History of California, Volume VI, Part 35

Author: Bancroft, Hubert Howe
Publication date: 1885-1890
Publisher: San Francisco, Calif. : The History Company, publishers
Number of Pages: 816

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the judge maintaining that under the laws of Mexico, which prevailed at the time of his arrival, he was free. The constitution of Cal. forbade slavery also; and the man having been freed by the Mexican law could not be, in any case, seized as a slave. On the 24th of May Charles was brought up for breach of the peace, charged with assault on Hayes, and resistance to the sheriff. It turned out that the sheriff had no warrant, and that Charles hav- ing been declared a freeman was justified in defending himself from assault by Hayes, and the unauthorized officers who assisted him. Counsellor Zabriskie argued the law; also J. W. Winans; Justice Sackett discharged the prisoner. Placer Times, May 27, 1850; S. F. Pac. News, May 29, 1850; Fay's Statement, 18-21. In Aug. 1850, one Galloway, from Mo., arrived in Cal. with his slave Frank, whom he took to the mines, whence he escaped in the spring of 1851, going to S. F. Galloway found him in March, and locked him up in the Whitehall building on Long wharf. A writ of habeas corpus was issued in Frank's behalf by Judge Morrison, the negro stating that he believed Galloway meant to take him on board a vessel to convey him to the states. Byrne and McGay, and Halliday and Saunders, were employed in the interest of the slave, and Frank Pixley for the master, who alleged that he was simply travelling with his attendant, and meant to leave the state soon. But the judge held that Galloway could not restrain Frank of his lib- erty, as he was not a fugitive slave, but if brought at all to the state by Gal- loway, was so brought without his consent. He was allowed to go free. Alta Cal., April 2, 1851; S. F. Courier, March 31, 1851. There were many slaves in the mines in 1851, and many appeals in court for the reclamation of slaves. Borthwick, 164-5; Hayes' Scraps, Angeles, MS., i. 28.

8 Kewen resigned in 1850, and James A. McDougall was elected to fill the vacancy.

315

THE POOR LAW-MAKERS

tor had ordered a copy of the governor's message for his individual use In this strait a joint resolution that the secretary of state, comptroller, judges of the supreme court, and all other state officers should have power to procure the necessary blank books, station- ery, and furniture for their offices, was offered-and lost. The weather, their accommodations, and their poverty together were almost more than men who had sacrificed their own interests to perform a public duty were able to bear; but they sturdily refused to adjourn, taking only three days at the Christmas holi- days in which to recreate, and wait for printing pro- posals.

To lighten their hearts the inhabitants of San José gave them a ball on the 27th of December, in the assembly-chamber, and hither came the beauty and chivalry of California, at least as much of it as could get there through a drenching rain, on a Liliputian steamboat, from Benicia, and by whatever means they had from other directions. About the 1st of January they settled down to the work before them.

Green, the irrepressible senator to whom everything was a huge joke, who had been elected in a frolic, and thought legislation a comedy, had very inappropriately been placed at the head of the finance committee, and brought in a bill for a temporary loan at ten per cent per annum, when the lowest bank rate was five per cent per month. While the legislature was struggling with the problem of how to get money for current expenses, Michael Reese, long a prominent money- bags of San Francisco, made a suggestion that they pass a bill authorizing the issue of treasury notes, payable in six or twelve months, with interest at the lowest current rate, and in small denominations, which hotel-keepers would accept for board, promising to take some of them himself for money-he did not say

9 Annals S. F., 237; Cal State Register, 1857, 189; S. F. Pac. News, April 27, 1850; Hayes' Scraps, Angeles, i. 15; Oakland Transcript, in West Coast Sig- nal, May 27, 1874; S. F. Argonaut, Dec. 1, 1877.

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POLITICAL HISTORY.

at the rate of fifty cents on the dollar. An act author- izing a loan of $200,000, to pay the immediate demands on the treasury until a permanent fund could be raised, passed, and was approved January 5th, proposals to be received until the 25th, the loan to be for a term of not less than six, nor more than twelve years. An- other act was passed in February creating a tempo- rary state loan, authorizing the treasurer to issue the bonds of the state in sums of $100 and upwards to $1,000, payable in six months, and not exceeding in the aggregate $300,000, with interest at three per cent per month. The bonds were to remain at par value, be received for taxes, and redeemed as soon as there was sufficient money in the treasury.10

Laws, enacted for the collection of revenue, taxed all real and personal estate, excepting only that de- voted to public uses and United States property, exempting the amount of the holder's indebtedness, and exempting the personal property of widows and orphan children to the amount of $1,000 each. Money was construed to be personal property, and incorporated companies were liable to be taxed on their capital. The amount levied for the year 1850 was fifty cents on every $100 worth of taxable property, and a poll tax of $5 on every male inhabitant over twenty-one and under fifty years of age. It was a peculiarity of California at that period that there were few men here fifty years old, excepting the elders of the native Californians. The argonauts were all in their prime.

