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 8
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41 History of Sacramento County, 124-125; noted in Archives, "Un- bound Does., '' 44.
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Another story tells us that in the spring of 1849 two Span- iards on the Mokelumne quarreled over the ownership of a mule worth about $20, and availed themselves of the privileges of a jury trial. This resulted in fees amounting to $368, and a verdict that they should draw lots for the disputed animal. The contestants cheerfully divided the costs and settled their quarrel by drawing straws. 42 It is easy to understand why a pioneer should say :43
From the 7th of July, 1846 .... the Government was a perfect non- descript-part military and part civil, and part no government at all .... The laws were most variant and variously conceived, the civil law, the Pike County code, the New York code, the common law, maritime law, the law on the plains, military law, and the miners' law, were all jumbled up together, and the Courts were as unique as the government and the laws; they were Americo-Mexican, military-civil, with a good degree of the vigilante.
In spite of their shortcomings and their eeeentrieities, how- ever, the miners' laws and the miners' alealdes prevented abso- lute anarchy in the camps. In the fall of 1848 the military authorities had anticipated a rapid increase in erime, but a year later the reports were much more cheerful. General Riley was then governor, and when he visited the mining region he was agreeably surprised to learn that order was preserved through- out almost the entire distriet. In each little settlement the miners had eleeted loeal alealdes and constables, and sustained their official aets with loyalty and energy.44 A few months later, General Persifor F. Smith, commandant of the Pacific Division of the Army, wrote to the Adjutant General : 45
42 Carson, Early Recollections, 27-28.
43 Lawrence Archer, "Oration," in Society of California Pioneers, Twenty-second Anniversary, 1877, p. 12.
44 Cong. Docs., Ser. No. 573, Dec. 17, p. 787.
45 P. T. Tyson, Geology and Industrial Resources of California, 1851, p. 79. General Smith was sometimes called the governor of California, but he took pains to state that he was not in charge of civil affairs. See Hittell, California, II, 676, 712; Cong. Docs., Ser. No. 573, Doe. 17, pp. 727, 767.
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I doubt whether any part of the United States has presented a com- munity in which there has [sic] been so few erimes and even disorders com- mitted. The public records of any of our largest cities will present more of these in one day, than have taken place in the whole of California since my arrival. ... Many misrepresentations have been published on this point.
The best known and most enthusiastic contemporary account of conditions in California was written by Bayard Taylor. His letters to the New York Tribune have been the basis of many secondary accounts of mining life, and were the source of some of Shinn's important generalizations.46 Taylor spent some six weeks in the mines in the fall of 1849, and reported that all the larger and older camps had elected alcaldes and adopted regu- lations which were faithfully obeyed, while crime was checked by just and deliberate punishments.47 It is quite possible that the places he visited were conducted as he described, but his inspection was hurried and superficial, and comparison with other observers leads one to think that he attributed to the entire extent of the mining region a good order which he found pre- vailing in the more accessible localities through which he traveled.
In spite of the optimistic reports of Riley and Smith and Taylor, it is incontestable that violence reached an alarming degree during 1849. Popular tribunals such as the miners' courts had developed as an emergency resource for small pioneer
46 Eldorado, 1850. Taylor made some very palpable errors, such as speaking of the Mexican ayuntamiento as a person "who was commis- sioned, " etc., etc. (I, 183), estimating the thousands of gold seekers from foreign parts as speedily outnumbering the American population (I, 100), and describing the harbor at Monterey as equal to any in California (I, 138). His optimistic statements should therefore be received with caution (see Royce, California, pp. 303-304).
47 Eldorado, I, 67 et seq. Henry De Groot said the miner of 1849 was far less disorderly than he was currently portrayed ("Six Months in '49," Overland Monthly, XIV [1872], 316-329). E. G. Waite wrote: "In all my personal experience in mining camps from 1849 to 1854 there was not a case of bloodshed, robbery, theft, or actual violence" ("Pioneer Mining in California," Century, XLII [1891], 141). "For several years after the settlement of Nevada [City], in a society where little law had influence except that of moral restraint, but two homicides occurred" (H. B. Thomp- son, Directory of the City of Nevada and Grass Valley, 1861, p. 8).
