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YALE
UNIVERSITY LIBRARY

LEGAL STATUS OF CALIFORNIA, 1846-49.
The United States in its federal capacity is required to
guarantee to every state in the union a republican form of
government. This implies the establishment of some gov
ernment within each state, and hence a constitutional con
vention. New states to be formed out of territory of the
United States, organized under its authority or acquired
in an organized condition from foreign states, call for a second
class of conventions to frame constitutions for such states.
Such conventions are regularly assembled in pursuance of
enabling acts of Congress. But there is another limited
variety of conventions including such as have been con
vened by the inhabitants, or the temporary governments
of organized territories, irregularly, without enabling acts
of Congress. Among this last, or irregular class, Dr.
Jameson mentions, somewhat inaccurately, the California
convention of 1849.* Certainly the California convention
was irregular; but it is well known that previous to the
convention, California was not an organized territory of the
United States; also that the convention did not meet at the
free instance of the inhabitants. Not only so, but it will
also plainly appear as the discussion proceeds, that the
conditions under which the first California convention was
held were wholly without exact precedent, f
The actual conquest of California by Americans was
signalized by the hoisting of the Bear Flag at Sonoma, on
¦June 15, 1846, by a few men under command of Captain
Fremont. This rude but long since famous flag bore under
the emblems of the lone star and grizzly bear the legend,
' ' California Republic. ' ' Whatever may have been Fremont' s
real motives in this apparently almost wanton revolt, it is
certain that his followers had little or no intention of erecting
?Jameson, " The Constitutional Convention," p. 178.
fSee Gwin's exposition, Browne's " Debates," p. 393.
[387]

64 Annals op the American Academy.
a permanent republic on the Pacific coast, but that for
the most part they were patriotic Americans. The anomaly
known as the California Republic was, as an independent
government, insignificant, and extremely short-lived.
On July 7, Commodore Sloat, who had arrived a few days
earlier, formally took possession of Monterey, the early
capital of California. As soon as the Stars and Stripes
floated over the land, the Bear Flag party abandoned the
purpose of an independent revolution and the Bear Flag
itself was superseded by our national ensign. Commodore
Stockton arrived July 15, and succeeded Sloat at the desire
and request of the latter, as commander-in-chief of all forces
and operations on land, assuming active command shortly
after his arrival. Sloat had lacked sympathy with the
American revolutionists, and his conservative policy forbade
his utilizing the forces of Fremont; but Stockton, having
learned of the state of war while in Mexico, immediately
adopted an aggressive policy, and decided to extend the
occupation to the south territory. He accordingly organ
ized the forces of Fremont as the California Battalion of
Mounted Riflemen, which proved instrumental in complet
ing the conquest.* Thus, then, while war was in progress
between the United States and Mexico, the Mexican province
of California was taken military possession of by United
States forces.
On assuming command, Commodore Stockton had issued
an undignified and impolitic address to the people, which in
its tone was an offensive declaration of martial law.f This
address neither embodied the views of Commodore Sloat nor'
conformed with the governmental policy at Washington. J
* The conquest was easily accomplished, without a single important battle.
Bidwell in Century, Vol. xli, p. 523.
t House Executive Documents, First Session, Thirty-first Congress, Vol. i, pp.
3i-33 lAs witness its closing sentence: "As soon, therefore, as the officers of the civil
law return to their respective duties, under a regularly organized government,
and give security to life, liberty, and prosperity alike to all, the forces will be with
drawn, and the people left to manage their own affairs in their own way "
[388]

Legal Status of California, 1846-49. 65
It was the fixed purpose of the administration at Washing
ton to retain this country and make of it a permanent part
of our national territory. Stockton, it would appear from
his address, did not care to make California a territory of
the United States; nor did he appear to desire any of its
lands for his government.* His address scarcely contained
a hint that it was to be held until a treaty should be con
cluded between the United States and Mexico. His alleged
motive for completing the conquest was ' 'to bestow peace and
good order on the country:" this, however, was obviously
inadequate and secondary.
California was now conquered territory. As such it could
have no determinate status on a peace basis while war with
Mexico continued; nor was it yet a part of the United States
territory, except as a temporary military possession. The
Department of California was conquered territory subject to
temporary military control. Now conquered territory,
according to a well-defined principle of international law,
regularly retains its prior municipal institutions, the con
queror being authorized to ordain needful temporary laws
and regulations.! The laws of Mexico which had hitherto
obtained in California should have been continued by the
military rulers of the country until those rulers had put in
operation some other provisional government;! and indeed
this principle was distinctly proclaimed by Commodore
?Bancroft, " History of California," Vol. v, p. 258.
fThis is the view, in the main, that I conceive President Polk, not with strict
consistency, to have held. See his Message to Congress, December 8, 1846. But
in Congress widely divergent views were adhered to. Mr. Douglas held that the
province belonged to the United States by conquest, and that no proclamation
was needed to make it ours. Mr. Rhett, at the other extreme, urged that the con
quered territory rested on the power of the sword alone, whether the government
was civil or military in character. Mr. Bayly declared the President to be a
usurper in establishing or authorizing civil government in the conquered terri
tory. Mr. Seddon approximated the President's position, holding it to be the
right and duty of the military commanders to establish provisional civil govern
ment, and maintaining the power of annexation and incorporation to be the pre
rogative of the conquering nation, to be exercised, however, only by Congress. —
Congressional Globe, 1846-47, pp. 14, 15, 23-26, 75.
{ California Star, June 19, 1847. [389]

