USA > California > History of California, Volume VI > Part 33
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NATIVE CALIFORNIAN MEMBERS.
imposed upon us that will be a curse to California as long as she exists."
What McDougal's speech lacked in grammar and rhetoric it supplied in facts, and was therefore of value. After some further remarks on both sides, Semple related a conversation he had held with Thomas Butler King, who had said: "For God's sake, leave us no territory to legislate upon in con- gress;" whereupon Betts repudiated the idea of King a; an exponent of the wishes of congress. Norton spoke in favor of Gwin's boundary; Sutter of that re- ported by the committee, except that he suggested the southern line to be the confluence of the Gila River with the Colorado, in order to facilitate the trade of the people of San Diego with Sonora and New Mexico.
The debates waxed warm, and Shannon took occa- sion to say that King did not utter the sentiments of the entire congress. "The secret of it is this," said he, "that the cabinet of the United States have found themselves in difficulty about the Wilmot proviso, and Mr Thomas Butler King-it may be others-is sent here, in the first place, for the purpose of influencing the people of California to form a state government, and in the next place to include the entire territory. Sir, it is a political quarrel at home into which they wish to drag the new state of California. For my part I wish to keep as far away from such rocks and breakers as possible. Let the president and his cabinet shoulder their own difficulties. I have no desire to see California dragged into any political quarrel. Are these the high authorities to which we should so reverentially bow? I think not. I believe they speak but their own sentiments, or his own senti- ments, or the sentiments of the cabinet. Besides, sir, I always wish to watch a political agent; I would always be careful of men of that description."
When Carrillo had spoken, through an interpreter, in favor of comprehending in the state of California
296
POLITICAL HISTORY.
all the country assigned by the Spanish government to the province of Upper California, in 1768, and rec- ognized as such by Mexico, upon the ground that they had no right to leave any part of the people without government, Betts raised a new point, which was that the convention had been called by proclamation of General Riley to represent the ten districts there named, and all lying west of the Sierra. How, then, could they represent any more? Some of them had received a hundred votes; he but ninety-six; how could they assume to legislate for 30,000 Mormons at Salt Lake?
The subject occupied several days in debate, and was laid aside to be brought up two weeks later, when it came near wrecking the constitution altogether; but after a scene of wild confusion, and the rejection of several amendments, a compromise offered by Jones was adopted fixing the eastern boundary on the 120th meridian from the Oregon line to the 39th parallel, running thence to the Colorado River in a straight line south-easterly, to the intersection of the 35th par- allel; and thence down the middle of the channel to the boundary established between the United States and Mexico by the treaty of Guadalupe Hidalgo. A proviso was attached that should congress refuse to admit the state with that boundary, then it should include all the territory as far east as the boundary line of New Mexico, as drawn by Preuss from the surveys of Frémont and others. In this form it was passed by a vote of thirty-two to seven.
No other subject engendered much controversy, and there was a good deal of " slavish copying" of the con- stitutions of New York and Iowa, which indeed was the highest wisdom. Every white male citizen of the United States, and every white male citizen of Mex- ico who had chosen to become a citizen of the United States under the treaty of peace of 1848, of the age of twenty-four years, and who had resided six months
297
STATE DEBT AND TAXATION.
in the state preceding the election, and thirty days in the district in which he claimed his vote, was eligible. A proviso permitted the legislature by a two-thirds vote to admit to suffrage Indians or the descendants of Indians, in special cases as that body might deem proper, a concession to the native Californians.78
The questions of corporations and state debt, and of taxation, received much attention from the convention, which restricted the legislature in its power to create corporations by special act, or to charter banks, leav- ing it to form general laws under which associations might be formed for the deposit of gold and silver only, but without the power to issue paper of any kind. The legislature was also restricted from creat- ing a state debt exceeding the amount of $300,000, unless in the case of war; but it might pass a law authorizing a greater expenditure for some special object, by providing ways and means exclusive of a loan for the payment of interest and principal. Lot- teries were also prohibited as dangerous to the welfare of the people.
