USA > California > San Francisco County > San Francisco > History of the San Francisco Committee of vigilance of 1851 : a study of social control on the California frontier in the days of the gold rush > Part 10
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49 Vigilance Committees-Miscellany, 1877, pp. 14-16.
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were secured, there was a meeting of all the citizens, and a Court was organ- ized, the Judges of which were Leavenworth, the Alcalde, Dr. William M. Gwin and James C. Ward. Horace Hawes, Francis J. Lippitt aud Hall McAllister were appointed attorneys to prosecute these men before this court. A Grand Jury was called, and they were regularly indicted, and charged with a conspiracy, to commit murder, robbery, etc. They were tried before these three judges and a jury, in a small building called the Court House, which was situated on the Plaza at the S. W. corner of what is now Portsmouth Square. ... The trials of the several men occupied many days, that of Roberts taking place first, and were conducted according to the ordinary legal form, witnesses being called on each side. The cases were summed up on behalf of the prosecution by Hawes and McAllister, and on the part of the defendants by [P.] Barry and [Myron] Norton. [Eight of] the men were convicted. This organization of the people to put down these "Hounds" was called the Law and Order party. After the con- vietion of these men it became an important question how they should be punished. Some were for having them hung, others for having them whipped upon the public Plaza and banished, and others simply for having them banished and given to understand that if they returned they would be executed. That was the final disposition, and they were banished, with this warning. That ended the "Hounds" riot.
The outcome of the trials was characteristic of the time and place. Popular sentiment was contented with a reasonable num- ber of convictions, and with the seattering of the gang. Since there was no jail in which sentences of imprisonment could be served, the actual punishment of the offenders seemed to be of little importanee in the publie mind.50 There were, however, some permanent effects, for the impromptu military patrol was the initial step in the organization of a regular company of militia.51 More than this, MeAllister's reference to a "law and
50 The convicted men were confined for a time on board vessels in the naval service. See O. T. Shuck, Bench and Bar in California, ed. of 1889, p. 98; California Illustrated [by J. M. Letts], 1852, p. 53; S. C. Upham, Notes of a Voyage to California, 1878, p. 222; MSS in the Bancroft Library of Isaac Bluxome, Jr., Statement [1877?], 5, and of W. M. Gwin, Memoirs, 1878, p. 8.
51 Isaac Bluxome, Jr., said : "After the conviction of some of the hounds, the gang was broken up, and the four companies were disbanded, and the California Guard was organized on the 27th of July, 1849 (MS Statement, 6). The list of members (Annals, 703), included the following men who became Vigilantes of 1851: H. M. Naglee, W. H. Tillinghast, W. D. M.
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order party" was confirmed by another participant, who said that the eaptains of the patrol aeted as a nominating committee in the August eleetion, and virtually seeured the return of a reform tieket, and that the whole affair was the beginning of the vigilanee committees of California.52 In view of that state- ment it is interesting to note that at least eleven of those who were prominent in the trial became members of the Committee of Vigilanee of 1851,53
The story of the Hounds is important in this narrative not alone because of the personnel of the actors. It shows conclu- sively that the mass meetings and popular tribunals which were tolerated by necessity in the mining camps, had been widely accepted as legitimate means of social discipline, and that the men of San Francisco naturally resorted to them as an emergency organ of government. So strong was the foree of the popular impulse that it obliged the alealde to accept an invasion of his prerogative, and to conduet the trial in conference with the popularly appointed assistants.54 The people did not organize this extra-legal tribunal in any spirit of defianee of the ordinary safeguards of justiee. On the contrary, they introdneed for the
Howard, W. L. Hobson, H. F. Teschemaeher, A. J. Ellis, J. C. Ward, A. G. Randall, Benjamin Reynolds, E. A. King. The Constitution and By-Laws of the First California Guard was printed in 1850. This was not the first militia of San Francisco (see J. H. Brown, Reminiscences [36-38]; Ban- croft. California, VI, 263 note 19).
52 " We detailed companies with captains to patrol and arrest these rioters. ... The companies were officered by the principal eitizens. That was the commencement of the Vigilance Committee of California. After the affair of "the Hounds." the companies disbanded. Leavenworth was Alcalde, and acted as judge in the trial of the Hounds. He was giving away the town lands, and we had a great deal of trouble on that account. We petitioned the Governor to call an election for our protection. The captains of the companies acted as a nominating committee, and their tieket was elected almost unanimously" (C. V. Gillespie, MS Statement, 1875, pp. 5-6.)