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communities. They inevitably proved their inherent weakness and defects when called upon to control a population that in numbers and disposition required the restraints imposed by a highly developed social organization. It was not alone the avow- edly outlaw element that needed to be curbed; men whose former habits of life had been orderly and well regulated learned in California to consume liquor in enormous quantities, and to gamble for enormous stakes. Disappointed greed and drunken passion sped many a knife thrust and bullet, and the frenzy of a mad debaneh turned many a peaceable miner into an irrespon- sible enemy of mankind.
To attempt to gather and classify the accounts of California pioneers is like trying to classify the combinations of a kaleido- scope, for the components of the miners' society shifted and rearranged themselves and reflected the sunlight or eaught the shadow with every turn of fortune's hand. We read, as it were in parallel columns, of bags of gold dust that lay safe in unguarded tents, and of merchandise piled high in the open streets; then of robbery and murder that went unnoticed in a community where a man might drop from sight without causing a ripple of comment among his self-absorbed neighbors. We read of the "lex diggerorum" to which men bowed in the swift adjustment of the most valuable claims, and of the groups which elected and obeyed their alcaldes in spite of the temptations of selfish individualism. We find, on the other hand, that there were many who opposed even the simplest forms of social restraint, and seized every opportunity to display their predatory instincts; again we find that there were many more whose habits of self-control gave way under the excitement and hardships of their life and the wild dissipation that was their only relaxation after days of feverish toil. Men of this sort committed crimes, sometimes in cold-blooded deliberation, more often in momentary passion. But drinking and gambling, even robbery and murder,
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were the accidents of an unorganized social condition, and beneath the confusion lay the force of a popular consent to the will of the majority, and to the essential spirit of law, as a solid foundation might lie beneath the disordered elements of an unfinished structure.ªs
4^ This spirit was apparent to a critic of Bret Harte, who said: "Bret Harte's characters are amenable to no laws except the improvised laws of the camp; and the final arbiter is either the six-shooter or the rope of Judge Lynch. And yet underlying this apparent lawlessness there is that decp 'law-abidingness' which the late Grant Allen despised as being the 'Anglo-Saxon characteristic.' To my mind, indeed, there is nothing so new, fresh, and piquant in the fiction of my time as Bret Harte's pictures of the mixed race we call Anglo-Saxon finding itself right outside all the old sanctions, exercising nevertheless its own peculiar instinet for law-abidingness-of a kind" (Theodore Watts-Dunton, "Bret Harte," Athenaeum, May 24, 1902, p. 659).
CHAPTER V THE STRUGGLE FOR ORGANIZATION
The entire period of California history between 1848 and 1856 has sometimes been characterized as the era of the Struggle for Order. Writers have depicted the forces of law and of law- lessness as pitted against each other in open confliet, while a large element in the population was negligent of all social obligations, indifferent to all moral issues, and intent only upon the accumu- lation of wealth.
The significance of the years 1848 and 1849 may be mueh better expressed by calling them the era of the Struggle for Organization. In those years law was practically non-existent in mueh of the country, and the men who have been censured for neglecting the public welfare were actually deprived of the most elementary means through which their desires for order might find effective expression. Their response to the duties of citizen- ship under such unusual conditions should not be judged by their failure to regulate public morals, but rather by their demand for adequate laws, by their repeated efforts to formulate sueli laws, and by the final triumph of those efforts in the work of the constitutional convention of 1849. When the historian, the reminiscent pioneer, and the writer of western fiction say, as they do in varying phrases, "There was no law in the land," they suggest a situation in which men took advantage of a tempo- rary disorganization of justice to repudiate the usual bonds of community life. But the impression thmus created is superficial and it has been necessary to linger over primary sources of . history in order to show that the real menace to order was a law- lacking condition of society, rather than a law-defiant attitude on the part of the people.
