eflfect) to the people of California. Doubtless it reflects the united counsels of President Polk and his entire cabinet, composed as it was, of wise and great men. In anticipation of questions that may arise applicable to our lately extended dominions, it is hoped that some of the principles of government, adopted by President Polk and his cabinet, may be found applicable to these later strains upon the Constitu- tion.
S.IML'EL Jl\ HOLLADAY.
THE BIRTH OF THE COMMONWEALTH
"ROCKWELL 1). HUNT, Vh. T>.
'Professor of History and Political Science
in the University of the Pacific
& & & & 'A dfe A jfc ab &
HISTORY of the BENCH and BAR of CALIFORNIA
6^(^
T/ze BIRTH of the COMMONWEALTH
Half of a century has passed since there met in old Monterey a distin- guished body of men, who gave California her first fundamental law as a commonwealth of the United States of America. Those pioneers of the Pacific, together with their generation, have with hardly an exception gone to their long home. The days of '49 — thrilling, epoch-making, unique — can never be reproduced.
The seizure of California was a most important act in the drama of our war with Mexico. Tidings of peace were received by General Riley, August 6, 1848. Under the military rule of Governor Mason many of the American settlers had become exceedingly restive in the absence of a regular civil gov- ernment. Now that the Treaty of Guadelupe Hidalgo left California an integral part of our national domain the settlers became even more clamorous for civil organization based upon American principles. In the meantime the discovery of gold almost infinitely increased the need for organized gov- ernment and the more perfect administration of justice. In those days of gold there was among lovers of law and order — be it said to their honor — much genuine solicitude for California's future.
Repeated failures of Congress to provide suitable organization, because of the burning question of slavery extension, greatly increased the gravity of the situation and multiplied the embarrassing difficulties of the de facto Gov- ernors. California was filling up with a heterogeneous tide of adventurers and fortune-hunters from all lands; the gaming-table was rapidly breeding drunkenness and crime; law was almost wholly wanting, justice was being defeated and villainy was fast becoming rampant. California, now "to be morally and socially tried as no other American community ever has been tried," became the focus of the world's attention. It is little cause for sur- prise, therefore, that patience was at length exhausted, and that the people, true to their Anglo-Saxon instinct and training, without waiting longer for Congress or Governor, initiated a widespread movement looking toward civil government.
36 History of the Bench and Bar of California.
The first provisional government meeting was held in Pueblo de San Jose, December ii, 1848. This enthusiastic gathering unanimously recommended that a ''general convention for the purpose of nominating a suitable candidate for Governor, and for such other business as may be deemed expedient be held at the Pueblo de San Jose on the second Monday in January next." Three delegates, Messrs. Dimmick, Cory, and Hoppe were chosen. At San Francisco a similarly enthusiastic meeting was held, and similar recommend- ations were adopted, the date of the proposed convention, hoAvever, being fixed at the first Monday in March, 1849. Several other dates were subse- quently recommended by various district meetings; but finally the first Mon- day in August, a date remote enough to allow the southern district to be rep- resented in those days of slow communication and travel, was conjointly agreed upon.
On February 12, the people of San Francisco, in mass meeting assem- bled, established a temporary government for that district under circum- stances that would seem to render such action both logical and justifiable. Thus arose the ''Legislative Assembly of San Francisco," comprising among its fifteen members some whose talents were of the highest in California. The just motives of these select men cannot be questioned, neither can their unceasing loyalty to the United States be impeached. In default of neces- sary officials there were also chosen three magistrates, a treasurer and a sheriff. The population of San Francisco which in March. 1848, numbered 812 souls, had increased by February, 1849, ^o some 2,000, and by July to upwards of 5,000.
In the midst of these preparatory movements for civil organization, Gen- eral Bennett Riley arrived, April 12, on board the Iowa, and the following day relieved Colonel Mason as acting Governor of California. Cognizant of the movements of the people for organization, he awaited, with such patience as circumstances would permit, news of Congressional action. Immediately on learning of the third failure to provide for the civil govern- ment of California he issued a carefully drawn proclamation, dated June 3, "defining what was understood to be the legal position of affairs here, and pointing out the course it was deemed advisable to pursue in order to procure a new political organization better adapted to the character and present con- dition of the country." The proclamation contained the following important provisions : "In order to complete this organization with the least possible delay, the undersigned in virtue of the power in him vested, does hereby appoint the ist of August next as the day for holding a special election for delegates to a general convention, and for filling the ofiices of Judges of the Superior Court, prefects and sub-prefects, and all vacancies in the offices of first alcalde (or Judge of first instance), alcaldes, justices of the peace and town councils. The general convention for forming a State constitution or plan for territorial government will consist of thirty-seven delegates, who will meet in Monterey on the ist day of September next."
History of the Bench and Bar of California. 37
Meanwhile General Riley had been made aware of the existence and force of the San Francisco legislative assembly, w'hich had been assuming new and more extended powers. The assembly did not recognize any civil power as residing in General Riley, a military officer. Accordingly Riley's proclama- tion, appointing day and place for a constitutional convention, provoked no slight opposition; and the San Francisco legislative assembly, which had become the head and front of the settlers' movement, again took occasion to assert w-hat it considered its undoubted right; "It is the duty of the govern- ment of the United States to give us laws ; and when that duty is not per- formed, one of the clearest rights we have left, is to govern ourselves." The assembly even recommended a general convention to be held at San Jose on the third Monday in August, 'Svith enlarged discretion to deliberate upon the best measures to be taken ; and to form, if they upon mature consideration should deem it advisable, a State constitution to be submitted to the people." Almost simultaneously wath the publication of this address Governor Riley issued a proclamation to the people of San Francisco, pronouncing the "body of men styling themselves the 'legislative assembly of the district of San Francisco," an illegal and unauthorized body, wdiich had usurped powers vested solely in the Congress of the United States, and warning all persons "not to countenance said illegal and unauthorized body, either by paying taxes or by supporting or abetting their officers." It looked for the moment as if the legislative assembly had assumed an attitude of reckless defiance, but this was true only in appearance.
The people on the one hand and the de facto Governor on the other had now arranged for a general constitutional convention, the date and place conflicting. The opposing theories which for convenience may be called the Settlers' Theory and the Administration Theory, on the question of the legal status of California from the ratification of the treaty with Mexico to the adoption of the State constitution had now been clearly defined and respect- ively defended in the territory itself. Which side should give way?
Happily in this case the people w-ere not sticklers for their alleged rights. What they desired was organized government ; the end was paramount, the means of securing it secondary. Hence indications of satisfaction wMth and acquiescence in Riley's plans began almost immediately to manifest them- selves. San Jose first expressed satisfaction, and other districts followed. The San Francisco legislative assembly, viewing with hopefulness the chang- ing situation, finally recommended the propriety "of acceding to the time and place mentioned by General Riley, in his proclamation and acceded to by the people of some other districts." This was not deemed a concession of prin- ciple, but a matter of expediency, for the assembly still refused to recognize any rightful authority to appoint times and places as residing in General Riley. The quiet downfall of the assembly, which had remained loyal to the w^elfare of California to the last, was recorded the next week, July 19.
The controversy was at an end. The election of delegates to the conven-
38 History of the Bench and Bar of California.
tion elicited unanticipated interest in every district, the result in large measure of the special efforts of Generals Riley and Smith and Thomas Butler King. The native Californians of the southland showed unexpected cordiality, and even the miners turned aside to seek out suitable candidates. "It seemed, however." as Dr. S. H. Willey has said, "like a very odd idea for such a mass of strangers as were then in California, speaking in diverse languages, know- ing little of each other's views, a great part of them men without families and in the country only for a temporary purpose, to go to work within a few months of the arrival of most of them, without any authority or encourage- ment from Congress, to set up a new State." Scheming of parties and politi- cal machinations were wanting, the earnest endea^•or being to select competent men. By Septeniber i. many of the delegates were in Monterey, but no quorum appeared at the Saturday meeting.
