History of California, Volume XXII, Part 63

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

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604

THE RULE OF GOVERNOR MASON.

is a question that need not be considered, since there was no attempt to exercise such powers. The gov- ernment set up was a temporary one, and a part of the military rule by conquerors. Commanders in California were responsible to the president, under whose orders they acted; and he was responsible to congress in this matter of civil government to no greater extent than in any other matter connected with the prosecution of the war.

Instructions from Washington, with consequent proclamations and acts of Sloat, Stockton, Fremont, and Kearny down to the middle of 1847, have been fully presented in the narrative of events.22 In the instructions no irregularity is to be found, unless it may be in that requiring an oath of allegiance to the United States from officials. No more than an oath of obedience to the new authorities could be properly demanded.23 In New Mexico General Kearny went so far in his proclamations as to elicit from the presi- dent a statement that certain parts were not "approved or recognized," but for the rest, including the acts of Sloat and Stockton, he said in his message of Decem- ber 1846: "If any excess of power has been exercised, the departure has been the offspring of a patriotic de- sire to give the inhabitants the privileges and immu- nities so cherished by the people of our own country. Any such excess has resulted in no practical injury, but can and will be early corrected in a manner to alienate as little as possible the good feelings of the

22 See instructions to Sloat et al., p. 195-9, this vol .; Sloat's procl. of July 7, 1846, p. 234; Stockton's procl, of July 29th, p. 255; Stockton's procl. of Aug. 17th, p. 283; Stockton's proposed government, p. 284; instructions to Kearny, p. 334; treaty of Cahuenga, Jan. 13, 1847, p. 404; Jan. 22d, Fré- mont's procl. and govt, p. 432; Kearny's procl. of March Ist, p. 437-8.

23 It is in the instructions of July 12, 1846, that we read: 'The object of the U. S. has reference to ultimate peace with Mex .; and if, at that peace, the basis of the uti possidetis shall be established, the govt expects throngh your forces to be found in actual possession of Upper Cal. This will bring with it the necessity of a civil administration. Such a govt shall be estab- lished under your protection; and in selecting persons to hold office, due re- spect should be had to the wishes of the people of Cal., as well as to the actual possessors of authority in that province. It may be proper to require an oath of allegiance to the U. S. from those who are intrusted with authority.

605

SLOAT, STOCKTON, AND FRÉMONT.

inhabitants." Of proceedings in California no special disapproval was ever deemed necessary.

Sloat, in his conciliatory proclamation of July 7th, went far beyond his instructions or the authority of his chief, in promising that California should be per- manently a territory of the United States; yet he practically attempted nothing but the military occu- pation of certain points; and Stockton, while in his warlike and impolitic tirade of the 29th he went still further astray by declaring that his only purpose was to protect oppressed citizens and foreigners, and that he would withdraw his forces as soon as that purpose should be effected, simply proceeded to extend the military occupation, and take the paroles of submissive Mexican officers. In his proclamation of August 7th he continued military law, while promising some changes in the near future;24 and in his elaborate system of territorial government soon devised, local rule under Mexican law was provided for, and the features of his scheme to which exception might be taken on legal grounds were never approved or car- ried into effect. Then after the revolt and reconquest came the treaty of Cahuenga, January 13, 1847, the terms of which were entirely unobjectionable, requir- ing from the Californians only present submission to the American authorities, but no oath of allegiance, and not treating them as in any sense citizens of the United States. Stockton's system of civil govern- ment was then partially established; Frémont was appointed governor, and in his proclamation of Janu- ary 22d he simply required "the return of civil officers to their appropriate duties, and as strict an

24 ' The territory of Cal. now belongs to the U. S., and will be governed as soon as circumstances may permit by officers and laws similar to those by which the other territories of the U. S. are regulated and protected. But until the gov., sec., and council are appointed, and the various civil depart- ments of the govt are arranged, military laws will prevail, and the commander- in-chief will be gov. and protector of the territory. In the mean time the peo- ple will be permitted ' to elect civil officers to administer the laws according to former usages. The system of govt devised by Stockton about this time, and sent to Washington for approval, may be found in Cutts' Conq., 123.

606

THE RULE OF GOVERNOR MASON.

obedience of the military to the civil authority as is consistent with the security of peace." The contro- versies of those days referred to the governorship, and not to the system of government.

