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 5
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Week by week the hope of assistance from headquarters grew less, and on July 28 the alcalde of San Francisco, George Hyde, took the first step toward improvement by selecting six gentle- men to act as a council until the governor should think fit to sanction an election. Colonel Mason had already realized the need for such a body, and had drawn up a plan for the town government of San Francisco, but its transmission had been delayed, and it was not forwarded to Alcalde Hyde until the
25 C. E. Pickett wrote to Kearny, March 23, 1847, that the alcaldes throughout California were "but a mockery to law and justice, assuming and exercising prerogatives and powers far beyond any clothed [sic] them by the Mexican or United States' laws" (Archives, "Unbound Docs.," 149). J. S. Rnekel, on Dec. 28, 1847, described a deplorable state in San José (ibid., 132). On July 11, 1848, Colonel Stevenson reported that the alcalde of Santa Barbara assumed more authority than belonged to the President of the United States (ibid., 24). See also Bancroft, California, VI, 268 note 31; California Star, 1847, June 19 71.
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Colonel Richard B. Mason, Military Governor
latter had announced the appointment of his council.26 The initiative, therefore, came from the citizens, not from the central authority, a characteristic California precedent, but in this case the governor did not consider the movement insubordinate, and gave permission for an election, which was held on September 13. A few simple regulations were quickly formulated, a constable was appointed, and the members of the council were also author- ized to aet as conservators of the peace.27
Unfortunately, the creation of the council did not greatly better affairs in San Francisco. Hyde was under constant charges of incompetency and irregularity of conduet, and, although Mason did not think his removal necessary, he finally resigned after a year of wrangling and disorder.28 Town conn- cils were elected in some other places, but little information as to their services can be found in the correspondence of the governor.29
More serious even than the despotism of the alcaldes was the confusion and uncertainty that complicated every question rela- tive to the ownership of real estate. The former laws had per- mitted the governors and pueblo authorities to make grants of land to private parties, and nearly all the desirable coast conntry
26 Cong. Docs., Ser. No. 573, Doc. 17, pp. 378-379; Annals, 195-197; Bancroft, California, V, 648-650; Moses, Establishment of Municipal Gov- ernment, 30-36. Councilmen W. D. M. Howard, E. P. Jones, and R. A. Parker became members of the Committee of Vigilance of 1851.
27 Laws of the Town of San Francisco, 1847, pp. 4, 8. Two constables were appointed at first, then one who was to give his entire time at a salary of fifty dollars a month.
28 Official correspondence in Cong. Docs., Ser. No. 573, Doc. 17, pp. 361- 362, 494, 499-500; Archives, "Unbound Does., " 7, 27-42, 106-107. Hyde defended himself in his Statement of Historical Facts, 1878, MS in the Bancroft Library. See also Bancroft, California, V, 649-652; and his Chronicles of the Builders of the Commonwealth, 1891-1892, 1I, 286-294.
29 See notes to Bancroft, California, V, chaps. 23, 24; Cong. Docs., Ser. No. 573, Doe. 17, pp. 417, 431, 446, 498. Allusions to councils occur in Archives, "Unbound Does.," 117, 121, 122, 339-340. A few papers of the "Junta or Council" of San Jose, dated May 24 to Nov. 5, 1847, are preserved in the office of the city elerk.
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south of Sonoma was elaimed by virtue of such grants, sometimes by three or four alleged owners. Under the obligations of inter- national law the new régime was bound to recognize titles which were valid under the old; but until documentary records could be investigated, and boundaries corrected by accurate survey, it was impossible to ascertain what land was legally in private hands, and what might be considered public property. In the meantime private conveyances could carry only doubtful rights. and the publie tracts were closed to settlers, as the Federal Government had issued no regulations concerning them, and Colonel Mason refused to make grants that might ultimately be declared invalid.30 At the same time the Americans who had participated in the bitter, if insignificant, struggle of the "Conquest" felt themselves to be vietors on conquered soil,31 and the immigrants who had arrived later supposed that the country was open for homesteads as had been other parts of the frontier. Many sturdy pioneers reached California at great risk and hardship, only to find that it was impossible to preempt land from the public domain, or even to purchase it under any satisfactory guaranty.32 This situation transformed them into an army of squatters, hostile alike to Mexican landholders and to Federal authorities, and inclined, in a later deeade, to defend their squatter's holdings with the rifle, as well as with endless litigation.