It was impossible to avoid saying in the constitu- tion that taxation should be equal; but the delegates from that portion of the state covered by Spanish grants refused to listen to any proposition subjecting their real estate to taxation, while the bulk of the population, who had no real estate nor anything that could be taxed, enjoyed the benefits of a government for which they, the Mexican population, paid. To obviate this difficulty the assessors and boards of supervisors were to be elected by the voters in the county or town in which the property was situated, and consequently influenced by them. This provis- ion was a defect of which the constitution-makers were conscious, but for which at that time there seemed no remedy. Some guaranty against oppress- ive taxation was required, and none better offered,
18 Sutter, Autobiog., 198-9; Browne, Constit. Debates, 179-80; Gwin, Memoir, MS., 16.
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POLITICAL HISTORY.
although it was plain that as the provision stood, it could be made to protect the great and oppress the small land-holders.
The legislature was forbidden to grant divorces, and was required to pass a homestead law. All property, real and personal, of married women, owned at the date of marriage or afterward acquired by gift, devise, or inheritance, was made separate property, and the legislature was enjoined to pass laws for its registra- tion; and other laws clearly defining the rights of wives in relation to property and other matters.
With regard to education, the legislature was re- quired to provide for a system of common schools, by which a school should be kept up in each district three months in the year; and any district neglecting to sustain such a school should be deprived of its pro- portion of the public fund during such neglect. The support of common schools was expected to be derived from the sale of lands with which the state was in the future to be supplied by congress. The position of California was quite unlike that of other members of the United States when demanding admission, having passed through no territorial period, and having no land laws. Considerable time would elapse before it could be known how land matters stood, how much belonged to the former inhabitants, the nature of their titles, and other questions likely to arise. But the framers of the constitution could only proceed upon the ground that congress would not be less bountiful to California in the matter of school land than it had been to Oregon and Minnesota. 79 Has-
79 I have been at some trouble to find who first suggested our present lib- cral school land law. It seems that in 1846 James H. Piper, acting commis- sioner of the gen. land office, made a report to Robt J. Walker, sec. of the treasury, on the 'expediency of making further provision for the support of common schools in land,' saying that it was attracting ninch attention, and was certainly worthy of the most favorable consideration. 'Those states are sparsely settled by an active, industrious, and enterprising people; who, how- ever, may not have sufficient means, independent of their support, to endow or maintain public schools. In aid to this important matter, congress, at the commencement of our land system, and when the reins of government were held by the sages of the revolution, set apart one section out of every town- ship of 36 sq. miles. At that early day, this provision doubtless appeared
299
GOVERNMENT AND JUDICIARY.
tings made an effort to have the obligatory school term extended to six months; but Gwin and Dimmick op- posed the amendment, and it was lost. The legisla- ture was required to take measures for the protection, improvement, and disposition of such lands as congress should grant for the use of a university, and to secure the funds arising therefrom; and should " encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement."
As to the government of the state, its executive de- partment consisted of a governor, lieutenant-governor, secretary of state, comptroller, treasurer, attorney- general, and surveyor-general; the governor and lieu- tenant-governor to be elected by the people; the secretary to be appointed by the governor, with the other officers chosen by consent of the senate, and the joint vote of the two houses of the legislature. The judiciary department was elective,80 and consisted of a supreme court, district courts, county courts, and justices of the peace.
Among the miscellaneous provisions was one dis- franchising any one who should fight a duel with deadly weapons, or assist in any manner at a duel.81 The
munificent, but experience has proved it to be inadequate.' He recommended further grants. H. Ex. Doc., 9, vol. ii., 29th cong., 2d sess. Walker sent the report to John W. Davis, speaker of the house. In the report of sec. Walker for Dec. 1847, he refers to the subject again; and recommen Is 'the grant of a school section in the centre of every quarter of a township, which would bring the school-house within a point not exceeding a mile and a half from the most remote inhabitant of such qr township.' This applied first to Ore- gon, which was then under consideration as to land donations. H. Ex. Doc., 6, p. 10 of Rept of Sec Treas., 29th cong., Ist sess. Addressed to Hon. Robt C. Winthop, speaker of the house. In 1848, Walker again recommends the grant of 4 sections in every township for school purposes, ' in each of the new states,' mentioning however, Or., Cal., and New Mexico. H. Ex Doc., 7, vol. ii., 30th cong., 2d sess. The committee to which it was referred finally decided upon two sections to every township. Gwin quoted from Walker's report. Browne, Constit. Debates, 207
80 Du Hailly, in Revue des Deux Mondes, Feb 1, 1859, 608-9, remarks upon the judiciary being subject to the caprices and instabilities of elections at short intervals. There were seven in the convention opposed to it. among whom was Crosby. Events in Cal., MS., 44.
