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 3
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1 Cong. Docs., Ser. No. 573, Doc. 17, p. 778.
The Spanish Inheritance and the American Conquest 25
thorough investigation one must speak with reservation of the exact condition at any particular time.
The unit of civic life in the Spanish colonial system was the town or pueblo, and this was the form of organization established in California after the secularization of the missions.2 Municipal control was vested in the ayuntamientos or town councils. The executive officers were the alcaldes, sometimes two in number, who exercised judicial and even legislative powers of great scope. The first alcalde of each district also acted as judge of first instance in considering cases of major importance. The statutes provided for higher tribunals to entertain appeals from these lower courts, but while superior judges may have been appointed in California, they seem never to have performed any important functions.3 In consequence the local officers exercised a greater authority than was actually bestowed upon them by legislative enactment.
In the course of a general movement towards centralization under President Santa Anna, the Mexican Congress, in 1837, enacted laws which deprived small towns of their elected ayunta- mientos, and substituted for the alcaldes justiees of the peace, appointed by the prefect of the district, and subordinate to the sub-prefect.4 These justices exercised certain of the "faculties and obligations" of the alcaldes and ayuntamientos, and their authority varied according to the size of the town. As none of the settlements in California had a population that entitled it
2 See T. H. Hittell, History of California, 1885-1897, II, 181-214; H. H. Bancroft, History of California, 1884-1890, III, 301-362; F. W. Blackmar, Spanish Institutions of the Southwest, 1891, pp. 153-191. General reference on Mexican organization may also be made to I. B. Richman, California under Spain and Mexico, 1911. It is unnecessary to consider here the exact number of legally constituted pueblos, although the question was very im- portant in the settlement of land titles after the American occupation.
3 Bancroft, California, IV, 531; Frederic Hall, History of San José, 1871, p. 169; W. H. Davis, Sixty Years in California, 1889, p. 105.
4 See the Digest of the laws of 1837, by H. W. Halleck, in J. Ross Browne, Report of the Debates in the Convention of California on the Formation of a State Constitution, 1850, Appendix, pp. xxxi-xxxiv.
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to an elective council, Governor Alvarado, in November, 1839, issued an order dissolving the ayuntamientos and displacing the alcaldes, with the probable exception of the officials of the capital town of Monterey.5
Radical changes in the Mexican system were again made in 1843 when Santa Ana was at the height of his power.6 In California the offices of prefects and sub-prefects were abol- ished, and in January, 1844, Governor Micheltorena reinstated ayuntamientos and alcaldes in several of the larger towns.7 Bancroft said that this change left little trace in the archives of the period, for in the summer of 1845, after the overthrow of both Mieheltorena and Santa Anna, the legislative assembly of California reorganized the administration on the old basis of the laws of 1837.8 Alta California was divided into the districts of Los Angeles and Monterey, and these were again subdivided into partidos. The partido of Monterey was given a prefect, the others had sub-prefects. The town of Monterey, which had been the former capital, was also allowed an ayuntamiento and alcaldes, and so was Los Angeles, to which the seat of government had been removed early in 1845.º Elsewhere the justices of the peace were reestablished, as prescribed in the laws of 1837, although there was a general tendency to persist in the use of the term alealde, instead of juez de paz. Contemporary travelers com- monly followed that custom, and old residents found it difficult
5 Bancroft, California, III, 586. Alvarado said in 1840: "There is no Ayuntamiento whatever in the Department, for there being no competent number of inhabitants in any of the towns as provided by the Constitution, those then existing had to be dissolved; and only in the Capital there ought to be one of such bodies" (Dwinelle, Colonial History of the City of San Francisco, Addenda L., p. 70). The varying local regulations are illustrated in Bernard Moses, Establishment of Municipal Government in San Francisco, 1889, pp. 12-26.
6 Bancroft, History of Mexico, V, 226-287.
7 Bancroft, California, IV, 358 -- 359.
s Ibid., 533.