53 Isaac Bluxome, Jr., Samuel Brannan, J. R. Curtis, A. J. Ellis, V. J. Fourgeand, C. V. Gillespie, W. D. M. Howard, Benjamin Reynolds, Fred- erick Teschemaeher, J. C. Ward, Hiram Webb (Annals, 558-559).
54 See Annals, 557-558; Shuck, Bench and Bar, 98.
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occasion the elaborate accessories of grand jury, associate judges, and counsel for prosecution and for defense, and they chose for the trial-jury men of established credit and importance. Even the two hundred and thirty volunteer constables ranged themselves from the start in ordered companies under the authority of officers, and conducted the search for the criminals without riot or undue violence.55
While the residents of San Francisco were settling their domestic concerns during the exciting summer of 1849, the com- munity at large made ready for the approaching election.56 Par- ties of speakers visited the mining regions to arouse interest in the convention, and Thomas Butler King did what he could to for- ward the movement. He stated afterwards that so far as he was informed, party and seetional affiliations did not figure in the selection of delegates, and that the only object seemed to be to find competent men who were willing to make the requisite sacrifice of time. Bayard Taylor confirmed that statement, but noted that in Sacramento and San Francisco political interests might have been influential.57
The elections took place on or near August 1. Any American citizen of twenty-one was allowed to vote, no matter how recent his arrival in California, and travelers paused en route to the mines to deposit their ballots at some chance polling place or in boxes nailed to convenient trees.58 The returns showed that all
55 Ernest Frignet called the trial an "Example mémorable, et que la Californie a donné plus d'une fois, de ce que peut le plus petit effort des honnêtes gens contre le désordre le mieux organisé et les malfacteurs les plus audacienx" (La Californie, 1866, p. 125).
56 See Baneroft, California, VI, 279-283. Willey gave an interesting description of a typical meeting for the selection of delegates ( Transition Period, 96).
57 King, California: the Wonder of the Age, 7; Taylor, Eldorado, I, 147.
58 See L. B. Patterson, Twelve Years in the Mines, 1862, p. 35; History of Placer County, 1882, p. 93; MS Statement of E. O. Crosby, prefect of the Sacramento district, pp. 52-56.
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the districts had chosen delegates, who prepared to meet in Mon- terey at the time appointed.
The attempt to put into full vigor the surviving Mexican law also met with a general response, and local officers were elected for the positions named in the governor's proclamation. This effected certain changes in the organization of California. Dis- triet prefects were chosen as directed by the governor, who officially confirmed their selection.59 Alealdes were elected wherever vacancies existed, and Riley commissioned one in each district to aet as a judge of first instance. The election of judges of the superior tribunal at last created a court of appeal from the alealdes' courts, but fees were so extortionate that contestants were not quiek to take advantage of the privilege.60
The men who held office in the autumn of 1849 had the benefit of Halleck's Digest of the laws of 1837, which was put into cireulation about this time.61 Here, at last, was the eomplete seheme of organization which had, in theory, dominated Califor- nia for three years, but which had been shorn in practice of all functions save those pertaining to the offices of the governor, his secretary, and the alcaldes. If promulgated earlier, it would have given the people a clearer realization of their subordination to a central anthority, but that step had not been taken beeanse of the constant anticipation that Congresisonal action would supersede the temporary government.
As soon as the alealdes' courts were established on a more efficient basis they were fairly overwhelmed with cases. To relieve their congestion General Riley appointed additional judges of first instance, with civil jurisdiction only, for some
59 Commissions for the judges, prefects, and first alcaldes in Cong. Does., Ser. No. 573, Doc. 17, pp. 797, 806-808, 811, 820-830, 865. Later appointments in Ser. No. 561, Doc. 52, pp. 22-39.
60 Burnett. Recollections, 346.
61 " The Laws of California" were advertised in the Alta. 1849, Sept. 20
i. Reprinted in Browne, Debates, Appendix, pp. xxiv-xl.