Thus far Sloat, Stockton, and Fremont had acted without instructions, yet, while by their unfortunate differences in act and promise and theory they had done much to retard Californian peace and prosperity, they had not gone far astray in the matter of civil government and its administration by conquerors. Kearny, acting under definite instructions of June, July, and November 1846, and in the light of experi- ence, in his acts of March 1847 had no occasion to make radical changes in the methods before observed. His requiring from officials an oath to support the constitution was illegal, besides not being in accord with the capitulation of Cahuenga, but it was in his instructions. He dispensed with the legislative coun- cil, being under no obligation to follow Stockton's ideas, but the council had not acted. His promise of a regular territorial government may be understood as referring to the formation of a treaty; his absolution of the inhabitants from all allegiance to Mexico was but a farce; his prediction that the stars and stripes would float over California as long as the sun should shine upon her was as harmless an expression of his opinion and that of his superiors as had been the earlier one of Sloat.

Governor Mason succeeded Kearny at the end of May, and made no innovations in system followed by his predecessors. All the successive commanders among themselves and with the national authorities practically agreed respecting essential features of the temporary military and civil rule; and the president's excuses for irregularities in 1846, as previously quoted, will apply with equal force to later informalities. In- structions of January now received were much more definite than earlier ones, approving in a general way what had been done, but explaining the rights of con-

607

MILITARY RULE.

querors, and containing a warning that the existing government was but temporary, and that California could not yet be considered a territory of the United States.25 Thus, pending a treaty of peace, there was but little opportunity for subsequent misunderstand- ing or theorizing on the general system, though per- plexing details of application were likely to present themselves. Alcaldes who had been elected or ap- pointed continued to administer justice according to their ideas of Mexican law and the old usages, appeal- ing in difficult or complicated cases to the governor, whose policy was to interfere as little as possible, particularly in questions affecting property rights. Naturally, in places where both the alcalde and the people were foreigners, some very peculiar versions of Mexican law and of old customs obtained; but petty local affairs were well enough managed as a rule, though there was no lack of complaint that the coun- try was without law. Local annals given in later chapters will furnish some illustrative items, especially on the municipal troubles of San Francisco, San José, and the larger towns. I append some brief notes; 26

25 See p. 334-5 of this vol. for instructions to Kearny. I quote here more fully those to the naval commander: 'The course of our govt in regard to Cal .... depends on those on whom the constitution imposes the duty of mak- ing and carrying treaties into effect. Pending the war, our possession gives only such rights as the laws of nations recognize, and the govt is military, performing such eivil duties as are necessary to the full enjoyment of the advantages resulting from the conquest, and to the due protection of the rights of persons and of property of the inhabitants. No political right can be conferred on the inhabitants thus situated, emanating from the constitution of the U. S. . . . Unless incorporated, with the assent of congress by ratified treaty or by legislative act, our rights over encmies' territory in our posses- sion are only such as the laws of war confer, and theirs no more than are derived from the same authority .. . . In the discharge of the duty of govt. .. it has not been deemed improper or unwise that the inhabitants should be permitted to participate in the selection of agents to make or execute the laws to be enforced. . . . I have regarded your measures. . . as founded on this principle, and so far as they carry out the right of temporary govt under ex- isting rights of possession they are approved. But no officers created, or Jaws or regulations made to protect the rights or perform the duties result- ing from our conquests, can lawfully continue beyond the duration of the state of things which now exists, without authority of future treaty or act of congress .... The president foresees no contingency in which the U. S. will ever surrender or relinquish possession of the Californias.'

26 June 2, 1847, Mason to Alcalde Boggs, explaining the system of govt as per instructions of Jan. 11tb. Cal. and N. Mex., Mess, and Doc., 1850, p. 317. See S. F. Cal. Star and Californian, 1847-8, for much comment by editors

60S

THE RULE OF GOVERNOR MASON.

and there are a few cases that may be somewhat more fully noticed in this connection.