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The spontaneous mass meeting of the mining camps had saved the country from absolute anarchy, but the mass meeting does not continue to be an efficient organ of government when the social group becomes very large, or loses its homogeneity of composition. Under such circumstances, as Ross pointed out. the ties of fellowship dissolve, and the "folk mass becomes a dangerous compound, ready to explode at a touch." The need for some sort of representative system was usually recog- nized very quickly in the organization of the American frontier. It was especially necessary in the communities of California, where the preservation of order required a definite executive force to make effective the resolutions adopted by the popular assemblies. Without such a force, each individual act of disci- pline depended upon popular initiative, and upon the momen- tary temper of the meeting or mob that was stirred to action. Even in the camps where alcaldes had been elected, the constant shifting of the population deprived them of any permanent constituency to uphold them in carrying out a rule that had become unpopular. No lasting authority could be delegated to them until the community, as a whole, should be knit together by a bond of representative government. In the absence of such a bond even the political dexterity of the American citizen was powerless to stabilize social conditions. The large majority of the hundred thousand men in California desired that order should be established and that crime should be checked, but the will of this constructive majority could not be expressed in any organic law that would defend society from a minority that desired riot and license. On one day the peaceable miner might be a member of a congenial group, where life and property were protected by common consent. On the next, that group
1 Ross, Social ('ontrol, 52. See also A. B. Hart, in Cyclopedia of Ameri- can Government, 1914, III, 543; Cleveland, Organized Democracy, 37, 45; Roosevelt, Winning of the West, I, 231-233; J. E. Young, "The Law as an Expression of Community Ideals," Yale Law Journal. XXVII (1917). 1-33.
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might be invaded by large numbers of gamblers and rowdies, who would defy every restraint of public opinion, and would yield only to the sheer force of physical constraint.
The continuance of this condition long after the increase in population demanded full civil equipment was not due to a law- less spirit inherent in the people, but to the situation at Washing- ton. There sectional issues were asserting themselves with such vehemence that it was impossible to divorce the problem of terri- torial organization from the question of slavery, or to unite the hostile faetions in establishing government in California and New Mexico.
While matters were in this condition Senator Thomas H. Benton, father-in-law of Colonel John C. Fremont, assumed the rôle of advisor to the Californians, and made publie a letter in which he urged them to meet in convention, adopt a cheap and simple government, and take care of themselves until Congress could provide for them.2 llis message was not published in California until January, 1849, when it had a certain effect in stimulating the people towards the course he advocated, but in the interim it caused grave uneasiness to President Polk, who feared that it would incite the settlers on the Pacific Coast to form an independent goverment, under the leadership of Colonel Fremont.3 To counteract the influence of Benton's letter the Secretary of State sent a communication to the people of California by the hands of Mr. William Van Voorhies, newly appointed postal agent, and in it he made the first official announcement of the status of the de facto government as it has been explained in an earlier chapter.+ Robert J. Walker, the
2 Printed in the New York Herald, 1848. Sept. 26, reprinted iu Niles Register, LXXIV, 1848, Oct. 18, p. 244.
3 Benton had been "malignantly hostile" to Polk since the outcome + See supra, p. 57. The effect of Benton's letter is discussed infra, p. 96. indignation. See J. K. Polk, Diary, 1910, IV, 136-137, 140-143, 329-330. of Fremont's court martial, and this letter aroused the President's intense
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secretary of the treasury, issued a circular at the same time, which announced that by the treaty with Mexico the Constitution of the United States was extended over California, and which gave instructions as to the collection of customs duties, but ignored the question of local government.5 Secretary Buchanan urged the residents of California to await Congressional action with patience, but President Polk realized that they could not be expected to wait indefinitely, and at the opening of Congress in December, 1848, he made another appeal for immediate terri- torial organization.6 He pointed out that the entire question of the extension of slavery might be left to local determination, as it was not imperative for Congress to legislate on the subject, and in any case the ultimate decision would rest with the citi- zens of the acquired regions when they finally adopted state constitutions.
