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 4
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While Kearny was thus employed in the north, Fremont was still acting as governor in Los Angeles, but after many stormy days he was obliged to yield to the general's superior authority, and to return to Washington, where he was tried and convicted of insubordination. The court martial recommended his dis- missal from the army, and although the President remitted the sentence, Fremont resigned and continued his career in the West as a private citizen.
The diseord ereated by the disputes between the American officers reacted most unfortunately on conditions in California. Not only was the work of organization seriously delayed, but the conflict of authority produced a question as to the validity of the obligations assumed by Stockton and Fremont in raising forces and requisitioning supplies. They had promised to pay the California Battalion more than the rates allowed by Con- gress, and the members of that company refused to be mustered into the volunteer service. Their status therefore remained irregular, and their claims, as also those of civilians who had furnished food and horses, were a matter for tedions and nnsatis- factory Congressional action.39 A most natural resentment was thus ereated against the authorities and serions antagonism engendered among the defranded Californians, while many Americans felt that Stoekton and Fremont had tried to give them a satisfactory government, but that the succeeding military commandants were indifferent to their needs.
38 See supra. p. 34. The orders were received April 23 (Cong. Docs., Ser. No. 573, Doc. 17, p. 286).
39 Cong. Docs., Ser. No. 573, Doc. 17, pp. 287, 315; Bancroft, California, V, 462-468.
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The Spanish Inheritance and the American Conquest
Frequent complaints of this sort were registered in the first newspaper that appeared in San Francisco, the California Star, published by Samuel Brannan. The initial issue,40 dated Janu- ary 9, 1847, expressed the hope that an immediate acceptance of Stockton's scheme for a temporary government might end the confusion that existed as to the laws in force in California. On February 6 the Star gave the names of the governor, the secre- tary, and the members of the legislative council, as appointed by Stockton. On the thirteenth it printed a long editorial, rejoicing over the anticipated meeting of the council, and urging it to call a convention which should draw up a territorial consti- tution and so put a stop to the irregularities of the alcaldes, who were "all over the country, assuming the power of legisla- tures, issuing and promulgating their bandos and laws and orders and oppressing the people." Subsequent issues told of the selection of delegates to the proposed legislative council from San Francisco,41 Sonoma,42 and Santa Clara.43 When reports of these proceedings were sent to Kearny, he replied that no such council would then be convened.44 This fact was published in the Star, with the announcement that a call for a legislative assembly might be made within a short time.45 In the issue of March 13, 1847, there was an article setting forth the imperative need of land laws. On March 27 the editor wrote: "We have not been able to discover any traces of written law particularly
40 The Monterey Californian, started August 15, 1846, by Walter Colton and Doctor Robert Semple, was friendly to the military authorities. The California Star was started as an organ of protest against their arbitrary methods. See E. C. Kemble, "History of California Newspapers," Sacra- mento Union, 1858, Dec. 25 %. An "Extra in Advance of the California Star" had been printed about the first of November, 1846 (Hittell, San Francisco, 109).
41 California Star, 1847, March 6 1/1-
42 California Star, 1847, March 6 3%, 31-
43 California Star, 1847, March 6 21-
44 Letters, March 3, 4, 1847, Cong. Docs., Ser. No. 573, Doc. 17, p. 290. Kearny's official correspondence is given, ibid., 283-313.
45 California Star, 1847, March 20 21.
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Vigilance Committee of 1851
applicable to this territory except the Bandos of the Alcaldes," and remarked that, in the absence of formal statutes, "some contend that there are really no laws in foree here, but the divine law, and the law of nature."
There was other evidence of hostility to the administration. Edwin Bryant, the alcalde of San Francisco, resigned in May, and two parties were then formed, which respectively petitioned the governor for the appointment of George IIyde and John Townsend.46 Hyde was given the position, and a meeting for protest was summoned by the following handbill :47
THE PEOPLE'S VOICE STIFLED BY INTRIGUE
People of San Francisco, rally for your rights !!! A majority of your number have petitioned the Govr of this Territory to appoint John Town- send Esq. to succeed Edwin Bryant Esq., as Alcalde of this district. Intrigue has defeated this voice of the people-George Hyde is appointed !!! Will you submit to this? The unrevoked Proclamation of Govr Stockton gives you the privilege of electing Alcaldes for yourselves. - The laws of Cali- fornia guarantee the same Right.
Assemble at Brown's Hotel at seven o'clock this evening, and assert your Rights.
