[Chapter 01] Staking Our Claim: The Law in Early California

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Following the Bear Flag Revolt and the short-lived California Republic of 1846, San Franciscans began advocating for California's statehood. Civic leaders, seeking order in the rapidly growing region and perhaps some power for themselves, were anxious to create a civil government. The California constitution, drawn up by forty-eight delegates in 1849, tried to impose legal order on the sprawling new territory.

Convening a Constitutional Convention

The territorial governor, General Bennett Riley, called the constitutional convention, though whether he had the authority to do so is questionable. Riley had been appointed governor in April 1949, the sixth person to fill the position in a little more than a year.

Meanwhile, Congress had been wrestling with the question of slavery in the land ceded by Mexico to the United States. A proviso in the Treaty of Guadalupe Hidalgo banning slavery in the newly acquired lands was defeated; Texas was annexed as a slave territory, and the issue remained an open sore on the body politic.

When Governor Riley learned that Congress had once again adjourned without determining the status of California, he decided to take matters into his own hands. He had the support of President Zachary Taylor, who hoped that California would resolve the thorny question of slavery on its own; Taylor even sent a presidential emissary to encourage the burgeoning population of the mining camps to participate in the constitutional convention. Riley put out the call for delegates on June 3, and from September 1 to October 30, delegates gathered from ten regions throughout the state, mostly the central and northern areas. They were a mixed bunch of men. Half were under thirty-five, and only four were over fifty. Thirty-six were American citizens, more from the northern states than the South. Eight were native Californians, of whom only two were fluent in English. There were even three foreigners--citizens of Scotland, Ireland, and France.

The Delegates and the Venue

The delegates listed varied pre–gold rush occupations: the single largest group was lawyers, and there were eleven farmers, eight merchants, three soldiers, and two printers. But the majority of the delegates (as well as the majority of the population) was miners. Some familiar figures from early California history participated: Johann (John) Sutter of Sutter's Mill, where gold was first discovered; General Mariano Vallejo, California's official comandante under Mexican rule; Edward Gilbert, the editor of the Alta California newspaper; and Lewis Dent, brother-in-law of Ulysses S. Grant. One delegate, William Gwin, a Tennessee slaveholder who had served in Congress, came with the express intention of returning to Washington as a senator from California. They met at Colton Hall in Monterey, California's first capital, on a street lined with adobe buildings. The sidewalks were made of whalebone, a plentiful byproduct of the booming whaling industry on the coast. The building was named for Reverend Walter Colton, Monterey's first American alcalde (mayor-like official). According to Colton, the hall was erected "out of the slender proceeds of town lots, the labor of convicts, taxes on liquor shops and fines on gamblers." A fitting venue to devise a document to bring order to a rambunctious, wildly expanding California.

Bilingual Convention

Inside the wooden hall, on one end of a long, U-shaped wooden table, a well-thumbed Spanish-English dictionary held a place of prominence. The proceedings were conducted in both English and Spanish. Before every vote, the resolution was read in both languages.

Despite the hodgepodge nature of the group, in those autumn weeks of 1849 they accomplished quite a bit. They voted to become a state (as opposed to a territory), determined California's eastern border, and selected Pueblo de San José as the first state capital. Although many of the California constitution's standard provisions were adopted from the constitutions of Iowa and New York, the delegates also included some innovative proposals and laid the groundwork for key civil liberties in the new state. They granted the right to vote to every "white male citizen of the United States" and "every white male citizen of Mexico" who opted to become a citizen of the United States. They also authorized the legislature to extend the vote to Indians, in the (unlikely) event that two-thirds of that body agreed to do so.

The Question of Slavery

Slavery was forbidden by a unanimous vote. The provision read: "neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this state." This vote did not wholly derive from antislavery sentiment, but rather had much to do with preventing competition from slave labor in the goldfields. In the summer prior to the constitutional convention, a mass meeting had been held in the mining camps along the Yuba River. At that meeting, the miners elected William E. Shannon as their delegate and also passed a resolution stating, "No slave or Negro should own claims or even work in the mines." Shannon introduced the antislavery resolution at the constitutional convention.