The convention organized on Monday, September 3, 1849. opening with prayer to Almighty God "for his blessing on the body in their work, and on the country." The meeting p\Rce was the upper story of Colton Hall, one of the most important buildings extant from the standpoint of our State history. The choice of Dr. Robert Semple, of Kentucky, for president seems to have been eminently wise. The key-note of the convention was struck when in his brief address he said : "We are now% fellow-citizens, occupying a position to which all eyes are turned. . . . It is to be hoped that every feeling of harmony will be cherished to the utmost in this conven- tion. By this course, fellow-citizens, I am satisfied that we can prove to the world that California has not been settled entirely by unintelligent and unlet- tered men. . . . Let us. then, go forw^ard and upward, and let our motto be, 'Justice, Industry and Economy.' " William G. Marcy was elected secre- tary, and J. Ross Browne reporter.
This convention, meeting under circumstances quite unique, presents a personnel of unusual interest. There were majiy Americans who had already rendered conspicuous service in laying the foundation of the commonwealth. The Hispano-Californians numbered seven, and there was one native each of Ireland, Scotland, Spain, France and Switzerland. Here was a body of men, not of national reputation nor of extraordinary learning, but for the most part disinterested, competent and zealous for the faithful discharge of their high commission. California's first constitution was not the sudden creation of unintellectual gold-hunters ; for only six of the delegates had resided in California less than six months, while twenty-two, exclusive of native Californians, had resided here for three years or longer. \\'ith good reason Professor Royce declares: "Had these men of the interregnum not preceded the gold-seekers California would have had no State constitution in 1849."
The roll of members included Captain John A. Sutter, universallv known for his hospitality and amiable qualities, whose fort at Sacramento had been for a decade the chief rendezvous of central California for the American
History of the Bench and Bar of California. 39
immigrants ; Captain H. W. Halleck, then Governor Riley's efficient Secretary of State, and since distinguished in law, literature, and war ; Thomas O. Lar- kin, widely known as the first and last American consul to California ; Edward Gilbert, pioneer journalist and an early representative in Congress ; William M. Gwin, undoubtedly the most distinguished politician of the convention, who had four months before come to California with the express purpose of securing his election to the United States Senate; and John McDougal, of Ohio, who became second Governor of the new State on the resignation of Burnett. The seven native Californians, a fair representation, comprised some of the best-known names of the old regime; General M. G. Vallejo, for many years known as the "most distinguished of living Hispano-Califor- nians" ; P. N. de la Guerra, the most accomplished and best-educated of the group; Jose Carrillo, intelligent, forceful, of pure Castilian blood, but some- what prejudiced against the Americans ; Antonio Pico, of distinguished family, shrewd if not always suspicious ; — these, with the more obscure names of Manuel Dominguez, Jacinto Rodriguez, and J. M. Covarrubias, completed the group, — unless we add M. de Pedrorena, a native of Spain, — only two members of which spoke English with any fluency or readily understood it. All were treated with a high degree of respect, and to them were extended special courtesies.
We are indebted to J. Ross Browne, the reporter, for the "Debates in the Convention,'' with appendices, a volume invaluable to the student of our his- tory. It was provided that the convention should be opened each day with prayer, the chaplains appointed being Rev. Padre Antonio Ramirez and Rev. S. H. Willey, both of Monterey. Dr. Willey has given us one of the best accounts of the convention, and has made other important contributions to our State history.
The obviously difficult task of constitution-making was undertaken by a body of perhaps the youngest men that ever met for a similar purpose, the average age of delegates being thirty-six years. Carrillo, the oldest, was fifty-three ; Jones and Hollingsworth were each twenty-five. Browne assures us that "the body, as a whole, commanded respect as being dignified and intellectual" ; and Bayard Taylor affirms that, "taken as a body, the dele- gates did honor to California and would not suffer by comparison with any first State convention ever held in our Republic. The appearance of the whole body was exceedingly dignified and intellectual, and parliamentary decorum was strictly observed." A summary would sliow f(^urteen lawyers, twelve farmers, eight merchants and traders, and one (B. F. Moore) gentle- man of "elegant leisure." Fully awake to the importance of their labors and of their local position in national politics, the delegates as a body were, as Colton declared, raised "above all national prejudice and local interests," pouring their spirit in blending ])ower over their measures.
A strong vote for State organization fjuickly disposed of the important preliminary (juestion whether the assembi}- should form a State or Territorial
40 History of the Bench and Bar of California.
government. California has never been a regularly organized Territory of the United States.
The debates that occupied those builders of a commonwealth cannot be reviewed in detail in this paper; yet any sketch would fail of completeness that did not at least mention a few of the leading discussions that so power- full v tended to shape the very existence and destiny of our loved common- wealth. INIyron Norton, chairman of the committee on the constitution, pre-' sented a declaration of rights borrowed almost entirely from the constitutions of New York and Iowa ; and into this declaration Shannon of Sacramento moved to insert as an additional section : "Neither slavery nor involuntary servitude unless for punishment of crime, shall ever be tolerated in this State." Surprising as it may seem, this most vital section was unanimously adopted. The preponderance of sentiment in the convention, and much more in the territory at large, was favorable to the formation of a free State. Fifteen members had come from slave-holding States, but even radical Southerners were compelled to admit that Californian conditions were entirely unfavorable to the introduction of slave labor. To be sure, the passage of this section could not give a quietus to the absorbing question of slavery extension, in all its bearings throughout the vast newly acquired territory known as Cali- fornia ; but the supreme step had been taken, the word had been uttered. So profound was the national influence of this vital decision that it is hardly an exaggeration to affirm with Dr. Willey that it was the "pivot-point with the slavery question in the United States." Our great commonwealth, entering the Union as the sixteenth free State, forever destroyed the equilibrium between North and South.
Deep interest was shown in the question of separate property for married women. Some of the arguments, amusing in themselves, throw a light on the social status of the country at that time. The proposed section was at length adopted, granting the w^ife power to hold separate property. This is believed to be the first time that such power was granted to women by a State constitution.
The debates on education showed a warm interest in the subject, and great unanimity in favor of establishing a well-regulated system of common schools. Liberal provision was therefore made, and the founding of a State university was contemplated by setting apart the income of lands.
The long debate on the question of California's boundary demands more than passing notice. This was by far the most animated discussion of the entire convention, a discussion, moreover, of the most profound significance as the most strictly sectional contest of the session. At the very last the constitution came dangerously near being totally wrecked.
The California ceded to the United States was vastly greater in its extent than our commonwealth, embracing as it did, the great desert east of the Sierra Nevada and the fertile country occupied by the Mormons ; in other words, including all the present territory of California. Nevada. Utah, and
History of the Bench and Bar of California. 41
Arizona, and extending even into Wyoming, Colorado, and New Mexico, the Rocky mountains forming the eastern boundary. The committee on boundary reported that in its opinion all Mexican California, estimated at 448,691 square miles, was entirely too vast for one State, and recommended as an eastern boundary the one hundred and sixteenth parallel ; that is, an arbitrary line intersecting eastern Nevada. Being referred to the com- mittee of the whole, debate opened early September 22, and continued until late at night. Sundry amendments proposing various boundary lines were con- sidered, the disagreement widened, differences were apparently irreconcilable.
There was no disguising the fact that at bottom it was to be the final struggle of the pro-slavery forces. Gwin proposed the eastern line lying between New Mexico and the Mexican cession, and took a leading part in the contest for the larger boundaries. Subsequent revelations seem to make it perfectly plain that the pro-slavery members hoped that by making the State so large it would soon be necessary to divide it by an east and west line, thus adding one State to the South. Francis Lippitt, writing on this point, said : "I was afterward informed that this boundary line had been adopted at the instigation of a clique of members from the Southern States, with the view to a subsequent division of California by an east and west line into two large States; and further to the future organization of the southern of these two State as a slave State — an event which would have been quite certain."