66 Annals of the American Academy.
Stockton who, on August 17, 1846, issued from Los Angeles
a proclamation to the people in which he said, in part:
"The Territory of California now belongs to the United States, and
will be governed as soon as circumstances may permit, by officers and
laws similar to those by which the other territories of the United
States are regulated and protected. But until the Governor, the
Secretary, and council are appointed, and the various civil depart
ments of the government are arranged, military laws will prevail, and
the Commander-in-Chief will be the Governor and protector of the
territory. In the meantime the people will be permitted, and are
now requested to meet in their several towns and departments, at such
time and place as they may see fit to elect civil officers and fill the
places of those who decline to continue in office; and to administer
the laws according to the former usages of the territory. In all cases
where people fail to elect, the Commander-in-Chief will make the
appointments himself. " *
This proclamation put in force at the same time two kinds
of law, the one civil, the other militar3\ Many deemed
them irreconcilable: but the temporary existence of military
rule is plainly not inconsistent with the perpetuation of the
civil institutions and regular administration of justice of the
conquered province. The military commander is clothed
with certain civil functions; the civil laws and their officers
receive their sanction from the military domination. f But
while the civil law of Mexico was thus proclaimed, and the
President assumed that a temporary government was in
operation, as a matter of fact Mexican law never was, and
from the nature of the case could not be, put in full operation
* California Star, January 9, 1847.
t The Star, January 16, 1847, gave a lucid exposition of the reconciliation of laws.
It said, in part : " Military law does not affect the citizens in their private relations
with each other . . . it affects them only in their relations to their government.
. . . The courts of the country are never brought under the influence of martial
law, but are only affected by it in their character of private individuals and not as
courts; and unless their proceedings are entirely superseded, they must be
governed by the civil or municipal laws alone." The question of the co-existence
of civil government and military rule was being discussed almost simultaneously
in Congress. Mr. Douglas had said: " Without some form of civil government, all
must be anarchy, and riot." Mr. Seddon had ably argued the continuance of the
civil institutions and regular administration of justice of the conquered province.
— Congressional Globe, 1846-47, pp. 15, 24.
[390]

Legal Status of California, 1846-49. 67
after the American conquest, and the military commander
had not established any satisfactory civil government in its
stead.* Almost immediately after the conquest, the Ameri
can inhabitants began to complain, not only of the
inadequacy and want of uniformity in the Mexican laws
theoretically in force, but also of the actual absence of any
rational system of law. This just complaint was destined to
grow louder and more bitter from the moment of the con
quest till the eve of the Constitutional Convention.
There was much uncertainty as to what laws were in force
at a given moment. As early as January 9, 1847, the
California Star reflects the not uncommon feeling of dissat
isfied uncertainty. The alcalde was the sole judicial officer
of California at this period. Among native Californians the
functions of the alcalde had been perpetuated by tradition.
One such officer retained jurisdiction at each centre of
population. This jurisdiction had come to be exceedingly
vague, variable, and uncertain in scope. The much-
talked-of Mexican system of law, theoretically continued
in full operation, was in reality narrowed down to a
number of local alcaldes, the most powerful one being
resident at Monterey, but each having an indeterminate
status. Inadequate as was this system of district judges
under later Mexican rule, it was vastly more unsatisfactory
as well as positively distasteful to progressive Americans:
" hard headed American pioneers demanded a better system
of government than the Mexican law gave them. ' ' f
Since Americans began to succeed Mexicans, or Spaniards,
as alcaldes, almost immediately following the conquest, the
growth of American law was inevitably rapid. While theo
retically the Mexican civil law continued in force, in fact
* California Star, June 19, 1847, also Alia California, June 14, 1849, and earlier
dates. t Fitch, in the Century, Vol. xl, p. 779. On the alcalde, see Royce, " California,"
pp. 200 et seq. ; Hittell, " History of California," Vol. ii, pp. 656 et seq. ; Moses,
"Municipal Government in San Francisco," pp. 95 et seq.; newspapers of the
period, etc. [39l]