In order to clear the way for intelligent action in the matter of titles, Colonel Mason directed Halleck to collect and examine the archives, which were scattered up and down the state. The latter could not make a report on the subjeet until March, 1849. and he then expressed the opinion that many of the old deeds
30 Cong. Docs .. Ser. No. 573. Doc. 17. p. 321.
31 See Colton. Three Years, p. 228.
22 The California Star, 1847, Feb. 27 21, noted the desperate plight of American immigrants who had exhausted their resources and could not secure the anticipated homes.
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Colonel Richard B. Mason, Military Governor
were invalid, either from fraud or from technical imperfec- tions.33 Meanwhile Colonel Mason acted with extreme caution. He construed the Mexican regulations as permitting the sale of town lots by the alcaldes for municipal expenses, but he held that the governor had no authority either to rent or to sell the public land.34 In the case of disputed titles he advised rival claimants to arbitrate their differences until such time as proper courts could be established.35 In the interim he prepared for future adjustments by appointing surveyors to begin the work of defining boundaries.
There were many other perplexities that confronted the gov- ernor of California in 1847 : questions of revenue, of military equipment, of the control of Indians, of the restraint of lawless- ness on the part of insurgent natives and restless immigrants. Yet it seems safe to say that during the period of the war social order was fairly well preserved. The governor com- manded the respect and obedience of the people, and kept a elose watch over local affairs; there was constant communication between headquarters and the scattered posts and settlements, and military aid was ready to sustain the alcaldes in the dis- charge of their duties;36 there were supervision, and account- ability, and discipline, and there was a fundamental element of definite law behind the "good sense and sound descretion" that guided the untrained officials in their judicial capacity. There was, to be sure, constant complaint in the newspaper, with unceas- ing demand for a more adequate system of government, but
33 Cong. Does., Ser. No. 573, Doc. 17, pp. 118-133. See also W. C. Jones, Report on the Subject of Land Titles in California (Cong. Does., Ser. No. 589, Doc. 18) ; Dwinelle, Colonial History of San Francisco; Bancroft, Cali- fornia, VI, 529-581; Hittell, California, II, 739-755; Rodman, History of the Bench and Bar of Southern California, 52-85; William Kelly, Excursion to California, 1831, I, 199-213.
34 Cong. Does., Ser. No. 573, Doc. 17, pp. 321, 440.
35 Cong. Docs., Ser. No. 573, Doc. 17, pp. 380, 389, 435, 440.
36 Cong. Docs., Ser. No. 573, Doc. 17, pp. 340, 349-350.
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there was no actual defiance or insurrection, and the Americans awaited improvement with what patience they might command. In retrospect we can see that the governor was helpless to effeet any permanent reforms, but the insurmountable difficulties of the situation were not fully appreciated by the men who natur- ally resented a policy that neglected their pressing need for civil organization.37
37 The California Star became constantly more emphatie in its con- demnation of existing conditions. On Dec. 25, 1847, it presented a most gloomy picture of criminal conditions, and on Jan. 22, 1848, it printed a violont protest against a state of affairs that allowed the alcaldes to "exer- eise authority far greater than any officer in our Republie-the President not excepted." Again, on Jan, 29: "They [the governors] had no power to allow the people to form a government . .. but yet they have the right to appoint and continue Alealdes in office, for an indefinite period, of notoriously inefficient, unprincipled and dishonest characters, and to permit their assuming unprecedented, unwarrantable and anti-republican powers."
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CHAPTER III EL DORADO
It must be remembered in making a study of this situation that the statesmen who had advocated the acquisition of Califor- nia by the United States desired the territory because of its strategie advantage in the development of commercial relations with countries bordering on the Pacific Ocean. Farsighted men anticipated a day when the natural advance of population would build American cities beside the harbors of the Coast to com- mand the great trade routes, and to stand guard over the western portals of the nation. But in their vision that day was suf- ficiently remote to allow a gradual development of the Federal policies, and a deliberate adjustment of the local problems that might arise from the conflict between Spanish and American institutions.