On the same day Senator Stephen A. Douglas announced that he should presently introduce a measure bearing on the subject of organization. On December 11 he presented a bill to author- ize the immediate formation of a single state out of all the territory obtained from Mexico. As the area was far too large to form one commonwealth, Douglas later amended his bill to permit the people west of the Sierra Nevada Mountains to organ- ize a state government at once, and the people of New Mexico to take the same action as soon as it should be justified by the increase of population.7 The amendment empowered the acting governor of California to set the date for a constitutional conven- tion, to call for an election of delegates, and to designate electoral districts ; furthermore, when the state constitution and state gov- ernment should have been established, and the president of the
5 Cong. Docs., Ser. No. 537, Doc. 1, p. 45. See also Magoon, Reports on the Law of Civil Government, 166-169.
6 Richardson, Messages, IV, 639-642.
7 Cong. Globe, 30 Cong., 2 Sess., 1, 21, 190-198, 381; Allen Johnson, Stephen A. Douglas, 1908, pp. 133-142; Polk, Diary, IV, 228-237; 254-257.
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United States notified of the fact, the aeting governor was directed to issue a proclamation declaring "the said State of California to be one of the States of this Union, upon an equal footing with the original States in all respects whatever." This bill was designed to hasten the local decision as to the prohi- bition of slavery, and although it was finally lost through post- ponements its tenor should be understood, because it apparently had an influence on subsequent events.8 When Congress adjourned, March 3, 1849. it had done nothing for the relief of California, except to extend over it the revenue laws of the United States.9
Throughout the dissensions of this session President Polk often recorded in his diary his apprehension lest California might be lost to the Union by the formation of a separate govern- ment. He felt that such an outcome might not be unwelcome to the coming Whig administration, as a relief from the embar- rassments of the slavery confliet,10 and on the very day of the inauguration of Zachary Taylor, Polk's apprehensions were further excited when the new President expressed the opinion that both California and Oregon were too distant to become members of the Union, and that it would be better for them to be permanently independent.11
In less than a month President Taylor changed his point of view. Every despatch from the Coast confirmed the reports of the richness of the gold mines, enhanced the value of the new territory in the publie estimation, and emphasized the need of
8 See infra, p. 103.
9 U. S., Statutes at Large, IX, 400. See also Hittell, California, II, 705-706; Polk, Diary, IV, 364-370.
10 Polk, Diary, IV, 231-233, 293-298. Eleven members of the House of Representatives voted to returu all the territory obtained by the treaty with Mexico except the region about San Francisco Bay (Cong. Globe, 30 Cong., 2 Sess., 557-559).
11 Polk, Diary, IV, 375-376. Taylor had disapproved of the Mexican War, see his Letters from the Battle-Fields, 1908, pp. 28, 37, 39. 75, 117.
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providing an efficient government without waiting for another session of Congress. Early in April Thomas Butler King was appointed a special agent to the naval and military commanders in California, and was given instructions that distinctly advised the creation of civil organization by popular initiative.12 King had participated as a representative from Georgia in the last session of the House, and could inform the local authorities of the drift of opinion in Washington, but he did not reach San Francisco until June, by which time a movement for self-organ- ization had already met with general endorsement.
The problems of California were not, by any means, limited to the preservation of order. There was constant difficulty in financing the civil department of the government, in enforcing revenue laws, and in regulating commercial affairs, but such questions do not require consideration here.13
It must not be thought that during the discussions that dis- tracted Washington in the winter of 1848 to 1849, the builders of the future commonwealth of California were indifferent or tolerant towards the disorder and confusion which reigned about them. On the contrary, they were fully and unhappily conscious of it, and resented their situation with outspoken bitterness. The papers attributed the rapid increase of crime to the fact that society was "held together without other law than had suggested itself in cases of emergency. "14 They pointed out the grave dangers that would attend the continuance of lynch law, which
12 Cong. Docs., Ser. No. 573, Doc. 17, pp. 9-11. King was later ap- pointed collector of the port of San Francisco. He was disliked in Califor- nia, but his Report on California, 1850, was a valuable document (Cong. Docs., Ser. No. 577, Doc. 59; reprinted under the title, California: the Wonder of the Age, 1850).