68 Annals of the American Academy.
the Americans, more especially the newly appointed alcaldes,
had brought their own notions of common law principles
and forms. At once a process of amalgamation was com
menced, and very naturally the American law — not very
accurately represented, to be sure — rapidly supplanted the
obsolescent customs and procedure. Although there seems
to have been no early official decree to warrant it, the trial
by jury * was soon in common practice, fairly well defined
and understood, and sanctioned by the governor, f Like
wise it was recognized that the English language would
inevitably supplant the Spanish. J
Commodore Stockton had prepared a plan for civil govern
ment, and had drafted a constitution; but this was never put
in full operation. His purpose was thwarted by a serious
revolt of the natives, to put down which involved consider
able time and fighting and some bloodshed. Before the
authorities were again in a position to undertake better civil
organization, their plans were interfered with by several
important and unexpected events. General Kearny entered
California in November, 1846, and shortly afterward
followed the unfortunate controversy as to the relative posi
tions of the two officers. §
Who possessed the rightful authority to govern the
conquered territory ? The actual status of the country at
the time of Kearny's arrival had not been, and could not be
anticipated by Kearny's instructions. Weakened and
humbled at San Pascual, his consciously delicate situation
doubtless had much influence in deciding him to refrain
* Nothing like the trial by jury was known to the Mexican system ; but Walter
Colton, the first American alcalde of Monterey, summoned at the early date of
September 4, 1846, the first jury in California, he having been in office scarcely a
month. Hittell, op. cil. Vol. ii, p. 663 ; Bancroft, op. cit. Vol. vi, p. 258.
t Mason's general order, issued December 29, 1847, directed trials byjuryinall
cases before the alcaldes' courts where the amount involved exceeded one hundred
dollars. House Executive Documents, First Session, Thirty-first Congress, Vol.
xvii, p. 452 ; Hittell, op. cit. Vol. ii, p. 664.
\ Californian, October 10, 1846.
§ For details and evidence on both sides of this controversy, consult Bancroft,
op. cit. Vol. vi, Cap, xvi, especially foot-notes. [392]

Legal Status of California, 1846-49. 69
from asserting his claim to the chief command at that time.
Stockton even states that he proffered Kearny the chief
command, and that the latter declined it. Even assuming
as established that Kearny originally had the right to com
mand, it is easy to understand how, under the peculiar cir
cumstances, Stockton might come to regard himself as
possessing permanent precedence. So, when a little later
Kearny asserted his authority, Stockton firmly refused to
recognize it. The controversy deepened; Kearny, having an
insufficient command to enforce his claims, decided to await
further instructions from Washington; it is certain that
Stockton was generally recognized by the people as military
commander and territorial governor until the date of his
departure. On January 14, 1847, he tendered Colonel
Fremont his commission as governor of the territory. For
a term of perhaps fifty days Fremont, having acted in direct
disobedience to Kearny's orders, was quite generally recog
nized as governor; during these days Kearny's claims were
of course not relinquished. Instructions came in February
positively directing that the senior officer of the land forces
(Kearny) should be civil governor. Then followed the
Fremont-Kearny controversy the upshot of which was the
court-martial of Fremont, his conviction, and subsequent
remission of punishment.
On March 1 General Kearny, jointly with Commodore
Shubrick, then commander of the naval forces as Stockton's
successor, issued a circular in which he formally assumed
the governorship, and designated Monterey as the capital.*
This proclamation seems to have had the immediate effect
* " California Message and Correspondence," pp. 288-89. I quote a portion to show
the status as he conceived it, and the good intentions looking to an organized
government: " The President of the United States having instructed the under
signed to take charge of the civil government of California, he enters upon his
duties with an ardent desire to promote, as far as he is able, the interests of the
country and the welfare of its inhabitants. . . It is the wish and design of the
United States to provide tor California with the least possible delay, a free govern
ment similar to those in her other territories; and the people will soon be called
upon to exercise their rights as freemen, in electing their own representatives to
make such laws as may be deemed best for their interests and welfare."
[393]

70 Annals of the American Academy.
of encouraging the Americans to look for the peace and
tranquillity which should follow upon the establishment of
the civil government expected.* But the civil government,
now so long anticipated, was not yet forthcoming; affairs
continued in their extremely uncertain and almost chaotic
state. Honest seekers after laws were unable to find them:
the desideratum of exact statutes was unattainable to those
common-sense pioneers. An interesting editorial, on " The
Laws in Force," in the Star of March 27 says, in part:
" Some contend that there are really no laws in force here, but the
divine law and the law of nature, while others are of the opinion that
there are laws in force here if they could only be found. . . Both
sides, however, seem to agree that the ' former usages ' have been in
force. . . We have not been able to discover any traces of written
law particularly applicable to this territory except the Bandos of the
Alcaldes which could not have been intended to apply to any except
those within their jurisdiction. We have frequently heard it stated
that there are general written laws of the people of the whole terri
tory, but we have not as yet been able to discover their ' whereabouts. '
. . . It seems to us that the continuance of the former laws in
force, when it is impossible to produce them in any court in the
country, or for the people to ascertain what they are, will be produc
tive of confusion and difficulty."
Civil government to the non-Spanish reading Americans
in California at this period was obviously entirely wanting
as an objective reality. The growing dissatisfaction did not
pass unexpressed; ominous murmurings began to be heard,
and the alleged right of self-government found frequent
utterance, f
* See editorial in Californian, March 13, 1847.
t As early as August, 1846, the claim of the right of self-government began to be
asserted. In the first number of the Californian is an editorial on the " Prospects
of California," in which the editors affirm : " No impediment now exists to the
establishment of a colonial government in California, all patriotic citizens should
unite at once for this purpose." In the Star (April 17, 1847) a correspondent
declares: "The people themselves, independently of Mexico, and with the consent
of the officers of the United States now in command, have perfect right to enact
laws for their own government."
While the early American settlers were dilating upon their wrongs and clamor
ing for their supposed rights, it scarcely occurred to them that on technical
grounds it might be urged that they themselves were aliens to the United
[394] *