Since the earliest pioneers had turned their faces toward the western wilderness, the American frontiersman had exhibited an amazing capacity for taking care of himself. Hardly had the explorer and the trapper threaded the most distant forests and traced their hidden waters before a creaking van lumbered behind them, bearing the household gear of some intrepid settler who was ready to transplant into virgin soil the life of an older group from which he had detached himself. His wife sat beside the driver, with a baby in her arms, while older boys and girls trudged along the uncleared track. When the animals were finally unyoked the first task undertaken was the building of a rough log house that was to become a unit in the social organ- ization of a new community. And slowly or rapidly the new community formed itself, always out of the elements of the older
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commonwealths, reproducing with more or less modifieation the institutions of the parent society, until an increased population gave evidence of an accomplished novitiate, and warranted full admission into the sisterhood of states. There had been every reason to expect that the familiar sequences of the western fron- tier would be repeated with slight variation on the Paeifie Coast, and in spite of the hardships of the overland journey the usual type of settlers, men, women, and children, quiekly appeared beyond the Sierra Nevada Mountains.
A treaty of peace with Mexico was signed at Guadalupe Hidalgo. February 2, 1848. On that day no human wisdom could foresee that in California all precedents of westward emigration would be shattered by an overwhelming loeal emer- geney, and the coineident development of a tremendous national crisis. Gold had been discovered in January; by midsummer the state was in a frenzy of excitement, and at the elose of 1849 the population was increased by approximately eighty thousand new arrivals.1 There was instant need for the establishment of a strong government, and yet Congress could take no action on the subject without precipitating a dangerous quarrel between the advocates and the opponents of the extension of slaveholding territory. As a result the history of California was for a time inextricably bound up with the struggle over an institution that was already forbidden on Mexiean soil,2 was repugnant to a majority of the American settlers, and was unsuited to every industry likely to develop on the Paeifie Coast.
1 There are no accurate statistics of the influx. The Memorial presented to Congress at the time of the application for admission, estimated the white population, Jan. 1, 1849, at 26,000-Native Californians, 13,000; Americans, S000; other nationalities, 5000: Jan. 1. 1850, total 107,000-Californians, 13.000; Americans. 76,000; other nationalities, 18,000 (Browne, Debates, Appendix, pp. xxii-xxiii). Some allowance should be made for exaggera- tion (see Bancroft, California. VI. 158-159; Hittell, California, II, 700; J. S. Hittell, San Francisco. 139-140).
2 Slavery was abolished in Mexico by a decree of Sept. 15, 1829 (Hittell, California, II, 115-116).
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The situation in Washington may be summarized very briefly. On August 8, 1846, a month and a day after the occupation of Monterey, a bill was introduced into the House of Representa- tives asking for an appropriation to negotiate the adjustment of boundaries with Mexico. To that bill an amendment was offered by David Wilmot, of Pennsylvania, providing: "That as an express and fundamental condition to the acquisition of any territory from the Republic of Mexico by the United States ... neither slavery nor involuntary servitude shall ever exist in any part of said territory, except for crime, whereof the party shall first be duly convicted."3 The resolution was not an expression of extreme abolition sentiment, but rather of the determination of a large number of Northern men to prevent the further exten- sion of slaveholding territory. They controlled a majority in the House, and the bill passed, as amended, but defeat was pre- dieted in the Senate, where the measure was still under discussion when the session adjourned. The essentials of the Wilmot pro- viso subsequently reappeared in various forms and always met with ultimate failure; but the discussions crystallized the sec- tional discord of North and South into two opposing groups, equally determined in purpose, and so equally divided in power that neither could dominate the situation.
. The hostile attitude assumed by some members of Congress when they criticized the steps towards civil organization taken by Stockton and Kearny was a direet outcome of this discord, for neither party was willing to tolerate a delegation of Con- gressional power that might result in establishing a precedent for the future. So long as the war continued it was possible to insist upon the temporary and military nature of the rule extended over the conquered territory, and Congress refrained from action. The President suggested formal organization as
3 Cong. Globe, 29 Cong., 1 Sess., p. 1217. It is unnecessary to discuss here the history of the discord over slavery. Its existence, not its origin, was the fact that affected conditions in California.
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soon as he was convinced that the acquisition of California and New Mexico would be made permanent.4 When he announced the ratification of the treaty of peace lie again urged that the people of the annexed areas should be given civil institutions,5 but Congress adjourned on August 14, 1848, without adopting any constructive measures for California and New Mexico.