MANY OF THE PEOPLE, San Franco, May 30th, 1847.
Major James A. Hardie, who attended the meeting in his offieial eapacity, as commander of the northern military district, put a stop to proceedings by announcing that any attempt to eleet an alealde in the place of the governor's appointee would be repressed by military authority.48 This ineident is scarcely noted, even by Baneroft, but it derives significanee from the appeal to Stockton's "unrevoked proclamation," and from the comment upon it made by William A. Leidesdorff, who wrote
46 Archives, "Unbound Does., " 114-115.
47 Archives, "Unbound Docs.," 110.
45 Hardie to Mason, May 30, 1847, Archives. "Unbound Does.," 109- 110. Reply, Cong. Does., Ser. No. 573, Doc. 17, p. 325.
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The Spanish Inheritance and the American Conquest
that the party opposed to Hyde was an "open advocate of Cali- fornia being an independent government and not a territory of the United States."49
Fortunately at this time Kearny's position had been greatly strengthened by the arrival of Stevenson's Regiment, which landed early in March. This put at his command a force sufficient to quell any dangerous tendency towards insubordina- tion. The volunteers were assigned to garrison duty, chiefly in the recently disaffected southern area, where they rendered excel- lent service. The roster of the regiment contains the names of many men who became leading citizens of the state, and of others who achieved unenviable notoriety as New York rowdies, quickly acclimated to the welcome license of conditions in California, and potent for evil in city and mining camp.50
49 Leidesdorff to Mason, May 30, 1847, Archives, "Unbound Does.," 68. 50 See F. D. Clark, The First Regiment of New York Volunteers, 1882; Bancroft, California, V, chap. 19; Z. S. Eldredge, Beginnings of San Fran- cisco, 1912, II, 552-556. It was sometimes called the Seventh Regiment.
CHAPTER II
COLONEL RICHARD B. MASON, MILITARY GOVERNOR
Kearny acted as governor for three months only. On May 31, 1847. he was succeeded by Colonel Richard B. Mason, who filled the position for nearly two years.
California was fully pacified when Mason assumed his office, but past conflicts had left a heritage of bitterness between the Americans and the Californians, and the discord in the ranks of the victors had prevented any constructive work for the improvement of local conditions.
The little towns, both north and south, were still under the rule of their alcaldes, some of whom had been elected according to Stockton's instructions, while some had been appointed by Kearny. One can realize from the hasty sketch of early affairs given in the foregoing chapter that the American alcaldes inherited not only the traditional institutions of the Spanish system but also the confusion resulting from the years of turmoil in Mexico and California, during which acts had been passed and repealed and renewed until their real meaning was lost in a maze of contradictions.
The laws in force at the time of the seizure were held to be those of 1837, but they were practically inaccessible in printed form. One pioneer explained that under the Mexican system laws were transmitted in writing to the alcaldes, and promul- gated to the people by word of mouth.1 Such a method would account for the ahnost total lack of written statutes. Edwin Bryant, alcalde of San Francisco in February, 1847, could find
1 R. F. Peckham, San José Pioneer, 1877, July 7 (Scrapbook in the Ban- croft Library, Eventful Life, p. 19).
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Colonel Richard B. Mason, Military Governor
no law books except a digest of the Laws of the Indies, published in Spain a century earlier, and a small pamphlet that defined the powers of judicial officers of the Mexican republic.2
It was a common impression that the former magistrates had administered the laws "in accordance with the principles of natural right and justice,"3 and in one of his earliest despatches Colonel Mason wrote to the alcalde of Sonoma :+
Having been only two days in office as governor, I am not at this time prepared to say what are the extent of your powers and jurisdiction as alcalde; you must, for the time being, be governed by the customs and laws of the country as far as you can ascertain them, and by your own good sense and sound discretion.
Such, indeed, had been the only guides for the conduct of the American alcaldes during the whole of their official existence, and some of them had developed very liberal conceptions of their responsibilities. The best known interpretation of the alcalde's office may be found in the diary of Alcalde Colton, of Monterey. Its pages give a vivid impression of the authority assumed by that paternal magistrate. He wrote on different occasions :3
My jurisdiction extends over an immense extent of territory, and over a most heterogeneous population .... All have come here with the expecta- tion of finding but little work and less law. Through this discordant mass I am to maintain order, punish crime, and redress injuries. * * *
It devolves upon me duties similar to those of mayor of one of our cities, without any of those judicial aids which he enjoys. It involves every breach of the peace, every case of crime, every business obligation, and every dis- puted land-title within a space of three hundred miles. From every other
2 Sce Browne, Debates, Appendix, p. xxv; Edwin Bryant, What I Saw in California, 1848, p. 436; T. B. King, California, 1850, p. 3. By July, 1848, Colton was familiar with more satisfactory Mexican codes (Three Years, 249).