Legal Status of California, 1846-49. 71
On May 31, 1847, General Kearny left Monterey on his
return to the United States, being succeeded in military and
civil command by Colonel R. B. Mason, who was thus
military commander with full power to establish temporary
civil government. A single sentence from Secretary Marcy's
letter of instructions -will serve to indicate his position as
contemplated by the administration:
"Under the law of nations the power conquering a territory or
country has a right to establish a civil government within the same,
as a means of securing the conquest, and with a view to protecting
the persons and property of the people, and it is not intended to
limit you in the full exercise of this authority."*
Pending the establishment of a temporary civil govern
ment, the territory was plainly under military rule, and it is
an unmistakable inference from his correspondence that
Mason considered the supreme power vested in himself as
senior military officer, f He heard the clamors for better
organization, he recognized the needs of the American
settlers as well as the disaffection of the Californians; but he
felt the strictures of his own belligerent authority, and
assumed, perhaps wisely, a conservative attitude. He ex
pected within a very short time to ' ' have the good tidings
of peace," which should bring the certainty that California
would forever belong to the United States. X While proclaim
ing the continued existence of former institutions and usages,
as his predecessor had done, he virtually acknowledged his
ignorance of the most important of these institutions^ and
States in conquered territory. So far from considering themselves a conquered
people, they took to themselves, in large measure, the credit of being the real
conquerors,— for had they not welcomed the American forces, and rendered their
commanders invaluable assistance ? While they had left the United States, they
yet accounted themselves perfectly loyal Americans, and rationally viewed, they
were right. The highly strained and technical view that they were military
captives (See Royce, "California," p. 200) hardly merits more than a mere men
tion. Manifest destiny had decreed California to become a part of our union.
*" California Message and Correspondence," pp. 244-45.
•f Ibid., pp. 317-18, 321.
X Ibid., pp. 318-ig.
glbid,, pp. 317, 322; California Star, April 8, 1848, correspondence of "Pacific,"
[395]

72 Annals of the American Academy.
so that quasi-patriarchal officer, known as alcalde, was con
tinued in the exercise of increasingly elastic and indefinite
powers. But notwithstanding the fact that Colonel Mason faithfully
studied the situation, it became more and more evident that
while the war with Mexico should continue, no satisfactory
organization on the old Mexican basis could be reached. No
action in Congress was now longer reasonably to be expected ;
Mason, as military ruler, maintained a strictly conservative
policy and hoped for tidings of peace.* Meanwhile, he set
about discovering and formulating the "principal features of
Mexican law applicable to the country at the time of the
conquest. ' ' A few da}^s before the news of peace reached
him, he had ready for publication a code of laws ' ' for the
better government of California." This code, a volume of
140 pages, is said to have been printed in the Fnglish and
Spanish languages; but on receipt of tidings of peace, Gov
ernor Mason withheld its publication, and so the much talked
of, but ever invisible, "former laws and usages," of Mexico,
theoretically in force in California, were destined to remain
undiscovered to the eager Americans, nor was any attempt
ever made to enforce the laws thus codified and thus with
held from the people, f
The territory of California was, then, under strict military
rule during that period of Colonel Mason's governorship
ending with the tidings of peace with Mexico, received
August 6, 1848. Under the military rule the American
settlers grew exceedingly restive; their murmuring became
ominous growling and bitter complaint. The newspapers of
the day reflect the general discontent. J The very absence
of fixed, well-defined and generally understood law evoked
*The Californian, May 3, 1847, says editorially: "We have been credibly
informed that Governor Mason has relinquished the project of a civil organization
as he is in daily expectation of a communication from Washington
probably appointing a governor and furnishing a pattern-code of laws."
t Californian, August 14, 1848; Alia California, June 4, 1849.
X See the California Star, June 26, Californian, June 5, 12, etc.
[396]

Legal Status of California, 1846-49. 73
the loudest complaints. As the months passed, as immigra
tion increased, as the country became gradually developed —
all without a uniform system of law and with a government
which no one understood, — the Americans conceived their
already grievous wrongs greatly aggravated; hence the
situation, already long unsatisfactory, was fast becoming
critical.* The more radical of the settlers began vigorously
to denounce the early officers of the conquest and violently
to assail the military government, and under the highly
disturbed and half-chaotic condition of affairs there was
incitement toward the movement of popular self-govern
ment, f
The discovery of gold early in 1848 was an event not
calculated to mitigate the gravity of the situation. Some
sort of law was made absolutely imperative by the great
influx of gold hunters from all nations. The discovery
gave an enormous impetus to the movement toward popular
organization, especially state organization, and proved to
Congress the futility of dallying longer with the question.
We have now followed the main current of political
events in the province of California from the American
conquest to the ratification of the treaty of peace between
the United States and Mexico. The California Republic,
proclaimed by Fremont, was nominal, short-lived, and, as a
separate government, insignificant. The succeeding govern
ors from Sloat to Mason held office by virtue of military, or
naval rank. While the administrations of these rulers
varied in efficiency, while their instructions usually allowed
wide discretionary powers and were not always consistent,
and while local conditions were constantly and materially
changing, there was always military domination, under
forms varying from merely nominal authority to strict
martial law, up to the moment the treaty was ratified.
?Seethe contemporaneous journals, especially "Pacific's" correspondence in
the Star, April 8, 1848, and Californian, February 2, 1848.
t See controversy between "Pacific" and "Sober Second Thought" in the
Californian, January-February, 1848. [397]