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of the larger towns.62 Among these judges was the eccentric William B. Almond, of San Francisco, who rose from the humble position of peanut vender on the public streets, to the tip-tilted chair of his crowded court room, where suits involving thousands of dollars were decided in half-hour hearings, with swift exchange of the "ounce of dust" that constituted his invariable fee. With his feet on the mantel, and his eyes and hands occupied with details of his toilet, he listened to counsel only so long as it took him to grasp the sense of the case, then pronounced a judgment from which immediate appeal was seldom taken, although there was a quick resort to the relief afforded by the establishment of the Supreme Court in 1850.63
After this period of reorganization there was somewhat closer touch between the larger mining camps and the central author- ity.64 More effort was made in the new towns to keep records of proceedings, and men who had, perhaps, served as alcaldes in previous months, left as their earliest documents papers signed subsequent to the first of August, 1849. The dearth of public records from which to reconstruct the early history of California confronts every student of that period with an inexorable barrier. Since the military-civil governors made few, if any, appointments in the mining regions prior to August, 1849, they conducted little correspondence which referred to affairs in the mountains.
62 Appointments, Cong. Docs., Ser. No. 573, Doc. 17, pp. 832, 867. 871. 63 Amusing tales of Judge Almond are told in Hittell, California, II. 778-779, III, 223, 248; Burnett, Recollections, 343; Bancroft, California Inter Pocula, 1888, pp. 591-600; Annals, pp. 238-241. He sometimes said : "Gentlemen, I don't know just what the law of this case is, but I kuow what it ought to be (Memoirs of Cornelius Cole, 1908, p. 82). He allowed thirty minutes to each case, and during the winter rains jurors were often "corralled in the back yard" in default of a jury room, a situation which prompted them to make quick decisions (E. W. Mckinstry, "Oration, " in Society of California Pioneers, Twenty-first Anniversary, 1871, p. 7). The First California Reports included many cases appealed from his court.
64 Correspondence with alcaldes of Sonora Camp, Mormon Camp, and Wil- low Bar, September to November, 1849, in Archives, "Unbound Docs.," 13, 50, 57; Cong. Docs., Ser. No. 561, Doc. 52, pp. 29-32; see also infra, p. 138 note. 5.
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Each of the early camps was an independent body, unrelated to other bodies outside its immediate neighborhood, and without occasion for written communication of an official character. The domestic concerns of the camps were not matters of record except in the case of the regulations governing mining rights and the claims made thereunder, and whatever may have been written, much of it has been destroyed in the frequent fires that have swept the little towns.65
The August election gave the citizens of San Francisco an opportunity to make desirable reforms in their town government. John W. Geary, who had arrived in March to serve as the first postmaster of San Francisco, was chosen first alcalde, and several of the men who had taken part in the trial of the Hounds were elected to office.66 At the initial meeting of the new ayuntamiento" Geary presented an excellent address on the municipal situation, and described as follows the confusion that had arisen from the laek of eivie equipment :68
At this time we are without a dollar in the public treasury, and it is to be feared the city is greatly in debt. You have neither an office for your magistrate, nor any other public edifice. You are without a single police officer or watchman, and have not the means of confining a prisoner for an hour; neither have you a place to shelter, while living, sick and unfortunate strangers who may be cast upon our shores, or to bury them when dead. Public improvements are unknown in San Francisco. In short, you are without a single requisite necessary for the promotion of prosperity, for the protection of property, or for the maintenance of order.
65 Some valuable pre-statehood records are mentioned in Coy, Guide to the County Archives, pp. 50-51.
66 Annals, 228-229.
67 Riley revived the use of the Spanish term, which had not been em- ployed by Mason when he instituted the San Francisco council in 1847. Riley also encouraged the election of ayuntamientos in all towns entitled to such bodies (see Cong. Docs., Ser. No. 573, Doc. 17, pp. 761-769; Ser. No. 561, Doc. 52, p. 27).
68 See Annals, 229-234. The proceedings of the ayuntamiento were printed in separate parts, 1849-1850, and reprinted with the Minutes of the ... Legislative Assembly, 1860, pp. 47-296.
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He recommended that revenue should be raised by taxes and commercial licenses, and expressed his conviction that such a procedure would be approved by the governor, and by the first legislature that should assemble after permanent organization should be effected. On August 27 an ordinance was passed for raising a revenue according to his suggestions.