3 Edwin Bryant, What I Saw in California, 436; Charles Wilkes, Narra- tive of the United States Exploring Expedition, 1844, V, 222.
4 Letter, June 2, 1847, Cong. Docs., Ser. No. 573, Doc. 17. p. 317. A letter dated May 27 had asked a definition of the alcalde's duties ( Archives, "Unbound Does.,"' 110-111).
5 Colton, Three Years, 19, 55.
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Vigilance Committee of 1851
alcalde's court in this jurisdiction there is an appeal to this, and none from this to any higher tribunal. Such an absolute disposal of questions affecting property and personal liberty, never ought to be confided to one man. There is not a judge on any bench in England or the United States, whose power is so absolute as that of the alcalde of Monterey.
Baneroft declared that these oft quoted paragraphs in reality described the duties of a Mexican prefect, but those officers were not installed during the first years of the American occupation. In the absence of higher authorities, the first alcalde of each district was recognized as ex-officio judge of first instance, with jurisdiction in criminal eases, and other alcaldes of the district were subordinate to him.6 Colton, however, made no distinction between the functions of the first alcalde of a district, and those of an ordinary municipal magistrate, and since he is often cited as an authority on the position of California alcaldes this char- aeterization has tended to exaggerate the popular conception of their constitutional status.
As a matter of fact, Mr. Colton was never very exactly informed as to the Mexican precedents. In such an important matter as land laws he stated that the former authorities had been governed solely by
"The simple plan,
That they shall take who have the power, And they shall keep who can."?
It is not surprising that his own disposition of public land was irregular, and his records carelessly preserved !
Colonel Mason proved himself well fitted to cope with the difficult situation in which he was placed. His choice of
6 See Bancroft, California, VI, 258 note 8; Cong. Docs., Ser. No. 573, Doc. 17, pp. 675, 762. Colton's exaggerated conception of an alcalde's position is noted in O. K. McMurray, "Beginnings of Community Property System in California, " California Law Review, III (1915), 360-361.
7 Cong. Docs., Ser. No. 573, Doc. 17, p. 170. Colton's methods were criticized (ibid .. 761). In spite of this, his work as a whole was so valu- able that he was not recalled to naval duty (Shubrick to Mason, Sept. 15, 1847, Archives, "Unbound Does., " 127 ).
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Colonel Richard B. Mason, Military Governor
assistants was particularly fortunate. Lieutenant William T. Sherman, the assistant adjutant general, was an efficient aid in military affairs, and Lieutenant Henry W. Halleck, the secretary of state, had an excellent understanding of civil and international law.8 The work of administration was greatly hampered by the lack of legal treatises, both Mexican and American. Mason and Halleck had a few American works, but as late as April, 1849, the senior military officer on the Coast was unable to procure in California a copy of the laws of the United States.9 The little staff at headquarters made sincere efforts to become familiar with the Mexican statutes, and it was Mason's purpose to prepare an English digest as a guide for the officials in California. This was completed in the course of a year, but before it could be printed, the conclusion of the war led the governor to believe that its publication would be unnecessary.
The best source of information on the events of the period is the collection of official letters accompanying President Tay- lor's Message on California and New Mexico, January 21, 1850.10 This is supplemented by a manuscript volume in the Bancroft Library which contains copies or summaries of many letters from citizens and alcaldes, received by the governors from 1846 to 1850.11 This correspondence shows that Colonel Mason was a strict disciplinarian in his interpretation of the subordination of municipal executives to military authority. Instead of allow- ing the freedom of election sanctioned by Stockton, he insisted
8 A useful study of this period has been made by Flora A. Wright, in a master's thesis, Richard Barnes Mason, 1919, MS in the University of California Library. See also S. H. Willey, "Recollections of General Hal- leck, " Overland Monthly, IX (1872), 9-17; W. T. Sherman, Memoirs, 1875, I.
9 See Cong. Docs., Ser. No. 573, Doe. 17, pp. 263-264, 453, 722. It was impossible to procure some needed legal books except from visiting ships of war (H. W. Halleck, International Law, 1861, Preface.)