9 Ibid., 519.
The Spanish Inheritance and the American Conquest 27
to distinguish between the two classes of magistrates when called to testify in the American courts.10
Thus it happened that Spain's judicial legacy to California is for the popular mind embodied in the symbolic figure of the alcalde-the presiding offieer of the town council, the dignified, paternal autocrat ; so prominent in local affairs, and so impressed upon history and fiction, that the term "alcalde system" has frequently been applied to the whole elaborate and centralized organization in which the alcalde's legitimate position was act- ually that of a minor unit.11
During the last decade of Mexican rule a changing order affected many of the characteristic features of the earlier epoch. The neglected presidios and the rifled missions still formed a chain of little settlements from San Diego to Sonoma, but many of the more important residents lived in patriarchal fashion on great ranchos which had been granted from time to time 'to private individuals. Despite hampering restrictions, hundreds of foreigners had made themselves at home in California, and some had even acquired positions of distinetion through marriage with influential families. Life was pastoral and indolent, little disturbed by commercial aspirations, but enlivened by constant politieal intrigue. The keener minds, both native and foreign,
10 See testimony in the case of the United States vs. Jose Y. Limantour, Transcript, 1857-1858, I, Case No. 424, pp. 140, 145, 153, 155, 163; IV, Exhibit O, pp. 9, 13-17. The changes in system are outlined, II. 753-754. Many extracts from this evidence are reprinted in Dwinelle, San Francisco, and a list of Mexican officials of San Francisco is given in Addenda LXXVII, p. 111. See also B. S. Brooks, "Alcalde Grants in the City of San Francisco," The Pioneer, I, II (1854).
11 See R. A. Wilson, "The Alcalde System of California," First Califor- nia Reports, 559 et seq. (in ed. 1, 1852, and annotated ed., 1906) ; C. H. Shinn, Mining Camps, 1885, especially chap. 8; Willoughby Rodman, His- tory of the Bench and Bar of Southern California, 1909, pp. 28-36; J. R. Robertson, From Alcalde to Mayor, 1908, a MS doctoral dissertation in the University of California Library. Some court decisions ruled that the status of the alcaldes as defined in the laws of 1843 held over to the Ameri- can régime, see "Mena vs. Le Roy," First California Reports, 220; "Cohas vs. Raisin," Third California Reports, 449; "Hart vs. Burnett," Fifteenth California Reports, 530.
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were aware of impending change, for statesmen more energetie than those of Mexico were bestirring themselves to gain control of the Paeifie Coast ; and while the Californians were absorbed in their local problems and diseords the toils of international ambition and diplomacy were drawing closer about them.
The various episodes that immediately preceded the change in government are some of the best known incidents in local history. A few words will reeall the services of Thomas O. Larkin as United States consul at Monterey; the exploring expeditions of Captain John C. Frémont, of the United States Topographical Engineers; the protests made by the Mexican authorities when his large party lingered in California during the spring of 1846; the arrival, in May, of Lieutenant A. II. Gillespie, with seeret orders from Washington for Larkin and Frémont ; and the belligerent attitude immediately assumed by the latter. In June the American settlers at Sonoma, abetted by Frémont, attempted the establishment of an independent gov- ernment, and while their Bear Flag was still flying, Commodore John D. Sloat appeared upon the Coast, announced the out- break of hostilities between the United States and Mexico, and, on the seventh of July raised the Stars and Stripes above the little port of Monterey.12
The months that followed were filled with interesting events, and while most of them may pass unnoticed in these pages, a few require mention because they produced conditions that permanently affected the institutions of California. The expan- sion of the United States by the military occupation of Mexican territory created problems for which the officers in command could not be prepared by specific instructions issued long prior to the event. The development of a poliey in regard to the
12 General reference on this period may be made to the histories of Ban- croft, Hittell, and Royce; G. L. Rives, The United States and Mexico, 1821- 1848, 1913, II; J. H. Smith, The War with Mexico, 1919, especially chaps. 14, 16, 17, with their notes.
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The Spanish Inheritance and the American Conquest
administration of the acquired country was a series of experi- ments, in which the burden of responsibility was laid upon the local executives. The orders under which Sloat took possession of Monterey were dated June 24, August 5, and October 17, 1845, and they vaguely directed him to preserve friendly rela- tions with the people of California in case the declaration of war gave him an opportunity to seize the ports of the Pacific Coast. Letters which were dispatched after the outbreak of hostilities ordered him to encourage the people to "neutrality, self-government and friendship." They anticipated that it might be necessary for him to establish some form of civil government, but details of administration were left to his dis- cretion.13
It is a recognized principle of international law that during the military occupation of conquered territory the native munici- pal laws shall continue in force except as the new commander may make specific changes.14 In accordance with the spirit of this regulation Commodore Sloat issued a proclamation on the day he occupied Monterey in which he promised that peaceable inhabitants should enjoy their native rights and privileges, as well as greater liberties assured to those who lived under the flag of the United States.15 At the same time he asked the judges, alcaldes, and other civil officers to retain their positions
13 For orders of this period see Cong. Does., Ser. No. 499, Doc. 19, pp. 75, 79-84; Cong. Globe, 29 Cong., 2 Sess., Appendix, pp. 44-47; J. C. Fré- mont, Memoirs, 1887, I, 537; Richman, California under Spain and Mexico, pp. 528-529.