The controversy deepened. Extreme bitterness began to be manifested, for the friends of slavery realized that this was their last hope of forming a new slave State from the newly acquired territory. But the people of Cali- fornia had asserted themselves in unequivocal terms, the convention itself had pronounced positively against slavery, the intriguing of the few could not avail. On October 8, Hastings' substitute, proposing an intermediate line intersecting the Nevada desert, was quickly adopted, and ordered engrossed for third reading. But on McDougal's motion, a reconsideration was secured, and the advocates of the Sierra Nevada boundary again grew confi- dent of success. Once more were they to be disappointed ; great was their consternation when the committee report for the larger boundary was again concurred in by a vote of twenty-nine to twenty-two. Upon the announce- ment of the vote the utmost excitement and confusion prevailed. McCarver moved to adjourn sine die. Snyder exclaimed, ''Your constitution is gone! Your constitution is gone !'' The wrecking of the entire work of the con- vention was narrowly averted. But the vote to engross had not been taken. By dint of exceeding activity, the defeated party succeeded in securing a second reconsideration on the following day. A number of delegates had apparently not understood all the bearings of their afiirmative votes. Lip])itt went from a sick bed under laudanum and spoke against the motion to engross, which was finally lost ; and Jones' proposition fixing the present boundary was adopted by an overwhelming majority. Thus was settled the most vexed and exciting question of the convention.
42 History of the Bench and Bar of California.
The arduous labors were past, the constitution was completed. It was Saturday, October 13. 1849, ^^'^^ the closing events were highly dramatic. With the dawning of that day of beauty and sunshine there dawned a new era for California. A most affecting part of the days proceedings occurred after the convention had adjourned sine die. The delegates repaired to Gov- ernor Riley's residence in a body, where, after a cordial greeting, that pioneer among pioneers, Captain Sutter, warmly expressed to the Governor the thctnks of the convention for his aid and co-operation. General Riley was deeply affected ; his reply was "a simple, fervent, and eloquent recital of a patriotic desire for the good of California." "At the conclusion of General Riley's remarks," continues an interesting contemporaneous account, "three cheers were given for the 'Governor of California.' three for Captain John A. Sutter, and three more for the new State; and then, after partaking of the refresh- ments provided by the hospitality of the Governor, the company separated to make their final preparations for departure to their respective homes."
The salient features of the constitution of 1849 ^^^ well known. It was advanced in character, liberal, and thoroughly democratic. The achieve- ment illustrates the great capacity of the American people for self-government under the most trying conditions. The document embodied the principles of modern political and jurisprudential philosophers and received the high- est commendations from all sources as the "embodiment of the American mind, throwing its convictions, impulses, and aspirations into a tangible, permanent shape." Contrary to the expectation of some of its framers. it endured for thirty years as the fundamental law of the Empire State of the Pacific. All honor then to those earnest, loyal pioneers whose devotion led them to forsake the possibility of sudden fortune for the more enduring, more noble work of building a great commonwealth.
California's constitution was quickly carried to every town and camp and rancho. Candidates for office took the field, political speeches began to be heard in the land, and with alacrity events took on the aspect of an ordinary campaign. A stormy election day, November 13, was responsible for the light vote, Init as Governor Riley had anticii)ated. the constitution was ratified l)y a vote that was almost unanimous. For the ofiice of Governor Peter H. Burnett received more than double the vote given his leading opponent, and in the contest for Lieutenant Governor John McDougal was successful. Edward Gilbert and George W . Wright were elected Representatives in Con- gress.
The senators and assemljlymen-elect met in San Jose, December 15, on which date the legislature was temporarily organized. On Thursday, Decem- ber 20, 1849, the State government of California was established. Governor- elect Burnett was inaugurated, and Governor-General Riley issued the fol- lowing :
History of the Bench and Bar of California. 43
PROCLAMATION. To THE People of California. 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 powers as Governor of California. In thus dissolving his official connection with the people of this country, he would tender to them his heartfelt thanks for their many kind attentions, and for the uniform support which they have given to the measures of his administration. The principal object of all his wishes is now accomplished — the people have a government of their own choice, and one which, under the favor of divine Providence, will secure their own prosperity and happiness, and the perma- nent welfare of the new State.
Given at San Jose, California, this 20th day of December, A. D. 1849.
B. RILEY, Brevet Brig. Gen., U. S. A., and Governor of California. By the Governor: W. H. Halleck,
Brevet Captain and Secretary of State.
Whatever legal objections might be raised to putting into operation a State government previous to the approval of Congress, General Riley judged that, "these objections must yield to the obvious necessities of the case; for the powers of the existing government are too limited, and its organization too imperfect, to provide for the wants of a country so peculiarly situated, and of a population which is augmenting with such unprecedented rapidity." California was a State, but had not gained admission to the Union. Our delegation to the Federal government, including Fremont and Gwin, who had been duly elected to the United States Senate, and Representatives Gilbert and Wright, set out in January, 1850, for Washington, and in March they laid before the two houses certified copies of the new constitution, together with their credentials, and in a long memorial requested "in the name of the people of California, the admission of the State of California into the Ameri- can Union."
Meanwhile the question of the admission of California had become a topic of absorbing interest in Congress. Southern statesmen were almost beside themselves at the imminent prospect of losing the richest country of the Mexican cession. The question, in itself of the gravest difficultv, was greatly complicated by other issues, and the passions that were aroused seemed leading to certain and ominous conflict, when Henry Clay determined to effect a compromise. The result is known to the world. It is unnecessary to review the details of that memorable struggle over the Omnibus Bill ; let it suffice to say that although Congress had repeatedly disappointed the people of California and had caused long and vexatious delay, no sound argument based on facts could now be adduced against the admission. The stern logic of facts was plainly against the South, even though the Compromise of 1850 was a seeming victory for the slave power. The exclusion of slavery from California was a rebuke at once extremely irritating and fraught with peril- ous import. It is reported how that Calhoun invited Gwin to an interview, in the course of which the dying Senatrir and cham])ion of the South, "in solemn words predicted, as an effect of the admission [of California] the
44 History of the Bench and Bar of California.
destruction of the equilibrium between the North and South, a more intense agitation of the slavery question, a civil war, and the destruction of tlie South."
Nevertheless, the debates that had been protracted many months, coming- at last to an end, the California bill was finally passed in the house, Septem- ber 7, by a vote of one hundred and fifty to fifty-six, and two days later the act received the approval of the President. If, then, the 20th of December, 1849, IS the birthday of the State of California, September 9. 1850, must forever be memorable as the day on which the lusty infant was adopted, not without protest, into the great unity of the sisterhood of commonwealths, the United States of America.
"O California, prodigal of gold,
Rich in the Treasures of a wealth untold,
Not in thy bosom's secret store alone
Is all the wonder of thy greatness shown.
Within thy confines happily combined,
The wealth of nature and the might of mind,
A wisdom eminent, a virtue sage,
Give loftier spirit to a sordid age."
ROCKWELL D. HUNT, Ph. D.,
Professor of History and Political Science,
University of the Pacific. San Jose, Cal.
ADOPTION OF THE COMMON LAW
BY THE EDITOR
j?9 !& tSb t& G?3 dfe c& eSb & &
HISTORY of the BENCH and BAR of CALIFORNIA
£5^e^e!^6^6^^e^«^. e^e^
ADOPTION of the COMMON LAW
In his first message to the legislature at the first session, December 21, 1849, Gov. Peter H. Burnett, who was a lawyer from Tennessee, after declar- ing that he had given the subject his most careful attention, recommended the adoption of the following codes :
1. The definition of crimes and misdemeanors as known to the Common
Law of England.
2. The English Law of Evidence.
3. The English Commercial Law.
4. The Civil Code of Louisiana.
5. The Louisiana Code of Practice.
He took occasion to say:
These codes, it is thought, would combine the best features of both the civil and the common law, and at the same time omit the most objectionable portions of each. The civil code of Louisiana was compiled by the most able of American jurists — con- tains the most extensive and valuable references to authorities — has undergone no material changes for the last twenty years — and for its simplicity, brevity, beauty, accuracy, and equity, is perhaps unequalled.