74 Annals of the American Academy.
Under this dominion, and deriving its sanction from it, was
the effete, unsuited and increasingly unsatisfactory civil
government, previously existent in the province, and now
imperfectly perpetuated. Although the later military gov
ernors especially were given full power to establish a suit
able temporary government, no such government was ever
put in operation.
The Treaty of Guadalupe Hidalgo was concluded on
February 2, 1848, and duly ratified at Querdtaro on May
30. By its terms the territory of California was ceded to
the United States, of which it became completely a part.
News of the treaty reached California on August 6, and it
was announced on the following day in a proclamation by
Governor Mason. Of course there could be no apparent
change in the government of the territory until after August
6 ; but technically from the moment of the ratification of the
treaty the military rule was ended, and hence ceased to
have obligatory authority. California now entered her most
critical period, so often and so justly characterized as the
* ' No-Government Period. " * In his proclamation announc
ing the treaty Mason takes an extremely hopeful view of the
situation, and believes that "instead of revolutions and
insurrections there will be internal tranquillity; instead of
a fickle and vacillating policy, there will be a firm and stable
government, administering justice with impartiality, and
punishing crime with the strong arm of power, "f He is fully
convinced that Congress will soon confer upon the people
the "constitutional rights of citizens of the United States,"
that a regular territorial government will be an accomplished
fact, and
" There is every reason to believe that Congress has already passed
the act, and that a civil government is now on its way to this country,
?Bayard Taylor, "Eldorado" p. 146. Mr. Fitch asserts: "There was abso
lutely no precedent for the cession of the territory, and the neglect of Congress
to provide territorial officers left California in the unique position of a land with
out a government."— Century, Vol. xl, p. 782; see Semple's statement in Conven
tion, Browne's "Debates," p. 23.
fin the Californian, September 2, 1848,
[398]

Legal Status of California, 1846-49. 75
to replace that which has been organized under the rights of
conquest." Unfortunately the civil government was not so near at
hand. California was destined to continue through many
trying months practically without any organized form of
government. The great migrations to the land of gold had begun, for
California had become the "focus of the world's attention,"
and was " to be morally and socially tried as no other Ameri
can community ever has been tried."* Mason continued as
de facto head of the quasi-civil government under military
rule, in daily expectation of instructions from Washington.
He admitted that the territory was without civil govern
ment, and yet, keenly awake to the conditions as they then
existed, he suffered technicalities to give way to practical
common sense, judicially applied. f
The first session of the Thirtieth Congress adjourned
August 14, leaving California in an anomalous condition.
This fact was fully recognized by the President, who an
nounced, through Secretary Buchanan, the existence of a
de facto government, justifying it by the "great law of
necessity."! "The termination of the war," wrote the
secretary, "left an existing government de facto, in full
operation, and this will continue, with the presumed consent
of the people, until Congress shall provide for them a terri
torial government." In November, before it was known
that Congress had adjourned without providing for its govern
ment, Commodore Jones arrived and held a conference with
Acting-Governor Mason. Both were impressed with the
necessity of immediate action, and they agreed that in
default of the arrival of the sloop St. Mary's with the long-
expected territorial government, the people should be en
couraged to appoint delegates who should ' ' frame laws and
?Royce, "California," pp. 221-22, see Hittell, op. cit., Vol. ii, p. 675.
f " California Message and Correspondence," p. 497.
X See Buchanan's letter, " California Message and Correspondence," pp. 6-9 : it
bears the date of October 9, 1848. [399]

76 Annals of the American Academy.
make other necessary arrangements for a provisional govern
ment of California."*
The arrival of the St. Mary's with the not altogether
unanticipated news of congressional failure to provide
settled the question of territorial government during 1848.
Secretary Buchanan, in his open letter to the people, ad
vised them to ' ' live peaceably and quietly under the exist
ing government;" but to those conversant with the character
of that de facto government and the rapidly shifting condi
tions — and to none more certainly than to Colonel Mason —
it was perfectly obvious that to comply with Buchanan's
request was daily becoming more difficult, and fast approach
ing the impossible. Even before the letter arrived, the
people had begun to act upon their convictions. The
"uncertain, amphibious character "f of the ruler and his
strict adherence to a conservative policy, the vast influx of
an extremely heterogeneous population, the daily augmenta
tion of the criminal class and increase of depredations upon
life and property, and the impotence of the half-Mexican,
half- American judicial system are among the causes which
appealed to all good citizens to be active in the organization
of some suitable government with the least possible delay.
The first preparatory movement of the kind was an enthus
iastic meeting of the citizens of Pueblo de San Jose. J Provis
ional government meetings, after the first of December, were
frequent in San Francisco, San Jose and other leading towns
of the territory. The sentiment in favor of a popular pro
visional government seems to have been practically unani
mous among the thinking people. Stirring resolutions,
drafted by some of the best legal talent of California, were
adopted. The San Jos6 meeting recommended that a con
vention ' ' for the purpose of nominating a suitable candidate
for governor," and other suitable business, be held at that
* Star and Californian, November 25, 1848.
t Von Hoist, " History of the United States," Vol. iii, p. 462.
} December 11, 1848. See Star and Californian, December 16.
[400]