Courts of second ana third instance were abolished, and courts of first instance retained until the district courts should be organized. Nine judicial districts were created, the first comprising the counties of San Diego and Los Angeles; the second Santa Bárbara and San Luis Obispo; the third Monterey, Santa Cruz, Santa Clara, and Contra Costa; the fourth San Francisco; the fifth Calaveras, San Joaquin, Tuol-

10 Cal. Statutes, 1850, 53-4, 458; Crosby, Events in Cal., MS., 63; S. F. Alta, Jan 14, 1850

317

COUNTIES AND THEIR BOUNDARIES.

umne, and Mariposa; the sixth Sacramento and El Dorado; the seventh Marin, Sonoma, Napa, Solano, and Mendocino; the eighth Yolo, Sutter, and Yuba; the ninth Butte, Colusa, Trinity, and Shasta. The judges were to be elected by the people, and commis- sioned by the governor. Besides the supreme court elected by the legislature, which should hold its ses- sions at the seat of government after holding first one special term at San Francisco, there was created the municipal court of superior judges for the city of San Francisco, consisting of a chief justice and two asso- ciate justices. Justices of the peace attended to minor causes. Crosby was chairman of the judiciary com- mittee, and made an able report on the adoption of the common law, as against the civil law, as the rule governing the decisions of the courts in the absence of statutory law.11

De la Guerra was chairman of the committee on counties and their boundaries, for the senate, and Cornwall for the assembly. The state was divided into twenty-seven counties, and a commission ap- pointed to report the derivation and definition of their several names, of which Vallejo was the chief, and made an interesting report.12 No objection seems to have been offered by the inhabitants to the boundaries, unless in the case of Monterey district, which in Au- gust 1849 had petitioned the local legislature against a proposed division. However, the state legislature re- ceived two petitions from Santa Cruz, and from 141 Americans, headed by A. A. Hecox, and another from nineteen native Californians, headed by Juan Perez, asking for a separate county, which was set off in accordance with a report of a joint delegation from Monterey and San José.13

11 Crosby says there was quite an element of civil law in the legislature, which naturally might be, as the foreign element was chiefly descended from the Latin races. Being a New Yorker, he favored the English common law. His report was scanned by Bennett, and being sent to members of the bar in that state, he received as a testimonial a handsome seal engraved with his crest. Rockwell, Span. and Mex. Law, 506.

12 Jour. Cal. Leg., 1850, 523-7.

13 Santa Cruz Sentinel, Aug. 1, 1868; Jour. Cal. Leg., 92.

318

POLITICAL HISTORY.

The county seats were established at the principal towns, except in the cases of Marin and Mendocino, attached to Sonoma for judicial purposes; and Colusa and Trinity attached to Shasta until organized, some of the northern counties being left to choose their own seats of justice.14 The expenses of county govern- ments were to be defrayed out of licenses collected in them, upon every kind of trade and business except mining by citizens of California. 15 County elections were to be held on the first Monday of April 1852, and on the same day of every second year thereafter; but the annual state election for members of the as- sembly, and other officers required to be chosen by the qualified electors of the state or of districts, was fixed for the first Monday in October.

The militia law declared subject to enrolment for military duty all free white men between the ages of eighteen and forty-five, excepting such as had served a full term in the army or navy, or were members of volunteer companies within the state. The militia and independent companies were organized into four divisions and eight brigades; the governor to be com- mander-in-chief, who might appoint two aides-de-camp, with the rank of colonels of cavalry; but the legisla- ture should elect the major and brigadier-generals, one adjutant and one quartermaster general, with the rank of brigadier-general, all to be commissioned by the