It is probable that in the spring of 1848 Colonel Mason had determined to initiate some new methods in the civil organization of California. In May he sent to the printer the manuscript of a digest of the Mexican laws, and in anticipating its early pub- lication he announced that it would provide for the organization of a higher court, and also for the appropriation of funds for constructing jails. The press, however, was deserted before the laws were printed, and after the termination of the period of the war Mason felt that the changed status of California rendered his compilation out of date.6
The ratification of the treaty with Mexico was proclaimed in California by Governor Mason on August 7, 1848.7 He then acknowledged with regret that California had not been placed upon a territorial basis before his dispatches left Washington, although he hoped that Congress had subsequently passed the requisite acts, and that the representatives of civil government would presently appear. Meanwhile he was greatly embarrassed by the absence of any orders covering the emergency except a brief note, dated nearly five months earlier, which had directed
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4 Richardson, Messages, IV, 542.
5 Richardson, Messages, IV, 589-590.
6 See Cong. Docs., Ser. No. 573, Doc. 17, pp. 489, 555, 558, 559, 586, 677; Browne, Debates, Appendix, p. xv. The Alta California, 1849, June 14 33, said that a book of "laws for the better government of California" had come from the press a few days before the news of peace was received, and that in consequence of the changed status of California Governor Mason never published nor attempted to enforce those laws. Bancroft spoke of the code as if it had been promulgated (California, VI, 263), but Hunt cor- rected the statement ("Legal Status of California, " as cited, 396).
7 Cong. Docs., Ser. No. 573, Doc. 17, pp. 590-591. See also the comment of G. W. Crawford, secretary of war, ibid., 233.
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El Dorado
him to take proper measures for the permanent occupation of Upper California as soon as he should receive official news of the ratification of the treaty of peace.8 Thus thrown upon his own judgment, he shaped his conduct by the broad principles of international law. Decisions in other cases had established the point that until changes could be made by competent authority, a ceded territory should retain its prior local laws, or should revert to them if they had been modified by the tempo- rary authority of a military commander.9 It was therefore announced that the existing laws would remain in force although greater freedom would be allowed in the matter of local elections.
It seems incomprehensible that definite instructions were not sent to Colonel Mason as soon as peace was declared, but no such official message was written until as late as October, 1848, when the Secretary of State and the Secretary of War, under circumstances that will be narrated hereafter, sent out letters which embodied the theory of the administration as to the status of the country. Secretary Buchanan then wrote :10
By the conclusion of the treaty of peace, the military government which was established over them [the people of California] under the laws of war ... has ceased to derive its authority from this source of power .... The termination of the war left an existing government, a government de facto, in full operation; and this will continue, with the presumed consent of the people, until Congress shall provide for them a territorial govern- ment. The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized com- munity could possibly desire to abrogate an existing government when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all law, and reduce them to the unhappy necessity of submitting to the dominion of the strongest.
8 Orders of March 15, 1848, Cong. Docs., Ser. No. 573, Doc. 17, p. 255.
9 See Browne, Debates, remarks of C. T. Botts, pp. 274-284, and Halleck 's statement of the situation, Appendix, p. xxiv; Julius Klein, The Making of the Treaty of Guadaloupe Hidalgo, 1905, pp. 36-46; Hunt. "Legal Status, " as cited, 398-408; Birkhimer, Military Government and Martial Law, 361-369; Hittell, California, II, 701.
10 Cong. Does., Ser. No. 573, Doe. 17, pp. 7-8. Repeated almost exactly by Secretary Marey to Colonel Mason (ibid., 258-259). See also infra, p. 90.
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It was further stated, by Secretary Marey, that it was the duty of the commander of the military foree to recognize the govern- ment de facto, and to lend the aid of the military power to protect the persons and the property of the inhabitants of the territory. They, on their part, were urged to live peaceably and quietly under the existing government, but long before these admonitions were received in California all thoughts of peace and quietness had been driven from men's minds.
The failure to establish a permanent form of eivil government immediately upon the final acquisition of the new territory was a greater trial to Colonel Mason than to the most querulous citizen under his charge. He realized more plainly than anyone else that the treaty of peace greatly weakened his authority as governor, required the discharge of the volunteer troops enlisted only for the duration of war, and left him in a position where he was responsible for maintaining order, but was deprived of the means of enforcing a single regulation.