81 During the discussions in the early part of the session, Jones and Tefft had a wordy encounter which nearly resulted in a bloody one, but the would- be duellists were brought to a mutual apology by the interposition of Gwin, whose knowledge of parliamentary usages was, though often paraded, really of much use to the convention, as this incident illustrates
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POLITICAL HISTORY.
question of a capital was avoided by requiring the legislature to meet at San José until removed by law, the consent of two thirds of all the members of both branches of the legislature being necessary to its removal.
When the committee on finance was instructed to report on the compensation of members of the con- vention, Gwin summed up the condition of the revenue of the country briefly to the effect that the new state was in want of everything-public buildings, court- houses, jails, roads, bridges, and all internal improve- ments-prices were excessively high, there was not a dollar of public money, nor could any be raised but by levying taxes which the population was in no condition to bear. Ranchos were abandoned and the laborers gone to the mines. There were consequently no crops, and property that yielded $100,000 income three years before was then yielding nothing. In the mines the people could not be taxed, having no prop- erty but the gold they dug out of the earth, and needing that to make improvements. The proposition was made to lay before congress in a memorial, to accompany the constitution, the condition of the people, and call- ing for support to a state government, either by donat- ing a part of the public domain, or appropriating from the moneys collected in California from the customs and sale of the public lands an amount sufficient for the object. This Gwin thought would not be objected to by congress, which in the case of fourteen other states had paid the expenses of a territorial govern- ment for many years. The memorial which was finally presented to congress with the constitution did not make the demand proposed, and only very slightly alluded to the fund created by customs collected in California while in its transition state.82 The schedule
82 I have already several times alluded to this fund, but without giving its entire history, which is this: In Oct. 1849, a Military Contribution tariff was promulgated by the president, and established in the ports of Cal. The cus- tom-houses, which until then had remained in the hands of citizens, who accounted to the military governor, or commodore of the Pacific squadron, were now filled with army or navy officers, down to the period when, peace
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CONVENTION WORK COMPLETED.
attached to the main instrument continued the exist- ing laws in force until altered or repealed by the legis-
being proclaimed, collectors were appointed by Mason, in his position of gov. of Cal., customs being collected on all foreign goods as directed in the tariff of 1846-the commodore of the Pacific squadron continuing the direction of all matters relating to port regulations. 'A double necessity,' says Riley, 'impelled the gov. to this course; the country was in pressing need of these foreign goods, and congress had established no port of entry on this coast; the want of a more complete organization of the existing civil govt was daily in- creasing; and as congress had made no provision for supporting a territorial govt in this country, it was absolutely necessary to create a fund for that purpose from duties collected on these foreign goods. It is true, there was no law of congress authorizing the collection of those duties, but at the same time the laws forbade the landing of the goods until the duties were paid. Congress had declined to legislate on the subject, and both the president and secretary of the treasury acknowledged the want of power of the treasury department to collect revenue in Cal. The gov. of Cal., therefore, assumed the respon- sibility of collecting this revenue for the support of the govt of this coun- try.' Letter of Riley to Col J. Hooker, com'g dept, asst adj .- gen. Pacific division, in H. Ex. Doc., 31, i. no. 17, p. 814-29. The writer goes on to say that in the interim between the signing of the treaty of peace and the exten- sion of the revenue laws over this country, it is a fair presumption that the temporary regulations established by the executive authority continued in force, so far as they conflicted with no treaties, or laws of the U. S., or con- stitutional provisions; at any rate, that Mason had communicated his pro- ceedings to Washington, and met with no rebuke, from which he inferred they were approved; in fact, that congress had entirely ignored the whole case. 