10 Cong. Docs., Ser. No. 573, Doe. 17. A slightly different arrangement is given in Ser. No. 557, Doe. 18.
11 Cited here as Archives, "Unbound Does."
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Vigilance Committee of 1851
that it was the governor's prerogative to appoint the alcaldes, or to issue special permission for their election. He also kept a sharp watch over their actions, and demanded reports on mat- ters of importance. They often appealed to him for advice and direction, and in so far as he was able he responded with prece- dents drawn from Mexican usage, and gave instructions to cover individual cases. Other appeals were made by contestants dissatisfied with the decisions of alcaldes. These were some- times entertained. although more often they were dismissed on the ground that there was no higher tribunal to which an appeal might be carried. But when it was necessary. Colonel Mason exercised the governor's power of overruling the alcaldes, reversed decisions as he thought fit, and removed at least one alealde from office. 12
The eivil authority of the alcaldes did not give them juris- dietion over offenses committed by or upon soldiers; crimes of that sort were subject to punishment by a court martial or by a military commission. But difficulties attended even the admin- istration of martial law. Lientenant Sherman was obliged to inform the judge advocate of a military commission in Los Angeles that he could not send proceedings of other commissions to serve as precedents in a trial for burglary ; that the best he could do was to forward extracts from the statutes of Missouri, and a digest of the laws of Texas-the only law books to which he had access which treated the crime. He also instructed his correspondent that the commission must revise the sentence that had already been pronounced-a term of imprisonment in a state prison-since there was not such a penitentiary within thousands of miles.13
12 Letters respecting appointments are found in Cong. Docs., Ser. No. 573, Doc. 17, pp. 433, 443, 451, 473, 511, 564; appeals, 391, 412; sentences, 410, 445, 475-476, 487, 488; removal of Alcalde Nash, of Sonoma, 295, 318, 320, 344, 375, also Archives, "Unbound Docs." 112, 118-119, 145. See also Bancroft, California, V. 606-611.
13 See Cong. Docs .. Ser. No. 573, Doc. 17, pp. 351-354, 402-403.
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Colonel Richard B. Mason, Military Governor
The total lack of prison facilities gave rise to most perplexing problems. Under the Mexican system the punishment of white culprits had usually taken the form of a fine, while Indians had been whipped. In consequence the jails were not constructed for other than temporary confinement, and when a guard was necessary it was furnished by the citizens.14 The inventory of prison equipment in Yerba Buena, January, 1846, consisted of
1 serviceable padlock.
2 chairs.
1 pair of shackles which are missing and should be searched for in passing.15
It is said that a hungry prisoner of that town called on one of the first American alcaldes with the door of the calaboose on his back, and demanded his breakfast.16
In spite of Mason's efforts to adhere to local usage, radieal changes were gradually introduced. The most striking innova- tion was the adoption of the jury system. Under the Mexican practice, certain classes of disputes might be adjusted by "trials of conciliation," condueted before three arbitrators, who ren- dered a decision by vote of the majority. While these hombres buenos exercised some of the functions of the American jury- man, the impartial jury of common law, rendering a unanimous and binding verdict, was not known in California.17 Neverthe- less Alcalde Colton had not been in office six weeks before he
14 Stevenson to Mason, from Los Angeles, July 11, 1848, Archives, "Un- bound Does.," 164. Mason planned to erect some secure prisons (Cong. Docs., Ser. No. 573, Doc. 17, p. 558), but apparently the plan was not carried out (ibid., 790).
15 Case of U. S. vs. Limantour, Transcript, IV, Exhibit O, p. 35.
16 J. H. Brown, Reminiscences and Incidents of "The Early Days" of San Francisco [1886], p. [30]. See also Eldredge, San Francisco, II, 545.
17 "There was nothing like trial by jury known to the Mexican system; and there was no law authorizing anything of the kind" (Hittell, Califor- nia, 1I. 663). Bryant spoke of the function of these courts as being similar to that of the American jury (What I Saw in California, 436).
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Vigilance Committee of 1851
introduced it into his eourt, where, in spite of the novelty of the method and an overwhelming confusion of tongues, the verdiet was cheerfully accepted by the plaintiff, the defendant, and the assembled inhabitants of Monterey. The alcalde closed his account of the trial with the words: "If there is anything on earth besides religion for which I would die, it is the right of trial by jury."18
Our historians have treated as a matter of course this fitting of the Anglo-Saxon jury into the court of the California alealde. Yet it was a step of profound revolutionary significance in that it waited not at all for treaties or statutes or even for a popular demand, but in order to meet the emergeneies of a moment it altered the institutions of centuries by the sole initiative of a petty alealde. The history of the state provides no example more typical of the serenity and self-confidence with which Amer- ieans confronted the exigencies of their daily life.
