CK SES Pe a MUR ARAL URS Urn COS mre er ea 7 a Cats rere cee ee oe ee ee ee oe ee rey er ee ee CRS en n fi a CC ee ere MY Att teeth rar OC Cee et ee ee ec a Faas ae al vi uae a Yes ar et re o ow) ae wera ee) ? deg ay ‘ Teas Thal a Pata Aiohote des ice iA RMP + Paral rw nit (arene er r ere eee ie et ete a 44 re c i aeeale Mh ts Ue habeneien heme ace aoa wr rerun er ere eo ‘ f f eta ee er ee ere ee ee) ear aha Par ‘ Pree ear f here arene er f er A ier Matar F renew er pedi itthe ton rear a oH p mn 5 rs Pee ar iat ar Palo a a ee err fare eee) here harhar aac pause A erred eter ery ers er Ps Serer ere were eer a or Serna fore - A “en , ut re ‘i F rete Tarren ‘ mr * ‘ hearer erin Par er erty har tar Owe es) Perec’) rn etter wri Pa n a ( a f , " 7 er rer ey peter ere Pil r oe han iba date talbott’ " re 4 r Prat ierurterre beter ee eC oo fr Parte a n Perierror a oan) , ri ‘ A - ‘ ‘ ‘ Petar ner ’ " a + hater hare . eet q are F ms fi en air) ms rer ran Perera 7 ver haar i ‘ ns ror (rar er * ‘i ¢ +o : : ri F i ats 4+ C ts 2 0 * n ’ . i Pitre wna : J r P A Fj ql r fi ore eater F A Pa 5 f o f , A f A A tye _ rm a ' soft Poco Sees ee ten 7 f ‘ oxi 3 Patt w ot | " A) pera! ye LAs cs LM ee a ‘ a oa “ ai J rs ne Re , rt SITY OF VIRGINIA LIB : a mt Jw : rN mae RISERS: ane Y bitter dec ty : va eee r ory.) o us wey : ? iad Pe ate) ee eat a ete rena ee ane aoee eer red Pareles alert aL oe aerate art eter et ee ee mg 5 fret) a6 Pp atTata Te re ere Ten f - Prd at seta Fe a a RO RINE TE al a er EO Oe SN Me cere aa nae :> Ce A mae ie ee ehCALIFORNIA AND THE. NATION 1850-1869 BS A STUDY OF THE RELATIONS OF. A FRONTIER COMMUNITY WITH THE FEDERAL GOVERNMENT BY JOSEPH, ELLISON UNIVERSITY OF CALIFORNIA PUBLICATIONS IN History Volume, 16, pp, xi +. 1-258 UNIVERSITY OF CALIFORNIA PRESS BERKELEY, CALIFORNIA 1927UNIVERSITY OF CALIFORNIA PUBLICATIONS IN ‘HISTORY HERBERT HUGENE BOLTON, WILLIAM A Morris, nih) ae J. FONG eee wen 1. VoL. 2. Vol 3. Vol. 4. Vol, 5; Vol. 6. Vol.’ 7. Vol, 8; Vol, 9. VoL 10. VoL i1. Vol. 12, Vol..13. Vol. 14. Vol, 15. . Wol. 16, Studies in American History. 1; Colonial. Opposition to Imperial Authority. deine the French end Indias| Wars, by Eugene Irving McCormac. Pp.:1-98. 2. The Viceroy of New Spain, by Donald E: Smith. Pp. 99-298. 3. The Beginnings of Spanish Settlement in the El Paso District, by Anno E.. Hughes.. Pp, 296-392, -In paper cover, $2.75; cloth, ‘$3.00. Index to the volume, pp. 393-406, A History of the Western Boundary of the Louisiana Purchase, 1819-1841, by Thomas. Maitland: Marshall. 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In paper EOveE, aS 5Ou AS AUNIVERSITY OF CALIFORNIA PUBLICATIONS IN HISTORY VOLUME XVI 1927 UNIVERSITY OF CALIFORNIA PRESS BERKELEY, CALIFORNIASTEN BINDING apr 19 50 UNIVERSITY OF CALIFORNIA PUBLICATIONS IN HISTORY Volume 16, pp. xi + 1-258 Issued’ April 11, 1927 UNIVERSITY OF CALIFORNIA PRESS BERKELEY, CALIFORNIA CAMBRIDGE UNIVERSITY PRESS LONDON, ENGLAND eece Orne 2ee? ar) PRINTED IN THE UNITED STATES OF AMERICACALIFORNIA AND THE NATION 1850-1869 A STUDY OF THE RELATIONS OF A FRONTIER COMMUNITY WITH THE FEDERAL GOVERNMENT BY JOSEPH ELLISON UNIVERSITY OF CALIFORNIA PRESS BERKELEY, CALIFORNIA 1927cares ene amecscenel ‘ aTO PROFESSOR HERBERT EUGENE BOLTON TEACHER AND FRIENDane be ome.CONTENTS PAGE PREFACE... xl PART I A DECADE AND A HALF OF FEDERAL LEGISLATION CHAPTER I INTRODUCTION: PRE-STATEHOOD PERIOD AMERICAN BEGINNINGS IN CALIFORNIA 1 DEMAND FOR A TERRITORIAL GOVERNMENT 2, ADMISSION OF CALIFORNIA INTO THE UNION... A DECADE AND A HALF or FEDERAL LEGISLATION... 5 CHAPTER II Mexican LAND GRANTS ~J SPANISH AND MpxicAN LAND SYSTEMS CoMPLAINTS OF AMERICAN SETTLERS 8 Tue GuADALUPE-H1DALGO TREATY AND LAND TITLES 9 HALLECK’s REPORT 10 Tue Lanp Act or 1851... 11 Ponicy OF THE First Boarp 15 THE SEcOND BOARD....... 16 PoLuicy OF THE FEDERAL CouRTS 17 SETTLERS’ GRIEVANCES.. 18 SUMMARY AND CONCLUSIONS 23 CHAPTER III FEDERAL LAND GRANTS TO CALIFORNIA Pusuic LANp Pouicy Prior To 1850....... 25 A Lipprat LAND Po.icy ror CALIFORNIA 26 Tue Act or Marcu 3, 1853 30 Srare OWNERSHIP OF THE PuBLic LANDS 30 THE FIVE PER CENT FUND..... 33 Tue 500,000 Acre GRANT 34 ScHooL LAND GRANT 36 DIsPUTE ABOUT THE Swamp LANDs. 38 FINAL SETTLEMENT..... 46 THE FIVE PER CENT CLAIM 50 CONCLUSION..... 51SE is It mea pur StN ae CHAPTER IV Tuer MINERAL LAND QUESTION IN CALIFORNIA MineERAL LAND Po.ticy Prior To 1848.... ATTEMPTS TO LEGISLATE FOR THE CALIFORNIA MINES ATTITUDE OF CALIFORNIA TOWARD THE MINERAL LAND QUESTION FREMONT’S BILL. : CALIFORNIA’S OPPOSITION TO FILLMORE’S RECOMMENDATION ForEIGN Miners’ Tax MINES AND STATE TAXES Strate OWNERSHIP OF THE MINERALS MINERS’ RULES AND REGULATIONS REVIVAL OF THE MINING QUESTION IN WASHINGTON EFrrect OF THE Crvit WAR ON THE MINING QUESTION ATTITUDE OF CALIFORNIA PASSAGE OF THE AcT OF 1866 SUMMARY CHAPTER V THE INDIAN QUESTION EARLY INDIAN DISTURBANCES PoLicy OF THE STATE AUTHORITIES ATTITUDE OF THE FEDERAL AUTHORITIES REJECTION OF THE TREATIES INCREASE OF Minirary ForcrEs ror CALIFORNIA CONCILIATION OF THE INDIANS Minitary RESERVATIONS THe InpIAN War DEBT New Inpran DIstuRBANCES FAILURE OF THE MILITARY RESERVATIONS SUMMARY AND CONCLUSIONS CHAPTER VI Tue Crivin Funp AND THE MINT ORIGIN OF THE CiviL FUND CLAIMS OF CALIFORNIA TO THE CriviL FuND. CONGRESS AND THE Crvit FuND PERSISTENT EFFORTS OF CALIFORNIA FINAL DISPOSITION OF THE SUBJECT DEMAND FOR A Mint OPPOSITION IN CALIFORNIA TO THE ASSAY OFFICE THe Mint Britt Passes Vill PAGE 54 o7 58 60 63 66 93 95 96 97 102 103 106CHAPTER VII Tur VIGILANCE COMMITTEE AND FEDERAL INTERFERENCE PAGE ine VIGILANCE COMMITTEE OF 1856...... re pal25 THE GOVERNOR’S APPEAL TO THE ARMY AND Nae Onmrenns 125 GENERAL Woou’s REFUSAL TO INTERVENE... i ; | 126 Tur GovEeRNOR’S APPEAL TO THE PRESIDENT 27 THE PRESS ON GOVERNMENT INTERFERENCE 130 A Paciric REPUBLIC oh _ 1381 Tue PRESIDENT’S REFUSAL TO INTERVENE. 132 CHAPTER VIII MEANS OF COMMUNICATION AND TRANSPORTATION Earty DremMANpD FoR Maru FACILITIES 136 Earuy Paciric RAmRoAD PROJECTS.. fe 141 AGITATION IN CALIFORNIA FOR A CONTINENTAL RAILROAD 142 CONGRESS AND THE RAILROAD 143 Vain Hopres oF CALIFORNIA 147 RESULTS OF THE EXPLORING EXPEDITIONS . 147 CALIFORNIA PROTESTS..... : 150 DEMAND FoR Wacon Roaps » LSB: OVERLAND Malu...... 156 OPPOSITION TO THE OVERLAND Matt SERVICE : 161 PROTESTS OF CALIFORNIA.... 165 Pony Express AND DatLty OVERLAND MaAtu. . 168 RENEWED AGITATION FOR A Pactric RAILROAD 170 THe Frnau Act : . 172 CoMPLETION OF THE First TRANSCONTINENTAL RAILROAD AND THE UNION OF THE Two COASTs.... DO ee ee PART II CIVIL WAR ISSUES CHAPTER IX SENTIMENT FOR A Paciric REPUBLIC Forces BEHIND THE MOVEMENT.. 178 CALIFORNIA’S COURSE SHOULD THE Unmonn BE Dracorunee ce eae lsO SECESSION OF SouTH CAROLINA.. eae Ee e 183 EFFECT OF THE ASSAULT ON Roun Sones 186 1XNEY BS EI nem CHAPTER X LOYALTY AND DISLOYALTY PAGE ATTITUDE OF THE POoLiTicAL PARTIES . 189 ATTITUDE OF THE PRESS 191 DISLOYAL SPEECHES e195 Miuirary ARRESTS 196 War HYSTERIA 198 Secret DisLoyaAL ORGANIZATIONS 200 ATTITUDE OF THE Minirary AUTHORITIES 202 ATTITUDE OF THE STATE AUTHORITIES 204 CALIFORNIA’S CONTRIBUTION IN MEN 204 CaLIFORNIA’S CONTRIBUTION TO THE SANITARY FUND 206 SUMMARY 207 CHAPTER XI ATTITUDE OF CALIFORNIA TO THE LEGAL TENDER Notes DURING THE CIvIL WAR IssuUE OF THE LEGAL TENDER NOTES 208 RECEPTION OF THE NOTES IN CALIFORNIA . 209 LEGAL TENDER NOTES AND STATE TAXES.. ” 210 Tue Srate TREASURER AND THE FEDERAL Direct Tax 212 OPPOSITION TO THE LEGAL TENDER NOTES 214 EXEMPTION FROM THE LEGAL TENDER ACT = 216 Tue Speciric Contract Act.... 216 OPPOSITION TO THE SpEciFIC Conrractr Act eles CONSTITUTIONALITY OF THE ACT 220 PERSISTENCY OF THE ‘‘PAPER MEN’’ 223 SUMMARY AND CONCLUSION 227 RETROSPECT .... Se ee ae ee ee eet icc eos see ee OIL >PREFACE A large part of the history of a federal country like the United States centers around the relations of the several states of the Union with the national government. Yet bocks on American history generally deal with either purely national affairs or purely local events. The histories by MeMaster, Schouler, Von Holst, and Rhodes, while admirable in many respects, contain very little on the federal relations of a state like California, and, moreover, many of the assertions made are either only partly true or entirely wrong. Likewise, with our so-called local histories. Much interesting and valuable information is given in the bulky standard histories of California. But these histories are, generally speaking, narra- tives of local events with descriptions of local personalities, usually of the more picturesque type. The two most voluminous histories of California, by Bancroft and Hittell, devote chapters to such romantic episodes as the Donner party, filibustering expeditions, discovery of gold, and the San Francisco vigilance committees. But there is practically nothing on the less exciting but nevertheless serious controversy between the state and the federal government with regard to the public lands. They devote a number of chapters to the mines and miners but they are practically silent on the very important question of the control and disposition of the mineral lands. The present study is intended to supply such omissions in the field and period chosen. And so far as I know it is practically the first attempt made in this direction. My thanks are due to Professor Herbert Eugene Bolton, under whose guidance this work was written, for encouragement, advice, and illuminating criticism; and to Professors MeCormac, Morris, and Van Nostrand for valuable suggestions. xiaCHAPTER I INTRODUCTION: PRE-STATEHOOD PERIOD American beginnings in Califorma.—tTechnically California did not become a part of the United States until her formal cession by Mexico in 1848. The act that brought her into relation- ship with the government of the United States, however, had occurred two years earlier when Commodore Sloat hoisted the stars and stripes in Monterey. But during the years prior to these events, and serving as a prelude to the dramatic incident of July 7, 1846, there had been a gradual penetration of Amer- icans into California, so that the territory, even before 1846, had already become a center of American civilization. This penetration of the Americans had begun during the Spanish régime, when Yankee traders engaged in illicit com- mercial dealings with the sparsely settled pastoral communities along the California coast... The traders were followed by the trappers and hunters of the west—the Patties, Jackson, Young, and others—who, in quest of new trapping grounds, blazed the trails of the more important routes over which later came the grand overland march of the American pioneer to the Pacific Coast. The organized overland migration to the Pacifie Coast 1 Trade relations between California and the United States began in 1795, when the first New England fur trading vessel landed at Monterey. After 1800 the New England whaling vessels also began to trade on the California coast. In 1822 the hide and tallow trade was opened up by the ‘“Boston ships.’’ The classic description of the hide trade is Dana’s Two Years Before the Mast. Dana left Harvard College in 1834, at the age of nineteen, to go on a voyage to California. He stayed in California during 1835 and 1836. In his book, first published in 1840, he gives a vivid description of what he had seen in California. The best secondary authori- ties for the early interest of Americans in California are Cleland, The Early Sentiment for the Annexation of California, from 18385 to 18386; Chapman, A History of California: The Spanish Period.aoe 2 me = ee ee anaes 2 University of California Publications in History [ Vou. 16 during the forties was not an isolated movement ; it was a part of the general westward movement of the American people and was impelled not merely by desire for personal gain or love of adventure but also by the prevailing spirit of national expansion. The American frontiersmen came to California imbued with the idea of ‘‘manifest destiny,’’ and with the story of the “‘Texas ; game’’ still ringing in their ears.* The Mexican authorities in vain attempted to stem the tide. The Americans intrenched themselves in local American colonies where they dreamed and talked of the time when California should become a part of the United States. The Bear Flag revolt was the fruition of this long nursed project. But the ‘‘Cali- fornia Republic’? came to an early end, and California became on July 7, 1846, practically, though not technically, United States territory. Demand for a territorial government.—The keynote to the period from 1846 to 1850 was the struggle for eivil government. This was the most absorbing issue, not only in California, but also in Washington. In few other instances in United States history has civil government been ushered in with so much violent discussion. There were two reasons: the unique conditions in California and the slavery conflict in the east. In California an effete and dilapidated system of government, adjusted to the simple wants of a pastoral people, was suddenly called upon to serve the needs of a rapidly growing, aggressive population of the conquering nation. Furthermore, the nature 2 Writings of Thomas Jefferson, Library ed., XIII, 151; Thwaites, Harly Western Travels, XVIII, 19; Farnheim, Early Days of California, 62. Davis, Siaty Years in California, 58. Forbes, History of California, 151-52; Bidwell, California, 1841-48, 5-6, 110-12, MS in Baneroft Library; ““Cor- respondence of John ©. Calhoun,’’ edited by J. Franklin Jameson, in American Historical Association Report, 1899, II, 945-47; Wilkes, Narratwe of the United States Exploring Expedition During the Years 1838-1842, V, 182-83; Neff, Mormon Migration to Utah, MS Thesis (Ph.D.), 1918, University of California Library; Thompson, Recollections of Mexico, 232-35; Larkin, Docwments for the History of California, III, nos. 116, 247, MS in Baneroft Library.1927] Ellison: California and the Nation 3 of the established government was utterly repugnant to Amer- ican ideas of justice. Hence, it is not at all surprising that the Americans, especially the more recent arrivals from the western states, should demand the privilege of being governed in ‘‘ Amer- ? ican fashion,’’ and fail entirely to appreciate the argument of the military governors that, until the country was definitely ceded to the United States, the government in California must be a military one administered under the existing Mexican laws. They could not understand that Americans in California might claim no rights and privileges not also guaranteed to all the inhabitants of a conquered territory. American settlers main- tained that, since for all practical purposes California was already a part of the United States, they were under the Consti- tution and laws of the United States, and their personal rights and privileges were the same as those guaranteed in any other portion of United States territory. As early as 1846 the Cali- fornia press began to advocate the immediate establishment of a civil government under the Constitution of the United States. This demand became more pronounced after the Treaty of Guadalupe Hidalgo had been signed and California definitely became United States territory. Indeed, the situation had now become an anomaly: United States territory administered by American military officers, by means of an effete Mexican system of administration. Because of the slavery question, Congress could not organize a territorial government for New Mexico or California. From the adminis- tration in Washington came many promises but no substantial relief. The settlers were told that the military government established in California under the laws of war had, by the termination of the war, become a ‘‘government de facto,’’ to con- tinue with the presumed consent of the people until Congress provided a territorial government for them. But the settlers could appreciate neither the promises nor the fine reasoning of the administration in Washington. They were not willing toa ARE re CN OC A rt i ee ee er Fann ON a Pecan + ee 4 University of California Publications in History [ Vou. 16 accept the doctrine of international law, namely, that all the laws in operation in a ceded province must continue in foree till super- seded by the laws of the government to which the territory had been transferred. They were not even fully convineed of the sanetity of international law. Moreover, in the peculiar case of California, they argued, these principles should be disregarded. They acknowledged that the power to legislate for the territories was vested in Congress, but since that body neglected to exercise its prerogative, they believed that they were justified in acting for themselves. The right to institute a government for the pro- tection of life, liberty, and property, they claimed, was based upon the ‘‘original and natural right of society to protect itself by law.’”® We thus find here a struggle between two theories of right : 9) . ‘Veoal right’’ and ‘‘moral right, sometimes called ‘‘natural right.’’ The first was upheld by the administration, the second, by the settlers. Much may be said in favor of the argument of the settlers. When Congress, after grappling for two sessions with the matter of government for the territories acquired from Mexico, could not, because of the slavery question, come to any agreement, then surely the settlers were justified in acting for themselves. And this they did. They organized a government and adopted a constitution for a free state, fixed the boundaries, and applied to Congress for admission into the Union. Admission of California into the Union.—The action of Cali- fornia simplified the issue for the north, but it exasperated the south. For nine months the California representatives elected to Congress were kept waiting at the portals of the Capitol. The main objections raised against the state’s admission to the Union were these: (1) the constitution of California was not the spon- 3 For the controversy between the settlers and the federal authorities see: Buchanan, Works, VIII, 211-15; H. Ex. Doc. 17, 30 Cong., 1 Sess., 258-59, 279-80, 776-80; Burnett, Recollections of an Old Pioneer, 294-95, 310-17; San Francisco California Star, April 8, 1848. San Francisco Alta, Jan: 18, 25, May 12, 24, June 2, 14, 19, July 2, 19, 1849; Sacramento Placer Times, May 26, 1849. Hereafter ‘‘San Francisco’? will be omitted from the names of the San Francisco newspapers.1927 | Ellison: California and the Nation 5 taneous manifestation of her people, but had been concocted in President Taylor’s office; (2) the constitution had been formed in an unprecedented, irregular way; (3) the population of Cali- fornia was a mere heterogenous mass of adventurers; (4) mani- festations of independence had been exhibited, which, if over- looked, might lead to dangerous precedents. But the real and great objection lay in the fact that the boundaries of the state were made to extend from the Mexican border to parallel forty- two north. The south insisted upon the curtailment of the boundaries to 36° 30’. Neither the north nor California would agree. California was determined not to undergo dismember- ment and not to be relegated to a territorial position. Great became her dismay as one steamer after another arrived without bringing the glad tidings of admission. She voiced bitter complaints and protests which at times assumed a rebellious character.’ It is hard to tell what might have happened had not Congress finally succeeded in terminating the memorable forensic struggle, and admitted California on her own terms. A decade and a half of federal legislation.—The sixteen years from 1850 to 1866 may be characterized as a period of demands for federal legislation; legislation the enforcement of which required the strong arm and rich treasury of the federal govern- ment. California asked for a liberal land policy; she called for appropriations for internal improvements; she demanded pro- tection against the Indians. The program was a costly one but California demanded its fulfillment as a right to which she believed she was fully entitled. Like all frontier communities, she considered the government to be a paternal institution whose duty it was to assist liberally in the development of the frontier 4 Cong. Globe, 31 Cong., 1 Sess., 455, 499, App. 110, 260, 347, 392, 462, 606, 775, 961-68, 997, 1159-68, 1001-3, 1251. 5 California Legislature, Jours., 1850, 373-75, 1277-83; Alta, April 25, 27, June 25, Aug. 17, 1850; Pacific News, April 26, May 29, Aug. 27, 1850; Courier, July 23; Picayune, Sept. 14; Sacramento Transcript, April 20, May 4, June 27, Sept. 24,,1850.wees ee —_—— a ee 6 University of California Publications in History [Vou 16 country, and especially such a country as California; for the people there had an exalted conception of the importance of their state, whose gold, they claimed, had saved the impoverished east from bankruptey.® But while California tended to exaggerate her needs and importance, the east, and particularly the strict constructionist south, underestimated them, and long contro- versies ensued between the state and the federal government. 6 This opinion was expressed by the Californians in the press, at publ meetings, in the legislature, and in Congress.CHAPTER II MEXICAN LAND GRANTS The land question in California was of a threefold character : the adjudication upon the validity of land titles claimed under the Mexican government; the disposition of the public domain ; the control and disposition of the gold fields. The first phase of this question was the most troublesome in Congress and in Cali- fornia. It caused considerable agitation and many clashes between the land claimants and the settlers commonly called squatters. The question of Mexican land grants emerged soon after the conquest of the territory by the United States forces and the influx of land-hungry Americans who had been accus- tomed to a system of land tenure different from that which prevailed in California under the former governments. Spanish and Mexican land systems.—During the Spanish and Mexican régime the supply of land was far above the demand for it. To encourage colonization, the Spanish, and later the Mexican, government offered large tracts of land to settlers. The number of land grants made during the Spanish régime was very small. Most of the foreign land titles in California were claimed under grants from the Mexican government,’ made under the Mexican colonization laws of August 18, 1824, and November 21, 1828. Under the Mexican laws the grantee had to comply with many formalities. The grant had to be approved by the territorial 1 Bancroft gives about thirty-six up to 1822. According to Hoffman’s Reports of 1862, there were 27 granis; Jones, Report on the Subject of Land Titles in California Made in Pursuance of Instructions from the Secretary of State and the Secretary of the Interior (Sen. Ex. Doc. 18, 31 Cong., 1 Sess., 3-4 [589]).ee 8 University of California Publications in History Vou. 16 assembly or by the government in Mexico. No grants of land within ten leagues of the sea could be made by the governor without the previous approval of the government in Mexico. After the approval of the grant the land was to be surveyed and the boundaries fixed. Moreover, the grantees were generally required to carry out certain conditions of occupation, such as putting up buildings and keeping some live stock on the land.* But, due to the low value placed on land and the political disturbances in Mexico and in California, all the formalities were seldom complied with. Many of the grants claimed had not been approved by the territorial assembly or the national government ; they were not surveyed nor were their boundaries fixed. Conse- quently there was a large number of land claims, varying from one to eleven leagues square, that were indefinite with respect to boundaries. Also the grantees had not always lived up to the conditions of occupation, and only the small tracts were actually oceupied. These irregularities were decried by the Mexican authorities themselves, even to the extent of declaring the titles technically unsound.® Complaints of American settlers—Under these circumstances it was therefore to be expected that trouble would arise with the influx of land-hungry settlers from the western states. They had been accustomed to small holdings with fixed boundaries, and to them squatting upon uncultivated land was a perfectly respect- able American practice in settling a new territory. These Amer- icans came to California with the belief that, except for a few settlements confined to the coast, all the land in the territory was public domain, and that, as in the other territories which had been opened to settlement, they might preempt a tract of land by 2 Halleck’s Report on the Land Titles in California, 1849 (H. Ex. Doc. 17, 31 Cong., 1 Sess., 120-21, 133-44 [573]). 8 Jones, Report (Sen. Ex. Doc. 18, 31 Cong., 1 Sess., 3-5 [589]); Halleck, Report (H. Ex. Doc. 17, 31 Cong., 1 Sess., 122 [573]). In some eases a single tract of land was granted to several owners. Shinn, Mining Camps, 92. ;1927 | Ellison: California and the Nation 9 squatter’s rights. Hence great was their disappointment when they found thousands of acres of the best lands lying unculti- vated and claimed by a small number of landowners under some inchoate loose grant of the benighted Mexican government. Complaints against the existing land conditions were voiced by Americans even before the country was ceded to the United States. In the California Star of March 13, 1847, ‘‘Paisano”’ complained that the American settlers who had come with the intention of securing tracts of land found that wherever they turned ‘‘they were repulsed with an indignant ‘this is all mine.’’’ To redress these wrongs ‘‘Paisano’’ proposed to organize a legislature which should enact a law providing that every man in the territory should be entitled to a tract of govern- ment land.t Sloat’s promise, in his proclamation of July 7, 1846, that all ‘‘persons holding titles to real estate, or in quiet posses- sion of lands under a color of right, shall have these titles and rights guaranteed them,’’ was in the opinion of the settlers with- out any legal or moral force, for he was not authorized to make such an assurance. The Guadalupe-Hidalgo Treaty and land titles —The question of land titles in the ceded territories was considered in the Guadalupe-Hidalgo treaty. Articles eight and nine stipulated that ‘‘property of every kind’’ belonging to Mexicans in the ceded territories, ‘‘shall be inviolably respected.’’ Article ten, which stipulated also for imperfect claims, was not ratified by the United States Senate. In the protocol it was stated that ‘“conformably to the law of the United States, legitimate titles to every description of property, personal and real, existing in the ceded territories are those which were legitimate titles under the Mexican law in California and New Mexico up to the 13th of May, 1846.’ In his communication to the minister of foreign 4 California Star, March 13, 1847. 5 Sen. Ex. Doc. 52, 30 Cong., 1 Sess., 49 (509). In this article the Mexican government stated that no grants of lands in California had been made after May 13, 1846.10 University of California Publications in History [Vou. 16 relations of the Mexican government, Secretary Buchanan said that claimants who had ‘‘forfeited their grants by not complying with the conditions on which they were made’’ could not be recognized by the United States.® Halleck’s report——To enlighten the federal government on the question of land titles, Governor Mason directed Captain Halleck to collect and examine the old archives which were scat- tered in the territory. In his completed report, which was forwarded to Washington on April 13, 1849, Halleck pointed out that a large number of land titles in California were “‘very indefinite with respect to boundaries’’; that ‘‘a number of the grants of land made by the governors of California have never , been confirmed by the territorial legislature,’ and that in some cases that body had refused to confirm them. He also stated that it had been ‘‘alleged by very respectable authority, that certain titles to land were given by Governor Pico after the United States had taken possession of the country, and made to bear date prior to the 7th of July, 1846.’” Halleck’s conclusions that many of the claims were imperfect and others spurious added greatly to the distrust among the settlers with respect to the validity of Mexican land claims. Many of the settlers did not have the means to purchase lands; others were indisposed to pay exorbitant prices for lands which they believed belonged to the United States government. The most famous collision between land claimants and settlers took place in Sacramento, where a number of settlers led by James Zabriskie, a young lawyer, and Dr. Charles Robinson, later governor of Kansas, challenged the legality and genuineness of Sutter’s title to lands in Sacramento. The attempt of the land 6 Sen. Ex. Doc. 60, 30 Cong., 1 Sess., 69-70 (509). 7He also reported that all the mission lands in California had been secularized and made government property by a Mexican law of August 17, 1833. Halleck’s Report is printed in H. Ex. Doc. 17, 31 Cong., 1 Sess., 119-33 (573). Lieutenant Halleck, later General, was well versed in civil and international law, and the author of a book on international law.1927 | Ellison: California and the Nation 11 claimants to dispossess the settlers naturally led to violence and even bloodshed.® The settlers complained that they did not have a fair hearing in the press. Meetings, appeals, resolutions, and memorials were their main mediums of expression. Their argument was that they were fighting in self-defense against a band of speculators who had appropriated to themselves all the public lands within the state.2 In a memorial to Congress the settlers complained that they had emigrated with the expectation that California belonged to the United States, but on their arrival they found themselves trespassers on soil claimed by Mexican landowners, who formed a land monopoly. They urged Congress to legislate in favor of actual settlers.1° Indeed, all who were interested in the welfare of California urged a speedy settlement of the ques- tion of Mexican land titles so that the vast tracts of tillable land might be brought under cultivation. The federal government ? was blamed for the ‘‘Squatter riots’’ in California." The Land Act of 1851—Soon after the acquisition of Cali- fornia and New Mexico the Senate Committee on Publie Lands reported a bill for the settlement of land titles in the ceded terri- tories. The bill provided for a board of commissioners who were to examine the titles to land claimed in California and New Mexico, separate the claims into four classes, and report to the Secretary of the Treasury. Benton denounced the plan as 8 Accounts of the Sacramento squatter riots of 1850 are given in Royce. ‘«The Squatter Riot of ’50 in Sacramento,’’ Overland Monthly, ser. 2, VI, 225-46 (September, 1885); Robinson, The Kansas Conflict, 36-65. Dr. Charles Robinson, later governor of Kansas, was one of the leaders of the squatters during this episode. His account is therefore in favor of the settlers, while Royce is hostile to them. 9 Sacramento Placer Times, Dee. 15, 1849; Robinson, C., The Kansas Conflict, 37-65; Picayune, Oct. 1, 1850. 10 Sacramento Placer Times, May 22, 1850. Alta, May 24, 1850. The memorial was to have been presented to Senator Walker, of Wisconsin, but by mistake it was forwarded to former Secretary Walker. 11 Picayune, Aug. 16, 1850. The Picayune was anti-squatter. In its editorials it frequently denounced the squatters as mischief makers. See editorials of October 3, 17, 1850.. 2 University of California Publications in History [Vou. 16 equivalent in its operation to the confiscation of the landed property of the Mexican landowners in the territories, in viola- tion of the treaty of 1848 and the law of nations. His own plan was to weed out illegal claims but not to impeach all titles in the territories.'* Neither plan was accepted. In 1849, Secretary of the Interior Ewing recommended the establishment of a judicial commission to examine and settle land claims in California and New Mexico. He advised recognizing as valid all claims which had been ‘‘regular and fair in their inception, but which had not been perfected.’’ He also directed William Carey Jones to visit Mexico and California to obtain authentic information from the archives with regard to matters pertaining to Spanish and Mexican land claims in California and New Mexico."® Jones submitted his report on March 9, 1850. He stated that some of the claims, good in their inception, had not been per- fected on account of negligence; that in some claims the con- dition of occupancy had not been carried out; and that no regular surveys of grants in California had been made. His con- ce clusions were that the grants in California were mostly ‘‘ perfect Co « titles... . and those which were not perfect—that is, which lack some formality, or some evidence of completeness, have the same equity as those which are perfect, and were and would have been equally respected under the government which has passed away.’ The settlers who relied upon Halleck’s report accused Jones of being prejudiced in favor of the Mexican land claimants. Shortly after the California members took their seats in Con- gress, Senator Fremont introduced a bill in the Senate providing for a board of commissioners, whose decision against the United 12 Sections of this elaborate bill are given in the Cong. Globe, 30 Cong., 2 Sess., 254-57, 265-67. 13 Hwing to Jones, July 12, 1849, and Butterfield to Jones, July 5, 1849 (H. Ex. Doc. 17, 31 Cong., 1 Sess., 113-17 [573]). 14 Jones, Report (Sen. Ex. Doc. 18, 31 Cong., 1 Sess., 34-35 [589]). This report is also printed in part as Land Titles in California.1927 | Ellison: California and the Nation 13 States was to be final, but the claimant was given the right to appeal to the federal courts. Senators Gwin and Benton criti- cized the bill. Gwin, as the spokesman of the settlers, contended that Fremont’s bill was prejudicial to the interests of the govern- ment and the American settlers. His substitute plan conferred upon the United States, also, the right to appeal from the decision of the board of commissioners to the federal courts. He intimated that some of the large claims were spurious. Benton declared war on all plans which aimed to compel the claimants to ‘‘run the gauntlet of three different lawsuits,’’ resulting practically in the confiscation of the property of the Spanish and Mexican landowners. ‘‘The idea of fraud,’’ he said, ‘is the utmost absurdity, the utmost preposterity.’’ His own plan provided for a recorder who was to collect the evidence of titles to lands claimed. The recorder, in conjunction with the United States District Attorney, was to summon to a hearing all claimants the validity of whose titles were in doubt. A decision in favor of the claimant was to be final except in the case of his son-in-law, Fremont. In several eloquent speeches Gwin pointed out that his own plan was in accordance with the Treaty of Guadalupe-Hidalgo, with international law, and the decisions of the United States Supreme Court.'® Gwin’s bill became a law on March 3, 1851. The act provided for the appointment by the President, with the consent and advice of the Senate, of a board of three commis- sioners whose office was to continue until March 3, 1854, unless sooner discontinued by the President. To protect the interests of 15 Cong. Globe, 31 Cong., 1 Sess., 2045-46, 2047. Gwin says in his Memoirs, 42, that Fremont, who was the owner of one of the largest and most valuable grants in California, was selected by the California land claimants as their spokesman; while Gwin was considered as the spokesman of the landless class. Fremont’s land bill was denounced by some in Cali- fornia. The Picayune held that the bill gave too much power to the com- missioners, and would open a way for the employment of sinister influences. Picayune, Nov. 14, 1850; Sacramento Transcript, Dec. 6, 1850; Courier, Novy. 11, 12, 1850.14 University of California Publications in History [Vou. 16 the United States, the President was to appoint an agent whose duty was to attend the meetings of the board and to superintend the interests of the government. To this board, holding its ses- sions at times and places named by the President, every person claiming land in California under a Spanish or Mexican title was to present the same within two years; with all the docu- mentary evidence and testimony of witnesses in support of the claim. Upon examination of the evidence presented by the claimant and the United States agent, the board was to decide upon the validity of the claim. Within thirty days after the decision was rendered, the board was to certify the same, giving the reasons on which it was founded, to the United States Dis- trict Attorney. The claimant and the United States had a right to appeal to the District Court, and from its decision to the Supreme Court, within six months of the decision of the District Court. In their decisions the board of commissioners, the Dis- trict Court, and the Supreme Court were to be guided by the “Treaty of Guadalupe-Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the Supreme Court of the United States, so far as they are applieable.’’ All the lands of the rejected claims were to be deemed a part of the public domain. For all claims finally confirmed, the claimant was to be entitled to a patent upon his presenting to the General Land Office an authentic certificate of the confir- mation and a plat or survey of the land approved by the sur- veyor general of California. The patent thus issued was to be conclusive between the United States and the claimant only, but was not to affect the interests of third persons. Should any per- son contest the title of the claimant he might secure an injunc- tion from the District Court preventing the issue of the patent until the final decision. In the case of town or farm lots held under a grant from a corporation or town to which lands had1927 | Ellison: California and the Nation 15 been granted for such purposes by the former governments, the claims were to be presented by the town authorities and the mere proof that the town was in existence on July 7, 1846, was to be prima facie evidence of the grant to the corporation, and to the individuals who held under the corporation.’® Policy of the first board—The instructions to the board of commissioners stated that the object of the law of March 3, 1851, was to recognize all bona fide valid land titles and “‘to detect and forever put to rest, all fabricated, fraudulent, or simulated erants.’”7 On January 21, 1852, the board commenced receiv- ing petitions and notices of claimants. The work of the commis- sioners moved slowly, for they had to inform themselves of the intricate matters of the Mexican land grants. Moreover, the United States agent, who had to face in the counsel of the claim- ants the ablest talent to be had, found himself overwhelmed with work. The people of California soon became impatient and many accused the commissioners of inefficiency. At last, in August, 1852, the board made three decisions, con- firming all three claims on ‘‘broad principles of equity’’ which were to form a guide for future action. In the case of Cervantes, for a tract of land of two square leagues, the board overruled the objections of the United States agent that the grant lay within ten leagues of the seacoast. In the ease of Reading, the board admitted that the title for a certain tract of land six leagues square was imperfect, but it held that the act of March 3, 1851, embraced also incomplete titles. Commissioner Hall held that Sloat’s promise to respect all claims to real estate imposed a 16 United States, Statutes at Large, IX, 631-34. 