13 These subjects are discussed at length by Bancroft and Hittell, and more briefly by Thomas, Military Government, 218-228; and by W. C. Fankhauser, Financial History of California, 1913, pp. 109-116. An excel- lent summary was made in the Memorial to Congress (Browne, Debates, Appendix, pp. xiv-xix), and in King's report, California, 3-4.
14 Placer Times, 1849, May 5 21.
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was "only worthy of barbarians," and was as likely to turn its destroying hands against the good as against the bad.15
Colonel Mason also viewed the situation with profound anxiety. As early as November 24, 1848, he had written to Washington :16 "The war being over, the soldiers nearly all deserted, and having now been from the States two years, I respectfully request to be ordered home." There was a grim acknowledgment of discouragement in the terse request, but the commandant did not abandon California to unehecked disorder even after he had asked to be relieved from his onerous position. On the evening of the very day on which he applied for a change of service he had an interview with E. C. Kemble, editor of the California Star and Californian," and diseussed with him the interests of the community. No record of their conference seems to have been preserved, but its tenor can be inferred from the following memorandum of a letter in the Archives of California, copied for the Baneroft collection :15
1848 Nov. 25 Mont [erey ] Govr Mason to E. C. Kemble, on organizing Govt for Cal. (a private letter )
It appears I did not convey to you my exact meaning in the con- versation I had the pleasure to have with you last evening; what I wished to convey was this, that if on the receipt of the intelligence that Congress had adjournd last summer without organizing a terri- torial govt for Cala, that then the people should organize a temporary govt for themselves; that this intelligence (the adjournt of Congress) it was expected would be received by the St. Mary's now due aud daily expected.
Although this letter is not ordinarily cited as a document of particular signifieance. it had a prompt and important influenee
15 Alta, 1849. Jan. 4 31.
16 Cong. Does., Ser. No. 573, Doc. 17, p. 649.
17 The Monterey Californian had been transferred to San Francisco in May, 1847. It was merged with the California Star in November, 1845, aud Kemble was the editor. At the opening of the new year the old papers were suecreded by the Alta California, owned by Kemble, Edward Gilbert, and G. C. Hubbard. The paper was independent in polities, and opposed to the "high-handed measures" of the military authorities (Kemble in Sacramento Union. 1858. Dee. 25 34 ).
15 Archives, "Unbound Does., " 140-141. It was rumored that Mason and Commodore Jones had conferred on the subject of civil organization (Californian, 1848, Oct. 21 11).
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on publie events, since the California Star and Californian at onee commenced a vigorous campaign for the formation of a provisional government. In the issue of December 2 the paper reported a particularly shoeking murder in the mining regions, and under the caption, "Shall we have a Civil Government ?" the editor urged the immediate organization of some form of social order that would restrain crime. He asserted that :
Our Military and Naval commandants recognize in the people a right- nay, enjoin it as a duty, to provide for themselves a government, recom- mending delay only until it be ascertained whether or not the Congress of the United States, at its last session, prodneed the long-awaited organ- ization.
In the light of the letter from the governor, the reference to the military authorities becomes almost an official endorsement of the plan, but as Mason serupulously refrained from any publie utterance on the subject, his attitude towards organization has generally been interpreted as one of non-interferenee rather than of initiative.19
In quick response to the eall for action a meeting was held in San José on December 11, and a convention for organization was suggested for January, 1849. The plan was ratified in San Franeiseo, December 21 and 22, with the proviso that the date should be advanced to Mareh 5. Other towns followed San Francisco's example, and when the proposed interval proved too brief to permit adequate representation from the South, it was again extended to May 6.20 Thus the movement for organization was well in progress before the letter of Senator Benton that had so agitated President Polk was published in the Alta Cali- fornia of January 11, 1849. The next issue of the paper, that
19 See Cardinal Goodwin, Establishment of State Government in Califor- nia, 1914, p. 71; Bancroft, California, VI, 266-267.
20 Delegates were elected at Los Angeles, Monterey, San Jose, San Fran- cisco, Sacramento, Benicia, and Sonoma. See Bancroft, California, VI. 266-271; Browne, Debates, Appendix, pp. xvi-xvii; Burnett, Recollections. 294-318.
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