Legal Status of California, 1846-49. 77
place on the second Monday in January, 1849.* At San
Francisco a similar recommendation was adopted, the date
of the proposed convention being fixed at the first Monday
in March, 1849.! On February 12 the people of San Fran
cisco met in mass meeting and established a temporary gov
ernment for that district. £ Thus the legislative assembly
of San Francisco, comprising among its fifteen members the
ablest local representatives of the settlers' theory of the
legal status of California came into existence, with motives
whose patriotism cannot be impeached and members most
honored in California's annals.
On April 12, the Iowa landed with General Bennett Riley
on board, who, on the following day, relieved Colonel Mason
as Acting-Governor of California. On assuming command of
the civil affairs it was General Riley's intention tocomplete the
organization of the existing government and to call a conven
tion "for forming a state constitution, or plan of territorial
government, to be submitted to Congress for its approval. "§
But, on further consultation, he deemed it best to postpone
all such action until it might be ascertained what Congress had
done in the short session. The steamer Edith bore him the
information that the national legislature had again adjourned
without making any provision for the civil government of
California. He forthwith issued a proclamation, June 3,
" defining what was understood to be the legal position of affairs here,
and pointing out the course it was deemed advisable to pursue in order
to procure a new political organization better adapted to the charac
ter and present condition of the country. "|[
*Star and Californian, December 23, 1848.
t Reasons for this proposed delay are set forth in the A Ita California, January
4, 1849. Several dates were recommended by the various district meetings ; but
finally the first Monday of August— a date remote enough to allow the southern
districts to be represented— was agreed upon. See Alia California, March 22.
X See address of the Assembly in reply to General Riley's proclamation against
that body; published in the Alta California, August 9, 1848. The address is
signed by Peter H. Burnett, Henry Harrison and S. R. Gerry.
?See his letter to General Jones, " California Message and Correspondence,"
pp. 748-52.
I Ibid., p. 748. The proclamation is on pp. 776-80 ; also in Alia California, June 14.
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78 Annals of the American Academy.
In this proclamation — which had doubtless been in con
templation for some time, and which showed a careful study
of the situation — Governor Riley appointed the first day of
August for the selection of delegates to a general conven
tion, which should convene in Monterey on the first of Sep
tember following, and proceed to form a state constitution or
a plan for territorial government.
In the meantime General Riley had been made aware of
the existence and force of the San Francisco Legislative
Assembly, which in the absence of government (as it
claimed) had been assuming new and extended powers. It
did not recognize any civil power as residing in General
Riley, a military officer, but deemed itself entitled to frame
a temporary government for the protection of life and
property in the district,* and to co-operate with the other
districts in the movement toward popular organization. At
this period, as throughout its short but useful career, the
assembly was a loyal American body, numbering among its
members many of California's most patriotic pioneers.f
Considerable excitement was produced by the information
that Congress had the second time failed to provide;
this was greatly aggravated by the news of the extension of
the revenue laws over California and the appointment of
James Collier as collector. A public meeting being straight
way held, a committee, with Peter Burnett as chairman,
prepared an address protesting against the injustice of tax
ation without representation.! The assembly, through the
committee's address, again took occasion to assert what it
considered its undoubted right:
" It is the duty of the government of the United States to give us
* See I,ippitt's article in the Century, Vol. xl, especially p. 795.
t'fhe.4fta California makes a strong case in its justification of the existence
and legislation of the assembly. See, for instance, an editorial, June 14, 1849.
X 111 Alia California, June 14, 1849. Jt says, in part; " For the first time in the
history of the 'model Republic' ... the Congresses of the United States .
have assumed the right not only to ' tax us without representation,' but to tax us
without giving us any government at all.'' "
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Legal Status of California, 1846-49. 79
laws; and when that duty is not performed, one of the clearest rights
we have left, is to govern ourselves. "
Acting upon this supposed right, the assembly recom
mended a general convention to be held at San Jose on the
third Monday in August,
' ' with enlarged discretion to deliberate upon the best measures to be
taken; and to form, if they upon mature consideration should deem
it advisable, a state constitution to be submitted to the people."
Before the address had been published, Governor Riley,
fully cognizant of the powers assumed by the legislative
assembly and of its recent actions, issued a proclamation* to
the people of San Francisco, pronouncing the ' ' body of
men styling themselves the ' legislative assembly of the
district of San Francisco ' " an illegal and unauthorized
body, which had usurped powers vested solely in the Con
gress of the United States, and warning all persons " not to
countenance said illegal and unauthorized body, either by
paying taxes or by supporting or abetting their officers, "f
Now the committee's address, which had been adopted
before the promulgation of Riley's proclamation to the
people of the district, was not published until a few days
after the promulgation of the same. Thus there was an
appearance of reckless defiance on the part of the assembly,
which did not in fact exist. J
But now, at last, in the middle of June, 1849, the opposing
theories with reference to the legal status of California from
the ratification of the treaty with Mexico to the adoption of
the constitution on November 13, 1849, had been clearly
defined and respectively defended in the territory itself.
The two conflicting theories may be designated as the
Settlers' Theory, sometimes called the Benton Theory;
and the Administration Theory, sometimes called the
* " California Message and Correspondence," pp. 773-74.
t See Moses, op. cit., p. 114; Bancroft, op. cit., Vol. vi, pp. 277-78.
{ See Burnett, " R-ecollections aad Opinions of an Old Pioneer," pp. 325-26.
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80 Annals of the American Academy.
Buchanan Theory.* Since many of the salient features of
both these have necessarily been set forth in the narrative,
I must content myself with a rapid resume^ at this point, f
The leading advocate of the Settlers' Theory at Wash
ington was Senator Benton. His recommendations to the
people were substantially what the citizens were at that
moment beginning of themselves to act upon in earnest. J
Among the settlers themselves who were patriotic Americans
interested in the permanent welfare of California, there was
virtual unanimity of sentiment in favor of the Settlers'
Theory. § Without doubt a large part of the discussion was
extremely passionate and biased; but that the moral and
political wrongs endured by California during these critical
months, and even years, were without parallel or precedent
in our Union, is perfectly patent to any one at all acquainted
with the conditions. One cannot expect an entirely dispas
sionate discussion or a calmly judicial poise amid such
stirring, shifting, practical scenes in a place of world-con
fluence and a time so justly characterized as the No-Gov
ernment Period.
Stripping the argument of all passion, the Settlers'