17 The instructions were issued by the Commissioner General of the Land Office Butterfield, and approved by Secretary Stewart (Sen. Ex. Doc. 26, 32 Cong., 1 Sess., 2-6 [614]). They were also published in the Alta, Jan. 20, 22, 1852; Herald, Jan. 6, 1852. The Herald held that the instructions were stringent and not warranted by the law of March 3, 1851. Especially the provision requiring a survey of the claims was considered unjust. Jan. 6, Feb. 23, 1852.ee 16 University of California Publications in History [Vou 16 solemn obligation upon the government to lve up to that promise.*§ Public opinion was divided on the policy adopted by the board of commissioners. ‘‘ Although we do not favor large landed 7) estates, the decision of the board is just,’’ said the Sacramento Union.'® ‘‘The board decided the eases,’’ said the Alta, ‘upon the broadest principles of equity, in the true spirit of the Treaty.’’*° The settlers, on the other hand, accused the commissioners of corruption and advocated their removal. Governor Bigler recommended to the legislature that it memorialize Congress to repeal the act of 1851 and have an act passed providing a mode for deciding all claims in the United States District Court, where rules of ‘‘legal evidence are observed,’’ and where all parties interested could come before the court.2 A resolution to this effect was introduced in the legislature. Others laid the blame upon the law agent, who was accused of dereliction of duties and even of corruption. The second board—President Pierce removed the old com- missioners and appointed new members. The delay caused by the change of personnel necessitated an extension of time, and by several acts the authority of the land commission was extended to March 3, 1856.2, The second board laid down new principles. It ruled in one decision that conditions of cultivation were to be presumed to belong to all grants made by the Mexican govern- ment; and by the word cultivation was meant more than mere pasturage. Hence, if one used the land for mere grazing pur- poses he could not be considered to have perfected the conditions 18 The decisions of the three cases by the commissioners are found in Pamphlets on California Lands, I, Doe. 2, pp. 3-63. 19 Sacramento Union, Aug. 12, 1852. 20 Alta, Aug. 15, Dec. 22, 29, 30, 1852. 21 California Sen. Jour., 1853, 21-22. The governor was criticized by the Alta and the Herald. They objected to his plan, contending that it would sause delay and would crowd the district court. See Alta, Jan. 7, 26, 1853; Herald, Jan. 6, 1853. 22 United States, Statutes at Large, X, 603.~ 1927 | Ellison: California and the Nation ] and therefore was not entitled to equity. Out of 325 cases decided, 100 were rejected.”° On the whole, the general opinion was that the second board was acting fairly with both sides. Many of the settlers, however, were opposed to the whole policy of the land commission and advocated the settlement of the land question in the federal courts. The confirmation of the extensive Fremont and Bolton- Barron claims called forth condemnation of the land commission and the “‘landed oligarchy.’’ At various settlers’ meetings reso- lutions were adopted declaring that many of the large Mexican claims were fraudulent; that the land should belong to all who cultivated it; and that the rights of settlers upon uncultivated lands should be respected. They demanded that the commis- sioners should take better means against spurious grants, should adhere to strict ruling in adjudicating cases, and that all claims on which conditions had not been fulfilled should be considered as public domain.** Policy of the federal courts.—But the settlers soon found out that the federal courts were also very liberal to the land claim- ants, reversing more rejections than confirmations. The United States Supreme Court declared that the act of 1851 should be administered in a ‘“‘large and liberal spirit,’’ and the tri- ¢ bunals were not to ‘‘exact a strict compliance with every legal , technicality.’’ The court ruled that a claimant could eject a squatter from any part of the exterior boundaries of grants even before the claim had been confirmed.?> Justice Daniel, of the 23 Alta, Dec. 14, 1853. A number of the decisions were published in newspapers like the Alta and the Herald. 24 Californian, July 13, 1853, cited in the Sacramento Union, Aug. 19, 1853; Alta, July 11, 1853, Jan. 18, 28, 1854. ‘‘Announcement of a Set- tlers’ and Miners’ State Convention,’’ Alta, July 20, 1855; Alta, June 8, 11, 22, 23, 24, 25, 26, 27, 1855; Sacramento Union, June 16, 29, Aug. 3, 6, 10, 1855; Herald June 8, 11, 17, 1855. 25 This was due partly to the fact that the district court allowed the presentation of new testimony which the claimants used to good advantage. Van Reynegan vy. Bolton, 5 Otto, 33-37; United States v. Moreno, 1 Wal- lace, 404; United States v. Johnson, 1 Wallace, 328-29.18 University of California Publications in History (Vou. 16 United States Supreme Court, criticized the ‘‘liberal policy’’’ of the federal courts. He maintained that the Mexican laws and regulations with respect to the granting of lands within its terri- tory, such as the prohibition of granting lands within ten leagues of the coast and the necessity of the sanction of the departmental assembly to give validity to a grant, were to govern the conduct of the court. And whenever any inquiries should lead to the conclusion that the claim was not valid in law, the right to the land should devolve upon the United States for the benefit of the national treasury and for the maintenance of equal privileges of all citizens, and not for the benefit of a few monopolists.** Settlers’ grievances—One of the grievances of the settlers was the practice of ejectment without compensation for improve- ments. The’ settlers complained that on account of the uncer- tainty as to the limits of many of the large land claims, it was frequently impossible for them to know whether they were locating themselves upon public domain or lands claimed by private persons. Consequently many honest settlers, after having located themselves in good faith upon small parcels of land, and after having made valuable improvements thereon, would dis- cover their settlements to be on lands claimed under a Spanish or Mexican grant. They therefore demanded that their locations 26 Arguello et al. v. United States, 18 Howard, 550-53. ‘‘The decisions in all the causes above enumerated [said the justice] have, according to my apprehension, been made in violation of the acknowledged laws and authority of that government which should have controlled those decisions, and the subjects to which they relate; are subversive alike of justice and of the rights and the policy of the United States in the distribution and seating [settling?] of the public lands,—of the welfare of the people of California, by ineiting and pampering a corrupt and grasping spirit of speculation and monopoly,—subversive, likewise, of rules and principles of adjudication heretofore asserted by this court in relation to claims to lands within the acquired domain of the United States... - I cannot consent to impair or destroy the sovereign rights and the financial interests of the United States in the public domain. I can perceive no merit, no claim whatsoever, to favor, on the part of the grasping and unscrupulous speculator and monop- olist; no propriety in retarding, for his advantage or profit, the settlement and population of new States, by excluding therefrom the honest citizen of small means. ’’1927 | Ellison: California and the Nation 19 should be respected or at least that they should be compensated for their improvements. To protect this class of settlers Gwin, in 1852, introduced a bill in the United States Senate which proposed to allow the actual settlers to retain the tracts of land covered by their improvements, not to exceed the ‘‘most minute legal subdivisions > of the public lands,’’ and to indemnify the Mexican claimants by giving them an equivalent amount of other lands from the public domain. Gwin made several eloquent speeches, pleading for the rights of the actual settler, who ‘‘has been the favorite of our legislation ever since the adoption of our Constitution.”’ He cited authorities showing that many of the Mexican claims were imperfect or fraudulent in their inception. Jones’s state- ment that the land claims in California were ‘‘mostly perfect titles,’’ he held, was a ‘‘piece of imposture and deception.’’ But the opposition—his colleague Weller among them—contended that the act would. violate the letter and spirit of the Treaty of Guadalupe-Hidalgo, maintaining that the claimant was entitled to the land which had been confirmed to him. The bill was rejected.?? The land claimants condemned Gwin’s bill as an act of con- fiscation. The settlers, however, commended his action. Bills were introduced in the legislature in 1853 insuring compensation to the settlers for improvements, in case of ejectment, but with no success. In his annual message of 1856 Governor Bigler advocated the passage of such an act. He could see no good reason why the landowners should object to such a law, for the improvements as a rule enhanced the value of the land.2* In 1856 the legislature passed a law declaring that all lands in California should be considered as public domain until the legal title had passed from the government to the claimant. In ease of ejectment the owner was to pay the settler for the improve- 27 Cong. Globe, 32 Cong., 1 Sess., 1129-30, 2033-37, 2038. 28 California, Sen. Jowr., 1854, 21-22; 1856, 39-40.20 University of California Publications in History [ Vou. 16 ments and growing erops.?® The state supreme court, however, declared the act unconstitutional.*° The settlers also complained against the evils of floating grants and the unlimited powers of the surveyor general. It was asserted that the grantees, with the help of the surveyor general, shifted the lines of confirmed claims to absorb some valuable tracts of land on which improvements had been made by settlers, or to absorb some valuable mineral lands. ‘‘Who can lie down at night,’’ reads the address of one of the settlers, ‘‘without fear lest morning may surprise him with some unheard of grant drifted over upon his homestead.’’ The settlers held meetings denouncing the ‘‘mercenary’’ courts and the ‘‘orasping land monopolists.’’*! The assembly adopted resolutions urging Con- gress to ‘‘prevent the issuance of a patent to claimants in all cases where the right of the claimant was imperfect, inchoate, and incomplete, at the date of the conquest of California’’; also to prevent the ‘‘location of all unlocated floating grants on other than unoccupied lands’’; and to make the duties of the surveyor general ‘‘fixed and certain, giving him no diseretion in locating erat: The land claimants were also dissatisfied with the policy adopted under the act of 1851. Ina memorial to Congress they complained that the mode of settlement of land titles under the act of 1851 was a source of injustice and hardship to the land- owners and detrimental to the interests of the state. They asked for some Congressional legislation which should terminate the 29 California, Statutes, 1856, 54-57. 30 Billings v. Hall, 7 Cal., 1-18. Justice Terry presented a dissenting opinion, pp. 18-26. 31 See Alta, June 11, 1857, for the resolutions read at one of the numer- ous settlers’ meetings. Complaints against the arbitrary behavior of the surveyor in surveying the confirmed grants were voiced throughout the decade. It was claimed that the grantees with the help of the surveyor general shifted the lines of the confirmed claim to absorb some valuable tracts of land on which improvements had been made by a settler, or to absorb some valuable mineral lands. See a sharp criticism against this practice in Alta, Feb. 14, 1859, and Governor Weller’s annual Message (California, Assembly Jour., 1859, p. 57). 32 California, Assembly Jour., App., 1856, Doc. jeli7ale1927 | Ellison: California and the Nation 21 troublesome question of land titles without entailing further expense and labor to defend their just claims.** A bill to this effect was introduced in the House, in 1856, by Herbert, of California. It provided that, upon the presenta- tion by a land claimant in California to the General Land Office, of a certificate of confirmation issued by the board of land com- missioners or by the United States courts, together with a plat or survey of the land confirmed, a patent to such lands shonld then be issued to the claimant without delay. The bill was denounced in California as ‘‘one of the greatest frauds ever contemplated perpetration’’; a ‘‘swindle upon the people of California.’’ Remonstrances against the passage of the bill were signed and forwarded to Washington. Denver, of California, who led the opposition to the bill, admitted that the land claim- ants in California had been wronged and he was in favor of having the federal government reimburse the claimants the money they had expended in prosecuting their claims.. But the passage of the bill, he pointed out, would mean the issuance of patents to fraudulent claims which by mistake had been con- firmed by the land commissioners, inflicting injury on the settlers who had acquired vested interests under the preemption laws. The bill was tabled.** The position taken by the public in general was that, since California had been annexed with all encumbrances of land grants, it was incumbent upon the United States government to protect the property rights of the Mexican claimants, and it was wrong for the settlers, dubbed squatters, to invade vested rights. But as time went on and the commissioners confirmed several large claims, commonly believed to be spurious, the cause of the settlers became more popular. Commenting on the Bolton and Barron claim the Alta said: 83 Cong. Globe, 34 Cong., 1 Sess., 1438. 34 Cong. Globe, 34 Cong., 1 Sess., 1302. App. 709-12. The bill is given in extenso in Sacramento Union, July 9, 1856.22 University of California Publications in History [Vou. 16 Time was when, if a man had a bit of dusty parchment containing an indefinite description of any tract of country which was never occupied, it was considered by some men as rank robbery to trespass upon it. Anything in the shape of a Mexican grant was esteemed sacred, and it was not thought necessary to prove its validity or have it affirmed by the rightfully consti- tuted authority. The man who knew it to be a fraud, and knew that it could not be confirmed, if he settled upon the lands covered by it, was branded as a vagabond and thief, and the indignation of all law-loving citizens was invoked upon him. Times change, and with the times the relative positions of men. The same parties who have for years been warring against the settlers . . . . they now fall to abusing the poor Mexicans, and swear that all Mexican grants were frauds from the beginning.35 Later on when the fraudulent Limantour claim was exposed, many began to question the integrity of the land commissioners and of the judges of the courts who had confirmed claims com- monly believed to have been forged. They blamed the United States District Attorney for not making sufficient effort to protect the interests of the settlers, who relied upon the govern- ment to defend them against unscrupulous speculators.*° Attorney General Black then appointed Stanton as special counsel to assist the United States District Attorney in Cali- fornia in the matter of land claims. In his report to President Buchanan, Black stated that more than two-thirds of the forged land claims, valued at $150,000,000, had been exposed and defeated. In the same report Black presented a severe indict- ment against the California land claimants. An investigation in the archives revealed the fact that . there had been an organized system of fabricating land titles carried on for a long time in California by Mexican officials; that forgery and perjury had been reduced to a regular occupation; that the making of false grants, with the subordination of false witnesses to prove them, had become a trade and a business. Desolate islands, barren rocks, and projecting promontories, useless to individuals but of priceless value to the government, had been seized upon under these spurious titles, with a view of extorting millions from the United States, for sites necessary to defend the national 35 Alta, Dec. 12, 1853. 36 Alta, Sept. 11, 1859, June 2, 1860; Bulletin, Feb. 2, 1859. The claim of the Frenchman Limantour. Alta, Feb. 10, 24, Nov. 4, Dee. 6, 9, 1859; July 2, 1860.1927 | Ellison: California and the Nation 23 possessions on the Pacific, and to light and guard the commerce of the coast. The richest part of San Francisco was found to be covered by no less than five different grants, every one of them forged after the conquest ; Sacramento, Marysville, Stockton, and Petaluma were claimed on titles no better: <+ 5 ;, . It must be remembered that the grants in most of these fraudulent cases were very skilfully got up, and were supported by the positive oaths, not merely of obscure men... . but also by the testimony of distinguished persons who had occupied high social and political places under the former government.37 In California, Black’s course received both approval and con- demnation. The Alta commended his energetic measures in ‘‘oiving the subject of fraudulent manufactured grants a thorough and searching ventilation.’’** On the other hand, those who were interested in the land claims severely criticized Black. William Carey Jones denounced Black’s report as a ‘‘reckless and mischevious mendacity,’’ offensive to the people of California by accusing so many of them of forgery and dishonesty.*® On the recommendation of the Attorney General, Congress passed an act for the prevention and punishment of frauds in land titles in California. To forge or assist in forging any title to lands claimed from the government was made a misdemeanor, punishable by imprisonment, hard labor, and a fine not exceed- ing ten thousand dollars. The bill was hurriedly passed without discussion, in order that the act might be published before knowledge of its consideration could reach California, so as to prevent the consummation of forgeries before the act went into effect.*° Summary and conclusions—The question of California land titles continued to be troublesome for many years. It was even once proposed in Congress to reopen eases which had been already confirmed, but were later suspected of being fraudulent. 37 H. Ex. Doc. 84, 36 Cong., 1 Sess., 31-32. 38 Alta, June 27, 1860. 39 Jones, Land Titles in California, Doe. 6, nine letters. 40 United States, Statutes at Large, XI, 290-92.24 University of California Publications in History (Vou. 16 This proposition raised a storm of protest among those inter- ested.*! By 1870, however, the acute stage of the matter had passed. According to some authorities, out of the eight hundred and thirteen claims presented to the land commission, six hun- dred and twelve claims were confirmed, one hundred and seventy- eight were rejected, nineteen were discontinued, and four were still pending in 1880.*? Undoubtedly some bad claims were confirmed** and some good claims were rejected.. We may also concede that the policy of settling the California land grants as outlined in the act of March 3, 1851, was not very successful; it satisfied neither the settlers nor the Mexican claimants, many of whom had been impoverished by the prolonged litigation. A more satisfactory policy, perhaps, would have. been the one pointed out by Henry George, namely, that the government should confirm. all the small claims after a brief examination of their titles, while the large and suspicious claims should be submitted to the federal courts for, a more thorough inquiry; as soon as a large claim was declared valid, the government should allow a certain portion of the grant, and compound ‘‘for the rest the grants called for by the payment of a certain sum per acre, turning it into public domain,’’ subject to preemption. ** ': 41 Pamphlets on California Lands, 1; Doc. 11, speech of Phelps of the House of. Representatives before the House,Committee on Private Land Claims. See also speech of Irving on the same subject (tbid., II, Doc. 9). 42,Baneroft, California, VI, 570, note 45. Based on the official. report on the Spanish and.Mexican grants in California, prepared by the Deputy State Surveyor General, Stratton, in 1880. (In California, Senate and Assembly Journals, 1881.) In the report are given the names of the grants, the confirmees, area, condition of title, and where located. The area covered by all the private grants presented to the land commission was estimated by District Attorney Black around 19,148 ‘square miles (H. Ex. Doc. 84, 36 Cong., 1 Sess., 30 [1056]). According to Donaldson, the United States government had confirmed in California a total of 8,332,431,924 acres, the smallest claim being for 1.770 and the largest 133,440.780 acres. Public Domain, 381. 43 A number of pamphlets were published ‘‘exposing land frauds.’’ See Kelly, Land Frauds of California (in Pamphlets on California Lands, TI, no. 10); Stuart, Land Titles in California (ibid., no. 14); Stuart, Open Letter (ibid., no. 15). 44 Henry George, Our Land and Land Policy, National and State, Addresses, no. 7, pp. 14-17.CHAPTER III FEDERAL LAND GRANTS TO CALIFORNIA Public land policy prior to 1850.—By 1850 the United States had adopted a more or less well defined land policy. It consisted in making liberal grants to the new public land states for the promotion of education and internal improvements, and in selling the remainder on liberal terms. The largest of the grants was the reservation of the sixteenth section in every township for school purposes. This grant commenced with the act of April 30, 1802, authorizing the formation of a state government in Ohio. As the influence of the west increased, it was proposed, in order to encourage settlement in the west, that two sections in each township should be reserved for school purposes. In the act of August 14, 1848, for the organization of the territory of Oregon, the sixteenth and thirty-sixth sections in each township were reserved for school purposes." Congress also donated to all new states five hundred thousand acres for internal improvements, two townships for universities,” four sections’ for public buildings, and five* or three per cent of the net proceeds of the sale of the public lands within the state. The school land grant, together with a saline reservation, the four sections of land for public buildings, and the five per cent fund, were given on condition that the states would not tax the lands sold by the United States for a period of five years after the date of the sale. 1 United States, Statutes at Large, IX, 330. 2 Some of the states received more than two sections. 3 This grant varied from two to eight sections. 4 Although commonly known as the five per cent fund, it varied from two to five per cent.26 University of California Publications in History (Vou. 16 The other phase of the disposition of public lands was the policy ‘of dealing with the settlers. The manner of disposing of the public lands to settlers underwent a change. Up to 1800, the government looked upon the public domain as a source of revenue with which to discharge the national debt, and not so much from the point of view of settlement. Hence the policy was to sell the land only in large quantities of six hundred and forty acres at two dollars the acre as the minimum price.® In 1800 was in- augurated the system of selling small tracts of public lands on eredit at two dollars an acre. The credit system led to specu- lation and resulted in financial disaster. It was then displaced by a policy of selling land for cash at one dollar and twenty- five cents an acre. The next step in favor of the bona fide settlers was the enactment of the general preemption law of 1841, giving citizens the right to settle on surveyed lands, offered or not offered for sale, and to purchase their holdings, not over one hundred and sixty acres, at the minimum price of one dollar and twenty-five cents an acre. A liberal land policy for California.—This, in brief, was the federal land policy prior to 1850. By the cession of California to the United States, all the lands which had not been granted by the former governments to individuals or towns became a part of the public domain. That California would receive as much as the most favored state or territory in this respect was almost a foregone conclusion. In their messages to Congress Presidents Polk and Taylor recommended a libéral policy with regard to the public lands in California’ and a bill was intro- duced in Congress, but no action was taken upon it. There was, however, a strong sentiment in California that the whole public domain within her limits should belong to her. The question came up at the constitutional convention in 1849 when 5 Donaldson, Public Domain, 200. 6 Message, Dec., 1848. Richardson, Messages, 1V, 643; Message, Dec., 1849. Richardson, Messages, V, 20.bo ~l 1927 | Ellison: California and the Nation McCarver, from Sacramento, submitted a resolution declaring that the public domain within the boundaries of California, ‘‘in right and justice, belongs to the people of California.’’ McCarver pointed out that, if the federal government should retain the publie lands in California, half a century would elapse before the state could derive any revenue from them. The resolution was rejected partly for the reason that it was a matter for action of the legislature and not for the convention, and partly because it was believed that the adoption of such a resolution might cause objection in Congress and thereby strengthen the opposition to the admission of the state into the Union.’ Although the resolution was rejected a number of delegates expressed themselves in favor of its sentiment. Some who dis- countenanced any claim to the lands asa matter of right, admitted that it would be advisable to ask Congress to relinquish to Calli- fornia all the public lands in view of the fact that she had no appropriation for the support of the government. The conven- tion also adopted an ordinance in which the state, in return for its pledge not to interfere with the primary disposal of the vacant lands within its borders, asked for large land grants: one section for every quarter-township of the public lands; seventy-two see- tions for the support of a university ; 500,000 acres in addition to the 500,000 acres granted to every new state under the act of 1841; four sections for a seat of government; all salt springs within the state; and five per cent of the net proceeds of the sale of the public lands within the state.® Shortly after California was admitted into the Union Senator Fremont introduced into Congress a few bills for land donations to California. But the session closed without passing any land 7 Browne, Debates, 316, 465. Indeed Senator Soulé, of Louisiana, used McCarver’s resolution as an argument against the admission of California, pointing out the radical tendencies among the people in California (Cong. Globe, 31 Cong., 1 Sess., App. 960 et seq.). 8 The ordinance is given in full in Browne, Debates, 467. The people of California believed that their state was entitled to more lands, because of its peculiar conditions.28 University of California Publications in History (Vou. 16 laws for California and without making to her any of the cus- tomary land grants made to each new state upon its admission into the Union. By the general act of September 4, 1841,° how- ever, California received her 500,000 acres for internal improve- ments, and by the act of September 28, 1850,*° granting to all the public land states the swamp and overflowed lands within their limits, California became the owner of several millions of acres of some of the best lands within her boundaries. Early in the second session of the thirty-first Congress, Gwin introduced a bill in the Senate ‘‘to provide for the survey of the public lands in California; the granting of donation privileges therein and for other purposes.’’ Many, especially the southern Senators, objected to the third section of the bill, which proposed to donate a tract of land, three hundred and twenty acres, to any citizen of the United States (and to those who had declared their intention of becoming such) who on the 30th of May, 1848, inhabited and cultivated a tract of land in California not right- fully claimd by others and who should continue to inhabit and cultivate it for three consecutive years. The opposition contended that such a liberal policy in dealing with the public lands would squander away the whole public domain and would tend to hold out inducements to immigration into California that would drain the eastern states of their labor- ing population. ‘‘When have we ever acted thus towards any other people of this country?’’ exclaimed Dawson of Georgia. He complained that ‘‘ Whenever California comes up, everybody lets her have her way and nobody seems to oppose her.’’ The opposition admitted that the Oregon law extending the time to January, 1851, was even more liberal than the California bill, but the two eases, they said, were unlike, for in Oregon, where the country was sparsely settled and where the land itself held 9 United States, Statutes at Large, V, 455. By the eighth section of this act, a grant of 500,000 acres was made to the new states which had been admitted, and to the new states which should hereafter be admitted. 10 United States, Statutes at Large, IX, 519-20. ~1927 | Ellison: Califorma and the Nation 29 out small inducements for immigration, there was some justifi- eation for offering bounties to increase immigration. None of these inducements were needed for California.tt The result was that another session closed without legislation for the California public lands, with the exception of an appropriation providing for their survey. California resented the neglect of Congress to legislate for the public domain within her boundaries. It was complained that this policy of Congress retarded the growth of the state. Were the lands rapidly surveyed and the people of California allowed to acquire titles to land, an immense impetus would be given toward the settlement of the country, building of permanent improvements, ete., thereby increasing the taxable property of the state. In newspaper editorials, at party state conventions, in the messages of the governor and resolutions of the legislature, Congress was urged to donate the public lands in limited quan- tities to actual settlers.‘2 The arguments in favor of this policy given in a senate memorial to Congress were: the reduced pro- portion of arable lands belonging to the public domain within the state on account of the extensive Mexican land grants; the heavy cost of immigration to California; the great expense to be incurred in the preparation and settlement of a farm; and the need of a large sturdy yeomanry as the best means of self-defense in case of war with a foreign power, for, on account of the inadequate facilities for communication, California would have to depend upon her own man power. Give a man sufficient land to support himself and his family, pleaded the memorial, and ‘‘he will be found fighting beneath your banner in the day of battle.’’** . 11 Cong. Globe, 31 Cong., 2 Sess., 153, 744-47. 12 Courier, Sept. 17, 1850; Alta, Feb. 13, March 1, April 19, Aug. 6, Noy. 22, Dee. 15, 1851; Herald, Feb. 10, 1852; Evening Picayune, Mar. 24, 1851, Jan. 27, 1852, April 16, 1852; Davis, Political Conventions in Califor- nid, 13, 19, 24-25, 28; California, Sen. Jowr., 1852, 77-78; Jan. 5, 1853, 22. 13 California, Sen. Jowr., 1852, 575-84.30 University of California Publications in History [Vou. 16 4 The Act of March 3, 1853.—California finally succeeded in having Congress pass a bill which provided for the introduction : of the whole land machinery for the disposition of the public domain in the state. The act of March 3, 1853, provided for surveys and land offices, and opened the unreserved agricultural public lands, surveyed, and unsurveyed, to preemption according to the act of September 4, 1841. It also provided for several grants of land to the state, such as the sixteenth and thirty-sixth sections of each township for the purpose of public schools, two entire townships for the use of a seminary of learning, and ten entire sections of land for the purpose of erecting publie build- ings.‘* There was opposition to the grant of two sections in every township for school purposes, but the California Senators argued that their state was entitled to the same amount of land for educational purposes as their neighboring territory, Oregon. Moreover, in view of the character of the country, California would in the end receive in her two sections of land less value than the other states received in their one section.’® California was not fully satisfied with the land act of 1853. Governor Bigler urged the legislature to memorialize Congress SC RE a to grant the public lands in limited quantities to actual settlers. He could see no reason why the government should require from the settler in California one dollar and twenty-five cents an acre, while in Oregon public land was given to the settlers free of Sea wee ee charge. He held that the immigrants to California encountered : the same hardships as those who immigrated into Oregon.'® State ownership of the public lands.—Neither did the land grants to the state entirely satisfy the state authorities. A move- | ment was set on foot in 1853, 1854, 1855, to urge Congress to | 14 Cong. Globe, 32 Cong., 1 Sess., 1771, gives the bill in entirety; United States, Statutes at Large, X, 244-48. 15 Cong. Globe, 32 Cong., 1 Sess., 1772, 1784, 2235. California was the first state to receive two sections; United States, Statutes at Large, X | 3 244-48. | 16 California, Sen. Jour., 1854, 22.1927 | Ellison: California and the Nation 31 relinquish the public lands within California to the state. The arguments of the advocates of this policy, as expressed in Gov- ernor Bigler’s messages, in the debates of the legislature, and in the press were as follows: California had gone through a peace- ful revolution, had organized an independent sovereign state, and had come into the Union with the ownership of her public lands as an attribute of sovereignty, just as in the case of Texas. To be sure the constitutional convention adopted an ordinance disclaiming all rights to the public lands, but the convention had no right to pass such an ordinance, and this ordinance was of no effect, because it had not been voted upon by the people. Neither did the legislature assent to the stipulation in the act of admis- sion that the state should not interfere with the primary disposal of the public lands. A special committee was appointed in the senate to inquire into the expediency of reporting a memorial to Congress, asking it to concede to the state of California all the public lands within her limits. On April 4, 1853, the committee submitted a report and a memorial to Congress. In the report the committee stated that some of them believed that ‘‘the public lands within the State are, without further action, the property of the State.”’ They were therefore against drawing up a memorial that would concede to the federal government the right to these lands. The committee, however, agreed on a memorial which asked Congress to acknowledge California’s right to all the publie lands within her limits, or to relinquish these lands as a matter of expediency. The argument given in the memorial for the claim of the state to the public lands is as follows: The rights of sovereignty and eminent domain possessed by each State, carry with them the right to all the lands, bays, lakes, rivers, water courses, and other property of the State not belonging to individuals, unless the State have yielded up that sovereign right, in whole or in part, to another. The people of California, left without government, formed a government of their own. . . . . Thus organized, and possessed of all the powers of a sovereign State, they asked and were received into the Union on an equality with their sister States.....32 University of California Publications in History [Vou. 16 The right of the United States to the public domain within a State, did not exist in the early history of our Confederacy. It has been created since by compacts and agreements between the Federal Government and several of the new States. This State has never been a party to any such compact, nor does the constitution of the State authorize the compact to be made on behalf of the State. .... 4 As the United States does not derive this right either from the Constitution or from compact with the State, it follows that she does not possess it. The sovereignty, the jurisdiction, and the right to publie property within the State, reside in this State as fully as it does in the State of Texas, or in any of the original thirteen. As the United States had done many acts tending to show that she claims right to the public lands of this State, inconsistent with the sovereign dignity of the State, it becomes necessary for the State to assert her rights, and to ask, in distinet terms, an acknowledgment of them on the part of the General Government. If this acknowledgment should be withheld from us, then, without acknowledging any right in the United States to the public lands in California, we ask that her claim to them be conceded to the State. The memorial gave several reasons why the public lands should be relinquished to the state. First, a political reason: the ownership of the public lands by the federal government would increase the patronage of the government within Cali- fornia to such an extent that, in view of the remoteness of the state from Washington, there would be danger of abuse of this power, threatening the safety and institutions of the state. Second, an economic reason: should the general government , o oD retain the public lands they would prove to be a burden instead of a source of revenue, while at the same time the progress of the state would be retarded.*‘ In his annual message of 1855, Governor Bigler discussed this question at considerable length and urged the legislature to memorialize Congress to relinquish the public lands to the state.” The question was discussed at great length in the assembly, 17 California, Sen. Jour., 1853, App., Doe. 55. The report was accepted and laid on the table, and it was ordered that two thousand copies be printed (ibid., 295). 18 California, Sen. Jour., 1855, 34-36. The governor as well as the senate committee followed here the ultra states’ rights doctrines. Their arguments rested upon the assumption that the states are absolute sovereign- ties and that sovereignty necessarily includes the ownership of the public domain; and finally that the general government claimed the public lands by virtue of its sovereignty, not by acquisition and deeds of cession.1927 | Ellison: California and the Nation 39 where Speaker Stow and Assemblyman Ryland made elaborate speeches for the state ownership of the public lands. On the other hand, Assemblyman Graves contended that Texas was an independent state when she entered the Union, while California never had been independent. The United States government had acquired California from Mexico and it had never divested itself from the lands within the territory." The right of the state to the public lands was a moot question from time to time throughout the decade. As late as 1859 Judge Ralston continued to assert the claim of the state upon legal and constitutional grounds.?° But the majority of the people were not in favor of this doctrine, fearing that it might lead to an open conflict between the state and the federal government. The legislature frequently passed resolutions asking for additional erants of land to the state. A resolution adopted in 1859 asked Congress to grant to California ten million acres of arable land by which donation the state would be enabled to aid in the con- struction of a transcontinental railroad. The legislature also passed joint resolutions urging Congress to donate the public lands to settlers.