Its provisions almost entirely relate to general subjects, not local, and would be quite applicable to the condition and circumstances of the State. The civil law, the basis of the Louisiana civil code, aside from its mere political maxims, and .so far only as it assumes to regulate the intercourse of men with each other, is a system of the most refined, enlarged, and enlightened i)rinciples of equity and justice. So great a portion of the cases that will arise in our courts, for some years to come, must be decided by the principles of the civil law, that the study of its leading features will be forced upon our judges and members of the bar. The civil code of Louisiana being a mere condensation of the most valuable portions of the civil law, would greatly lessen the labors of our jurists and practitioners; and from the simplicity and yet comprehensive nature of its provisions, a general knowledge of the leading principles of the law iriight the more readily be diffused among the people. A sufficient number of copies of both the civil code and the code of practice could be procured in New Orleans at a much less cost than they could be published here.
48 History of the Bench and Bar of California.
On the first of February following, Senator David F. Douglass, of Stock- ton, who was to be some years later Know Nothing secretary of State, pre- sented in the senate the petition of certain members of the San Francisco bar, praying that the legislature "retain, in its substantial elements, the system of the civil law, as proposed by His Excellency the Governor, in preference to the English Common Law."
The petition was headed by John W. Dwinelle, who was a studious man, destined to vAn considerable reputation in law and literature. He was from New York, and then aged 32 years. The petition was read, ordered to be printed, and referred to the committee on the judiciary.
Horace Hawes, also a lawyer from New York, in his inaugural address, as prefect of the district of San Francisco, delivered before the ayuntamiento, or town council, in September, 1849, had observed that "the laws now in force in this country, when w'ell understood, may not be found so inadequate to the purposes of good government as has generally been supposed. It is, perhaps, the abuses and maladministration which may have existed under the former government, rather than any defect in the laws themselves, which have brought them into disrepute."
The civil law, already intrenched on the field of action, and thus powerfully recruited, seemed to have as secure a tenure here as in Louisiana.
A week prior to the coming of this petition into the senate, Hon. J. C. Brackett of Sonoma, introduced into the assembly the following resolution :
That the committee on the judiciary be and they are hereby instructed to report to this house a brief and comprehensive act, substantially enacting that the common law of England, and all statutes and acts of parliament down to a certain reign, or to some year of a certain reign, which are of a general nature, not local to that king- dom, excluding, if advisable, any named statute or any particular portion of any named statute; which common law and statutes are not repugnant to or inconsistent with the constitution of the United States, the constitution of this State, and statute laws that now are or hereafter may be enacted, shall henceforth be the rule of action and decision in the State of California.
On motion of the author, the resolution was laid on the table for future consideration.
In the senate, on February 27th, the judiciary committee submitted its report on the so-called San Francisco petition. The committee was of one mind. It was composed of Elisha O. Crosby of Sacramento, Nathaniel Bennett of' San Francisco, and T. A. Vermeule of Stockton. The report was signed by the first-named only, as chairmanj and it came to be regarded generally as his composition. Many have declared that Judge Bennett was the author, how- ever. A mystery really attached to this question. The editor, about 1878, had a dispute with Geo. W. Tyler about the authorship of this historic paper, Tyler asserting that Judge Crosby had told him that he (Crosby) was the author. Afterwards, Judge Tyler informed the editor that he had seen Judge Crosby again, and that the latter had disclaimed the authorship, and credited the same to Judge Bennett.
History of the Boich and Bar of California. 49
Many years after this, in 1894, we requested Judge Crosby to give us some notes of his life, and we received from him in his own hand, and have pre- served, among other statements, the following: "I was the author of the report and bill adopting the common law, the bill organizing the Supreme and District Courts, etc., etc."
But as to the bill, the printed journal credits the authorship as we give it hereinafter. The report was probably the joint product of Judge Crosby and Judge Bennett.
Elisha Oscar Crosby was born in Tomkins county. New York (as he told us, in 1894) when, in his old age, he was holding the office of justice of the peace in Alameda. He was born in 1818. He was admitted to the bar of the New York Supreme Court July 14, 1843. Coming to California in 1849 he was admitted to the bar by the Supreme Court here on July 19. 185 1. He was admitted to the bar of the United States Supreme Court at Washington, on December 6, 1865. He was a member of our first constitutional convention, 1849; prefect of the Sacramento district in the same year; and a State senator at the first and second sessions of the legislature. From 1852 to i860, he practiced law in San Francisco. President Lincoln appointed him minister to Guatemala, and he held the office from March 22, 1861 to 1865. He died in Alameda a few years ago, nearly four score years of age.
This committee report (whoever wrote it) ought, perhaps, to be set forth in full in this History ; but we will give the more salient parts as follows :
The petition, praying, as it does, that the legislature will retain, in its substantial elements, the system of the civil law, distinctly presents the alternative of the adoption of the common, or of the civil law, as the basis of the present and future jurisprudence of this State. A choice between these two different, and in many respects conflicting systems, devolves upon this legislature; and, we think, we do not over-estimate the importance of the subject, in expressing our conviction that this choice is by far the most grave and serious duty which the present legislature will be called upon to per- form. It is, in truth, nothing less than laying the foundation of a system of laws, which, if adapted to the wants and wishes of the people, will, in all probability endure through generations to come, — which will control the immense business transactions of a great community, — which will direct and guide millions of human beings in their personal relations, — protect them in the enjoyment of liberty and property, — guard them through life, and dispose of their estates after death. Actuated by these consid- erations, and impressed with the necessity of mature deliberation and an unbiased decision, your committee have felt it their duty to submit to the indulgence of the senate a more full and detailed report upon the matter referred to them, than they should otherwise have felt themselves justified in doing.
After observing that the committee had ascertained that the San Francisco bar then embraced about one hundred members, and that a largely attended bar meeting had just recommended tlie common law, whereas the petition in favor of the civil law was signed by only eiglitcen attorneys, tlie rcj^ort mo- ceeded :
But before entering upon the subject in detail, we would premise that no one for a moment entertains the idea of establishing in California the whole body of either
50 History of the Bench and Bar of California.
the common or the civil law. There are in each principles and doctrines, political, civil and criminal, which are repugnant to American feelings, and inconsistent with Ameri- can institutions. Neither the one nor the other ever has been, or ever can be, unquali- fiedly adopted by any one of the United States. Thus, in Louisiana, where the civil law prevails, and in the rest of the States, in which the common law is recognized, great and radical additions, retrenchments, and alterations have been made in the par- ticular system which each has taken as the foundation of its jurisprudence. The Con- stitution of the United States swept away at once the entire political organization as well of the common as of the civil law. The several State constitutions make still further inroads, not only into the political, but also into the civil and criminal depart- ments of both systems ; and the statute law of each State eradicates many harsh doc- trines, and abolishes many oppressive and tyrannical provisions, and in their place substitutes positive rules of action, milder and more enlightened in their nature, more applicable to our political organization, and more congenial with the cultivated feel- ings and liberal institutions of our people. But still the great body of each system remains untouched. Such is the wonderful complexity of human affairs — a complexity which must always increase more and more in proportion to the advance of commerce, of civilization, and of refinement — that of the immense multitude of questions which are brought before your courts for adjudication, but very few arise under, or are dependent upon, or can be controlled by, constitutions or express statutory laws. Examine the reports of the different States, Louisiana amongst the rest, and it will be found that a precise rule has been laid down by statute for scarcely a tithe of the cases which the courts have been called upon to decide; and should the futile attempts be made to provide, in advance, for every contingency which may occur, your volumes of legislation would be increased to a number that, to apply sacred language to a pro- fane subject, "the world would not contain them."