14 For discussion of the status of California at this time see R. D. Hunt, "Legal Status of California, 1846-49,"' American Academy of Political and Social Science, Annals, XII (1898), 387-408; C. E. Magoon, Reports on the Law of Civil Government in Territory Subject to Military Occupation by the Military Forces of the United States, 1902, Index under "Califor- nia"; D. Y. Thomas, History of Military Government in Newly Acquired Territory of the United States, 1904, pp. 159-275; W. E. Birkhimer, Mili- tary Government and Martial Law, ed. 3, 1914, pp. 53-137.
15 Cong. Does., Ser. No. 493, Doc. 1, pp. 644-645. Reprinted in Soulé, Gihon and Nisbet, Annals of San Francisco, 1855, pp. 98-100.
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Vigilance Committee of 1851
until the government should be more definitely organized, but only a few of the native ineumbents consented to continue in offiee.
Monterey, the first port occupied, was entitled to an ayunta- miento and alealdes,16 and elsewhere common parlanee elung to the term "alcalde." Therefore it is not surprising that the Americans, who were unfamiliar with the Mexican laws, imme- diately assumed that alcaldes were the constitutional magistrates in all the settlements that had so suddenly been transferred from the authority of one nation to that of another. Alealdes, therefore, were appointed to fill the more important vacancies,17 and the safety of the little army of occupation required that in many places Americans should replace Californians of doubtful adherence to the new regime. Perhaps the most conspicuous of these magistrates was the Reverend Walter Colton, alcalde of Monterey, for his interesting diary is one of the most familiar sources of information on the events of the period.18
Commodore Sloat left California three weeks after his momentous action of July 7. He was succeeded in command by Commodore Robert F. Stoekton, who aeted as executive for about six months-a brief administration which was disturbed by various uprisings of native maleontents. In the suppression of these outbreaks the Commodore was greatly assisted by Frémont and Gillespie, and the California Battalion of Mounted Riflemen, which they had organized from members of Fremont's
16 An election for the ayuntamiento had been held in Monterey, Dec. 10, 1845 (Bancroft, California, IV, 655 note).
17 Baueroft, California, V, 637 note, 648 note. Commodore Sloat, how- ever, appointed a justice of the peace at San José, and recommended the appointment of two more to try minor cases in San Francisco (Cong. Docs., Ser. No. 493, Doc. 1, pp. 641, 667). Henry D. Fitch was spoken of as justice of the peace in San Diego, April 16, 1847 ( Archives of California, "Unbound Docs., 1846-1850," p. 118), and Robert Cliff as justice in the same place ou Oet. 5, 1847 (ibid., 121).
18 Walter Colton, Three Years in California, 1850. Colton had been chaplain of the frigate Congress.
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The Spanish Inheritance and the American Conquest
exploring expedition and from adherents of the Bear Flag forces.19
Stoekton undoubtedly considered himself authorized to install an adequate form of eivil government. He called for popular elections to fill the positions vacated by the old magistrates, and directed that the new officers should administer the law aceord- ing to former usages until the departments of state could be rearranged.2º He publicly announced the probability of speedy territorial organization, and on his own initiative drew up a brief constitution which formally deelared California to be a territory of the United States, provided for a governor, a secre- tary, and a legislative council, and continued the existing municipal institutions. This was forwarded to Washington, accompanied by the statement that he expected soon to resume his duty at sea, and would appoint Fremont governor, and Gillespie seeretary.21
Long before this communication reached the East, other plans had been matured for California. Soon after the outbreak of the war Brigadier General Stepheu W. Kearny had been sent westward upon a dual mission. He was ordered first to occupy New Mexico and to establish civil government there, and then to proceed overland to cooperate with the naval forces on the Pacific Coast, to assume command of all troops mobilized there, and to establish civil government as soon as possible. It was admitted that in both loealities the work of administration might be difficult and unpleasant, and he was instructed to rely on his own judgment when necessary.22
19 See Baneroft, California, V, chaps. 12-15.
20 Cong. Docs., Ser. No. 493, Doc. 1, pp. 669-670. Stockton called for the local election at San Jose in a letter dated August 24, 1846, that is still preserved in the office of the clerk of that city.