** “ The state surveyor general also prepared a bill designed to adjust the whole matter and forwarded it to the state delegation in Congress. The delegation had several conferences with the Commissioner of the Land Office, trying to convince him that the claims of California were just, but all to no effect.*® Final settlement.—State Surveyor General Houghton then went to Washington. He had several long conferences with Com- missioner Edmunds and succeeded in gaining his promise to cooperate with the members from California in urging Congress to pass a law satisfactory to the interests of the state.°” On May 29, Senator Conness of California introduced a bill to quiet land titles in his state. After a hurried consideration in the Committee of the Whole it passed the Senate. But it met with strong opposition in the House from Julian of Indiana, chairman of the Committee on Public Lands. He contended that the bill was in the interests of land speculators and was subversive to the interests of the government preemptors in California. He had the clerk of the House read several letters which he had received from settlers in California who stated that, encouraged by the decisions of the Land Office with regard to the invalidity of many of the locations made by land speculators under the authority of the state, they had in good faith settled on these lands and made valuable improvements under the general pre- emption laws. Should Congress confirm these locations, then all the settlers would be ejected. Julian charged California with bad faith toward the national government. After resorting to log- rolling and private interviews with the members of the House, 55 California, Statutes, 1863, 798-99. 56 Report of the surveyor general of California from November 1, 1865, to November 1, 1867 (California, Sen. and Assembly Jours., 1867-1 1868, App. I, Doe. 3, p. 13); Coy, Development of the Humboldt Bay Region, MS Thesis (Ph. D.), University of California. 57 Annual Report of the surveyor general of California for 1865-1867 (California, Sen. and Assembly Jours., 1867-1868, App. I, Doe. 3, p. 17).1927 | Ellison: California and the Nation 47 the California members were finally successful in having the 58 bill passed also in the House.** It was approved July 23, 1866. The act confirmed to the state of California, in part satis- faction of the several grants made to the state by Congress, all its selections upon the unsurveyed portions of the public domain which had been sold under the state laws in good faith, excepting those illegal selections on which existed adverse rights acquired by settlers under the preemption and homestead rights prior to the passage of the act; it also confirmed to the state any lands which had been reserved for military purposes, or for Indian use, mineral lands, and lands held by or claimed under a valid Mexican or Spanish grant. The state was not to secure a greater quantity of land than it was entitled to under the grants. In case the surveys made by the state did not agree with those made by the United States, the state locating agent was to file a cer- tificate of correction in the United States Land Office. The holder of the state title was to prove up his purchase and claim, and if all was in accordance with the provisions of the act, the Commissioner General was to certify over to the state the land embraced therein. The fourth section of the act instructed the Commissioner General to certify over to the state, within one year after the passage of the act, all of the swamp and overflowed lands repre- sented as such upon the approved plats of townships made by the United States. Should California claim as swamp any land which was not represented as such upon the maps of the United States surveyor, the character of these lands, on September 28, 1850, should be determined by testimony to be taken before the 58 Cong. Globe, 39 Cong., 1 Sess., 2866, 2957, 3080, 3564-67. Julian was always fighting against that which he considered wrong. He was a champion of freedom and justice. He was one of the leaders of the early Free Soilers. He advocated the homestead policy; fought against land monopolies; was always championing the rights and interests of the true settlers. In his opposition to the bill he was actuated by his aver- sion to land monopolies, and to despoliation of the public domain.48 University of California Publications in History [Vou. 16 United States Surveyor General. The sixth section of the act recognized the right of the state to select for school purposes other lands in lieu of sections sixteen and thirty-six which ‘‘ were settled upon prior to the survey, reserved for public uses, eovered by Spanish and Mexican grants, when the final survey of such grants shall have been made.’’*® The settlement outlined in this act conceded to California many of the points she contended for, but there still remained a number of matters to be adjusted between the state and federal authorities. There was the question whether or not the act of March 3, 1853, granted to the state the sixteenth and thirty-sixth sections in mineral districts. The state authorities contended that since the act did not mention any reservation with regard to the mineral lands, while all the other acts making land grants to the state expressly reserved to the United States such lands, the natural inference was that Congress did not intend to exclude mineral lands from this grant, and that the title of the state became vested in these lands at the time the grant was made. In support of this position were cited the cases of Higgins v. Hough- ton, and Sherman v. Buick, in which the supreme court of Cali- fornia decided that the act of Congress granting to California the sixteenth and thirty-sixth sections in each township did not except the mineral lands from the operation of the act.®° On March 28, 1874, the state passed an act for the disposition of the sixteenth and thirty-sixth sections belonging to the state, which were known to be mineral in character.*t The United States Land Office, however, maintained that the mineral lands were not included in the school land grant, for it was the uniform policy of the federal government to exclude the mineral lands from all land grants. Moreover, the act of July 23, 1866, 59 United States, Statutes at Large, XIV, 218-21. 60 Annual Reports of the surveyor general of California for 1870-1871, 5-6; 1871-1873, 7; 1879-1880, 9-10 (25 California, 252-62; 45 California, 656-69). 61 California, Statutes, 1873-1874, 766-68.1927 | Ellison: California and the Nation 49 expressly reserved the mineral lands to the government and the amendatory act of July 9, 1870, providing for the disposal of placer mining lands, made no reference to the sixteenth and thirty-sixth sections. In 1880 the question came up before the United States Supreme Court in the case of Miming Company v. Consolidated Mining Company. In view of the fact that the ease involved an issue of great importance to the state of Cali- fornia and to the federal government, the Court permitted the counsel for the state of California to participate in the argu- ment. The decision of the Court was that the grant of the six- teenth and thirty-sixth sections of public lands to California did not include the mineral lands, thus upholding the contention of the Land Office that it was the uniform policy of the government to exclude the mineral lands from all land grants, and declaring that it was not the intention of Congress, when the act of March 8, 1853, was passed, to depart from that policy.®” The Commissioner of the General Land Office also refused to allow indemnity lands for the sixteenth and thirty-sixth sections to be chosen within mineral districts, in spite of the protest of the state authorities that such a policy would deprive the mining counties of the school fund. Bills were then introduced in Con- gress to allow the state of California to select other lands for mineral school lands. One bill was passed in the Senate several times, but it failed in the House.°** Another subject of frequent controversy between the state and federal authorities was the practice of overlisting lieu lands. This was due partly to the irregular and loose way in which the business between the state and the General Land Office was carried on. On the charge that there were listed to California 140,000 acres of land in excess of the number she was entitled to under the law, the Secretary of the Interior issued an order 62 XII Otto, 167-76. 63 The state is now entitled to select other unappropriated lands in lieu of the mineral lands.50 University of California Publications in History (Vou. 16 Yy Yy in 1880 that no further applications for land under the various grants be received from the state of California. When the state surveyor general compared his ledger of all the lieu school lands with the maps and records of the General Land Office, he found that the state of California had received 70,000 acres more than she was entitled to.°* A few decades later we hear again of a controversy between the state and federal government with regard to overlisting some 50,000 acres of land. As a result of the adjustment, the state relinquished to the federal government 32,997.97 acres of land and paid into the federal treasury $22,760.36.°° The five per cent claim.—The five per cent claim, also, was responsible for considerable controversy. In 1878 Captain John Mullan was appointed agent and counselor for the state to prose- eute the claim against the federal government. Upon his arrival in Washington Mullan addressed himself to Congress. Bills were introduced in both houses of Congress asking for the five per cent grant to California. The main argument of the sponsors of these bills was that California, having been admitted into the Union on an equal footing with the other states and having duly surrendered to the federal government the right to tax certain lands, was now in equity entitled to the five per cent claim like all the other states. But the chairman of the House Committee on Publie Lands was not favorably disposed to the bill. He held that California had accepted admission into the Union without such a grant. At almost every session of Congress bills asking for this grant were introduced in both houses. A number of com- mittee reports were made, generally favorable,°® yet the bills were defeated. The defeat usually occurred in the House. It 64 Annual Report of the surveyor general of California, Aug. 1, 1880- Aug. 1, 1882, 6-7. 65 Annual Report of the surveyor general of California, 1919, 10-11. 66 Senate Report 198, 47 Cong., 1 Sess.; Senate Report 125, 55 Cong., 1 Sess.; House Report 707, 45 Cong., 2 Sess.; House Report 345, 47 Cong., 1 Sess.; House Report 1602, 53 Cong., 3 Sess.1927 | Ellison: California and the Nation 51 was not until 1906 that the persistent efforts of California were erowned with success, for which probably the San Francisco earthquake and fire of that year were partly responsible. When ‘‘this great State is still under the shadow of an overwhelming eatastrophe,’’ pleaded Blondell of Wyoming in the House, it is an ‘‘appropriate time to do this act of justice to the people of California.’’ The act of June 27, 1906, granted to the state of California five per cent of the proceeds of cash sales of the public lands in California which had been sold since the admission of the state into the Union. The money was to be devoted to school purposes in California. The aggregate payment on this account up to 1907 was $989,658.78,°" and by 1915 the state’s income from this source had reached over a million dollars. Conclusion.—After studying the California public land ques- tion it seems safe to assert that the action of the state authorities in this matter deserves little credit, to say the least about it. In the reports and messages of the state authorities, issued after the passage of the act of July, 1866, it was frequently admitted that the difficulties in this matter were due to the legislatures of the state ‘‘which in some instances authorized improper and illegal selections of these lands.’’®* Referring to the same sub- ject in his annual message for 1867, Governor Low said: For the confused state of our land matters, the State is largely respon- sible, consequent upon the passage of acts authorizing sales of lands in manner and form contrary to the rules and regulations laid down by the Land Department. Indeed it would seem that former Legislatures had endeavored, by the various acts relative to the sale of land, to devise and carry into execution, plans ‘‘how not to do it.’’69 In each ease of the several important grants, the state had, by legislative enactment, actually overriden some of the pro- 67 United States, Statutes at Large, XXXIV, 518. 68 California, Sen. and Assembly Jours., 1909, App. I, p. 21. Annual Report of the surveyor general of California for 1865-1867, 5. 69 California, Sen. Jour., 1867-1868, 35. See also his annual message of 1865, im California, Sen. Jour., 1865, 44.D2 University of California Publications in History [Vou. 16 visions of the acts making the donations, and had authorized illegal selections. For instance, the act of Congress of Septem- ber 4, 1841, made the grant of five hundred thousand acres to new states for the express purpose of internal improvements which were calculated to benefit the federal and the state gov- ernments. California’s state constitution, however, diverted this grant to the school fund—truly a worthy cause—but contrary to the provision of the grant. Moreover, the act provided that the selections should be made on surveyed lands in parcels of not less than three hundred and twenty acres in one location ; vet the state authorities, under an act of the legislature, sold school land warrants in quantities varying from one hundred and sixty to six hundred and forty acres, to be located on unsurveyed as well as surveyed lands. Likewise with the school township grant. There is nothing in the provisions of the act of March 3, 1853, to indicate that the sixteenth and the thirty-sixth sections might be located on unsurveyed lands. Yet the state authorized the selection upop unsurveyed lands. Then the question of the swamp and overflowed land grant. The most acrimonious criticisms of the policy of the state in relation to the swamp land question were made by later gover- nors and by several investigating committees of the legislature. They pointed out that the state had disregarded the condition of the grant that the proceeds from the sale of these lands should be applied exclusively to a system of reclamation, and had squandered the meager proceeds without devising a real policy of reclamation. In this respect California was not an exception. It was the same story in many other states. ‘‘Never a shake of ague,’’ says Horace Greeley, ‘‘has any pioneer been spared by 970 reason of all the drainage done under the specious act. 70 See Annual Message of Governor Stanford of January, 1863, in Cali- fornia, Sen. Jour., 1863, 40; Annual Message of Governor Low, Dec., 1867, in California, Sen. Jour., 1867-1868, 35-36; Annual Message of Governor Haight, Dec. 8, 1869, in California, Sen. Jowr., 1869-1870, 42-43; also hisOr © 1927 | Ellison: California and the Nation The conclusions arrived at by the several investigating com- mittees were that ‘‘the grossest frauds have been committed in , swamp land matters in the state.’’ ‘‘That, through the con- nivance of parties, surveyors were appointed who segregated lands as swamp, which were not so in fact. The corruption existing in the land department of the General Government has aided this system of fraud.’’ From a mass of evidence examined by the committees, it was shown that much of the land surveyed as swamp was really high and dry,” or, to use once more Horace Greeley’s apt expression, ‘‘lands that had not muck enough on the surface to accommodate a single fair-sized frog.’’ The saddest part of the story is that California derived little benefit from these enormous grants:** for she squandered away the lands thus acquired. Annual Message of Dec., 1871, im California, Sen. Jowr., 1871-1872, 39-40; ‘*Report of the Joint Committee to inquire into and report upon the condi- tion of the Public and State Lands lying within the Limits of the State,’’ in California, Sen. and Assembly Jours., 1871-1872, App. II, Doe. 6; ‘“Report of the Special Committee on Resolutions of Mr. Barker of Nevada Concerning Land Monopoly, ete.’’ (California, Sen. and Assembly Jours., 1871-1872, App., Doc. 7); ‘‘Report of the Swamp Land Investigating Committee’? (Sen. and Assembly Jours., 1873-1874, App., Doe. 5). 71 Reports of the Committees cited above. 72 In addition to some minor grants, such as seventy-two sections for a seminary of learning, ten sections for public buildings, and 150,000 acres for an agricultural college, California received 500,000 acres for internal improvements; the swamp and overflowed lands, about 2,042,214.99 acres patented up to 1907; sections sixteen and thirty-six amounting to some 5,610,702 acres, and in 1867 California and Oregon received 2,765,677.10 acres for railroads, thus making an aggregate of some ten million acres.CHAPTER IV THE MINERAL LAND QUESTION IN CALIFORNIA Mineral land policy prior to 1848.—Prior to the discovery of gold in California the United States government had had experi- ence with the regulation of mineral lands that contained only the base metals. The early policy of the government was to reserve the mineral lands, subject to lease by miners. For a few years the miners paid the rent with some regularity, but after 1834 the expense of collecting the rent exceeded the amount collected. Hence in his message to Congress of December 2, 1845, President Polk recommended abolishing the leasing system and offering the mineral lands for sale. He pointed out that the leasing system had not only proved a burden upon the national treasury, but had also led to a wasteful manner of working the mines, and had given rise to much ‘‘friction between the United States and individual citizens.’ Accordingly, by the acts of Congress of July 11, 1846, and March 1 and 3, 1847, the mineral lands con- taining lead, copper, and other base metals were put on the market.” Attempts to legislate for the Californa mines—When gold was discovered in California* the government did not know how 1 Richardson, Messages, IV, 410, 454, 504. According to the official records the rent received for thé years 1841, 1842, 1843, and 1844 amounted to $6354.74, while the expenses of the system during this period amounted to $26,111.11. 2 United States, Statutes at Large, IX, 37, 146—47, 179. 3 Marshall’s discovery of gold in Sacramento Valley was on January 24, 1848. But long before 1848 gold had been found in California near the Colorado River, near present San Diego County, around Los Angeles, and near Monterey. The mineralogist, James D. Dana, of the Wilkes expedition in 1841, mentioned in his book on mineralogy that gold had been found in Sacramento Valley. In his letter to Secretary Buchanan, Thomas O.Or On 1927 | Ellison: California and the Nation to meet the situation. The plans suggested by the government agents in California differed greatly. Colonel Mason recom- mended either the granting of licenses to work small tracts of land, about one hundred yards square, at a rental ranging from $100.00 to $1000.00 per annum; or, the selling of the lands in tracts of twenty or forty acres at public auction to the highest bidder.* On the other hand, Thomas Butler King, in his report to the President, strongly opposed the sale of the mineral lands. He believed that capitalists, by means of paid secret prospectors, would find out the best lands, overbid the poor miners, and thus monopolize the best locations. The resulting inequality in the distribution of wealth would produce discontent among the poor miners and it would be doubtful whether any law opposed to the interests of the great masses could be enforced. Even the employment of troops would be ineffectual, for the soldiers would desert and anarchy would result. King’s plan was to regard the mineral lands as the common treasure of the American people, and any American citizen, by paying to the commissioner of mines an ounce of gold, or sixteen dollars, should be entitled to receive a license to dig anywhere in California for one year. The money collected from these licenses was to be devoted to educational purposes, to the construction of roads and bridges in the mineral districts, and to the discharge of the indemnity to Mexico.° Shortly after Mason’s report was received in Washington, President Polk recommended that Congress either preserve the mineral lands of the Pacific Coast for the use of the United States government, or sell them in small quantities at a fixed minimum price which would secure a large return of money to Larkin wrote on May 4, 1846, that there was no doubt that gold, silver, and other minerals would be found in California. Report of Browne upon the Mineral Resources of the States and Territories West of the Rocky Mountains, November 24, 1866, in H. Ex. Doc. 29, 39 Cong., 2 Sess., 13—- 14 (1289). 4H. Ex. Doc. 17, 31 Cong., 1 Sess., 532-33 (573). 5 H. Ex. Doc., 59, 31, Cong., 1 Sess., (577).56 University of California Publications in History [Vou. 16 J Y the national treasury and at the same time ‘‘lead to the develop- ment of their wealth by individual proprietors and purchasers.’”® In accordance with these recommendations, the Senate Com- mittee on Public Lands reported a bill providing for the division of the mineral lands into lots of about two acres each, to be offered for sale at public auction at a price not less than one dollar and twenty-five cents an acre. Senator Benton was opposed to any plan which aimed to secure revenue from the mineral lands, especially from the placers which contained only one crop of gold. His bill provided that the agents grant per- mits for working the mines without seeking any revenue there- from. His policy, he claimed, would preserve order among the miners, while the plan of the Committee would place the miners in opposition to the law.’ Neither plan was adopted. President Taylor and his Secretary of the Interior, Ewing, took considerable interest in the mineral land question. Secretary Ewing recommended that the quartz mines, which require large capital for their successful working, should be sold, and the placer mines leased on favorable terms in order that many industrious citizens could work them and pay the rental out of the proceeds. He did not think that the government would experience difficulties in collecting the rent. In his annual message of December 4, 1849, President Taylor recommended that the gold fields be divided ‘ mto small tracts ‘‘and be disposed of by sale or lease.’’® In the absence of any legislation the military officials in California, who had charge of all government property in the territory, adopted the laissez faire policy with regard to the gold fields. Colonel Mason believed that the miners ought to pay some rent to the government for the privilege of digging in 6 Richardson, Messages, IV, 643. 7 Cong. Globe, 30 Cong., 2 Sess., 257-59. Benton held that the gold mines are a curse and not a blessing to a nation, for they demoralize a people. 8 Richardson, Messages, V, 20; Cong. Globe, 31 Cong., 1 Sess., App. 22-23.1927 | Ellison: California and the Nation 5 =~] government lands, but since he had no instructions to that effect, nor sufficient soldiers to enforce such rules in such an extensive territory, he decided not to interfere. General Smith at first intended to expel all foreigners from the gold fields. He admitted that legally all gold diggers were trespassers, but since Congress always made distinctions in favor of early settlers by granting preemption, he felt justified in allowing American citizens to work in the mines. He wrote to the consul at Panama asking him to inform the other consuls on the South American coast that the laws of the United States forbidding trespassing on the public lands would be enforced by him against all for- eigners in California.? Under cover of this proclamation many American miners undertook to drive out the South American and Mexican miners. But General Riley declared that neither American citizens nor foreigners had any right to dig gold in California on government land; and until Congress should legis- late in this matter, he would not permit any class of miners to monopolize the gold fields.'° Attitude of Califorma toward the mineral land question.—The question of the regulation of the gold fields aroused much interest in California. Discussion on the subject at the constitutional convention of 1849 indicates that the general sentiment of the delegates, particularly from the mining districts, was in favor either of free mining, or of government regulation for the benefit of the state. One resolution requested Congress to allow the free use of the mineral lands to all American citizens. Another resolution recommended that Congress should, by legislative enactment, throw open the placer mines to all persons on the payment of five dollars a month for a permit to dig. The income from this source was to be turned over to the state of California. Some favored the entire relinquishment of the mines to the state." 9H. Ex. Doc., 17, 31 Cong., 1 Sess., 704, 707, 708, 710 (573). 10 [bid., 788-89 (573); Sacramento Placer Times, July 9, 1849. 11 Browne, Debates, 430-31, 461, 462, 463-64.58 University of California Publications in History [VoU- 16 The first legislature took considerable interest in the mining question. In the assembly two reports were submitted by a select committee advocating that the privilege of working the mines should be restricted to American citizens and to foreigners who had legally declared their intention to become citizens. The argument was that California had been acquired at the expense of the American nation, hence the benefits from this acquisition should accrue to Americans only. It was also argued that most of the foreign miners were adventurers, peons of low character, who might jeopardize the morals of the young Americans; and in time of war a large foreign population in California would prove a positive danger to the safety of the state. On the question of the disposition of the mineral lands the committee could not agree. The majority was not opposed to leasing or even selling the mineral lands in small tracts. But the minority report opposed both leasing and selling, believing that either system would result in the monopoly of all the best placers by capitalists. The policy advocated in the minority report was to let the American citizens work the mines freely without a tax other than enough to secure them some protection.’* The adop- tion of the minority report by the assembly indicates that the policy then advocated was commonly favored in California, especially among the mining communities. Fremont’s bill—Shortly after the California delegation took their seats in Congress, Fremont introduced a bill in the Senate to make temporary provision for the working of the gold mines in California. Its leading principles were the rejection of all thought of making the minerals in California a source of revenue for the federal government, and the prevention of the monopoly of mineral lands by capitalists. The bill provided for a number of agents in the mining districts, whose duties were to grant permits to American citizens, to visit the mines, and to settle disputes. Each miner was to have a lot thirty feet square to be 12 California, Legislature Jowrs., 1850, 802-16.1927 | Ellison: California and the Nation 59 worked by manual labor on a placer, or a lot two hundred and ten feet square to be worked by machinery in the rocks. The fees for the permits were to be one dollar a month for a placer and twenty-five dollars a month for a mine. A certain per cent of the proceeds from the sale of the permits was to go for internal improvements in the state of California. No person might have two permits at the same time; but to encourage pros- pecting the first discoverer was to have double the quantity of land without paying any fee. The agents, together with a jury of six disinterested miners in the neighborhood, were to settle all disputes equitably. The bill elicited considerable discussion in the Committee of the Whole. Seward moved to amend the bill, extending the privilege of mining gold to persons who should legally declare their intention of becoming citizens. Such a policy, he said, would induce immigration to California. The California Sen- ators agreed to the amendment after it was modified to include only Europeans. Ewing’s principal objection to the bill was the absence of any provision insuring the national government a revenue from the mines to cover the expenses of the acquisition of the territory. His amendment provided that the miner should deliver the gold collected to the United States district agent each week and be compensated therefor in United States coin at the rate of sixteen dollars an ounce, which was the current rate in California. Anyone refusing to comply with this law should forfeit his permit and location. Benton and the California Senators opposed the amendment, contending that the govern- ment’s experience with the lead mines in Illinois and Missouri was conclusive against any idea of deriving revenue from the California mineral lands. The amendment was rejected. Felch, on the other hand, opposed Fremont’s bill on the eround that it proposed a leasing system, which had been found impracticable in a decentralized government like the United States. He also claimed that it was derogatory to the rights of60 University of California Publications in History [Vou. 16 the states because it withheld from state taxation great quantities of land. His subsitute plan provided that the national govern- ment sanction a policy of the freedom of the mines unhindered by any agents and permits. This was the policy that was actually pursued, without legislative provision, up to 1866. It was believed in the Senate, however, that some machinery was needed for the preservation of order in the mines. After being amended, Fremont’s bill passed the Senate, but its friends did not sueceed in getting it taken up in the House, where it was laid over to the next session.'® , In an ‘‘Address to the People of California,’’ Fremont defended his plan, maintaining that, in view of the novelty and difficulty of the subject, his policy was the most practicable and the most liberal to the miners.’* But the majority of the people of California were against government regulation of the mineral ; lands. ‘‘The bill is odious and impracticable,’’ said the Picayune.'® The Courier was opposed to rents or fees, except on the quartz mines.'® The Sacramento Transcript held that on account of distance Congress was not competent to legislate wisely for the gold mines.** ‘‘There is but one method left for the disposal of the California mineral lands,’’ said the Herald, ‘‘and that is the cession of those lands to the state of California, for the state will know better than the federal government how to administer the mines.’’!S California’s opposition to Fillmore’s recommendation.—In spite of the determined opposition of California to the sale of the gold fields, President Fillmore and his Secretary of the Interior, Stuart, recommended to Congress that these lands be 13 For the bill and debates see Cong. Globe, 31 Cong., 1 Sess., 1815, 1869, 2018, 2029-30, App. II, 1362 et seq. 14 The ‘‘address’’ was printed in the Alta, December 24, 1850, and the Pacific News, December 24, 1850. 15 Picayune, November 14, 1850; Pacific News, December 6, 1850. 16 Courier, November 12, 1850; January 31, 1851. 17 Sacramento Transcript, December 6, 1850. 18 Herald, January 30, 1851.1927 | Ellison: Califorma and the Nation 61 divided into small tracts to be sold ‘‘under such restrictions, as to quantity and time, as will insure the best price, and guard most effectually against combinations of capitalists to obtain monopolies.’’ They admitted that the leasing system would be more profitable to the government, and would afford the best security against monopolies; but such a system, they believed, would create feuds between the government and the lessees, making it difficult to collect the rents.'® President Fillmore’s recommendation was criticized in Cali- fornia as undemocratic and in the interest of the capitalists. ‘The suggestion of President Fillmore,’’ said the Pacific News, ‘‘shows that the authorities in Washington do not understand the situation in California. The adoption of such a policy would inevitably result in monopoly, and in such a ease the land would be either kept for speculation and not be mined, or the laboring people would be forced to pay a high price for it.’’ The Herald pointed out that the miners had no desire to own the title in fee simple, for as soon as the ‘‘lead’’ gave out they moved to another place. ‘‘The mineral lands,’’ said the Alta, ‘‘are best as they are now, and they can never become a source of revenue 7920 for the government. In the assembly a joint resolution was adopted declaring that the policy of selling the mineral lands would be in conflict with the true interests of the state and nation, for the richest mineral lands would fall into the hands of speculators, resulting in the stoppage of immigration and the retardation of the progress of California. It warned the govern- ment that the miners, grown up in a spirit of independence, had become accustomed to consider the mineral lands as a common heritage and would not brook any interference.** The Whig 19 H. Ex. Doc., 31 Cong., 2 Sess., 11, 27-28 (595). 20 Alta, March 1, 1851; Pacific News, January 28, February 21, February 28, 1851; Picayune, September 18, 1851; Sacramento Transcript, January 31, 1851; Herald, January 5, 25, 30, 1851. 21 California Legislature, Jowrs., 1851, 1021. The resolution and long preamble were printed in the Pacific News, January 29, 1851.62 University of California Publications in History [Vou. 16 state convention adopted a resolution favoring the retention of the mineral lands by the government, ‘‘for the benefit of the miners, to be worked by them, free from any tax or toll 22 whatever.’’ In their messages to the legislature Governors McDougal and Bigler deprecated the policy of leasing or selling the mineral lands.”* While the majority of the people of California opposed the leasing or selling of the gold fields, there was, however, no unanimity of opinion on any other policy. A convention of miners and settlers was held in Sacramento but the opinions voiced there were too dissimilar to lead to a well digested plan for the regulation of the mineral lands. Some held that the rules and regulations adopted by the miners were working satisfac- torily; others held that some definite legislation was needed to unify the mining regulations. But the question was who should legislate, Congress or the state legislature, and it was contended that for want of necessary experience Congress could not legis- late properly for the mineral lands, hence it should relinquish them to the state.** The determined opposition of California to their earlier plan, convinced President Fillmore and Secretary Stuart that the mineral land question ‘‘is a subject surrounded by great diffi- culties.’ They now recommended that Congress leave the gold fields open to the industry of all American citizens, ‘‘until further experience shall have developed the best policy to be ultimately adopted in regard to them.’’ ‘‘It is safer to suffer said the ?? the inconvenience that now exists, for a short period, President, ‘‘than by premature legislation to fasten on the country a system founded in error, which may place the whole 22 Davis, Political Conventions in California, 13. 23 California, Sen. Jour., 1852, 17, 78-79. 24 Alta, March 1, August 5, 13, 1851; Herald, June 6, 1851. Picayune, September 18, October 11, 1851; Pacific News, March 6, 1851; Sacramento Union, January 26, 1852.1927 | Ellison: California and the Nation 63 subject beyond the future control of Congress.’’*? The policy of laissez faire recommended by President Fillmore was favored in 26 California, especially among the miners. The policy of ‘‘non-interference’’ was practically followed until the passage of the acts of July, 1866, and July, 1870. During this period, however, the mineral land question con- tinued to be a vital issue in state politics. In the first place, there was the feeling of uncertainty and fear that speculators might influence Congress to take up again the proposition to sell the mineral lands. Hence it was deemed necessary, at the party conventions and in annual messages of the governors, to reiterate that public opinion in California was opposed to leasing or selling the mineral lands.** Foreign miners’ tax.—Then there was the vexatious question of the foreign miners. The American miners, who considered the gold fields to be the property of the American people, looked with jealousy on the continual influx of Asiatics and Latin Americans into the mines. To check the influx of undesirable foreign miners and to insure a large revenue to the state, the first legislature passed an act prohibiting non-American citizens from digging gold in California without a foreign miners’ license. The license fee was twenty dollars a month.”® The foreign miners protested and evaded the law. The American miners and their sympathizers criticized the evading foreign miners as ungrateful people, intruders upon American soil. But the merchants, whose interests suffered by the exodus of a large number of customers, denounced the act as impolitic, unjust, and illegal. The Picayune questioned the right of the 25 Richardson, Messages, V, 127; H. Ex. Doc. 2, 32 Cong., 1 Sess., 501 (635). 26 California, Assembly Jour., 1853, App. Doe. 35, p. 4. 27 California, Sen. Jour., 1853, 23; 1854, 23; 1855, 41-42; Davis, Politi- cal Conventions in California, 13, 20, 36. 28 California Legislature, Jours., 1850, 217, 493-97; California, Statutes, 1850, 221-23.64 Unwersity of California Publications in History (Vou. 16 state to legislate and control property belonging to the United States. It pointed out that the foreign miners’ act was in vio- lation of commercial treaties between the United States and Mexico, wherein it was provided that the citizens of both ecoun- tries should not be subjected to any other charges, or contribu- tions of taxes, save such as were paid by the citizens of the states in which they resided. The act therefore violated Article six of the United States Constitution, which declares that the treaties ‘ made by the United States ‘‘shall be the Supreme Law of the arid? In the case of the People v. Naglee the California supreme court upheld the constitutionality of the law. It held that the state had the power to require the payment by foreigners of a license fee for the privilege of mining within the state; and that the act did not violate the Constitution of the United States, for the power of taxation was one of those powers retained by the state and it could not be taken away from it by a treaty between the United States and a foreign government.*° The opposition to the foreign miners’ tax, and the difficulties encountered in collecting the lense fee, led to the repeal of the act in 1851.*. But the American miners held public meetings protesting against allowing Asiaties and Latin Americans to dig freely in the mines. They petitioned the legislature to enact a law prohibiting the importation of Asiaties and preventing those 29 Pacific News, October 10, 1850; Picayune, August 14, 1850. Inflam- matory bills were posted on the trees and in the mines. One of them read: ““Note to foreigners: It is time to unite, Frenchmen, Chileans, Peruvians, Mexicans, there is the highest necessity for putting an end to the vexa- tions caused by the Americans in California. ... ’’ (California Legislature, Jours., 1851, 660; Pacific News, May 28, 1850.) 30 People v. Naglee, 1 California, 232-55. 