The case of Alcalde Nash at Sonoma was the only one in which the military authority in civil matters

and correspondents on matters of govt. In March a man came to Mont. with a paper from an alcalde which stated that he had been convicted of horse- stealing, and desired a new hearing. Mont. Calif., Mar. 20, 1847. Mar. 26th, Kearny orders the dismissal of an old suit for winnings at a race. Cal. and N. Mex., etc., 291. Mar. 24th, Colton appointed judge of the admiralty court of Cal. Id. April 10th, Kearny orders that liquor shops be closed on Sunday, drunken and disorderly persons to be arrested and punished. Los Ang. Arch., MS., iii. 46-7. If a man is not content with the alcalde's deci- sion, let him wait for the establishment of other courts. S. José Arch., Loose Pap., MS., 5. April 24th, Kearny to Bellamy, in answer to complaint. .During the existence of the war there must of necessity arise many cases of great hardship and injustice, which for the time being are without remedy.' Cal. and N. Mex., 299. May Ist, alcalde remonstrates with K. for setting aside his proceedings. Unb. Doc., MS., 117. May 5th, K. recommends arbi- trators in a divorce case. Cal. and N. Mex., 305. June Ist, Larkin to N. Y. Herald, writes: 'We must live on in lawless blessedness. We have, however, a fair supply of lawyers, and cach can produce the laws of his native state and urge on the alcalde tlicir adoption as most applicable to the case in hand.' Off. Corresp., MS., i. 158. June 5th, alcaldes decline to take the oath of allegiance, which would make them traitors to Mex. Unb. Doc., MS., 204. June 16th, Mason orders an alcalde to come to Mont. and bring with him a prisoner and witnesscs. Cal. and N. Mex., 323. June 14th, Mason writes: "The alcaldes are not "authorities of the U. S.," nor are they Mex. authorities. They are the civil magistrates of Cal., and therefore the "authorities of Cal.," subject to removal from office by the gov.' Id., 321. Only one change of venue can be granted. Id., 333, 376. July 3d, alcalde may call for military aid to enforce his decrees. Id., 339. He must apply in writing. The slight- est possible force to be used. There are many other communications on this matter. July 24th, order of Gen. Scott, making the martial law a supple- mental code for punishment of serious crimes by or against military men, circulated and to be enforced in Cal. Id., 333. Aug. 4th, troops cannot take charge of prisoners except in grave cases. Los Ang. Arch., MS., iii. 99. A murderer at Sta Cruz shot by alcalde's order. Unb. Doc., MS., 108. Aug. 23d, 'The civil officers would be most willing to shift upon mil. the disagree- able task of arresting and guarding their criminals, but this must not be per- mitted. Officers in command are only expected to aid civil officers when the latter are unable to enforce their decrees; and even then a sound discretion should be exercised.' Cal. and N. Mex., 349. Aug. 25th, 'Your auth. as alcalde in all cases between citizen and citizen is the same as it was under the Mex. law. But when a soldier is concerned, then inil. law must have precedence.' Id., 354. Oct. 25th, alcaldes may have jurisdiction over crimes committed on board ships, as there are no other courts. Id., 404. Oct. 26th, alcalde may sentence a man for manslaughter to 7 years' hard labor on public works, and may send him to Mont. Id., 410. Alcalde can not be required to retry old cases. Id., 412. Nov. Ist, instructions on formalities in a trial for inurder. Id., 413. Nov. 29th, Mason's order of fine of $50 to $100, and im- prisonment of 3 to 6 months for selling liquor to an Ind. Id., 437, and else- where. Dec. 3d, there are no courts other than alcaldes'; and Mason de- clines to appoint a special court, though he has done so in some cases. Id., 439. Dec. 20th, Mason suggests an additional penalty of 50 lashes for steal- ing horses. Id., 445. Dec. 22d, if a jury cannot agree in a reasonable time, a new one may be empanelled. Id., 446. Dec. 29th, in cases involving over $100 a jury of six men shall decide. Id., 452, and elsewhere. March 2d,

609

ALCALDE NASH AT SONOMA.

was disputed. John H. Nash was an old man who had come overland from Missouri in 1845, and had been elected alcalde in 1846. In consequence of re- ported irregularities in his management of the office, General Kearny appointed L. W. Boggs, an abler but not a better man, to succeed him in April 1847. Nash denied Kearny's right to remove an alcalde elected under the system established by Sloat and Stockton, refusing to turn over the records of his office, and be- ing supported by the citizens, who, to the number of seventy, headed by Ide and Grigsby, held a publie meeting to petition for his reinstatement. He was egotistic and eccentric, much like Ide in some respects, and even proposed to make an effort at Washington for Kearny's removal. For a time in May Sonoma had practically no alcalde, each declining to aet; but Mason declined to revoke his predecessor's order as being pre- sumably well founded, and early in June ordered Cap- tain Braekett to use force for the transfer of records, at the same time sending Nash a peremptory order. The latter still declined to obey, and Brackett excused himself from the performance of an act that would make him unpopular. Meanwhile in June Boggs was performing the duties of his office. In July Lieu- tenant Sherman was sent by Mason to arrest Nash