The work accomplished by this ayuntamiento was creditable and progressive. An old vessel, the Euphemia, was purchased and equipped to serve as a jail; a police force of thirty was organized, and order was preserved in the city with fair success.69 Improvements were begun on the wharves and on the muddy thoroughfares; and in recognition of the services of the members of the council, the city surveyor, W. M. Eddy, assigned their names to the streets which were laid out during their term of office.70 Bancroft commended this administration, and said that at its close a balance of $40,000 was left in the treasury, and that no blots stained the public character of the councilmen.71
On the third of September the constitutional convention at Monterey organized for business. Particulars of its work and of the constitution it framed need only our briefest consideration, since they have already been made the subject of special study.72 There were forty-eight delegates:73 Doctor Robert Semple, of
69 A list of crimes, Sept. 4, 1849, to March 26, 1850, was given in the Alta, 1850, May 2 24. The total arrests were 741, and included 170 cases of larceny, 70 of assault and battery, 10 attempted murders and 4 actual homicides. The summary indicated that violence in the city was not of the alarming proportions sometimes attributed to the days of '49.
70 San Francisco Call, 1883, July 30 38.
71 Bancroft, California, VI, 213-215.
72 See Bancroft, California, VI, 284-303; Hittell, California, II, 756- 774; Royce, California, 259-270; Goodwin, Establishment of State Gov- ernment ; D. R. Hunt, Genesis of California's First Constitution, 1895; F. N. Thorpe, Constitutional History of the American People, 1898, II, 287-394; Browne, Report of the Debates in the Convention, 1850; Willey, Transition Period, 93-126; G. H. Fitch, "How California Came into the Union," Century, XL (1890), pp. 775-792.
73 See Browne, Debates, 478; Goodwin, Establishment of State Govern- ment, 81-85.
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Benieia, one of the leaders in the Bear Flag revolt, acted as president, and he well expressed the task that lay before them when he said they had assembled to "make something out of nothing, to construct organization and form out of chaos. ""4
The convention was cantions in experimenting with original measures, and the debates show that the constitutions of several older states were consulted. That of lowa served, in many respects, for the model finally adopted, although much was bor- rowed from the constitution of New York. Sentiment in Cali- fornia was so strong against permitting slavery that there was no dissent to the resolution that prohibited it within the limits of the state.73 Nevertheless the national conflict on the subject made itself apparent in a debate on a proposition to exelnde free Negroes, and in the discussion of the demarkation of the eastern boundary, as the latter question had an important bearing on a future subdivision with the possibility of slave territory in a southern area. In the end, the exclusion of free Negroes was defeated, and the present boundary was adopted as the one least likely to lead to frietion and delay when Congress should aet on the application for admission to the Union.
General provisions were made for the legislative, executive, and judicial departments of the state, for the organization of counties, and for the establishment of courts, but wide dis- eretionary powers were allowed to the coming legislature. In order to prevent inconvenience to the publie service it was provided that no office should be "superseded, nor the law relative to the duties of the several officers changed, until the entering into office of the new officers to be appointed under this Constitution.76
74 Browne, Debates, 23.
75 In spite of this prohibition some slaves were imported into the state (see C. A. Duniway, "Slavery in California after 1848," American His- torical Association, Report, 1905, I, 243-248 ).
76 Schedule, Section 3. Browne, Debates. Appendix, p. xii.
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The Struggle for Organization
While the details of the constitution, like the details of the miners' laws, are not of importance here, there is great sig- nifieance in the fact that in spite of the rapid creation of this framework of government it was eminently efficient and con- sistently liberal in its provisions. Hermann von Holst wrote of this accomplishment :77
And the population of California, swept together from all the states of the Union, gave the most magnificent illustration of the wonderful capacity of this people for self-government, by creating for themselves, of their own motion, and with the utmost coolness and deliberation, a political organization which proved itself viable under conditions to which many an old and firmly established government would have succumbed.
The convention completed its labors on the afternoon of October 13. In suppressed excitement the delegates proceeded to affix their signatures to the completed instrument, and, as they wrote, the cannon of the fort broke forth in a national salute, announcing by its thirty-one guns that a new state pre- sented her sons for citizenship in the Federal Union.
77 Hermann von Holst, Constitutional and Political History of the United States, III (1881), 463. Hittell called the constitution "one of the best, if not the very best, of all the thirty-one that then existed (California, II, 783).