81 California, Statutes, 1851, 424. Instead of a monthly revenue of several hundred thousand dollars, as it had been estimated by the legislature of 1850, the total amount received from this source up to December 15, was only $29,731.16.1927] Ellison: California and the Nation 65 in California from entering the gold fields, and threatened to take the law into their own hands.* In 1852 the legislature passed a new foreign miners’ bill.** Because the license fee was only three dollars a month, there was less opposition to the new act. Many protest meetings were held, however, denying the right of the state legislature to pass such laws. ‘‘Where and when did the federal government authorize California to legislate for the mines?’’ asked the Alta.** The French miners felt themselves shghted when they saw how exact- ing the collectors were with the Latin nations, while the English, Irish, and Germans were seldom required to pay the tax. They protested against the foreign miners’ tax and appealed to the French government for protection. The San Francisco Echo du Pacifique asserted that to tax French miners was illegal because the state had no right to levy a tax on mineral lands which were government property, and also because the act violated a con- sular convention signed in 1853 by representatives of the Amer- ican and French governments wherein it was provided that the French people in the United States should not be compelled to pay taxes, excepting those which were equally imposed on all citizens. The Hcho advised the French miners to take the case to the Supreme Court of the United States.*° 82 Meetings were held at Auburn, Horse Shoe Bar, Michigan Flat, and various other places. (Alta, July 1, 16, 1852; Sacramento Placer Times and Transcript, May 9, 1852.) 88 California, Statutes, 1852, 84-87. The fee was raised to four dollars a month at the next session, and the act was further amended in 1855 (ibid., 1853, 62-65; 1855, 216-17). The receipts for 1854 were $100,557.92, and for 1855, $123,323.28 (Fankhauser, Financial History of California, 160). 34 Alta, May 12, 1852, June 24, 1853; California, Assembly Jour., 1853, App., Doc. 28, pp. 1-21; California, Sen. Jour., 1855, App., Doc. 19, pp. 1-13. 35 Bulletin, June 23, 1860. The reason for the partiality was partly due to the clannishness of the French and their lesser readiness to become citizens. See Malloy, Treaties, Conventions, International Acts ...., I, 531.66 University of California Publications in History [Vou. 16 Mines and state taxes—-There were also the questions of quartz mining, state taxes, and the settlement of the state. The southern agricultural counties complained that their ranches were taxed to their full market value, while the mining claims, yielding thousands of dollars to their owners, were not paying any taxes. They pointed out -that the six southern counties, with a population of 6,367 souls, paid more taxes than the twelve mining counties with a population of 119,917 souls. Yet the mining counties had forty-four representatives in the legislature while the six southern counties had only twelve. To escape the heavy taxation the southern counties advocated a revision of the constitution in matters of taxation, or the division of the state.*® Others complained that the growing quartz mine industry, which required the investment of considerable amounts of capital, was being retarded for the want of titles in fee.*’ The great stumbling block in the way of equalization of taxes and the investment of capital in quartz mining was the owner- ship of the mineral lands by the federal government. Various plans were proposed. The committee on mines and mining interests in the assembly advocated the continuation of the policy of non-interference in the placer mines until the time when capital would have to be applied. But it favored granting to the owners of quartz mines a title for a certain period during which time the grantee could ‘‘transfer or work his claim at pleasure.’’ Meanwhile the state should be authorized to levy and collect taxes on the assessed value of the property of the quartz miners. 36 California, Assembly Jour., 1852, 12-13. Governor McDougal pointed out in his annual message that the six southern counties with a population of 6,367 souls had paid into the state treasury for the fiscal year ending July 1, 1851, the sum of $41,705.26; while the twelve mining counties, with a population of 119,917 souls, had paid during the same period only $21,253.66. The amount of capitation taxes assessed in the twelve mining counties was $51,495.00, and the amount returned as delinquent $47,915.00; while the amount assessed in the agricultural counties was $7,205.00 and the amount returned as delinquent $3,291.50. 37 Alta, January 28, December 8, 1852.1927 | Ellison: California and the Nation 67 It was also proposed to induce the federal government to grant the mines to the state.** A committee composed of one member from each of the min- ing counties within the state was appointed in the assembly to report as to the expediency of calling a miners’ state convention to consider a policy with reference to the mines. The majority report of the committee, presented March 19, 1853, was opposed ? to a miners’ state convention fearing that it might result in a recommendation to Congress “‘for the adoption of some system by which miners would be required to procure a fee simple title to their claims, that they may be subject to additional taxation.’’ The miners contended that the mining occupation was full of hardships and it would be difficult to assess mining claims fairly; that a fee simple title would not keep the miner a single day longer when he found it impracticable to work his claim.*® The miners of California, said the Sacramento Union, should be as free as the air, and any project of legislating for the mineral lands by the state or federal government, would be impracticable and impossible to enforce the law. ‘‘A fee simple title,’’ said the State Journal, ‘‘would produce confusion and hardship.’’ ‘‘The policy of the state and nation should be ‘hands off’,’’ said the Placerville Herald.*° Thus the miners frustrated an attempt of the agricultural and commercial inter- ests to devise a policy for the taxation of the mines. State ownership of the minerals—There had always pre- vailed an opinion in California that by right the gold fields 38 California, Assembly Jowr., 1852, 829-35. Also see report of the Senate special committee (California, Sen. Jour., 1852, 584-88). 39 California, Assembly Jour., 1853, App., Doe. 35. 40 For a discussion of the mineral question during this period see Alta, March 16, May 20, 1853; Sacramento State Journal, February 17, 1853; Sacramento Union, January 28, 1856, December 12, 1857, January 22, 1858, February 12, 18, 22, 25, 1859. In the opinion of the Alta the state’s taxable property would be increased by $200,000.00 if the mines were granted to the miners.68 University of California Publications in History [Vou. 16 belonged to the state and not to the federal government. This doctrine gained considerable popularity when the state supreme court held in the case of Hicks v. Bell that ‘‘the mines of gold and silver on the public lands are as much the property of this ) State, by virtue of her sovereignty, as are similar mines in the lands of private citizens.’’ This principle was reiterated two years later in the ease of Stoaks v. Barrett.*1 The Placer Times and Transcrvpt congratulated the people of California upon the ‘‘acquisition of so splendid a heritage.’’ ‘‘Why should ? we entrust these matters,’’ it said, ‘‘to those who are removed from us thousands of miles, and who do not possess the necessary knowledge nor sympathy to manage the mines efficiently.’’*? In the senate Dosh introduced a bill which assumed for the state, by virtue of its sovereignty, the ownership of all the mines. In his minority report on the bill Dosh contended that under the Spanish and Mexican law, the minerals in all lands, public and : private, were reserved to the sovereignty. The right to the mines in these lands became vested in the ‘‘sovereignty which superseded that of Mexico,’’ that is the state of California. This conclusion was based upon the following argument: For many years prior to the conquest by the United States, the depart- ‘ ment of California had a ‘‘regularly organized government’’; this system of laws, with some modifications, continued in force until the time when the state government was put into full | operation. ‘‘The first recognition of California by Congress, was 3 as an independent sovereignty,’’ a state; and by reason of that | independent sovereignty, the right of eminent domain ‘‘ which ) had been transferred to the government of the United States by ’ But in Moore v. Smaw, and Fremont v. Flower (17 California, 223), the supreme court of California refused to sustain the doctrine advanced in the above cases. 42 Placer Times and Transcript, August 14, 1853. The Alta of August ; \| 12, 1853, and the Sacramento Union of August 17, 1853, expressed them- \ selves against the doctrine of state ownership of the mines. 41 Hicks v. Bell, 3 California, 227; Stoakes v. Barrett, 5 California, 39. i1927 ] Ellison: California and the Nation 69 the treaty of Guadalupe Hidalgo, by the Act admitting Cali- fornia into the Union, passed to the sovereignty of this State.’’** The majority of the committee reported adversely to the passage of the bill, maintaining that the mineral lands belonged to the federal government. The placer miners feared that the doctrine of state ownership of the mines was fraught with great danger to the mining interest, ‘‘that it would not be a great while until those lands would be wrested from the miners and placed in the hands of monopolists.’’ All they asked was ‘‘to be let alone.’’ They claimed that the federal government which was the rightful owner of the mines had ‘‘solemnly declared’’ that these lands should not be surveyed and sold, but should be open to the free use and enjoyment of all American citizens under the mining laws adopted by the miners themselves.** Miners’ rules and regulations——These miners’ rules and regulations,*® which seemed to suit the interests of the miners so well, were based upon the European and Mexican mining laws adjusted to the needs and experiences of the new environment. 3y 1860 they had been formulated into a miners’ code resting on equitable principles and democratic in character. The main purposes were to determine the size of the claims and to preseribe 43 California, Sen. Jour., 1857, 275-81. The same opinion was expressed by J. W. Denver of California in his speech in Congress on the California land claims (Cong. Globe, 34 Cong., 1 Sess., 1842). There was also con- siderable controversy between the state and federal authorities with regard to the question whether or not the mineral lands were included in the township grant of 1853. The federal authorities contended that the grant contemplated only such townships as could be legally surveyed and divided into sections. But since the mineral lands were excluded from survey by an act of Congress, there could be no such selections from them. The California authorities, on the other hand, maintained that the Act of 1853 contained no reservation with regard to the mineral lands, and the mining districts were in need of educational facilities just as well as other districts. See California, Sen. and Assembly Jours., 1863, 38-44. 44 California, Sen. Jowr., 1857, 274-75. 45 Good accounts of the miners’ rules and regulations are given in Yale, Legal Titles to Mining Claims and Water Rights, chaps. 7, 8; Shinn, Mining Camps, chaps. 2, 10, 13, 21, 23. See also Browne’s Report in H. Ex. Doc. 29, 39 Cong., 2 Sess., 226-64 (1289).70 University of California Publications in History [Vou. 16 the methods of recording, working, and holding them. The size varied according to the richness of the placers, ranging from ten to one hundred and fifty feet square. In general, a reasonable amount of work had to be done in order to establish and hold a claim to a placer mine. The purpose of limiting the size of the claims and defining the condition of holding them was to guard the mines from being monopolized. Here we notice the common aversion of the frontier democracy to monopoly. The promul- gation of the rules and the settlement of disputes were also handled in a typical frontier democratic fashion. The rules were generally framed and amended at a public mass meeting conducted in an informal manner. The disputes were arbitrated by a board of miners selected by the disputants from the neigh- boring mining camps or by a miners’ jury previously appointed 5 at a miners’ meeting. The decision of this board was final. The state legislature, after some consideration, declared by ce statute that in “‘actions respecting ‘Mining Claims’ proof shall be admitted of the customs, usages, or regulations established and in force at the bar, or diggings, embracing such claim; and such customs, usages, or regulations, when not in conflict with the Constitution and Laws of this State, shall govern the decision of the action.’’*® Thus the legislature declared the miners’ laws to be binding in matters relating to mining claims. The ‘‘let alone’’ policy of the federal government was interpreted by the miners as a tacit approval by the federal government of their mining code. Revival of the mining question in Washington.—After Fill- more’s recommendation of 1851, the mining question slept in Congress. In his annual report of 1858, Secretary of the Interior Thompson revived it, pointing out the need of adopting some definite policy with regard to the mineral lands.‘7 California immediately protested against ‘‘Congressional tinkering’’ with 46 California, Statutes, 1851, 149. 47H. Hx. Doc. 2, 35 Cong., 2 Sess., 77 (997).1927 | Ellison: California and the Nation el the mines. Congressman Scott asserted that the government had no right to dispose of the California gold fields and that it could never enforce such a policy, for California would ‘‘resist to the last any such encroachment on the part of the federal govern- ment.’’ The Alta and the Bulletin warned the government not to attempt to prescribe mining regulations, or to expect to realize any revenue from the mines. ‘‘A revolution, and nothing short of it,’’ they threatened, ‘‘would in all probability be the result of any improper interference on the part of the General Govern- ment, with the rights of that large and deserving class of our population’’ and if persisted in ‘‘would result in the loss of California to the Federal Union.’’** The California Senators now introduced a bill to legalize the existing state of affairs which the government had tacitly sanctioned, and thus remove the technical charge that the miners were trespassers on the public lands. The bill brought forth a long discussion. Senator Latham reminded the Senate that the California supreme court had decided that the right to the mines existed in the state. But the opposition contended that such a law would be equivalent to a virtual cession of the mineral lands to the state of California, or to private individuals, without any remuneration to the federal government. The bill was rejected.*® Effect of the Civil War on the mining question.—On the out- break of the Civil War the mining question was again revived. The costliness of the war and the depleted condition of the national treasury convinced the federal authorities that it would be no more than just to make the valuable gold and silver mines contribute some revenue to the government. Secretary of the Interior Caleb B. Smith and Commissioner of the General Land 48 Cong. Globe, 35 Cong., 2 Sess., 1487; Alta, January 14, 1859; Bulletin, November 24, 26, 1858. 49 For the bill and debate see Cong. Globe, 36 Cong., 1 Sess., 1754, 1771, 1777, 1795.72 University of California Publications in History [VoL. 16 Office Edmunds ealled the attention of Congress to the advisa- bility of taxing the mines. ‘‘When multiplied demands upon the treasury weigh upon it with unprecedented pressure,’’ argued Commissioner Edmunds, ‘‘it could not be deemed unreasonable, after the hundreds of millions of dollars allowed to be taken free of cost, if the government should hereafter subject the product of such mines to a moderate seignorage.’’°° California immediately protested against the taxing plan, maintaining that it would be a ‘‘tax on labor and enterprize’’; a policy that would be inexpedient from an economic as well as from a political point of view, for it would discourage the pro- duction of the precious metals—the sinews of war. The legis- lature adopted a resolution opposing the passage of any law taxing the gold and silver mines. In his annual message of January, 1863, Governor Stanford criticized the plan to tax the mines. He believed that it would be better to dispose of the land in small tracts, thus enabling the state to tax the mines.”! But Commissioner Edmunds and Secretary of the Interior Usher urged the abandonment of the policy of non-interference. Commissioner Edmunds pointed out that the auriferous regions in British Columbia, by proper control and management, had been made a source of revenue to the British eovernment, while the mines of the precious metals in the United States had been left open to the people of all nations without the payment of any tax whatever. Thus during the sixteen years of free mining, $100,000,000 had been extracted from the mines, ‘‘without a dollar’s revenue to the national exchequer.’’ At a time when the ‘‘nation is weighed down with financial obligations,’’ he argued, the mining industry should contribute its share to sus- tain the government. His plan was to require the placer miner to secure a license to work his mine by the payment of a small sum. If found profitable, the claimant might continue to work 50 H. Hx. Doc. 1, 37 Cong., 2 Sess., 445, 489 (1126). 51 California, Sen. Jour., 1863, 41-42; California, Statutes, 1862, 601.1927 | Ellison: California and the Nation 73 it by the payment of a reasonable amount per foot and a certain percentage of the product secured.*” The next year Secretary of the Interior Harland and Secre- tary of the Treasury McCulloch urged again the discontinu- ance of the policy of non-interference. Secretary McCulloch denounced any system of leasing the mines as impracticable, un-American, and unconstitutional. His advice was to sell the ‘ mineral lands and ‘‘substitute an absolute title in fee for the indefinite possessory rights or claims now asserted by the miners.’’ Such a system, he held, would give a character of permanency to the mining district.°* Commissioner Edmunds, however, maintained that it would be inexpedient to sell the mineral lands. He pointed out that without expensive investi- gation the government could not fix the minimum price, which should bear an equitable ratio between the various locations. And if the explorations should be left to individuals, then the lucky miner who should discover a rich deposit would keep the fact secret until he became the possessor of it. In view of the many difficulties and the system of mining rights which had grown up in the mining regions, Commissioner Edmunds believed that no wise policy could be devised until the whole question had been more carefully investigated by the government.”* There was, however, a prevailing belief in Washington that the time had come to abandon the policy of non-interference. On July 9, 1865, Julian, chairman of the House Committee on Publie Lands, reported a bill providing for the sale of the gold and silver mines in small tracts, at a minimum price adjusted according to the size and value of the deposit. It limited the quantity which one individual could buy to forty acres, and it prohibited combinations among the different bidders. In an elaborate speech Julian denounced the non-interference policy 52H, Ex. Doc., 1, 38 Cong., 2 Sess., 5-6, 39-42 (1220). 538 H. Ex. Doc., 1, 39 Cong., 1 Sess., pp. III-IV (1248); H. Hx. Doc., 1, 39 Cong., 1 Sess., 31-32 (1254). 54 H. Ex. Doc., 1, 39 Cong., 1 Sess., 38-43 (1248).74 University of California Publications in History [Vow. 16 as ‘‘financial profligacy,’’ ‘‘legislative madness.’’ ‘‘ How long,’’ he exclaimed, ‘‘will the people thus sport with their resources and bear with the public servants who are thus recreant to the public good?’’ Moreover, the sale of these lands, he argued, would benefit the mining districts also, for under the system of tenancy at will, permanent settlements were impossible since the population was nomadic, thus preventing the establishment of homes and organized public life. ‘‘It is a conspiracy against the establishment and sacredness of the American Home!’’ he exclaimed. The bill was recommitted.*> To gain more infor- mation on the subject, several members of Congress visited the mineral regions of the Pacific Coast.*® Attitude of Califorma—Publie opinion in California was divided on the mineral land question. The quartz miners, the agricultural, and the commercial interests, generally favored a policy which should confer titles in fee to the miners. Such a policy, it was argued, would induce people to settle down and : make improvements on their claims, and would result in the equalization of taxation. But the placer miners were opposed to any change, fearing that any system devised by Congress would be inimical to the interests of the miners. ‘‘The mining interest of the Pacific States and Territories is destined to receive too said ? much affectionate attention at Washington this Winter,’ the Sacramento Union. The Union argued that the nomadic . character of the mining population was due not to the want of titles in fee simple but to the very nature of the miners’ trade, and no government title could keep the miners after a deposit had become unprofitable.** 55 See Cong. Globe, 38 Cong., 2 Sess.,,684—87. 56 California, Assembly Jour., 1865-1866, 58. { 57 Sacramento Union, January 6, 1866. Resolutions against selling or taxing the mineral lands were adopted at the state Democratic convention ' (Davis, Political Conventions in California, 209, 224, 229). But also see Bulletin, January 19, June 29, July 6, 31, 1866. | . 52 (FD | Tijwhucl 30° /$6° |1 —~l 1927 | Ellison: California and the Nation In an elaborate memorial drawn up at the miners’ state con- vention of January, 1866, and forwarded to Washington, it was pointed out that the policy of selling the mineral lands would revolutionize the whole mining system under which the mines had been developed to the benefit of the state and the nation. But in view of the existing situation, argued the memorialists, the next wisest policy would be to extend the preemption system over the mineral lands and to donate to their possessors the , claims which they held under the miners’ regulations.** Passage of the Act of 1866—The settlement of the mineral land question came in the first session of the thirty-ninth Con- gress. On May 28, 1866, Conness of California, chairman of the Senate Committee on Mines and Mining, reported a bill favor- able to the mining interests of the Pacific Coast. After a long discussion the bill passed the Senate. When it came to the House, Julian succeeded in having it referred to his Committee on Public Lands. This meant the defeat of the bill, for Julian insisted on the measure which he had introduced and reported. Finding their plan thwarted in the House, Senators Conness and Stewart called up a House bill entitled an ‘‘Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for ? Other Purposes,’’ and skilfully managed to carry a motion to strike out the whole of the House bill except the enacting clause and insert the mining bill which had been passed in the Senate. In spite of Julian’s opposition the friends of the measure man- aged to push it through the House, and it became a law.” 58 The memorial was published in the Sacramento Union, January 31, 1866. 59 For the several bills and debates see H. Rep., 66, 39 Cong., 1 Sess. (1272). Cong. Globe, 39 Cong., 1 Sess., 1844, 2965; H. Rep., 105, 39 Cong., 1 Sess. (1240); Cong. Globe, 39 Cong., 1 Sess., 3225-37, 3451-54, 3951-52, 4054. A full account of the history of the passage of the bill was given by a correspondent in Washington, published in the Alta on May 17, 1867. A different view of the same subject is given by Julian in his Political Recollections, 286-92. ‘‘The clumsy and next to incomprehensible bill,’’ he says, ‘‘thus became a law, and by legislative methods as indefensible as the measure itself.’76 University of California Publications in History [Vou. 16 This great act of July 26, 1866, legalized the miners’ rules and regulations which were not in conflict with the laws of the United States and made it possible to acquire a title in fee simple to the precious-metal bearing lands. The first section reads: The mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States. It also provided that miners, who had oceupied and improved or who should hereafter occupy and improve a mine according to the local regulations, might receive a patent at the cost of five dollars per acre. As a preventive against monopolies it was provided that ‘‘no location hereafter shall exceed two hundred feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode,’’ and no person was to make more than one location on the same load. The maximum for an association of persons was three thousand feet.®° The new policy was generally well received in California. The passage of the bill [said the San Francisco Bulletin] whatever defects it may develop when more critically developed and enforced, marks a change in the public land policy equal in importance to the adoption of the preemption and homestead systems. . ... Eastern and European capital will flow to California and Nevada in large sums under the new System. . = .. The new law will furthermore secure equality of taxation. . California may well rejoice at its passage.®! The Placer Herald, a mining paper, hailed the new policy as the dawn of a new era for California. ‘‘It is the fairest and most practicable proposition that has yet been considered in Congress,’’ said the Sacramento Union. ‘‘It is a great stride toward the final adjustment of a dangerous question, and a vast improve- ment upon the measures broached at Washington at various 60 United States, Statutes at Large, XVI, 251-52. 61 Bulletin, July 31, 1866.1927 | Ellison: California and the Nation 77 periods during the past three years.’’ According to the Bulletin not a single newspaper was opposed to the act.°” In his message of 1866, Governor Low said: ‘‘The apprehension of miners in regard to unwise and unfriendly legislation by Congress touching the mineral lands has been allayed by the passage of just and generous laws which guarantee the actual possession to those on whom the prosperity of the State so largely depends.’’** The act of July 26, 1866, pertained only to vein mines. No provision was made for the acquisition of title to placer mines. The committee in Congress believed that, since the placers were becoming exhausted, there was no need to legislate for them. The act of July 9, 1870, remedied this omission, and ordered the sale of placer mines at two dollars and fifty cents an acre. It limited the extent of one location by an individual or an association to one hundred and sixty acres. In other respects the placer locations were to conform to local rules and regulations. The act of May 10, 1872,° ‘‘to promote the development of the mining resources of the United States,’’ in general reaffirmed the policy outlined in the former two acts, especially with regard to exploration and purchase of the mineral lands. Summary.—The question of the control and disposition of the mineral lands was an agitating subject in the state, and to some extent in Washington, for about eighteen years. During this period the general government made several attempts to legislate for the mines, but it lacked the necessary information as well as courage to work out a definite policy. As a result the administration floundered from one plan to another: at one time it suggested the system of leasing; at another, selling the lands in small parcels; and when California protested against ¢ both systems it recommended ‘‘non-interference.’’ It was of course much easier to follow the policy of ‘‘masterly inactivity’’ 62 Sacramento Union, June 23, 1866; Bulletin, August 8, 1866. 63 California, Sen. Jour., 1867-1868, 53. 64 United States, Statutes at Large, XVI, 217-18; XVII, 91-96.78 University of California Publications in History (Vou. 16 than to brave the opposition of California. And thus, in spite of some protest against the failure of the government to assert its rights to the mines, the federal treasury derived no revenue from the hundreds of millions of dollars worth of gold extracted during this period from the Pacific Coast mines by people from all parts of the globe.®* It was the exhaustion of the placer mines and the heavy cost of the Civil War that finally brought the government to adopt a policy that enabled it to derive some revenue from the mines. The passage of the several mining acts marked the end of the policy of reserving the gold and silver mines to the government. Thus came to a close another chapter in the history of the relations of California with the national government. The con- troversy about the control and disposition of the gold and silver mines on the Pacific Coast demonstrates the influence and effect of public opinion, in a state or particular section of the country, upon the policies of the federal government. 65 In his report of 1866, Browne estimated the total production of gold in California up to 1865 at about $900,000,000. The gold exportation from San Francisco during these years was as follows: 1849, $4,921,250; 1850, $27,676,346; 1851, $42,582,695; 1852, $46,588,434; 1853, $57,330,034; 1854, $51,328,653; 1855, $45,182,631; 1856, $48,880,543; 1857, $48,976,697; 1858, $47,548,025; 1859, $47,649,462; 1860, $42,203,345; 1861, $40,639,080; 1862, $42,561,761; 1863, $46,071,920; 1864, $55,707,201; 1865, $44,984,546. Total, $740,832,623. To this he added $200,000,000, the amount carried away during this sixteen years unmanifested. Report upon the Resources of the States and Territories West of the Rocky Mountains (H. Ex. Doc. 29, 39 Cong., 2 Sess., 50 [1289]).CHAPTER V THE INDIAN QUESTION California, like many other frontier communities in the United States, had her Indian’ question which proved exceed- ingly troublesome to the state and to the national government. In many respects the problem was more acute in California than elsewhere. Unlike most frontier communities, where the advance of the white man was gradual and in a more or less straight line, in California the adventurous white settlers and miners in a short time penetrated the whole territory and partly destroyed the Indian’s means of subsistence, which had never been too plentiful. The Indian, though he had but a vague idea of his right to the soil, resented this intrusion. ‘‘This is our ecountry,”’ said an Indian chief to Sub-agent Johnston, ‘‘why do the Amer- icans come here? They are good and brave, but they come upon the land of my people. What do they intend to do?’’? Actuated by the fear of starvation and frequently provoked by reckless whites, the Indians often resorted to stealing and to robbing the frontier settlements. 1The California Indians stood low in the seale of civilization. The valley Indians were mild, but those living north from the headwaters of the Sacramento to the Oregon border, and around the Gila and Colorado region were warlike and thievishly inclined. The number of Indians in California in the fifties of the nineteenth century is variously esti- mated from 75,000 to 500,000. Probably a hundred thousand would be nearer the mark. Even this number, according to Kroeber, was an eighth of the whole of the Indian population in America north of Mexico. See Kroeber’s article on the Indians of California, in Eldredge, History of California, V, 125; Sen. Ex. Doc. 4, 33 Cong., Special Sess., 62, 68, 242, 261 (688). 2 Sen. Ex. Doc. 4, 33 Cong., Special Sess., 65 (688).80 University of California Publications in History [Vou. 16 Early Indian disturbances.——Reports of Indian depredations and calls for military aid were not infrequent occurrences even during the period of military occupation. Colonel Mason and General Riley, finding themselves powerless to prevent disturb- ances on such an extended frontier, adopted the policy of issuing arms and ammunition to the Americans who were exposed to Indian attacks, and told them to fight the Indians themselves.°® General Riley recommended that the army on the coast be increased and that forts be built. He also suggested the advisa- bility of placing the Indians in districts over which the United States government should retain exclusive jurisdiction, or that the government relinquish to California the control of the Indians.* In 1850 three federal commissioners were appointed to negotiate treaties with the Indians in California. Policy of the state authorities—Collisions between Indians and whites were becoming more frequent. The settlers on the borderland called for military protection but Governor Burnett advised each district to defend itself against the Indians. On two occasions he deviated from his policy and ordered out a portion of the state militia against the Indians. These two expeditions were unsuccessful from a military point of view and they involved the state in a debt of $149,199.91.° The frequent calls for aid induced Governor Burnett to recommend to the legislature the adoption of some effective measures against the Indians. He believed that this ‘‘war of extermination will continue to be waged between the races until >? the Indian race becomes extinct,’’ and that it was beyond the ‘ wisdom of man to avert the ‘‘inevitable destiny of this race.’”® 3H. Ex. Doc. 17, 31 Cong., 1 Sess., 556, 557, 642, 645, 682, 936 (573). Tn August, 1848, there were about six hundred and sixty officers and men in California. But the whole army of the United States in 1849-50 aggre- gated 12,927 members. Bancroft, California, VII, 450; H. Ex. Doe. 17, 31 Cong., 1 Sess., 943 (573). 4 Sen. Ex. Doc. 52, 31 Cong., 1 Sess,, 43, 56-57, 74 (561). 5 California, Sen. Jowr., 1851, 16-18, 603-5, 734-35. 6 California, Sen: Jour., 1851, 14-15.1927 | Ellison: California and the Nation 81 His successor, Governor McDougal, was even more alarmed. He recommended the adoption of an energetic policy as the only expedient way to avert a protracted struggle. He was confident that ultimately the federal government would take over the duty, but for the present he believed California must rely upon her own arm for protection.’ A few days later he addressed letters to General Smith, com- mander of the United States forces on the Pacifie Coast, and to the Indian commissioners, stating that a general Indian war threatened California. The former he asked to send military aid; the latter he requested to.repair to the scene of hostilities as soon as possible and attempt to reestablish friendly relations with the Indians. He also instructed Colonel Johnson of the state militia to proceed to the Mariposa district, investigate the situation, and take the measures necessary to deal ‘‘judiciously”’ with it. He emphasized strongly that the great object should be to effect a peace with the least bloodshed and at the least expense.° To protect the mining districts, the legislature passed an act authorizing the treasurer of the state ‘‘to negotiate a loan upon the faith and credit of the State for the purpose of defraying the expenses which have been or may be incurred in suppressing Indian hostilities in this State, in the absence of adequate pro- vision being made by the General Government.’’'° The state authorities were confident that the general government would, as 7Ibid., 601-2. Governor McDougal came to California in 1849, from Indiana. 8 California, Sen. Jour., 1851, 670-71, 676, 677. 9 Ibid., 672-75; Assembly Jowr., 1470. California, Sen. Jour., 1851, 734-35 (Report of the adjutant general). 10 California, Statutes, 1851, 520-21. The act of March 7, 1851, pre- scribing the amount of compensation to officers and men allowed to each major $15 a day; to each captain, $12 a day; to each leutenant, $10 a day; to each sergeant, $7 a day; to each private, $5 a day, ete. (California Statutes, 1851, 489-91).82 University of California Publications in History [Vou. 16 in the case of many other states, assume the war debt, a ‘‘debt legitimately due by the General Government.’’™ On March 1, 1851, Governor McDougal sent a letter to Presi- dent Fillmore informing him that the rapid settlement of the country had suddenly brought into contact two races of widely different character, resulting in bitter conflict along the entire frontier of the state. He stated that there were about 100,000 Indian warriors, ‘‘all animated by a spirit of bitter hostility, and whom pacific and forebearing policy encourages into renewed acts of outrage.’’ The only course left to the state, he thought, was to coerce them into submission. To accomplish this object a strong military force was needed. But unfortunately, he com- plained, the general government had neglected California; the military force assigned to that state was entirely inadequate; and it was stationed on the coast where there was little need for troops. Moreover, observation and experience had convinced ‘ him that the ‘‘regular troops of the United States were unfit for a desultory Indian war, to be carried on among the fastness of our mountains.’’ He asserted that a temporary foree of rangers selected from the experienced frontiersmen and mountaineers, of whom there were a large number in California, might settle the difficulties in a much shorter time than government troops. But the heavily burdened state could not undertake it without the aid of the national government. He therefore requested that the executive of California be authorized to call out from time to time, as exigencies might require, portions of the militia, who were to be equipped, provisioned, and compensated by the national government. It may seem to your Excellency that this is an extraordinary suggestion, [he said] but you will remember that we occupy an extraordinary situa- tion—very far removed from the seat of the General Government, with conditions peculiar to California, and necessities that admit of neither question nor delay. 11 California, Assembly Jour., 1851, 853-54, 1368.1927 | Ellison: Califorma and the Nation “eS Protection by our people is regarded as their constitutional right; it is about the only benefit they can derive from their relation to the Federal Government, while their burthens are not light ones. It is not to be disguised that there is a feeling, and that a growing one, of dissatisfaction here with the General Government. They are aware and feel that they have been taxed, but not protected.12 Attitude of the federal authorities—The federal authorities entertained different views. In his communication to Washing- ton, General Smith contended that the Indian disturbances were due to the intrusion and reckless behavior of the whites who , ‘‘have determined that there shall be a war.’’ He was opposed to the use of state militia by the general government on the grounds of economy, efficiency, and expedience. He pointed out that the pay of a private during the latest expedition undertaken by California was equal to the salary of any officer in the army except his own. He also believed that frontiersmen were not the proper class of people to use for the restoration of order on the frontier.*® ¢ > Guided by information from ‘‘reliable sources,’’ and by the general experience with respect to relations between frontier communities and the Indians within their borders, Secretary of War Conrad replied to Governor McDougal that the information received by the War Department showed that the Indians in California were not so warlike as the governor believed and that the hostile attitude of the Indian was largely due to the agegres- sive behavior of the whites, particularly the adventurous miners. He did not think that a perpetual war between the two races was inevitable; these disturbances were merely a transitory incon- venience experienced by many frontier communities. As to the question of sending military aid, the Secretary stated that the force in California was as large as could be spared from other places. Moreover, since it was the opinion of 12 McDougal to President Fillmore, March 1, 1851 (H. Ex. Doc. 2, 32 Cong., 1 Sess., 138-40 [634]). 