1848, grave' cases must be tried by jury, which must award a sentence it they convict; but the verdict and testimony must be sent to gov. for ap- proval. Id., 488. Men cannot be punished for crimes they will probably com- mit when they have a chance. Id. Mar. 9th, Mason writes: An attempt on the jail 'would afford me an excellant opportunity of making an example on the spot of some of the lawless characters with which this country is infested, and I shall always have a halter ready.' S. Jose Arch., Loose Pap., MS., 43. April 17th, alcalde has convicted a man of selling liquor, without jury, be- cause Californian jurymen have ou two occasions refused to find a country- man guilty. Unb. Doc., MS., 122. Apr. 12th, Mason will not take any ac- tion in disputes about horse-races. Cal. and N. Mex., 508. April 29th, M. will not disturb the decision of arbitrators. Id., 546. May 8th, debts contracted in U. S. cannot be collected here during the war. S. José Arch., Loose Pap., MS., 29. May 21st, Hartnell sent to S. F. to attend to printing a Spanish translation of laws to be pub. by Mason. Cal. and N. Mex., 555. May 31st, M. proposes to build prisons, appropriating $1,000 for each, and citizens to pay the rest. Id., 558. Aug. 23d, Hartnell to get $2,000 salary as govt interpreter and translator. Id., 659. The support of civil prisoners must be paid from municipal funds. Id., 569. A mil. commandant repri- manded for too hasty action in civil matters. Id., 575.

HIST. CAL., VOL. V. 39

610

THE RULE OF GOVERNOR MASON.

and bring him to Monterey. Argument and sea-sick- ness on the way brought the old gentleman to terms, and Mason at once sent him home at public expense, " fully sensible of his error," and promising an imme- diate surrender of all the papers of his office, with full accounts of his administration.27

Antonio M. Armijo, Robert Smith, and John Egger, of the Sonoma district, were arrested in August 1847, and charged with the murder and kidnapping of Ind- ians in the Sacramento Valley. The affair gave rise to much correspondence and excitement. Vallejo and Sutter were appointed as special judges to try the case with a jury of twelve, and Boggs was added to the number later. For want of an impartial jury and for other reasons, the case was transferred from Sacra- mento to Sonoma, where it was tried in October, Captain Brackett acting as prosecutor, and Sutter being absent. The accused were acquitted; and Gov- ernor Mason declined to approve an exorbitant bill of about $2,000 for costs of the trial.28 A similar special court, consisting of Stephen C. Foster and Abel Stearns, was appointed in April 1848 for the trial of sev- eral members of the Mormon battalion at Los Angeles on a charge of passing counterfeit gold coin. Each had a separate trial before a jury, and Lieutenant Ruel Barrus was found guilty, confessing that he had played at monte with counterfeit money, and was sentenced to five years' imprisonment at hard labor, but the gover- nor, in consideration of his youth and other palliating circumstances, reduced the term to one year. The

27 Documentary record very complete in Unb. Doc., MS., 82-3, 107-13, 116, 143, 145, 316; Cal. and N. Mex., Mess, and Doc., 1850, p. 289, 295, 317- 20, 325, 343, 377; S. F. Cal. Star, May 22d; S. F. Californian, July 24th, Sept. 4th. Also a very good and interesting account in Sherman's Mem., i. 30-8. Green, a lawyer, with whom Nash lived, seems to have incited him to resist, and to have attempted some bluster at the time of his arrest. Pickett and Scott with Boggs himself were Nash's enemies. Boggs claimed in Aug. that N. had not rendered his accounts, accusing him of making fraudulent leeds of town lots, and of changing the original map. J. R. Snyder and Tim. Murphy were appointed commissioners to investigate.

25 Cal. and N. Mex., Mess. and Doc., 1850, p. 343-4, 348-9, 384, 394-5, 419-22; Unb. Doc., MS., 89-90, 124-6, 292-3, 297-8, 313. One of the items not allowed was lawyer Green's bill for $200.