'The reason of this is obvious: as congress had failed to organize a territorial govt here, all were aware the existing govt must continue in force, and that it must have some means of support.' Such was the extraordinary origin and history of the civil fund, which began as a military contribution, and after peace was continued solely by the will of a military officer, without the instructions or even the notice of congress, but which congress permitted to be applied as the military governors saw fit until the state govt was estab- lished, and then diverted into the U. S. treasury. In Aug. 1849, an attempt was made to remove this money from the control of Riley, and to place it at the disposition of the military commander who had had 'no responsibility in its collection, and who of right can exercise no authority over it.' It was the correspondence on this subject which brought out the above statements. Among other facts elicited was this, that when money was wanted by the military department (formerly), on application a loan or temporary transfer was made from the civil fund. Halleck also, in May 1849, complained that it was difficult to keep the civil funds separate from the military appropria- tions. The reason was, that the army and navy officers found their pay so inadequate to their expenses as to force them to make calls upon the civil fund. That 'grim old fellow,' Riley, refused to give up the money already collected under his administration, and in his charge, to Gen. Smith, who had certainly no right to demand it. Ou the 3d of Aug. the gov. appointed Maj. Robert Allen treasurer of Cal., who in direct violation of his instructions trans- ferred $35, 124.79 to the quartermaster's department, and $500 to Maj. Fitz- gerald, asst qr master. In Aug. the amounts due the civil fund from the military dept was $10,000, transferred to Maj. Hardie for raising troops in Or ; $70,000 to Naval Purser Forest, for the expenses of bringing immigrants from Lower Cal .; $3,500 to Maj. Rich, and $200 to Lieut Warren; $10,804.50 transferred by Lieut Davidson to the qr master and commissary depts, and $896.70 delivered to Capt. Ingall by the collector at San Pedro. Previous to this, in 1848, Gen. Kearny appointed two sub-Indian agents, and paid them from the civil fund, and there had been loaned $3,210 to officers of the navy.
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POLITICAL HISTORY.
lature, and transferred all causes which might be pending to the courts created by the constitution on the admission of the state. It provided for its ratifi- cation by the people, at an election to be held Novem- ber 13th, and for the election at the same time of a governor, lieutenant-governor, a legislature, and two members of congress. Should the constitution be adopted, the legislature should assemble at the seat of government on the 15th of December, and proceed to install the officers elect, to choose two senators to the congress of the United States, and to negotiate for money to pay the expenses of the state government.
By close application to business, day and night,83 the constitution was brought to completion, and signed on the 13th of October, thirty-one guns being fired from the fort in honor of the occasion; the last one for the constitution of the new state of California.84 It was an instrument of which its makers might justly be proud; its faults being rather those of circumstance
None of this money had been accounted for in Aug. 1849, nor do I find any evidence that it ever was returned to the civil fund. In Sept. Riley author- ized the loan of $30,000 for the use of the pay dept of the army, from the fund collected at Benicia. In Oct. $15,000 was loaned Maj. Mckinstry, for the use of the qr master's dept; and for Lient Derby's use $3,000. One other source of revenue, besides customs, was the money received from the rent of the missions-unauthorized, like the first-all of which is to be found in the document quoted above. See also Alta Cal., Dec. 15, 1849, and Frost's Hist. Cal., 485-6. King, on his arrival, had to have a finger in the pie. He in- structed the collectors not to exact duties, but to receive deposits at the door of the treasury, subject to the action of congress. On the 20th of June there was half a million in the hands of the quartermaster, a part of which belonged to the revenue, congress having extended the revenue laws to Cal. Riley had always been of the opinion that the civil fund belonged in justice to the peo- ple of Cal., from whom it had been collected without a shadow of law, and made several recommendations on the subject, some of which were that it should be applied to school purposes and to public improvements. Neither object ever received a dollar of it; but the money was ordered into the U. S. treasury, after the expenses of the convention were paid out of it, which the general took care should be liberal.