Theory may be briefly stated as follows: 1 1 The moment the
treaty of Guadalupe Hidalgo took effect, the Constitution
* These names are applied mainly on the ground of mere convenience. There
seems to be some doubt as to the exact position held by Buchanan and President
Polk during the latter part of this period. Governor Burnett was of opinion that
they adopted the view maintained by the more prominent settlers.— Op. cit., p. 331.
t One of the best statements of the two theories extant is that of Burnett, op.
cit., pp. 329 et seq. Royce has a good statement in his " California" pp. 247 et seq.
On this question see Mr. Botts' long speech in Browne's " Debates," pp. 274-84,
and consequent discussion.
(His letter is in Alta California, January 11, 1849; see editorial comments,
January 18.
J See Burnett, op. cit., p. 331. where he says: "Among the lawyers of California
who had been here long enough to understand the true merits of the controversy,
there was almost an entire unanimity in the opinion that only a de facto govern
ment could exist in the country, based upon the consent of the people. This was
the view of three-fourths of the inhabitants."
| Allowance must of course be made in any construction of this theory as I have
here formulated it, for individual variation and hence slight latitude for deviation
in details.
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Legal Status op California, 1846-49. 81
of the United States and American principles were extended
over the acquired territory of California. Although no
territorial system of American civil law has been regularly
extended over or established in California, the Mexican civil
law has been in fact superseded. Congress, whose primary
power to legislate is admitted,* failing to provide a territorial
government, it is no usurpation in the people to legislate
temporarily for themselves in self-defence. As matter of
fact, the government established during the war, was, at its
conclusion continued as, de facto government; but whereas
it had before derived its authority from the rights of war, it
now has no such source of power, but derives its authority
from the ' ' presumed consent of the people. ' ' A subordinate
military officer can no longer legally fill the office of gov
ernor except by the sufferance of the people. While their
presumed consent was "irresistibly inferred" by Secre
tary Buchanan in an a priori manner, it was historically
entirely unreal; instead of consent there was express dis
sent and repeated protest against the de facto government, f
Again, since the President, through his secretary, " urgently
advises the people of California to live peaceably and
quietly under the existing government," he evidently
believes that the people had the right to change it. Because
of the extraordinary exigencies of the situation, the Legis
lative Assembly of San Francisco was rightfully and legally
formed, and the communities of Sonoma and Sacramento
city followed the example, thus exercising temporary legis
lative power as the practical application of the rights
implied by American citizenship. %
Opposed to the Settlers' Theory was that which I have
called the Administration Theory, which was maintained by
* This congresssional authority, however, was not universally admitted. Mr.
Botts emphatically denied it. See his conclusions in Browne's " Debates," p. 284.
t See Alia California. August 9, 1849, and earlier dates; also Fitch, in the Cen
tury, Vol. xl, p. 783. etc-
I Report of governmental agent, Thomas B. King, as published in Frost's
" History of the State of California," pp. 108 et seq.; also Fitch, op cit.
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82 Annals of the American Academy.
the last territorial governors, notably by General Riley. Riley
states his position, which is in accord with his instructions,
in his proclamation to the people given May 3, 1849. This
theory may be briefly summarized: Under a general princi
ple of the law of nations, the laws of California, which were
proclaimed to be in force after the American conquest, must,
at the conclusion of peace with Mexico, continue in full
force until changed by competent authority. That authority
is vested solely in Congress. Hence, Congress failing to
make other provision for the territory, the system of laws,
defective as it is, which obtained under military rule, must
in so far as they are not inconsistent with the laws, constitu
tions, and treaties of the United States, continue in force
under the civil government de facto , the commanding mili
tary officer, by virtue of a vacancy in the office of governor,
is ex officio civil governor. The Legislative Assembly of
San Francisco, or any similar body, therefore, purporting
to represent the people and presuming to legislate for them,
is an illegal and unauthorized body, having usurped powers
vested solely in the United States Congress.
I shall not attempt finally to decide this vexed question,
by a technical argument, in favor of the one theory or the
other. Without doubt, judged from a moral standpoint,
the settlers were in the right, and would on the social ground
of self-defence, have been justified in forming for themselves
a temporary territorial government. Fortunately for state
organization, as the event proved, they did not. On strictly
legal grounds, Riley's position was in the main probably
the more nearly correct, although he, as ex officio governor,
as well as the administration at Washington, failed to main
tain complete consistency.
Shortly after General Riley's proclamation of May 3, in
which he appointed August 1 , as the date for the election
of delegates who should meet in constitutional convention
in Monterey, on the first of September, events took place
which should serve at once to show the patriotism of the
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Legal Status of California, 1846-49. 83
leading settlers and to give additional color to the legality
of Riley's position. What the people wanted was an organ
ized government; the end was paramount, the means
secondary. Hence indications of satisfaction with, and
acquiescence in Riley's plans began almost immediately to
manifest themselves. The people of San Jose" expressed
their satisfaction June 7, other districts followed them. The
controverted points seem to have been waived by many, and
popular interest in the question of legal status was fast
waning. On June 12 a committee of five from the San
Francisco Legislative Assembly had been appointed to cor
respond with other districts relative to the proposed gen
eral convention of the people on their own authority. The
committee, representing the stronghold of the Settlers'
Theory, viewing the changing situation and recognizing the
importance of success in the one desire of all parties, recom
mended the propriety ' ' of acceding to the time and place
mentioned by General Riley, in his proclamation, and
acceded to by the people of some other districts." This
concession, the committee held, was not one of principle,
but a matter of mere expediency, for they still refused to
recognize any rightful authority to appoint times and places
as residing in General Riley.*
Thus the controversy was practically at an end, and with
it died the mild revolution by the fiat of the people who
created it. The legislative assembly ceased to exist. The
members ' ' were unwilling to use the powers vested by the
people in them for the production or perpetuation of civil
strife, "f The general acquiescence in the plans of General
Riley marked the emergence of California from a period of
most remarkable internal disquietude, characterized, how
ever, by extremely little violence, and left little doubt of
speedy and satisfactory organization. J
* Alia California, June 20, 1849 ; see Burnett, op. cit., pp. 325-26.
t From the Allans editorial on " The End of Revolution."
X In the early spring of 1849 Mr. Thomas Butler King had been sent as secret
agent of the government to California to acquire the fullest possible information
[407]