14 To be more explicit, and preserve some early names: In San Diego, Los Angeles, Santa Barbara, San Luis Obispo, Monterey, Santa Cruz, S. F., Sac., Napa, and Sonoma, the county seats had the same name as the county. Of Santa Clara, San José was made the county seat; Contra Costa, Martinez; Solano, Benicia; Yolo, Frémont; El Dorado could choose between Coloma and Placerville, and took the latter; Sutter, Oro; Yuba, Marysville; Butte had to choose between Butte and Chico, and took the latter; Colusa was at- tached to Butte co .; Shasta, Reading; Trinity was attached to Shasta; Cala- veras was first given Pleasant Valley for a county seat, but it was changed a few weeks later to Double Springs; San Joaquin, Stockton; Tuolumne, Stew- art, formerly known as Sonoran Camp; Mariposa, Aqua Fria. An act was passed providing for the removal and permanent location of the seats of jus- tice, as required by the people.

15 A law was enacted taxing foreign miners $20 per month as part of the revenue of the state, until the gov. should be 'officially informed of the pas- sage of a law by the U. S. congress assuming the control of the mines of the state.' Cal. Statutes, 1850, 221-2.

319

MILITARY MATTERS.

governor. All persons liable to enrolment, and not members of any company, were required to pay two dollars annually into the county treasury. The money thus collected was called the military fund, which was increased by the exemption tax of minors required of their parents or guardians, and applied solely to the payment of the expenses of that department of the government, including salaries of officers.16 The four major-generals of division elected were Thomas J. Green, John E. Brackett, David F. Douglas, and Joshua H. Bean, in the order here given. The gen- erals of brigade were J. H. Eastland and William M. Winn, Ist division; Robert Semple and Major Mc- Donald, 2d division; John E. Andison and D. P. Baldwin, 3d division; Thomas H. Bowen and J. M. Covarrubias, 4th division. T. R. Per Lee was chosen adjutant and Joseph C. Moorehead quartermaster- general. Only these last two officers drew any salary.

In the following October, the Indians being trouble- some in El Dorado county, the governor called on the sheriff of that county, William Rogers, to raise troops to operate against them, and the legislature of 1851 passed laws providing for the payment of Rogers as major, and of the troops employed in two expeditions against the Indians, but took no notice of generals, who remained in office merely for the distinction of their rank. Nor was the law amended for many years; but in 1872 the organized, uniformed troops of the state were the subject of legislation which . converted them into the present National Guard, con- sisting of thirty-two infantry, six cavalry, and two

16 Cal. Statutes, 1850, 190-6. This law was several times revised, and in 1872 took its present form. Cal. Codes, 154-84. Only two officers were salaried; the adjutant-general receiving $1,000 per annum, and the quarter- master-general $2,000. Gen. Winn brought in a claim in 1860 for services rendered, which were not, however, recognized by the legislature, as no law could then be found anthorizing the payment of any officer above the rank of major. Cal. Jour. Assem., 1860, 253-4. The clerk of the honse military com. was Davis Divine, a lawyer from Oneida co., N. Y., who came to Cal. in 1849, and settled in San José. He was also clerk of the judiciary com. of the senate. He was for many years justice of the peace and judge of the court of sessions; and projected the first R. R. co. to build a road to S. F. from San José. Owens, Santa Clara Valley, 37.

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POLITICAL HISTORY

artillery companies, whose pay when in service is the same as that of United States officers and soldiers. All claims are submitted to a board of military audi- tors, consisting of the commander-in-chief, adjutant- general, and attorney-general; and its warrants are paid by the state treasurer. The sum of $300 is annu- ally allowed to each company of over sixty members, a proportionate amount to smaller companies, and $100 to each detachment of engineers, for expenses. Three officers are salaried: the armorer, adjutant-general, and assistant adjutant-general

An act was passed, which was allowed by the schedule to the constitution, to the first legislature, authorizing a loan in New York on the faith and credit of the state, for the expenses of the state, not to exceed $1,000,000, at ten per cent per annum, and re- deemable in twenty years, or if desired by the state at any time after ten years. This unfortunate will- ingness to plunge into debt was a part of the mental condition of Californians at this period, and was in marked contrast with the prudent economy of the early Oregonians. Both were the result of circum- stances. In Oregon there was no money; in Califor- nia there promised to be no limit to it. The amount required to pay the salaries of state officers was $107,- 500, which did not include the state printing, always considerable, nor the pay of legislators at sixteen dol- lars per diem, and equally extravagant mileage. Yet it was difficult to retain a quorum, such were the in- ducements to members to look after their mining or other interests, and the sergeant-at-arms found his office no sinecure. At one period the senate, in order to go on with its business, was reduced to the neces- sity of deciding that eight constituted a quorum in- stead of nine, and one ever-busy senator was arrested for being absent long enough to pay a sick member a morning visit. Several resignations and new elections took place, and one assemblyman never claimed his

321

SLAVERY RESOLUTIONS.

seat. Nevertheless, the code of 1850 is a very creditable performance, liberal in its tone, and re- markably well adjusted to the new conditions in which the legislators found themselves.