21 Reports of Sept. 18 and 19, 1846, Cong. Docs., Ser. No. 521, Doc. 70, pp. 38-40, 45-46. For Stockton's plan of organization see Cong. Does., Ser. No. 493, Doc. 1, pp. 669, 671-672, 675; Bancroft, California, V, 284- 28.5.
22 Cong. Does., Ser. No. 573, Doe. 17, pp. 236-240; Baneroft, California, V, 334-336.
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Vigilance Committee of 1851
To reinforce the troops that marched overland, the First Regiment of New York Volunteers was dispatched via Cape Horn, under the command of Colonel Jonathan D. Stevenson, It was composed of young men who enlisted for the duration of the war, with the understanding that they should be mus- tered out in California. The fact that many remained there as permanent settlers made the expedition famous in local annals under the familiar title of Stevenson's Regiment.23
Another body of volunteers was raised in Missouri, where Kearny recruited a battalion from a party of Mormons. These men were already on their way to California, where they expected to join a number of their fellow believers who had sailed from New York with the intention of procuring grants of land from the Mexican authorities. The seafarers arrived in San Fran- eiseo only to find that the American flag had preceded them. Although the personal force of their leader, Samuel Brannan, held them together for a while, they soon separated, and the ma- jority gravitated naturally towards Salt Lake.24 Brannan stayed in San Francisco, became a conspicuous figure in local history, and was the first president of the Committee of Vigilance of 1851.
General Kearny experienced little difficulty in fulfilling the first portion of his instructions, for the occupation of New Mexico was quickly accomplished. The conqueror immediately announced the annexation of the territory to the United States, promulgated an elaborate organie law, and appointed a full staff of civil executives.25 When the report of the proclamation
23 See infra, p. 39.
24 See Daniel Tyler. Concise History of the Mormon Battalion in the Merican. War, 1881; Bancroft, California, V, pp. 469-498, 544-554; Sacra- mento Union, 1866, Sept. 11 61-4; James O'Meara, "A Chapter of California History," Overland Monthly, ser. 2, XIV (1889), 625-630; B. H. Roberts, The Mormon Battalion, 1919.
25 Cong. Docs., Ser. No. 499. Doc. 19, pp. 20, 26-73. See also R. E. Twitchell, History of the Military Occupation of New Mexico, 1909, pp. 84-94. 147-199; J. T. Hughes, Doniphan's Expedition, reprint by W. E. Connelley, 1907, pp. 201-202, 238-242; Thomas, Military Government, 101; 149; Birkhimer, Military Government and Martial Law, 62-63, 137.
The Spanish Inheritance and the American Conquest 33
of annexation was received in Washington, Kearny was promptly informed that he should not repeat such a declaration in Califor- nia, since incorporation of the acquired territory would depend npon governmental action.26
It may be inferred that President Polk was ready to allow much freedom to the commandants of New Mexico and of Cali- fornia, for in his Message of December 8, 1846, he stated with approval that the former civil government had been superseded in the conquered provinces, and that in some of them the military and naval commanders had established temporary governments, which conformed as far as practicable to the free institutions of the United States.27 But Congress proved jealously alert to any infringement of the legislative prerogative, and requested full information as to the affairs of the occupied territory.28 The President responded by transmitting the relevant documents, including the text of the laws for New Mexico, which had come to his attention after the delivery of his previous Message. He also stated that while he should approve of necessary regulations for the safety of the army of ocenpation, he should not approve such portions of the code as purported to establish a permanent territorial government, or confer political rights which could be enjoyed only by citizens.29
To Kearny himself a communication was sent under date of January 11, 1847, designed to guide him and his successor in the administration of California. After reference had been made to the obvious faults of the code for New Mexico, he was informed that the law of nations allowed a conquering power to establish a civil government for the purpose of preserving order,