611

NEW COMPLICATIONS.

others were acquitted.29 Yet another special court was that appointed to try Benjamin Foxen in May at Santa Bárbara. He had killed Agustin Dávila near Santa Inés for stealing his chickens. Estévan Ardis- son and Pedro C. Carrillo were the judges; the jury included six Americans and six Californians; and the verdict was manslaughter, for which Foxen was sen- tenced to four years' imprisonment.30

News of the treaty putting an end to the war brought some perplexing questions respecting the government of California. How they were settled is best explained in Mason's own words. In his proclamation of August 7, 1848, he said: "The con- gress of the United States, to whom alone this power belongs, will soon confer upon the people of this country the constitutional rights of citizens of the United States; and no doubt in a few short months we shall have a regularly organized territorial gov- ernment; indeed, there is every reason to believe that congress has already passed the act, and that a civil government is now on its way to this country, to re- place that which has been organized under the rights of conquest. Such territorial government will establish all local claims and regulations which, within the scope of its legitimate powers, it may deem necessary for the public welfare. In the mean time the present civil officers of the country will continue in the exer- cise of their functions as heretofore, and when vacan- cies exist or may occur, they will be filled by regular elections held by the people of the several towns and districts, due notice of such elections being previously given. The existing laws of the country will neces- sarily continue in force till others are made to supply their place." And his position was further explained in his report to the adjutant-general.31 A similar

29 Unb. Doc., MS., 17, 37-9; Cal. and N. Mex., 1850, 39-41, 562, 570-1. C. C. Canfield and Sam. Myers were the others accused.

30 Cal. and N. Mcx., etc., 505-7, 570; Unb. Doc., MS., 63, 365-70.

31 Aug. 7th, Mason to people of Cal. Cal. and N. Mex., Mess. and Doc., 1850, p. 590-1. Aug. 19th, Mason to adj .- gen. Id., 597-S. In the latter doc-

612

THE RULE OF GOVERNOR MASON.

view of the situation was taken by the national au- thorities. In his message of July 6th, the president wrote: "The war with Mexico having terminated, the power of the executive to establish or to continue temporary civil governments over these territories, which existed under the laws of nations whilst they were regarded as conquered provinces in our military occupation, has ceased. By their cession to the United States, Mexico has no longer any power over them; and until congress shall act, the inhabitants will be without any organized government. Should they be left in this condition, confusion and anarchy will be likely to prevail."32 And later, when congress had ument he says: 'The above are the only instructions I have received from the department to guide me in the course to be pursued, now that war has ceased, and that the country forms an integral part of the United States. For the past two years no civil government has existed here, save that controlled by the senior military or naval officer; and no civil officers exist in the country save the alcaldes appointed or confirmed by myself. To throw off upon them or the people at large the civil management and control of the country would most probably lead to endless confusions, if not to absolute anarchy; and yet what right or authority have I to exercise civil control in time of peace in a territory of the United States? or, if sedition and rebellion should arise, where is my force to meet it? Two companies of regulars, every day diminishing by desertions that cannot be prevented, will soon be the only military force in California; and they will be of necessity compelled to remain at San Francisco and Monterey, to guard the large depots of powder and munitions of war, which cannot be removed. Yet, unsustained by military force, or by any positive instructions, I feel compelled to exercise control over the alcaldes appointed, and to maintain order, if possible, in the coun- try, until a civil governor arrive, armed with instructions and laws to guide his footsteps.

'Iu like manner, if all customs were withdrawn, and the ports thrown open free to the world, San Francisco would be made the depot of all the foreign goods in the north l'acific, to the injury of our revenue and the in- terests of our own merchants. To prevent this great influx of foreign goods into the country duty-free, I feel it my duty to attempt the collection of duties, according to the United States tariff of 1846. This will render it necessary for me to appoint temporary collectors, etc., in the several ports of entry, for the military force is too much reduced to attend to those duties.

'I am fully aware that in taking these steps I have no further authority than that the existing government must necessarily continne until some other is organized to take its place; for I have been left without any definite instructions in reference to the existing state of affairs. But the calamities and disorders which would surely follow the absolute withdrawal of even a show of authority impose on me, in my opinion, the imperative duty to pursue the course I have indicated, until the arrival of despatches from Washington (which I hope are already on their way) relative to the organi- zation of a regular civil government. In the mean time, however, should the people refuse to obey the existing authorities, or the merchants refuse to pay any duties, my force is inadequate to compel obedience.'

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History of California, Volume XXII, Part 63

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