The resolutions passed on the subject of slavery were sounding brass and tinkling cymbal ten years later,17 but were sound democratic doctrine, though somewhat unsound democratic grammar, in 1850. The democratic party in America was fast becoming the pro-slavery party. In congress this party insisted on the right of a state to determine the question of slav- ery for itself, but when such state elected to be free, endeavored to keep it out of the union. California, with a strong southern element, was controlled by northern sentiment; and the interests of all men as individuals demanding the admission of the state, there was by universal consent at this time an effort to ignore the necessity for the tremendous struggle going on at the national capital. At a later period some of these same men were drawn into the conflict.

One great error committed by the first legislature was in not making a permanent location of the capital. Instead of so doing, the question was left open to election between the towns aspiring to the honor,18 and the seat of government was hawked about for years in a manner disgraceful to the state. Monterey, San José, Sacramento, and Vallejo all desired and

17 ' That any attempts by congress to interfere with the institution of slavery in any of the territories of the U. S. would create just grounds of alarm in many of the states of the union; and that such interference is unnecessary, inexpedient, and in violation of good faith; since, when any such territory applies for admission into the union as a state, the people thereof alone have the right, and should be left free and unrestrained, to decide such question for themselves.' Broderick, who had been elected to fill the place of Bennett, resigned in January, moved the insertion of the following: 'That opposition to the admission of a state into the union with a constitution prohibiting slavery, on account of such prohibition, is a policy wholly unjustifiable and unstatesman-like, and in violation of that spirit of concession and compromise by which alone the federal constitution was adopted, and by which alone it can be perpetuated,' which addition was adopted. Jour. Cal. Leg., 1850, 372-3.

18 Cal. Statutes, 1850, 412; S. F. Pac. News, Oct. 5, 7, 1850.

HIST. CAL., VOL. VI. 21

322

POLITICAL HISTORY.

made bids 19 for the seat of government. Sacramento offered public buildings, and actually secured $1,000,- 000 in subscriptions toward this object. The offer of Vallejo being considered superior20 in many respects, the people voted to accept his proposition. But when the second legislature met, they found the new town remote and dull, hotel accommodations limited, and amusement lacking; whereupon, after a few days, they adjourned to San José, which was still the legal cap- ital, no act having been passed changing its location, for which reason and others, the executive had re- mained at San José, this town being his residence. On the 4th of February a bill was passed making Vallejo the permanent seat of government. At this

place the third legislature was convened, but before the end of the month removed to Sacramento, "to procure such accommodations as were absolutely and indispensably necessary for a proper discharge of their legislative duties," the archives and the state officers joining in these perambulations by land and water, the latter under protest, and the former at great risk of destruction. On the 1st of June, 1852, the archives were carried back to Vallejo, and the state officers ordered to transport themselves thither. The legis- lature of 1853 was induced to move to Benicia, where it was solicited to accept for the state a present of a legislative hall, and other property, and on the 4th of February and 18th of May of that year passed acts making Benicia the "permanent seat of government."

19 San José subscribed a tract of land a mile square, all eligibly situated, with a perfect title; water and building stone on the land; the consideration being that the state should lay it off in lots, to be sold to the best advantage (except such portions as should be reserved for state buildings), § of the pro- ceeds to go to the subscribers and & to the erection of the public buildings. Val., Doc., xiii. 72; Sta Clara Co. Hist. Atlas, 10-11; Tuthill, Hist. Cal., 391- 2; Cal. Jour. Sen., 1850, 498-504, 1302, 1307, 1310; Richardson, Hist. Vallejo City, in Cal. Pioneers, no. 3, p. 12.