13 General Smith to General Jones, March 13, 1851 (ibid., 137-38).84 University of California Publications in History [Vou. 16 the governor that regular troops were unfit for Indian warfare, it would be useless to send more troops. In regard to the propo- sition of authorizing the governor to call out the militia at the expense of the national government, the Secretary stated that the President did not consider himself authorized to adopt such a plan, for the act of 1795 empowered the executive to call out the militia only when the United States ‘‘shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe,’’ and it was doubtful whether the situation in California was serious enough to be called an invasion. More- over, the use of militia for Indian warfare was inexpedient for two reasons: in the first place, it was too expensive, especially in California, where the pay stipulated to be paid to volunteers ‘ (who had been recently organized) was ‘‘exorbitant and beyond anything ever known in this country.’’ In the second place, there was reason to fear, if that plan were adopted, that in a population like that of California, where there are so many ardent young men, the love of adventure with some and the high pay with others, would operate as inducements to perpetual collisions with the Indians..... Independently of its experience in other parts of the country, it has been informed that a partial and tem- porary adoption of the plan recommended by your Excellency has already produced these results in California. The President deems it his duty to make these suggestions, not doubting that your Excellency will do all in your power, to prevent abuses as injurious to the State, as they are revolting to humanity.14 Meanwhile reports of Indian attacks, of white men literally flayed alive, became more frequent. The press, particularly the mountain journals, was full of hostile expressions against the Indians. It was asserted that ‘‘any patching up of paper ? ‘ ) treaties’’ with the Indians, was ‘‘mere moonshine.’’ The proper way to deal with the Indians was to keep an effective force of mounted men in the field until the savages were completely subdued. The legislature was urged to remonstrate against the 14 Secretary of War Conrad to Governor McDougal, April 30, 1851 (H. Hz. Doc. 2, 32 Cong., 1 Sess., 1389-43).1927 | Ellison: California and the Nation 85 neglect of the federal government to protect the California frontier. The Indian commissioners issued an address on January 13, 1851, appealing to the people of California, especially the fron- tier settlers and miners, to abstain from their belligerent attitude and ‘‘pursue a course of conduct marked by mildness, modera- ? tion and forbearance.’’ The commissioners pointed out that in the absence of a farther western territory, to which the Indians could be removed, the only way to solve the racial problem in California would be either to exterminate or to domesticate the red man, and justice demanded the latter policy." The commissioners visited the state capitol to consult with the governor and members of the legislature concerning the Indian disturbances. Most of the Indian attacks, the commis- sioners held, were induced by cruel acts of unprincipled whites, while the politicians who did not approve the ‘“address’’ were simply seeking to make political capital of the Indian disturb- ances by posing as the only friends of the immigrants and miners. They also condemned Governor McDougal for his belliigerency and disapproved of his order calling out two hundred volunteers for a punitive expedition against the Indians, at the rate of five and ten dollars a day, thus piling up ‘‘another pretty little claim’’ for ‘‘Uncle Sam.’’ This belligerent policy, they claimed, put unnecessary difficulties in their way." The commissioners were convinced that the proper way to deal with the Indians was to hold out ‘‘an olive branch rather 9) than a sword. They believed that nothing could induce the 15 Herald, March 14, 1851; Alta, Jan. 6, 21, 31, Feb. 14, 1850, seChe Alta was less hysterical; it inveighed against the circulation of exciting stories in the press; it openly asserted that the white adventurers were greatly to be blamed for the disturbances. The Alta was also opposed to the use of prejudiced frontiersmen as volunteers against the Indians, claiming that such means would only embarrass the Indian commissioners and prevent a speedy settlement of the troublesome question. 16 This address was published in the Alta, Jan. 14, 1851. 17 Sen. Ex. Doc. 4, 33 Cong., Special Sess., 53, 56-58, 59, 249 (688).86 Unversity of Califorma Publications in History [Vou. 16 Indians, when their stomachs were full, to attack the whites. Hence they adopted the general policy of removing the Indians to special tracts of land set apart for them within the state and supplying them with enough provisions to last for some time. EKighteen treaties were made with the Indians, reserving for them some seven per cent of the total area of the state. The commis- sioners maintained that in the end these would be the cheapest treaties ever made by the United States government, for it was cheaper to feed the Indians a year than to fight them a week, especially when the expeditions were conducted by the state of California.*® The treaties were violently attacked in California. Many in the southern counties were afraid that they would be deprived of the Indian’s cheap and easily procurable labor. The settlers and miners grudged the tempting mining and agricultural tracts embraced within the reservations, while the frontiersmen were opposed to the whole policy of settling hordes of savages in the heart of the state. ‘‘The Indian must go!’’ was their slogan. The press fulminated against the reservation policy which ceded . o ” to the Indians “‘the best mineral and agricultural lands’’ to the detriment of the white miners and farmers. It warned the government that the miners were determined to disregard the treaties, and ‘‘if necessary to take possession of the reserved land by force.’’ It was asserted that the savages needed first a severe lesson that would impress them with the power of the white man.'® oe The commissioners attempted to ‘‘disabuse the public mind”’ in regard to the supposed extent and great mineral and agri- cultural wealth of the land reserved to the Indians. They pointed 18 The Commissioners to Lea, May 1, 1851 (Sen. Ex. Doc. 4, 33 Cong.. Special Sess., 54-56, 76, 128-30 [688]). About 11,700 square miles or 7,488,000 acres. Ellison, ‘‘Indian Policy in California, 1846-1860,’’ in Mississippi Valley Historical Review, IX, 57 (June, 1922). 19 Los Angeles Star, March 13, August 14, 1852; in Hayes, Collection, XXXVITI, 18, 19; Herald, August 2, 1851; Alta, July 26, 1851; Sacra- mento Placer Times and Transcript, September 24, 1851.10 2) ~] 1927 | Ellison: California and the Nation out that their purpose was to withdraw the Indians from the mountain fastnesses and settle them upon land rich enough to furnish means of livelihood. The interests of the whites, how- ever, had not been overlooked; it was the policy, whenever pos- sible, to exclude the Indians from the mining districts.*° Such papers as the Alta and the Picayune championed the policy of the commissioners as the most humane and economical; they also denied that the reservations contained some of the best mineral and agricultural lands.* But the efforts of the commissioners and their supporters to influence public opinion in favor of their policy were in vain. Both Governor McDougal and his suecessor, Governor Bigler, were openly opposed to the reservation system on the ground that large tracts of mineral and agricultural land were reserved to the Indians; also that the policy of settling numerous tribes of savages within the heart of the state would be productive of conflicts between the whites and the reds, involving the state and nation in great expense and inconvenience. Governor Bigler recommended that the legislature should transmit to the United States Senate a vigorous protest against the reservation system, urging the rejection of the treaties.” In both houses of the legislature were drawn up reports and resolutions condemning ,the Indian treaties. It was asserted in these reports that the policy of assigning to a ‘‘few tribes of ignorant barbarians’’ a considerable portion of the richest mineral and agricultural lands would not benefit the Indians, who were not accustomed to a sedate life, but would cause the ejectment of a number of worthy American citizens who had preempted parts of these lands. It would also affect the pros- perity of the state by withdrawing large portions of taxable 20 Alta, Sept. 9, 1851. Letter of Barbour to the people, Sept. 13, Oct. 10, 1851, a communication from Wozencraft; McKee to Commissioner Mix, Oct. 28, 1851 (Sen. Ea. Doc. 4, 33 Cong., Special Sess., 213 [688]). 21 Picayune, Sept. 13, 1851; Alta, May 31, July 26, Sept. 12, 1851. 22 California, Sen. Jour., 1852, 21, 79, 44-46.88 Unwersity of California Publications in History [Vou. 16 property. Moreover, the reservation policy was contrary to the practices of the Mexican republic, which never admitted the right of the Indian to the soil; and contrary to the policy of the United States government of removing the Indians outside of the limits of the state, thereby preventing collisions between the two races. It was also pointed out that the inclusion of the neophytes of the missions would withdraw from the farms and vineyards of the southern districts a large part of the laboring force, and thereby strike a blow at the agricultural interests of the south. The resolutions in both houses of the legislature recommended that the California Senators be instructed to urge the rejection of the treaties in the Senate and to insist that the former policy of removing the Indian beyond the state should be also applied in California.?* An eloquent plea in behalf of the reservation system was made by Senator Warner in his minority report. He pointed out that the general government could not remove the Indians to Oregon, Utah, or New Mexico; nor could they be removed to the sterile regions of the Sierras. In view of these peculiar con- ditions, the commissioners had to devise the new policy of appropriating portions of land within the state where the Indians could be settled and ‘ awaits them on every other side.’’ ‘escape that certain destruction which Will it be said that the land is not broad enough for them and us? or that while our doors are open to the stranger from the uttermost part of the earth we have not spare room for the residence of the once sole inhabi- tants of our magnificent empire? . . .. Has the love of gold blotted from our minds all feelings of compassion or justice? The rejection of the treaties, Warner held, would be considered by the Indians as a breach of faith, and never again would they place reliance in any agents of the federal government. If the 23 California, Sen. Jour., 1852, 597-604.1927 | Ellison: California and the Nation 89 treaties were unfair to the whites, they should be amended, not rejected.** In newspaper columns and at public meetings the commis- sioners defended the reservation policy. Commissioner McKee addressed the legislature, pointing out that the lands reserved for the Indians were the least valuable: He warned the legis- lature that should the treaties be rejected the Indians would lose all confidence in the white man and a war of extermination would follow along a frontier of sixteen hundred miles. McKee also had an ineffectual conference with the assembly committee on Indian affairs and the resolution was adopted by a vote of thirty- five to six.”° While the treaties were still pending in the United States Senate, there were frequent conflicts between the whites and the Indians. General Hitchcock rebuked the miners who were intruding upon the reservations set apart for the Indians, maintaining that until the treaties were rejected they must be respected. He appealed to Governor McDougal to intervene in the matter in order to prevent further disturbances.”®° Also, Commissioner McKee complained to the governor of ‘‘alarming difficulties’’ between the whites and the Indians. He stated that the whites, relying on the opposition of the legislature to the treaties, disregarded the agreements and adopted summary measures in dealing with the Indians, killing in cold blood between thirty or forty Indians. ‘‘The wanton sacrifice of human life,’’ he said, ‘‘brought lasting disgrace upon the American name.’’ McKee requested the governor to bring some of the white culprits to ‘ punishment and to issue a proclamation ‘‘ealling upon all who have the true interests of California at heart, to frown upon such 24 California, Sen. Jour., 1852, 602-4. 25 Herald, March 23, 1852. See also their communications to Washing- ton in Sen. Ex. Doc. 4, 33 Cong., Special Sess., 207-8, 221, 248, 309-10, 333 (688); California, Assembly Jowr., 1852, 396-97. 26 Alta, Oct. 6, 1851.90 University of California Publications in History [Vow. 16 attempts to imbrue the frontier in blood, by exciting in the Indians the spirit of revenge and retaliation.’’?’ The state authorities and the frontiersmen had a different conception of the relative rights of the two races; they were ready to underestimate the misconduct of the whites and exag- oerate the cruelties of the Indians. In his reply Governor Bigler ealled the attention of the commissioners to a memorial submitted ‘ to the governor by the ‘‘respectable gentlemen’’ representing the northern counties in the legislature, where it was stated that within a few months the Indians had murdered about two hundred and fifty persons in the northern counties and had destroyed about $240,000 worth of property. These disturbances, asserted the memorialists, emanated ‘‘from the known character of the Indians, a mischievous disposition and a desire for ; plunder.’’ Unless the state or national government should send the proper military aid, the frontiersmen would either have to unite and exterminate the Indians, or withdraw from the border regions.** Governor Bigler maintained that McKee’s attitude ¢ implied an ‘‘imputation on the character of American citizens,’’ and that as a public magistrate chosen by American citizens, he could not yield his approbation to any ‘‘imputations upon their intelligence or patriotism.’’. He was confident that a thorough investigation of the cireumstanees would fully acquit the Amer- ce ican citizens of the charge of murdering ‘‘defenceless Indians in cold blood.’’*® McKee replied in the same tone. He asserted that he enter- tained as much regard for the character and honor of the Amer- 27 McKee to Bigler, April 5, 1852. California, Sen. Jour., 1852, 712-14. McKee also addressed a letter to General Hitchcock, informing him of the lawless behavior of the frontiersmen, which produced results that “fare sickening to the mind, as well as disgraceful to our State and national character.’’ He asked the general to establish several military posts on the frontier for the mutual protection of the Indians and the whites (ibid., 716-17). 28 The memorial to Governor Bigler is found in California, Sen. Jour., 1852, 703-4. 29 California, Sen. Jour., 1852, 714-16.1927 | Ellison: California and the Nation 91 ican citizens as did the governor, but his regard ‘‘for the dear people’? must not interfere with his sense of justice. He was unwilling to admit that special credit should be given to state- ‘ ments of members of the legislature, for the ‘‘aecidental eleva- tion of a man to a political station, especially in our frontier States, does not necessarily change his moral perception or sensibilities. ’’*° In response to the appeal of the northern counties for military aid, Governor Bigler addressed a letter to General Hitchcock complaining that the neglect of the general government to pro- vide adequate protection for the citizens of California was responsible for the loss of many lives, and should the government refuse to provide the necessary military protection, then results would ensue ‘‘which every true friend of the government must 7 deplore.’’ For there is a line of reciprocal duty upon which the mutual relations of a government and a people depends. He suggested to General Hitchcock that volunteer forces could be immediately enrolled if the general was authorized to state that the national government would assume the expense of such a force.*} General Hitchcock replied that he was doing his best to afford every protection possible under the circumstances, but because of the nature of the settlements, and the inadequate supply of troops, his earnest efforts could not always prevent disturbances. The reluctance of the War Department to station more troops on the coast was due to the belief that on account of the temptations 30 McKee to Bigler, April 12, 1852 (ibid., 717-21); Sen. Hx. Doc. 4, 33 Cong., Special Sess., 314-18 (688). 31 Bigler to Hitchcock, April 8, 1852 (California, Sen. Jour., 1852, 705-6). These views of the governor undoubtedly expressed the opinion of a majority of the people of California. Dissatisfaction with the military protection extended by the federal government was quite general even on the coast. It is a very sad spectacle, said the Alta of July 28, 1851, when the national government cannot afford proper protection for its people on the Pacific Coast. The San Francisco Herald asserted that the federal government entirely neglected to protect California, while at the same time it was collecting large amounts in taxes. All these things, it declared, rankle in the breasts of our people.92 University of California Publications in History [Vou. 16 to desert it would be useless to send them. In regard to calling out the militia of the state, he told the governor that such a force could be recognized only when ealled into service by the Presi- dent of the United States.*? Here again we see the differences in the point of view of the state and the federal authorities. The federal authorities did not think the situation serious enough for calling out the militia. The federal authorities had, in general, little sympathy with the idea of employing volunteers for punitive expeditions against the Indians. They believed that the ‘‘prime movers’’ for the Indian wars in California ‘‘were not without substantial pecuniary ? reasons for their patriotism,’’ and that if it were not for these people the frontier would remain quiet. Rejection of the treaties—The Department of Indian Affairs received the California Indian treaties during the last months of 1851 and the early part of 1852. But being aware of the oppo- sition to the treaties in California, the Department decided to delay their transmission to the Senate until it could obtain more information which would better enable it to judge correctly as to their merits and as to whether it should recommend their adoption, amendment, or rejection. Beale, superintendent of Indian affairs in California, was instructed to make a full report on the merits of the treaties. Beale expressed himself in favor of the treaties. He pointed out that there was no place to which the Indians could be removed; the territory east of the Sierras was mostly a barren desert; Oregon had enough Indians of her own; to remove them to the south would place them directly in the line of the immigration routes, and would also be a violation of the treaty stipulations with Mexico, wherein the United States government promised not to colonize Indians on the Mexican border.** Com- 32 Me to Bigler, April 10, 1852 (California, Sen. Jowr., 1852, 706-9). 83 Beale to Lea, May 11, 1852 (ibid., 326-30) ; California Treaties 1851— 1852, 6-10.1927 | Ellison: California and the Nation 93 missioner Lea was in favor of the treaties, though he admitted the novelty of some of their stipulations, especially the stipu- lation for the permanent settlement of tribes ‘‘within the limits of a State on lands not previously owned by them.’’** But the California members in Congress opened war upon the treaties even before they were presented for discussion. ‘‘ Where are the treaties?’’ asked Senator Gwin, ‘‘ Why are they not trans- mitted to us. .... The people of California are up in arms against these treaties.’’ In the House, McCorkle denounced the commissioners and the treaties. Commissioner Lea had a con- ference with the California members in Congress, but the latter were determined to do all within their power to have the treaties rejected in the Senate.*° On June 1, 1852, President Fillmore transmitted to the Senate the eighteen treaties. The California Senators immediately opened fire on them. They asserted that it would be impossible for the federal government to retain the Indians in undisturbed possession of the lands, for a whole army of the United States could not keep the white miners from intruding upon the reser- vations.*® There was also a prevailing opinion in the Senate that, since the Indians had no usufructuary or other rights in the soil under the Mexican government, the United States govern- ment, as the successor to that sovereign power, succeeded to its rights in the soil and was under no obligation to treat with the Indians for the extension of their titles. All the treaties were rejected.** Increase of military forces for Califorma—Even before the rejection of the treaties President Fillmore recommended that Congress increase the army so as to enable the War Department 84Tiea to Secretary Stuart, May 14, 1852; California Treaties 1851- 1852, 4-6. 35 Cong. Globe, 32 Cong., 1 Sess., 890, 1121-22, App., 1082. 36 Cong. Globe, 32 Cong., 1 Sess., 2173; 32 Cong., 2 Sess., 1085. 37 It was stated by McCorkle that the treaties were rejected unani- mously (Cong. Globe, 32 Cong., 1 Sess., 1082; 32 Cong., 2 Sess., 1085).94 University of California Publications in History (Vou. 16 Q Y to augment the military force on the Pacific Coast for the pro- tection of the frontier settlements.** Senator Gwin introduced a bill empowering the commanding officer of the United States forces on the Pacifie Coast to make a requisition upon the governors of California and Oregon for volunteers to suppress Indian hostilities. The volunteers were to be armed at the expense of the United States government and to be paid three times as much as the regular officers and soldiers serving on the Pacifie Coast. Commenting on his bill, Gwin pointed out that for an extensive country like California, with a long frontier of sparsely settled communities, the normal military force was a ‘ mere mockery, searcely able to “‘protect their own scalps from ? the tomahawk of the Indians.’’ He advocated the use of volun- teers. ‘‘We have in our State,’’ he said, ‘‘the picked men of the nation, and they only wish the Government to call for their services, and pay for them.’’*® When Gwin’s bill was killed, his colleague, Weller, introduced a resolution calling for the organization of an additional regi- ment of mounted men and the establishment of military posts in California. Weller asserted that there were at least seventy- ‘ five thousand Indians in California, who only needed a ‘‘master spirit to confederate the tribes in a bloody and desolating war.’’ He held that the extermination of the Indians was inevitable. He then gave voice to the usual frontier complaint against the inadequacy of military defense. It is not to be expected that a Government too weak to defend, or so unmindful of its duty as to refuse adequate protection, can command the respect or affection of its people..... Recall your tax collectors, your hordes of Federal officers, and California would soon take care of herself. But if you tax us; if you claim our allegiance to the Federal Government ; if we are to contribute towards its support, you must protect us. There must be a reciprocity in this matter. That some disaffection exists amongst the people, growing out of these causes, is certain; that unless the cause is removed this will increase is equally certain.40 88 H. Hx. Doc. 2, 32 Cong., 1 Sess., 19 (634). 89 Cong. Globe, 32 Cong., 1 Sess., 470-71. 40 Cong. Globe, 32 Cong., 1 Sess., 1587.1927 ] Ellison: California and the Nation 95 Conciliation of the Indians.—With the rejection of the treaties the Indian situation became even worse than before. Many of the Indians had already been removed from their mountain homes and settled upon reservations, which in consequence of the rejection of the treaties they now had to leave. But by this time the whites had spread over their former hunting grounds, thus destroying their only source of subsistence. It was therefore feared that hunger and disgust with the whites would arouse the Indian to greater hostilities than before. Hence, to appease the Indians, Senator Weller offered an amendment to the Indian appropriation bill, proposing to appropriate the sum of $100,000 ‘“for the purpose of purchasing supplies and presents to be dis- tributed to the Indians of the State of California.’’ The southern Senators objected to the whole paternalistic policy of feeding Indians from the federal treasury. Moreover, it was pointed out that at California prices the sum of $100,000, to be distributed among an Indian population of 75,000 souls, would be but a 2) ‘drop in the bucket.’’ Weller protested. He warned his fellow- Senators that if no provision for the Indians in California were made, his state would be involved in a prolonged war. ‘‘Who is to pay the expenses of the war?’’ he asked. He warned the Senate that if they are determined that the State of California shall not only feed these Indians, but that she shall be compelled to fight them with her own troops and at ‘her own expense, and in the meantime you are taxing the very necessaries of life which they consume, the very bread which they eat, the time will come when there will be a spirit of disaffection upon the shores of the Pacific.41 Walker, of Wisconsin, deprecated the threats of secession. And Dawson, of Georgia, protested against the charge of illiberality to California. He asserted that no territory or state was ever more protected than was California.** The amendment was finally adopted. One hundred thousand dollars were appro- 41 Cong. Globe, 32 Cong., 1 Sess., 2172-75. 42 Cong. Globe, 32 Cong., 1 Sess., 2177.96 University of Califorma Publications in History (Vou. 16 priated for the ‘‘ preservation of peace with the Indians who had been dispossessed of their lands in California.’’** Military reservations—Meanwhile Superintendent Beale began to experiment with a new plan. He congregated about a thousand Indians on a small reservation and put them to work, thus making the colony self-supporting. Satisfied with the success of his experiment, he wrote to the Indian Commissioner at Washington recommending the establishment of a number of small reservations on which the California Indians were to be collected. The tracts of land set aside for this purpose were to be regarded as military reservations, each one to be garrisoned by a military post. The Indians were not to receive the fee simple title to these lands. To make these little colonies self- supporting, the Indians were to be instructed by government agents in the art of productive labor. To enable him to earry out this policy he asked for an appropriation of $500,000.** Commissioner Lea approved of this policy, and a law was passed in March, 1858, authorizing the establishment of five mili- tary reservations in California, New Mexico, and Utah. Each reser- vation was to contain not more than 25,000 acres.*® In his report of December 5, 1853, Secretary of the Interior McClelland called the attention of Congress to the difficulty of finding suitable locations for military reservations in the northern part of Cali- fornia. He recommended the purchase of tracts of land from private persons, and suggested the advisability of requesting the state of California to grant to the federal government the right of exclusive jurisdiction over the reservations.*® When the subject came up for discussion in the Senate, several members voiced their dissatisfaction with the whole reser- vation system. Gwin thought it was not right to force upon the 43 Cong. Globe, 32 Cong., 1 Sess., 2181. 44 Beale to Lea, Noy. 22, 1852 (Sen. Hx. Doc. 4, 33 Cong., Special Sess., 374, 379-80 [688]). 45 United States, Statutes at Large, X, 699. 46H. Ha. Doc. 1, 33 Cong:., 1 Sess., 62 (710). 5"1927 | Ellison: California and the Nation 97 people of California a policy which they opposed. He also ques- tioned the power of the federal government to reserve large tracts of land for Indian settlement within the limits of a state, and he doubted whether California would ever consent to cede jurisdiction. Weller maintained that it would be unfair to withhold from the people of California an area of 125,000 acres of arable land. He did not think the federal government could exercise exclusive jurisdiction over the reservations without the consent of the state. Others held that it was not necessary that the government should have exclusive jurisdiction, for the Indian who should commit an offense against the laws of the state could just as well be tried in the state courts.** The act finally passed provided for three reservations, but on the advice of the Indian Department a bill was passed at the next session providing for two additional reservations, each one not to exceed 25,000 acres.*® In California the new Indian policy was praised by some as the one most humane and economical. Many, however, were opposed to the whole reservation system. In his annual message of January 4, 1854, Governor Bigler urged the legislature to insist that there ‘‘shall be no departure from the Indian policy which has so long received the sanction of the Government of the United States.’’4® In spite of occasional adverse criticism the new Indian policy was followed for some time. The Indian war debt.—We have already seen that the failure of the federal government to supply the desired military aid for the protection of the frontier caused the state authorities to resort to the use of volunteers. Now volunteer service is always expensive, but it was especially costly in California because of the peculiar social and economic conditions. To cover the indebtedness which the state had incurred in suppressing Indian 47 Cong. Globe, 33 Cong., 1 Sess., 1028-29, 1042-43. 48 Act of July 31, 1854, Section 2 (United States, Statutes at Large, X, 332-33). 49 California, Sen. Jouwr., 1854, 24-25.98 University of California Publications in History [Vou. 16 Yy ] Yy hostilities, the legislature passed an act on February 15, 1851, authorizing the state treasurer to negotiate a loan of not more than $500,000, at twelve per cent interest per annum. The claim of the state on the federal government was pledged for the pay- ment of the principal and interest of the loan.®°® Under this act $200,000 worth of bonds were sold up to May 3, 1852, when it was repealed and a new act passed appropriating $600,000 to pay the expenses. Under the new act the bonds were to bear seven per cent interest per annum, and were to be paid out of the money to be appropriated by Congress to defray the expenses of the state in suppressing Indian hostilities. Only in ease the amount to be paid by Congress should appear insufficient were the bonds to be valid claims against the state.*? By 1854 the total amount of the war debt, principal and =o interest, had reached the sum of $924,259.65.°? The state authori- ties were confident that the federal government would assume the debt, for abundant precedents in the form of appropriations made for similar purposes®? were to be found in the proceedings of Congress. Governor Bigler urged the legislature to demand that the government should assume the war debt. He also appointed Pierce as agent to collect and arrange the original documents connected with the several punitive expeditions in the years 1850, 1851, and 1852, and to proceed to Washington to endeavor to secure the payment of this money.** In his interviews with some of the members of Congress Pierce found many of them prejudiced against the California claims. In both houses of Congress the California members intro- 50 California, Statutes, 1851, 520-21. 51 California, Sen. Jour., 1852, 21, 75-76; 1852, 12-13. 52 California, Sen. Jour., 1854, 12. 58 California, Sen. Jour., 1852, 21, 75-76. 54 California, Sen. Jour., 1854, 18-19. In Browne’s Report the amount of gold shipped in 1853 is given as only $57,330,034 (H. Ex. Doc. 29, 39 Cong., 2 Sess., 50 [1289]). See correspondence in reference to the war debt, California, Sen. Jour., 1855, 63-64.1927 | Ellison: California and the Nation 99 duced bills providing for the assumption of the California war debt by the federal government. They pointed out that this debt of about a million dollars was incurred by California because the federal government was not able to provide the necessary mili- tary aid, hence it was the duty of the federal government to assume this debt. After some discussion an amendment to the army appropriation bill of 1854 was adopted directing the Secre- tary of War to ‘‘ascertain the amount of expenses incurred by the State of California in the suppression of Indian hostilities’’ prior to January 1, 1854, and pay the amount not above $924,259.65 into the state treasury.°° In accordance with the provisions of the act of August, 1854, Secretary Jefferson Davis asked the state authorities to forward to him all the amounts, vouchers, and papers requisite to estab- lish the claim: Instead of the vouchers the state authorities transmitted to the Secretary of War a certified statement of the amount paid by the state in suppressing Indian hostilities. Secretary Davis informed the governor of California that the requirement of the act could not be fulfilled upon the ‘‘evidence showing nothing more than that the State has made certain bonds and warrants’’ to satisfy certain claims; that unless he should be placed in possession of the vouchers on which the original warrants and bonds had been issued, he could not order the payment of the money appropriated by Congress. Other states, he said, in presenting similar claims against the govern- ment, had produced the original bills paid by them.*® The state authorities objected to transmitting the original bills to Washington, for in the settlement of the accounts before the board of examiners and legislature committees much of the testimony in behalf of the claimants was oral and had not been preserved. They feared lest, if Secretary Davis should assert the 55 United States, Statutes at Large, X, 582-83. 56 California, Sen. Jour., 1856, 227 (letter from Jefferson Davis to the governor of California).100 University of California Publications in History (Vou. 16 right ‘‘to go behind the act of the Board of Examiners, and inquire whether the demands were such as ought to have been allowed .... the exacting requirements of the Secretary and his auditing officers would find abundant pretexts to reduce the sum They held that the act of Congress of August 5, , materially.’ 1854, did not require the Secretary of War to inquire into the necessity or expediency of some of the payments, which, owing to the peculiar conditions in California, were in some cases enormous.°** Realizing, however, that stubborn resistance to the demands of the Secretary of War would only delay the payment of the money and thereby increase the war debt, the state authorities decided to transmit to the Secretary all the documentary evidence and original vouchers. To save the cost of transporting the money to and from the state, and the further accumulation of interest on the bonds, an act of the legislature instructed the commissioners to advertise in the daily papers of Washington, Boston, New York, and Philadelphia inviting the bondholders to present the bonds for redemption. After the entire issue of the twelve per cent bonds had been redeemed, the commissioners were to apply the residue of the fund appropriated by Congress to the redemption of the seven per cent bonds. The reasons for giving preference to the twelve per cent bonds were (1) that the entire appropriation was pledged to their redemption, and (2) it was more advantageous to the state to redeem first the bonds bearing the higher rate of interest. The seven per cent bonds would not be due for several years, and since there was no perma- nent fund for their redemption, they would, it was assumed, be offered by their holders on terms that would enable the state to 57 Ibid., 28, 228. See also the report of the board of examiners in appendix to Sen. Jour., 1855, Doe. 15, pp. 1-25. The board stated that the vouchers were in a state of confusion, and many irregularities had been committed in connection with this subject. A later committee of the legislature asserted that notorious frauds were committed in the issuance of these bonds (California, Assembly Jour., 1864, App. to Vol. II, Doe. 38).1927 | Ellison: Califorma and the Nation 101 eancel the whole debt with the fund appropriated by Congress, thereby saving to the state some $200,000.°* But the state authorities reckoned without the host. The holders of the seven per cent bonds contended that the state of California had no right to apply preferentially to redemption of the twelve per cent bonds money appropriated by Congress for all the California creditors merely because such a transaction would benefit the state. Also the Senate Committee on Military Affairs, which had charge of a bill to provide for the settlement of the California war debt, held that the policy advocated by the state of California would involve the government in liabilities above the sum appropriated. The Committee further held that the United States government was not liable for any interest accrued since the appropriation was made, for it had accrued because the state authorities had not made the proper application for this fund.*® Since, under the act of Congress of 1856,°° none of the money appropriated by Congress under the act of August 5, 1854, could be applied to the redemption of bonds issued after January 1, 1854; and since, by the ruling of the third auditor, interest could be allowed only up to January 1, 1854, there was no need to make any discrimination between the two kinds of bonds, for the appropriation of Congress was sufficient to pay the principal and interest on all the bonds due on January 1, 1854. But in consequence of the delay of two years from the time the appro- priation was made until it was collected by the state, a large amount of interest had accumulated on the bonds. The coupons 58 California, Sen. Jour., 1856, 230-32; California, Statutes, 1856, 206- 10. This action, he thought, was necessary, on account of the delay in collecting the appropriation, which resulted in the accumulation of a large amount of interest on the bonds, so that the funds appropriated by Congress would then not be sufficient to discharge the whole debt, inter- est and principal. 59 Cong. Globe, 34 Cong., 1 Sess., 1777. 60 Ibid., 1846, 2238-39; United States, Statutes at Large, XI, 91.102 University of California Publications in History [Vou. 16 falling due between January 1, 1854, and September 1, 1856, amounting to an aggregate sum of $172,828.54, were cut off and returned to the holders of bonds still outstanding against the state. The state authorities were, however, confident that Congress would make provision for the remainder of the war debt. New Indian disturbances.—Meanwhile fresh Indian hostilities broke out in the northern counties. In response to appeals for military aid, the legislature authorized the governor to call out a volunteer company of fifty men.