83 Among the relics of the convention preserved is a candlestick which served to help illuminate its evening sessions.
8} Crosby mentions that Sutter had a great love for the noise of artillery, and was much excited by the discharge of the cannon, exclaiming over and over, 'This is the proudest day I ever saw !' Cal. Events, MS., 37. The gen- tle Swiss was mellow. See, further, Sac. Union, Sept. 1859; Cal. Past and Present, 181; S. F. Alta, June 17, 1878; Roach, Statement, MS., 4; S. F. Post, June 29, 1878; Taylor's Eldorado, i. 146-56; Frignet, 125 et seq .; Jenkins' U. S. Ex. Ex., 440; Sac. Reporter, Jan. 7, 1869; Willey's Per. Mem., MS., 128-34.
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PAY AND PLAY
than of judgment. The heterogeneous personnel of the convention proved a safeguard rather than a draw- back; New York being forced to consult Mississippi, Maryland to confer with Vermont, Rhode Island with Kentucky, and all with California. Strangers to each other when they met, in contending for the faith that was in them they had become brothers, and felt like congratulating each other on their mutual achiev- ment. 85
Governor Riley had made no secret of his intention to pay the expenses of the convention from the civil fund, and on being visited by the delegates, en masse, received them with his usual grim humor, and allowed their not too modest demand of sixteen dollars per day, and sixteen dollars for every twenty miles of travel in coming and returning. The reporter of the proceed- ings received $10,000, he contracting to furnish one thousand printed and bound copies in English, and one quarter as many in Spanish, for that money. The nearest newspaper office being in San Francisco, and there lacking but one month to the time of election, a courier was despatched post-haste to the Alta office to procure the printing of copies $6 for immediate circula- tion for election purposes, together with a proclamation by Governor Riley submitting the constitution and an address to the people, prepared by Steuart, and signed by the delegates. Then they all drew a breath of relief, and voted to have a ball, in which men of half a dozen nationalities, and almost as many shades of complexion, trod the giddy mazes of the dance with
85 Lieut Hamilton made the handsomely engrossed copy of the constitu- tion, which was forwarded to congress, for $500. For the text of the funda- mental laws of Cal., see Cal. Statutes, 1850, 24-6; U. S. Sen. Doc. 28, viii .; 31st cong., Ist sess .; U. S. H. Misc. Doc., 44, i. 18-34; 31st cong., Ist sess .; U. S. H. Ex. Doc. 39, vii. 17; 31st cong., Ist sess .; Browne, Constit. Debates App., iii. - xiii. ; Hartnell's Convention, Original, MS., pts. 1-16; Am. Quart. Reg., iii. 575 -- 88; S. I. Friend, vii. 90; Simonin, Grand Quest., 324-36; Capron, 48-50; Poly- nesian, vi. 110. The autographs of the signers are to be found in the museum of the Pioneer Society, S. F. In 1875 only 15 out of the 48 were living, and the orator of the anniversary celebration for that year (Ross Browne) died a few weeks later.
86 Foster's Angeles in 1847, MS., 17-18; H. Ex. Doc. 31, i. no. 17, p. 845-6; Gregory, Guide, 11-46; Val., Doc., 35, 153-7.
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POLITICAL HISTORY.
California señoras in striking costumes, whose dark splendors were relieved here and there by a woman of a blonde type and less picturesque attire.
In a few days the constitution was carried to every mining camp and rancho in the land.87 Candidates took the field for office under it, should it be sanctioned by the people, and made their speeches as in any ordinary campaign. The democracy, whose delight it always was to 'organize,' held their first party gather- ing in Portsmouth square, San Francisco, October 25th, Alcalde Geary acting as chairman.88 The or- ganization, however, being suspected to be a piece of political legerdemain to put in nomination for congress a member of a clique, some of the solid, old-fashioned democrats in attendance offered a resolution to invite the towns in the interior to participate in the nomina- tions, which resolution being adopted, a convention was the result, and Edward Gilbert was nominated for that position. Other democrats gave as a reason for introducing party politics at this period in the his- tory of the state, that T. Butler King, having resigned his place in the lower house of congress, was aiming at the senate, expecting to be elected by a no-party majority, and they wished to defeat these aspirations. 9
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