Tlie report next entered into an elaborate statement conveying a general idea of the two great systems of jurisprudence, and then particularly contrasted them as follows :
To commence, then, with the domestic relations. The civil law regards husband and wife, connected it is true by the nuptial tie, yet disunited in person, and with dissevered interests in property. It treats their union in the light of a partnership, no more intimate or confiding than an ordinary partnership in mercantile or commer- cial business. Whereas the common law deems the unseen bond which unites husband and wife, as so close in its connection, and so indissoluble in its nature, that they become one in per.son. and for most purposes one in estate. At the same time, it puts the burden of maintenance and protection where it rightfully belongs, and makes the husband, as Providence designed he should be, in truth and reality the head of the household. The concessions which it makes to the wife, in respect to property, by compelling the payment of her debts and vesting her with an estate in dower, are a full compensation for the sacrifices which it requires her to make, and an ample equivalent for the conununion of goods allowed her by the civil law. The result is, that in no country has the female sex been more highly respected and better pro- vided for — nowhere has woman enjoyed more perfect legal protection, or been more elevated in society; and nowhere has the nuptial vow been more sacredly observed, or the nuptial tie less often dissevered, than in the common law countries — England and the United States.
The civil law holds the age of majority in males, for most of the ordinary pur- poses of life, at twenty-five years. Even after this, the son continues in many respects subject to the parental authority until it is dissevered in one of six specified modes. This system retains man in a continued state of pupilage and subordination from earliest infancy, until in some cases his locks become hoary with age. But the common law absolves the age of twenty-one from parental restraint, and clothes it with the complete panoply of manhood. It bids the youth go forth into the world, to act, to strive, to suffer. — an equal with his fellow man — to put forth his energies in the service
History of the Bench and Bar of California. 51
of his country, or in the eager strife for the acquisition of wealth or the achievement of renown. Hence, under the latter system, the activity, the impetuousity, the talents of early manhood, stimulated by fresh aspirations of ambition, or love of gain, are, at the earliest practicable period, put under requisition and brought into exercise, in developing the resources, and adding to the wealth and glory of a State; whilst, under the former, they stagnate for lack of sufficient inducement to action, and are to a great degree lost.
Whilst the fundamental principles of domestic society thus differ in the two systems, an equal diversity runs throughout all the deductions therefrom ; and we are convinced that, in the several relations above noticed, and also in that of guardian and ward, contrasted with tutor or curator and pupil, there are nicer distinctions and a greater multiplicity of rules and qualifications in the civil law than in the common law.
Again, in relation to mercantile transactions : In the civil law the purchaser of property may, within the period of a certain limitation, in some countries, four, and in others, two years, come into court and claim, under the doctrine of lesion, that the goods purchased by him were worth only a part of the price which he paid therefor. Thus A. sells property to B. in a perfectly fair sale, without deceit or false representa- tion. After the expiration of some months, or it may be years, B. brings suit, and alleges that he paid twice the value of the property, and compels A. to make restitu- tion. But the common law in such cases, where no fraud appears, and no false repre- sentations are made, leaves each party to act upon his own responsibility, and for his own interest, as his judgment shall dictate
If time and space permitted, and it would not be occupying too much attention of the senate, we might trace the same general principle of distinction through various other departments of the two systems, through their provisions for the tenure and transfer of real estate, for the transmission of inheritances and successions, for the execution and validity of last wills and testaments, and the distribution of property in pursuance of them, and for the enumeration of the powers and duties of executors, administrators, and trustees ; but we must pass them by, and hasten to other consid- erations
We by no means concede the position that the civil law is in full force in this State at the present time. It is extremely uncertain to what extent it ever did prevail. Situated at so great a distance from the Mexican capital, occupying months in the interchange of communications with that central point of law and legislation, con- nected with it by the fragile tie of common descent, rather than by any intimate com- munion of interests or sympathy of feeling, exposed to frequent revolutions of the general and departmental governments, finding but little stability in the Mexican con- gress, little convenience for the promulgation of its laws, and less power to enforce them, the people of California seem to have been governed principally by local cus- toms, which were sometimes in accordance with civil law and sometimes in contraven- tion of it. However this may be, it is very certain that it now prevails to but a limited extent, and equally certain that the. common law controls most of the business transac- tions of the country. The American people found California a wilderness — they have peopled it; they found it without commerce or trade — they have created them; they found it without courts — they have organized them; they found it destitute of officers to enforce laws — they have elected them; they found it in the midst of anar- chy— they have bid the warring elements be still, have evoked order out of confusion, and from the chaotic mass have called forth a fair and beautiful creation. Through- out all this they have taken the common law, the only system with which they were acquainted, as their guide. Their bargains have been made in pursuance of it — their contracts, deeds, and wills have been drawn up and executed with its usual formalities — their courts have taken its rules to govern their adjudications — their marriages have been solemnized under it — and, after death, their property has been distributed as it prescribes. Are you to hold all or a great portion of these things as naught? Will you overturn or invalidate the immense business transactions of a great conununity? And yet to this must you come, if you say that the civil law is in force throughout the State.
52 History of the Bench ajui Bar of California.
The petitioners ask, in substance, for the adoption of the English definition of crimes, the English law of evidence, the English commercial law, and the civil code of Louisiana. Without doubting that a harmonious and symmetrical system might be deduced from them all, by the long and patient labor of years, of men fully adequate to the task, we must, nevertheless, be allowed to suggest our opinion, that were we to attempt to adopt them, as they are, without more labor devoted to reconciling their jarring provisions than any legislature would have either the will or the time to bestow, we should have a system of laws which would be no system at all — a system of contradictions and absurdities — a rule here conflicting with a rule there — the same principles thrice reiterated, and each time in different terms, and in a new shape.
After a number of other reasons, the committee recommended that the courts should ])e governed in their adjuchcations Ijy the Engiish common law. "as received and modified in the United States ; in other words, by the Amer- ican Common Law."
The report was accepted, and, on motion of Senator Elcan Heydenfeldt, of San Francisco, brother of the jurist, Solomon Heydenfeldt, it was ordered that 500 copies be printed.
In the assembly a week later, Mr. Brackett, pursuant to notice, and in the spirit of his resolution before quoted, introduced a "Bill Concerning- the Com- mon Law," which was a bill adopting that system substantially. On the next day, Edmund Randolph, of San Francisco, a Virginian, moved to refer the bill to a select committee, with instructions to substitute "the English law of evidence, and English commercial law, as understood in the courts of the United States." This was defeated by a vote of ten ayes to sixteen noes, the majority including Mr. Brackett, A. P. Crittenden, and the since distinguished Judge, E. W. McKinstry.
A. P. Crittenden, a Kentuckian, who afterwards held for a long period a place in the front rank of the State bar, and who was killed by Mrs. Laura Fair on the Oakland ferry ])oat, November 3, 1870, then moved to refer the bill to a select committee, with instructions to substitute the following ever- memorable words :
"The Common Law of England, so far as it is not repugnant to or incon- sistent with the Constitution of the United States or the Constitution or laws of the State of California, shall be the rule of decision in all the courts of this State."
This was agreed to. On the same day Mr. Crittenden as chairman of the appointed committee, reported the substitute above, and it was adopted by a vote of seventeen to six, Mr. Randolph being among the noes.
It was ordered, without dissent, that the title of the bill be changed from "Concerning the Common Law," to "Adopting the Common Law."
In the senate, April 12, Hon. W. D. Fair, Whig senator from San Joaquin, husband of Laura Fair before named, from the judiciary committee, to whom had been referred the assembly bill, now entitled "An .Act Adopting the Com- mon Law," reported the same without amendment, and the bill was passed at once, the rules having been suspended for that purpose. There w^as no
I
History of the Bench and Bar of California. 53
opposition and the roll was not called. The bill became a law, by the signature of the Governor, on the 12th of April, 1850.
The words of this act were incorporated into the political code of the State, comprising section 4468 thereof, but it is provided in all of the codes, which took effect on January i, 1873, (section 4 of each code) as follows:
"The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of this State respecting the subjects to which it relates, and its pro- visions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice."
THE EDITOR.
THE TREATY OF GUADALUPE HIDALGO
and
PRIVATE LAND CLAIMS
HON. JOHN CURREY
John Currey
I !;?3 •j'a & ofe & t?3 uo
HISTORY of the BENCH and BAR of CALIFORNIA
^&''l^'=r^'^i? 9:' ; - 1?
TREATY o/ GUADALUPE HIDALGO and PRIVATE LAND CLAIMS
At the date of the treaty between Mexico and the United States, known as the Treaty of Guadalupe Hidalgo, California was sparsely settled by a people who were mainly Alexican citizens, and who for the most part were engaged in pastoral occupations.