°? Knowing, however, how difficult it was to induce Congress to assume the war debt, Governor Johnson decided to appeal first to General Wool. Wool promised to do all he could to protect the frontier settlers.** Governor Johnson then decided to resort to volunteers, whom he thought would prove more effective than regular troops of the United States army. On April 25, 1857, the legislature passed an act authorizing the state treasurer to issue bonds for a sum not exceeding $410,000 to pay the expenses incurred in suppressing Indian hostilities dating from 1850 to 1857 inclusive. The bonds were ‘ to be ‘payable out of any money hereafter to be appropriated 61 See the several Reports of the Commissions of California War Debt, in California, Assembly Jowr., 1858, 65-69; California, Sen. Jour., 1860, App., Doc. 12; Sen. and Assembly Jours., App., 1872, Doc. 8. According to the Report of Adjutant General Kibbs in 1862 (California, Sen. and Assembly Jours., 1862, Doc. 31), the Secretary of War paid out $781,650 on the bonds and $119,497 interest thereon up to January 1, 1854, thus making the total of $901,147.38 paid on bonds and interest. The course of Commissioners Denver and Smith was criticized severely in a minority report of a legislative committee on war claims. They were accused of collusion (see Report in California, Sen. and Assembly Jouwrs., 1864, App., Doe. 38). 62 California, Assembly Jour., 1856, 133, 149; California, Statutes, 1856, 42-43. 63 California, Assembly Jour., 1856, 327-28 (Wool to Johnson, Jan. 21, 1856). Ibid., 328-29.1927 | Ellison: California and the Nation 103 by Congress for the payment of such expenses.’’** In 1858 the legislature adopted a resolution requesting Congress to appro- priate a sum of money sufficient to discharge the war debt.*° The act of Congress of March 2, 1861, providing for a sum of $400,000 to defray the expenses incurred by the state of Cali- fornia in the suppression of Indian hostilities within the state during the years of 1854, 1855, 1856, 1858, and 1859 passed without much opposition, for it was the general belief that the federal government was liable for all such indebtedness. There was, however, a prevailing opinion in Congress that many of the ‘ frontier wars were instigated from ‘‘motives of speculation in order that large claims may be made against the Government.’’*° California sent to Washington a board of commissioners with the necessary vouchers. But the third auditor found the prices for supplies and transportation exorbitant in many cases. In spite of the remonstrances of the California commissioners that the high cost of supplies and transportation was due to the peculiar conditions in the state, the third auditor allowed only $229,987 upon vouchers representing claims of over $400,000.%7 Failure of the military reservations——The promises which the system of military reservations held out at its inauguration had not been realized. Only a small percentage of Indians were on the reservations. Nor were these reservations self-supporting, as they were expected to be. The Indian Department attributed the failure of the reservation system to the mismanagement of the government employees on the reservation, to the interference of the white settlers, and to the indolence of the Indians. To secure the Indians from improper interference, it recommended application to the state of California for the relinquishment to 64 California, Statutes, 1857, 262-64. 65 California, Statutes, 1858, 358. 66 Cong. Globe, 36 Cong., 2 Sess., 478. 67 Ibid., 479, 1130; United States, Statutes at Large, XII, 199-200; California, Assembly Jowr., 1863, 39.104 University of California Publications in History (Vou. 16 the federal government of all jurisdiction over the reservations in the state.®* In California there were always many who deprecated the reservation policy. In 1855 the Alta pronounced it a failure. In 1857 Governor Johnson urged the legislature to demand the removal of Indians from the state. The Sacramento Umon and San Francisco Herald advocated the abolishment of the reser- vation system, for it neither protected the whites nor the Indians; it only withheld from white settlers over two hundred thousand acres of the best farming land.*° In a concurrent resolution the legislature instructed the state ‘ delegation in Congress to ‘‘urge upon the federal authorities to cede to the State of California the entire jurisdiction over Indians and Indian affairs within our borders, together with such appropriations of land and money as will be adequate for the proper management and support of the Indians.’’*° Latham introduced a bill in the Senate proposing to transfer the man- agement of Indian affairs within California to the state govern- ment for an annual compensation of $50,000, to be paid for a period of twenty years.7 He told the Senate that when the people who were ‘‘engaged in getting up these wars,’’ under- stood that the legislature could send investigating committees to find out whether the wars were justifiable and whether the Indians were well cared for, then there would not be Indian wars.”” 68 Estimates of the number of Indians on reservations differed con- siderably. Superintendent of Indian Affairs, Henley, in his report for 1856, estimated the number of Indians within his jurisdiction at 61,000. Of these, only 10,000 were on reservations (Hayes, Collection, XLII, no. 100). Five reservations had been established in California, on which 11,239 Indians had been located up to March, 1858, at a cost of $1,173,000 (Report of Commissioner of Indian Affairs, H. Hx. Doc. 1, 35 Cong., 2 Sess., 357 [997]). 69 Alta, Oct. 18, 1855; Sacramento Union, Jan. 26, 1855; California, Assembly Jour., 1857, 25-26. 70 California, Statutes, 1860, 423-24. 71 Cong. Globe, 36 Cong., 1 Sess., 1549. 72 Loc. cit. — betes a5 Sate1927 | Ellison: California and the Nation 105 Congress admitted that the federal Indian policy in Cali- fornia was unsuccessful but it doubted the wisdom of the policy of transferring the control of the Indians to the state. Under the act of June 19, 1860, California was divided into two Indian districts, a northern and a southern, with a superintendent agent for each district.7* The condition of Indian affairs in California continued to be unsatisfactory. Commissioner of Indian Affairs Dole reported that some of the reservations within the northern districts were becoming worthless, that the buildings had fallen into decay, and many settlers were intruding upon the reser- rations. Congress passed an act consolidating the two districts under one superintendency,’* and in August, 1866, the Indian Department dispatched a special agent to California to investi- gate the Indian situation.”® During the sixties the federal Indian policy was undergoing fundamental changes occasioned by the rapid progress of the construction of the continental railroads. In 1869 all superin- tendents of Indian affairs and all Indian agents, except those in Kansas and Nebraska, were officers of the United States army. The act of Congress of July 15, 1870, relieved the officers of the army from these duties. The President then decided that all the agencies should be filled by appointment upon the recom- mendation of some Christian denomination. The California Indians were entrusted to the care of the Methodists.** Mean- while the frontier was becoming more thickly settled, and the Indians were becoming weaker and weaker.” 73 United States, Statutes at Large, XII, 57. 74 United States, Statutes at Large, XIII, 39-41. April 8, 1864. 75 H. Ex. Doc. 1, 40 Cong., 2 Sess., 9 (1326). 76 H. Ex. Doc. 1, 42 Cong., 3 Sess., 460 (1560). 77 The Indian Commissioner estimated the number of Indians in Cali- fornia in 1869 at 20,000 (H. Ex. Doc. 1, 41 Cong., 2 Sess., 459 [1414]). The Indian question, however, left a legacy in the form of a controversy between the state and the federal government concerning the Indian war claims. We have already seen how after every settlement of the Indian war debt there remained, as a result of the disagreements between the state and federal officials, a large unpaid balance. By 1893 the entire106 University of California Publications in History [Vou. 16 Summary and conclusions.—It is thus seen how troublesome the Indian question in California was for about two decades, giving rise to considerable controversy between the state and federal governments. California demanded military protection against the Indians but the federal authorities could not or would not respond to every eall of the frontier settlements for military aid. Moreover, the two authorities differed considerably with regard to the causes of the Indian disturbances and the methods of dealing with this question. The state authorities claimed that the Indian hostilities were due to the inherent predatory character of the red man and that these racial collisions would continue until the Indians were removed or exterminated. But the federal authorities held that the Indian hostilities were due to the aggres- sive behavior of the reckless white adventurers, and that they ? were merely a ‘‘transitory inconvenience’’ experienced by many frontier communities. The state authorities believed that volun- teer rangers were better fitted to cope with the Indians in their mountain fastnesses than were the regular United States military forces, while the federal authorities opposed the use of volunteer frontiersmen for punitive expeditions against the Indians on the grounds of economy, efficiency, and expediency. Because of the failure of the federal government to supply the desired military aid, the state authorities resorted to the expensive volunteer service, accumulated large war debts, and then asked ‘‘Uncle Sam’’ to foot the bill. The controversy did not, generally, end with the assumption of the debt by the gov- amount which California claimed to be due to her from the United States on this account aggregated the sum of $660,376.57. The controversy concerning these claims was a source of dispute between the state and federal authorities for over a half a century, and constituted the subject matter of various reports and resolutions in the state legislature and in Congress. Almost every session of Congress until 1917, saw some bills on this matter. But all the efforts of the California delegation in Congress were unsuccessful (Report Third Auditor, April 17, 1894, Sen. Ex. Doc. 84, 53 Cong., 2 Sess., 6-7 [3163]); Cong. Record, 56 Cong., 1 Sess., 1245; 59 Cong., 1 Sess., 6492, 8363; 60 Cong., 1 Sess., 16, 105; 61 Cong., 3 Sess., 1911; 65 Cong., 1 Sess., 611. ————1927 | Ellison: California and the Natiow 107 ernment. The exorbitant prices paid for supplies and services, and the irregularities connected with the vouchers, afforded sufficient cause for a conflict of opinion between the federal and state authorities, which prevented the state from getting the full benefit of the several appropriations made by Congress. A good many of the Indian difficulties in California undoubt- edly could have been avoided. But in spite of the good inten- tions of the federal government, and to a certain extent of the state government, the Indian question in California was not handled in a way to be proud of. This was due partly to the fact that the federal agents were not always appointed for their competency and honesty, but often for partisan reasons. Par- tisanship was also responsible for much of the discord between the Democratic state government and the Whig administration concerning the reservation system. Its inefficient handling was also partly due to the lack of sufficient information to work out a well-devised policy with regard to the Indians, and of the courage to carry it out in spite of opposition. Most of the Indian difficulties, however, were perhaps un- avoidable. Here we have the old story of a struggle between a native backward race and a civilized intruding race for the possession of the soil. Each side clamored that the other “‘must go.’’ Those moralists and humanitarians who personally had never experienced any Indian trouble were apt to criticize too harshly the bellicose frontiersmen.CHAPTER VI THE CIVIL FUND AND THE MINT THe Crvin FunpD Origin of the civil fund—During the war with Mexico the United States officers collected duties in California by executive authority. The collection of such duties was commonly admitted as a right belonging to the conqueror of the conquered territory. But after the termination of the war and the cession of the territory to the United States, Colonel Mason believed that he had no authority to collect duties. However, since no instruc- tions with regard to this matter had come from Washington, and there was need of funds to support the existing government, he decided to substitute the United States revenue laws of 1846. Such a course, he thought, was also necessary to prevent an influx of foreign goods duty free, which would hurt the interests of the American merchants.* It seems that Mason’s course was neither approved nor dis- approved in Washington. In his ecireular of October 7, 1848, Secretary of the Treasury Walker declared that: Although the Constitution of the United States extends to California, and Congress have recognized it by law as a part of the Union, and legis- lated for it as such, yet it is not brought by law within the limits of any collection district, nor has Congress authorized the appointment of any officers to collect the revenue accruing on the import of foreign dutiable goods into that territory. Under these circumstances, although this depart- 1 Mason to Adjutant General Jones, Aug. 19, 1848 (H. Ex. Doc. 17 31 Cong., 1 Sess., 597-98); Halleck to the Committee of the Legislature, Jan. 23, 1850; California Legislature, Jowrs., 1850, 820-21. Riley con- tinued Mason’s policy for the same reasons.1927 | Ellison: California and the Nation 109 ment may be unable to collect the duties accruing on importations from foreign countries into California, yet, if foreign dutiable goods should be introduced there and shipped thence to any port or place of the United States, they will be subject to duty, as also to all the penalties prescribed by law when such importation is attempted without the payment of duties.? The instructions given in this circular are anything but explicit and were naturally subject to misinterpretation. Import- ing merchants of San Francisco addressed a letter to Commodore Jones, the commander-in-chief of the United States Navy on the Pacific Coast, inquiring whether he would seize and con- fiseate goods landed at the port of San Francisco without pay- ment of any duties thereon. According to Walker’s circular, they said, no duties could be collected legally in California.® Jones replied that he fully approved of Mason’s course, and that he would employ all his force ‘‘to enforce the revenue laws of the United States, at every point on the coast of California.’”* In a circular issued on April 1, 1849, General Smith announced that, in the absence of the necessary machinery to collect cus- toms, dutiable goods could not be admitted at all. But, inasmuch as such a course would work great hardship on consumers and importers, he would allow the entry of goods subject to a deposit of the duties ‘‘to await the action of Congress on the subject.’’® The people of California, of course, protested against the enforcement of the tariff laws without any action by Congress. Semple, the editor of the Californian, asserted that the moment the war ceased, the military officers had no right to collect custom-house duties.? Complaints of taxation without repre- sentation were not wanting. 2H. Ex. Doc. 1, 30 Cong., 2 Sess., 45 (537). 8 Letter of Gillespie to Jones, Feb. 23, 1849, quoted in Cong. Globe, Cong., 2 Sess., App., 277. 4 Jones to Gillespie, Feb. 26, 1849, ibid. : 5 Circular to United States Consuls, April 1, 1849 (H. Ex. Doc. ie 31 Cong., 1 Sess., 719-20 [573]). 6 Californian, Oct, 21, 1848. 31 a110 University of California Publications in History (Vou. 16 The duties were, however, paid regularly until November 12, 1849, the date when the revenue laws of the United States went into operation. This fund was more than sufficient to maintain the existing government, for since practically all articles of con- sumption had to be imported, the revenue from this source was very large. The military governors used this money for the purposes of the ‘‘civil government’’ and held whatever remained in a separate fund subject to the order of the President or to final disposition by Congress. Both General Riley and General Smith were in favor of turning over to California a part or the whole of the unexpended money in the civil fund to enable her to put the new government into successful operation.‘ But Secretary of War Crawford instructed Riley to place this fund in the Treasury Department to be held subject to the final action of Congress.® Claims of California to the civil fund.—The question of the disposition of the civil fund was discussed at great length at the constitutional convention. McDougal offered a_ resolution declaring that the money collected as duties on foreign goods in the ports of California between August 7, 1848, and November 12, 1849, by right belonged to California. Gwin held that, since the general government had failed to organize a territorial gov- ernment for California, it had no right to extend the revenue laws to California. The revenue act of March 3, 1849, was there- c¢ 7 fore an ‘‘act of usurpation,’’ and the money unjustly collected should be returned to the people of California. Larkin argued that the money belonged to the merchants from whom it was 7 Riley to Jones, June 30, 1849 (H. Ex. Doc. 17, 31 Cong., 1 Sess., 751, 819). He contended that the money properly belonged to the people and not to the merchants who had paid the duties. He pointed out that to refund the money to the importers would be a virtual gift to a few indi- viduals who had sold their goods at a price high enough to cover the duties paid. 8 Crawford to Riley, Nov. 28, 1849 (H. Hx. Doc. 17, 31 Cong. 1 Sess., 281-82 [573]).1927 | Ellison: California and the Nation - 111 illegally collected. For various reasons the resolution was laid on the table.® 3ut early in the session of the first legislature both houses adopted resolutions declaring that all the money collected upon imports in California up to September 9, 1850, belonged to the state of California.1° A special committee in the assembly, appointed to examine into the ‘‘nature of any legal claim or moral right’’ of California to the civil fund, reported that from their inquiries they had come to the conclusion that this fund rightfully belonged to California. The argument was as follows: With the termination of the war the people of Cali- fornia became citizens of the United States entitled to the same privileges enjoyed by the people of any other state in the Union, and the power to collect duties must be either declared by Congress, or must be given by the consent of the people of California. The right of the President, as head of the army and navy, to levy military contributions on the conquered terri- tory had ceased. Now, since Congress had not legislated for California, the President had no power to continue the collec- tion of duties. Nor had the federal government any right to collect duties from November 12, 1849, to September 9, 1850, ‘ ’ for it had no power to tax a ‘‘sovereignty’’ with which it had formed no political connections." In his annual message of 1849 President Taylor recommended that the balance of the civil fund be expended within Cali- fornia. Soon after the California Senators took their seats, Fremont introduced a bill for the refund to California of the revenue collected in her ports prior to November 12, 1849. His colleague Gwin went farther in his bill, demanding the payment to California of the revenue collected in her ports since the 9 Browne, Debates, 317-20, 322. 10 California Legislature, Jours., 1850, 28. 11 [bid., 817-28. 12 Richardson, Messages, V, 19.112 University of California Publications in History (Vou. 16 ratification of the treaty with Mexico and prior to the admission of the state.1* No action was taken on this bill. The embarrassed condition of the state finanees induced the state authorities to persist in the demand for the civil fund. In his annual message of January 7, 1851, Governor Burnett urged the legislature to insist upon the refund of this money. He asserted that the extension of the revenue laws over California, without giving her representation in Congress, was a ‘ ‘plain and palpable violation of the most prominent principle, the dis- regard of which by the mother country led to the American revolution.’’ Dan Showalter, however, finally succeeded in enlisting in the Confederate army.*° Some of the notable persons arrested for alleged treasonable utterances were Bishop Kavanaugh of the Methodist ehureh south, Colonel Kewen, assemblyman from Los Angeles; Senator Baker, of Visalia; Major Gibbs, the editor of the Los Angeles Star and the Visalia Expositor, Dr. Gwin, and C. L. Weller, chairman of the Democratic state committee.2* Dr. Gwin was arrested by General Sumner, who believed that Gwin was on his way to meet Slidell at Cuba. Gwin appealed to the Granada authorities but the latter were unsuccessful in their attempt to obtain his release.** Weller was arrested and lodged at Alcatraz on July 29, 1864, on the charge that in an address delivered by him in San Fran- cisco he had appealed to southern sentiment and had urged the people to arm themselves *‘to resist the high arm of the military tyranny in California.’’”*® The Democrats. held an indignation meeting and adopted resolutions condemning the acts of the military authorities and the practice of imprisoning men with- 25 Records of the Rebellion, ser. 1, Vol. L, part 1, pp. 30-33, 38-39; Bulletin, Dee. 5, 1861. 26 Records of the Rebellion, ser. 1 Vol. Wu; part 2, pp: 1078, 1079-80. A number of other Californians had enlisted in the Confederate army, McecDuf- fie, David S. Terry, H. I. Thornton, and others. 27 Merced Morning Transcript, Oct. 17, 1862 5 Bulletin, Nov. 30, 1861, Oct. 11, 15, 1862; Sacramento Union, July 27, 1864; Alta, Oct. 11, 1862; San Andreas Register, July 30, 1864; Herald, Nov. 28, 1861. 28 Herald, Nov. 28, 1861; Bulletin, Nov. 27, 30, 1861. 29 Records of the Rebellion, ser. 1, Vol. L, part 2, p. 948; Alta, July 26, 27, 1864. The Sacramento Union, July 27, 1864, gives extracts from his speech.198 University of California Publications in History [Vou. 16 out trial. Weller was released after taking the oath of allegiance to the federal government and giving a bond for $25,000.°° A number of persons were imprisoned at Fort Aleatraz for alleged rejoicing over the assassination of President Lincoln.** At their state convention the Democrats protested against the military arrests.°? War hysteria.—One of the most spectacular manifestations of disloyalty in California was the Chapman ease. Several ultra southerners in San Francisco purchased the swift schooner ‘‘Chapman,’’ equipped her with cannons, ammunition, and twenty fighting men, and were planning to sail for Manzanillo where they were to exhibit their letters of marque and com- mission from the Confederate navy and then lie in wait for the Pacific mail vessel, capture her and equip her for privateer purposes. But the military authorities in San Francisco were on the lookout for such schemes, and on March 15, early in the morning as the vessel was getting under way, she was seized and towed to Aleatraz Island. Upon search it was found that the several cases invoiced as merchandise contained cannons, revolvers, muskets, powder, and shrapnel.** The leaders of the 30 Alta, Aug. 3, 1864; Records of the Rebellion, ser. 1, Vol. L, part 2, p. 948. 9° 31 The news of the assassination of the President produced consider- able excitement in California. In San Francisco all the main business houses closed their doors immediately; the flags were at half-mast, and the bells of the city hall and various churches tolled mournfully. About three P.M. a mob wrecked the offices of some ‘‘secesh’’ papers: the Democratic Press, the News Letter, the Monitor, the Occidental, and the French paper L’Union Américaine. The French Echo du Pacifique was also threatened by the mob, but was saved by the editor of the Alta, whose office was located in the same building (Records of the Rebellion, ser. 1, Vol. L, part 2, p. 1198; Alta, April 16, 1865; Bulletin, April 16, 1865). It was reported that at Colusa a number of ‘‘seceshes’’ celebrated the assassi- nation of Lincoln by cheers and the firing of guns (Records of the Rebel- lion, ser. 1, Vol. L, part 2, pp. 1012-20; Mariposa Gazette, May 20, 1865; San Andreas Register, April 29, 1865). 32 Davis, Political Conventions in California, 212. 83 Records of the Rebellion, ser. 1, Vol. L, part 2, pp. 363-64. A full account of the affair is found in Alta, March 16, 17, 1863. The Alta of March 17 published some of the papers found on the ‘‘Chapman.’’ One of these was a solemn oath of secrecy; another paper was an oath of fellow-1927] Ellison: California and the Nation 199 plot were tried before the United States Cireuit Court in San Francisco and were each sentenced to ten years’ imprisonment and a fine of $10,000.** The news of the Chapman affair produced considerable excite- ment in San Francisco. People began to think of the exposed state of the harbor. A proposition to raise $600,000 to put the harbor in a state of defense was considered at a meeting of the board of supervisors. The legislature, also, was considering means of defense for the state.**° Rumors were spread that other privateering vessels were being fitted out to prey upon California commerce and mail steamers. An hysterical atmosphere prevailed throughout the state. Anyone who dared to express the least dis- approval of the policy of the administration was denounced by the ultra loyalists as a ‘‘secesh.’’ All kinds of rumors were cir- culated and believed. It was reported that in some localities bear flags had been raised; that at a ball some women had appeared in dresses representing the flag of the Confederacy ; that in some places ‘‘secessionists had sung ‘Dixie’ to the obnoxious words,’’? and had cheered for Jefferson Davis and South Carolina, and denounced the ‘‘absolute”’ gsovernment of the United States; that upon the arrival of news of the defeats of the Union army they congratulated each other; that the seces- sionists held nightly meetings with the expectation of uniting their forces with those of the Confederates ; that conflicts between secessionists and loyalists had taken place at different places in the state.*° ship, swearing allegiance to the Confederacy. The third paper was a rough sketch of a conspiracy plot. The plan as outlined in the draft was to raise a thousand men, and take possession of Benicia and the two forts commanding the harbor of San Francisco. The capture of these strategic places, it was thought, would bring about the withdrawal of California from the Union. 34 For the reports of the proceedings of the trial see Alta, Sept., 1863. Harpending’s account of the trial is found in his book, Great Diamond Hoax, 83-88. 35 Bulletin, March 16, 17, 19, 1863. 36 Alta, May 24, July 4, Aug. 9, 10, 15, 21, 25, 29, 30, 31, Dec. 20, Oct. 5, 1861; Journal, Aug. 23, 1861.200 University of California Publications in History (Vou. 16 Secret disloyal organizations Rumors were widely current of the existence of secret organizations for revolutionary pur- poses. The Alta called upon all loyal citizens to arm themselves for the conflict. ‘‘We have in this State,’’ it asserted, ‘‘a larger number of persons who sympathize with the enemies of the Gov- ernment than in any other free State in the whole Union. They are active, energetic, and wily. They are at work night and day.’’** Commenting on the El Monte incident,** the San Bernardino Patriot said: ‘‘Fellow citizens we must arouse our- selves; a secret organization, we learn, exists here in Southern California, whose object it is to raise the secession flag among us... . Let every man who owns a good horse keep him ready at hand at a moment’s warning.’’*® There were many who considered it their duty as loyal citizens to warn the federal authorities against danger from secessionists in California. From Los Angeles they wrote to General Sumner that secret organizations were poisoning the minds of the natives against the United States government. From Santa Barbara reports came of nightly meetings of seces- sionists “‘having for their object the seizure of publie property here and in Utah and to raise the standard of rebellion in Cali- fornia.’’ United States Attorney Dimmick wrote to General Sumner that the secessionists in the south were getting more noisy and that every county officer was with them. From Napa they wrote that the secessionists were getting dangerous. Indeed ‘ Captain Davidson complained that his ears were ‘‘stuffed with all sorts of rumors and reports.’’*° 37 Alta, Aug. 25, 1861; see also Sept. 22, 1861. Bulletin, Aug. 26, 28, 30, 31, Sept. 2, 1861. 88 At the town of El Monte, about fourteen miles from Los Angeles, an armed and mounted band of about sixty men paraded through the streets bearing a ‘‘deep red flag with a black bear painted on it’’ (Alta, June 6, 22, 1861; Sacramento Union, June 24, 1861; Records of the Rebel- lion, ser. 1, Vol. L, part 2, pp. 479-80). 39 Quoted by the Alta, June 6, 1861. 40 Records of the Rebellion, ser. 1, Vol. L, part 1, pp. 563-66, 622; part 2, pp. 707, 924-25.1927 | Ellison: California and the Nation 201 In a petition to the War Department, dated August 28, 1861, a number of San Francisco merchants remonstrated against withdrawing the able-bodied men from California for service elsewhere, pointing out that California was in need of all its able-bodied men to fight against the secessionists at home. The petition stated that the majority of the state officers were undis- euised secessionists; that three-eighths of the citizens of Calli- fornia were natives of the southern states, and ‘‘almost a unit in this erisis,’’ all hating the Union and all well organized. It was stated that there were 16,000 Knights of the Golden Circle in California.** Upon his arrival in 1861 General Sumner was eonvineed that there was some ‘‘deep scheming to draw California into the seces- sion movement: in the first place as the ‘Republic of the Pacific’ expecting afterward to induce her to join the Southern Con- federacy.’’*? Likewise Colonel Evans at Visalia was convinced that there was a large number of secessionists in the southern counties who were well organized and armed, “‘ready at a moment’s warning to take up their arms against the Government of the United States.’? He wrote that it was an everyday occurrence for them to ride through the streets and ‘‘hur rah for Jeff. Davis, and Stonewall Jackson; and often give groans for the Stars and Stripes’’; that they were calling the soldiers ‘‘TLineoln’s hirelings,’’ who wear ‘‘ Abe Lincoln’s liverynn- 2 number of fist fights between soldiers and secessionists occurred. General Wright, Sumner’s successor, was less of an alarmist. He wrote to Washington that the rumors of secession organizations within California had upon investigation been found to be ‘‘highly exaggerated.’’ He was confident that a sufficient mili- 41 Tbid., part 1, pp. 589-91. 42 Records of the Rebellion, ser. 1, Vol. L, part 1, pp. 471-72. Sumner was ordered to California to relieve General Johnston, on March 22, 1861. He arrived in California on April 24, 1861, and assumed command on the following day. 48 Records of the Rebellion, ser. 1, Vol. L, part. 2, pp. 236-37.| } { ’ | I i 202 Unwersity of California Publications in History (Vou. 16 tary force would avert all danger of disturbances from the secret organizations. He requested Governor Stanford to eall out the militia of Napa and Solano counties to quell any disturbances that might occur at Napa.** Undoubtedly the extent and strength of these secret societies had been considerably exaggerated, as was to be expected of an overheated war-mind at a time when even the most judicious people become credulous and ready to make a mountain out of a molehill. However, documents and indirect evidence seem to substantiate the belief of the existence of such organizations. From time to time the papers published so-called exposés of the purposes, oaths, signs, and signals of the Knights of the Golden Circle. Government Detective Gustay Brown reported that in the counties of San Luis Obispo and Los Angeles the Knights of the Golden Circle were divided into three grades, each with signs, grips, and passwords. Also that the members were armed and intended to commence a guerilla warfare in case of a draft in California.*® Provost Marshal Robert Robinson reported that the Knights of the Columbian Star numbered about twenty-four thousand, and that, together with the Knights of the Golden Circle and the men they could control, they numbered around fifty thousand. According to his report the obligation of the members was to ‘resist the enforcement of any and all unconstitutional laws by the administration.’’ Each member was obliged to equip him- self with a rifle, a revolver, bowie knife, and powder. C. L. Weller and ex-Governor Bigler were officers of the organization.*® Attitude of the military authorities—The military authori- ties adopted vigorous precautionary measures. General Sumner ordered additional military forces for Los Angeles, Alcatraz 44 Records of the Rebellion, ser. 1, Vol. L, part 2, pp. 210, 211; part 1, pp. 797, 1091. 45 Records of the Rebellion, ser. 1, Vol. L, part 2, pp. 1018-19; also pp. 1037-38. 46 Records of the Rebellion, ser. 1, Vol. L, part 2, pp. 938-41. How far these reports are reliable is difficult to ascertain.1927 | Ellison: California and the Nation 203 Island, Benicia, and the presidio. He gave orders to his officers to ‘‘repress with a strong hand any organization which aimed. to resist or impede the measures of the Government.’’*’ His successor, General Wright, was more moderate. He believed in taking strict measures to suppress any disturbances but he did not believe in being unduly harsh. For instance, upon the arrival of the news of the assassination of President Lincoln, he ordered the officers to be prepared for any emerg- ency; but when he was informed that a number of men had been arrested by individual members of the provost guard with- out any authority whatever, simply on the general principle that the arrested ones had been pointed out by some irresponsible person as sympathizers with the cause of the south, he strongly disapproved of such conduct.** His lenient attitude was approved by those accused of dis- loyalty and by the majority of the Union men who had not been carried away by the war excitement. But the ultra loyalists accused him of catering to the secessionists. They petitioned the War Department to remove General Wright and they asked General McDowell, who succeeded General Wright, to institute a proper inquiry into the matter.® In his letter to the adjutant general at Washington General Wright claimed that his policy was fully endorsed by the sensible portion of the community .... Were I to be guided by the dictates of the radical press [he said] I should crowd my forts with men charged with disloyalty, keep this country in constant fer- ment .... These radicals seem to believe that it is my special duty to arrest every man or woman whose sentiments do not coincide exactly with the Government.®° 47 The southern element in California ridiculed Sumner’s undue alarm. See Weekly San Joaquin Republican, Sept. 17, 1861. 48 Records of the Rebellion, ser. 1, Vol. L, part 2, p. 1210. 49 McDowell assumed command July 1, 1864. Wright was later trans- ferred to the command of the department of Columbia. On the way to assume his command he was drowned in the wreck of the ‘‘ Brother Jonathan,’’ July 30, 1865. 50 Records of the Rebellion, ser. 1, Vol. L, part 2, pp. 846-47.204 University of California Publications in History [Vou. 16 Attitude of the state authorities—The military authorities were well supported by the strong loyal element. Also the state authorities and the more influential part of the press approved of the war policy of the administration. Even Governor Downey, who as late as 1862 advocated that the United States should adopt a mere defensive policy, held that since the war was already an accomplished fact, all the states in the Union were equally committed to this policy.** He faithfully carried out all the provisions of the federal government. Governors Stanford and Low were unquestionably loyal. Each legislature passed a resolution indorsing the policy of the administration and pledg- ing the support of California.*? California’s contribution in men.—But California’s contribu- tion to the war was not confined to suppression of disloyalty within her own borders. She also contributed men and money to the army of the Union. The draft law was not extended to Cali- fornia,®* yet, out of a population of about 400,000 souls Cali- fornia contributed, during the war period, over sixteen thousand men. The first requisition for troops made by Secretary of War Cameron upon the Governor of California was dated July 24, 1861. It called for a regiment of infantry and five companies 51 California, Sen. Jour., 1862, 49-54. 52 California, Statutes, 1862, 603; 1863-1864, 546-48. There were of course a number of members of the legislature who secretly and even openly sympathized with the south. 53 In reply to a resolution of the House of February 20, 1865, inquir- ing the reasons for the non-enforcement of the draft law in California, Secretary of War Stanton stated that it was thought to be inexpedient to withdraw the able-bodied men from the Pacifie Coast, thus leaving the coast unprotected and exposed to attack (Records of the Rebellion, ser. 3, Vol. IV, 1201). Undoubtedly the distance of the state from the scenes of the war, and the heavy cost of transportation, were also impor- tant factors. Jno. Mason, acting assistant provost marshal general of California and Nevada, advised the Washington authorities not to extend the draft to California and Nevada, claiming that due to the nature of the population and settlement of the country it would be difficult to enforce such a law; it would require a large foree to bring in all the deserters (ibid., ser. 1, Vol. L, part 2, pp. 966-67).1927 | Ellison: California and the Nation 205 of cavalry to guard the overland mail routes.” Enlistment went on rapidly and by September the organization was completed. When the government at Washington was informed that the Confederate government was planning to despatch an army to seize New Mexico, Arizona, and probably penetrate California, it called upon Governor Downey to equip and organize at the earliest date possible four regiments of infantry and one regi- ment of cavalry to be placed at the disposal of General Sumner.”° The loyal press, displeased with the slowness of enlistment, warned the young men of California that if they would not enlist the United States government would have to resort to drafting. But the policy of sending her volunteers to western Texas did not seem to find favor in California. A group of San Francisco business men protested to the Secretary of War against draining California of her fighting men when they were needed at home. Also General Sumner pointed out to the War Department that California was threatened by an active secessionist element.”® The plan for the expedition was abandoned, but the troops called for were organized and ‘‘held ready for service on the Pacific Coast and elsewhere.”’ When a Confederate force of several thousand men under the command of General Sibley arrived in New Mexico about the middle of December, 1861, and captured Albuquerque and Santa Fé, the government revived the former plan. The ‘*California Column”’ consisting of five companies of the first California cavalry, ten companies of the first California infantry, and a light battery of four brass fieldpieces together with the fifth California infantry, was despatched in April, 1862, under the command of Brigadier General of Volunteers Carleton. Hearing 54 Records of the Rebellion, ser. 1, Vol. Li, part 1, 543; Orton, Record of California Men in the War of the Rebellion, 12. The requisition was made by telegram from Washington to the farthest point west, and thence by pony express to California. 