A delegate who had migrated from Louisiana added, "The labor of the white man brought into competition with the labor of the Negro is always degraded. There is now a respectable and intelligent class of population in the mines; men of talent and education; men digging there in the pit with spade and pick--do you think they would dig with the African? No sir, they would leave this country first."

Debate Over Excluding Free Blacks

The delegates also considered a proposal to exclude free blacks from the state, an idea popularized by The Californian editor Sam Brannan, the Mormon leader renowned for announcing the discovery of gold to San Franciscans. Just a few months before the constitutional convention, Brannan had spoken at a Sacramento meeting and called for an all-white California.

M. M. McCarver, a delegate from Sacramento by way of Kentucky, proposed the resolution to exclude free blacks. He claimed that southern slaveholders were planning to bring slaves to work the gold mines and grant them "freedom" if they would continue to work for their former owners. He warned the delegates that blacks were "idle in their habits, difficult to be governed by laws," and should be prohibited from entering the state.

He was opposed by Edward Gilbert, editor of the Alta California, who argued, "If you insert in your Constitution such a provision or anything like it, you will be guilty of a great injustice--you will do a great wrong to the principles of liberal and enlightened freedom. Are we to attempt here to turn back the tide of human freedom which has rolled across from continent to continent? Are we to say that a free negro or Indian, or any other freeman shall not enter the boundaries of California? I trust not, Sir."

The debate raged for two days, but McCarver could not sway enough delegates. Although some, like Gilbert, opposed the resolution on moral grounds, most rejected the measure because they feared that Congress would consider it a violation of the U.S. Constitution and reject their newly drafted document in its entirety.

Rights for Women

Women also benefited from the new constitution, but again, not from the purest of motives. The California delegates did something unprecedented in other state constitutions: they included a provision for separate property for married women. All property of a wife, whether acquired before or during the marriage, could remain in her name. Although this was partly a carryover from the prevailing law in Mexico, and inspired by a newly changed law in New York, delegate Henry Halleck's reasoning probably reflects the more common motive. He claimed this provision would not only attract prospective wives, but wealthy prospective wives. The state's population was more than 90 percent male at the time.

Ratifying the Constitution

Constitucion del Estado de CaliforniaConstitucion del Estado de CaliforniaA month after the convention, Governor Riley put ratification of the document to a statewide vote. Though there were about 107,000 males of voting age, only 13,000 participated. The constitution was approved by an overwhelming vote of 12,601 to 811 on November 13, 1849. Peter H. Burnett, a Tennessee native who had lived for many years in Mississippi before migrating to California, was elected the first governor.

Legislators were elected as well, and the first legislative session, convened on December 15 in San Jose, selected the senators who would represent California in the

U.S. Congress. Gwin had his way. He pulled together a caucus of the Chivalry wing of the Democratic Party, popularly known as "Chivs," who were staunch supporters of the South. Many, like him, still owned slaves in their home states. Other legislators supported him because they thought it would take a southerner to gain congressional acceptance for California's bid for statehood. The other senator elected, John C. Frémont, a veteran of the Bear Flag Revolt and one of the most well-known men in the state, won handily on the first ballot.

You Don't Keep a Millionaire Waiting

A year later, on September 9, 1850, California was the first western state admitted to the union. It had skipped being a territory. California was admitted as a free state, but to appease the South, Congress at the same time passed the Fugitive Slave Law, which allowed the forcible capture and return of slaves who had escaped. Even though California had outlawed slavery, it was not a safe haven for runaway slaves. One of the reasons California was admitted so quickly--Arizona and New Mexico were not admitted until more than sixty years later--was gold. As historian Carey McWilliams noted, "When a millionaire knocks on the door, you don't keep him waiting too long; you let him in." Another reason was that the delegates to the constitutional convention had resolved the vexing issue of slavery, often a sticking point for the admission of new states.

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