The treaty was ratified and exchanged in May, 1848. and on the 4th of July in that year was made public by the proclamation of President Polk, in which he declared that he "caused the said treaty to be made public to the end that the same and every clause and article thereof may be observed and fulfilled with good faith by the United States and the citizens thereof.''
By this treaty Mexico ceded to the United States the territories of Alta California and New Mexico and the country lying north of the Gila river. The Treaty contained stipulations providing for the protection and security of the inhabitants of the ceded territories, in the free enjoyment of their liberty, property and religion. Though stipulations of the character here mentioned were not absolutely essential for the purposes declared, they were such as are usual, and, it may be said, always required by the nation ceding territory, and readily accepted by the nation acquiring the same. *'Tt is the usage of all nations of the world," said the Coiu't in the Arredondo case (6 Peters, 712), "when territory is ceded, to stipulate for the property of its inhabitants. An article to secure tliis object so deservedly held sacred in the view of policy as well as of justice and humanity, is always required and never refused."
Stipulations of this kind render certain the obligations of the new govern- ment to the people transferred to a new sovereignty, who are able to better understand an express promise than an obligation which is imposed by the law of nations of which they are generally ignorant: and besides this, the inhabitants of the ceded territory, being promised protection in the treaty itself, are thereby inspired with confidence in and loyalty to the government of which thev necessarily become a constituent portion.
58 History of the Bench and Bar of California.
Vattel says, "Every treaty must be interpreted as the parties understood it when the act was proposed and accepted."
The Treaty of Guadalupe Hidalgo, by its eighth and ninth articles, provided for making such of the inhabitants of the territories as might so elect, citizens of the United States, and also for their protection, and further for the protection of those Mexicans residing in the territories, who might elect to remain citizens of the Mexican Republic, in the free enjoyment of their liberty, property and religion, without restriction. These stipulations were in efifect as ample and comprehensive as the stipulations of the Third Article in the treaty between France and the United States, by which the latter government acquired the Louisiana Territory in 1803; and in substance as full as provided in the treaty by which Spain ceded to the United States the territories of the two Floridas in 1819.
As early as 1824 the Mexican Republic enacted a law providing for the granting of lands in her territories to her citizens who would accept and occupy them. This law was supplemented by a system of regulations adopted in 1828, to facilitate the granting of lands, not to exceed a specified amount to any one person. The law of 1824 and the regulations of 1828 provided a mode or system consisting of successive proceedings and steps, by which grants of land could be made. In a few instances all the steps of the pro- ceedings, essential to the complete transfer of the title in full property, were performed and fulfilled, so that in these cases the particular grantee became the owner by perfect title — title in fee simple absolute — of the land described and covered by his perfected title. But the great majority of land claims, grants or titles, as they were indifferently denominated, were imperfect and inchoate claims, grants or titles ; and they were in this condition for the most part, when California was ceded to the United States.
From this statement it will be observed that at the date of the treaty, there were two classes of land claims in California, both derived from the former government ; one of which consisted of perfect titles — titles in fee simple absolute — by which the holders thereof were seized, as owners in full property of the lands granted ; the other class consisted of equitable claims to lands, the title to which had not been fully consummated. They were denom- inated incipient, inchoate, or imperfect grants or titles.
It will be noticed that holders of the last kind of claims were not the owners of the lands claimed, for complete titles thereto had not passed to them from the Mexican government. To such lands the Mexican government held the legal title, When the cession of California was made to the United States, in full property, sovereignty and dominion. "By accepting the cession, the United States put itself in the place of the former sovereignty and became invested with all its rights, subject to all its concomitant obligations to the inhabitants. Both were regulated by the law of nations, according to which the rights of property are protected, even in the case of a conquered country,
History of the Bench and Bar of California. 59
and held sacred and inviolaljle. when it is ceded Ijy treaty with or without any stipulation to such effect." So said the court in Strother against Lucas (i2 Peters, 435).
The passage here quoted was repeated and applied to the California case of Teschmacher against Thompson (18 Cal. 23-24) by Mr. Chief Justice Field, who held that in respect to land claims which were of an equitable nature, but as yet unperfected, it w'as the conceded duty of the United States to provide the mode and means for their confirmation and location, and to grant legal titles therefor to the persons entitled in equity to such lands. He said, "By the law of nations those rights, in the language of our Supreme Court, were 'sacred and inviolable,' and the obligation passed to the new government to protect and maintain them. The obligation was political in its character, binding on the conscience of the new government, and to be exe- cuted by proper legislative action, when the requisite protection could not be afforded by the ordinary course of judicial proceedings in the established tribunals or by existing legislation."
Here the learned Chief Justice distinguished between the legislative and judicial authority as to the subjects of their respective jurisdictions. The legislative authority purely political, was to be exercised and executed by appropriate legislation for the requisite protection of property ivhen such pro- tection could not he afforded in the ordinary course of judicial proceedings in the established tribunals of the country. Perfected titles are the titles which can be afforded "the requisite protection" in the ordinary course of judicial proceedings. Not so in respect to titles of an incipient, inchoate and unperfected character. These are within the jurisdiction' of the political department of the government.
The obligations of our government to the people of the ceded territories, in respect to their land claims, and which was to be performed and fulfilled by the political department of the government by appropriate legislation, was in the very nature of the subject, limited to the class of claims which needed the aid of the government to render them perfect titles. A title already perfect needed no such aid. Tt was not in the power of Congress to make titles already perfect better titles ; nor was it within the constitutional power of Congress to impair or destroy perfect titles.
It is quite manifest that at the time of the passage of the Act of Con- gress of March, 1851, entitled, "An Act to ascertain and settle the private land claims in the State of California," it was the general belief in Congress that all land claims in California, derived from the Spanish and Mexican governments, were inchoate and imperfect, mere equitable claims, which our government, by treaty stipulations and the law of nations, was bound to protect. It is reasonable to suppose that Congress, in this belief, passed the Act of March, 185 1.
The jurisdiction of Congress in the premises is found in Section 3 of Article TV of the Constitution, in these words: "The Congress shall have
/
60 History of the Bench and Bar of California.
power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." It is admitted that Congress had power to make all laws necessary and proper for carrying into execution this power, which appears to be, to make disposition of, and to make needful rules and regulations respecting the property of the territories and other property belonging to the United States. This provision relates solely to the subject matter of public property. It, in no sense, affects private property, nor is there found in the Constitution any provision which gives to Congress power to dispose of the property of private persons, either directly or indirectly, by the enactment of a law for the purpose, or which shall have such effect by any means whatever, except by process of condemnation for public use with just compensation therefor.
The Act of 185 1 provided for the creation of a board of commissioners for the purpose declared in the act. The commissioners were authorized to receive petitions for the confirmation of private land claims and to hear and examine documentary evidence and the testimony of witnesses and to decide as to the validity or invalidity of such claims. The eighth section of the act provided that "Each and every person claiming lands in California, by virtue of any right or title derived from the Spanish or Mexican government, shall present the same to said commissioners when sitting as a board, etc. ;" and by the thirteenth section of the same act, Congress pronounced judgment against all who should fail to present their claims to the commissioners as required, in the following words : "All lands, the claims to which shall not have been presented to the said commissioners within two years after the date of this act. shall be deemed, held and considered a part of the public domain of the United States.''
The words of the eighth section, viz., "Any right, or title," and the words of the thirteenth section, "All lands, the claims to which shall not have been presented," are sufBciently comprehensive to include all claims, perfect and imperfect, as to title; and if Congress had the power under the Constitution and under the treaty, of equal force and dignity with the Constitution itself, to require as provided in the eighth section, and to declare the penalty, as provided in the thirteenth section, there could be no doubt as to the disastrous consequences to the holders of perfected titles to lands derived from the former government, who had declined the submission of their claims to the jurisdiction of the commissioners.