55 Orton, Record of California Men in the War of the Rebellion, 12. 56 Orton, Record of California Men in the War of the Rebellion, 23-24, 27-28206 University of California Publications in History [Vou. 16 of the approach of the ‘‘California Column,’’ General Sibley, who had already lost most of his supplies, evacuated New Mexico and retired beyond the Rio Grande. All the forts and towns in Arizona and New Mexico were reoccupied by the Union forces. The ‘California Column’’ also performed valuable services in quelling Indian disturbances on the frontier and in protecting the mail routes.** A number of young Californians who were anxious to par- ticipate in the actual conflict on the eastern battlefields offered their services to the state of Massachusetts in return for the financing of the cost of organization and transportation. The proposition was accepted by Massachusetts and the company raised was known as the ‘‘California Hundred’’ or ‘‘A’’ ecom- pany of the second Massachusetts cavalry regiment. Shortly after, a battalion of four companies was raised for Massachusetts under the same conditions as the first company. This became known as the ‘‘California Battalion.’’** The California ‘‘Hun- dred’’ and ‘‘Battalion’’ participated in over fifty engagements. On May 23, 1865, they attracted considerable attention in the grand review in Washington. Out of 400 officers and men mustered into the ‘‘Battalion’’ in California only 148 remained to be mustered out in the final discharge.*® Califorma’s contribution to the sanitary fund.—California also contributed $1,233,831.31 to the sanitary commission. The first movement in this direction began in 1862, in San Francisco, when it was decided to start a subscription fund for the relief of the wounded soldiers. A committee of thirteen, known as the committee of the soldiers’ fund, was organized for canvassing the city. On September 19, 1862, the committee remitted a draft .for $100,000 by telegraph to Dr. Bellows, president of the United States sanitary commission. A second draft for $100,000 was 57 Orton, Record of California Men in the War of the Rebellion, 47, 64-67. 58 Ibid., 848-53. 59 Tbid.1927 | Ellison: California and the Nation 207 remitted on the first of October. The committee then distributed a circular throughout California, Oregon, Washington, and Nevada appealing for contributions. In 1864 President Bellows arrived, made several addresses, and was instrumental in organiz- ing the California branch of the United States sanitary com- mission with Governor Low as president. The devices used for raising money were manifold. Aside from regular monthly subscriptions, collections were made at public amusement places, at churches, schools, fairs, picnics, publie elections, from sales at auction, and by various gifts. The first California draft came at a critical period in the life of the sanitary commission when its treasury was almost depleted. It ‘“was the making and saving of the United States Sanitary Commission”’ says Stillé. California’s contribution excited emu- lation on the part of other states. But in no part of the United States was the work of collecting money for the fund so sys- tematically organized as in California.®° Summary.—The great majority of the people of California were loyal to the Union and might be relied on under all cir- cumstances to keep order and sustain the federal government. Rhodes’s statement that on the eve of the Civil War California ‘‘was in danger of joining the South,’’** was unwarranted by the facts. There was at the beginning of the war, however, a strong sentiment in favor of an independent Pacific republic, but by the end of 1861 this movement was practically extin- guished. The status of California was then definitely fixed. However, the strong southern element in California, particularly in the southern counties, was formidable enough to threaten the peace of the community. 60 Stillé, History of the United States Sanitary Commission, 233. 61 Rhodes, History of the United States, V, 250.CHAPTER XI ATTITUDE OF CALIFORNIA TO THE LEGAL TENDER NOTES DURING THE CIVIL WAR Issue of the legal tender notes—The State of California was loyal to the Union during the Civil War, yet in one respect her loyalty might be thought questionable; namely, her attitude toward the legal tender notes. When the Civil. War broke out the United States Treasury was empty and money could be borrowed only at very high rates of interest. The government resorted to the issuing of notes, declaring them to be receivable in payment of all taxes, internal duties, excises, debts and demands of every kind due to the United States, except duties on imports, and of all claims and demands against the United States, of every kind whatsoever, except for interest upon bonds and notes, which shall be paid in coin, and shall also be lawful money and legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest as aforesaid.1 The purpose of making the notes legal tender was to insure their negotiability. At first there was considerable opposition to this radical measure. Its constitutionality and expediency was ques- tioned but the plea of ‘‘absolute necessity’’ silenced opposition. Soon the people of the United States became reconciled to the measure and the notes even became popular, especially among the debtor and speculative classes. They were undoubtedly more desirable than the ‘‘wild ecat’’ issues. 1 United States, Statutes at Large, XII, 345.1927 | Ellison: California and the Nation 209 Reception of the notes in California—tIn California, how- ever, the notes received a less friendly welcome. Opinion differed as to the constitutionality and expediency of their issue. Some argued that all previous attempts to issue paper money to sup- plant gold and silver terminated in “‘disgraceful failure.’’ They prophesied that within a short time the notes would be depre- ciated and be worth little more than the value of the blank paper. Others questioned the expediency of making the notes legal tender, holding that in either case the same amount of notes would purchase the same amount of goods; the only difference would be that, with notes nominally at par, goods would be sold at a higher price.2. The loyal press, on the whole, approved of the act and denounced the opponents of the notes as traitors and secessionists. When the depreciated notes began to appear in increasing quantities the business people of the state became uneasy. The attitude of California toward the new paper currency became a disputed matter. Unlike the eastern states, where paper money was a medium of exchange even before the war, in California specie was the only recognized currency. Moreover, the consti- tution of the state prohibited the creation and circulation of paper money. It provided that: The Legislature shall have no power to pass any act granting any charter for banking purposes; but associations may be formed, under gen- eral laws, for the deposit of gold and silver, but no such association shall make, issue, or put in circulation any bill, check, ticket, certificate, promis- sory note, or other paper, or the paper of any bank, to circulate as money. The Legislature of this State shall prohibit, by law, any person or persons, association, company, or corporation, from exercising the privileges of banking, or creating paper to circulate as money. As a result of these prohibitions, and the fact that gold was the main staple commodity of the state, Californians had become 2 Quoted in the Sacramento Union, July 25, 1862; Bulletin, Oct. 8, 1862. 3 California Constitution of 1849; Browne, Debates, App., p. VI. These strict measures against paper money were due to the experiences with paper money during the panic of 1837 (Goodwin, Establishment of State Government in California, 175, 177-78).210 University of Califorma Publications in History [Vou. 16 accustomed to a metallic currency and attributed to this stable medium of exchange their prosperity at a time when eastern states suffered from depression. Hence the business community looked with suspicion upon the attempt to introduce an unstable fluctuating paper currency, fearing it would work unfavorably in their commercial transactions at home and abroad. The ques- tion arose whether the notes should be received at par, or at their actual value with gold as a standard. It was pointed out that all contracts in California were entered into on a specie basis and it would be impossible to have two separate currencies, varying in their value, and make them both legal tender. It was prophesied that banks would not receive the notes at par on deposit ; that merchants would raise their prices high enough to cover the discount on the notes and the result would be specula- tion and a financial panic. To avoid these evil results the pro- ponents of the metallic currency advocated treating ‘‘the treasury notes’’ in California ‘‘as merchandise.’”* On the other hand, there were many in California who denied that the prosperity of the state was due to the gold currency. They argued that the acceptance of the notes as the currency of the state would enhance the value of real estate and would reduce the rates of interest by increasing the quantity of money in cir- culation. It was also pointed out that the notes were the only financial means with which the government could suppress the rebellion, hence those who refused to accept the notes at par struck a blow at the credit of the government and were no better than traitors.® Legal tender notes and state taxes—The question soon arose whether legal tender notes were receivable at par for state, eounty, and city taxes. The state revenue act provided that ‘‘taxes must be paid in legal coin of the United States. A tax Tee July 30, 31, 1863; Bulletin, Jan. 25, June 19, July 25, 26, 28, 5 Sacramento Union, April 4, 1862; Bulletin, July 23, Aug, 2, Sept. 22, Oct. 2, 1862; Alta, Aug. 6, 1862.1927] Ellison: California and the Nation 211 levied for a special purpose may be paid in such funds as may be directed.’’ Many contended that it was the duty of California to receive the notes for taxes because it would be disloyal to refuse to do so upon the mere technicality that the state revenue law provided for the collection of taxes in coin. On the other hand, it was pointed out that the state assessments were made on a specie basis of valuation, hence if the taxes were paid in a currency worth from ten to twenty per cent less than specie, the state revenue would be curtailed considerably.‘ The question soon reached the state courts. On July 28, 1862, a suit was brought in the twelfth district court by the taxpayer Perry against state collector Washburn to compel the latter to accept United States legal tender notes in payment of the tax due at his office. The court was asked to issue a mandamus directing the collector to receive the notes in payment of the tax and to issue a valid receipt for the taxes. The tax collector’s reply was that the state law provided that taxes be collected in coin. The court decided the case in favor of the defendant. The plaintiff then appealed ‘to the state supreme court. The opinion of the court delivered by Chief Justice Field was that the act of Congress of February 25, 1862, had no reference to state taxes. The act of Congress, the court held, provided that the notes should be a legal tender in payment of all taxes, internal duties, and debts to the United States, but when it: . refers to obligations other than those to the United States, it only uses the term ‘‘debts’’; the notes it declares shall be ‘‘a legal tender in payment of all debts, public and private.’’ Taxes are not debts within the meaning of this provision. A debt is a sum of money due by contract, express or implied. A tax is a charge upon persons or property to raise money for public purposes. It is not founded upon contract; it does not establish the relation of debtor and ereditor between the tax payer and State.8 6 California, Political Code, II, 52, section 3888. 7 Alta, July 31, 1862; Bulletin, July 23, 1862. 8 Perry vy. Washburn, 20 California, 350. An act of March 12, 1880, declared Legal Tender Notes to be receivable at par in payment of all taxes due to the state, county, or municipality .(California, Statutes, 1880, p. 8).212 University of California Publications in History [VoL. 16 The highest court of the state thus ruled that the state was under no obligation to receive the government notes in payment of state taxes. The state treasurer and the federal direct tax.—A contro- versy also arose in connection with the payment of the federal direct tax. In 1861 Congress passed an act levying a direct tax of $20,000,000 to be apportioned among the states of the Union according to their population. The act provided for the assess- ment, levying, and collecting of the taxes by the agents of the federal government, But any state which assumed the responsi- bility was to be allowed fifteen per cent discount on all amounts paid into the treasury prior to July 1, 1862, and a discount of ten per cent on the portion paid prior to October 1, 1862.° California agreed to assume the responsibility of assessing and collecting her quota of the tax which amounted to $254,538.11%4. Out of $70,932.56 collected by September 1, 1862, only $1,570 were in legal tender notes. But the state treasurer converted the gold coin into notes which he had purchased from a broker- age firm at 9244 cents on the dollar, and on September 28 he tendered $63,839.36 in notes to the United States Assistant Treasurer Cheesman, as a portion of the state’s direct tax quota.’ Cheesman telegraphed to Secretary Chase asking whether he should consent to accept notes from a state whose constitution, law, and custom recognized only a metallic cur- renecy. Secretary Chase’s reply was to accept the notes. The state saved by this process of brokerage some $4,486.39."* 9 United States, Statutes at Large, XII, 296. 10 Annual Report of the State Treasurer for the year 1862. California, Sen. and Assembly Jours., 1862, App., Doc. 2, pp. 23-24. 11 Annual Report of the state treasurer for the year 1862. California Sen. and Assembly Jours., 1862, App., Doe. 2, pp. 23-24; Bulletin, Oct. 2, 1862. Since the payment was made on October 8, 1862, Cheesman refused to recognize the claim of California to the ten per cent discount, in spite of the claim of Ashley that the payment was made on September 28, 1862, and that it was no fault of the state of California that Cheesman refused to accept the money. But the U. S. authorities refused to recognize the claim of California, and the amount of $709,326 remained upon the books of the Treasury as a debt against the state of California.1927 | Ellison: California and the Nation 213 The action of the state treasurer was severely criticized in California as a petty speculation. Governor Stanford demanded that the treasurer explain by what authority gold placed in the federal direct tax fund had been converted into depreciated paper currency and the currency then tendered to the United States Treasurer.!2. But Ashley proceeded to exchange the gold coin remaining in the direct tax for legal tender notes, and tendered to Cheesman in greenbacks $183,060.10, the balance due to the government on account of the direct tax.’* In a letter to Governor Stanford, Cheesman protested against the action of the state treasurer, claiming that the people had paid the taxes in coin, and the state treasurer who was merely the custodian of it was unauthorized to exchange the gold for the paper.’* The loyal press condemned the conduct of the state treasurer. The legislature was called upon to take action." A special committee in the assembly condemned Ashley’s conduct as ‘“wholly unau- thorized by law.’’*® Ashley contended that the law of Congress intended the collection of the tax in government notes. All the other states had paid the tax in notes and if California were to pay in gold she would have contributed more than her quota by so much as gold exceeded the value of the notes in California. The money 12 California, Sen. Jour., 1863, 51-52. 18 Correspondence in relation to the payment of California’s quota of the direct tax (California, Sen. and Assembly Jours., 1863, App., Doc. Ds Dao) 14 [bid., 5-7. 15 Sacramento Union, Jan. 12, 13, 14, 20, 1863; Bulletin, Jan. 3, 9, 1863. Also the Sierra Democrat, Red Bluff Beacon, Shasta Courier, La Porte Messenger, and Nevada Journal condemned Ashley’s conduct. Ashley was accused of pocketing the differences between the prices actually paid for the paper notes, and the actual selling price of the greenbacks on that day (Sacramento Umon, Jan. 14, 1863). 16 Reports of the Special Committee of the Assembly (California, Sen. and Assembly Jours., 1863, App., Doc. 16; Sacramento Union, April 16, 1863). The Senate was, however, inclined to pass the matter over. To satisfy the consciences of the loyal men, the money saved by this trans- action was appropriated to the commendable purpose of. aiding the recruiting of officers and men.214 Unwersity of California Publications in History [Vou. 16 saved by this transaction amounting to some $24,260 could be used to pay the creditors of the state, or the legislature could donate this money to the federal government. In that way the federal government would receive the benefit; but not so if the donation were made under the guise of taxation, for then the government would receive the gold in the same nominal value as paper money and would pay it out on the coast to the con- tractors who were already charging the government high prices.** Now the state had a right to pay the direct tax in legal tender notes. But the strong sentiment against this course indi- cated that the majority of the people of California were averse to the use of greenbacks for publie as well as for individual transactions. The board of supervisors of San Francisco voted to pay the interest on the city bonds in gold, although by paying in notes the city would have saved a large sum of money.'8 Opposition to the legal tender notes—The decision of the Perry v. Washburn ease greatly encouraged the proponents of the gold currency. And when the notes continued to depreciate, the mercantile community of California began to cast about for ways and means to maintain a metallic currency. The press was full of editorials and letters discussing the matter. As the matter now stands [complained a San Francisco business man] the laboring class and the producers are the ones who suffer most—they while the capitalist and the broker who are least able to bear the burden are greatly benefitted .... Our employes say they cannot receive them at par, for the reason they cannot use them at their boarding houses, butcher’s and grocer’s. We paid off with them on Saturday, and on Monday, twenty-five out of fifty men refused to go to work, unless we would promise to pay in gold coin. Now, we say something should be done to regulate this matter, and we hope the merchants and business men will call a meeting at an early day, and take such action as their wisdom and patriotism may suggest. For ourselves, we wish to sustain the Government, but would like the burden to fall equally upon all classes.19 17 Annual Report of the State Treasurer for 1862 (California Sen. and Assembly Jours., 1863, App., Doc. 2; pp. 23-29). 18 Sacramento Union, Oct. 30, 1862. 19 Alta, Sept. 17, 1862.1927 | Ellison: California and the Nation 215 To protect themselves against loss, commission men and importers adopted the practice of inserting in every contract a clause providing for payment in gold coin or its equivalent.*° The leading merchants of San Francisco then decided to adopt a circular agreement neither to receive nor to pay out notes at any but market value, taking gold as a standard. It was expected that the merchants of the interior would also sign this agreement. If any one should refuse to pay in gold, his name was to be entered in the black book, and in future dealings he would be compelled to pay for goods in gold in advance of delivery.”* The paper men denounced the policy of the San Francisco merchants as disloyal and treasonable. State Attorney General Pixley and Secretary of the Treasury Ashley held.that the legal tender act was a war measure and that California must either accept the notes or separate from the government. The policy of the California merchants was stabbing the government’s credit and was a new kind of treason. Why should not the notes and bonds of the United States of America pass among its own people at par [wrote Pixley]? Yet the merchants and bankers of San Francisco make merchandise of Government bills, refuse them in trade, reject them at their counters, dishonor them and take them at discount or drive them to the broker. The Chamber of Commerce has repudiated them by formal resolution. Yet the merchant pays his Eastern debts in them, remits gold to buy paper, buys in New York with green- backsii.. <. Yet General Hooker and Col. Matheson, who are fighting our battles, and the five California regiments who are protecting the frontiers of California, or tramping the burning sands of Colorado at $13 per month; and the 9th regiment of Infantry, who garrison our forts; .... officers and men are all paid in Legal Tender notes, which when used to sustain themselves, their wives and families, are receivable at 10 per cent discount. 20 Herald, Oct. 23, 1862. Quoted in Sacramento Union, Oct. 27, 1862. 21 Bulletin, Nov. 10, 1862. 22 Bulletin, Sept. 29, 1862. Commenting upon this article the Bulletin said, ‘‘Mr. Pixley thinks everybody who refuses to aceept Legal Tender Notes is a traitor, except himself and the other state officers who think they are entitled to payment in gold.’’216 University of California Publications in History [Vou. 16 Exemption from the Legal Tender Act.—On February 12, 1863, a resolution was introduced in the assembly asking Con- gress to exempt California from the operation of the legal tender law on the ground that California was a gold-producing country and the state constitution recognized a metallic currency only. The legal tender law was therefore working a hardship on her without any ‘‘adequate benefit or advantage to the government of the United States.’’ The proponents of this measure argued that Congress obtained the right to make paper money legal tender from the right of self-preservation, hence by the same power of necessity it could declare that this necessity existed on the Atlantic but not on the Pacific Coast.?* The opposition ques- tioned the constitutionality of such a measure, for under the Constitution the citizens of each state are entitled to the privi- leges of citizens of the several states. But were California exempted from the operation of the legal tender act, then her citizens would have to pay more government taxes than the citizens of the other states, where paper money was a legal cur- rency. ‘The resolution was rejected.** The Specific Contract Act—The scheme to protect themselves against the depreciated paper currency by means of an agree- ment or exemption having failed, the mercantile community began to look for a new plan. A bill was introduced in the assembly which recognized both specie and notes as lawful money, but it allowed people to enter into a contract in each transaction as to the kind of money in which they would pay their obligations. The court was to enforee such a contract. The champions of the measure argued that under this law a man would simply be held to perform his contract in good faith, whether it provided for payment in specie or in notes. Such an act would restore confidence in business circles as creditors 23 California, Assembly Jour., 1863, 208; the resolutions are printed in the Bulletin, Feb. 13, 1863; Alta, Feb. 15, 1868. 24 California, Assembly Jour., 1863, 226-27.1927 | Ellison: California and the Nation DO Lond ~l would no longer fear the contingency of being paid with depre- ciated paper money.”> The opposition questioned the constitu- tionality and expediency of the measure. Some held that it was an attempt to nullify an act of Congress. The bill, however, passed both houses with comfortable majorities.”° Opposition to the Specific Contract Act.—As time went on the soft currency forces gained strength. In his annual message of 1863. Governor Stanford, who had signed the specific contract bill, contended that the act was questionable from a patriotic as well as from an economic point of view, for by restricting the free circulation of the government’s notes California was help- ing to weaken the effective prosecution of the war against the seceding states. Moreover, the prosperity of California was checked for want of capital, which was waiting at her doors to enter as soon as the state adopted the standard of value of paper money.”' Much was said about the high rates of interest in California: . Why should money be worth two per cent per month in San Francisco and only seven per cent per annum in New York? Speak of this to an Eastern capitalist and the reply is ‘‘Yes, but my money will not pass there,’’ and no consideration of future profits will avail to induce the immediate sacrifice in exchange... . - Importers and moneyed men generally see their present interest in maintaining our exceptional system. Importing goods has been about on a par with successful stock gamb- lino Ose COlrses.a full double profit is seldom made, but it is no less certain that the trader has the principal benefit of the premium on gold, a small share only falling to the consumer.?5 25 California, Assembly Jour., 1863, 249; Sacramento Union, March 18, 1863; Bulletin, Mareh 19, 1863. 26 Sacramento Union, March 18, 1863; Alta, March 19, 1863; California, Assembly Jour., 1863, 380. 27 The proponents of a metallic currency criticized Governor Stanford for his stand against the Specific Contract Act. One of the strong defenders of this act was John Alexander Ferris. His opinions on this question were published in the local contemporary papers. See his Financial Economy of the United States Illustrated .... San Francisco, 1867. 28 Sacramento Union, Dec. 19, 1863; California, Sen. Jowr., 1863-1864, 37-38.218 University of Califorma Publications in History [Vou. 16 A bill to repeal the Specifie Contract Act was introduced in the senate of 1863-64 by Smith, of Butte, a mining district. The author of the bill contended that the Legal Tender Act was the supreme law of the land, and no state had a right to pass statutes discriminating against the government’s notes. ‘‘The capitalists, the snug patriots,’’ he said, ‘‘reject the notes with which the soldiers who fought the battles were paid.’’?? Hartson, who was formerly one of the champions of the Specific Contract Act, was now convinced that the law not only impaired an act of Congress, but also operated for the benefit of bankers only. For the law applied only to contracts made in writing, hence the bankers were protected by it but not the poor man. Outside of San Francisco, he pointed out, debts were liquidated in government notes.*° The question was discussed extensively in the press, in the legislature, and at public meetings. The most influential part of the press was in favor of the Specifie Contract Act. The hard currency men contended that the law created confidence in busi- ness ; it was to the advantage of the California farmers to have a favorable bill of exchange in dealing with England and her colonies, the main markets for the California surplus produce. The repeal of the law would throw business into confusion; there would be a gold price and a greenback price for every article.** Governor Low pointed out the adverse effects on state finances of a change from gold to paper money.®? From the interior came petitions urging the repeal of the Specific Contract Law, while from the mercantile communities of San Francisco, Sacramento, and Marysville were sent remon- 29 Sacramento Union, Jan. 15, 1864; Bulletin, Jan. 15, 16, 1864. 80 Sacramento Union, Jan. 15, 1864. 81 Bulletin, Jan. 28, 29, 30, Feb. 6, 1864; Alta, Jan. 17, Feb. 7, 1864; Sacramento Union, Dec. 16, 24, 1863; Mariposa Gazette, Jan. 23, 1864. 82 California, Sen. and Assembly Jours., 1863-1864, App. II, Doe. 8.1927 | Ellison: California and the Nation 219 strances against the proposed repeal of the law.** On February 4, 1864, the manufacturers, mechanics, and workingmen of San Francisco held a mass meeting protesting against the proposed repeal of the Specific Contract Act. Immediately after the reso- lutions were adopted, United States Assistant Treasurer Chees- man stood up and asked the privilege to speak, but the audience drowned his voice with hisses, groans, and catealls. Outside the hall Cheesman was jeered at and threatened violence by the mob.** In the legislature San Francisco was denounced as a turbu- lent place governed by mobs. Cheesman was offered the use of the assembly chamber in order that he might express his views on the currency question. In his address Cheesman argued that the Legal Tender Law had been approved by the California mem- bers in Congress; that the government was liberal to California in expending millions of dollars for the army on the coast, and allowing free use of the mines. Hence it was not right to dis- criminate against the government notes. He said it might event- ually result in rebellion.*® The advocates of paper currency telegraphed to Secretary Chase asking his opinion about the California Specifie Contract Act. The Secretary replied: ‘‘I am clearly of opinion that the California gold law is against National policy, and I shall be much gratified to see California declare herself in favor of the 33 A petition in favor of the repeal of the law came also from the soldiers of the United States army (California, Sen. Jour., 1863-1864, 285). The San Francisco Trades’ Union sent petitions against the repeal of the law (Bulletin, Jan. 30, Feb. 6, 10, 1864). 34 Bulletin, Feb. 5, 1864; Alta, Feb. 5, 1864. One of the cireulars announcing this meeting reads: ‘‘Mechanics and Workingmen to the res- eue! A erisis has arrived!’’ The Sonora American Flag, Feb. 11, 1864, a bitter opponent of the Specific Contract Act, claimed that very few of the mechanics attended the meeting, though the rich contractors com- pelled their employees to attend. The meeting was attended largely by the ‘‘rowdies’’ and disloyalists. 35 Bulletin, Feb. 10, 1864.; | | ; | ; | 220 Unwersity of California Publications in History (Vou. 16 eurrency for the whole people, by its repeal.’’** The paper eur- rency men felt triumphant, but the hard currency men argued that the ‘‘people of California can think for themselves and will not dance whenever Secretary Chase whistles.’’*’ The act was finally defeated by a majority of 24 to 14. ‘‘The announcement of the defeat of the bill,’’ said the Bulletin, affected the people like a ‘‘sweet sleep after a night of delirium.’’ Constitutionality of the act—The failure of the attempt to repeal the Specific Contract Act did not entirely discourage the ‘‘naper’’? men. They were determined to force the question upon public attention again. It was rumored that at the next state convention a resolution would be introduced to denounce the policy of an exclusive gold currency and to urge the governor to call an extra session of the legislature for the purpose of repeal- ing the Specific Contract Act. At the local conventions the cur- reney issue was uppermost.** Again the old arguments in stock were brought up by both sides. The paper men made much of the arguments that the ‘“shylock law’’ was unconstitutional, disloyal, and impracticable ; that the hard times were due to the war between the two cur- rencies and the want of capital to develop resources. The hard money men argued that gold was the standard of value among all the commercial people of the world; that paper money drove specie from the market ; caused a rise in prices; excited specula- tion; created luxurious habits; operated disadvantageously on labor and on the farmer; that the Specific Contract Act was not unconstitutional and did not discriminate against the govern- ment notes; that it merely gave the people the right to choose between the two kinds of currency, and the fact that no con- 86 '{he dispatches are printed in the California, Assembly Jour., 1864, 323; Sen. Jour., 1863-1864, 287; Sacramento Union, Feb. 10, 1864; Mari- posa Gazette, Feb. 13, 1864. 37 Sacramento Union, Feb. 10, 1864; Bulletin, Feb. 10, 1864. 38 Alta, Aug. 1, 1864; Sacramento Union, July 28, 1864.1927 | Ellison: California and the Nation 221 tracts of any importance had been made payable in paper money showed that the people desired to retain the gold currency.” To settle the question of the constitutionality of the Specific Contract Act, people began to call for a decision of the state supreme court on this matter. It was not necessary to wait very long. During the July term of 1864, the supreme court decided two important cases involving the currency question. The first ease was Lick v. Faulkner, which involved the constitutionality of the Legal Tender Law. The court sustained the constitu- tionality of the law as a means to carry on the war.” The second ease, Carpentier v. Atherton, which involved the constitutionality of the Specific Contract Law, was of still greater interest to the people of California. The facts of the case were these: In a con- tract made April 2, 1864, it was promised to pay $500, in United States gold coin. When the debt became due, the debtor tend- ered to his creditor $500 in government notes. The court ordered and adjudged that the defendant should pay his debt in gold coin as specified in the contract. The defendant appealed to the state supreme court. The counsel for the appellant argued against the constitutionality of the Specifie Contract Law. He pointed out that the law creating the treasury notes provided that the notes should be a legal tender for all debts not speci- fically exempted in the act. But the state law provided for pay- ment in a specific kind of money even for debts not excepted under the act of Congress. The effect of the state law was there- for to defeat the object of the law of Congress, hence it was invalid. Counsel for the defendant argued that the power of Congress to issue legal tender notes was not disputed, but there was nothing in the Legal Tender Act to indicate that it was the intention of Congress to substitute a paper for a gold currency. It simply recognized two kinds of lawful money, fayoring gold. 39 Annual Report of the President of the San Francisco Chamber of Commerce, May 10, 1864; Alta, Aug. 2, 3, 4, 12, 1864; Monitor Gazette, March 4, Dec. 24, 1864. 40 Lick v. Faulkner, 25 California, 404-34.222 Unwwersity of Califorma Publications in History (Vou. 16 The Specific Contract Act merely supplied a ‘‘remedy wanting at the common law, but entirely within the spirit of equity juris- diction, in decreeing specific performance.’’* The court decided that the Specific Contract Act was con- stitutional, and contracts made payable in a specific kind of money could not be performed in any other form. If one agrees generally to pay or deliver to another [the court held] a given number of dollars, he may perform his contract by the payment of the specified sum in any kind of dollars which are recognized as such and made a legal tender for the purpose by the law of the land; for by doing so he fulfils his engagement according to its letter; but if he contracts to pay his debt in a particular kind of money, his obligation cannot be dis- charged in accordance with his stipulation by payment in a different kind of money; and though by the unaided rules of the common law he could not be compelled to perform specifically that which he had promised, yet, in morals, his obligation to do so is in no degree diminished.42 The decision of the court was hailed jubilantly by the hard money men. They now ealled for the court to decide whether the Specifie Contract Law was retroactive, that is, whether it applied to contracts made before the passage of the act. This question, too, the court decided in favor of the hard money men. In Galland et al. v. Lewis et al. and in Ottis v. Haseltine, the decision of the court was that ‘‘a contract for the payment of a ? sum of money in United States coin,’’ entered into before the passage of the Specific Contract Act could only be ‘‘performed’’ by the payment of the kind of money specified.’’ In all the eases where laws confessedly retrospective have been declared void [the court held] it has been upon the ground that such laws were in conflict with some vested right, secured either by some constitutional guar- antee or protected by the principles of universal justice. But when an Act like the one now in question takes a contract as it finds it, and simply enforces a performance of it according to its terms, it is not liable to 41 Carpentier Vv. Atherton, 25 California, 564-67. 42 Carpentier v. Atherton, 25 California, 570. The opinion of the court was delivered by Justice Curry with the concurrence of his colleagues. Chief Justice Sanderson did not express any opinion, but since he was the author of the law, it is naturally to be presumed that he was satisfied with the decision.1927 ] Ellison: California and the Nation 223 objection because it may have a retroactive operation by way of relation to past events.... The Act of 1863, instead of being opposed to the principles of essentia) justice, is approved by them all.4s Persistency of the ‘‘paper men.’’—The Specific Contract Act, and the several court decisions, had virtually assured a gold cur- rency for California. But the phantom of paper money was still hovering over the state. The paper men continued their steady complaint that the slack times and unemployment were due to the crusade against the nation’s currency. As a result of this unfortunate policy, they argued, California was suffering from a financial depression not experienced by the other states. Because of the lack of capital, rates of interest were so high that farms could not be improved, mines could not be worked, and real estate was declining. Were the national currency adopted in California, capital would flow from the old states and men would seek investment, for they would no longer have to suffer a heavy discount on their paper money. Interest rates would then come down thus enabling people to borrow money to develop the natural resources of the state. They complained that the mercantile community of San Francisco was dictating to the entire coast a policy that was of interest only to the wealthy capitalists and merchants, who were making fabulous sums of money by shutting out eastern capital; by purchasing their goods in the east with depreciated greenbacks and selling in California for gold coin, while the business men and consumers of the interior were suffering hardship from this policy. It was pointed out that the business men of the interior were paying the San Francisco merchants with gold coin for goods which they were selling at home for depreciated notes. Hence, what California needed was a circulating medium with which all business throughout the state could be transacted on an equal basis.** 43 Galland et al. v. Lewis et al., 26 California, 46-50; Ottis v. Haseltime, 27 California, 80-84. 