26 Orders of Nov. 3, 1846, Cong. Docs., Ser. No. 499, Doc. 19, p. 15.
27 Cong. Docs., Ser. No. 493, Doc. 1, pp. 22-23. See also commendation of the Secretary of the Navy, ibid., 379.
28 Cong. Globe, 29 Cong., 2 Sess., p. 12 et seq .; Appendix, p. 43 et seq.
29 Message, Dec. 22, 1846, J. D. Richardson, compiler, Messages and Papers of the Presidents, 1899, IV, 506-507.
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Vigilance Committee of 1851
and that he was expected to exercise such an authority in a firm and judicious manner. But it was distinctly stated that the Federal Constitution had not been extended over the con- quered people, and that the temporary regulations of the military régime could not be continued beyond the duration of a state of war without the authority of a treaty or a definite act of Congress.30 When this letter was written General Kearny was already in California, and was confronted with difficulties which the Department of War had never foreseen. Learning of the rapidity and ease with which the ports had been occupied, he took scarcely more than a hundred men upon the long and difficult march from Santa Fe.31 Early in December the exhausted and hungry company reached the vicinity of San Diego, to find the Californians in arms against the Americans, and to engage the insurgents in a disastrous encounter at San Pasqual.32 Reinforcements sent by Stockton relieved a desperate situation, and the overland expedition arrived in time to participate in the final days of the insurreetion. Its general, however, waited to assume command of the combined forces until more of his own troops should appear.
After peace with the belligerents was obtained by the Treaty of Cahuenga, negotiated by Fremont on January 13, 1847, Kearny felt that the time had arrived to take his place as military and civil executive. But Stockton was unwilling to relinquish his position and was determined to carry out his plan of install- ing Frémont as governor. He pursued this course in spite of protests; issued the civil commissions he thought necessary ; appointed a legislative council to meet in Mareh, invested the
30 Cong. Docs., Ser. No. 573, Doc. 17, pp. 244-247.
31 Bancroft, California, V, 336-339.
32 Bancroft, California, V, 339-356; V. M. Porter, "General Stephen W. Kearny and the Conquest of California," Historical Society of Southern California, Annual Publications, VIII (1911), 95-127.
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The Spanish Inheritance and the American Conquest
new government with control on January 19, and departed for San Diego.33
Kearny did not endeavor to enforce his authority by arms, but proceeded quietly to the north. There he found a company of artillery, lately arrived from the East, and also Colonel Richard B. Mason, who had been sent to the Coast to relieve him.34 Commodore W. B. Shubrick, Stockton's sueeessor, was at Monterey, and was quiek to discountenance the claims made by Stockton and Fremont. Between the commanders of the land and naval forces was now established that cordial cooperation desired by the national authorities. On March 1, 1847, they made public a joint circular which announced Kearny's appoint- ment as governor and fixed the capital at Monterey. At the same time Kearny issued a proclamation of a conciliatory character, 35 but in accordance with the instructions of November 3, received by the hands of Mason,36 he forbore to declare formal annexation, as he had done in New Mexico. During the controversy with Stockton he had ordered the latter to cease all further proceed- ings relating to the formation of a civil government,37 and he now ignored Stockton's entire scheme. He confined himself to holding out the hope of speedy territorial organization by aetion of the United States government, and to announcing that until changes could be accomplished by competent authority the exist- ing laws would be continued in so far as they harmonized with the Federal Constitution. The principle thus stated was accepted
33 See Bancroft, California, V, 411-468; Proceedings of the General Court Martial in the Case of Lieutenant-Colonel Fremont, 1847 (Cong. Docs., Ser. No. 507, Doc. 33) ; John Bigelow, Memoir of Fremont, 1856, p. 222 et seq .; F. S. Dellenbaugh, Frémont and '49, 1914, pp. 355-380. 34 Bancroft, California, V, 436, 518.
35 Circular and proclamation in Cong. Docs., Ser. No. 573, Doc. 17, pp. 288-289. The latter was made public March 4 (ibid., 284).
36 See supra, p. 33. Dates of the reception of Kearny's orders are given in Court Martial of Fremont, 48-55. The orders were reaffirmed June 11, 1847 (Cong. Docs., Ser. No. 521, Doc. 70, p. 29).
37 Cong. Docs., Ser. No. 557, Doc. 18, pp. 267, 268.
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Vigilance Committee of 1851
as conforming with the orders of Jannary 11, which shortly arrived.38 It beeame from that time the basis of administration in California, but the anticipated eivil organization proved illusive, and no competent authority effeeted changes in the organic law of the country until the people themselves adopted the state constitution of 1849.
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