The example set in Monterey was soon followed in San Francisco,19 and it presently received official sanetion when Colonel Mason gave orders that juries of six or more should decide all eivil cases involving amounts exceeding one hundred dollars, and all criminal cases of a grave character. It was expressly stipulated, however, that the records of criminal con- victions should be reviewed by the governor before the infliction of any punishment.20 The method was not entirely sueeessful,
18 Colton, Three Years, 47-48.
19 Bryant said that the second jury trial was held in San Francisco before "judge" [alcalde] Bartlett (What I Saw in California, 328). Samuel Brannan was then tried for mismanaging the Mormon funds. The Annals. p. 186, called this the first jury trial in California, and so did Franklin Tuthill (History of California, 1866, 214-215), but the priority of the jury trial at Monterey is more often acknowledged. By January, 1847, Americans expected juries to be called, and the California Star, Jan. 9 2., noted with indignation a ease in which that privilege had been denied.
20 Cong. Docs., Ser. No. 573, Doe. 17, pp. 384, 413-414, 419-422, 439- 440, 452, 487, 494, 763.
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Colonel Richard B. Mason, Military Governor
as native Californians were reluctant to sentence their fellow countrymen,21 and the alcaldes did not always await official sanction of their sentences. William Blackburn, of Santa Cruz, for instance, executed a murderer convicted by a jury, and after- wards reported the case for Mason's approval, explaining his haste on the ground that it was difficult, with volunteer guards, to confine the prisoner securely.22
Other modifications of Mexican usage soon appeared. The alcaldes often obeyed the direction to administer justice with "good sense and sound discretion" by turning to American statutes in the absence of books of Mexican law, and they were quite content if any stray volume could give a hint of precedent in the cases that came before them.23 In the southern region where society was more firmly established there was closer adher- ence to Mexican traditions, but in the new towns of the North, where the Americans soon predominated, there was a greater tendency to ignore old customs.24
21 Archives, "Unbound Docs.," 122. See also the experience in Louis- iana, infra, p. 420.
22 Archives, "Unbound Does.," 108; California Star, 1847, Sept. 11 33 ; W. F. Swasey, Early Days and Men of California, 1891, p. 180; History of Fresno County, 1882, pp. 50-51. It was also reported that while under the influence of liquor Blackburn ordered a horse thief executed, and when sober wished to go on with the trial. The sheriff, who had concealed his prisoner, pretended for a time that the penalty had been inflicted. "Never mind," responded Blackburn, "proceed with the trial. All orders and judgments of this court must be justified by due and legal proceedings had." The culprit was then brought into court, tried and executed (Sacramento Union, 1871, Dec. 2 3%).
23 The California Star, 1847, Jan. 23 31, reported that the alcalde at Sonoma had adopted the whole volume of the statutes of Missouri, and the issue of July 3 3%, printed a notice of the court, couched in the formal terms of American jurisprudence. See also Cong. Docs., Ser. No. 573, Doc. 17, p. 762.
24 In his thesis From Alcalde to Mayor, p. 198, Robertson studied the official personnel of the different districts, 1846 to 1850. He concluded that iu San Francisco and Sonoma only Americans held office, in Santa Barbara only Californians; in Los Angeles all were natives at first, but they grad- ually gave way to Americans, while in other towns offices were divided between the two nationalities.
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Vigilance Committee of 1851
While the theory of beneficent military government under the ancient statutes was both useful and ornamental in official proclamations, the control of California by the native regulations became increasingly difficult with every month. The correspon- dence of the authorities shows that they discountenanced such an exaggerated ideal of the alcaldes' authority as was expressed by Colton, but we are forced to conclude that in spite of this many of the local magistrates greatly exceeded the limits con- templated by the laws of Mexico or the orders of the American officers.23 The newcomers from the United States found this arbitrary authority intolerably galling. The California Star kept up a constant fusillade of complaints and demands for civil organization. The editor gradually acquired some knowledge of the Mexican institutions presumably in force, but he continned to deplore that their imperfect establishment virtually left the alcaldes in supreme control, and he expressed the earnest hope that Colonel Mason would quickly promulgate some form of civil government.
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