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CHAPTER VI THE FABRICATION OF THE COMMONWEALTH
A month after the constitution was signed at Monterey it was ratified by the people.1 At the same time an election was held for members of the first legislature and for representatives in Congress: Peter H. Burnett2 was chosen as governor, and John MeDougal as lieutenant governor. For a second time party polities were disregarded in a state election, as most of the ean- didates made independent campaigns, and in many places they were practically unknown to their constituents.3
The first legislature assembled in San José on December 15, 1849. On December 20 Burnett was installed as governor, and General Riley issued his last proelamation, congratulating the people on the organization of their state government, and resign- ing the administration of civil affairs into the hands of the new authorities.4
1 See Goodwin, Establishment of State Government, 251-254.
2 Burnett had served on the Oregon legislative committee of 1844. He arrived in California in October, 1848, quickly assumed a leading position in Sacramento, and was later a member of the legislative assembly of San Francisco. He was prominent in the movement for state organization, and was elected judge of the superior court in August, 1849.
3 Bayard Taylor gave an amusing account of the haphazard manner in which the miners were foreed "to go it blind" in the choice of candidates ( Eldorado, II. 6-8). See also A. J. MeCall, Pick and Pan, 1883, p. 35; Lyman, Journal of a Toyage to California, 129. It is usually stated that the first party organization in California was a Democratie gathering in San Francisco, Oet. 25 (Baneroft, California, VI, 304-305; Hittell, Califor- nia, IV, 51-53; W. J. Davis, History of Political Conventions in California, 1849-1892, 1893, p. 1). A. J. Newman has called attention to a report in the Pacific News, Oct. 25 91-3, of a meeting in Portsmonth Square, Oct. 23, in the interests of T. Butler King, as a candidate for the United States Senate (Formation of the First Political Parties in California, 1918. MS master's thesis, University of California Library, Department of History). 4 See Browne, Debates. Appendix, p. xlvi. The constitutional convention had decided that the state government should go into operation, withont waiting for Congressional approval (ibid., 274-288). Riley doubted the
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The Fabrication of the Commonwealth
From that day the men of California took charge of their own destinies, and shaped their political institutions according to their own preferences. They clung closely to the precedents with which they were familiar. They transplanted to the vast and sparsely populated area of California the usual decentralized system of local organization. They replaced the civil law of Mexico by the English common law as received and modified in the United States, and they instituted the courts to which they had been accustomed elsewhere.5
All this new machinery of government could not be set in motion overnight. It was April or May of 1850 before the larger towns were incorporated and the counties and townships equipped with the necessary officials.6 In the meantime conditions in the state at large were even more confused than before. The alcaldes elected under the pre-statehood régime continued their legal services until their places could be filled by the new magistrates, but their nuskilled interpretation of law and their arbitrary methods caused greater and greater complaint as the impatient citizens awaited the establishment of American institutions.
There was an increasing need for efficient officers in the mining regions where large investments of capital began to supersede the temporary claims of the individual miner. As the surface richness was skimmed from the placers, cradles or rockers took the place of the pan in which at first each miner washed out his own portion of gravel. Since such machines
legality of such a course, but acceded to the wishes of the people. For comment on the situation, see Cong. Docs., Ser. No. 573, Doc. 17, pp. 279- 282, 819; Richardson, Messages, V, 27; California Senate, Journal, 1850. pp. 32-33; Goodwin, Establishment of State Government, 220-223; Rod- man, History of the Bench ond Bar of Southern California, 21; von Holst, Constitutional History, III, 518.
5 The work of the first legislature was described and commended by Bancroft, California, VI, 308-336; Hittell, California, II, 791-807; Good- win, Establishment of State Government, chaps. 12-17.
6 County officers were elected the first Monday in April (California, Statutes, 1850, chap. 24, p. 81, sec. 3).
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required an adequate and regular supply of water, it became necessary to construct ditches and flumes, which immediately assumed value as a part of a miner's equity." This elaboration of industry naturally involved financial cooperation on a formal and permanent basis, and, as Professor Royce has emphasized, it had an important influence on the progress of social evolution in California.^ In consequence of General Riley's efforts to extend the operation of the Mexican system, the miners' alcaldes were by this time recognized eivil anthorities,? and there was a growing tendeney to refer mining disputes to them rather than to impromptu meetings, although legal forms were still set lightly aside in criminal matters.
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