20 See chapter on birth of towns, this vol .; Cal. Statutes, 1851, 430; Marin Co. Hist., 212-14; Val., Doc., MS., 35, 221; Id., MS., xiii. 72, 179, 211, 218, 228; Cal. Statutes, 1853, 309; Vallejo Chronicle, July 6, 1867; Id., Jan. 25, 1868; S. F. Evening Picayune, July 16, 1851; Oakland Transcript, May 13, 1874; Eureka West Coast Signal, May 27, 1874; Sacramento Transcript, Feb. 1, 1851; Polynesian, vi. 150; Assem. Jour., 1852, 500-2, 701-2, 99; Solano Suisun Press, July 17, 1867; Cal. Sen. Jour. App., 503.

323

STATE CAPITAL ON WHEELS.

Vallejo being thus abandoned, the friends of San José who were numerous in San Francisco, and com- prised some of the principal men in the state, and the state officers, began to plot for the return of the cap- ital to that pueblo; while the Sacramentans renewed their efforts to secure this anything but permanent blessing. The fifth legislature met at Benicia the second day of January, 1854, and on the 25th of Feb- ruary again permanently located the seat of govern- ment at Sacramento. But by this time the executive and judicial branches of the government had become so bewildered that the latter refused to obey the plain letter of an act requiring the supreme court to hold its sessions " at the capital of the state," and sat instead at San Francisco, whither it had been ordered in 1850 to betake itself, and two of the judges de- clared Sacramento not the legal capital. District Judge Hester also threatened those state officers who had complied with the law and repaired to Sacramen- to with an attachment unless they came to San José, thus placing themselves above the legislative power through which they held their office. To test the question, suits were brought before Hester, of the third judicial district, and the mandamus case was argued by Parker H. French and Hall, attorneys for the complainants, Thomas L. Vermeule, and others; P. L. Edwards, he who in 1834 accompanied Jason Lee to Oregon, and the acting attorney-general, Stewart, appearing for the defence. Ground was taken against the right of individuals to sue the state. The relators, however, were allowed to amend their complaint to read, "The people of the state," as plain- tiffs. They relied chiefly upon the position that San José was the constitutional capital, which the defence denied, denying also that the state officers were re- quired by the constitution or laws to reside or keep their offices at the seat of government, and denying that they constituted any inferior tribunal, corpora-

324

POLITICAL HISTORY.

tion, board, or person against whom a writ of man- damus might issue according to statute.

Judge Hester's decision was as peculiar as the other features of the case. He placed himself on the defens- ive, and in the light of a partisan, by declaring that the legislature had in March passed an act requiring the supreme court, then in session at San Francisco, to hold its sessions "at the capital of the state;" and that the supreme court, "in determining as to the loca- tion of their sessions, as required by the act, decided that San José was the capital, and had since in pur- suance held their sessions there." The reasoning by which the court had come to this conclusion was by assuming that the constitution established the capital at San José; that the second legislature removed it to Vallejo; that by reason of the failure of Vallejo to fulfil his bond, upon which the removal was condi- tioned, the act became void, and the seat of govern- ment reverted to San José, from which it had never been removed by a constitutional vote of two thirds of both houses of the legislature. On the other hand, Chief Justice Murray differed from his asso- ciates, Heydenfeldt and Wells, and from Judge Hester. He held that the legislature had acted in a constitutional manner in fixing the seat of government by the act of 1851; and had an equal right to remove to any other place by a majority vote, the two-thirds vote being applicable only to the act of first removal from San José, and therefore that Sacramento was the legal capital of the state.

To settle these vexed questions a special term of the supreme court was ordered to be held at Benicia, in January 1855, at which time the legislature would be in session. A crisis had evidently arrived when a final decision must be made, and the legislature must vindicate itself. In the mean time the case of the people against the state officers had been appealed to the supreme court, and submitted on stipulation that a decision rendered out of term should stand as if

325

STATE OF DESERET.

given at the regular session. The opinion rendered in December reversed the judgment of the court below, and the highest judicial authority in the state made its obeisance to the itinerant law-making power.21 From that time to this, with the exception of the winter of 1862, when the great flood forced everybody out of Sacramento who could go, the seat of legisla- tion and government has remained at Sacramento.

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History of California, Volume VI, Part 35

Author: Bancroft, Hubert Howe Publication date: 1885-1890 Publisher: San Francisco, Calif. : The History Company, publishers Number of Pages: 816

Author: Bancroft, Hubert Howe
Publication date: 1885-1890
Publisher: San Francisco, Calif. : The History Company, publishers
Number of Pages: 816