44 Monitor Gazette, Aug. 5, 26, Oct. 28, Dec. 9, 1865; San Andreas Register, June 24, July 15, Oct. 28, 1865.224 University of California Publications in History [Vou. 16 The national currency men attempted to introduce the ques- tion into the political campaigns. In the interior several county conventions passed resolutions favoring the repeal of the Specific Contract Act. To fortify their position they addressed a letter to Secretary of the Treasury McCulloch asking his opinion on the currency question in California, hoping that his views might have some influence on the policy of the state. MeCulloch’s reply was much to the satisfaction of the paper men. In his letter dated March 28, 1865, he said: The decision of the Supreme Court of California, that United States notes could not be received for taxes, and the subsequent Act of the Legis- lature of the State, which seemed like an attempted nullification of the National authority making these notes lawful money, have undoubtedly done much mischief to the State, and not a little to the country generally .... The Legal Tender acts were war measures; and California could not place herself, as she has done apparently, in opposition to these war measures, without indirectly assailing the national credit, and casting her influence in no small degree on the side of those who, with bloody hands, were attempting the dismemberment of the Union. ... . In regard to the wisdom of her policy in adhering to an exclusive metallie currency, as far as California herself is concerned, it may seem to be almost indelicate for me to express an opinion. When, by refusing to recognize the authority of Congress in making United States notes lawful money, she places herself in antagonism to the credit of the Government, every supporter of the Government, no matter where he may reside, has the right to criticize and to condemn her action, but her domestic policy, so far as it affects California alone, is a matter in which the citizens of other States have no direct interest. .... California would have been a much richer and more prosperous State if her circulation had been a mixed instead of an exclusively metallic one. . . California needs a well regulated credit system; she needs a paper cir- culation to quicken enterprize and give impetus to business; she needs a lower rate of interest; she needs to be cured of the mania for an exclusive metallic currency.45 45 The letter was published in the Washington Chronicle and in the San Francisco Bulletin of May 6, 1865. The New York Post of April 5 eriti- cized McCulloch’s letter, though it regretted that the ‘‘California tri- bunals should have thought fit to take this course [referring to the decisions of the California Supreme Court on the currency question], for the reason that it occasions one of those unpleasant conflicts of jurisdiction between the State Governments and the Federal which it is important to avoid, and because it is so far an interference with the1927 | Ellison: California and the Nation 225 While MeCulloch’s letter was a feather in the cap of the paper men, the hard money men resented the interference of the Secretary of the Treasury in the affairs of the state. They denied that California was languishing for want of a paper cur- rency ; they denied that the Specifie Contract Law discriminated against the national currency. Not the law but the people dis- eriminated in favor of gold. They denounced the politicians who were clamoring against the Specifie Contract Act, while they were silent about the state law requiring the payment of taxes in coin. If it is disloyal to compel debtors to pay in gold, said the Alta, it is equally disloyal to compel taxpayers to pay in gold. If members of the legislature wish to favor greenbacks, let them receive greenbacks themselves. ‘‘Sauce for the goose must be sauce for the gander.’’*® The San Francisco Chamber of Commerce issued an address to the people of California combating the attempts of the paper men to create jealousy and alienation of feeling among the people of the interior toward the merchants of San Franciseo.*7 On August 4, 1865, a mass meeting of workmen of San Francisco was held to protest against the politicians who were scheming to repeal the Specific Contract Act.” At the Democratic state con- vention of 1865, a resolution was adopted unanimously declaring that the whole history of California is a triumphant vindication of her state policy of a gold and silver circulating medium; and that any change in this respect would be disastrous in the extreme; that unwritten contracts for work, labor, and services should by law, in all cases, be enforced in gold and silver coin.49 The Union state convention adopted no resolution on the cur- rency question, but it defeated by a large majority resolutions for the repeal of the Specifie Contract Law, the establishment of a fixed policy of the Government.’”’ Quoted in San Francisco Bulletin, May 9, 1865. 46 Alta, July 8, Aug. 4, 15, 19, Sept. 22, Oct. 4, 1865. 47 Address of the San Francisco Chamber of Commerce, Sept. 1865. 48 Alta, Aug. 5, 1865. 49 Davis, Political Conventions im California, 225.226 University of California Publications in History [Vow. 16 national banking system in California, and the passage of a law providing for the collection of state revenue in government notes.*° The decision of the Nevada Supreme Court that the Nevada Specific Contract Act was in conflict with the law of Congress and therefore void, created some excitement in the financial circles of Nevada and California. In Virginia City a meeting of bankers was held and a resolution was unanimously adopted declaring that no credit would be extended to persons who paid their debts, created under the Specifie Contract Act, in paper currency. The leading merchants of Virginia City announced that they would continue to transact business on a gold and silver basis, and would blacklist any one who discharged debts with greenbacks.°* Deploring the pernicious effect of the decision, the Sacramento Union pointed out that the merchants of California would be forced to restrict credit in Nevada and conduct business on a cash basis.*° Encouraged by the decision of the Nevada Supreme Court, the California paper men again made an effort to have the Specific Contract Act repealed, and a bill to this effect was intro- duced in the senate. On January 24, 1866, Senator Smith, of Butte, opened the discussion with a long and eloquent speech. He advocated the repeal of the act on the ground of loyalty to the general government and the welfare of the people of Cali- fornia. He asserted that the money-lenders and bankers were arrayed against the people who were commonly opposed to the act.“ But none of the claims bore any weight with the gold 50 Ibid., 222. 51 Milliken v. Sloat, 1-2 Nevada, 481-511. In a decision of two to one the court declared that ‘‘all such laws stand in direct and brazen antag- onism to the policy of the nation.’? The Specific Contract Act of Nevada was passed January 4, 1865. 52 Sacramento Union, Jan. 3, 22, 1866. 58 Sacramento Union, Jan. 3, 22, 1866. A proposition was made to increase the number of judges to overrule the decision. 64 Sacramento Union, Jan. 25, 1866, gives a phonographie report of the debate.1927 | Ellison: California and the Nation 227 currency men. Chace, of San Francisco, held that the legal tender notes were not lawful money, because with the termina- tion of the War of the Rebellion the exigency requiring the issue of such notes had ceased, and without such an exigency Congress had no power to retain such a law. Johnson, of El Dorado, and Pearce, of Sonora, held: that the act of Congress creating the legal tender notes had always been unconstitutional. The bill was defeated, again blasting all hopes of the paper men.” Summary and conclusion—F rom these numerous expressions of public opinion it is seen that the majority of the people of California, at least the most influential part of the population which shaped public policy, was in favor of the gold standard, and steadfastly clung to it in spite of bitter opposition at home and advice from Washington.*® And thus, while in the east gold was quoted at a premium, in California notes were bought 55 Sacramento Union, Feb. 14, 16, 1866. In an article of Feb. 17, 1866, D. O. McCarthy, the editor of the San Francisco American Flag, asserted that seven senators received the sum of $12,800 each for voting against the repeal of the Specific Contract Act and that $24,000 was distributed in the lobby. A special committee was appointed in the senate to investigate the charge of bribery. McCarthy was summoned to the bar of the senate to answer questions concerning the charge he made, but he refused to answer any questions. He was then adjudged guilty of contempt of the senate and was imprisoned. See California, Sen. and Assembly Jours., 1864-1865, App. II, 11. In 1868 a bill was introduced in the assembly to provide for the enforcement of ‘‘verbal or parol contracts’’ in gold currency. The sponsors of the bill pointed out the difficulty of making written contracts in certain transactions, with the result that the small merchants, doctors, lawyers, and farmers were frequently paid in depreciated currency. The proposition was voted down partly in fear lest it might endanger the Specific Contract Act to which the new bill was to be an amendment (Sacramento Union, March 16, 1868). 56 In the eastern states the notes circulated at par, but in California notes were considered as merchandise, with gold as a standard; hence while in the east gold was at a premium, in California the notes were at a discount. But the value of the notes in exchange for gold was greater in California than in the east. For instance, when gold was quoted in New York at 143, at which rate the value of the notes was 6914 cents to the dollar, in California notes were accepted at 74 cents to the dollar (Address of the San Francisco Chamber of Commerce, Sept., 1865; Alta, March 10, 1863). For fluctuations in the price of gold, see the valuable appendixes in Mitchell, History of Greenbacks. The policy adopted in California was followed also in Oregon and Nevada.228 University of California Publications in History [Vou. 16 at a discount. Whether the policy of adhering to a metallie cur- rency, at a time when paper was the national currency, enhanced or retarded the economic development of California is a question open for discussion. It is certain that the prosperity of Cali- fornia during this period was due to a number of causes quite apart from the currency: policy. Primarily it was the result of war conditions.*’ There is much to be said in favor of the arguments on both sides of the controversy. Without the Specific Contract Act it would have been difficult for California to retain her gold cur- rency. And this sound currency undoubtedly helped greatly to stabilize her economic life; for a currency that fluctuates in value is always destructive to commerce, especially in countries remote from the centers where the current value of money is determined. This was the ease in California, since the fluctua- tions of the notes depended upon circumstances in the remote eastern markets, far from the sphere of California’s observation. The paper men were in error when they contended that the gold currency was responsible for the high rates of interest. Rates of interest are always high when the demand for capital is greater than the supply. In new communities where real estate is rapidly rising in value and the demand for capital to develop the national resources is greater than the surplus capital at hand, rates of interest are generally high. As to the argument of the soft currency men—that the Calli- fornia monetary policy was detrimental to the interests of labor—it is a well established fact that the greatest sufferers from a depreciating currency are the men whose income is derived from salaries or wages. For with the continual deprecia- 57 The Civil War brought to California a large influx of people many of whom settled there. In the east the war encouraged the establishment of manufacturing industries, and stimulated a considerable import and export trade with Europe and other parts of the world. Some of her export commodities were grain, wool, quicksilver, ores of copper, silver, and gold, and turpentine. The exporting trade for 1864 was estimated at about $10,000,000 in value, exclusive of treasury shipments (Bulletin, April 29, 1865).1927 | Ellison: California and the Nation 229 tion of the currency, prices rise more rapidly than wages and the rise of wages is very seldom commensurate with the rise of the cost of living. Hence it was very much to the interest of the wage-workers in California to retain the gold currency. The trouble, however, was that there were two legal currencies of unequal value. In the absence of a specific contract a debtor could liquidate his obligation by the tender of depreciated treasury notes as well as specie. The big business men were of course well protected by the Specific Contract Act. Even in the absence of such a contract the interior merchant was obliged to pay in gold in order to keep his credit good. 3ut the small busi- ness men and the wage-workers disposed of their goods and services usually without a written contract as to the specific kind of money to be paid, with the result that they were frequently forced to accept depreciated legal tender notes at par in full payment. Undoubtedly the ones who benefited most from this currency policy were the bankers and big merchants, who pocketed hand- some profits by buying their goods in the eastern markets with cheap paper money and selling them at home for gold coin. We must not, however, think that the merchants were the only ones who benefited from the difference in value of the two currencies. Comparing the current retail prices in the eastern markets with the San Francisco prices, we see that the consumer also was greatly benefited by this policy.” The next question to be considered is: did the California monetary policy conflict with the national currency policy? _ In the case of Lane v. Oregon, decided in 1868, the Supreme Court of the United States held that greenbacks were not legal tender 58 For instance, at the beginning of 1864, butter was sold in New York at 34% cents a pound in paper. Adding to this the charges of insurance, freight, drayage, ete., the total cost of butter amounted in greenbacks to 46% cents a pound. The same quality and quantity of butter was sold in California in gold at 31 cents a pound. See Bulletin, Feb. 6, 1864.230 University of California Publications in History [V0u. 16 for state taxes.°® In Bronson v. Rodes, decided by the United States Supreme Court during the same term, the court held that the notes were not legal tender in settlement of a contract speci- fically calling for payment of gold or silver ecoin.®® According to these decisions the several acts of California involving the eur- reney question were constitutional. At the same time it seems plain that the policy of California nullified, to a certain extent, a federal law. To be sure the circulation of the federal notes throughout the state was not actually prohibited. Their use, however, was practically banned by the state laws and public opinion, to the displeasure of the national government. As far as California was concerned, the law giving legal tender quality to treasury notes was of little effect. 597 Wallace, 71-81. The facts of the case were these: The legislature of Oregon passed a statute, some time after the issue of the Legal Tender Notes, that the state taxes should be paid in gold and silver coin. In 1864, the treasurer of Lane County tendered to the state treasurer the sum of $5,460.96 as state revenue for Lane County, in United States greenbacks. The state treasurer refused to accept the money. The court decided that the plaintiff was to recover from the defendant the sum claimed in specie. The state supreme court affirmed the judgment The case was brought to the United States Supreme Court. The decision of the court was as follows: ‘“To the existence of the States, themselves necessary to the existence of the United States, the power of taxation is indispensable... . There is nothing in the Constitution which contemplates or authorizes any direct abridgment of this power, by national legislation. ... If, there- fore, the condition of any State, in the judgment of its legislature, requires the collection of taxes in kind, ... . or in gold and silver coin, it is not easy to see upon what principle the national legislature can interfere with the exercise, to that end, of this power, original in the States, and never as yet surrendered.’’ The conclusion, therefore, was that Congress did not intend, by the general terms of the currency acts, to restrain the states from collecting taxes in coin; and that the action of Congress in making the notes legal tender for debts, ‘‘has no reference to taxes imposed by State authority, but relates only to debts in the ordinary sense of the word, arising out of simple contracts or contracts by specialty, which include judgments and recognizances.’’ 607 Wallace, 254. The court said: ‘‘Express contracts to pay coined dollars can only be satisfied by the payment of coined dollars. They are not ‘debts’ which may be satisfied by the tender of United States notes.’’ See also Deuting v. Sears, 11 Wallace, 879; Trebilcock v. Wilson, 12 Wallace, 687-700; Hepburn v. Griswold, 8 Wallace, 603-39; Legal Tender Cases, 12 Wallace, 457-681.1927 | Ellison: California and the Nation 231 RETROSPECT [ have presented in this paper a study of the federal relations of California during her frontier era. In many respects Cali- fornia was a typical frontier community ; for the problem of the American frontier was essentially one of civilization and Ameri- canization ; establishment of government ; removal of obstructing agencies; concerting policies for the disposition and appropria- tion of natural resources; constructing adequate means ot communication and transportation to connect the new com- munities with the centers of trade, industry, and population. It is a program that necessarily involves the paternalistic national eovernment. Hence in studying the federal relations of Cali- fornia during the period chosen, we incidentally study in general of the far west as well as of the trans-Alleghany and trans-Mississipp1 outline the federal relations of the American frontier frontiers. We find in California the characteristic needs and demands of the American frontier; we find the frontier attitude toward the federal government, the tendency to look upon the national government as a paternal institution whose duty it 1s to assist liberally in the development of the new country, and the tendency to emphasize strongly the rights of the people. In a word, we find the typical self-confident, self-assertive, ‘“dis- satisfied frontier.’’ In many other respects, however, California was unique. Most new communities develop eradually ; California sprang at once to full stature. No other community was forced to grapple with so many difficult problems as was California. Only in a few other cases in United States history has civil government been ushered in with so much violent discussion. Louisiana, Missouri, and Illinois also had to face the question of foreign land titles, but nowhere was it so troublesome as in California. On account of her remoteness from the centers of trade and population, the problem of communication and transportationDe University of California Publications in History [Vou. 16 was more serious in California than in many other frontier com- munities. In some respects even the Indian question was more embarrassing in California than elsewhere. Hence the California frontier served as a laboratory for experimentation. Here the federal government first tried out the policy of concentrating the Indians on small military reservations of land. This policy was later extended to Oregon and Texas. The California mining code spread over the mining region along the Pacific Coast. The California policy of adhering to a metallic currency during the Civil War period was adopted in Oregon and Nevada. The people in California had an exalted conception of the importance of their state whose gold, they claimed, saved the Atlantic states from bankruptcy. Indeed many a time they boastfully declared that the settlement of Americans in Cali- fornia marked an epoch in world history; that not only was California enriching the whole nation, but she was also destined to- revolutionize the economic, social, and political life of the Pacific islands and Asia. These American settlers believed they were performing a great service to the nation when they tore themselves away from their native homes, relatives, and friends to go to the far west to colonize a new land and to establish there American institutions. Hence as a token of appreciation of their valuable services they expected liberal attention from the general government. The paternalistic federal government was not heedless of the needs and demands of the young community on the Pacifie Coast. Indeed it was extremely liberal: it lavished millions of dollars there; it gave to the young state a princely patrimony of some nine or ten millions of acres of good land; it allowed the free exploitation of the mineral lands without asking a dollar of revenue; it paid the heavy ‘‘war debts’’ of the state. Perhaps it was too liberal. But democratic federal governments are usually dilatory, especially when conflicting sectional interests are involved. While California tended to exaggerate her import- ance and her needs, the strict constructionist southern statesmen1927 | Ellison: California and the Nation 233 underestimated both. They denied that the California gold was enriching the nation more than was the cotton of the south. They claimed that California was exhausting the national treasury. ‘‘We are shamefully neglected by the general eovernment,’’ was the usual complaint voiced by the California spokesmen ; ‘*Cah- fornia wants too much’’ was the common charge of the southern statesmen. ‘‘Do not talk to us about a want of liberality to California,’’ exclaimed Senator Toombs, of Georgia, “‘we have expended untold millions of dollars for her to every single dollar that was ever spent on most of the southern states.” With points of view at such variance, it could naturally be expected that the demands of California would not always be eranted—at least not liberally and rapidly enough. This gave rise to complaints, protests, and even hints of secession. Just as in the case of the trans-Alleghany frontier, the people of Cali- fornia turned to dreams of independent existence whenever they believed that their rights were being neglected by the federal government. To be sure the country was more welded in the middle of the nineteenth century than it was when the trans- Alleghany frontier talked of separation. 3ut the Pacific Coast, severed from the central government by a frontier of hostile Indians and by thousands of miles of desert and mountain barriers, was the most isolated of all the American frontier communities. I have closed my study with the year 1869 because by that time practically all the problems which had eaused considerable agitation throughout the early period of the existence of the state had been settled; and especially because the year 1869 witnessed the completion of the transcontinental railroad which bound the Atlantic and Pacific coasts with iron bars. California then lost the feeling of isolation; she ceased to be a mere outpost of civilization and became truly a part and parcel of the American Union. This great event, more than anything else, marks the close of the frontier era of California.234 University of California Publications in History (Vou. 16 BIBLIOGRAPHY The material for this study is found principally in the federal docu- ments, the California state publications, and the contemporary California newspapers. To the first class of source material belong: (1) the Congressional Globe and Appendixes, which contain the debates upon the various measures, resolutions, bills, and other valuable documents not found elsewhere; (2) the Serial Documents, which contain the messages of the Presidents, the annual reports of the Secretaries of War, Interior, Navy, and Treasury, the annual reports of the Postmasters General, and Commissioners of Indian Affairs, and General Land Office, committee reports, memorials, and occ¢a- sionally the correspondence between the state and federal officials and among the federal officials themselves; (3) the Statutes at Large; (4) the Supreme Court reports. To the second class of source material belong: (1) Browne’s Debates in the Constitutional Convention of California in 1849; (2) the Journals and Appendixes of the California legislature which contain the proceedings of the legislature, reports of committees, messages of the governors, annual reports of the surveyor general, comptroller, treasurer, and superintendent of education; (3) the statutes; (4) the reports of the California supreme court. The newspapers are valuable for editorial comments, accounts of public meetings, party conventions, and stenographic reports of some of the important debates in the legislature, which are to be found nowhere else. The San Francisco Alta, Herald, Bulletin, and the Sacramento Union have been used more extensively than any others, chiefly because they had a longer existence and were by far the most prominent papers throughout the state during the period under discussion. The newspaper files examined are preserved in the Bancroft Library and in the State Library at Sacramento. Poole’s Descriptive Catalogue of Government Publications, and Hasse’s Index of Economic Material in Documents of the State of California are valuable guides to the federal and state documents, but they are inadequate for a study of this kind. The best method is to follow carefully the refer- ences and cross-references in the indexes of the individual publications, and examine every page of the more important documents. There are of course no indexes to the newspapers. The investigator must examine carefully each page, each column, each item.1927] Ellison: California and the Nation 235 A. PRIMARY SOURCES I. FEDERAL DOCUMENTS Congressional Globe and Ap nendixes: Containing the debates, proceedings { I 8 of Congress, important State papers, and the laws of the United States. 29-40 Congress, Washington, 1847-1868. Donaldson, Thomas. Zhe Public Domain. Its history, with statistics .... Serial Number 108 447 497 499 503 507 509 Washington, 1881. (United States Public Land Commission, 1879— 1880.) See Serial Number 1975. a 18 Cong., 2 Sess., Sen. Ex. Doe. 7. 28 Cong., 1 Sess., House Report 546. (Rhode Island Affairs, 1841— 1842.) 29 Cong., 2 Sess., House Ex. Doe. 4. (Message and Department reports. ) 29 Cong., 2 Sess., House Ex. Doe. 19. (Correspondence of military and naval officers and President’s Message, Dec. 22, 1846.) Cong., 1 Sess., Sen. Ex. Doe. 1. (Message and Department reports. ) 30 Cong., 1 Sess., Sen. Ex. Doc. 33. (Court Martial of Fremont, 1847-1848.) Cong., 1 Sess., Sen. Ex. Doe. 52. (Treaty of United States and Mexico and Proceedings of Senate thereon.) 3( CS ww — © 3 S Cong., 1 Sess., House Ex. Doe. 70. (New Mexico and California, Correspondence and Message of the President, July 24, 1848.) 3 ~ Cong., 2 Sess., House Ex. Doe. 1. (Reports from California. With Message of December 5, 1848.) 3 = Cong., 1 Sess., Sen. Ex. Doe. 1. (Message of the President, Dee. 3, 1849, and Department reports.) 31 Cong., 1 Sess., Sen. Ex. Doe. 52. (Correspondence of General Riley with Message of May 22, 1850.) 31 Cong., 1 Sess., Sen. Report 97. (Report of Committee on Post Office and Post Roads on mail service in California, April 4, 1850.) 31 Cong., 1 Sess., Sen. Ex. Doce. 1. (Message and Department reports. ) 31 Cong., 1 Sess., House Ex. Doe. 17. (Message on California and Correspondence, 1850, 975 pp: ) 31 Cong., 1 Sess., House Ex. Doe. 59. (Thomas B. King, Report on California, 1850, 32 pp.)236 587 589 595 612 614 619 635 688 692 710 808 811 824 870 88] 942 31 St) — w 3] 32 32 32 J) Qo 33 33 33 3 Ww 33 34 34 34 3 — WwW v University of Califorma Publications in History [Vou. 16 Cong., 1 Sess., House Misc., Doc. 44. (California Memorial of 1850.) Cong., 2 Sess., Sen. Ex. Doc. 1. (Message and Department reports. ) Cong., 1 Sess., Sen. Ex. Doe. 18. (W. C. Jones, Land Titles in California, 1851.) Cong., 2 Sess., House Ex. Doce. 1. Cong., 1 Sess., Sen. Ex. Doc. 1. (Reports of the Secretaries of the Navy and Interior.) Cong., 1 Sess., Sen. Ex. Doc. 26. Cong., 1 Sess., Sen. Ex. Doe. 50. (Mail service for California. Reports of the Secretary of the Navy and Postmaster General, March 23, 1852.) 2 Cong., 1 Sess., Sen. Report 14. Report of Committee on Naval g I J Affairs on navy yard and depot in the bay of San Francisco, Jan. 6, 1852.) Cong., 1 Sess., Sen. Report 267. (Report of Committee on Post Office and Post Roads on mail service, June 15, 1852.) Cong., 1 Sess., House Ex. Doc. 2. (Indian and Military Affairs in California. ) 2 Cong., 1 Sess., House Ex. Doc. 2. (Annual Report of Postmaster General, Nov. 29, 1851.) Cong., Special Sess., Sen. Ex. Doc. 4. (Report of the Indian agents in California and various Correspondence, 405 pp.) Cong., 1 Sess., Sen. Ex. Doe. 1. (Department reports.) Cong., 1 Sess., House Ex. Doc. 1. (Message and report of the Secretary of the Interior.) Cong., 1 Sess., House Report 168. (Report of the Committee of Ways and Means on civil fund.) Cong., 2 Sess,, Sen. Ex. Doe. 78. (Report of the Explorations and Surveys to ascertain the most practicable and economical route for a transcontinental railroad, 1858-1854. 12 vols.) Cong., 2 Sess., House Ex. Doe. 1 (Reports of the Secretaries of War and Navy, and on the Post Office.) Cong., 1 Sess., House Report 1. Cong., 1 Sess., Sen Ex. Doe. 1. Cong., 1 Sess., Sen. Ex. Doc. 101. (Committee of Vigilance of 1856.) Cong., 1 Sess., House Report 274. (Pacifie Railroad and Tele- graph. Report of the Select Committee, July 24, 1856.) Cong., 3 Sess., Sen. Ex. Doc. 43. (Committee of Vigilance of 1856.) > Cong., 1 Sess., House Ex. Doe. 2. (Message. Reports of the Departments of State and Interior.)1927 | Ellison: California and the Nation 2a 944 35 Cong., 1 Sess., House Ex. Doc. 2. (Reports of the Navy and Interior. ) 997 35 Cong., 2 Sess., House Ex. Does. 1, 2. 1000 35 Cong., 2 Sess., House Ex. Doe. 2. 1025 36 Cong., 1 Sess., Sen. Ex. Doe. 2. 1031 36 Cong., 1 Sess., Sen. Ex. Doc. 26. (Letter of Postmaster Gen- eral relating to the Butterfield overland route, March 22, 1860.) 1056 36 Cong., 1 Sess., House Doc. 84. (Expenditures on account of private land claims in California. Also Black’s Report of May 22, 1860.) 1080 36 Cong., 2 Sess., Sen. Ex. Doc. 1. (Annual Report of Postmaster General Holt, Dec. 1, 1860.) [112614] 37 Cong., 2 Sess., House Ex. Doce. 1. (Abridgment of Message and of reports of the Departments, 1861-1862.) 1182 38 Cong., 1 Sess., House Ex. Doc. 1. (Report of the Secretary of the Interior.) 1220 38 Cong., 2 Sess., House Ex. Doc. 1. (Reports of the Department of the Interior and of the Post Office, 1864.) 1240 39 Cong., 1 Sess., Sen. Report 105. (Report of Committee on Mines and Mining on the mineral land bill of 1866.) 1248 39 Cong., 1 Sess., House Ex. Doe. l. 1254 39 Cong., 1 Sess., House Ex. Doe. 1. 1272 39 Cong., 1 Sess., House Report 66. (Julian’s report on the min- eral lands, June 5, 1866.) 1289 39 Cong., 2 Sess., House Ex. Doc. 29. (J. R. Browne, Report on the Mineral Lands in the West of the Rockies, 1866.) 1326 40 Cong., 2 Sess., House Ex. Doce. iL. 1366 40 Cong., 3 Sess., House Ex. Doc. 1. (Report of the Secretary of the Interior.) 1414 41 Cong., 2 Sess., House Ex. Doe. 1. (Report of the Secretary of the Interior.) 1560 42 Cong., 3 Sess., House Ex. Doc. 1. (Report of the Secretary of the Interior.) 6 Cong., 3 Sess., House Ex. Doc. 47, pt. 4. (Donaldson, Public Domain, 1881.) 6222 Report of the Department of the Interior for 1911. United States. Statutes at Large and Treaties of the United States of America, I, II, V, IX-XVII, XXXIV. Boston and Washington, 1845-1907. 1975 — United States. Treaties, Conventions, International Acts, Protocols, and Agreements between the United States of America and Other Powers, 1776-1909. Compiled by William M. Malloy. Washington, 1910. 2 vols.238 University of California Publications in History [Vou. 16 United States. Treaties, 1850-1853. ....1 Message from the President of the United States, Communicating Eighteen Treaties made with Indians in California. .... 1851-1852. United States. Attorneys General. Official Opinions, IX. Washington. 18 vols. United States. Presidents. A Compilation of the Messages and Papers of the Presidents, 1789-1897. By James D. Richardson. Washington, 1899. 10 vols. United States. War Department. The War of the Rebellion. A compila- tion of the Official Records of the Union and Confederate Armies. Published under the direction of the... . Secretary of War. Washington, 1880-1901. 70 vols. United States Supreme Court. Reports. Fleming et al. v. Page. 9 Howard, 1850. Cross et al. v. Harrison. 16 Howard, 1853. Arguello et al. v. United States. 18 Howard, 1855. United States v. Johnson. 1 Wallace, 1863. United States vy. Moreno. 1 Wallace, 1863. United States v. Yorba. 1 Wallace, 1863. Lane County v. Oregon. 7 Wallace, 1868. Reynegan v. Bolton. 5 Otto, 1877. Mining Company v. Consolidated Mining Company. XII Otto, 1880. II. CALIFORNIA STATE DOCUMENTS California. Adjutant General’s Office. Record of California Men in the War of the Rebellion, 1861 to 1867. Revised and compiled by Brig. Gen. Richard EH Orton: , =. - Sacramento, State Office, 1890. California. Constitutional Convention, 1849. Report of the Debates in the Convention of California, on the Formation of the State Constitution, in September and October, 1849. By J. Ross Browne. Washington, 1850. California. Political Code, II. Sacramento, 1872. California. Statutes, 1849-1870. San José, San Francisco, Sacramento, 1850-1870.1927 | Ellison: California and the Nation 239 California Legislature. Journals of the Assembly and Senate and Appen- dices to the Journals. 1st to 20th sessions. San José, San Francisco, Sacramento, 1850-1874. The Journals of the assembly and senate were published separately but bound together for the first and second sessions, 1850, 1851. The Appendices were bound with the Journals, Ist-5th sessions, 1850-1854. From the 6th to the sessions, 1855-1861, they were published separately. 1863 to date combined. Speeches on Resolutions upon the State of the Union delivered in the senate and assembly at the twelfth session of the California legis- lature. 18 speeches. Sacramento, 1861. California State Library Publications. History of Political Conventions of California 1849-1892. By Winfield J. Davis. Sacramento, 1893. California Supreme Court. Reports. The People v. Naglee. 1 California, 1850. In the matter of Carter Perkins and Robert Perkins. 2 California, 1852. Hicks v. Bell. 3 California, 1853. Stoakes v. Barret. 5 California, 1855. Billinger v. Hall. 7 California, 1857. In the matter of Archy on habeas corpus. 9 California, 1858. Doll v. Meador. 16 California, 1860. Perry v. Washburn. 20 California, 1862. Van Valkenburg v. McCloud. 21 California, 1863. Terry v. Megerle. 24 California, 1864. Ottis v. Haseltine. 27 California, 1864. Galland et al. v. Lewis et al. 26 California, 1864. Lich v. Faulkner. 25 California, 1864. Carpentier v. Atherton. 25 California, 1864. III. NEWSPAPERS Alameda Gazette. 1856-1862; 1864-1866. Grass Valley National. 1861. Mariposa Gazette. 1863-1865. - Marysville Appeal. 1861. Merced Morning Transcript. 1862. Monitor Gazette. 1864-1866. Monterey Californian. 1846-1847. Nevada Journal. 1853-1861. Nevada City Gazette. 1864-1866.240 University of California Publications in History [Vou. 16 Nevada City Transcript. 1861-1862. Niles’ Register. Baltimore and Philadelphia. 1845-1849. Placer Herald. 1852-1863. Placer Times. Established in Sacramento April 28, 1849. Continued as Daily Placer Times and Transcript after June 16, 1851. Removed to San Francisco and published there until December 15, 1855. Sacramento. Democratic State Journal, 1852-1854, 1855-1857; Democratic Journal, 1854-1856; California Statesman. 1854-1855. State Tribune. 1855-1856. Sacramento Transcript. 1850-1851. Sacramento Union. 1851-1869. San Andreas Register. 1864-1866. Los Angeles Los Angeles Semi-Weekly Southern News. Los Angeles Star. San Franciseo— Alta California. 1849-1870. California Chronicle. 1854-1858. California Star. 1847-1848. California Courier. 1850-1852. Evening Bulletin. 1855-1869. Herald. 1850-1862. Journal. 1852-1861. Pacific News. 1849-1851. Placer Times and Transcript. 1853-1855. Whig. 1852. Wade West. 1857-1858. San José Tribune. 1861. San Rafael— Marin County Journal. 1861-1862. Shasta Courier. 1864. Sonoma County Democrat. 1862. Stockton Argus. 1860-1861. Stockton Weekly San Joaquin Republican. 1861. Visalia Delta. 1864. Visalia Sun. 1860.1927 | Ellison: California and the Nation 241 ITV. CONTEMPORARY WORKS [Benton, Thomas Hart]. Thirty Years’ View: A History of the Working of the American Government for Thirty Years, from 1820 to TEDDY 5600 New York, 1854-1856. 2 vols. Bidwell, John. California, 1841-48. 1877. MS in Bancroft Library. Bryant, Edwin. What I saw in California: Being the Journal of a Tour . across the Continent .... and through California.... 1846, WEEN 6b ac New York, 1848. Buchanan, James. The Works of James Buchanan, Comprising his Speeches, State Papers, and Private Correspondence. Collected and edited by John Bassett Moore. Philadelphia and London, 1908-1911. 12 vols. Burnett, Peter H. Recollections and Opinions of an Old Pioneer. New York, 1880. Contains valuable documents on the question of civil government. California Miscellany. ....- See Carmany, John H., and Cyrus W. California Railroads. A Collection of Pamphlets on Railroads from the Mississippi to the Pacific. 10 vols. Calhoun, John C. Correspondence, edited by J. Franklin Jameson. In American Historical Association, Annual Report, 1899, II. Wash- ington, 1900. [Carmany, John H., and Cyrus W.] California Miscellany. Being a Reposi- tory of Reports, Pamphlets, ete. San Francisco, 1860-66. 14 vols. Coleman, Wm. T. Vigilance Committee of 1856. MS in Bancroft Library. Colton, Rev. Walter. Three Years in California. New York, 1850. Valuable for the early part of the American period. Crosby, E. O. Statements of Events of Calif[ornia] from 1851 to 1865, 1878. MS in Bancroft Library. Cutts, James Madison. The Conquest of California and New Meaico..... Philadelphia, 1847. Contains important documents. Dana, Richard Henry. Two Years Before the Mast. New York, 1840. Gives an interesting description of the hide trade. Davis. Sixty Years in California..... San Francisco, 1889. Dempster, C. J. Vigilance Committee [18777]. MS in Baneroft Library. Dillon, Sidney. ‘‘ Historie Moment; Driving the Last Spike of the Union Pacific.’’ Scribner’s Magazine, 1892, No. 12, pp. 253-259. Farnheim [ Thomas Jefferson |. Early Days of California..... Phila- delphia, 1860.242 University of California Publications in History [Vou. 16 Field, Stephen J. Personal Reminiscences of Early Days in California Copyrighted, 1880. Ferris, John Alexander. The Financial Economy of the United States Illustrated, and Some of the Causes Which Retarded the Progress of California Demonstrated. .... San Francisco, New York, 1867. Fitch, George Hamlin. ‘‘ How California Came into the Union,’’ Century Magazine, Xl, 775-792 (September, 1890). Foote, Henry Stuart. War of the Rebellion .... Consisting of Observations Upon the Causes, Course and Consequences of the Late Civil War in the United States. New York, 1866. Forbes, Alexander. California: A History of Upper and Lower Cali- OWES Goo ¢ London, 1839. Frémont, John Charles. Memoirs of My Life..... Vol. I. Chicago and New York, 1887. Greeley, Horace. The American Conflict: A History of the Great Rebellion in the United States of America, 1860-64. .... Chicago, 1864— 1867. 2 vols. Recollections of a Busy Life. New York, 1868. Gwin, Wm. M. Memoirs on History of United States, Mexico, and Cali- fornia. 1878. MS in Bancroft Library. An interesting work by an eminent California politician. Hayes. Collection, Southern California, Local History, 1860-1863. Vols. 19, 48, 50. In Bancroft Library. Newspaper clippings, especially valuable for the rare Los Angeles newspapers. [Ide, Simeon.] Bibliographical Sketch of .... William B. Ide: With.... Account of One of the Largest Emigrating Companies....and.... ‘