84 Annals of The American Academy.
The coming convention was now the one theme of discus
sion, so far indeed as all political discussion was not lost in
the gold excitement. For the few intervening months before
its assembling, the Mexican system of law must be put in
operation. In order that it might be known, as well as
possible, what the law really was, a translation and digest
of such portions of the Mexican laws as were supposed to be
still in force, was prepared by Secretary Halleck and Trans
lator Hartnell, and three hundred copies were, on July 2,
ordered for distribution among the officers.* In the South
this worked naturally, but it was decidedly awkward in the
towns and among the miners of the North. As a mere tem
porary arrangement while the country was being flooded
with immigrants, it gave moderate satisfaction. f
The Constitutional Convention was at hand; this tardy
digest excited little popular attention; few but lawyers cared
to antagonize it. Complaints and pessimism were passing
away; the glittering prospect of the new regime now at last
amounted to assurance; it may almost be said to have been
ushered in antecedently to the one event which made it
actual, — namely, the making of the constitution.
Rockwell D. Hunt.
University of the Pacific.
and to urge the people to give themselves a state constitution that they might
petition Congress for admission into the union. " California Message and Corre
spondence," pp. 9-11. King arrived in California at the time when General Riley's
proclamations were being issued. Here we come upon one of the happiest coin
cidences of California's history. The leading settlers of the territory loyally
acquiesced in the de facto governor's plans, which also were thus approved by
anticipation in Washington (instructions dated April 3), for Riley had resolved on
calling a convention of the people's representatives before the arrival of King.
* This digest is in Browne's " Debates," app. xxiv et seq.
f Willey, in Overland Monthly, Vol. ix, p. 15.

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