The mining region was quite without any equipment for civil or military control. It lay along the western slope of the Sierra Nevada Mountains, and was separated from the original line of the missions by the hills of the Coast Range and the sun-scorehed plain of the central valley. Some grants of land had been made by the former government to adventurous colonists from abroad, notably to Captain John A. Sutter, who had been a commissioned officer, sometimes ealled an alcalde, under the old régime,11 and whose fort at New Helvetia had been an outpost of patriarchal eivilization. In February, 1848, John Sinclair was appointed alcalde "for and in the district of country on the Sacramento river, near New Helvetia."12 In March a large district in the
11 Bancroft, California, IV, 137, 226; History of Sacramento County, 1850, p. 58. On Dec. 20, 1847, Sutter estimated the white population east of the San Joaquin and Sacramento rivers as 218 men and 71 women; Indians, 22,362 (Archives, "Unbound Docs.,"' 306).
12 Cong. Docs., Ser. No. 573, Doc. 17, pp. 486-487. Sinclair was men- tioned as alcalde as early as Feb. 15, 1848, in Archives, "Unbound Does.," 8, 15, 405,
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Contra Costa and San Joaquin regions was cut off from the jurisdiction of San José,13 and Elam Brown was appointed its alcalde. These two appointments appear to represent the civil staff of the entire mining area.
The earliest news of the gold discovery was received doubt- fully, but about the twelfth of May Sam Brannan roused San Francisco to hysterical excitement as he passed through the streets waving aloft a bottle filled with dust, swinging his hat, and shouting: "Gold! Gold! Gold from the American River!" The town was quickly deserted. In June the California Star suspended publication, the school closed, workmen abandoned their employment, officials left their posts. Soldiers and sailors joined the general stampede. In Monterey the officers were with- out servants, and even Colonel Mason was forced to take his turn at cooking.14
The governor quickly realized that there would be need of new methods of enforcing order. On May 23, 1848, he asked Major J. R. Snyder, who was about to visit the mines, to draw up an outline of desirable regulations, but nothing resulted from the effort.15 In June and July Colonel Mason himself made a tour of the mining district, and reported his observations to Washington.16 Finding that erime of any kind was very infre- quent, and conscious of his inability to enforce a questionable authority, he did not try to establish there any general control. But he threatened to concentrate his forces in the field and to exclude unlicensed miners unless soldiers ceased to desert from
13 Shinn, Mining Camps, 96; Archives, "Unbound Does., " 8, 42.
14 See Bancroft, California, VI, 52-81; Fayette Robinson, California and Its Gold Regions, 1849, Appendix, p. 135. The disastrous consequences of the desertions of soldiers and civil authorities are noted in Cong. Does., Ser. No. 573, Doc. 17, pp. 603, 612, 613, 648, 650, 667, 677. Sutter's entire retinue deserted him, and his property was left at the mercy of dishonest miners (J. A. Sutter, Personal Reminiscences, 1876, pp. 195-196, MS in the Bancroft Library ).
15 Cong. Docs., Ser. No. 573, Doc. 17, pp. 555-556.
16 Cong. Docs., Ser. No. 573, Doc. 17, pp. 528-536.
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the army, and unless civilians made provision for their families before seeking the placers.17
On August 7, 1848, the same day on which he proclaimed the ratification of the treaty with Mexico, Mason directed John Sinclair, the "First Alcalde, Sacramento district," to call for an election of four subordinate alealdes to serve at the four most prominent places in his district, which included the whole country west and northwest of the district of Sonoma.18 I have found no documentary record that the election was held, nor that Sinclair exercised any jurisdiction over the more remote stretehes of his distriet, although later in the year Mason ex- peeted him to take charge of a murderer whose arrest was in prospect.19 That the governor attempted to inaugurate some more effective system of judicial control may be inferred from a letter dated at the "Upper Mines," September 3, 1848.20 in which L. W. Hastings accepted the "judgeship for the northern district" in order to establish law and government there, and to check the frequent robberies and murders. Later corre- spondence indicated that Mason abandoned such efforts in the expectation that news of territorial organization by Congress would be received before loeal improvements could be put in operation,21
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