It should be remembered that the Treaty of Guadalupe Hidalgo became, at the time of its ratification and exchange, an integral part of the supreme law of the land, binding upon each and every department of the go\-ernment, which the political branch of the government could not and cannot alter or abrogate, either directly or indirectly, either by expression or implication, so as to disturb or destroy vested rights of property secured by it. or brought into existence under or in pursuance of it.
I
History of flic Bciuii and Bar of California. 61
Notwithstanding the stipulations of the treaty and the Constitution, which declares that no person shall be deprived of life, liberty or property without due process of law, and that private property shall not be taken for public use without just compensation, and other provisions of the organic law affecting the subject, the Supreme Court, in the case of Boteller et al. against Dominguez, decided the eighth and thirteenth sections of the Act of 185 1 to be constitutional in their application to perfect titles, to the same exent as to titles or grants of an inchoate and imperfect character.
It is respectfully submitted that this decision is not supported, either upon principle or by authority.
An act of the legislature is not due process of law. This has been so held in many decisions of the courts and by elementary writers on the subject. "Law of the land, due process of law," said Chancellor Kent, "means Inw in its regular course of administration through courts of justice." Another great judge (Chief Jtistice Ruffin, of North Carolina) said, "The law of the land does not mean merely an act of the legislature, for that construction would abrogate all restrictions on legislative authority. The clause means that statutes, which would deprive a citizen of the rights of person or property, without a regular trial according to the course and usage of the common law, would not be a law of the land in the sense of the Constitution."
Such being the law, how is it that Dominguez could be held, through the operation of the Act of 1851. to have lost his lands which he possessed under a perfect title derived from Mexico? The title of Dominguez. as it appeared before the court, was a perfect title, and so the court conceded it to have been at the date of the treaty of cession, and so in effect held it to be. until he lost it, by failing to submit it to the jurisdiction and judgment of the commissioners.
The Supreme Court, during the period when Marshall was its Chief Justice and for some years afterwards, had, at various times, occasion to deal with questions of private rights of property of the inhabitants of the ceded territories of Louisiana and Florida, existing at the respective dates of these cessions. The most of such property rights were of an imperfect and inchoate nature, but there were instances calling for the expression of opinic^ns in relation to rights of property which had become perfected, in all of which the court, in effect, declared them to be beyond the power of Congress to im|)air or destroy.
In Strother against Lucas, the coiu't, in speaking of the stipulation of the Louisiana treaty for the protection of the people of the ceded country, said, "Without it the titles of the inhaliitants would remain as valid under the new government as under the old ; and these titles, at least so far as they are con- summate, might be asserted in the courts of the I'nited States independent of the treaty stipulation." Tn the case of Clark (8 Peters, 445), Mr. Chief Justice Marshall, in s])eaking of the a])i)ointment of boards of commissioners to ascertain the validity and location of grants of lands in Florida, said, "For this pur])ose boards of commissioners were apixiintcd with extensive powers,
62 Hislory of the Bench and Bar of California.
and great progress was made in the adjustment of claims. But neither the laze of nations nor the faith of the United States zconld justify the legislature in authori:;iiig these boards to annul pre-existing titles, which consequently might he asserted in the ordinary courts of the country against any grantee of the American government." And in the case of Wiggins (14 Peters, 350), the court said that "The perfect titles made by Spain before the 24th of Janu- ary, 1818, within the territory, are intrinsically valid and exempt from the provisions of the eighth article, is the established doctrine of this court and they need no sanction from the legislative and judicial de])artments of the country."
In Maguire against Tyler (8 Wallace, 650), the court said, "Complete titles to lands in the territories ceded by France to the United States, under the treaty concluded at Paris on the thirteenth day of April, 1803, needed no legislative confirmation, as they ■zeere fully protected by the third article of the treaty of cession."
The eighth and ninth articles of the Treaty of Guadalupe Hidalgo, as finally ratified and exchanged, mean the same as the third article of the Louis- iana treaty, as represented and explained by the commissioners of the United States to the Mexican minister of foreign affairs at the city of Queretaro, on the 26th day of May, 1848. This appears by a protocol, signed by such commissioners and the Mexican minister on that day.
It is believed there are no decisions of the Supreme Court holding a differ- ent doctrine on the subject under consideration, from those already cited, except some of an obiter dicta character in relation to the construction of the Act of 185 1, until the decision of the case of Dominguez.
The Supreme Court of California always regarded the private land claims existing in the territories ceded, at the date of the treaty of Guadalupe Hidalgo, as standing" on the same ground as those of like character derived under the Louisiana and Florida treaties, and that by the Treaty of Guadalupe Hidalgo such private land claims were as fully guaranteed protection as like claims were guaranteed protection under the Louisiana and Florida treaties, and that the decisions of the Supreme Court of the United States in those cases were applicable to the California cases. Perfected titles, it was ])elieved by the Cali- fornia courts, upon principle and authority, needed no aid from Congress to make them what they already were, but that the holders of such titles and the owners of the lands covered by them, were competent to assert their rights in the estal)lished courts of the country, as might be necessary, against all intruders and even against any adverse action of the L^nited States and its grantees.
In Estrada vs. Murphy (19 Cal., 269), Mr. Chief Justice Field suggested that doubts might exist as to the validity of the legislation of Congress, so far as it required the presentation to the board of land commissioners of claims when the lands were held by perfect titles acquired under the former govern-
History of the Bench and Bar of Califoriiia. 63
ment. In Gregory vs. McPherson (13 Cal., 571), the court, in alluding to a perfected title, held that no forfeiture accrued of such a title by a failure to present it to the board of commissioners.
The Supreme Court of the United States in Beard vs. Federy (3 Wal- lace 490), per Field, justice, said, "By the Act of March 3, 1851, the govern- ment has declared the conditions under which it will discharge its political obligations to Mexican grantees. Tt has there required all claims to land to be presented within two years from its date, and declared in effect that if, upon such presentation they are found by the tribunal created for their consideration, and by the courts on appeal to be valid, it will recognize and confirm them, and take such action as will result in rendering them perfect titles. But it has also declared in effect, by the same act, that if the claims be not thus presented within the period designated, it will not recognize nor confirm them, nor take any action for their protection, but that the claims will be considered and treated as abandoned.'' And then the court further said, "It is not necessary to express any opinion of the validity of this legislation in respect to perfect titles acquired under the former government. Such legislation is not subject to any constitutional objection so far as it applies to grants of an imperfect char- acter, ivhich require further action of the political department to render them perfect."
It thus appears that the court was not ready in 1865 to hold the Act of Congress constitutionally valid in so far as perfect titles could be deemed to be affected by it.
In Waterman vs. Smith (13 Cal., 419-420), the same learned Justice had occasion to interpret and construe the 15th section of the Act of 1851. The question in that case arose as to the effect of a final confirmation and a patent issued thereon, and the interests of third persons claiming the land in contro- versy under an inchoate and imperfect grant which had been confirmed, but for which no patent had been granted. The section here mentioned provides, "that the final decisions rendered by said commissioners or by the District or Supreme Court of the United States, or any patent to be issued thereon under this act, shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons." In disposing of the question the court said, "The patent is conclusive evidence of the right of the patentee to the land described therein, not only as between iiimself and the United States, but as between himself and a third person, who has not a super- ior title from a source of paramount proprietorship." And the court further said, "The third persons against whose interests, by the 15th section of the Act of 1 85 1, the final confirmation and patent are not conclusive, are those whose titles at the time are such as to enable them to resist successfully any action of the government in respect to it." This decision was followed by a number of others subsequently rendered by the same eminent jurist, while chief justice of that court, in equally cogent language.
64
History of the Bench and Bar of California. I
The decisions of the same court, which were made after the time of Mr. Justice Field, are in accord with the decisions of the State court referred to, and also upon principle in accord with the decisions of the United States in like cases.
It will be noticed that the doctrine declared in Waterman against Smith, is the same as in Clark's case in 8th Peters, where the Chief Justice spoke of titles which could "be asserted in the ordinary courts of the country against any grantee of the American Government."
Recognizing the correctness of the construction given the 15th section of the Act of 1851. in Waterman vs. Smith and Teschmacher vs. Thompson, the Supreme Court of the United States, in Beard vs. Federy (3 Wall, 493), said, "The term, 'third person,' as there used, does not embrace all persons other than the United States and the claimants, but only those who hold superior titles, such as will enable them to resist successfully any action of the govern- ment in disposing of the property."
The Supreme Court of California was called upon to meet the question directly, for the first time in Minturn vs. Brower (24 Cal., 645), and there held the legislation of Congress to be ineffectual to impair or destroy perfect titles for failure to present them to the commissioners for their examination and judgment thereon. This decision was followed through a period of nearly twenty-five years, when in December, 1887, the Court in a full and carefully considered opinion, in Phelan vs. Poyoreno (74 Cal., 448), reviewed the whole subject, reaching the same conclusion as in Minturn vs. Brower; and then came before the court at the same term the case of Dominguez, which was decided, as were the two cases last mentioned. These decisions were the logical sequence of the doctrines declared in many cases which came before the Supreme Court of the United States in respect to grants existing in Louisiana and Florida, at the respective dates of the treaties ceding those countries to the United States, and also necessarily resulting from the interpretation of the 15th section of the Act of 1851, as found in Waterman vs. Smith and other California cases, and in Beard vs. Federy (3 Wallace, 491), and also resulting from the provisions of the Constitution which limit Congress to the disposition of government property, and which further declares that no person shall be deprived of liberty or property without due process of law, and that private property shall not be taken for public use without just compensation.
If there be titles derived from a source of paramount proprietorship, which can be interposed in successful resistance to any action of the government or its grantees, what are they in their nature and quality, unless they be perfect titles? Is a title in fee simple absolute, in common law phrase, a better title than a perfect title under the laws of Mexico, when that government was the absolute sovereign proprietor of the lands granted? There can be but one answer to this question.
History of the Bench and Bar of California. 65
The title of Dominguez to the tract of land Las Virgenes was a perfect title at the date of the cession, as appeared by the record before the court in the action, and so the court, by Mr. Justice Miller, admitted it to be at that date, but gave force and effect to the legislative judgment and decree, declaring that the same became a part of the public domain, because its owner failed to submit his title thereto to the commissioners for their examination and judgment respecting it. Is not this, in effect, a confiscation of the property of Dominguez, depriving him of it without due process of law, taking it from him for the use of the government, without rendering for it a just compen- sation ?
Involved in the decision of the court, holding that a perfect title must needs be presented to the commissioners to save it from forfeiture to the government, is an admission that such was a perfect title in fee simple absolute at the date of the cession, and at the time of the passage of the Act of 1851, and continued to be so until the end of the period prescribed for its presentation to the com- missioners. The examination and judgment of the commissioners could not make the title a better title than it had been and was, for that was impossible. What could they have done more than to inspect and examine the muniments of the title, which were of record, importing absolute verity? If they had proceeded farther and decreed it to be a perfect title, such decree would have been idle and inconsequential. Nothing could come of such decree to alter, change, or give greater validity to the title, than it had at the beginning of the proceeding. Nothing could be gained from a patent of the United States. Such patent could not make the title better than it had been, and was from the time it became complete and perfect under the laws of Mexico. The patent record was no better as a record than the one already existing in the archives of the government, easily accessible to all concerned. No beneficial end could possibly be attained by the presentation of such a title to the com- missioners, and their confirmation of it followed by a government patent, for the reason that the owner of such a title had already a perfect title to the land, which. was duly recorded.
Between parties litigating as to which has the right to the possession of certain real property, depending upon a legal title from a source of paramount proprietorship, the party holding such title must prevail. In such a case there is a tangible result as distinguished from a result purely ideal.
If it be said the Act of 185 1 contemplated and provided for a contest and litigation between the owner of land by legal title in full property, and the United States, as to which party should have and hold the land in controversy, the question arises as to the power of the United States, one of the parties, in its political capacity to create a special tribunal with authority to hear and try, upon documentary evidence, and the testimony of witnesses, and to deter- mine by decree as to the rights of the respective litigants to the land in contro- versy, by a proceeding, not in due course of law, but entirely independent of
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History of the Bench and Bar of California.
the right of a trial by a jury, a right secured by the Constitution, which pro- vides that "in all suits at common law. where the \alue in controversy exceeds twenty dollars, the right of trial by jury shall be preser\-ed."' Such an action or suit is exclusively of common law cognizance, as distinguished from the jurisdiction of courts of equity, and the jurisdiction conferred on the commis- sioners by the Act of 185 1, in regard to lands claimed by private persons by virtue of any right or title of an inchoate, imperfect, or equitable nature, deri\-ed from the Spanish or Mexican government.
Tt is believed that no one can or will say the scheme devised by Congress for the trial of perfected titles /;/ rem, was. in any just sense, a trial of such title, in accordance with the "law of the land — due course of law — due process of law."
The decision in the DomingTiez case is placed on two grounds. The first ground is that of governmental policy respecting the public lands. The learned Justice says: "It is clear that the main purpose of the statute was to separate and distinguish the lands which the United States owned as prop- erty * * * from the lands which belonged, either equitably or legally, to private parties, under a claim of right derived from the Spanish or Mexican governments." And he further says, "This was the purpose of the statute; and it was equally important to the object which the United States had in the passage of it, that claims under perfect grants, under the Mexican govern- ment, should be established as that imperfect claims should be established or rejected." To support this view of the purpose of the statute, several expres- sions of opinion by justices of the court are cited, two of which, the most emphatic, may be here noticed. The first is the case of United States vs. Fossat (21 Howard. 447), and the second, the case of Moore vs. Steinbach, (127. U. S. R., 81).
The Fossat case in\-olved the consideration of an inchoate grant or imper- fect title, which the claimant had presented to the commissioners, and Mr. Justice Campbell, who prepared the opinion in the case, discoursed at some length as to the necessity existing for the presentation of all land claims held under perfect titles as well as those held under imperfect grants, to the board of commissioners for their examination and judgment, saying, "The effect of the inquiry and decisions of these tribunals upon the matter submitted is final and conclusive. If unfavorable to the claimant, the land shall be deemed, held and considered a part of the public domain of the United States" ; and continuing the learned Justice said, "All claims to lands withheld from the board of commissioners during the legal term for presentation, are treated as non-existent, and the land as belonging to the public domain."
In Moore vs. Steinbach, Mr. Justice Field said the defendants had not accjuired a perfect title to the lands which they claimed. He then proceeded to consider the obligation which the owner of land by perfect title in full property, was under, to present his claim to the board of land commissioners
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for examination, and continuing, he said. "The ascertainment of existing claims was a matter of vital importance to the government, in the execution of its policy, respecting the public lands, and Congress might well declare that a failure to present a claim should be deemed an abandonment of it, and that the lands covered by it should be considered a part of the public domain."
These expressions of opinion are entitled to respectful consideration as emanating from able and learned lawyers ; but they can hardly be esteemed judicial determinations as to the necessity of presenting a perfect title for the examination and judgment of the commissioners, for the reason that that question was not involved in, or necessary to. the decision of the cases named, as each of the parties in those actions had presented his claim to the lands in question to the board of commissioners.
Mr. Justice Campbell held that all claims to land withheld from the board "are treated as non-existent and the land as belonging to the public domain."
Treating a perfect title as "non-existent" must be deemed an attempted violation of a vested right. The fact of the existence of a title in fee simple to land cannot be destroyed by a sweep of the pen, nor by the obiter dictum of a learned judge. It would be well to remember that a fact cannot be destroyed.
Mr. Justice Field held in the Moore case that a failure to present a claim to lands, subsisting in a perfect title, might well be declared by Congress an abandonment of the claim, and that the lands covered by the title should be considered a part of the public domain. Would not such a declaration and such a determination be of the nature of a judgment, emanating from the political branch of the government, in effect condemning the land of the owner to government use, without due process of law, and without paying him for it? How could the legislature declare and decree that the owner of land in full property should be deemed to have abandoned it. when he